PART 13 FORMAL COMPLAINT

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U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, DC 20591-0004
AERONAUTICAL REPAIR STATION
ASSOCIATION
)
)
)
)
Complainant )
)
vs. ) Docket No.
)
Parker Hannifin Corporation )
)
)
Respondent )
)
PART 13 FORMAL COMPLAINT
COMMUNICATIONS WITH RESPECT TO THIS DOCUMENT SHOULD BE
SENT TO:
Marshall S. Filler
Obadal, Filler, MacLeod & Klein, P.L.C.
117 North Henry Street
Alexandria, VA 22314-2903
T: (703) 299-0784
F: (703) 299-0254
E: msf@potomac-law.com
Dated: February 29, 2008
TABLE OF CONTENTS
I. INTRODUCTION.............................................................................................1
II. FACTS.............................................................................................................2
III. ANALYSIS.......................................................................................................3
A. ICA Regulatory Framework ........................................................................3
1. Section 21.50(b) ..............................................................................3
2. Part 25, Appendix H ........................................................................5
B. Repair Stations Must Comply with the ICA Requirements .........................6
1. Current Part 145..............................................................................6
2. Part 43 Requirement to Use ICA .....................................................7
3. FAA Legal Interpretation: The Whitlow Letter..................................8
C. Parker Hannifin Must Furnish Sonico with ICA...........................................8
1. Parker Hannifin Holds the Design Approval for the Dual
Temperature Sensor Part Number 055-019-001 .............................8
2. Airbus Made its Application for the A340-541 and A340-642 After
January 28, 1981.............................................................................8
3. The Parker Hannifin Sensor is an Accessory that is Part of the
Model A340-541 and A340-642 and Subject to the ICA
Requirements ..................................................................................9
4. FAA Legal Interpretation: Order 8110.54.........................................9
D. Required Content: Instructions for Continued Airworthiness (ICA)...........10
1. Meaning of Airworthiness ..............................................................11
2. Accessory Maintenance Instructions .............................................12
E. The Parker Hannifin ICA are Essential to Continued Airworthiness .........12
1. Failure to Follow the Applicable Maintenance Manual...................12
2. Operations with Improperly Repaired Appliances..........................14
IV. CONCLUSION ..............................................................................................15
1
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, DC 20591-0004
AERONAUTICAL REPAIR STATION
ASSOCIATION
)
)
)
)
Complainant )
)
vs. ) Docket No.
)
Parker Hannifin Corporation )
)
)
Respondent )
)
PART 13 FORMAL COMPLAINT
I. INTRODUCTION
Pursuant to Title 14 C.F.R. § 13.51, Complainant, the Aeronautical Repair Station
Association (“Complainant”, “ARSA” or “Association”), respectfully submits this
Formal Complaint to the Administrator on behalf of its member, Sonico, Inc.
(Sonico).
Complainant alleges that Parker Hannifin Corporation (Parker Hannifin), a Parts
Manufacturer Approval (PMA) holder under § 21.303, violated § 21.50(b) by
refusing to make Instructions for Continued Airworthiness (ICA) available to
persons required to comply with those instructions when performing maintenance
on articles for which Parker Hannifin holds the design approval.
Complainant requests that the Federal Aviation Administration (FAA) institute an
investigation and issue an order finding that Parker Hannifin is in violation of
§ 21.50(b). The information and Items of Proof (IOP) submitted herein will
enable the FAA to expeditiously conclude an informal investigation as
contemplated by §13.5(i). Should the Administrator believe that additional
information is necessary to make a final determination, ARSA urges the
1 All regulatory citations are to Title 14, Parts 1 through 199 of the Code of Federal Regulations
(CFR) unless otherwise noted.
2
Administrator to issue an order of investigation in accordance with part 13,
subpart F.
ARSA represents the interests of aircraft maintenance and alteration facilities
before the FAA, the National Transportation Safety Board (NTSB), other federal
agencies, and National Aviation Authorities (NAA) around the world. Its
members perform maintenance and alterations on behalf of U.S. and foreign air
carriers, as well as other aircraft owners and operators. In addition, the
Association’s membership includes companies that distribute parts to
international civil aviation businesses, as well as air carriers and manufacturers.
Through its publications, training activities and annual repair symposium, ARSA
educates the aviation design, production and maintenance industries on
domestic and international regulatory requirements.
Sonico is a part 145 certificated repair station located in the state of Washington.
