Appendix — Garrett v. United States

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APPENDIX A

IN THE

United States Court of Appeals

For THe FirtH Circuit

No. 27436

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

VERSUS

A. T. GARRETT, W. D. WALTERS, AND J. B. MCDANIEL,

Defendants-A ppellants.

Northern District of Georgia

(December 2, 1969)

Before TUTTLE, COLEMAN, and SIMPSON,

Circuit Judges.

PER CURIAM: On January 10, 1969, the District

Court for the Northern District of Georgia imposed upon

the appellants a civil penalty of one hundred dollars cach.

The unpublished opinion of the trial court will be annexed

hereto as an appendix.

Upon consideration of the record, briefs, and argument

of counsel we are of the opinion that the judgment of the

District Court should be affirmed.

a PTR REO TR Date ne CneeED

AFFIRMED.

i ad ea ee Te err_s

2a

2 U.S.A. v. GARRETT, WALTERS, and McDANIEL

APPENDIX

[Opinion of the District Court]

“These are four seldom-used proceedings, seeking

to recover civil penalties against the defendants under

49 U.S.C.A. §1471(a). Specifically, they are accused

of violation of 49 U.S.C.A. §1430(a) (2) which pro-

vides that it shall be unlawful

For any person to serve in any capacity as an

airman in connection with any civil aircraft, air-

craft engine, propeller or appliance used or in-

tended for use, in air commerce without an air-

man certificate authorizing him to serve in such

capacity, or in violation of any term, condition,

or limitation thereof, or in violation of any order.

rule, or regulation issued under this subchapter;

“The particular regulations involved are contained

in Federal Aviation Regulations 14 CRF 43.13. These

regulations, made a part of the statute, prescribe that

‘each person maintaining or altering or performing pre-

ventive maintenance shall use methods, techniques

and practices acceptable to the Administrator.” (14

CRF 43.13(a)). Specifically, the following is pro-

vided:

Special provisions for air carriers and commer-

mercial operators. Unless otherwise notified by

the Administrator, the methods, techniques, and

practices contained in the maintenance manual

or the maintenance part of the air carrier manual

of a certfiicated air cartier or commercial op-

erator (that is required by its operating certificate

POE Seo Ne ACER Rr me SMO LH IIS ati

_————

3a

or approved operating specifications to provide a

continuous airworthiness maintenance and in-

spection program) constitute acceptable means

of compliance with this section.

14 CRF 43.13(c).

“The case was presented to the court, on which are

made the following

FINDINGS OF FACT

“Each of the defendants was employed on May

13, 1905, at Eastern Air Lines’ repair and overhaul

assembly facility in Atlanta, under the general super-

vision of Mr. S. T. White, Manager-Aircraft Main-

tenance.

“Defendant Garrett occupied the position of Lead

Mechanic (or foreman) over an eleven man crew, in

which Petsch, Walters, and McDaniel were line me-

chanics. It is customery for several repair and main-

tenance jobs to be carried on simultaneously by groups

of mechanics under the lead mechanic’s direction.

Certain regular work is carried on in routine fashion

by each crew.

“The particular job in question involved the “build-

up’ of an Electra prop. The major overhaul on such

equipment is performed in Miami and the component

parts shipped to Atlanta for assembly. The details of

Electra prop assembly are buried in the manufactur-

er’s (Allison) instructions inserted in the general East-

ern maintenance manual. While such instructions are

verbose, technical, and beyond the practical compre-

hension of all except the most experienced mechanics,

a literal adherence to them would have effected a

proper assembly in this instance.

Fe I eS I OD Me tee

4da

“In actual practice, the company, Eastern, has

developed a work sheet, which lays out by steps the

essential of the contents of the maintenance manual

though not a formal part thereof. Adherence to such

work sheet would likewise have effected a proper as-

sembly in this instance.

“While there was no specific approval by the FAA

of the pertinent sections of the maintenance manual

or the work sheet, such procedures had been in use

for a considerable period of time both by the crews

and certificated inspectors. Some 15 props per month

were assembled in Atlanta on this basis.

“In the assembly itself, the parts are received in

four boxes, two containing the four prop blades, one

containing the hub and one the cover. The hub

weighs approximately 500 pounds and is mounted

by the crew on an assembly stand for working pur-

poses. The key operation is to place the four blades

in the proper receptacle at the correct pitch of -4° at

42” stations.

“In this particular instance, number 1 blade was

inserted at -8° while blades 2, 3, and 4 were inserted

correctly. The assembly passed various inspections

and was placed into service, resulting in excessive vi-

bration which lead to the discovery of the error. The

responsibility of the inspectors involved is no longer

at issue, but only that of the repair crew itself.

“In this instance, Garrett assigned the other de-

fendants to the assembly. Petsch was the more ex-

perienced mechanic and was certificated by FAA.

