You may have read my previous article (online at AviationPros.com) dealing with the Pilots Bill of Rights, which, as we all should know by now, covers all certificated airmen. There seems to be an interesting interaction and commingling of these subjects along with the current controversial IA renewal policy changes by FAA regarding compliance with the “actively engaged” regulatory requirement on March 31 of this year. You, of course, will be reading this after the fact but nonetheless you should be aware of the problem that can arise in the future.
Miranda warning?
For example, before you were issued your IA renewal, you will have signed a document titled “Pilots Bill of Rights Written Notification of Investigation” (Reference FAA Notice 8900.195). You no doubt were sent a copy to be submitted with your 8610-1 before March 31st. It is titled “Pilots” simply because it is the language of the statute but it clearly applies to all certificated persons.
In my previous article I have suggested that this document is tantamount to a “Miranda” warning, that I am confident you all have heard law enforcement people use when they have an alleged criminal “in custody.” You know: "You have a right to remain silent, anything you say can be taken down and used against you, you have a right to a lawyer, and one will be provided to you, etc.”
You must sign the attachment that acknowledges your receipt of the “Written Notification” and that you received written notification of your rights under the Pilots Bill of Rights. This document is required by the statute and is incorporated into the IA renewal process. You should also note that it is used and must be submitted with all applications for any airmen certificate. In the case of pilots, it is used when applying for a rating of any kind, and it is also required when you apply for your medical certificate as well.
The FAA is required to include the form as a result of the Bill of Rights statute being implemented. It is required to tell you clearly that any information you submit to the FAA (the 8610-1 for your IA renewal or the 8500-10 medical certificate for pilots among others) will be investigated. They are telling you they are going to investigate your qualifications to perform the function that you are applying for. You are issued your certificate if the so- called investigation shows you are qualified and physically able to safely perform the duties associated with your application. (But, you are not charged with a violation, yet … is the cart before the horse?)
The reason for the use of this document, among others, is to deny you the use of an ignorance defense and of course to tell you that they are going to investigate you and that anything you say in your application can be used against you. This seems clear to most without this form, but it is designed to prevent defense of a technical nature to any certificate action by the FAA that has to do with any sanctions against your certificate. Keep in mind also that criminal charges (18 USC 1001) can be brought as well as civil certificate actions, as was recently seen in the case of a falsified medical certificate in the case of a pilot. (FAA vs. Stanmore Cooper). (SCUS).
This is really nothing new. All of us in the certificate defense business make it clear to clients that anything they say or write to the FAA can and will be used against them in any action, civil or criminal. This has always been the rule. However, many certificate holders are not aware of this. They still think that FAA will be the same caring and concerned group we were familiar with some years back. A kinder and gentler FAA as coined by one past Administrator. This is not the case today.
Actively engaged
FAA Policy Statement: “It is problematic to list every situation that could be considered actively engaged and that approach may (inadvertently) exclude situations where an ASI would determine, meets the regulatory requirements.”
Furthermore, as indicated in FAA policy statement in Federal Register, “FAA values the substantive nature of experience rather than a strict quantity formula…”
What this means is quite clear, the intent is to include as many people as possible who have something to contribute to aviation safety.
Furthermore, the ASI’s guidance handbook on this subject seems to be at odds with the previously announced “policy” statement of FAA in the Federal Register (where the above statements came from). It would appear to this writer that the Federal Register statements trump the non-regulatory ASI “guidance” handbook.
The eight-hour seminar
The focus on people who have submitted attendance at a eight-hour seminar for the basis of their renewal has been and will be the crux of the problem and the so-called “policy change” we are all familiar with. Many have suggested that since this policy has not been published in the past 30 years or so it is logical to assume that they have abandoned it. I would argue yes, they say no it is still in the regulation and they can enforce it. That is, require the “active engagement” of the applicant.
Well, as we all also know, the IA is generally thought to be an “inspector” and not a “wrench” turner. The FAA not so, you must turn wrenches or supervise those that do. No one knows how much, however. This is left up to the ASI when you apply. One way to support the actively engaged requirement is to submit copies of maintenance records that describe your maintenance work performed and support your mechanic requirement.
