Staying Legal: FAA Enforcement Activity

Jan. 27, 2012

You may have read recently about FAA enforcement levying fines on some air carriers for excessive delays on the tarmac while waiting to offload passengers. It just seems outrageous that some aircraft are forced to remain on the ramp for many hours without a way to get the passengers off and into the terminal. They talk about security and the like but when an aircraft is locked up on the ramp with passengers aboard it seems to me that it is either FAA’s fault or TSA’s fault, not the airlines. 

The “get tough” attitude of FAA in all areas of enforcement recently seems to be playing the safety card to placate the public and respond to the outcries of them and the Congress. That is, the more the fines and sanctions then the more it looks like it is doing its “safety” job. A dubious conclusion at best. 

When a gate is not available, vehicles should be ordered to transport the passengers. Even the captain could take charge and order the aircraft opened and passengers removed. Safety is the paramount consideration and locked up passengers have gone ballistic in certain cases. If the airline is responsible and is more concerned with money and moving the passengers in the system then maybe they should be held responsible, but passengers locked up in an aircraft on the ramp for hours at a time is just not acceptable and the FAA and TSA should make immediate joint demands for a solution … After all, the captain still has the power and the responsibility.

Help on the way 

A meeting with airlines, airports, and other government officials was held on ways to prevent the incidents of delay and confusion last October 2010, mainly in the Northeast, when hundreds of passengers were stranded. Many of the flights sat on the ground for hours. The problem was attributed to a lack of communication between the airlines with regard to their delays due to the weather. 

Tarmac delays are now limited to a maximum of three hours … at which time passengers must be let off the aircraft. Airlines that exceed that time (as has recently happened) can face maximum FAA fines of up to $27,500 per passenger!

Maintenance and repair criminal case

Meanwhile, maintenance operations enforcement has picked up in a serious way … The “Paper-clip Caper.”

A recent federal indictment of personnel at a maintenance facility (repair station) in California came to my attention in September of last year. This facility itself was not indicted, nor the corporation, but rather, only some technicians and principals involved with the direction and management of the firm. We have to keep in mind that this is a criminal case and not a certificate action, or civil fine, which would be a companion administrative case against the airframe and powerplant ticket and any other FAA issued certificates held by those charged or the company. Six men in all were charged with crimes.

Charging airmen and other certificate holders with a crime is a somewhat rare occurrence. Although individual airmen have been charged with crimes involving aircraft maintenance for serious accidents and deaths caused by their alleged misdeeds, it is usually seen more frequently in European aviation, like what happened in France as a result of the Concord disaster. As seen, it can happen here and we should all keep in mind when we perform maintenance that there are companion criminal sanctions as well as administrative sanctions that can be involved with aircraft maintenance.

The criminal charges in this indictment include, conspiracy to commit fraud involving aircraft parts in interstate and foreign commerce and fraud involving the same, mail fraud, and also an order including criminal forfeiture for all ill-gotten gains from the alleged criminal activity. 

The primary business of the company is the repair and overhaul of starter generators, alternators, and rotary or linear actuators, converters, and flight instruments. It is still in business although owned now by a larger company.

The indictment reads in part as follows: … defendants and others known and unknown to the Grand Jury, knowingly and with intent to defraud; combined, conspired, and agreed with each other, in and affecting interstate and foreign commerce, to: (a) falsify and conceal material facts concerning aircraft parts; (b) make materially fraudulent representations concerning aircraft parts; (c) make and use any materially false writings; entries; certifications; documents; records; data plates; labels; and electronic communications concerning aircraft parts; and (d) export from and import and introduce into the United States, sell, trade, install on and in any aircraft; aircraft parts using and by means of fraudulent representations, documents, records, labels, certificates, data plates, and electronic communications, all in violation of Title 18 U.S. Code, Section 38(a). 

Records, 8130 forms, data plates

We all should be familiar with the usual charges regarding falsifying records, and concealing material facts involving the use of unapproved parts in repairs and overhauls. Falsified 8130s added to the charges along with internal records, work orders, and other paperwork. The paper trail is what nails down the charges. Furthermore, not completing required testing of repaired components adds to the charges. The station manuals set out in detail all of the required testing to be done on each part's item. Failure to follow its own company operations manuals adds to the laundry list of violations. (See FAR 145.109, 145.207, 145.211, 43.9, 43.12, and 43.13.)

Furthermore, swapping part data plates was common practice according to the indictment and the technicians were well aware of the practice. (Indeed, many would say that it is still common practice in many parts of repair industry.)

The guts of the complaint

The gist of the indictment consists in these six men being charged with conspiring to use and using, unapproved parts in their repairs and falsely certifying that the FAA approved their use. They are alleged to have used cheaper and inferior parts in place of approved parts.

There are two allegations of using parts that were fabricated at the repair facility … hence we call this the paper clip caper … 

To show how detailed the charges are, here is an excerpt from the indictment: “… on or about Sept. 12, 2007, the defendant … instructed a technician to fabricate an end bell locator pin from a drill bit, and install it on a windshield wiper motor … on or about Sept. 13, 2007, the defendant … fabricated an end bell locator pin from a paper clip, and installed it on a windshield wiper motor …”

These parts were made by the repair person from scratch and therefore, the FAA concludes that they are unapproved and illegal to use in the repair of aircraft accessories. It should be noted at this point however that the U.S. Attorney has said that there have been no crashes or in-flight emergencies or any incidents because of the repairs … (but) … that the charged persons needlessly took risks with the safety of the persons who used aircraft that they had repaired … (actually the component part or accessory that they had repaired).

It should also be noted that there is an approval process wherein the repair station can fabricate and manufacture parts to be used in repairs, but only with the approval of the FAA; this process was not followed in this case apparently.


Finally, the government threw in and fired its final big gun and that is the forfeiture allegation as follows … “upon conviction of one or more of the offenses alleged … defendants … shall forfeit to the United States … all property which constitutes or is derived from proceeds obtained, directly or indirectly, as a result of such violations and any property used, or intended to be used, in any manner, to commit or facilitate the commission of such violations.”

The forfeiture allegation against these defendants is the coup de grace in regard to sanctions because it is designed to strip them of all proceeds or property that may be deemed acquired as a result of the alleged actions. This of course includes real property as well as personal property, traceable to the violations. This is a very powerful weapon in the hands of the government and is derived primarily from the drug enforcement actions that generate huge amounts of cash and property.

These men charged will have a long and painful trip through the federal criminal trial procedure but may be forced to plead to the charges before a trial can be reached. It will be expensive for them, each must have a lawyer or have one appointed for him. There will be no quick resolution for them. Their lawyers will have to use all of their training and experience to bring about any kind of a acceptable result for these men, who will also lose all of their FAA certificates as the process continues.

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].

About the Author

Stephen P. Prentice

Stephen P. Prentice is an attorney with an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran. E-mail: [email protected].