McDaniel was the lesser experienced and Walters oc-

cupied the dual capacity of mechanic-electrician. All

Ja

these participated in the initial set-up. Immediately

after the first insertion of the blades, a field emergency

with a 727 landing gear failure occurred, Arc this

was a higher priority task, McDaniel and Petsch were

called off the prop assembly by Garrett for such work,

leaving Walters alone with the prop. Later Petsch and

McDaniel returned, but before any additional work

began, Petsch was called back to the 727 and had

nothing further to do with the assembly.

“The initial part of the assembly is to check the

pitch. Initially this is done with a ‘devil’s level’, but

the ultimate test is by use of a protractor. If the prop

has been inserted into the wrong spline initially, it is

necessary to reinsert the blade, always checking out

the pitch by means of the protractor. It takes two men

to handle each blade and normally the protractor work

is checked by two men.

“Under such circumstances, Walters and McDaniel

actually performed the work involved by improper

seating and/or improper protractor readings. Walters

actually initialed the work-sheet and summoned the

inspector to approve the work. Neither the assembly

stand nor the interruption by work on the field emer-

gency caused or justified the improper assembly, which

occured in violation of the worksheet and the main-

tenance manual. Indeed such conditions are common-

place and render the use of check-sheets even more

viable.

CONCLUSIONS OF LAW

“While the statute involved concerns a penalty, it

is civil in nature and when it is enacted and the mi-

plementing regulations adopted to promote the public

good, a reasonable preponderance of the evidence is

6a

sufficient to sustain the government’s burden of proof.

United States v. Proper, 7 Aviation 18.173 (D.C.N.Y.

1962).

“The central issue here, however, is not the quan-

tum of proof, but the argument that the ‘check sheet’

in question was not tantamount to an FAA approved

procedure or, if it is, that it represents an improper

delegation of power by the FAA to the carrier. Pri-

vate mechanics and contract repair bases must have all

procedures approved directly by the FAA, while in

the case of certificated air carriers as here, the carrier’s

own ‘methods, techniques, and practices contained in

the maintenance manual.’ — ‘constitute acceptable

means of compliance with this section.” While the evi-

dence does not reveal an affirmative approval of any

such procedure, the regulation is negative in approach

in that such procedures are proper ‘unless otherwise

notified by the Administrator.’ Thus, proof of the

accepted method carries the burden of establishing

the basis for violation. Nor does the absence of the

work sheet from the maintenance manual proper, in

the court’s opinion, destroy its efficacy. As far as the

court can tell, the work sheet is merely a practical aid

to the mass of detail in the manual proper. To rule

that use of a common-sense tool such as this shifts the

blame from mechanic to carrier is indeed strained.

This court would be far more inclined to condemn a

practice which placed the onus of the entire manual

on the individual mechanic without such aids. |

“Based on years of experience with the methods of

certificated carriers, the regulation is reasonable and

practical in substituting the carrier’s procedures for

the minutiae of individual FAA approval. The regu-

ee oe

LOT EMTS RE EEE sili

Ta

latory powers under the Act are broad. See Doe v.

C.A.B., 356 F.2d 699 (10th Cir. 1966); Somlo v.

C.A.B., 367 F.2d 791 (7th Cir. 1966). It cannot be

said that such regulation is unreasonable or arbitrary.

“Based on the above, the evidence reveals a viola-

tion by defendants Walters and McDaniel. In this

respect, the court is satisfied that they are directly in-

volved. As to Petsch, even the government concedes

that he was not involved either directly or indirectly

and no showing as to any violation by him has been

made, There remains the question of Garrett’s cul-

pability, if any. As the lead mechanic, or foreman, he

was not directly involved and only exercised general

supervisory power over the crew members. Thus the

error occurred without his direct participation. No

case is found delineating the limits of such responsibil-

ity. Under such circumstances the court can only

hazard a trend, which in this instance points towards

responsibility on Garrett’s part also. Generally, the

courts have adhered to a rule of non-delegability in

such matters. Thus, an employer cannot disclaim re-

sponsibility on the grounds that its employees alone

erred. United States v. Lockheed Aircraft Service

Int’l., 202 F. Supp. 665 (E.D. N.Y. 1962). Nor can

an inspector delegate any duties under the statute.

French v. C.A.B., 378 F.2d 468 {10th-Cir-1967).

Rationally, there is no distinction between these func-

tions and that of the foreman. “The neglect and over-

sights of his helpers provide no excuse for the peti-

tioner.” What would be the point in requiring that a

foreman be certificated if he does not share responsibil-

ity for his crew’s performance. Otherwise, a simple

assignment clerk is all that would be required or the

crew could insist that the inspection failure was the

8a

true fault. On reason, then, the court concludes that

the supervising foreman bears equal responsibility

with his crew for any violation of the act or regula-

tions thereunder.

“Fortunately, the violation here was not serious.

