One of the most commonly misunderstood regulations is the general performance rules of FAR 43.13(a) which provides:

 ”Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer’s maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in §43.16….”

This regulation is commonly misinterpreted by mechanics, customers, and sometimes even FAA inspectors to mean . . . “if it’s in the CMM, its required.”  Although the text of FAR 43.13(a) provides that the person performing maintenance “shall” use the maintenance manual, an alternative is provided in the same sentence, i.e., by virtue of the “or”, the person may use “other methods, techniques, and practices Acceptable to the Administrator…”  While the FARs do a poor job of explaining what “acceptable to the Administrator” actually means, the regulations clearly permit other maintenance techniques and practices beyond just what’s in the CMM.

One exception to allowing other practices acceptable to the Administrator under this rule, is maintenance/inspection specified in an Airworthiness Limitations Section of a manufacturer’s maintenance manual (FAR 43.16).  This rule permits only maintenance in accordance with the instructions in that section of the manual, and does not allow for other maintenance practices and techniques acceptable to the Administrator.     In fact, FAR 43.16 unambiguously states that the person performing maintenance in the Airworthiness Limitations Section of a maintenance manual “shall perform” the inspection/maintenance in accordance with that section.  Seems pretty clear, right?

Maybe not. The FAA Office of Chief Counsel has graced us with another legal opinion on maintenance performed under Part 43. This time, the FAA Chief Counsel’s Office was asked to provide an opinion on whether a properly qualified airframe mechanic who performs Airworthiness Limitation required maintenance in accordance with FARs 43.13 and 43.16, would be in violation of any rule if they did not comply with the training and authorization requirements prescribed by the manufacturer in the Airworthiness Limitations Section of their maintenance manual.

At issue were instructions in the Airworthiness Limitations Section of the maintenance manual which required that maintenance only be performed by technicians who had received special training/authorization from the manufacturer.

While acknowledging that a literal reading of FAR 43.16 requires compliance with a manufacturer’s Airworthiness Limitations Section of the maintenance manual, the FAA goes on to clarify that those regulations are directed to the proper performance of maintenance, not to who may perform it. The opinion explains that the manufacturer imposed limitations on who may properly perform maintenance in the Airworthiness Limitations Section of a maintenance manual goes beyond what is required and intended by the FARs, and is unenforceable from an FAA regulatory perspective.

In other words… “shall” doesn’t actually mean “shall” — at least not in the context of restrictions on who may properly perform Airworthiness Limitations Section maintenance under FAR 43.16.

The takeaway here is that, as long as the technician is properly rated and qualified under the FARs to perform the Airworthiness Limitations Section maintenance, any manufacturer imposed requirements/mandates that go beyond FAR qualification requirements, are discretionary and unenforceable from a regulatory perspective.

The opinion serves as a useful reminder that the FARs define the scope of an MRO facility’s  regulatory requirements — not  the manufacturer, and that just because the manufacturer says its required, doesn’t mean it always is.

 PS-The FAA has been criticized by many for impossibly unrealistic flight time requirements for commercial airline pilots.  Your thoughts?

NS-  For many years the pilot supply for the air carrier industry came from both the military and civil aviation segments.  The military, for some time, has been offering incentives for pilots to stay longer in the service.  This action began to dry up the military supply.  In 2008, the DOD announced that their last manned fighter aircraft is the “Joint Strike Fighter.”

The Air Force Academy now has more cadets in the UAS program than they do in the pilot program.  As a result, there are fewer pilots coming from the military service.  Moreover, fewer pilots are coming from the civil side, most likely, because the cost of logging the additional 1000 plus hours has discouraged many young men and women from pursuing an aviation career.

PS-   Did the FAA screw up by enacting the 1500 hour requirement.  Is it necessary?

NS-   The new FAA 1500 hour ATP pilot qualification regulation was not done by the FAA.  It was imposed by law on the FAA by Congress.  It requires that air carriers hire only ATP rated pilots meeting the new regulation.  This new regulation has exacerbated the growing shortage of pilots. 

I have one air carrier client who, because they can’t find pilots who meeting the new reg, has decided to drop a number of Essential Air Service (EAS) routes.  This has significant consequences for those small communities which have air service.  Another client, for the same reason, has reduced the number of new aircraft they can bring online because of the pilot shortage.

PS-   Doesn’t more hours mean better pilots?