On the other hand if you submit an “activity report” showing the four annuals for each year, you get a pass on having to prove you turned a wrench … so if you don’t want angst over annuals submit four for each year and you don’t have to prove you turned a wrench. Go figure. At least that seems to be the requirement now. Who knows it may change. Incidentally, Bill O’Brien has stated in IA renewal seminars that you can annual an aircraft as many times as you want during a year … four or more, for example. I have my notes from his presentations to prove this.
Logs and maintenance records
My deceased friend Bill O’Brien always made a point of talking about annual signoffs during his presentations at IA renewal seminars while he was alive. The question always was asked … which logbook do you sign off in? Is it just in one log or the others? And yes he always made a point to say that “logbooks” are not mentioned in the FAR … you refer to all as “maintenance records” forget the term logbooks. There are many types of maintenance records … work orders, maintenance discrepancy sheets, 100-hour/annual inspection and work sheets that are required to be used for annual inspections, FBO invoices for work performed, parts identification records, etc., and many more computer-generated forms and data. All are evidence of work performed by someone, in support of your active engagement.
In regard to where you sign off your annual it is the “aircraft” maintenance record because that’s what the regulation says. The aircraft is the sum total of all of its parts and therefore when you refer to the aircraft you are talking about the complete aircraft. FAR Part 43.11 says you make the entry or return to service in the maintenance record of the aircraft. Bill always said that the term log was a throwback to nautical days that found its way into aviation.
Voluntary termination
One more thing, if you happen to be unlucky enough to be denied renewal of your IA, or threatened in any other way, do not agree to sign a document they present to you called … Voluntary Termination of IA Authority. Don’t terminate your IA authority voluntarily. You do have other options. For example, you may appeal denial of your IA renewal, by FAA's capricious, arbitrary, or even discriminatory action; yes discriminatory, by appealing to the Aviation Safety Consistency and Standardization Initiative (CSI) Office.
Signing the voluntary termination will prevent you from appealing by its own terms. So don’t do it. Take note that there is a block on the 8610-1 for the ASI to indicate voluntary termination. There is also another reason. There is talk in Washington among some lawyers about bringing an action against the FAA to rescind its new policy and it is based on several factors, not the least of which is discriminatory and capricious action in violation of law and violation of the Administrative Procedures Act.
If you voluntarily agree to turn in your IA you may remove yourself from consideration for re-instatement if a court should agree. Don’t let anyone try to intimidate you into signing the voluntary termination because it would make it impossible for you to appeal the denial. Just state that you will let your IA terminate by its own terms.
Appeal procedure
Your appeal under the CSI is simple, does not require a lawyer, although it might help, and can be done with a simple letter setting out your position in regard to your denial. It must go up through the FAA management level, from your FSDO manager on up through the regional managers, all the way to the Administrator … unless reversed at a lower level. So if you have a complaint you can explain it to all the management levels. This review requires an examination by higher levels of the FAA and must be thorough, complete, and without any retribution or action against you for appealing. This program was instituted Sept. 18, 2009, and is a way to get your complaint (that can’t otherwise be appealed) all the way to the Administrator and his staff.
Poor legislation?
Finally, I have noticed some commentators have said that the Bill of Rights is a poor piece of legislation that will make it more expensive for airmen to defend against FAA enforcement action. Defense of enforcement actions have always been expensive. This may or may not be true at this time. You can still represent yourself in the U.S. District Court, (if you choose that venue) as in all proceedings. In some cases, if there are criminal sanctions possible, the court could appoint counsel to represent you if you show the need and good cause.
Also, it is correct that some of the content of the statute is already the law and has been in effect for some time. But the most significant additions are quite useful to the defense of certificate actions. For example, the big addition is the ability of an airman to appeal his lost case directly to a U.S. District Court and get a completely new fully independent review of an adverse order of an Administrative Law Judge, and the NTSB. This includes an expedited substantive review of any decision to make an adverse order effective immediately. New evidence may be allowed as well as the complete record of the hearings at the Administrative level. You will get a chance to change an unfavorable outcome issued by the Administrative Law Judge and the full NTSB. This District Court review sounds almost like a new trial. You can, of course, still appeal to the full NTSB and from there go to a U.S. Court of Appeals, as was always the case, but here you are limited to looking for errors in the record of your administrative hearing. This can be a daunting task.
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He is a USAF veteran. Send comments to [email protected].