Accordingly, as to defendants Garrett, Walters, and

McDaniel a civil penalty of $100.00 each is imposed.

As to defendant Petsch, the case is dismissed. Ap-

propriate judgments may be presented by government

counsel.”

54 tpeee

SR ASEM EEE BERN TLE AD IN ELE BC GL SN apa

9a

United States Court of Appeals

FoR THE FIFTH CIRCUIT

OCTOBER TERM, 1969

No. 27436

and 10386 (Consolidated)

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

VERSUS

A. T. GARRETT, W. D. WALTERS AND J. B. MCDANIEL,

Defendants Appellants.

Appeal from the United States District Court for the

Northern District of Georgia

Before TUTTLE, COLEMAN and SIMPSON,

Circuit Judges

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Georgia, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

It is further ordered that defendants-appellants pay to

plaintiff-appellee, the costs on appeal to be taxed by the

Clerk of this Court.

December 2, 1969

Issued as Mandate: Jan. 27, 1970

ER SRE RRR SINISTER OR Rr ON Et RRR tue Se eeeesy

10a

(U. S. Court of Appeals filed Jan. 19, 1970, Edward W.

Wadsworth, Clerk)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

’ No. 27436

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

VERSUS

A. T. GARRETT, W. D. WALTERS AND J. B. MCDANIEL

’

Defendants Appellants.

Appeal from the United States District Court for the

Northern District of Georgia

Before TUTTLE, COLEMAN and SIMPSON,

Circuit Judges

January 19, 1970)

ON PETITION FOR REHEARING

Before TUTTLE, COLEMAN, and SIMPSON,

Circuit Judges

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby DENIED.

megs

syigink

PEARSON ELC col RS:

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APPENDIX B

STATUTES INVOLVED

Federal Aviation Act of 1958, Title VI, Section 601,

72 Stat. 775, 49 U.S.C., Section 1421:

1421. General safety powers and duties—(a) Mini-

mum standards—Rules and regulations. The Administrator

is empowered and it shall be his duty to promote safety

of flight of civil aircraft in air commerce by prescribing and

revising from time to time:

(1) Such minimum standards governing the design,

materials, workmanship, construction, and performance of

aircraft, aircraft engines, and propellers as may be required

in the interest of safety;

(2) Such minimum standards governing appliances as

may be required in the interest of safety;

(3) Reasonable rules and regulations and minimum

standards governing, in the interest of safety, (A) the

inspection, servicing and overhaul of aircraft, aircraft en-

gines, propellers, nad appliances; (B) the equipment and

facilities for such inspection, servicing, and overhaul; and

(C) in the discretion of the Administrator, the periods for,

and the manner in, which such inspection, servicing, and

overhaul shall be made, including provision for examina-

tions and reports by properly qualified private persons

whose examinations or reports the Administrator may ac-

cept in lieu of those made by its officers and employees;

(4) Reasonable rules and regulations governing the

reserve supply of aircraft, aircraft engines, propellers, ap-

pliances, and aircraft fuel and oil, required in the interest

of safety, including the reserve supply of aircraft fuel and

oil which shall be carried in flight;

12a

(5) Reasonable rules and regulations governing, in the

interest of safety, the maximum hours or periods of service

of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or mini-

mum standards, governing other practices, methods, and

procedure, as the Administrator may find necessary to pro-

vide adequately for national security and safety in air com-

merce.

(b) Needs of service to be considered—Classification

of standards.—In prescribing standards, rules, and regula-

tions, and in issuing certificates under this title [§§ 1421-

1431 of this title], the Administrator shall give full consid-

eration to the duty resting upon air carriers to perform their

services with the highest possible degree of safety in the

public interest and to any differences between air trans-

portation and other air commerce; and he shall make

classifications of such standards, rules, regulations, and cer-

tificates appropriate to the differences between air transpor-

tation and other air commerce. The Administrator may

authorize any aircraft, aircraft engine, propeller, or ap-

pliance, for which an aircraft certificate authorizing use

thereof in air transportation has been issued, to be used

in other air commerce without the issuance of a further cer-

tificate. The Administrator shall exercise and perform his

powers and duties under this Act in such manner as will

best tend to reduce or eliminate the possibility of, or recur-

rence of, accide.its in air transportation, but shall not deem

himself required to give preference to either air transporta-

tion or other air commerce in the administration and en-

forcement of this title [$§ 1421-1430 of this title].

(c) Exemptions—The Administrator from time to

time may grant exemptions from the requirements of any

rule or regulation prescribed under this title [§§ 1421-

a Seen ree SNP AORN OI MED RTE mE ENT Ce rae 8

13a

1431 of this title] if he finds that such action would be in

the public interest. (Aug. 23, 1958, P. L. 85-726, Title VI,

§ 601, 72 Stat. 775.)

