Dafydd Llewellyn

What about 95.10 aircraft? Is there a straightforward and cost effective path for them in this brave new world?

I hesitiate to shoot from the hip, but in principle there is no reason I can see why appropriate clauses cannot be added to CASR Part 91 to accommodate all existing classes of RAA aircraft. If things go this way, it will need a group of RAA operators to sit down with CASA as a working party and thrash out how it can best be done. So I would suggest that it would be prudent to start pulling together a committee for this purpose, and for that committee to start acquainting itself with how it works in NZ; do your homework, in other words. It's useless approaching CASA unless you have a pretty well-formulated proposal, and you need to learn CASA-speak as well. However I would expect that such a well-prepared committee would get a reasonable reception from CASA. Picking the right political moment would also be wise.

 

 

Total agreement, Dafydd. I run a VH registered aeroplane and don't see CASA as an ogre. It is like much of the public service with mainly good people, some incompetents, and a few rogues all headed by tree-climbers. I don't mind the last-named but put my own crampons away years ago.Incorporation into GA experimental with variation may be the only viable option into the future given that further deregulation is extremely unlikely and the status quo is looking untenable.

 

Do you fly your L13A-1 as a glider pilot or as a licence holder these days?

 

Kaz

Take a look at how Primary Category and LSA aircraft are covered in FAR Part 91 - or the NZ part 91. The current -19 registered RAA aircraft would go into the paragraph on Experimental Category, in Part 91. It's really very straightforward. What will be needed is some appendices to Part 43 to cover the maintenance of these aircraft.

 

I was speaking figuratively in regard to the Blanik - it's still awaiting a part, to complete the life extension. I could fly it either way, but plan to do so under GFA since I hold an extensive GFA mantenance authority, and they have an "independent motorglider operator" provision these days.

 

 

Whilst you are considering how RAAus might be restructured in the future, may I suggest that you also look a little further?

 

RAAus may or may not survive this current debacle - which has been building for a decade, not just a few years - after appearing to be prospering enormously. This sort of boom-and-bust pattern is something I have observed more often than I like; and its effect in this current instance will be to drive people away from aviation, which to me seems a huge and completely unnecessary waste.

 

In the event that RAAus does implode, one of the possible scenarios is that CASA will cancel CAO 95.55, and follow the NZ - US model, by pulling recreational aviation into Part 91 of the CASRs. I realise that it is something of an article of faith amongst RAA members that CASA is the ogre in the piece, but my experience from a professional lifetime of dealing with CASA and its predecessors does not bear this out; CASA has its share of obnoxious officious idiots, union pushers, career climbers, and really good people, like any sizeable organisation. It's not out to destroy aviation, but it may accidentally trample on it. I would suggest that you extend your thoughts to dispassionately evaluate that possibility, because I am far from convinced that it is necessarily anathema, by comparison with what is happening as a result of the mis-management of RAAus.

 

All the CAO 95 series associations suffer from a fundamental flaw - which is that the professional staff are under the control of the elected representatives, who simply do not have sufficient knowledge of the subject to comprehend what the constraints are under which the professional staff have to function. In a complex regulatory scenario such as aviation, this puts intolerable pressure on the professional staff, and makes it impossible for the organisation to employ the calibre of professionals it really needs. RAAus will not be able to employ the "right" people, because those people will not work under that sort of setup. The "we don' need no steenking professionals" philosophy is not going to work.

 

So I would question whether the real message at this point, is not that the 95.55 type of experiment is actually a failure? Recreational aviation is here to stay; however it does not have to be run by amateur associations in order to do so; look at the NZ and US scenes. A more stable form of regulation may be more constructive in the long run.

 

What can one forsee if 95.55 is superseded by a paragraph or two in CASR part 91? Firstly, the existing RAA pilot certificates will have to become recreational pilot licences; that's hardly a pain. Secondly, there will have to be a suitable reconciliation of the existing RAA maintenance arrangements - probably via maintenance autorisations similar to those already issued by CASA for VH-registered experimental /amateur built aircraft; this is likely to be the major area that would present difficulty in such a change-over, so it's where some thought and possible consultation with CASA is needed right now. Thirdly, the bulk insurance scheme will likely be unworkable - tho it looks pretty shaky right now. I've owned and operated a couple of GA aeroplanes in my time, and these issues are not really all that great.

 

I am not a stakeholder in RAAus, so I have little interest whichever way it goes - but I think the current situation offers an opportunity to at least realistically consider this alternative. Now please excuse me, I'm off to fly my experimental motorized Blanik.