NS-   Having more hours does not equate to a better pilot.  The quality of the training is what matters, not the quantity of hours.  The Europeans have recognized this and have had great success with the Ab Initio programs.  Lufthansa is recognized as having one of the best.

PS-   Are you suggesting that the FAA should move toward the European system?

 NS-   I think U.S. air carriers should consider adopting either the Ab Initio model or the military model.

The military model requires that a pilot candidate first successfully complete and graduate from the Officers Candidate School.  Candidates there are taught leadership, command ability, decision-making and judgment.  All essential competencies for airline pilots. 

When they graduate, then and only then, will they be considered for a pilot slot.  Once in the pilot program, they must successfully complete and pass each phase check in order to continue to graduation and earn their wings.  This is unlike aviation programs in our universities, where a failure to pass a phase check does not cause termination in the program, but allows the purchase of sufficient additional flight hours until one is able to pass the phase check.

PS-   What is the biggest difference between military and civil training programs?

NS-   The single most significant difference between the military and civil training programs is that the military trains their pilots on the equipment they will be flying.  As a result, we have the most sophisticated and complex aircraft in the world being flown by pilots who are experienced in them.

PS-   Will pilots become obsolete as we move into the era of UASs?

NS-   Some say that we will not need as many pilots as we have in the past because of the emerging technology for unmanned aircraft.  While the technology may, in the not too distant future, be ready for prime time in the air carrier world, society will not embrace unmanned passenger aircraft for a very long time.  Also, the FAR operating rules would have to be changed to allow it.

Furthermore, the OEMs design aircraft for a 30 year lifecycle.  The latest Boeing and Airbus aircraft are two crew aircraft and, to the best of my knowledge, these OEMs do not have unmanned aircraft on their drawing boards as replacements for what’s in the pipeline, but who knows.

The FAA has just issued its 2014 report, and claims progress is being made in several areas.  In particular, the report claims that general aviation pilots are now able to take advantage of the Automatic Dependent Surveillance-Broadcast system to get a wide array of traffic and weather information that the FAA says has cut accidents by 30 percent.  In addition, the report notes progress in implementation of Performance Based Navigation in 13 targeted metroplexes.  The FAA estimates that its Denver metroplex initiative alone will save operators almost $10 million annually in fuel costs.

While the report contains some interesting facts, the most notable feature is its “forward looking” tone.  Hiding behind the buzz words that one finds in almost any government report seems to be a realization that there is still a very long road ahead before the program will deliver on its promise of a 21^st century air traffic control system.  For example, the report touts that the FAA is “on the cusp” of finishing programs that “underpin NextGen,” and that the work being done today is still nothing more than the “foundation” for true NextGen capabilities.

Given the long history of the issue, Congress can best be described as encouraged, but skeptical.  The House Appropriations Committee recently commented, in its 2015 FAA Budget Report, that:

 As noted by stakeholders, the Government Accountability Office (GAO), and the OIG, the effort has often not met with expectations.  Problems with advancing NextGen have been linked to unrealistic plans, evolving requirements, and an agency culture that is resistant to new ways of doing business.

 While the Committee approved the full amount of the FAA’s 2015  budget request for NextGen implementation, the panel also expects “the FAA to develop a plan that outlines specifically how it is addressing investment priorities with details on timeliness, milestones and resource requirements.”

As Winston Churchill might put it, we are not at the end of NextGen implementation, or even the beginning of the end, but just maybe, we are at the end of the beginning.

The FAA is, because of the highly regulated nature of aviation, an experienced issuer of rules.  However, the entire universe upon which we have embarked, that of UASs, is truly a new frontier and the task confronting the FAA is formidable.  They undoubtedly want to get it right the first time.  Under applicable legal principles, the reality is that they really only get one chance to get it right.  Moreover, contrary to what you may think, it’s not really the final rule, which counts, but rather it’s the proposed rule.  So right now, before there is a proposed rule to be commented upon, is the time to get your concerns, thoughts and ideas to the FAA so they can consider them as they draft the proposed rule and before they put it out for comment.

The reason to do this is that an “agency’s proposed rule and its final rule [may] differ insofar as the latter is a “logical outgrowth” of the former.”  An excellent discussion of this legal principle, is found in an article just written by Larry Ebner, one of my partners.  DC Circuit Shuts Down Another Federal Regulatory “Switcheroo”.