Federal Aviation Act of 1958, Title VI, Section 609,

72 Stat. 779, 49 U.S.C., Section 1429:

1429. Amendment, suspension, and revocation of cer-

tificates The Administrator may, from time to time, re-

inspect any civil aircraft, aircraft engine, propeller, ap-

pliance, air navigation facility, or air agency, or may re-

examine any civil airman. If, as a result of any such re-

inspection or reexamination, or if, as a result of any other

investigation made by the Administrator, he determines

that safety in air commerce or air transportation and the

public interest requires, the Administrator may issue an

order amending, modifying, suspending, or revoking, in

whole or in part, any type certificate, production certificate,

airworthiness certificate, airman certificate, air carrier op-

erating Certificate, air navigation facility certificate, or air

agency certificate. Prior to amending, modifying, suspend-

ing, or revoking any of the foregoing certicfiates, the Ad-

ministrator shall advise the holder thereof as to any charges

or other reasons relied upon by the Administrator for his

proposed action and, except in cases of emergency, shall

provide the holder of such a certificate an opportunity to

answer any charges and be heard as to why such cer-

tificate should not be amended, modified, suspended, or

revoked. Any person whose certificate is affected by such

an order of the Administrator under this section may appeal

the Administrator’s order to the Board and the Board may,

after notice and hearing, amend, modify, or reverse the

Administrator’s order if it finds that safety in air commerce

or air transportation and the public interest do not require

affirmation of the Administrator’s order. In the conduct of

l4a

its hearings the Board shall not be bound by findings of fact

of the Administrator. The filing of an appeal with the Board

shall stay the effectiveness of the Administrator’s order

unless the Administrator advises the Board that an emer-

gency exists and safety in air commerce or air transporta-

tion requires the immediate effectiveness of his order, in

which event the order shall remain effective and the Board

shall finally dispose of the appeal within sixty days after

being so advised by the Administrator. The person substan-

tially affected by the Board’s order may obtain judicial re-

view of said order under the provisions of section 1006

[§ 1486 of this title], and the Administrator shall be made

a party to such proceedings. (Aug. 23, 1958, P. L. 85-726,

Title VI, § 609, 72 Stat. 779.)

Federal Aviation Act of 1958, Title VI, Section 610,

72 Stat. 780, 49 U.S.C., Section 1430:

1430. Prohibitions—(a) Violaitons of title.—It shall

be unlawful—

(1) For any person to operate in air commerce any

civil aircraft for which there is not currently in effect an

airworthiness certificate, or in violation of the terms of any

such certificate;

(2) For any person to serve in any capacity as an air-

man in connection with any civil aircraft, aircraft engine,

propeller or appliance used or intended for use, in air com-

merce without an airman certificate authorizing him to serve

in such capacity, or in violation of any term, condition,

or limitation thereof, or in violaton of any order, rule, or

regulaton issued under this title [§§ 1421-1431 of this

title];

(3) For any person to employ for service in connec-

tion with any civil aircraft used in air commerce an airman

i5a

who does not have an airman certificate authorizing him

to serve in the capacity for which he is employed;

(4) For any person to operate as an air carrier with-

out an air carrier operating certificate, or in violation of

the terms of any such certificate;

(5) For any person to operate aircraft in air commerce

in violation of any other rule, regulation, or certificate of

the Administrator under this title [§§ 1421-1431 of this

title]; and

(6) For any person to operate a seaplane or other air-

craft of United States registry upon the high seas in contra-

vention of the regulations proclaimed by the President pur-

suant to section 1 of the Act entitled “An Act to authorize

the President to proclaim regulations for preventing col-

lisions at sea,” approved October 11, 1951 (Public Law

172, Eighty-second Congress; 65 Stat. 406) [33 § 143];

and

(7) For any person holding an air agency or produc-

tion certificate, to violate any term, condition, or limitation

thereof, or to violate any order, rule, or regulation under

this title [§§ 1421-1431 of this title] relating to the holder

of such certificate.

(b) Exemption of foreign aircraft and airmen.—For-

eign aircraft and airmen serving in connection therewith

may, except with respect to the observance by such airmen

of the air traffic rules, be exempted from the provisions of

subsection (a) of this section, to the extent, and upon such

terms and conditions, as may be prescribed by the Admin-

istrator as being in the interest of the public. (Aug. 23,

1958, P. L. 85-726, Title VI, § 610, 72 Stat. 780.)

