AircraftOwner Online

    If you own, or are thinking of owning, an aircraft manufactured in another country and imported into the United States, you should be aware of the ruling of the NTSB in a recent case. Here are the facts as a prospective purchaser would see them:

    The Aerospatiale Alouette II helicopter has been manufactured in France since the 1950’s and has been used as a military aircraft. At least 70 Alouette II helicopters have been imported into the United States and have been given Normal Category Standard Airworthiness Certificates by the FAA. The particular helicopter involved in this case was manufactured in September of 1959 and went directly to the German military. The Buyers purchased a helicopter with a US Normal Category Standard Airworthiness Certificate, and with an existing N registration, as one of three Alouette II helicopters they were considering for purchase, all of which had US registration numbers and Normal Category Standard Airworthiness Certificates. The FAA had previously issued a Type Certificate – No. 7H1 – for this model helicopter. An FAA Designated Airworthiness Representative (DAR) had issued the Standard Airworthiness Certificate for the helicopter. The helicopter in question had been the subject of an “attestation” written on the letterhead of “Aviation Civile” which stated “Although we have not inspected ourselves [helicopter SE 3130 – Alouetter II S/N 1312], we can certify . . . on the basis of the information listed on the individual record inspection log book at Erocopter’s, that . . . the basis design of the above mentioned helicopter . . . was at the time of manufacture . . . compliant with DGAC Type Certificate No. 1 and with the FAA Type Certificate No. 7H1”. The FAA expressly agreed that the helicopter was safe for operation.

    The Buyers bought the helicopter for $165,000.00 and put it to work in a commercial operation.

    The FAA had, since 2004, had concerns with military surplus helicopters. The FAA, unbeknownst to the public, had formed the “Charter Quest Special Emphasis Investigations Team” based out of the Alliance Airport in the Southwest Region, for the specific purpose of looking through the documentation of each of the foreign military surplus helicopters operating on Normal Category Standard Airworthiness Certificates to make sure that they each had proper documentation that the French Government had issued an appropriate letter after an inspection of each particular helicopter. If they did not find such a document, the FAA would then issue an Order of Emergency Revocation of the Airworthiness Certificate of the helicopter. That is what happened here. (In prior columns, I have written about my perception that the FAA is abusing their power to determine that an emergency situation exists. This is just one more example of that. In this case, everyone agreed that the aircraft was perfectly safe to operate, and that the only alleged problem was a problem of documentation. In fact, at the time of the hearing, the FAA had issued an “Experimental Airworthiness Certificate” to the same aircraft. So, what was the “emergency”?)

    Now, dear reader, you might be asking yourself, “well, didn’t these buyers have a letter from the French Government?” And the answer would be, “sort of”.

    It turns out that the actual arm of the French Government which has the power to issue Type Certificate Data Sheets is called the “Direction Générale de l’Aviation Civile (DGAC).” Our buyers had an attestation from the “Groupement Pour la Securite Aviation Civile (GSAC)”. This entity shares the same logo as the DGAG.

    The Trial Judge, in his Order, stated: “I think it was brought up and brought to our attention that the fifteenth revision to this type certificate data sheet identifies these people as being the same as the DGAC of France or the civil aviation authority over there.” The NTSB itself, only noted in its opinion: “Groupement Pour la Securite Avaition Civile appears to be a French organization separate from the DGAC, but involved in promoting aviation safety by conducting inspections.”

    (I find it alarming that neither the FAA counsel, nor the attorney for the buyers – or for that matter the NTSB, appear to have even performed a Google search of this group. If they had, they would have known that, according to the GSAC: “The Direction G‚n‚rale de l’Aviation Civile (DGAC) has delegated to the Groupement pour la S‚curit‚ de l’Aviation Civile (GSAC) the responsibility to carry out aeronautical technical inspection tasks in its name. The GSAC is a public-private economic interest group, grouping together DGAC, Bureau Veritas and SOFREAVIA. It carries out inspections and checkings of aircrafts, aircraft parts and gears, in France and other countries. It audits institutions in the design, production and maintenance fields, including the engineer training institutions. The inspections, checkings and audits serve the purpose of issuing and renewing airworthiness certificates and permit to fly, aircraft operator certificates, design, production and maintenance approvals, ground mechanic training organisation approvals, aircraft station licenses (LSA) and ground mechanic licenses. In other words, the GSAC is, in fact, the entity that has been delegated the authority to inspect for compliance with the requirements of airworthiness certificates on behalf of the DGAC. This is why they share a common logo.”)

    Both the Judge and the NTSB seemed to get this distinction somewhat, although the FAA contended to the end that the GSAC is not the French government, therefore, the buyers’ certificate came from the wrong people.

    What tripped up the buyers ultimately, however, was the first sentence fragment of the attestation that they did provide: “Although we have not inspected this helicopter...” The actual Type Certificate Data Sheet No. 7H1, issued by the FAA for the Aerospatiale Alouette II helicopter, specifically provides, however: “A U.S. Airworthiness Certificate may be issued on the basis of a Certificate of Airworthiness for Export signed by a representative of the Secretariat General a l’Avaition Civile containing the following statement: ‘The helicopter covered by this certificate has been examined and found to comply with U.S. Civil Air Regulation Part 6, dated January 15, 1951, including Amendments 6-1 through 6-8, and with the Special Requirements notified to the Government of France by the Government of the United States of America and conforms to T.C. 7H1.’ “This type of certification by a foreign Government is known as a “Certificate de Navigability.”

