In a recent decision, the NTSB ruled that a mechanic who does not operate an aircraft he or she inspected cannot violate FAR 91.207 (no U.S. civil aircraft may be operated without an emergency locator transmitter (“ELT”)). In Administrator v. Hayes the FAA alleged that the mechanic violated FARs 43.12(a)(1) (prohibition against making a fraudulent/false logbook entry), 43.13(a) and (b) (standard for performing maintenance), and 43.15(a)(1) (standard for performing inspections), when he performed an annual inspection of a Beech 35 aircraft and made a logbook entry indicating that he had removed and replaced the battery from the aircraft’s ELT, and when he returned the aircraft to service with an expired ELT battery.
The FAA issued an emergency order revoking the mechanic’s mechanic certificate with airframe and powerplant ratings, inspection authorization, and commercial pilot certificate. The mechanic appealed the order to the NTSB and, after a hearing, the administrative law judge (“ALJ”) granted the mechanic’s appeal and dismissed the FAA’s order. The FAA then appealed the ALJ’s decision to the full Board.
On appeal, the Board determined that the FAA had failed to prove that the mechanic violated FARs 43.13(a) and (b) and 43.15(a)(1) when he returned the aircraft to service with the expired battery. Since the FAA stipulated that the FARs do not state that an aircraft is unairworthy if it does not have a functioning ELT, the mechanic’s return of the aircraft to service with an expired batter did not render the aircraft unairworthy. Although the FAA argued that an expired ELT battery would render an aircraft unairworthy, the FAA couldn’t dispute that FAR 91.207 is an operational regulation, meaning that it only applies to actual operation of an aircraft, as opposed to maintenance or repair, and that the mechanic did not operate the aircraft.
The Board also observed that the FAA did not charge the mechanic with a violation of FAR 91.207, but rather was attempting to boot-strap the requirements of FARs 43.13(a) and (b) and 43.15(a)(1) onto the requirements of FAR 91.207(f)(10) (that an aircraft can only be returned to service without a functioning ELT if the mechanic complies with requirements listed at FAR 91.207(f)(10)). However, the Board concluded that the FAA had not established that FAR 91.207 applies to a mechanic. Thus, since the mechanic did not operate the aircraft, the mechanic’s approval of the aircraft for return to service did not constitute a violation of the regulations as alleged by the FAA.
From the FAA’s perspective, I am sure this must appear to be a loophole in the regulations. Otherwise, they wouldn’t have had to try and bootstrap onto FAR 91.207. Apparently “return to service” does not necessarily mean “in an airworthy condition”, at least in the context of an ELT and FAA enforcement. However, as between a mechanic and an aircraft owner, if a mechanic’s logbook entry states that an inspection was completed and the aircraft was found to be in an airworthy condition and if the aircraft would not be airworthy if operated, it is certainly possible the aircraft owner would think the statement was false. But that would be a separate issue from an enforcement action.
