Certificate Enforcement: How to avoid a suspension

April 1, 2004

Staying Legal

Certificate Enforcement Review
How to avoid a suspension

By Stephen P. Prentice

Every year I feel compelled to repeat what I have preached for many years about the Aviation Safety Reporting System, (AC-00-46D, FAR 91.25, form ARC 277), and more importantly, when this safety system should be used. It can help avoid a suspension of your certificate and possible loss of employment. We should be reminded at least once a year. The rules apply to both pilots and mechanics. First, a case in point.

A case in point
This particular airman was an air carrier A&P who frequently accompanied a big Boeing on charter trips around the globe. On this flight there was a fire warning shortly after takeoff from a remote overseas location and the aircraft returned for an uneventful landing at the same location. The engine was not shut down but power was reduced during the turn-back.

Needless to say the fire warning system was examined and carefully tested. There had been signs of compressor bleed air valve leakage inside the nacelle during the flight and perhaps for some time before. The system was tightened up to make sure all ductwork was secure. There was no visible evidence of a fire.

Bleed valve system leakage is a common way to trip the fire warning system because of the large influx of superheated air that may escape into the engine nacelle. The bleed valve system was inspected and cleared. The captain and the flight engineer concurred in the maintenance and inspection. The engine was buttoned up and high power run-up was performed without any fire warning trip. The flight mechanic signed the log clearing the discrepancy and released the aircraft to service. The captain concurred.

After the aircraft returned to home base uneventfully, the mechanic was threatened with certificate action because of alleged evidence of fire found later in the nacelle and his failure to follow the FAR and maintenance manual mandates. The action is still pending. Did he file an ARC 277 form at this point? No! He should have prepared one for filing at the time of the occurrence (when working on the aircraft) or at least when FAA inspectors focused on him for a violation. Don’t wait for a Miranda type of warning about your work. There is none. You have to always anticipate the worst and prepare in advance for it.

ARC 277 NASA report
Many mechanics have a vague idea of the basic rules of the NASA report and the insulation it can provide from the sanctions of a violation. We all know, for example, that the sanctions are avoided if all the conditions are met. However, keep in mind that the violation still stands. I have run into more airmen who get confused on this point. You are still charged with a violation and have a record to show the violation. You must report the violation, if you are a pilot, to your insurance company and other agencies that want to know. You are in the computer! Don’t forget it.

But don’t be in too big a hurry to forward your proof of filing a NASA report to the FAA in response to a Notice of Proposed Certificate Action (NPCA) request. (Assuming for the moment you did file a NASA report.) If you tell them about your filing they will consider your claim of entitlement to a waiver of penalty as a guilty plea and it becomes your agreement that a violation order may be issued without further proceedings. This will become a matter of record and reportable. Keep in mind that there is no compelling reason to present your NASA report filing evidence before completion of the case. You may prevail in the case or get it dismissed and the filing was just good insurance against a sanction.

The second thing to remember is to file the report even if 10 days has passed since the event or occurrence. This date can be flexible and arguably change depending on the facts. Every mechanic should carry a form ARC 277D (the yellow one) in his or her toolbox! Air carrier pilots carry the same form (pilot’s version) and use them all the time. Anytime you even suspect a problem could develop with any work you perform, file a report. Keep a copy and mail it certified mail — return receipt.

Requirements for penalty waiver

1. The violation was inadvertent and not deliberate
2. Did not involve an accident, criminal violation, or show a lack of competency or qualification
3. You have not been found in any prior FAA enforcement action to have committed a violation of the Federal Aviation Act or any of the regulations under it, for a period of five years prior to the date of the occurrences, and
4. You can prove that within 10 days after the (alleged) violation (occurrence) you completed and delivered or mailed a written report of the incident or occurrence to NASA under the Aviation Safety Reporting System.

Mandates and regulations
Now, all in the air carrier maintenance business know that any flight irregularity like a turn-back or engine malfunction requires contact with maintenance control, the chief inspector, and/or the director of maintenance. (And whoever else the company manual calls for.) After they are apprised of the problem, the fix, if any, and all requirements of the company maintenance manual are complied with, they usually can concur in the release of the aircraft for flight. Who then is the final authority for the release? The mechanic, the captain, the flight engineer, maintenance control, the chief inspector, the director of maintenance, or the company? All of the above collectively? This is where it can get sticky.

The mechanic in this case came up with a novel argument regarding his responsibilities for work he performs for his employer. It may fall on deaf ears however. He argued that since he is an employee-agent of the carrier he is simply carrying out the orders of management. To a certain extent he was right. Typically, the certificate holder approves the aircraft for return to service after maintenance (through the chief inspector or director of maintenance), and if an FAA inspector has a gripe about the work it is usually a problem for the carrier. After all, each certificate holder is primarily responsible for the performance of maintenance on their aircraft (FAR 121.363(2)).

Another consideration has to do with inspection requirements after the work is performed. The FAR requires that an inspection system must be in place and a designation of the items of maintenance that must be inspected, including items that could endanger the safe operation of the aircraft (121.369b(2)). The person inspecting the work cannot be the one who performed the work (121.369b(7)). Is a fire warning system one of these double I items? This could be the responsibility of the air carrier. Can the flight engineer be given inspection authority en route, for required items? Is the captain ultimately responsible? All of these questions will no doubt be discussed and examined as the case proceeds. There is no clear answer as far as the airman is concerned. He wants off the hook for any FAR violations related to the alleged fire damage. We’ll follow and report accordingly.

The LOI The airman was required to reply to a Letter of Investigation (LOI). All enforcement cases start with the LOI usually written by a FSDO inspector. You have to pay attention to it and respond in the time allotted (usually 15 days).

Think carefully about your response and unless you have solid evidence that you are not guilty, forget about replying in writing. If you are convinced, for example, that they got the wrong guy tell the inspector. If you have an ironclad alibi tell him.

Otherwise, you will just get yourself in more trouble and may be responsible for making a case against yourself. I always recommend simply calling the inspector concerned and advising him that you have nothing more to add to his file and that you don’t want to write a letter (Leave a simple message on voice mail and be polite!).

Keep in mind that an LOI means that a case file has been opened and given a number. It’s time to discuss it with counsel. Prepare and mail a NASA (ARC 277) report. Even if not within 10 days of the incident, mail it anyway. Keep in mind that the date the LOI arrives does not constitute the event date that triggers the 10-day filing rule. Many make this mistake.

You are not going to convince an inspector at this point to step away from recommending an enforcement action against you. Chances are he is ready to forward his report to the Region. Remember this is his job. FAA lawyers decide whether he had a good case against you or not.

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. E-mail: [email protected]