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article’s “regulatory life.”
When an article is designed, it must meet the applicable airworthiness standards
(including the ICA requirements) contained in Parts 23, 25, 27, 29, 31, 33 and 35
of the FAR. Each article must be produced in conformity with its approved
design and be in condition for safe operation when it leaves the control of the
design or production approval holder (PAH).
Similarly, aircraft must be operated in an airworthy manner. The regulations,
guidance material and enforcement cases make it abundantly clear that this can
only be achieved when the maintenance, preventive maintenance and alterations
are performed in an airworthy manner.
The “airworthiness” requirement is derived from 49 U.S.C. section 44704(d) of
the Federal Aviation Act, 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.
2 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 component part.
3 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.”
5
Airworthiness has been further explained by case law. 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 Federal
Aviation Act of 1958, as amended, 49 USC App. 1423 (c)) (IOP 10). Moreover,
as the 10th Circuit Court of Appeals made clear in Morton v. Dow, 525 F.2d 1302,
1307 (10th Cir. 1975) “[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.” (emphasis added.)
The FAA has established the ICAs 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. ICAs are required to be prepared during
certification, revised as necessary to reflect operating experience and, most
importantly, made available to owner/operators and maintenance providers. The
ICAs provide basic safety information that allows maintenance and alteration to
be performed in accordance with instructions developed by those in the best
position to provide them—the manufacturers of civil aviation articles.
Advisory Circular 33.4-14 confirms the importance of ICAs and recognizes that
airworthiness is the link that keeps the safety chain together: “A new aircraft
engine with an airworthiness approval tag…is viewed as airworthy,
and…adherence to the ICA’s will play a key role in keeping that engine airworthy
through its operational life, or in a state of ‘continued airworthiness’.” This
principle applies equally to all civil aircraft, propellers, appliances and
components.
Notwithstanding the clear language of section 21.50(b), the FAA has been slow
in enforcing the design approval holder’s obligation to make ICAs available to
maintenance providers. On the other hand, the agency has vigilantly enforced
the requirement that maintenance be performed in accordance with the ICAs. In
ARSA’s view, this “double standard” of enforcement exists because the FAA’s
two primary safety oversight organizations, the Aircraft Certification Service
(design and production) and the Flight Standards Service (operations and
maintenance), have not developed a standard and uniform FAA policy. This is
particularly unfortunate at a time when the agency has encouraged certificate
holders to use a coordinated systems approach, complete with risk analysis, in
managing their daily operations. Indeed, systems safety concepts are grounded
in the fundamental belief that accidents and other safety lapses can be
minimized by identifying and addressing “precursors” before they become fullblown
safety problems.
4 Advisory Circular 33.4-1 contains guidance for preparing ICA for aircraft engines.
6
B. Airbus Must Furnish Aerotron and TPS with ICAs
Since 1941, the federal government has required that manufacturers of civil aviation
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