After a hearing in a recent civil penalty case, a administrative law judge (“ALJ”) issued an Order assessing a $22,500 civil penalty against an air tour operator for operating ten passenger carrying flights with duct tape over the fuel filler port of a Bell 206 helicopter. The ALJ determined that the operator violated FARs 91.7(a) (prohibiting operation of an aircraft in an unairworthy condition) and 91.13(a) (prohibiting careless and reckless operation of an aircraft).
During the hearing, the pilot admitted that he placed the duct tape over the fuel filler port after he found the cap missing and was unable to locate the cap or a replacement. The owner of the air tour operator also admitted that he was aware of the duct tape over the fuel filler port. However, the air tour operator and the FAA disagreed about the airworthiness of the helicopter.
Of course the FAA argued that the aircraft was not airworthy because (1) it did not conform to its type certificate which, per Bell engineering drawings, required use of a fuel filler cap; and (2) it was not safe for flight because the duct tape could allow fuel contamination or leaking of fuel that could cause a fire. The air tour operator argued that it had received assurances from “knowledgeable and experienced people in the industry,” including a Bell engineer, that the duct-tape solution did not render the helicopter unairworthy.
The ALJ agreed with the FAA. He concluded that the helicopter failed to conform to its type certificate because it “did not match its essential engineering drawings.” The ALJ also found that “the prospect of fire and the possibility of fuel depletion were too great to be consistent with minimum mandated levels of aircraft safety” and rendered the helicopter unsafe. He went on to observe that operation of the helicopter in the unairworthy condition “endangered life and property to an unacceptable degree” and “[i]ts actions risked fuel contamination and created an intolerable risk of fire” As a result, the ALJ concluded that the air tour operator violated FAR 91.13(a) and he rejected the air tour operator’s argument that the FAR 91.13(a) violation should be treated merely as a residual violation.
Although the FAA was seeking a $25,000 civil penalty, the ALJ found that the air tour operator’s reliance on the opinion from a Bell technician was a mitigating factor. However, since the air tour operator did not produce the Bell technician to testify at the hearing or offer even a written statement from the technician, the ALJ only gave the mitigation argument a little weight since the testimony was pure hearsay. The ALJ concluded that the sanction amount of $22,500 “suitably accounts for the totality of the circumstances of this case” and was otherwise substantial enough to have “sufficient ‘bite,’ or deterrent effect.”
Just goes to show that although duct tape has a million and one uses, using it to “fix” an aircraft may not be the best idea.