 

 

Thank you Daffyd. That's all I read into the section, too.Perhaps I was being too obtuse? I was looking to have you make the nexus between the effect of the legal personality of CASA and the failure of RAAus to advise CASA of potential risk based on your in-depth knowledge of the processes and agreements in place between them. I hadn't been able to locate a mandated obligation to do so in the documents available to me until now.

 

In the 2010 version of the Deed of Arrangement between CASA and RAAus (I have nothing more recent) there are provisions dealing with Auditing and Monitoring. While the major thrust of the Deed seems more aimed at accounting for the money contributed by CASA than good management, clause 9.2 states:

 

"If at any time, in the opinion of the Responsible Officer or Specified Personnel, the Schedule Functions are not being carried out with due diligence and competence and in an efficient and effective manner, or in accordance with this Deed, the Organisation must take all action necessary to minimise further expenditure in relation to the Schedule Functions and to inform CASA immediately."

 

I can see no "penalty" for failing to do so, however.

 

While I have reservations about the enforceability of indemnities, I also note that clause 13 states that RAAus indemnifies CASA in respect to claims arising from the Organisation's ...negligent... acts or omissions.

 

It seems to me, based on the above, that it is encumbent on the General Manager (and the Tech Manager) to notify CASA of these latest issues (and probably many more) without delay. It also seems to me that RAAus is likely to carry a very large part of any future financial burdens if it can be shown that it was negligent in its performance of its aircraft registration functions.

 

Regards

 

Kaz

Thanks, Kaz - I don't have that document; however you are obviously correct.

 

 

Section 8.2 of the Civil Aviation Act 1988 says:

 

(2) CASA:

 

(a) is a body corporate with perpetual succession;

 

(b) shall have a seal; and

 

© may sue and be sued in its corporate name.

 

Note: The Commonwealth Authorities and Companies Act 1997 applies to the CASA.

 

That Act deals with matters relating to Commonwealth authorities, including reporting and

 

accountability, banking and investment, and conduct of officers.

 

If CASA is sued as a consequence of a failure of RAA to disclose that its registration of an aircraft was invalid (work it out yourself)

 

 

IF a new broom revisits those categories, it will find some issues too, surely? Nev

Manufacturers of these aircraft are very likely to have, or be considering, a higher-weight LSA variant. This may offer some opportunities, but there are two difficulties with that path:

 

Firstly, the retro-active application of the higher weight would only be possible if it can be established by the manufacturer that there is no physical alteration between the two models. It is very easy to add a few layers of cloth in the layup, to provide the added strength - and if anything of that sort is done, then the earlier production aircraft will not be eligible for the weight increase. This rests upon tight control of the documentation of what is termed "design conformity" between the models, and that discipline is often lacking in an inexperienced manufacturer. Secondly, it would involve the manufacturer in satisfying the certificating authority rather than merely satisfying himself - which is likely to be difficult to do retroactively.

 

If the higher weight variant is a type certificated model, the second of these difficulties goes away - but the first one remains.

 

The game is far from played out yet; but delving into these possibilities is hardly the function of the RAA Technical Manager, who is surely up to his eyebrows as it is. David Isaac is quite correct that the poor fellow has no freedom in these matters. And I agree that letting the cat out of the bag in small dribbles, as each individual aircraft comes due for re-registration, is asking for trouble - look at S 8.2 of the Civil Aviation Act.

 

 

To give any sort of answer to that, I need to clarify the definition of maximum take-off weight (MTOW):

 

From the design/certification point of view, the MTOW is the lesser of:

 

(1) The maximum weight for which compliance was demonstrated (to the satisfaction of the certificating authority) with the structural design requirements (of the relevant design standard);

 

(2) The maximum weight for which compliance was demonstrated with the flight handling and stability requirements;

 

(3) The maximum weight for which compliance was demonstrated with the performance requirements.

 

So an increase in the maximum certificated weight generally requires a re-run of just about the entire certification.

 

However, it sometimes happens that the designers anticipate a need to increase the weight in the future, as part of the growth of the product, and if they are that far-sighted, they show compliance during the original certification at a higher weight than they request for the actual certification, or perchance than the category weight limit that happens to apply at that point in time in their part of the world. Not many are this far-sighted, but one can hope.

 

Because the certification of (especially) a composite airframe relies wholly on physical testing, this means all the relevant tests - which are normally witnessed by the certificating authority - would need to be done for some higher weight than that for which certification was finally granted.