It holds accessory and limited airframe, landing gear and radio ratings (IOP 1 &
2). Sonico is a member of ARSA, and requested the Association’s assistance in
filing this complaint after Parker Hannifin refused numerous requests for the ICA
that are the subject of this complaint.
Respondent Parker Hannifin is the holder of PMA No. PQ0658NE (IOP 3). The
PMA covers Dual Temperature Sensor (Sensor) part number 055-019-001. This
Complaint focuses on the Sensor installed on the Airbus A340-541 and A340-
642 aircraft. Respondent’s address, as noted on the PMA, is:
II. FACTS
Parker Hannifin holds the PMA for the Sensor part number 055-019-001. Parker
Hannifin applied for the PMA for the Sensor after January 28, 1981 and the
affected product had a type certificate (TC) application date after January 28,
1981. [Part Manufacturer Approval dated 09/02/2005, Airbus Model A340-642 -
approved July 22, 2002, Airbus Model A340-541 - approved January 27, 2003]
(see IOP 3 & 4).
Sonico is an appropriately rated FAA-certificated part 145 repair station (see IOP
1) that performs maintenance on the Parker Hannifin Sensor (see IOP 2).
On May 16, Sonico requested maintenance manuals electronically from Paul
Wehr, Senior Contract Administrator, Parker Hannifin Corporation, for the Dual
Parker Hannifin Corporation
300 Marcus Boulevard
Smithtown NY 11787-9400
United States
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Temperature Sensor (IOP 5). In a letter to letter to Thomas A. Piraino, Jr., Vice
President, General Counsel and Secretary, Parker Hannifin Corporation, on July
3, 2006,Sonico requested maintenance manuals for the Sensors on which
Sonico performs maintenance pursuant to part 43 (see IOP 6). Sonico requested
“information relating to the interface of the part with the airplane, including basic
control and operation information; servicing information, the recommended
periods at which the sensor should be cleaned, inspected, adjusted, tested, and
lubricated, and the degree of inspection, the applicable wear tolerance, and work
recommended at these periods; troubleshooting information; and details for the
application of special inspection techniques.” Pursuant to §§ 21.50(b), 25.1529
and appendix H to part 25, this information is a required aspect of the ICA for the
Parker Hannifin Sensor. To date Sonico has not received a response from
Parker Hannifin despite numerous follow-up inquiries on its original request (see
IOPs 7 & 8).
III. ANALYSIS
A. ICA Regulatory Framework
Since 1941, the federal government has required that manufacturers of civil
aviation products prepare instructions relating to the installation, operation,
servicing and maintenance of those products. The early rules specifically
required that the design approval holder make the manuals available to persons
performing maintenance under the applicable regulations.2 Additionally,
Technical Standard Orders (TSOs) have also required development and
dissemination of maintenance information. Between 1941 and 1980 (when the
current version of § 21.50(b) was adopted), the FAA and its predecessor agency
consistently required the holders of design approvals for aircraft, aircraft engines,
propellers and appliances to prepare instructions for performing maintenance.
In 1980, the FAA adopted the current version of § 21.50(b), which requires all
design approval holders to provide ICA prepared in accordance with the
airworthiness requirements applicable to the affected product. If the affected
product has a TC or supplemental type certificate (STC) for which the application
was made after January 28, 1981, a PMA holder must provide supplemental ICA,
unless the product’s ICA is still valid with the PMA part installed.
Complainant respectfully submits that Parker Hannifin, by not providing this
certificated and appropriately rated repair station with the complete ICA for the
Sensor, has violated § 21.50(b).
1. Section 21.50(b)
2 See Parts 6, 7, 13 and 14 of the Civil Air Regulations (CARs) and corresponding parts of the
recodified FAR.
4
As the design approval holder for the Sensor, Title 14 CFR requires that Parker
Hannifin prepare and submit ICA as part of the PMA application process. It also
requires Parker Hannifin to distribute and maintain those ICA subsequent to
certification. Section 21.50(b) contains the current legal requirement for
establishing and distributing ICA, as follows:
[t]he holder of design approval, including either the type certificate or
supplemental type certificate for an aircraft, aircraft engine, or
propeller for which application was made after January 28, 1981,
shall furnish at least one set of complete Instructions for Continued
Airworthiness, prepared in accordance with Secs. 23.1529, 25.1529,
27.1529, 29.1529, 31.82, 33.4, or 35.4 of this chapter, or as specified
in the applicable airworthiness criteria for special classes of aircraft
defined in Sec. 21.17(b), as applicable, to the owner of each type
aircraft, aircraft engine, or propeller upon its delivery, or upon
issuance of the first standard airworthiness certificate for the affected
aircraft, whichever occurs later, and thereafter make those
instructions available to any other person required by this chapter to
comply with any of the terms of those instructions. In addition,
changes to the Instructions for Continued Airworthiness shall be
made available to any person required by this chapter to comply with
any of those instructions.
