NTSB BAR ASSOCIATION

By Steven P. Winter

What makes a part "certified" or certifiable" for use in an Aircraft or Aircraft Product?  Neither Federal law, the FAR's nor FAA advisory materials specifically define these terms. However, these authorities, taken in their totality, impose a three-pronged test:

1. Design and Manufacture;
2. Traceability; and
3. Handling/Storage/Maintenance.

All three requirements must be fully satisfied in order for a part to be certified or certifiable.  A part which may have been properly manufactured in accordance with FAA-approved data, which for some reason may have lost its traceability or which may have been improperly handled, stored or maintained may not be suitable for installation aircraft.

A. Pertinent Laws and Regulations Concerning Certifiability:

Pursuant to 49 U.S.C., §§447OI ff. the FAA has prescribed minimum standards for the design, manufacture, performance, inspection, servicing and overhaul of aircraft and their components.

FAR Section 43.13(b) (14 C.F.R. §43.13) provides:

(b) Each person maintaining or altering or performing preventive maintenance, shall do that work in such a manner and use material of such a quality, that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness. (emphasis added)

FAR Part 21 (14 C.F.R. Part 21) imposes requirements for the issuance of type certificates, production certificates, airworthiness certificates and the approval of certain materials, part& processes and appliances. Under FAR §21.303, in order for a part to be produced for sale for installation on a type certificated product, it must be produced pursuant to a Parts Manufacturer Approval ("PMA") under a type or production certificate, or under an FAA Technical Standard Order ("TSO"), unless the parts qualify as "standard parts" (such as nuts and bolts conforming to established industry or U.S. specifications). The only exception to these requirements are for parts produced by an owner or operator for maintaining or altering its own product.

FAR Part 145 (114 C.F.R. Part 145) imposes requirements for the issuance of repair station certificates and associated ratings and prescribes general operating rules for facilities engaged in the maintenance and alteration of aircraft, parts, components and appliances. Section 145.57 specifically incorporates the performance standards set forth in FAR Part 43.

Section 145.45 requires that repair stations have inspection/quality control systems, including, among other things:

(b) ... inspection personnel must be thoroughly familiar with all inspection methods, techniques, and equipment used in their specialty to determine the quality or airworthiness of an article being maintained or altered. In addition, they must -

(2) Have available and understand current specifications involving inspection tolerances, limitations, and procedures established by the manufacturer of the product being inspected and with other forms of inspection information such as FAA airworthiness directives and bulletins....

(c) ... a satisfactory method of inspecting incoming material to insure that, before it Is priced in stock for use in an aircraft or part thereof, it is in a good state of preservation and Is free from apparent defects or malfunctions.

(d) ... a system of preliminary 'inspection of all articles he (sic) maintains to determine the state of preservation or defects....

(e) ... a system so that before working on any airframe, powerplant, or part thereof that has been involve4 in an accident, it will be inspected thoroughly for hidden damage, including the areas next to the obviously damaged parts....

(f) ... a manual concurring inspection procedures, and thereafter maintain it in current condition at all times. The manual must explain the internal inspection system of the repair station in a manner easily understood by any employee of the station. It must state in detail the inspection requirements in paragraphs (a) to (e) of this section, and the repair station's inspection system including the continuity of inspection responsibility samples of inspection forms, and the method of executing them. The manual must refer whenever necessary to the manufacturer's inspection standards for the maintenance of the particular article. The repair station must give a copy of the manual to each of its supervisory and inspection personnel and make it available to its other personnel. The repair station is responsible for seeing that all supervisory and inspection personnel thoroughly understand the manual.

B.  Requirements Imposed by Company Procedures and Manuals:

The regulation. requirements set forth may be incorporated into (and even) expanded in an air carrier's or repair station's manuals. Under pertinent FAR's air carriers and repair stations are required to fully comply with the provisions and procedures contained in their manuals and any failure to do so would subject the carrier and repair station and its personnel to enforcement action and substantial penalties.

C.  Responsibility of Installers:

As stated earlier, FAR §43.13(b) requires that each person maintaining or altering, or performing preventive maintenance, shall do that work in such a manner and use materials of, such a quality that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness).

