Back-to-Birth Traceability is STILL NOT a Legal Requirement

Lately, I have been encountering a number of people who appear to want back-to-birth traceability for articles that traditionally have not required back-to-birth traceability, like expendable articles.  The obvious problem is that when back-to-birth traceability has not been a requirement, it will often not exist for pre-existing articles.  A request for documentation that does not exist, and is not an industry norm, causes frustration for everyone involved.

An installer or other person determining airworthiness needs to have evidence to support that determination.  Evidence!  While back-to-birth traceability is certainly one form of evidence, the form of allowable evidence under current law is much broader than mere “back-to-birth traceability.”

Back-to-birth traceability has been a commercial norm for life-limited parts.  Nonetheless, in 1992, the FAA issued a Chief Counsel’s opinion letter explaining that this commercial norm is NOT an FAA requirement.

Back-to-birth traceability has NOT been a commercial norm for non-life-limited parts, like expendables.  It would be difficult to maintain reliable back-to-birth traceability for non-serialized parts, because of the difficulty in proving that the documents belong to the unserialized articles.

The FAA has repeatedly said that back-to-birth traceability is not an FAA requirement, and that traceability is not an FAA requirement.  The FAA Chief Counsel’s office issued at least three legal opinions between 1992 and 2009 asserting this.  One of the reasons that back-to-birth traceability is not an FAA requirement is because there is no regulation requiring it.  Under the Paperwork Reduction Act, the OMB needs to approve any situation where a person is required to create or maintain records – the OMB will then issue an OB control number to track that activity.  See, e.g., 44 U.S.C. § 3512 (preventing agencies from imposing any penalty for any record-keeping or other information-collection requirement unless the OMB has explicitly approved the requirement and the OMB control number is published with the requirement).  There has never been an OMB control number for back-to-birth traceability.

So if back-to-birth traceability is not a requirement, then what is a requirement?  Typically, our mission as distributors is to preserve evidence to support the ultimate airworthiness decision made by the installer.  The installer has a regulatory need to determine, at the time of installation, that the article will return the product to a condition at least equal to an acceptable/approved configuration (like type certificated configuration or STCed configuration).  E.g. 14 C.F.R. § 43.13(b).  The installer needs to use the right article (so proper identification is important) and needs to know that it is airworthy.  Airworthiness has been described in FAA guidance as (i) the article conforms to its design requirements and (ii) the article is in a condition for safe operation.  E.g. 14 C.F.R. 21.331(a)).  The installer needs evidence to support this conclusion, but the FAA regulations do not limit the forms of evidence that may be used.  FAA Chief Counsel opinions have addressed this and found that one could rely on a variety of different forms of evidence (traceability is just one way to develop the evidence).

Incidentally, when a designee makes a determination about airworthiness of an article the designee uses the same metrics (conforms to design requirements and is in a condition for safe operation).  The designee may then document that finding by issuing an 8130-3. So the same standards that apply to an installer’s determination of airworthiness could also apply to a designee’s determination.

There is a variety of sources of evidence that the industry has traditionally used to support an airworthiness determination. The regulations require Production Approval Holders (PAHs) to assure airworthiness of any articles they release before those articles are released.  Therefore, evidence that the part was released by an FAA PAH is sufficient to show that the part was airworthy at the time of release.  FAA guidance has made it clear that this does not mean back-to-birth traceability – but rather some lesser level of evidence.

FAA AC 20-62E explains, under the heading “PAH’s Documents or Markings,” that “Documents or markings such as shipping tickets and invoices may provide evidence that a part was produced by a manufacturer holding an FAA-approved manufacturing process.”  I have had people ask me about whether one may rely on packaging as evidence that a part came from a PAH. Packaging typically bears the PAH name and/or other marks that reference or represent the PAH. Such marks are protected from misuse under laws like the Lanham Act.  The Lanham Act provides both criminal and civil penalties for counterfeiting or other misuse of a PAH’s name or mark.  Part of the reason that the industry can rely on things like PAH packaging is because the law protects against counterfeiters who might try to spoof that packaging.  For reasons like this, industry generally relies on credible PAH packaging and commercial documentation.

Similarly, I have had people ask “what about counterfeiters who might spoof packaging or paperwork?”  There was famous tale in the 1990s of a counterfeiter who spoofed the Pratt and Whitney logo, but printed the Eagle upside-down.  Ultimately, though, modern technology makes it easy to create bogus paperwork (much easier than creating bogus parts), so insistence on back-to-birth traceability is not a sound strategy for counterfeit avoidance.  Packaging is a little harder to spoof, so it is potentially slightly more reliable than documentation.  But ultimately, we need to rely on our system of laws and industry norms to protect us.  Just as we do not assume everyone on the street is going to murder us, we also cannot assume that every article we receive is counterfeit.  Instead we rely on the convention that packaging and paperwork will be genuine,and that it is safe to rely on them; and then we apply counterfeit avoidance mechanisms to support that convention.  So that is part of why we rely on normal packaging and paperwork  as evidence that the part came from a PAH and was airworthy at the time of release.

Don’t forget that evidence of PAH sourcing – alone – may not be enough to install an article.  Articles can suffer damage or degradation, so the second half of the airworthiness analysis (“in a condition for safe operation”) also applies.  If we know that the article was airworthy in the past, and is unused, then the installer merely needs to assess whether the article has suffered damage or degradation since that release.

Designees and installers have historically relied on things like PAH packaging, PAH shipping tickets, PAH packing lists, etc. as evidence of sourcing from PAHs during their inspections.  The receiving inspection AC (FAA AC 20-154) explains that inspection is “[t]he act of testing or checking a product or part thereof against established standards to assure it conforms to its design requirements and is in a condition for safe operation.”  Note that the goal in that sentence is to assure that the article “conforms to its design requirements and is in a condition for safe operation” – these are the traditional elements of airworthiness.  This section goes on to explain that “Inspection could include documentation review, visual inspections, bench or functional tests, preservation (condition), packaging, technical data, or shelf life limits are a few examples to consider.”  So the FAA has explicitly recognized that checking documents and packaging is a part of the airworthiness check.

It is important to remember that industry’s obligation is to have sufficient evidence to support airworthiness decisions – not to have a ‘magic document’ nor back-to-birth traceability.  Documents from credible sources (like airline commercial documentation asserting identity and condition of the article) can be used as evidence of PAH sourcing, or of other important facts.