This is the primary regulation that requires Parker Hannifin, as a PMA design
approval holder, to prepare ICA for its Sensor, and make them available to any
person required by the regulations to comply with these instructions.
Notwithstanding the clear language of § 21.50(b), the FAA has been slow in
enforcing the design approval holder’s obligation to make ICA available to
maintenance providers. On the other hand, the agency has vigilantly enforced
the requirement that those performing maintenance do so in accordance with the
ICA. 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. System 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 full-blown safety
problems.
In a policy statement issued on July 12, 2005, the FAA discussed the shared
responsibility of Design Approval Holders (DAHs) and operators in achieving
safety objectives. The FAA recognizes that to achieve safety goals in an
increasingly complex industry “we need to facilitate more effective
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communication of safety information between DAHs and operators.” Specifically,
the policy seeks to “build on current regulations (§§ 21.50, 21.99) that require
DAHs to “make available” certain service information that is necessary to
maintain the airworthiness of airplanes” (IOP 9). Clearly, this policy reinforces
the regulatory requirement of DAHs to provide airworthiness information,
including ICA, to operators and those that maintain owner/operator aircraft and
related components.
2. Part 25, Appendix H
Part 25 contains the airworthiness standards for the transport category aircraft
that require installation of the Parker Hannifin Sensor. One of those standards,
§ 25.1529, requires an applicant for an aircraft type certificate to prepare ICA in
accordance with appendix H. The appendix sets guidelines for the content and
details what the design approval holder must include in the ICA.
Appendix H, paragraph H25.1(b) states, “The Instructions for Continued
Airworthiness for each airplane must include the Instructions for Continued
Airworthiness for each engine and propeller (hereinafter designated “products”),
for each appliance required by this chapter, and any required information relating
to the interface of those appliances and products with the airplane.” Further the
ICA must be supplied either by the manufacturer of an appliance or product
installed on an aircraft, or by the manufacturer of the aircraft (see Appendix H,
para. H25.1(b)).
Appendix H, paragraph H25.3(b) also requires that ICA include:
(b) Maintenance Instructions. (1) Scheduling information for each part
of the airplane and its…accessories, instruments, and equipment that
provides the recommended periods at which they should be cleaned,
inspected, adjusted, tested, and lubricated, and the degree of
inspection, the applicable wear tolerances, and work recommended
at these periods. However, the applicant may refer to an
accessory, instrument, or equipment manufacturer as the
source of this information if the applicant shows that the item has
an exceptionally high degree of complexity requiring specialized
maintenance techniques, test equipment, or expertise. The
recommended overhaul periods…must also be included. In addition,
the applicant must include an inspection program that includes the
frequency and extent of the inspections necessary to provide for the
continued airworthiness of the airplane. (emphasis added)
As the appendix outlines, the ICA must contain details for performance of
maintenance, including specific information regarding maintenance techniques,
overhauls and inspections for each part of the aircraft. It further states that an
appliance manufacturer (i.e.: PMA holder) may provide the ICA (instead of the
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TC or STC applicant) when the item has an exceptionally high degree of
complexity. On several occasions, Sonico requested from Parker Hannifin the
detailed maintenance information appendix H explicitly requires (see IOPs 5
through 8). In violation of §§ 21.50(b), 25.1529 and part 25, appendix H, Parker
Hannifin consistently denied these requests by not responding to the Sonico’s
inquiries and numerous follow-up attempts.
B. Repair Stations Must Comply with the ICA Requirements
Sonico is a part 145 certificated repair station rated to perform maintenance,
preventive maintenance and alterations on the Parker Hannifin Sensor. Section
145.109(d)(2) requires Sonico to obtain and keep current the ICA for this
appliance. In addition, § 43.13(a) generally requires that Sonico perform the
maintenance, preventive maintenance or alterations of these items in accordance
with the current ICA.
