Air 21: The Rest of the Story
It's what you don't know about it!
By Stephen P. Prentice
Like the famous commentator says ..."here's the rest of the story..."
Funding the FAA
Air 21 is the generally accepted name of the legislation, recently passed in the 106th Congress on April 5, 2000 as Public Law 106-181. Many referred to this law or at least part of it, as the "Hoover Bill." This was in honor of Bob Hoover, who we all remember was raked over the coals by FAA regarding a medical problem. Relevant to his problems, a small section of the bill deals with appeals of emergency revocations and suspensions.
The bill is officially titled "The Wendell H. Ford Aviation Investment and Reform Bill for the 21st Century." A very official sounding piece of legislation that is basically the money source for the FAA for the next several years. However, it was also the vehicle to accomplish many other things that included, as mentioned, the procedural relief from Bob Hoover-type emergency revocation of certificates.
Hoover Bill (Title 49 USC 44709e(3)Emergency Actions by the Administrator
The Hoover Bill part has to do with having a shot at challenging the FAA's determination that an "emergency" exists in regard to revocation or suspension of your airman, air carrier or repair station certificate. It's only a very small section of this large bill but it provides a significant procedural protection for airmen and operators faced with emergency action by the FAA. This summary power in the hands of FAA is a formidable weapon used to force the affected parties to give up and give in to the FAA action. There never was a way to challenge whether or not an emergency really existed. (In many cases, there were none!) The procedure now is that you can appeal directly to the NTSB on the single issue of whether or not an "emergency" exists at all. As written, you must do this within 48 hours of receipt of the order of suspension or revocation! This, as we all should know, is a key finding in the matter and controls to a large extent whether you win or lose.
A person may petition for a review by the Board (NTSB) the Administrator's determination that an emergency exists. Such review shall be requested not later than 48 hours after the order is received by the person. If the Board finds that an emergency does not exist that requires immediate application of the Order...the Order shall be stayed. The Board shall review the request not later than 5 days after the date on which the request is filed.
Take note that if you suspect an emergency order of suspension or revocation will come down on you, take immediate steps to start preparing your petition for review. This is a tall order. You must convince the Board with a paper pleading, that there is no reason for immediate emergency action on the part of the Administrator.
This part of Air 21 was the good news. Now for the bad news. A prominent part of this law is a real sleeper that we all better be aware of. It deals with the bogeyman of "bogus parts" or more formally, suspected unapproved parts, (SUPs).
Parts . . . again
We have all seen how parts manufacturer's and brokers around the country have been prosecuted by the Feds for peddling phony parts or parts that were unairworthy salvage parts. Remember "scary" Mary Schiavo? She went on forever about the subject. If parts were found to be fraudulently produced, charges were filed and people went to jail. In one case, a guy committed suicide rather than face the music. The thing to be noticed is that the FAA could not prosecute these cases directly. The U.S. Attorney and the Justice Department or the DOT Inspector General took all the glory. Politics sometimes got in the way of justice.
Well, what to do about this? The FAA must protect its fiefdom and turf. Very simple. Make some new laws that the FAA can use to prosecute people involved with parts directly. Air 21 made the laws and what is being proposed as regulations are thought by many to open floodgates that will threaten prosecution for all who sell and or distribute parts.
NPRM - Hire more cops
The FAA is currently in the process of preparing this new regulation to be called FAR Part 3 that deals strictly with aircraft parts. We don't know exactly when this will be published, but some think the end of the year and most likely it will follow the language of the Air 21 law.
The new regulation is designed to apply to all parties associated with aircraft parts, whether or not they are certificated by FAA. Look at these ramifications! Every item on an aircraft, used in its manufacture is subject to scrutiny and possible sanctions for the provider. All hands (including yours) that touch a part or any of the paperwork, if it turns sour, can and will be subject to attack by FAA directly. FAA will have to double their agents to do this job and you better pay attention to this one!
The key element in this new law is the ability of the FAA to enforce their rules regarding SUPs (bogus parts or paperwork) against anybody including those that have no FAA certificates. How they will manage this extra level of surveillance without an impossible burden on their inspectors is the big question.
What it says
In general, the law will give the Administrator the power to suspend or revoke and refuse to issue a certificate to anyone, (this is not really new), including those holding a controlling interest in a company convicted in a court of law of a violation of a law of the United States relating to the installation, production, repair, or sale of a counterfeit or fraudulently represented, aviation part or material.
Furthermore, if you "...knowingly, and with intent to defraud, carried out or facilitated an activity punishable under (this) law..." you are subject to the same sanctions.
This part tells the story of how it applies to certificate holders or applicants for a certificate of any kind. The penalties are the big addition. The most significant part of the law follows.
Fraud in Interstate or Foreign commerce -The big deal!
This section is what will drag in the most people. We don't know what the regulations will contain but we can guess they will follow the language of this new law closely. This is the section that generally applies to everybody, certificated or not.
"Whoever knowingly and with the intent to defraud ...(a) falsified or conceals a material fact concerning any aircraft or space vehicle part (b) makes any materially fraudulent representation concerning any aircraft or space vehicle part; or (c) makes or uses any materially false writing, entry, certification, document, record, data plate, label or electronic communication concerning any aircraft or space vehicle part;
Exports from or introduces into the United States, sells, trades, installs on or in any aircraft or space vehicle part using or by means of a fraudulent representation, document, record, certification, depiction, data plate, label, or electronic communication;
Attempts or conspires to commit an offense (as above)...shall be punished..."
Technicians take note. Another part of this law includes the fact that if you are snagged under any part, you will be barred forever from working in the same or similar job! This is very similar to the permanent disqualification from service described in drug enforcement rules.
If you are involved in any proceeding, whether it is a full-blown legal case, a certificate action where you pay a civil penalty, or other type of sanction, you may be subject to this law. If the language the FAA includes in their regulation tracks the law as written, there is no doubt that the liability net is cast far and wide! Since all technicians handle "parts" at some time, the simple act of installing a part on an aircraft and making representations in an aircraft record, bring you within the scope of this law! Now, with these and other kinds of threats, are you ready to go get a job at your local car dealer?
1. If the offense relates to an aviation quality part the fine is $500,000 and/or 5 years in jail.
2. If the part fails to operate as represented and if it fails in some way and causes injury, the fine goes to $1,000,000 and or 20 years.
3. If death results due to the part failing it is $1,000,000 and or up to life in prison!
Isn't this business great!
Now, I have to say that these comments are just a brief overview of what many feel will be a vast new FAA tool to snag lots of people. Whether or not there will be broad exceptions and editing in the final regulation to be published this year, we will have to wait and see. However, as written and passed into law right now, this piece will be a very dangerous trap for unsuspecting technicians and others who will be handling, in any way, aircraft and space vehicle parts. Better tighten your seat belts and hang on for this one!