September 1, 2006
By John S. Yodice
John S. Yodice is legal counsel for the Aircraft Owners and Pilots Association.
This case could be an unpleasant reminder to the majority of aircraft owners and pilots who routinely rely on repair/inspection facilities, mechanics, and other professionals to keep them legal with logbook maintenance sign-offs and other airworthiness requirements. The NTSB teamed up with the FAA to punish a pilot under regulations that could trap other owners and pilots relying on their maintenance professionals. In regrettable fashion, the FAA and NTSB continue to evidence little understanding or concern of the realities of owning and operating a general aviation aircraft even in incidents when there is no demonstrable safety problem.
Can you relate to this situation? In December 2001, our hapless owner-pilot left his Grumman Mallard with an avionics shop to do some work on the aircraft's avionics. The work was not progressing as promised. After being told several times throughout the spring of 2002 that the aircraft would be ready, the owner canceled the work and made arrangements to be flown from Wyoming to Washington state to pick up the aircraft, only to be told later that the aircraft would not be ready as promised. After putting more pressure on the avionics shop to complete the work, he was finally told that the aircraft "would be ready, absolutely no question, ready to fly on May 15." He made arrangements to be flown to Seattle on May 22 and, several days before departing Wyoming, called the avionics shop to ensure that the aircraft would be ready. He was told that it would be ready, and that with "debugging" he could depart with it on May 24.
You have already guessed it. When he arrived on May 22, the aircraft was not ready to fly. "I looked at the airplane, and there was no interior in the airplane. There were wires hanging all over the place. There were people in the bow compartments still hooking up things that hadn't been hooked up." He said that over the next several days "it was just a constant push to get everything put together and get it done, get the job done. I was there until 2 in the morning [on the first night]. I tried to keep them moving and get this plane put together so we could fly it and I could leave."
It was his effort to help get the airplane ready that caused part of his problem, but not the part that I want to focus on. This part, however, does give background and flavor to the case. The FAA charged him with helping install the radome and the flux gate for the directional gyro without working under the supervision of a mechanic or repairman as required by FAR 43.3. The pilot didn't dispute that he helped install the radome, but said he did so with employees of the avionics shop, assuming they were qualified to supervise his help.
At his trial before the NTSB he testified: "I said to the technician: 'That radome's gotta go on.' The technician went and got some silicone sealant and he said, 'This is not a simple job. You need to get a big strap to put on here and that thing has to be held specially because it was custom fitted,' and I said, 'Fine. Do whatever you need to do.' He went and got the strap, came back, put the strap on there, and I think there [were] three of us that were sitting there fitting this thing and putting the screws in. I didn't do that independently. I sat there and helped them install this by helping position the radome, but it's — it's like an inspection panel. I mean, it's just a cover.... I might have put one or two of the screws in the holes. I didn't tighten them. But I was helping."
In the face of the FAA charges, the owner-pilot also tried to argue that the radome installation was "preventive maintenance" that is permitted to be done by an FAA certificated pilot on an aircraft owned or operated by that pilot. The board, rejecting that argument, said that the board was bound by the FAA inspector's explanation of why the owner-pilot's application of sealant was not "preventive maintenance" under the regulations. Why the board considers itself bound by an FAA inspector's interpretation of the regulations, a bad holding for a lot of reasons, is worth another whole article.
The other part of the case that I do want to focus on refreshes an important regulatory requirement for aircraft owners and pilots. The FAA said that when the pilot flew his aircraft back to Wyoming, the avionics personnel had not made maintenance entries in the aircraft logbooks for much of the avionics work performed, and the pilot had not reviewed the aircraft logbooks prior to departing.
According to the pilot, the avionics shop gave no indication that the airplane was unsafe or illegal to fly, and the avionics shop employees helped him prepare for departure and waved goodbye. "It wasn't that I came up there and was going to rip it away from them at all costs. I came up there to pick up the airplane, and I became progressively more frustrated when I got there and it wasn't ready, but they were working to get it ready and they got it ready and they gave it to me ready and they stood there and, you know, helped me load it up, and as I taxied out, they waved. They didn't say, you know, you need to bring it back so we can finish the job."
Despite this explanation, the FAA charged and the NTSB found that the pilot had violated FAR 91.405 and FAR 91.407, two regulations worth remembering.
FAR 91.405 provides that "each owner or operator...(b) shall ensure that maintenance personnel make appropriate entries in the aircraft maintenance records indicating the aircraft has been approved for return to service."
FAR 91.407(a) provides that "no person may operate any aircraft that has undergone maintenance, preventive maintenance, rebuilding, or alteration unless (1) It has been approved for return to service by a person authorized under Sec. 43.7 of this chapter; and (2) The maintenance record entry required by Sec. 43.9 or Sec. 43.11, as applicable, of this chapter has been made." By regulatory definition, a pilot is an operator.
So, the FAA suspended the owner-pilot's commercial pilot certificate for 75 days (it had been reduced from 90 days by the NTSB judge because the judge discounted the allegations regarding the flux gate). Nevertheless, the judge and the full five-member board affirmed the FAA allegations in all other respects. Bottom line: Before an aircraft is operated, you as an owner, and as the pilot even if not the owner, must independently ensure that the appropriate logbook entries are made after any repair, alteration, or inspection.
To put the exclamation point to its decision in this case, the board cited an NTSB precedent involving a pilot accused of failing to discover a gear-pin problem during a preflight check, saying the fact "that maintenance personnel also failed in their duties illustrates the importance of respondent's [the pilot's] function; it does not excuse his [the pilot's] conduct." In other words, reliance on maintenance professionals to do their job may not excuse the violations.
A new FAA policy on obstructive sleep apnea that addresses many of the concerns raised by AOPA is scheduled to take effect March 2.
AOPA and the National Business Aviation Association have jointly filed an amicus, or friend of the court, brief in the Ninth Circuit Court of Appeals as part of the ongoing legal battle over the future of Santa Monica Municipal Airport.
AOPA worked with the flight training industry and FAA to quickly resolve a problem that suddenly put many rating applications on hold.
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