As used in § 21.50(b), part 145 repair stations qualify as “other persons” required
to comply with the regulations. An FAA legal interpretation regarding ICA
requirements, commonly known as the “Whitlow Letter,” supports this reading of
the regulation (see IOP 10). The letter concluded that FAA certificated repair
stations are “other persons required by [Chapter I of Title 14 CFR] to comply with
any of the terms of the instructions.” The letter correctly observed that although
§ 21.50(b) did not “technically” require the aircraft manufacturer to provide
accessory ICA (because the design approval holder filed its application for the
BAe-146’s type certificate prior to January 28, 1981), such a refusal was
“puzzling, at best, and, at worst, [was] an artificial obstacle to ensuring that
each BAe-146 airplane is maintained in an airworthy condition.” (emphasis
added).
In contrast to the BAe-146, the Parker Hannifin Sensor is installed on the Airbus
Model A340-541 and A340-642 which were type certificated after January 28,
1981, the date specified in § 21.50(b). In addition, Title 14 CFR has required
maintenance manuals for complete aircraft and their accessories since 1970. As
a result, Parker Hannifin’s refusal is not only an artificial barrier to performing
airworthy maintenance, but is also a violation of the plain language of the
pertinent regulations.
1. Current Part 145
Part 145 requires that Sonico possess ICA both at the time of certification and at
the time maintenance is performed (see §§ 145.51(b), 145.109(d)(2), and
145.211(c)). This makes it a “party required to comply with these regulations” as
set forth in § 21.50(b).
Section 145.51(b) provides, in part, “The equipment, personnel, technical data,
and housing and facilities required for the certificate and rating, or for an
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additional rating must be in place for inspection at the time of certification or
rating approval by the FAA” (emphasis added). Section 145.109(d) further
specifies that data “required for the performance of maintenance, preventive
maintenance, or alterations under [a] repair station[‘s] certificate and operations
specifications” includes ICA. In addition, § 145.211(c) requires that a repair
station include in its quality control manual the manufacturer’s inspection
standards and any related data the manufacturer specifies, information which is
most appropriately found in the ICA.
Based on the requirements identified above, part 145’s regulatory scheme
requires a repair station to possess the current ICA appropriate for its rating both
at the time of certification and at the time the repair station performs the work. In
addition, it requires repair stations to integrate the ICA into their manuals and
procedures and ensure repair station personnel follow them when performing
work. In short, the FAA has made the possession of current ICA a condition of
obtaining a repair station certificate.
Thus, to create harmony within the regulations and avoid what the Whitlow Letter
refers to as an “artificial obstacle” to airworthy maintenance, one must recognize
that § 21.50(b) and the related regulations require design approval holders to
make ICA available to repair stations. Parker Hannifin, however, has not
provided this technical information to repair stations such as Sonico.
Section 145.109(d) mandates that documents and data must be current and
accessible when repair station personnel perform the relevant work. This
includes Instructions for Continued Airworthiness, Maintenance Manuals and
Overhaul Manuals.
2. Part 43 Requirement to Use ICA
In addition to possessing the ICA at the time of certification, maintenance
providers must use the ICA when performing maintenance, preventive
maintenance and alteration on civil aviation articles pursuant to §43.13. That rule
states that those who perform maintenance on appliances, shall use “the
methods, techniques, and practices prescribed in the current manufacturer’s
maintenance manual or Instructions for Continued Airworthiness prepared by its
manufacturer, or other methods techniques, and practices acceptable to the
Administrator.” (§ 43.13(a)).
In addition, maintenance providers are required to “do that work in such a
manner…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…qualities affecting airworthiness).” (§ 43.13(b)).
The ICA required under § 43.13(a) are necessary for Sonico to perform
maintenance in an airworthy manner. They contain information relating to
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maintenance techniques, overhauls and inspections. Without the ICA, a repair
station must forego doing that work or develop its own, non-standard
maintenance procedures.
3. FAA Legal Interpretation: The Whitlow Letter
On December 13, 1999, the FAA’s deputy chief counsel issued the Whitlow
Letter, a legal interpretation related to the issues raised in this Complaint (IOP
10). The Whitlow Letter related to a dispute in which GE Accessory Services-
Grand Prairie, Inc. (GE-Grand Prairie) protested British Aerospace PLC’s (BAe)
refusal to provide ICA for various airframe accessories installed on the BAe-146
airplane.
The Whitlow Letter describes the essential elements of a § 21.50(b) violation.