16a

Federal Aviation Act of 1958, Title IX, Section 901,

72 Stat. 783, 76 Stat. 149, U.S.C., Section 1471:

1471. Civil penalties. — (a) Safety, economic, and

postal offenses.—(1) Any person who violates (A) any

provision of title III [$§ 1341-1355 of this title], IV

[§§ 1371-1387 of this title], V[$§ 1401-1405 of this title],

VI [$§ 1421-1430 of this title], VII [$$ 1441-1443 of

this title], or XII [§§ 1521-1523 of this title] of this Act,

or any rule, regulation, or order issued thereunder, or under

section 1002(i) [$ 1482(i) of this title], or any term, con-

dition, or limitation of any permit or certificate issued under

title IV [$$ 1471-1387 of this title], or (B) any rule or

regulation issued by the Postmaster General under this Act,

shall be subject to a civil penalty of not to exceed $1,000

for each such violation. If such violation is a continuing

one, each day of such violation shall constitute a separate

offense: Provided, That this subsection shall not apply to

members of the Armed Forces of the United States, or those

civilian employees of the Department of Defense who are

subject to the provisions of the Uniform Code of Military

Justice, while engaged in the performance of their official

duties; and the appropriate military authorities shall be

responsible for taking any necessary disciplinary action

with respect thereto and for making to the Administrator

or Board, as appropriate, a timely report of any such action

taken.

(2) Any such civil penalty may be compromised by

the Administrator in the case of violations of titles III

[$$ 1341-1355 of this title], V [$$ 1401-1405 of this

title], VI [$§ 1421-1430 of this title], or XII [$§ 1521-

1523 of this title], or any rule, regulation, or order issued

thereunder, or by the Board in the case of violations of

titles TV [§§ 1371-1387 of this title] or VII [§§ 1441-

> ety

17a

1443 of this title], or any rule, regulation, or order issued

thereunder, or under section 1002(i) [§ 1482(i) of this

title], or any term, condition or limitation of any permit or

certificate issued under title IV [§§ 1371-1387 of this title],

or by the Postmaster General in the case of regulations

issued by him. The amount of such penalty, when finally

determined, or the amount agreed upon in compromise,

may be deducted from any sums owing by the United States

to the person charged.

(b) Liens.—lIn case an aircraft is involved in such vio-

lation and the violation is by the owner or person in com-

mand of the aircraft, such aircraft shall be subject to lien

for the penalty: Provided, That this subsection shall not

apply to a violation of a rule or regulation of the Post-

master General. (Aug. 23, 1958, P. L. 85-726, Title IX,

§ 901, 72 Stat. 783; July 10, 1962, P. L. 87-528, § 12,

76 Stat. 149.)

Federal Aviation Act of 1958, Title IX, Section 903,

72 Stat. 786, 75 Stat. 467, 49 U.S.C., Section 1473:

1473. Venue and prosecution of offenses.—(a) Venue,

—The trial of any offense under this Act shall be in the

district in which such offense is committed; or if the offense

is committed out of the jurisdiction of any particular State

or district, the trial shall be in the district where the of-

fender, or any one of two or more joint offenders, is arrested

or is first brought. If such offender or offenders are not so

arrested or brought into any district, an indictment or in-

formation may be filed in the district of the last known

residence of the offender or of any one of two or more joint

offenders, or if no such residence is known the indictment

or information may be filed in the District of Columbia.

Whenever the offense is begun in one jurisdiction and com-

pleted in another, or committed in more than one jurisdic-

iiieneennees

18a

tion, it may be dealt with, inquired of, tried, determined,

and punished in any jurisdiction in which such offense was

begun, continued, or completed, in the same manner as if

the offense had been actually and wholly committed therein.

(b) Procedure in respect of civil penalties.—(1) Any

civil penalty imposed under this Act may be collected by

proceedings in personam against the person subject to the

penalty and, in case the penalty is a lien, by proceedings in

rem against the aircraft, or by either method alone. Such

proceedings shall conform as nearly as may be to civil suits

in admiralty, except that either party may demand trial by

jury of any issue of fact, if the value in controversy exceeds

$20, and the facts so tried shall not be reexamined other than

in accordance with the rules of the common law. The fact

that in a libel in rem the seizure is made at a place not

upon the high seas or navigable waters of the United

States shall not be held in any way to limit the requirement

of the conformity of the proceedings to civil suits in rem

in admiralty.

(2) Any aircraft subject to such lien may be sum-

marily seized by and placed in the custody of such persons

as the Board or Administrator may by regulation pre-

scribe, and a report of the cause shall thereupon by trans-

mitted to the United States attorney for the judicial district

in which the seizure is made. The United States attorney

shall promptly institute proceedings for the enforcement

of the lien or notify the Board or Administrator of his

failure to so act.

(3) The aircraft shall be released from such custody

upon payment of the penalty or the amount agreed upon

in compromise; or seizure in pursuance of process of any

court in proceedings in rem for enforcement of the lien, or

notification by the United States attorney of failure to in-

19a

stitute such proceedings; or deposit of a bond in such

amount and with such sureties as the Board or Admin-

istrator may prescribe, conditioned upon the payment of

the penalty or the amount agreed upon in compromise.

(4) The Supreme Court of the United States, and

under its direction other courts of the United States, may

prescribe rules regulating such proceedings in any par-

ticular not provided by law. (Aug. 23, 1958, P. L. 85-726,

Title IX, § 903, 72 Stat. 786; seat 5, 1961, P. L. 87-197,

§ 2, 75 Stat. 467.)