 

If this fortunate situation happens to apply in the case of an aircraft type that is caught up in the current RAA debacle, the possibility of a subsequent increase in weight being endorsed by the original certificating authority (which will have the records of the original testing on file) is a real possibility, in the terms of the Gary Carr email.

 

If this fortunate situation does not exist, then the only possibility would be for the manufacturer to re-run his certification at a higher weight - which would cost him pretty much the same as certificating a new model. You do not need to be an expert to judge the liklihood of this; however it's not impossible.

 

Failing either of these options, the owners now have a single-seat aircraft. They can seek redress from either the vendor (good luck!) or they can try a joint action against RAA/CASA for negligence, or they can simply put up with it. I would be extremely annoyed if I were in this situation myself, but I believe the above is the reality of the situation.

 

So far as the RAA is concerned, it has in two instances to my personal knowledge, arguably overstepped its authority as defined by CAO 95.55 by accepting an aircraft type at a higher weight than the certificated weight; I can only assume that this is also the case for all the other affected types. In one of these cases, it can be proven that it did so on the basis of invalid data, some of which was fraudulent. Again, I can only assume that this may also be the case in other instances. In such a situation, I would imagine that the RAA could be shown to have been negligent and thus liable. So the implications would appear to me to be potentially disastrous for the RAA. I would expect CASA to also be liable, because it is ultimately responsible for the actions of the RAA. The question must also arise, in view of the high turnover of Technical Managers, whether the RAA management exerted undue pressure on the Technical Managers.

 

Whether or not RAAus can plead Caveat Emptor will depend, I suggest, on the significance placed by the Court on the fact that the RAA registration and the Flight manual are the only authoritative information available to a purchaser that the increased MTOW is valid.

 

 

No, my understanding is that the limitation of the list of "recognised countries" (which has altered enormously since 2003, due to the advent of EASA) is only relevant in regard to CASR 21.029A, which covers automatic issue of a Type Acceptance Certificate on the basis of the foreign TC. CAO 95.55.1.6 does not restrict acceptance to "recognised countries" but broadens it to "contracting States" (which means States that are signatories to the ICAO convention). However, where the aircraft is from a contracting State that is not a "recognised country", the "must issue" clause of CASR 21.029A does not apply - so RAAus would not be able to use that as a defence if it wrongly accepted an aircraft from such a country.

 

In regard to LSA aircraft, these do not have any form of Type Certificate and therefore the question of Type Acceptance Certificates does not arise. Instead, the manufacturer certifies that the aircraft complies with the LSA design standard. These do not come under CAO 95.55.1.6; they are covered by CAO 95.55.1.8 and 1.9 - and iv VH-registered, under CASR 21.186. Their MTOW is what the manufacturer says it is in his certification, unless the rules in the receiving country set a lower limit.

 

 

Thanks David,Would it not be entirely reasonable then for a manufacturer/ importer/distributor to engage a subpart 21M (formerley CAR35) engineer to check the design records, do certain calculations and assessments and issue an Australian Type Certificate for say a Pipistrel to a higher engineering acceptable weight and that would end the problems?

But of course that would require someone to put their hand in their pocket for some $10 to 20K, but that would be satisfactory for all aircraft of that type would it not?

No, that would not solve the problem. Whilst CAR 35/ subpart 21M engineers who have had some experience of aircraft type certification would be knowledgable insofar as being able to recognise the nature of submitted documentation, the requirements set out by Gary Carr make it quite clear that the assessment and acceptance must be done by the original certificating authority, who must also issue a Flight manual for the increased MTOW. Also, if you read CASR Part 21 subpart B, you will see that the data that are required under 21.029A are only the summary documents, whereas the original certificating authority must be supplied with the complete Type Design (for definition, see 21.031). The difference between the two is enormous; a full TC exercise for a finding of compliance requires a full exposure of the whole of the Applicant's IP, and it is a very large task. The cost is likely to run to the better part of half a million dollars, not $10 to 20K.

 

Further, CAR 35/subpart 21M authority holders do not, ipso facto, have the authority to issue a Type certificate. Under CASR 21.33(3), authorised persons may be appointed (on a specific project basis) to find compliance with specific paragraphs in the design standard; this is under the overview of CASA, not in isolation, and the eventual TC is issued by CASA. In some countries, the certification of recreational aircraft is delegated by the NAA to a body which is recognised by the NAA as being competent to do so, as reflected by CAO 95.55.1.6.(i)(B), but there is no such recognised body in Australia.