First, the subject accessories must be part of the approved type design, and not
added by someone other than the design approval holder pursuant to a
Supplemental Type Certificate. Since the Parker Hannifin Sensor is part of the
Airbus A340-351 and A340-642 model aircraft, they are part of the approved type
design.
Second, the repair station requesting the ICA must possess the appropriate
certificate ratings to perform maintenance on the articles for which it is requesting
the ICA. As discussed in Section II, Sonico holds an FAA part 145 certificate and
the ratings required to perform maintenance on the Sensor in question.
Therefore, according to the elements set forth in the Whitlow Letter, § 21.50(b)
requires Parker Hannifin to provide Sonico with the ICA for the Sensor.
C. Parker Hannifin Must Furnish Sonico with ICA
Section 21.50(b) requires that the holder of a design approval must furnish ICA.
Based on the evidence presented herein, Parker Hannifin meets the criteria of
§ 21.50(b), thereby requiring it to provide Sonico with ICA.
1. Parker Hannifin Holds the Design Approval for the Dual Temperature
Sensor Part Number 055-019-001
Parker Hannifin holds PMA No. PQ0658NE for the Sensor installed in the Airbus
A340-541 and A340-642 (see IOP 3). Sections 21.50(b), 25.1529 and part 25,
appendix H, therefore, clearly cover this appliance. As a result, Parker Hannifin
meets the first criteria for providing ICA.
2. Airbus Made its Application for the A340-541 and A340-642 After
January 28, 1981
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Airbus applied for the TC for the A340-541 and A340-642 after January 28, 1981
(see IOP 4). Therefore, the Parker Hannifin Sensor installed in these Airbus
models meets the second criteria cited in § 21.50(b).
3. The Parker Hannifin Sensor is an Accessory that is Part of the Model
A340-541 and A340-642 and Subject to the ICA Requirements
Part 25, Appendix H, paragraph 25.1(b) directs that the ICA for each
airplane must include the ICA for each appliance and any required
information relating to the interface of those appliances with the airplane.
In the present case, Parker Hannifin must provide the ICA for the Sensor as it is
part of the Airbus A340-541 and A340-642 type certificated aircraft.
“Appliance” is defined in 14 CFR § 1.1 to mean “any instrument, mechanism,
equipment, part, apparatus, appurtenance, or accessory, including
communication equipment, that is used or intended to be used in operating or
controlling an aircraft in flight, is installed in or attached to the aircraft, and is not
part of the airframe, engine, or propeller.” (emphasis added.)
The Sensor referenced in this complaint (Part No. 055-019-001) is an appliance
within the meaning of 14 CFR § 1.1. The ratings appropriate for maintenance,
preventive maintenance and alteration of the Sensor is the accessory rating held
by Sonico.
Appendix H, paragraph H25.1(b) requires that ICA be available, “for each
appliance.” In addition, if a parts manufacturer fails to provide the ICA, then
H25.1(b) requires that the higher level ICA “must include the information
essential to the continued airworthiness of the airplane.” The ICA are required
not just for the completed type certificated product, but also for each part
included in the aircraft. As a result, whether as separate ICA or as a portion of
the ICA for the aircraft, Parker Hannifin must provide Sonico the ICA for the
Sensor referenced in this complaint.
4. FAA Legal Interpretation: Order 8110.54
FAA Order 8110.54, issued on July 1, 2005, reinforces the fact that design
approval holders must provide ICA to properly rated repair stations under
§ 21.50(b) (IOP 11). The opinion sets forth four conditions that, if met, require a
design approval holder to make ICA available to the repair station. Those
conditions are set forth in italics below, with the relevant facts in bold.
1. Application for the latest related type certificate (original, amended or
supplemental) was made after January 28, 1981.
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Airbus applied for the type certificate for the A340-541 and A340-642
aircraft on [Airbus Model A340-642 - approved July 22, 2002, Airbus Model
A340-541 - approved January 27, 2003].
2. The latest related certification basis includes § 21.50 as amended
09/11/80 or later (and § 25.1529 as applicable), i.e., the certificate
holder was required to develop (furnish) ICA as part of the certification
process.
The certification basis for the A340-541 and A340-642 model aircraft
encompasses § 21.50(b) and part 25, amendments 25-1 through 25-95, 25-
97, 25-98, and 25-104. Part 25, appendix H was added by Amendment 25-54.
