A recent National Transportation Safety Board (“NTSB”) decision is a reminder that a properly maintained and safe aircraft isn’t necessarily airworthy unless it also meets the technical requirements of its type certificate.
Administrator v. Krivitsky and Jablecki involved an Aerospatiale Alouette II helicopter that was manufactured in 1959 in France. At that time, the FAA issued Type Certificate No. 7H1 for the helicopter which required a certification from the state of manufacture indicating that the aircraft was examined, tested, and found to meet the applicable airworthiness requirements of the Federal Aviation Regulations.
In 2004 when the helicopter was imported into the U.S., the owner applied for a standard airworthiness certificate and certified that the helicopter was airworthy. Additionally, an airframe and powerplant mechanic certified that he had inspected the helicopter and found it airworthy. Based upon these certifications, a Designated Airworthiness Representative (DAR) determined that the owner had met his burden of showing that the helicopter met the requirements for a standard airworthiness certificate in the Normal category for the helicopter and the DAR issued the certificate.
However, the FAA subsequently suspended the standard airworthiness certificate of the helicopter alleging that the helicopter did not comply with 49 U.S.C. § 44704(d) (issuance of an airworthiness certificate requires that the aircraft conform to its type certificate and be in condition for safe operation) and 14 C.F.R. §§ 21.183(c) and (d) (issuance of standard airworthiness certificate for an import and/or used aircraft requires that the aircraft conform to its type certificate and be in condition for safe operation).
After some legal wrangling the FAA’s case boiled down to the claim that, prior to importation, the helicopter was not inspected by the French government and certified as being in an airworthy condition as required by the helicopter’s type certificate data sheet (“TCDS”). Although the helicopter owners did have an attestation from the French Aviation Civile, the French equivalent of the FAA, stating that the helicopter was manufactured according to its French and U.S. TCDS, everyone agreed that the French government had not inspected the helicopter before it was imported into the U.S.
The Hearing Before the ALJ
After a hearing before an NTSB administrative law judge (“ALJ”), the ALJ issued a decision in favor of the FAA. The ALJ initially observed that the FAA had failed to perform its due diligence when it wrongfully issued the original standard airworthiness certificate. The ALJ went on to note that the helicopter was, in fact, in a safe condition. However, the ALJ concluded that, despite the FAA’s error, the helicopter did not fulfill the requirements of its TCDS because it had not been inspected by the French government prior to importation. As a result, he held that the FAA had met its burden of proof and affirmed the FAA’s order of suspension.
The Appeal to the Full Board
The helicopter owners then appealed the ALJ’s decision to the full Board. The helicopter owners argued that the attestation they obtained from the French government, along with the fact that the helicopter was in a condition safe for flight, was sufficient to render the helicopter eligible for a standard certificate of airworthiness, Normal category. After all, the DAR, a representative of the FAA, had determined that the helicopter was eligible for a standard airworthiness certificate.
Not surprisingly, the Board agreed with the FAA and the ALJ. The Board noted that in order for an aircraft to be airworthy, it must (1) conform to its type certificate and applicable airworthiness directives; and (2) be in a condition for safe operation. Typically, the cases before the Board emphasize the importance of the second prong of the test. However, the Board observed that the first prong is a “critical component of airworthiness.”
Based on the plain language of the TCDS, the Board concluded that the helicopter was not eligible for a standard certificate of airworthiness, Normal category, because it was not inspected by the French government prior to importation to the U.S. The attestation produced by the helicopter owners did not fulfill the terms of the TCDS because the TCDS required inspection of the helicopter and the attestation clearly stated that the French government did not inspect the aircraft. As a result, the Board determined that the FAA’s evidence demonstrated that helicopter owners had not satisfactorily shown that the helicopter met the requirements of its type certificate.
Similar to the ALJ, the Board also commented on the improper issuance of the airworthiness certificate by the DAR. The Board found the mistakes “troubling” and sympathized with the helicopter owners’ position that they relied upon the FAA to issue a standard certificate of airworthiness for helicopter only if it was airworthy. However, the Board also noted that, unfortunately, those types of errors do not prohibit the FAA from taking action against a certificate.
What can we learn from this case? First, technical requirements matter to the FAA. Not only must an aircraft be in a condition safe for operation, obviously, but it must also meet any other technical requirements of its TCDS and/or the regulations under which the aircraft will be operated. Second, and probably more troubling to most of us than it was to the Board, we cannot always rely upon representatives of the FAA. If a representative of the FAA makes a mistake and you rely upon that mistake, beware. The FAA can still take action to “correct” the situation.
This may not be a surprise to most maintenance providers, but when it comes to FAR compliance, the buck stops with you.
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