 

The requirements for a Australian TC for an imported aircraft that does not have a TC from its country of origin would apply, and these are given in CASR 21.029, and this would require the original foreign TC holder to supply his entire IP to the Australian representative and thence to CASA, and it would be every bit as large a task as a new Australian TC exercise.

 

In regard to your previous question as to the responsibility/liability of RAAus, I would add a rider to my previous answer:

 

Fitness for flight requires three things: (1) The aircraft must be designed correctly; (2) It must be built correctly; (3) It must be maintained correctly. In the mainstream of aviation, a Certificate of Airworthiness covers the first two of these, and should strictly be considered as a "certificate of eligibility to be airworthy if correctly maintained". A C of A is a pre-requisite for a Maintenance Release; and a Maintenance Release is a pre-requisite for flight.

 

In the RAAus system, neither a C of A nor a Maintenance Release exists. Therefore, RAA members have nothing other than the RAAus registration to indicate whether their aircraft will be airworthy when correctly maintained. Thus, the RAAus Certificate of registration is seen, for want of anything else, as the de facto equivalent of a C of A. This presents to the RAAus membership, an illusion of a standard of safety that does not in fact exist, in view of your comments.

 

 

David,Thank you for such informative information.

It has long been my understanding that the onus is on the manufacturer / importer / distributor to provide complying documentation if they want a particular MTOW increase beyond the Type Certificate issued by the NAA. The documents produced to RA Aus in an attempt to have the higher MTOW approved by Type Acceptance Certificate (TAC) issued by RA Aus must meet the requirements laid down by CASA as you have described. If it subsequently turns out that the documentation provided by the manufacturer / importer / distributor did not meet the requirements or was misleading or was subsequently found fraudulent then the TAC issued by the RA Aus would no longer be valid. Is it the responsibility of the RA Aus or the manufacturer / importer / distributor for the validity of the documentation? I would have thought the latter.

 

Clearly the invalid nature of certain documentation is the contentious issue with a number of brands of aircraft currently registered by RA Aus carrying TACs to a higher weight than can be legally supported and why the RA Aus is refusing to re-register these aircraft until an amended TC by a recognised NAA can be produced to the higher MTOW.

 

I had assumed in this RA Aus debacle that there was something wrong with the documentation in and even if it was initially ‘accepted’ by RA Aus either in good faith or in error, the responsibility go back to the manufacturer / importer / distributor who must prove his performance claims legally? The manufacturer / importer / distributor must prove the weight capacity and based on the legality of the ‘proof’ the RA Aus can issue a TAC for registration to the revised MTOW.

 

I would have thought the RA Aus is not being bloody minded for the sake of it, and refusing the documentation for no valid reason. There clearly is a major problem with the TACs and the current Tech Manager appears to have inherited a problem of mammoth proportions.

 

I am not sure as to how valid my view point on this is, but if I were such an aircraft owner and I had a contract with one of the manufacturer / importer / distributors (who clearly gained commercial advantage from the weight increase that they had advertised the aircraft to); I would have a case under the CCA (Consumer and Competition Act formerly Trade Practices ACT) against the manufacturer / importer / distributor for fraudulent and deceptive advertising among other things. I don’t see how the RA Aus is at fault here apart from (in good faith) issuing an unintentionally invalid TAC.

David, yes, the onus is on the applicant (be that the manufacturer, the importer or the distributor) to provide the documentation. It is certainly not CASA's or the RAAus's function to do so. In the case of a non-recreational aircraft, CASR Part 21.029A requires that:

 

21.029A Type acceptance certificate for imported aircraft certificated by NAA of recognised country

 

Subject to regulations 21.029B and 21.029C, CASA must issue a type acceptance certificate for an aircraft manufactured in a foreign

 

country, without making the type acceptance certificate subject to any conditions, if:

 

(a) a foreign type certificate or equivalent document issued by the NAA of a recognised country is in force for aircraft of that type; and

 

(b) the applicant has given CASA:

 

(i) evidence that the type design has been approved by the NAA of the recognised country by issue of a type certificate or equivalent document; and

 

(ii) details of any equivalent safety determinations or waivers (however described) that were made in the course of the type certification; and

 

(iii) a copy of the applicable type certificate data sheet; and

 

(iv) a copy of the flight manual that contains all the available options applicable to the type, and that was approved by the NAA that issued the foreign type certificate; and

 

(v) a copy of the manufacturer’s instructions for continued airworthiness of the aircraft; and

 

(vi) a copy of the parts catalogue for the aircraft; and

 

(vii) a list of all current field service documents applicable to the aircraft; and(viii) an undertaking from the holder of the foreign type certificate to continue to supply to CASA service bulletins and instructions for the continuing airworthiness of aircraft of that type and any amendments of the documents mentioned in subparagraphs (iv), (v), (vi) and (vii).

