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maintenance and alterations in an airworthy manner.
The “airworthiness” requirement stems from 49 U.S.C. § 44704(d), which states,
“[t]he Administrator shall issue an airworthiness certificate when the
Administrator finds that the aircraft conforms to its type certificate and, after
inspection, is in condition for safe operation.”
Case law has further clarified the standard for determining airworthiness. The
Administrator has consistently held that an “aircraft is airworthy when: 1) it
conforms to its type design or supplemental type design and to any applicable
airworthiness directives, and 2) is in a condition for safe operation.” In the Matter
of Watts Agricultural Aviation, FAA Order No. 91-8, at 17 (April 11, 1988, citing
3 49 U.S.C. § 44701 et seq.
4 The term “article” when used in this Complaint shall have the same meaning as in the new
section 145.3 (66 FR 41088, August 6, 2001). It includes aircraft, airframe, aircraft engine,
propeller, appliance or accessory part.
5 The term “person” is defined in part 1 to mean “an individual, firm, partnership, corporation,
company, association, joint-stock association, or governmental entity. It includes a trustee,
receiver, assignee, or similar representative of any of them.”
12
the Federal Aviation Act of 1958, as amended, 49 USC App. 1423 (c)) (IOP 12).
Moreover, as the 10th Circuit Court of Appeals made clear in Morton v. Dow,
“[a]irworthiness is not synonymous with flyability. An aircraft that does not
conform to its type certificate is unairworthy, even if it may be in condition for safe
operation.” 525 F.2d 1302, 1307 (10th Cir. 1975) (emphasis added).
The FAA has established the ICA as a critical link in the airworthiness chain
between the design and production rules, on the one hand, and the operating
and maintenance rules on the other. As discussed above, the FAA requires an
applicant to prepare ICA during certification, and upon certification, revise them
as necessary to reflect operating experience. Most importantly, design approval
holders must make the ICA available to owner/operators and maintenance
providers. The ICA provide basic safety information that allows owner/operators
or the person performing maintenance on their behalf to maintain and alter the
article in accordance with instructions developed by those in the best position to
provide them—the manufacturers of civil aviation articles.
2. Accessory Maintenance Instructions
Part 25, appendix H, paragraph H25.3(b) provides that the ICA for a type
certificated aircraft must contain ”Maintenance Instructions” for each part of the
aircraft, including accessories. Further, the TC applicant may refer to an
accessory, instrument or equipment manufacturer, like Parker Hannifin, as the
source of the maintenance instructions. Parker Hannifin, by its failure to
provide the ICAs to Sonico in spite of numerous requests, has
constructively refused to provide the maintenance information for the
Sensor installed in the Airbus A340-541 or A340-642 aircraft.
Because Parker Hannifin has failed to provide the required maintenance
instructions, it has failed to make complete ICA available. As discussed above,
these manuals and information are essential to the continued airworthiness of the
Sensor.
E. The Parker Hannifin ICA are Essential to Continued Airworthiness
In refusing to provide Sonico with ICA for its Sensor, Parker Hannifin contradicts
the FAA’s policy, as illustrated by a series of enforcement actions that have held
operators and repair stations accountable for not following the airworthiness
requirements found in the ICA and for failing to perform airworthy repairs.
1. Failure to Follow the Applicable Maintenance Manual
FAA and NTSB enforcement decisions establish that air carriers and
maintenance providers violate § 43.13(a) when they fail to perform maintenance
in accordance with the ICA. As the agency is aware, most enforcement cases
settle without an administrative hearing and therefore there is no reported
13
decision. Nevertheless, such cases are a matter of public record and
Complainant requests the FAA to take administrative notice of their existence.
Through these actions, the FAA and NTSB have clearly established that proper
maintenance and alterations are so essential to continued airworthiness that
those who fail to comply with their regulatory obligations face enforcement action.
Complainant believes that the reported enforcement cases discussed below are
representative of the general enforcement cases on this topic.
In Administrator v. Aero Lectrics, Inc., 6 NTSB 1085, 1088 (1989) (IOP 13), the
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