MY CERTIFICATE OR YOURS?
The common understanding in the U.S. aviation maintenance industry is that a mechanic faces penalties as an individual for work he or she performed while directly employed by a certificated entity, such as a repair station or air carrier. After all, there is plenty of precedential history showing that to be the case. A typical scenario involves the FAA’s investigation of some event, an alleged finding related to work that was performed, identification of the person who signed for the work, and issuance of a proposed penalty — usually a notice of proposed certificate action — that would suspend the privileges of the individual’s FAA mechanic’s certificate.
Although similar situations have played out many times, it does not appear anyone has ever raised the affirmative defense of not having exercised the privileges of their FAA mechanic’s certificate in the related matter. That is, asserting that the work was performed under the repair station or air carrier certificate, not the individual’s mechanic certificate. I find that surprising.
The reason for not raising the defense may stem from intermixing regulatory and company requirements for persons authorized to “sign off” work. Quite simply, focus may have shifted away from what the regulations actually require. For instance, many of the “traditional” company requirements (e.g., that certain line mechanics hold a Federal Communications Commission (FCC) General Radiotelephone license in addition to an FAA mechanic’s certificate with A&P ratings) have no regulatory basis. Further, where the air carrier or repair station regulations require that only certificated individuals can be authorized to sign an airworthiness release/approve an article for return to service (see §§ 121.709(b)(3) and 145.157(a)), the certificate is only a prerequisite for the authorization; it does not mean the individual performing in that role is exercising the privileges of their mechanic certificate.
It does not take any special effort to reach that conclusion. The simplest route is found in the rule of general applicability defining persons who can perform maintenance (§ 43.3), including: 1) the holder of a mechanic certificate (§ 43.3(b)); 2) the holder of a repair station certificate (§ 43.3(e); and 3) the holder of an air carrier operating certificate or an operating certificate issued under Parts 121/135 (§ 43.3(f)). The general rule regarding persons authorized to approve for return to service (§ 43.7) contains similar distinctions (see § 43.7(b) for a mechanic, § 43.7(c) for a repair station, and § 43.7(e) for an air carrier). In other words, it is clearly the repair station or air carrier who is performing and approving the work in the scenario we described.
As such, an investigation or proposed action against an individual mechanic’s certificate could be met with an affirmative defense if it relates to work performed as an employee of an air carrier or repair station. In that case, the investigation or proposed action should be directed at the air carrier or repair station, not the individual mechanic. Of course, this idea may not be popular at first, but it is consistent with existing rules. Mechanics should avail themselves of all options when faced with potential certificate actions.
Craig L. Fabian is a senior associate for Obadal, Filler, MacLeod, & Klein, where he represents aviation clients on a variety of issues. Fabian has served as Director of Technical Operations for the Air Transport Association (ATA). He was previously an attorney in the aerospace practice of another Washington, D.C., law firm. Before practicing law, Fabian spent nearly 15 years in the aviation maintenance industry; first as an aircraft mechanic and avionics technician for Northwest Airlines, then as a maintenance control supervisor for U.S. Airways.