Fuzzy Regulations

No doubt you have seen the result of the many homebuilt experimental aircraft that have been produced over the last 10 years. Quite a few have been sold and resold since then. The vast majority are sold to nonbuilders who must seek the advice of an A&P mechanic to re-certify their aircraft once a year.

If you are a technician who is interested in working on these homebuilt aircraft you must be careful to adhere to the basic simple rules regarding the condition inspection.

A recent inquiry from an operator who owns an experimental aircraft brought up an unusual question and problem. He did not build the aircraft. He bought it from the builder. He needed an inspection for this experimental homebuilt J-3 replica and told a shop, which was far from his home base, to go ahead with the work. Although the “inspection” for an experimental is not called an annual inspection, as we know it under Part 43, it is similar, in that it is an annual “condition inspection” and the inspector certifies that it is “safe for flight.” What is safe for flight is of course a very subjective decision.

The problem
In this case however the inspector, who was also performing the work, entered the following notation in the logbook after performing routine maintenance on the aircraft.

“… annual condition inspection incomplete due to improper engine overhaul documentation and airworthiness directive compliance at time of overhaul. (Type certificated engine)“…

The inspector told the owner that since the engine had what appeared to be the factory identification plate installed in the usual location he had to consider this a type certificated engine and not an experimental engine attached to an experimental aircraft. He said further that if he had permission to remove the identification plate this would allow it to be classified as experimental and he could continue with a “condition inspection” on it. But, since he considered it a type certificated engine he must certify it, if at all, under Part 43 rules. Since there were no backup records of AD note compliance or other substantial engine history he refused to complete the condition inspection and sign off the aircraft.

He completed the condition inspection of the aircraft but called the whole inspection “incomplete” as indicated above, because he maintained that he could not complete the inspection of the engine absent an AD note compliance list.

Owner’s dilemma
Wow! Here the owner was stuck because he wanted to fly the aircraft home and could not get the shop owner to sign off the aircraft for flight. He did however pay him his fee and took possession of his aircraft. The inspector was willing to provide a ferry flight endorsement which allowed the owner to obtain a ferry permit and fly the aircraft to another shop to look into the matter further. Does one need a ferry permit to fly an experimental aircraft to another location? Is the ferry permit tantamount to a safe for flight condition endorsement? Talk about a rock and a hard place.

Needless to say there were no records of the engine that went back far enough to capture AD note compliance. There was a statement by the previous overhaul shop however to the effect that this was considered an experimental engine in its description of the work performed during the overhaul. It was approved as overhauled for return to service as an experimental engine. What more could the next inspector rely on? The overhaul record spoke for itself.

What’s reasonable?
It would seem that this statement by the overhaul shop should have satisfied the inspector that the engine was experimental and that all he need do is give it a “condition” inspection and return it to service. He refused to do so. Was this in accord with the regulatory plan?

Many would say that the inspector was being overly cautious. Of course it is certainly his prerogative to refuse to sign off on the condition inspection. But, was it reasonable, based on the overhaul statement he had before him? I think not. A simple phone call to the overhaul facility might have allayed his fears regarding AD note compliance on this engine. A condition inspection on an experimental need not address AD note compliance and simply looks to its condition for safe flight.

Reliance on others work is a mainstay of the aviation maintenance business. In the case of an overhauled engine there may be many internal components that an inspector (IA or otherwise) simply cannot visually inspect. As to such components, an IA or other inspector’s reliance on a licensed A&P technician’s assurances that the work was properly performed would presumably be reasonable, in the absence of any indication that some disassembly for verification was necessary. Since there was no verification of AD note compliance on the particular engine the inspector had to rely on the statements of the overhaul technician. He did not appear to want to do that in this case for some reason.

In the Part 91 field we can look for some guidance to cases decided on a similar issue. There have been NTSB cases that have looked at this issue and they go both ways. In one case the Board initially did not find that an IA inspector was personally liable under Part 43 for the errors of a mechanic who worked for him. Where the shop was not a certified repair station for the overhaul of engines, it was necessary for the IA to return an engine to service after overhaul via his IA authority. Perhaps the Board assumed that the signoff by the IA was simply an administrative function of the repair facility and thus should not place the burden of the internal errors of the mechanic on the inspector. The Board opined later in the proceeding that an inspector’s reliance on his employees’ work does not necessarily make him personally responsible under Part 43 for the mechanics’ errors. On subsequent review by the Board however they changed their mind and suggested that the inspector should have supervised his employee more closely with regard to the engine overhaul and its assembly.

There is clear authority for holding an IA responsible under sections 43.13 and 43.15, for returning an aircraft to service that was not airworthy after an annual inspection, where the maintenance work preceding the inspection was performed by others. Needless to say, the IA is responsible to personally inspect the aircraft and of course the retraction of landing gear during the inspection. He cannot leave this to others and rely on their statements regarding the same without the threat of sanction.

However, many would say that the same rules do not apply to experimental aircraft.

The second inspection
With his ferry permit in hand the owner flew to another location and another inspector. After reviewing the work order of the previous inspection and available logs, the second inspector found little trouble in certifying the aircraft for safe flight and included the engine as follows…

“… I certify that this aircraft has been inspected on (date) in accordance with the scope and detail of Appendix D of Part 43 and found to be in a condition for safe flight….”

“… Logbooks checked and found to be satisfactory for experimental non-certified engine …”

Does this solve the problem? Send your comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. E-mail: aerolaw@att.net

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