3. The requester (repair station) of the ICA is currently rated for the
product/part and is required by Chapter 1 of 14 CFR to comply with the
ICA for the product/part.
Sonico is rated to perform maintenance on the specified Parker Hannifin
accessories. As discussed above, in performing work on these
accessories, Sonico is required under Chapter 1 of Title 14 CFR to comply
with the ICA for these parts. Specifically, §§ 43.13 and 145.109(d) require
that Sonico possess and use the ICA in performing maintenance,
preventive maintenance and alterations on the Sensor.
4. If the requested ICA data are a CMM or specific repair information, the
design approval holder must refer to the CMM or repair information in
higher-level ICA (airplane, engine, or propeller ICA) as the source of
information for continued airworthiness actions.
It is Complainant’s understanding that the Airbus A340 Aircraft
Maintenance Manual (AMM) states that the AMM provides information for
performing maintenance on aircraft including references to the CMMs of its
suppliers. The CMM contain maintenance instructions specifically required
by Title 14 CFR part 25, appendix H, paragraph H25.3(b). With respect to
the Parker Hannifin Dual Temperature Sensor Part Number 055-019-001, it
is Complainant’s understanding that the Airbus AMM refers to the Parker
Hannifin CMM for this component. Indeed this is the reason Complainant
brings this complaint on behalf of its member who was unable to obtain the
CMM from the design approval holder, Parker Hannifin. Complainant urges
the FAA to examine the A340 AMM to determine whether this condition is
satisfied.
D. Required Content: Instructions for Continued Airworthiness (ICA)
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The ICA for PMA parts must contain all appropriate instructions essential to the
continued airworthiness of the affected product. The ICA required by part 25
contains the Maintenance Instructions for the Sensor. Parker Hannifin has failed
to provide these instructions to Sonico.
1. Meaning of Airworthiness
Under the statute formerly known as the Federal Aviation Act of 1958,3 the FAA
must oversee the design, production, operations and maintenance of civil
aviation products and other articles.4 The FAA accomplishes its statutory
responsibility through a comprehensive regulatory system that covers each
person engaged in these activities.5 Although the rules vary depending on the
specific FAA certificate or approval obtained, the concept of airworthiness applies
equally to all regulated persons. Each entity functions as part of an integrated
civil aviation system that maintains safety at each stage of an article’s “regulatory
life.”
Designed articles must meet the applicable airworthiness standards (including
the ICA requirements) contained in parts 23, 25, 27, 29, 31, 33 and 35 of the
regulations. Each article, produced in conformity with its approved design, must
also be in condition for safe operation when it leaves the control of the design
approval holder or production approval holder.
Similarly, the regulations require that parties operating aircraft do so in an
airworthy manner. The regulations, guidance material, and enforcement cases
make it abundantly clear that this only occurs when owner/operators or the
maintenance providers working on their behalf, perform maintenance, preventive
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.”
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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
NTSB concluded that a repair station that failed to perform an overhaul for an air
carrier in accordance with the accessory manufacturer’s overhaul manual
violated § 43.13(a). The Administrator noted:
The record establishes that respondent overhauled the blower
without the aid of either an overhaul manual or such other technical
data as would assure that the work would be correctly or properly
accomplished.
* * * * *
A repair station such as respondent is permitted to do maintenance
work based on technical data supplied by the operator usually in
the form of the maintenance manual.
Similarly, In the matter of Empire Airlines, Inc., FAA Order No. 2000-13, Docket
No. CP98NM0011 (June 8, 2002) (IOP 14), an administrative law judge held that
Empire violated § 43.13(a) when “the left engine mount of Empire’s Fairchild F-
27F aircraft was repaired in a manner not specified by either the Fairchild
Structural Repair Manual (SRM) or Overhaul Manual (OM).” The Fairchild
overhaul and structural repair manuals permitted only two methods of repair for
non-negligible damage to the engine mount, patching, and insertion. Further, the
manuals stated that any damage in excess of the allowable limits for patching
and insertion required replacement of the engine mount. Empire ignored the
Fairchild manuals and performed a “sleeve” weld repair on the engine mount.
The law judge stated that Empire was “obligated to follow the terms of governing
manuals” and affirmed the civil penalty. The Administrator denied Empire’s
appeal and affirmed the law judge’s decision.