What this means is that with the exception of some fine tuning, the final UAS rule the FAA adopts is going to look an awful lot like the proposed rule.  In fact, it has to do so to withstand judicial scrutiny.

The FAA is faced with a monumental task.  Irrespective of whatever the ultimate timing is regarding the issuance of rules, UASs are here to stay.  Right now is the time for anyone interested in being in the UAS business to affect what that business looks like by initiating dealings with the FAA before there’s a proposed rule.

Get a seat at the table now or get left out!

This sentiment reflects the daily death-of-a-thousand-cuts the FAA’s UAS policy has been suffering for the last few months.  One of the fundamental realities facing any regulator is that inspectors cannot be everywhere and oversee every operation.  As a result, regulatory schemes are supported by two pillars: voluntary compliance and public enforcement.

In order for voluntary compliance to be effective, the regulated have to understand the requirements, have an appreciation for why the regulation is necessary, and respect what the regulator is attempting to accomplish.  If the regulated see the regulation as arbitrary, unnecessary, or counterproductive, they lose respect for the agency and the regulators, and they view the agencies goals as illegitimate and unimportant.  Once this mindset takes over, then it becomes easier for the regulated to rationalize non-compliance as actually being the morally superior course of action.

To a certain extent, the second pillar, public enforcement, can be used to prop up the regulatory scheme even in the face of wavering compliance.  The agency can use fear of fines or even jail time as a deterrent, but the occasional high profile prosecution can still leave someone with the lingering thought that “the inspectors can’t be everywhere,” and “what the agency doesn’t know won’t hurt it.”

Neither pillar is currently supporting the FAA in its UAS efforts.  The Pirker appeal has left the public with the impression that the FAA is powerless to punish.  Moreover, frustration mounts daily at the continued delays in the rulemaking process.  As a result, the current ad hoc system of authorization is increasingly viewed by operators as arbitrary, burdensome, and unnecessary.

There may be, however, some relief in sight.  Jim Williams, the head of the FAA’s unmanned aircraft office, said yesterday at the AUVSI conference that the agency may finally begin using its authority under Section 333 of the 2012 FAA Act to grant wider approval for certain industries, such as film makers, agriculture, and utilities. While this is a welcome development, it is unlikely to stop the bleeding for long, and the FAA may find more and more people willing to publicly tell it to “piss off.”

One of the most important goals of the Federal Aviation Regulations is to create a system of accountability.  Virtually every task or operation touching on flight has a person who is designated as being officially responsible for ensuring that it is performed correctly.  The regulations designate the pilot in command as the final authority for the operation of the aircraft.  14 C.F.R. § 91.3.  For any maintenance operation, there is a person who must officially “sign-off” and certify that the repair was performed “satisfactorily.”  14 C.F.R. § 43.9.  In fact, virtually all operations must be overseen by a person designated by the company to be the “accountable manager.”  See e.g. 14 C.F.R. § 145.151.  While these regulations make clear that the person at the top of the decision chain is always responsible if something is done improperly, it leaves open the question of how far back down the chain does responsibility, and the FAA’s ability to punish, flow.

The FAA Chief Counsel’s Office was asked to provide an opinion on whether responsibility for improperly performed maintenance falls solely on the approving mechanic, or whether others can also be held responsible.  The FAA noted that the approving mechanic’s primary role is supervisory and is related to record keeping requirements.  These requirements do not affect the completely separate obligations that apply to any person who performs maintenance and alteration work.  Those individuals are required to use only methods, techniques, and practices approved by the manufacturer or the Administrator.  See 14 C.F.R. § 43.13.  As a result, “each person (not only those who approve the work) is responsible for the proper performance of maintenance.”

This opinion letter highlights a problem that can impact any organization.  Management cannot allow a culture to develop where persons who are performing the work come to believe that total compliance with requirements is not their responsibility because someone else will catch any mistakes they might make.  It is only through the full functioning of these interlocking responsibilities for performance, supervision, and recordkeeping that an organization can be sure that a mistake won’t slip through the cracks.

This mandates every aviation organization to check its procedures and policies to insure that everyone up and down the chain, appreciates the fact that their credibility and, maybe, their future, is on the line.

As I spoke these words, the officer was busy writing on his clipboard.  What seemed like an hour later, but was only a few minutes, he handed me a stack of paper.  “Sir, I’m issuing you 62 tickets, one for each day that your car was overdue.  I would get the inspection done right away.  Have a good day, sir.”