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20a

APPENDIX C

PERTINENT SECTIONS FROM FEDERAL AVIATION

REGULATIONS

14 Federal Code of Regulations, Sections:

§ 43.13 Performance rules (general).

(a) Each person maintaining or altering, or performing

preventive maintenance, shall use methods, techniques, and

practices acceptable to the Administrator. He shall use the

tools, equipment, and test apparatus necessary to assure

completion of the work in accordance with accepted in-

dustry practices. If special equipment or test apparatus is

recommended by the manufacturer involved, he must use

that equipment or apparatus or its equivalent acceptable to

the Administrator.

(b) Each person maintaining or altering, or perform-

ing preventive maintenance, shall do that work in such a

manner and use materials of such a quality, that the con-

dition 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).

(c) Special provisions for air carriers and commercial

operators. Unless otherwise notified by the Administrator,

the methods, techniques, and practices contained in the

maintenance manual or the maintenance part of the air

carrier manual of a certificated air carrier or commercial

operator (that is required by its operating certificate or

approved operating specifications to provide a contin-

uous airworthiness maintenance and inspection program)

constitute acceptable means of compliance with this section.

2la

Subpart G—Manual Requirements

§ 121.131. Applicability.

This subpart prescribes requirements for preparing and

maintaining manuals by all certificate holders.

§ 121.133. Preparation.

(a) Each domestic and flag air carrier shall prepare

and keep current a manual for the use and guidance of

flight and ground operations personnel in conducting its

operations.

(b) Each supplemental air carrier and commercial op-

erator shall prepare and keep current a manual for the use

and guidance of flight, ground operations, and management

personnel in conducting its operations.

§ 121.135 Contents.

(a) Each manual required by § 121.133 must—

(1) Include instructions and information necessary to

allow the personnel concerned to perform their duties and

responsibilities with a high degree of safety;

(2) Be in a form that is easy to revise;

(3) Have the date of last revision on each page con-

cerned; and

(4) Not be contrary to any applicable Federal regu-

lation and, in the case of a flag or supplemental air carrier,

any applicable foreign regulation, or the certificate holder’s

operations specifications or operating certificate.

(b) The manual may be in two or more separate parts,

containing together all of the following information, but

each part must contain that part of the information that is

appropriate for each group of personnel:

RE MITE OIE ILS BELLE IRAE, LIT LORE AIS SIEVE I TIEN B BESS Ra 1

22a

(1) General policies.

(2) Duties and responsibilities of each crewmember

and appropriate members of the ground organization and

in the case of supplemental air carriers and commercial

operators, management personnel.

(3) Reference to appropriate Federal Aviation Regu-

lations.

(4) Flight dispatching and operational control, in-

cluding procedures for coordinated dispatch or flight con-

trol or flight following procedures, as applicable.

(5) En route flight, navigation, and communication

procedures, including procedures for the dispatch or release

or continuance of flight if any item of equipment required

for the particular type of operation becomes inoperative

or unserviceable en route.

(6) For domestic or flag air carriers, appropriate in-

formation from the en route operations specifications, in-

cluding for each approved route the types of aircraft au-

thorized, their crew complement, the type of operation such

as VFR, IFR, day, night, etc., and any other pertinent

information.

(7) For supplemental air carrier or commercial op-

erators, appropriate information from the operations speci-

fications, including the area of operations authorized, the

types of aircraft authorized, their crew complement, the

type of operation such as VFR, IFR, day, night, etc., and

any other pertinent information.

(8) Appropriate information from the airport opera-

tions specifications, including for each airport—

(i) Its location (domestic and flag air carrier opera-

tions only);

“ " ng Sie ayes 9

GEE Rt Ce PTE MT GMS Tee Fd aE BA MeN INC

—_

23a

(ii) Its designation (regular, alternate, provisional,

etc.) (domestic and flag air carrier operations only) ;

(iii) The types of aircraft authorized (domestic and

flag air carrier operations only);

(iv) Instrument approach procedures;

(v) Landing and takeoff minimums; and

(vi) Any other pertinent information.

(9) Takeoff, en route, and landing weight limitations.

(10) Procedures for familiarizing passengers with the

use of emergency equipment, during flight.

(11) Emergency equipment/and procedures.

(12) The method of designating succession of com-

mand of flight crewmembers.

(13) Procedures for determining the usability of land-

ing and takeoff areas, and for disseminating pertinent in-

formation thereon to operations personnel.

(14) Procedures for operating in periods of ice, hail,

thunderstorms, turbulence, or any potentially hazardous

meteorological condition.

(15) Airman training programs, including appropriate

ground, flight, and emergency phases.

(16) Instructions and procedures for maintenance,

preventive maintenance, and servicing.

