Your Certificate May Be On the Line for What You Don’t Record by John Goglia

Listen up, my fellow mechanics. How

you record maintenance work just got a

new focus, thanks to a

recent NTSB decision that presents a

potential new enforcement danger to

your certificate.

A May 11, 2018 decision by

the NTSB reinstating the FAA’s

emergency revocation of a Part 145

repair station puts a new emphasis on

maintenance record entries; specifically,

what maintenance personnel choose

to leave out of their descriptions of work

performed could land them in very hot

water. This decision doesn’t affect only

repair stations or corporate maintenance providers. It’s clearly applicable to A&Ps,

as well. The decision makes clear that intentional falsification can rest on

information left out of the description of work performed, so-called shortcuts that

many mechanics routinely take in recording maintenance. The case is so recent that

it may yet be appealed to a federal court, so the final ruling could change. But in the

meantime, the decision stands.

The AeroBearings case—officially, Daniel K. Elwell Acting Administrator, Federal

Aviation Administration v. Kornitsky Group, LLC, d/b/a AeroBearings, LLC—involves

the FAA’s emergency revocation of the company’s Part 145 repair station certificate

for—among other things—falsification of records. I have a lot of issues with the case

that was brought by the FAA and how it fits into the new “compliance philosophy.” It

seems that the company was authorized by one set of inspectors to do what it was

doing for five years.

A new inspector—after receiving two hotline complaints—reviewed the company’s

authorizations and determined the FAA had been mistaken in granted one of these

authorizations.

The FAA reinspected the facility and, after 10 months, issued its report and handed

the company an emergency revocation on the same day. Something seems unfair

about all this and not consistent with the new compliance philosophy. Maybe more

went on than is apparent from the initial and final decisions in the case. But it’s

always disconcerting when the FAA claims a company is unqualified to do work, but

lets it operate for such a long time, and then apparently does nothing to correct the

work that was performed for years.

OMITTED INFORMATION

According to the NTSB’s decision related to the issue of falsification (there were

other regulatory violations cited that were related to the company’s authority to

perform the work), the case turned on omissions made in FAAForm 8130-3s

(Authorized Release Certificates). According to the FAA inspector who testified at

the hearing, the “OEM manuals for the bearings in question did not authorize

[AeroBearings] to disassemble bearings. He also testified that “[the company’s]

8130-3 certifications were false in that they did not fully describe the work that had

been performed.” On cross-examination, the inspector admitted that the entries on

the 8130-3 were not false, but that they were “incomplete in that they omitted some

information.”

The company’s witness testified that the final inspection certification was accurate

and that work performed before the inspection—though not recorded—was

authorized. The administrative law judge determined that the FAA had not met its

burden of proving intentional falsification and reversed the sanction of

revocation. (The ALJdid, however, find other violations and ordered an indefinite

suspension of AeroBearings certificate.) On appeal, the full Board reversed the law

judge and re-instituted the emergency revocation.

On the issue of falsification, the NTSB first reviewed its long-standing standard for

determining intentional falsification: “The [FAA] must prove the respondent (1) made

a false representation, (2) in reference to a material fact, and (3) had knowledge of

its falsity.”

The NTSB has previously determined that omissions can constitute the first prong of

this test (false representation) and that certain omissions can be determined to be

“material”; that is, if they could “affect decisions inspectors, mechanics, or operators

make concerning work on the aircraft.”

INTENT TO FALSIFY

Previously, however, the Board has required the credibility of the maintenance

personnel making the entry to be determined before concluding that the third prong

of the test was met: that the person had knowledge of the falsity. This case makes

new law in that regard. After dismissing the administrative law judge’s credibility

determinations, saying they were arbitrary and capricious (in all my years on the

Board, I can’t recall a case where a law judge’s credibility determinations were found

to be arbitrary and capricious), the decision states: “This case provides the Board

with an opportunity to expressly expand the Board’s 'willful disregard' standard…to

mechanic intentional falsification cases.” This means that a mechanic can be found

to have intentionally falsified a maintenance logbook entry because of omissions he

had intentionally made—even if there was no proven intent to falsify.

In that regard, the decision states: “When a repair shop does maintenance work…it

must be scrupulously accurate in its records. This [repair station], by admittingly

picking and choosing what to include in its records and leaving it up to the FAA and

end user to guess as to whether the records contained the full and

complete record of maintenance done on the aircraft, exhibited a willful disregard

for the FARs, which were established to promote aviation safety.”

What is most concerning is this statement from the decision: “No evidence suggests

that the [repair station] was required to omit information. Whether the [repair

station’s] motivation was simply a desire to save time or part of a larger scheme to

intentionally misinform is irrelevant. Knowledge, not motivation, is the question

before this Board.”

I’ll give you a moment to reread those last two paragraphs. Yes, the Board is saying

that mechanics can lose their licenses if they fail to enter work they did, even if there

was no intent to falsify. Say, for example, you’re troubleshooting a flight control that

is stiff or binding. You check the flight controls but can’t feel anything so you start

disconnecting them one at a time. On the left side, you disconnect them and put

them back together, finding no problem.

You turn to the right side and you find a bad bearing. In the sign-off, you write that

you replaced the bearing on the right control rod. You do not mention disassembling

the left side in your troubleshooting. I don’t know a mechanic who hasn’t signed off a

maintenance action like this. I know I have. I certainly had no intent to falsify by my

omission.

And, yes, accurate maintenance records are critical. And the best policy would be to

write up all the maintenance actions. But should this be grounds for a charge of

falsification of records—a charge that would result in an emergency revocation—

without giving you, the mechanic, a chance to prove that the omissions were not

done with the intent to falsify?

This is a very disturbing decision and one that could have tremendous ramifications

for mechanics and maintenance personnel throughout the industry, at repair

stations, airlines, and any maintenance facility. I agree with the dissenting opinion of

the NTSB chairman, Robert Sumwalt, who wrote: “The majority would apparently

find that any failure to be 'scrupulously accurate' in a mechanic’s logbook would

foreclose the ability of a [mechanic] to subsequently argue that he or she did not

knowingly make a false entry.” He further wrote, “I do not share the majority’s

enthusiasm for such expansion of this jurisprudence.”

Until this case is overturned, mechanics remain vulnerable to having their

certificates yanked without a fair opportunity to defend themselves.

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