Government-Sourced Parts: Why Do We Care?

We are periodically asked about parts that have been sourced from “government” aircraft.  The concern is raised because standard industry documentation frequently recommend certifications about government sourcing (or lack thereof).  This can cause confusion, sometimes, about what represents a government source and what does not.

The root cause for this disclosure is a recognition that most aircraft are maintained to common civil standards in accordance with ICAO standards, but that the ICAO civil aircraft maintenance standards do not apply to public use aircraft.  E.g. Maintaining Public AircraftFAA Advisory Circular 91.91 § 1.3 (Oct. 19, 2016) (explaining that the FAA has no statutory authority to regulate public aircraft, and the government operator therefore remains responsible for ensuring adequacy of maintenance).

Consequently, used aircraft parts that have been removed from public aircraft might not have been maintained according to the standards that are commonly used for civil aviation maintenance.

 

What is a Public Aircraft?

 

U.S. law defines a public aircraft as an aircraft used exclusively for United States Government purposes, or state government purposes.  The definition includes any aircraft exclusively leased by the government of a state or U.S. territory for at least 90 continuous days and an aircraft owned or operated by the armed forces or chartered to provide transportation or other commercial air service to the armed forces.  49 U.S.C. § 40102(a)(41).  The reason that the aircraft parts community cares about public aircraft is because public aircraft do not need to be maintained to the same standards as civil aircraft.

 

What Has the FAA Recommended About Parts from Public Aircraft?

 

Because parts from public aircraft may not have been maintained to normal civil standards, the FAA has expressed concerns over them.  It is not illegal to use them, but the FAA wants their nature disclosed, so that an installer can ensure airworthiness at the time of installation (or an overhauler can ensure airworthiness at the time of overhaul).

The FAA has recommended that where a part was obtained from a non-certificated aircraft, including a public aircraft, then that fact should be so-identified by some type of documentation. Eligibility, Quality, and Identification of Aeronautical Replacement Parts, FAA Advisory Circular 20-62E, chg 1, § 10(c)(1) (Sept. 14, 2018).

 

Industry Standards for Parts from Public Use Aircraft

 

The FAA’s recommendation in AC 20-62E has been implemented through certain industry standards – most notably ASA-100.  ASA-100 recommends that the seller provide a statement disclosing whether the aircraft parts were “previously installed in a public aircraft, such as a government use aircraft or a military aircraft.”  Aviation Suppliers Association Quality System Standard, ASA-100 § 10(b)(2) (rev. 4.0).

In similar language, ATA Specification 106 recommends that used aircraft parts obtained from non-certificated aircraft be disclosed , unless the part is already accompanied by an 8130-3 that was completed as an approval for return to service.  The guidance provides examples of the sort of sources that should be disclosed, including “public use, non-U.S., and military surplus aircraft.

 

Mitigating Factor

 

A mitigating factor in all of this is that today, many public aircraft in the United States are operated and maintained as if they civil aircraft.  Through the 1980s, the United States has begun to recognize that they were not receiving adequate value on aircraft and aircraft parts that were sold at auction.  One reason was the significant expense associated with verifying airworthiness on such aircraft before they could be used for civil purposes. To remedy this, the U.S> government started maintaining its aircraft consistent with FAA (civil aviation) standards.

This eliminates the differences that caused the industry to be cautious about such public-aircraft-sourced parts.  It makes the affected public-use aircraft parts technically equivalent to comparable parts used in civil aviation.

Despite this, under current federal standards, a federal agency that sells or transfers aircraft parts to a non-federal party must provide the buyer with the following statement:

Warning to purchasers/recipients. The aircraft parts you are purchasing or receiving in an exchange may not be in compliance with applicable Federal Aviation Administration (FAA) requirements. You are solely responsible for bringing the aircraft into compliance with 14 CFR Chapter I, or other applicable standards, by obtaining all necessary FAA inspections or modifications..”

41 C.F.R. § 102-33.360(a)(2).

In addition, the purchaser must sign the a lengthy warning and disclaimer statement at the time of sale – this statement is supposed to be retained by the government seller.  Id.  These steps are meant to ensure that the U.S. government has adequately warned the buyer of the potential for non-compliance.

 

“Government Aircraft”

 

People in the industry often use the term “government aircraft.”  They come by this term honestly – the Office of Management and Budget publication OMB Circular No. A-126 (Improving the Management and Use of Government Aircraft) (May 22, 1992) uses the term “Government Aircraft” to mean the federal government’s public aircraft.  OMB Circular No. A-126. at 5(a).

The term “public aircraft,” alone, is well-understood.  But the use of the shorthand term “government aircraft” as a proxy for the concept of public aircraft has led a number of people to ask me whether the term “government aircraft” applies to airlines that are government owned. This is an obvious point of confusion.

Typically, in order for the air carrier to hold itself out to the public and offer carriage, it must be certificated under the home nation’s civil aviation rules.  This means that the air carrier’s aircraft are not (typically) flown as public aircraft. Thus, the mere fact that the air carrier is owned by the government does not imply an airworthiness question requiring a specific disclosure.

Obviously there are potential exceptions, such as where an airline wet-leases an aircraft (on an exclusive basis) to the government (this may be a public operation).

 

 

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About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. He represents several aviation trade associations, including the Aviation Suppliers Association, the Aircraft Electronics Association, the Air Carrier Purchasing Conference, and the Modification and Replacement Parts Association. He also represents private clients drawn from the spectrum of the aviation industry.

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