Furthermore, in Administrator v. Missouri Aerotech Industries, Inc., FAA Order
No. EA-3999, Docket No. SE-13249 (October 15, 1993) (IOP 15), the
Administrator appealed from the law judge’s decision not to revoke a repair
station’s certificate when it consistently performed numerous repairs on
navigational equipment without the benefit of the manufacturer’s manuals or
other approved or acceptable data. In reversing the law judge’s decision and
affirming the revocation of Respondent’s repair station certificate, the NTSB
stated:
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[W]e agree with the Administrator that the impact on aviation safety
of such unauthorized repairs is not trivial. The reliability of a repair
station’s work depends in large part upon its adherence to the
approved techniques and procedures which are set forth in
published technical data. Id. at page 12 (emphasis added).
Finally, in Administrator v. Alphin, 4 NTSB 23 at 26 (1984)(IOP16), the NTSB
held that:
[T]he overhaul manual for this engine, in relevant part, specifies
only a visual inspection of camshaft ‘journals for scoring,
deformation and excessive wear’ and of ‘cam lobes for profile wear,
scoring and pitting’…and it does not, apparently for proprietary
reasons, provide the information needed to do so. While we do not
take issue with the FAA inspector’s opinion that a better overhaul
might be accomplished if testing not dictated by the overhaul
manual were undertaken, the regulatory standard is not what an
inspector believes should be done in connection with an
overhaul, but, rather what the Administrator has specified,
through approved overhaul manuals and other documents,
must be done. (emphasis added.)
The holding in this case demonstrates that under Title 14 CFR the ICA
contains information essential to the continued airworthiness of the typecertificated
product.
The law is clear—a repair station must have current manufacturer’s maintenance
information at the time of certification and each time it performs work. In
addition, maintenance must generally be performed in accordance with the
methods, techniques and practices set forth in the pertinent manufacturer’s
maintenance or overhaul manual. This duty applies whether the article is an
aircraft, aircraft engine, propeller, appliance, accessory, instrument or a part
thereof.
2. Operations with Improperly Repaired Appliances
Operating an aircraft with a damaged or improperly repaired appliance renders
the aircraft unairworthy. Each of the operating rules found in parts 91,121, 125
and 135 prohibits such operation. Therefore, performing maintenance on all
parts of the aircraft in accordance with the applicable maintenance manual is
essential to the continued airworthiness of the aircraft.
In the Matter of Warbelow’s Air Ventures, Inc., FAA Order No. 2000-3, Docket
No. CP97AL0012 (February 3, 2000)(IOP 17), the FAA imposed a civil penalty
on an air carrier for operating an unairworthy aircraft contrary to §§ 91.7(a) and
135.25(a)(2). Specifically, the two aircraft flew for almost 1,400 hours with
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improperly modified and repaired fuel pumps. In affirming the law judge’s finding
of unairworthy operation due to the fuel pumps being in an unsafe operating
condition, the Administrator stated:
The Romec manual for the fuel pumps provides: ‘Avoid
application of excessive torque when tightening valve cover
mounting screws. Tighten screws progressively to 29-31 lb.-
in. torque.’ (emphasis in original). Rimer did not have a copy of the
Romec manual when he modified the two fuel pumps. He did not
know the proper torque values and did not use a torque wrench. It
is undisputed that if the screws are not tightened properly the fuel
pumps may leak, resulting in a fire hazard.
In the matter of USAir, FAA Order No. 92-48, Docket No. CP91NM0183 (July 22,
1992) (IOP 18), the FAA found that USAir operated an unairworthy aircraft
contrary to §121.153(a)(2). The aircraft had sustained damage to its nose gear
water deflector during pushback from the gate. Because the aircraft no longer
conformed to its type certificate, the Administrator affirmed the law judge’s finding
that the aircraft had been operated in an unairworthy manner.
Persons who design, produce, operate and maintain civil aircraft are responsible
for ensuring airworthiness. Parker Hannifin’s denial of Sonico’s request for ICA
is contrary to the regulatory obligations on which safety is based.
IV. CONCLUSION
For the reasons set forth above, Complainant requests that the FAA initiate an
informal investigation and thereafter issue an order finding that Parker Hannifin is
in violation of §§ 21.50(b), 25.1529 and part 25, appendix H. The Complainant
has provided the Administrator with the necessary IOPs establishing these
violations.
If the FAA requires additional information to establish the violation, Complainant
urges the Administrator to issue an order of investigation in accordance with part
13, subpart F. A formal investigation would allow the Administrator to name a
Presiding Officer, issue subpoenas, take depositions, hold an evidentiary public
hearing and issue a written report of the investigation.