    There was nothing that the buyers could produce to show that any arm of the French government, whether that be the DGAC itself, or the GSAC acting as the delegated representative of the DGAC, had actually inspected the aircraft at the time of export to assure the United States Government that no modifications had been made which might have caused the aircraft not to have complied with the French Type Certificate No. 1 or the US Type Certificate No. 7H1.

    “But”, you might ask, “didn’t a US Designated Airworthiness Representative inspect the helicopter to determine that it was airworthy and safe for operation before granting the helicopter a Normal Category Standard Airworthiness Certificate?” Yes, one sure did. In fact, the way it worked is that an A&P went over this helicopter and its logbooks with a fine-tooth comb and decided that it was airworthy. The A&P then certified this finding to the DAR, who made his own inspection, agreed, and issued the Standard Airworthiness Certificate. The statement of a DAR is considered the act of the FAA Administrator himself, since the DAR is the Administrator’s designated representative.

    However, and this cannot be stressed enough, the concept of “airworthiness” – as interpreted by the FAA and the NTSB is not simply a certification that the aircraft is safe for operation. The test for “airworthiness” is a two-pronged test, the first prong of which is that “the aircraft is in compliance with its Type Certificate Data Sheet.”

    What really happened here, and it is not the first time this has happened, nor is it likely to be the last, is that the FAA changed its mind. Even though there were some 70 buyers out there who had acted in good faith, and had relied on the A&P’s who inspected the logbooks and the helicopters, the DAR’s who inspected the logbooks and the helicopters, the FAA Certification Branch which issued the Type Certificate for the helicopter back in 1951 (when it was the CAA), and who registered the aircraft in N registry, the FAA decided that it no longer liked the fact that people were using these older foreign military surplus helicopters for commercial operations. So they set up a special unit to go out and find ways to declare these helicopters “un-airworthy” and to revoke their certificates on an emergency basis.

    The Administrative Law Judge was extremely apologetic to the buyers throughout his opinion. In speaking about cases like this where the Administrator changes his mind, he stated: “Once the Administrator takes that action, it’s extremely unfair to the folks that it’s directed to, but at the same time, you can’t help but step back and say, well, what other choice did the Administrator have under the circumstances?” When the FAA tried to blame the buyers, saying that the buyers had not done their due diligence, the Judge shot back: “He (the buyer) went out there with three of these helicopters. They looked at the airworthiness certificate. They looked beyond the airworthiness certificate. They looked at the logbooks and records, and they believed that because it did have an airworthiness certificate and these other records from the Administrator that it was a good buy, and they paid $165,000 for that aircraft. And now, with this emergency order of suspension, even though it has an experimental certificate, it cannot be used for any of the purposes they talked about and that they had used it for before, because you can’t use an experimental aircraft for commercial purposes..”

    Also in responding to the Administrator’s argument that the buyers didn’t perform their due diligence, the Judge said: “one of [these arguments] was that these people didn’t do their due diligence, but they did. If there’s anybody that didn’t do their due diligence, it was the representatives of the Administrator in not following up on this.”

    Nevertheless, the Administrative Law Judge felt that he had no choice and suspended the Standard Airworthiness Certificate for the helicopter. The buyers appealed to the NTSB. The Board was also somewhat sympathetic to the buyers, saying: “We note that DAR Cernuda’s and Mr. Marrs’s mistakes are troubling, and we sympathize with respondents’ position that they relied upon the FAA to issue a standard certificate of airworthiness for N225RW only if the aircraft was airworthy. However, we have previously held that such errors do not prohibit the FAA from taking action against a certificate.”

    There are important lessons to be learned from this case. While most modern aircraft being manufactured in foreign countries apply for, and receive, US Type Certificates at the time of their manufacture, and are approved for direct sale by dealers in this country – as opposed to having to be imported from their country of manufacture – many older aircraft lack this documentation. The rules for each of these aircraft are different, and must be understood at a great level of detail by the people who wish to buy and operate them in the United States. Buyers of older foreign aircraft should be aware of this.

            In addition, it is important for aviators to understand that each Flight Standards District Office and Regional Center has the ability to assemble Special Emphasis Investigation Teams. This is being done more and more in recent years. These teams generally operate more-or-less in secret, with little or no public notice, with the goal of correcting a perceived problem that is not isolated. Such a team led to the shutdown of TAG, allegedly for issues concerning control by a foreign company; and other similar matters. They are often heavy-handed, developing new ways of looking at regulations to support their conclusions, gathering evidence under the cover of inspections of other, seemingly-insignificant matters, and then pouncing all at once, bringing the work of the subject of the investigation to an immediate standstill with no warning, and using expedited procedures to force the subject to gather his evidence and present his defense in less than thirty days all the while trying to pay attorneys without any present cash flow. Is it unfair? You bet it is. In a true “emergency” as most of us understand it – when there is imminent danger of death, personal injury, or property damage – it makes sense for the FAA to use these powers. But using them to enforce a policy change with regard to paperwork violations having nothing to do with safety, is simply wrong at every level.