Not very likely?  Probably not in this way.  However, it does happen every day to aviation companies all over the country and makes about as much sense as it would in our 62 ticket scenario.

Let’s start with one given.  The Federal  Aviation Administration , albeit not a perfect regulator, is, in my experience, one of the best, if not the best, aviation regulator in the world.  This doesn’t mean they’re always right and, again in my experience, they’ll admit they’re not perfect.  The objective evidence however is that the working relationships between the US aviation industry and the FAA has created the safest aviation industry in the world.  Granted, there’s a certain amount of patriotism present in such a statement, but, I think most objective observers would agree.  The US aviation system, in virtually all respects, is the model for the rest of the world.

One of the FAA’s roles is as an enforcer of regulations, i.e., the policeman.  In doing so, the FAA, as in many areas, has enforcement guidelines.  Those guidelines are published in their Enforcement Handbook, FAA Order 2150.3B.

Under FAA enforcement guidelines, there is something generally described as a “multiplier,” i.e. each flight during which a violation exists is considered a separate offense.  The way this works is relatively simple.  If a company has a violation, whatever it is, in calculating the monetary penalty, the FAA takes the amount of the fine for the violation, assume that it’s $8,000.00, and multiplies it by the number of flights undertaken until the aircraft was grounded or the offending condition fixed. So, using our traffic stop scenario, assume there was some mechanical or other violations present on the aircraft for 62 days and, during those 62 days, the aircraft made 100 flights.  In imposing its civil penalty, the FAA multiplies the $8,00.00 by 100 and imposes a penalty of $800,000.

Granted, the Enforcement Handbook provides for recommended ceilings, as well as the exercise of some discretion and civil penalties can frequently be settled for a lesser amount than that proposed.  However, the FAA’s starting point for consideration and possibly negotiations will be $800,000.00.  Maybe some offending conditions on aircraft justify whopping penalties, but many do not.  It doesn’t matter however,  the multiplier works essentially the same way and the offender is left with trusting the discretion and reasonableness of the FAA to negotiate a lower penalty.

Sure, the company can always contest the penalty, but to do so, whether in administrative or judicial processes is expensive because, as everyone readily acknowledges, lawyers are expensive.

Don’t get me wrong, in aviation, like every industry, there are bad companies who, quite likely, deliberately don’t do things or delay their accomplishment, to save money.  But the reality is that such companies are, overwhelmingly, a tiny slice of the extraordinarily safe and responsible industry.  While the discretion of the FAA in enforcing civil penalties is usually wisely applied, there are instances where the regulator’s heavy hand comes down on a responsible company which made a mistake, not because they didn’t have appropriate systems or people in place, but rather because mistakes occur, notwithstanding the best systems and best personnel.

In today’s extraordinarily safe aviation industry, the FAA ought to re-visit the multiplier guidelines, reserving its use for the offenders who deserve it, not the responsible company which makes a mistake.

On April 8, the FAA recommended a fine of $77,000 against Unilever Bestfoods, Inc. for improperly shipping . . . hairspray.  Unfortunately, just because a product is one that people come in contact to every day does not mean it can be safely put on an aircraft.  Hairspary contains ethanol under pressure, and is both flammable and potentially explosive.  The package in question was improperly marked, classed, described, packaged and labeled.

This was yet another example where the fine was particularly high because the FAA found that the shipper was not providing adequate training to its employees in identifying and handling hazardous materials.  Until shippers rigorously adhere to best practices in these areas, we will continue to see more cases such as this working their way through the system.

Every Part 145 repair station is required to designate an Accountable Manager, who, as defined in the FARs, “is responsible for and has the authority over all repair station operations…” But what does it really mean to be “responsible for” and “have authority over” repair station operations? Does it mean you can be criminally liable for repair station operations? Does it mean you can be held criminally responsible for acts you didn’t participate in and were not even aware of? Sound farfetched?  It’s not.  It’s happening now, and ongoing criminal indictments and prosecution should be a wake-up call to every Accountable Manager.

A bit of background…The Responsible Corporate Officer Doctrine, or (“RCO doctrine”), is a legal theory that permits corporate officers in a position of responsibility to be held personally responsible for certain corporate violations, without requiring proof of intent.  More bluntly… it’s a tool used by prosecutors to convict management personnel for criminal acts they may have had nothing to do with…but by virtue of their job title, should have been in a position to prevent.