Complainant urges the FAA to consider this Complaint in the broadest possible
terms. In the Association’s view, it would make little sense for the Administrator
to issue a ruling favorable to Sonico without recognizing that the same issues
apply throughout the aviation maintenance industry. Ultimately, Complainant
requests that the Administrator enforce the ICA requirements against design
approval holders as diligently as it enforces them against maintenance providers
and operators.
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LIST OF ITEMS OF PROOF (IOP)
• IOP 1 – Sonico, Inc.’s repair station certificate, issued January 17,
1985
• IOP 2 – Sonico, Inc.’s ratings and operations specifications (multiple
effective dates)
• IOP 3 – Parker Hannifin Corporation Parts Manufacturer Approval
Holder No. PQ0658NE, dated September 13, 2005
• IOP 4 – Airbus Type Certificate, No. A43NM, dated March 19, 2007
(covers both Airbus planes)
• IOP 5 – Sonico, Inc.’s E-mail to Parker Hannifin Corporation requesting
overhaul/component maintenance manuals for the Dual Temperature
Sensor, part no. 055-019-001, dated May 16, 2006
• IOP 6 – Sonico, Inc.’s request to Parker Hannifin Corporation for ICA
data for the Dual Temperature Sensor, part no. 055-019-001, dated
July 3, 2006
• IOP 7 – Sonico, Inc.’s E-mail to Thomas Piraino requesting Parker
Hannifin Corporation’s reply to July 3 & August 31, 2006 letter
• IOP 8 – Sonico, Inc.’s E-mail to Steve Vaughn requesting Parker
Hannifin Corporation’s reply to July 3, 2006 letter
• IOP 9 – FAA policy statement, dated July 12, 2005, “Safety- A Shared
Responsibility- New Direction for Addressing Airworthiness Issues for
Transport Airplanes.”
• IOP 10 – FAA legal interpretation, dated December 13, 1999 (Whitlow
letter)
• IOP 11 –FAA Order 8110.54, Instructions for Continued Airworthiness
Responsibilities, Requirements and Contents, Issued July, 1 2005.
• IOP 12 – In the Matter of Watts, FAA Order No. 91-8, served April 11,
1988
• IOP 13 – Administrator v. Aero Lectrics, Inc., 6 NTSB 1088 (1989).
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• IOP 14 – In the matter of Empire Airlines, Inc., Docket No.
CP98NM0011, FAA Order No. 2000-13 served June 8, 2000.
• IOP 15 – Administrator v. Missouri Aerotech Industries, Inc., Docket
No. SE-13249, FAA Order No. EA-3999 served October 15, 1993.
• IOP 16 – Administrator v. Alphin, 4 NTSB 23 Order EA-2008 adopted
May 31, 1984
• IOP 17 – In the Matter of Warbelow’s Air Ventures, Inc., Docket No.
CP97AL0012 FAA Order No. 2000-3 served February 3, 2000.In
• IOP 18 – the Matter of USAir, Docket No. CP91NM0183 FAA Order
No. 92-48 served July 22, 1992.
Respectfully submitted,
Marshall S. Filler E: msf@potomac-law.com
Counsel to Complainant Aeronautical Repair
Station Association
Obadal, Filler, MacLeod & Klein, P.L.C.
117 North Henry Street
Alexandria, VA 22314-2903
T: 703-299-0784
F: 703-299-0254
February 29, 2008
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CERTIFICATE OF SERVICE
I, Colin P. Carroll, certify that on February 29, 2008, I caused the executed
original and one copy of the foregoing Aeronautical Repair Station Association
part 13 Complaint on § 21.50(b) of the Federal Aviation Regulations to be
delivered via Certified Mail, Return Receipt to:
Federal Aviation Administration
Office of the Chief Counsel
800 Independence Avenue, S.W.
Washington, D.C. 20591-0004
ATTN: Enforcement Docket AGC-10
I, Colin P. Carroll, certify that on February 29, 2008, I caused one copy of the
foregoing Aeronautical Repair Station Association part 13 Complaint on §
21.50(b) of the Federal Aviation Regulations to be delivered via Certified Mail,
Return Receipt to:
Thomas A. Piraino, Jr.
Vice President, General Counsel and Secretary
Parker Hannifin Corporate Headquarters
6035 Parkland Boulevard
Cleveland, OH 44124-4141
Signature

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