"Maintaining or altering or performing preventive maintenance includes the installation of parts. It is incumbent on the installer to determine that a part is acceptable for installation. Failure to make this determination, or the installation of a part which has been determined to be unacceptable for installation would constitute a violation of pertinent FAR's.

D. Civil and Criminal Penalties:

The FAR's impose strict liability for regulatory noncompliance. Intent to violate or the willfulness of any, violation are immaterial.  Likewise, there need not be an accident or incident to give rise to either an FAA investigation or a subsequent enforcement action. The FAA routinely performs inspections. Included in the FAA's inspection protocols are requirements that the FAA evaluate quality control/quality assurance systems and that a repair station demonstrate and substantiate approvals of the parts in its inventory and which it utilizes in the maintenance of aircraft and other certificated products.

Violation of pertinent FAR's can result in the suspension or revocation of applicable FAA certificates (49 U.S.C. §44709) and the imposition of substantial civil penalties (49 U.S.C. §46301). In its enforcement of FAR provisions, the FAA can, and usually does, proceed against all persons responsible for the alleged violation. Accordingly, the air carriers, repair stations, as well certain of its key personnel and its mechanics, repairmen and maintenance personnel may be held concurrently responsible.

Although FAR infractions are normally civil in nature, criminal penalties can attach. 49 U.S.C. §46316 authorizes criminal prosecution and penalties for the knowing and willful violation of any regulation or order prescribed with respect to the FAA's safety duties and powers or any term of a certificate issued thereunder. The federal false statements statute, 18 U.S.C. Sec. 1001, may apply:

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willingly falsifies, conceals or covers up by any trick, scheme, or device of a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

To prove a violation of this statute, the government must establish that a party knowingly and willfuly made a false statement regarding a material fact that is within the jurisdiction of a federal agency. However, the government need not prove that a party made the statement with actual knowledge of the federal agency jurisdiction, or that the statements were even conveyed to the federal agency. Statements and certifications on repair station work orders, maintenance tags and certificates of conformance furnished to air carriers and government contractors, even without an expectation of examination by a federal agency, have been held to constitute statements of material facts.

Moreover, even if the government cannot prove that a party knowingly and willfully made false statements, it does not preclude the government from commencing an investigation and prosecution. In one recent case Instituted by the U. S. Attorney in San Francisco, the government commenced investigation and prosecution even where it was doubtful that the party had knowlingly and willfully made a false statement, and where the party had relied upon certifications from its vendors and suppliers. In that case, the government took the position that the party should have known better than to have "blindly" relied upon these certifications (which subsequently, turned out to be false).  As you can imagine, the mere initiation of an investigation can cause an on-going business concern irreparable damage.

Over the past eight years, there have been no less than 56 federal criminal prosecutions against air carriers, maintenance facilities, parts manufacturers and distributor and their company officials. The vast majority of these prosecutions have resulted in convictions, either after trial or upon guilty pleas, or companies and company officers and employees. Sanctions have ranged up to $3 Million in fines, Court-ordered payments of restitution up to $1.2 Million, imprisonment for up to five years, and debarment from engaging in the aviation business for up to five years.

Aside from governmental enforcement action and any penalties resulting therefrom, the air carrier or repair station has certain potential civil liabilities and certain contractual obligations and liabilities under its maintenance services agreements. Moreover, in the event of an accident or incident involving any customer aircraft, or any other aircraft or product upon which a repair station may have provided services, it faces potential liability to third parties for wrongful death, bodily injury or property loss or damage. An air carrier or repair station's noncompliance with applicable law, FAR's, AC's or its IPM and internal policies and procedures may be found to constitute culpable conduct. Freeman v. United States, 509 F.2d 626 (10th Cir. 1975), Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir. 1987).

Aside from good business practices or risk management concerns, the FAA mandates that parts for which approval cannot be established be segregated, evaluated and re- moved. Parts for which approval cannot be established should be disposed of to prevent their installation or reentry into aviation inventories. Uti1ization of parts by air carriers or repair stations for which approval cannot be substantiated could have adverse safety implications, will be in violation of pertinent federal laws and regulations and will subject air carriers or repair stations, its officers and employees to serious and even severe legal consequences.

Mr. Winter is a legal assistant with Michael L. Dworkin and Associates located in the San Francisco Bay Area