Imagine a situation where one of your managers tells you in passing that some piece of tooling or equipment in your MRO or maintenance department isn’t working.  This manager is qualified and has authority to stop all repair station operations should a quality control issue arise.  You’re not even sure what that piece of equipment is, or what it does, but you trust, rely on, and delegate important functions to this manager.  You tell this manager to do what needs to be done to keep production moving (or something to that effect).

A year or so later, FBI agents with search warrants decide to visit your repair station.  They’re there to investigate an ongoing criminal conspiracy to commit fraud involving aircraft parts.  This eventually leads to an indictment of several senior managers at the repair station…and you’re one of them.

At trial, you’re accused of conspiring with other managers to defraud the FAA and repair station customers by falsifying maintenance record entries.  As the Accountable Manager, you were  never involved with the actual repair process and never made any maintenance entries.  You never told anyone to falsify anything and no one ever told you that records were being falsified. But, thanks, in part, to the RCO doctrine, this might not matter.

You see…you’re the Accountable Manager.  As the Accountable Manager, you’re “responsible for” and “have authority over” repair station operations.  And regardless of whether you had any involvement or knowledge of it…those operations involved some of your not-so-bright managers falsifying maintenance records.

Remember that piece of equipment one of your managers mentioned in passing last year? As it turns out, that equipment was needed to perform  required testing to return a part to service.  However the equipment wasn’t fixed and shop techs just indicated in maintenance records that the test was done anyway.

Over and over at trial, the prosecutor reminds the jury that the Accountable Manager is ultimately responsible for what happens at the repair station.  No one contests the fact that you didn’t actually falsify anything and no one ever accuses you of telling others to do so.  What they do say is that you were in a position authority and that you had to have known what was going on.  And that despite knowing this, you didn’t stop it or fix the problem.

The prosecutor then argues to the jury that your failure to stop the problem suggests you condoned the activity and entered into an agreement with your managers to falsify those records.   

In other words, its evidence you conspired with them to commit fraud.

Technically speaking…the RCO doctrine shouldn’t apply to this situation since it has been limited to statutes which do not require proof that a person acted intentionally, something which conspiracy, fraud, and intentional falsification statutes do require.

However, jurors don’t care much for technicalities, and, as a practical matter, whether the RCO doctrine technically applies really doesn’t matter.  That’s because the same exact principles underlying the RCO doctrine, which are: (1) being in a  position of authority with respect to a violation effecting public safety, and; (2) failing to stop the violation, can be used as evidence at trial to infer that the you knew about a violation, and that you encouraged/participated in the violation.

The fact that you’re an Accountable Manager who  is statutorily defined as being the individual with overall responsibility and authority for repair station operations makes the inference that much easier to make.  Combine that with a jury that knows little to nothing about the aviation maintenance and repair industry, and you have a situation that should worry every Accountable Manager.

Several developments this month have highlighted the FAA’s continued crackdown on shippers of unmarked and undeclared hazardous material.

On April 1, the FAA proposed a $325,000 civil penalty against Alfa Chemical for allegedly shipping Arcolin on two separate occasions.  Acrolin is a contact herbicide that is highly poisonous and extremely flammable.  FedEx and FAA personnel first became aware of the shipment when it began giving off a strong odor. http://www.faa.gov/news/press_releases/news_story.cfm?newsId=16054

In addition, Amazon.Com Inc. recently paid a $91,000 civil penalty for allegedly shipping a package that contained a flammable liquid adhesive.  The package developed a leak in transit and was discovered by a FedEx employee.  In both incidents, the FAA claimed that the employees involved in packaging and shipping the products were inadequately trained and were unfamiliar with the restrictions on shipping these materials by air. http://www.faa.gov/news/press_releases/news_story.cfm?newsId=16074&omniRss=press_releasesAoc&cid=102_P_R

Noteworthy is the fact that neither company on the receiving end of the penalty is in the business of aviation so if you ship products, take heed!

It is essential that companies have a well-crafted system of supervision and training that ensures everyone can identify the items in the company’s inventory that cannot be shipped by air.

All shippers, as well as airlines, both cargo and passenger, should go back and verify that they have in place and are following best practices in how they package, as well as how they accept, items for carriage on an aircraft.

Even if there’s no accident, the cost of failing to be compliant can be very high.