(17) Time limitations, or standards for determining

time limitations, for overhauls, inspections, and checks of

airframes, engines, propellers, and appliances.

(18) Procedures for refueling aircraft, eliminating fuel

contamination, protection from fire (including electrostatic

24a

protection), and supervising and protecting passengers dur-

ing refueling.

(19) Airworthiness inspections, including instructions

covering procedures, standards, responsibilities, and au.

thority of inspection personnel.

(20) Methods and procedures for maintaining the air-

craft weight and center of gravity within approved limits.

(21) Where applicable, pilot and dispatcher route and

airport qualification procedures.

(22) Accident notification procedures.

(23) Other information or instructions relating to

safety.

(c) Each certificate holder shall maintain at least

one complete copy of the manual at its principal opera-

tions base.

§$ 121.137 Distribution.

(a) Each certificate holder shall furnish copies of the

manual required by § 121.133 (and the changes and addi-

tions thereto) or appropriate parts of the manual to—

(1) Its appropriate ground operations and maintenance

personnel;

(2) Crewmembers; and

(3) Representatives of the Administrator assigned to it.

(b) Each person to whom a manual or appropriate

parts of it are furnished under paragraph (a) of this section

shall keep it up to date with the changes and additions

furnished to him.

———

25a

Subpart L—Maintenance, Preventative Maintenance,

and Alterations

§ 121.361 Applicability.

This subpart prescribes requirements for maintenance,

preventative maintenance, and alterations for all certificate

holders.

§ 121.363 Responsibility for airworthiness.

(a) Each certificate holder is primarily responsible

for—

(1) The airworthiness of its aircraft, including air-

frames, aircraft enginers, propellers, appliances, and parts

thereof; and

(2) The performance of the maintenance, preventive

maintenance, and alteration of its aircraft, including air-

frames, aircraft engines, propellers, or appliances, and parts

thereof, in accordance with its manual and the regulations

of this chapter.

(b) A certificate holder may make arrangements with

another person for the performance of any maintenance,

preventive maintenance, or alterations. However, this does

not relieve the certificate holder of the responsibility speci-

fied in paragraph (a) of this section.

§ 121.365 Maintenance, preventive maintenance, and

alteration organization.

(a) Each certificate holder that performs any of its

maintenance (other than required inspections), preventive

maintenance, or alterations, and each person with whom it

arranges for the performance of that work must have an

organization adequate to perform the work.

(b) Each certificate holder that performs any inspec-

Bitte esrcercesncangenenene SEE EIEN ON NI aE LE EN PINE ER

ante

26a

tions réquired by its manual in accordance with § 121.

369(b) (2) or (3) (in this subpart referred to as “required

inspections”) and each person with whom it arranges for

the performance of that work must have an organization

adequate to perform that work.

(c) Each person performing required inspections in

addition to other maintenance, preventive maintenance, or

alterations, shall organize the performance of those func-

tions so as to separate the required inspection functions

from the other maintenance, preventive maintenance, and

alteration functions. The separation shall be below the level

of administrative control at which overall responsibility for

the required inspection functions and other maintenance,

preventive maintenance, and alterations functions are ex-

ercised.

§ 121.367 Maintenance, preventive maintenance, and al-

terations program.

Each certificate holder shall have an inspection program

and a program covering other maintenance, preventive

maintenance, and alterations that ensures that—

(a) Maintenance, preventive maintenance, and altera-

tions performed by it, or by other persons, are performed

in accordance with the certificate holder’s manual;

(b) Competent personnel and adequate facilities and

equipment are provided for the proper performance of

maintenance, preventative maintenance, and alterations;

and

(c) Each aircraft released to service is airworthy and

has been properly maintained for operation in air transpor-

tation.

eo gy

27a

§ 121.369 Manual requirements.

(a) The certificate holder shall put in its manual a

chart or description of the certificate holder’s organization

required by § 121.365 and a list of persons with whom it

has arranged for the performance of any of its required

inspections, other maintenance, preventive maintenance, or

alterations, including a general description of that work.

(b) The certificate holder’s manual must contain the

programs required by § 121.367 that must be followed in

performing maintenance, preventive maintenarice, and al-

terations of that certificate holder’s airplanes, including air-

frames, aircraft engines, propellers, appliances, and parts

thereof, and must include at least the following:

(1) The method of performing routine and nonroutine

maintenance (other than required inspections), preventive

maintenance, and alterations.

(2) A designation of the items of maintenance and

alteration that must be inspected (required inspections),

including at least those that could result in a failure, mal-

function, or defect endangering the safe operation of the

aircraft, if not performed properly or if improper parts or

materials are used.

(3) The method of performing required inspections and

a designation by occupational title of personnel authorized

to perform each required inspection.

(4) Procedures for the reinspection of work performed

pursuant to previous required inspection findings (“buy-

back procedures”).

(5) Procedures, standards, and limits necessary for re-

quired inspections and acceptance or rejection of the items

required to be inspected and for periodic inspection and

calibration of precision tools, measuring devices, and test

equipment.

(7) Instructions to prevent any person who performs

Sen Se wee Ream peteeaaing any sequins banpection

(8) Instructions and procedures to prevent any deci-

sion of an inspector, regarding any required inspection

from being countermanded by persons other than super-

visory personnel of the inspection unit, or a person at that

level of administrative control that has overall responsibil-

ity for the management of both the required inspection

functions and the other maintenance, preventive mainte.

nance, and alterations functions.

(9) Procedures to ensure that required inspections,

other maintenance, preventive maintenance, and alterations

that are not completed as a result of shift changes or similar

work interruptions are properly completed before the air-

craft is released to service.

§ 121.371 Required inspection personnel.

(a) No person may use any person to perform re-

quired inspections unless the person performing the inspec-

(b) No person may allow any person to perform a

required inspection unless, at that time, the person per-

forming that inspection is under the supervision and control

of an inspection unit.

(¢) No person may perform a required inspection if

he performed the item of work required to be inspected.

(d) Each certificate holder shall maintain, or shall

determine that each person with whom it arranges to per-

a GZ

EET oh ees»

29a

form its required inspections maintains, a current listing of

persons who have been trained, qualified, and authorized

to conduct required inspections. The persons must be iden-

tified by name, occupational title, and the inspections that

they are authorized to perform. The certificate holder (or

person with whom it arranges to perform its required in-

spections) shall give written information to each person

so authorized describing the extent of his responsibilities,

The list shall be made available for inspection by the

Administrator upon request.

APPENDIX D—PLATE 1-A*

tractor orientation.

A. Vertical axis of hub inclined 2° left — view facing point

Vol.

testimony ot R.

gerated 3X for illustrative clarity — i.e.,6° = 2°

ongle).

*illustration of McGuillen’s

aa

— eo a ee

fi |

iL )

APPENDIX D—PLATE |-B*

!

!

!

I

I

!

!

!

ar

4 3X as in Plate I-A.

32a

APPENDIX E

List and Thumbnail Summary of Reported Decisions

in Civil Penalty Cases

B & M Leasing Corp. v. United States, 331 F.2d 592, Sth

Cir., 1964:

Civil penalty for violation of F.A.A. rule requiring

a commercial operator’s certificate and a second pilot

for aircraft carrying passengers where evidence re-

vealed lease arrangement was sham.

Allen W. Hayes v. United States, 264 F.2d 929, 2nd Cir.,

1959:

Where United States brought civil penalty libel for

violation of airworthiness directive requiring a land-

ing gear lock, the directive could not be challenged

in the district court procedure—administrative pro-

cedure provided for challenges to technical directives

must first be exhausted.

Rawdon v. United States, 364 F.2d 803, 9th Cir., 1966,

cert. den. 386 U.S. 909, re’h. den. 386 U.S. 1043:

Civil penalty for inspecting aircraft while inspector's

certificate was suspended.

Rosenhan v. United States, 131 F.2d 932, 10th Cir., 1942,

cert.den. 318 U.S. 790:

Civil penalty for operating aircraft without certificate

of airworthiness required by statute.

United States v. Aero Spacelines, Inc., 361 F.2d 916, 9th

Cir., 1966:

Aircraft leased exclusively to NAASA is a “public”

aircraft and operator is not required to have com-

mercial license required of civil aircraft operators.

Fae yy te ie ee ee ct ee ee a and

33a

United States v. Clayton, 198 F.Supp. 18, W.D. La., 1961:

Civil penalty for violation of C.A.B. air traffic rule

under 1938 statute.

United States v. Duncan, 280 F.Supp. 975, N.D. Tex.,

1968:

Violation of rule of F.A.A. requiring oxygen mask for

pilot at or over 25,000 ft. when only one pilot at con-

trols.

United States v. Drumm, 50 F.Supp. 451, 55 F.Supp. 151,

D.C. Nev., 1944:

Civil penalty for flying without pilot’s certificate.

United States v. Krebs, 104 F.Supp. 670, D.C. Nebr., 1952:

Venue question in civil penalty case.

United States v. Lockheed Aircraft Service International,

Inc., 202 F.Supp. 665, E.D. N.Y., 1962:

Repair station is responsible for negligent repair by

its mechanics and inspectors even though they are

certificated.

United States v. Northwest Airlines, Inc., 69 F.Supp. 482,

D.C. Minn., 3rd Div., 1946:

Airline responsible for refusal of pilot to permit F.A.A.

inspector access to flight deck for inspection.

United States v. Proper, 7 Avi. 18,173, U.S.D.C., N.Y.,

1962:

Pilot not responsible for civil penalty where F.A.A.

regulations were ambiguous as to right of inspector's

access to flight deck of aircraft and he relied on air-

line rules.