 

Note the word "must" in the second line. Also note the words "of a recognised country" in the fourth line. Recognised countries are defined in CASR 21.012; so such automatic acceptance does have some constraints. Since, in regard to aircraft accepted under CAO 95.55.1.6(a), RAAus is acting in lieu of CASA, I would assume that it would also be bound by CASR 21.029A. In 2003, the recognised countries listed in CASR 21.012 were:

 

(a) Canada;

 

(aa) Federal Republic of Germany;

 

(b) New Zealand;

 

© The French Republic;

 

(d) The Kingdom of the Netherlands;

 

(e) The United Kingdom;

 

(f) The United States of America.

 

So the Type certificate for the Pipistrel issued by the French DGAC would qualify for such automatic acceptance.

 

The question of the duty of care of either CASA or RAAus to ensure that they are not presented with fraudulent documents by the applicant, is outside my area of expertise; however, (for example) a purported flight test report of testing conducted, under the Euro registration, in a European country, that is dated three months after the aircraft concerned received its Australian registration (which requires a certificate of deregistration from the country of export), I would expect to cause some questions to be asked. Also, the accepting authority must surely be sufficiently competent to recognise what the documents it receives actually are. So I would imagine that gross negligence in these regards would be actionable.

 

Subject to the above, I consider your view of the matter to be entirely correct.

 

 

I wonder (for example) if the Foxbat weight increase ref their web site http://www.foxbat.com.au/public/editor_images/2011 November Final b_3.pdf for the model 22L is in fact legal. It states that the certificate only needs to be placed in the flight manual. The factory have approved the increased weight but with conditions such as reduced "G" loadings etc.

Depends on whether it complies with the requirements specified in Gary Carr's email. If it does, then RAAus can presumably issue a revised Type Acceptance Certificate. If it doesn't, caveat emptor.

 

 

DafyddThanks for the clarity its good of you to share. Its a paperwork area that I'm not at all familiar with in a civilian context.

 

So, to pose a query:-

 

1) Faraway land manufacturer X manufactures an Aircraft IAW one of the acceptable LSA standards and presumably has Faraway land equivalent of CASA issue a type certificate.

 

2) Australian importer of the Farawayland flyer has CASA review the Faraway land type certificate and presumably they or CASA issue an acceptance certificate that mirrors the type certificate.

 

3) Farawayland manufacturer subsequently see benefit in having their aircraft certified to a higher Australian MTOW and as such undertakes a series of engineering analysis's and potentially destructive testing done with a view to proving that lifting the MTOW is safe.

 

4) Faraway land airworthiness authority writes, on request from the manufacturer, to CASA identifying that the manufacturer has done analysis and testing to prove that a higher MTOW is achievable on their aircraft and that they Farawaylands airworthiness authority have overseen and accepted the results, presumably the very initial analysis was done only up to the point that the Farawayland local UL regulations allowed rather than what the actual aircraft design and manufacture allowed.

 

5) At this stage can the RAAus or CASA acceptance certificate be reissued or upissued for MTOW to reflect the new analysis, or must a new type certificate be issued?

 

Andy

Andy, in the case of a non-recreational aircraft type, CASA would issue the TAC; this is standard practice for imported certificated aircraft types. In the case of recreational aircraft, RAAus issues the TAC. The requirement for subsequent increase of the MTOW was set out in a CASA email in 2003.

 

 

 

It would appear that there are registration problems for a number of European sourced aircraft where RAAus is now repudiating historical RAAus issued type certificates and as such the seemingly only way forward for those members who may well have been historically flying at weights in excess of 544kg are being asked to go back to 470ish Kgs MTOW. Realistically for those in this situation it makes an aircraft that had a useful load that was indeed useful to an aircraft with a useless load. An example being 2 80kg humans and 10L fuel.....I had heard 3rd hand that Flight Designs and at least some of the aircraft that Michael Coates imports have been caught up I this issue. I had also heard that these were being dealt with as they came due for registration. Can anyone confirm or deny? If its true who amongst the members of this site are caught up in this issue?

 

If it were me, and I had a $100k plus aircraft that was suddenly made effectively unsalable, I'd be out looking for blood.....

 

All of the above is sourced 3rd hand it may or may not be true and if you have a Flight Designs or Michael Coates sourced aircraft it may well be worth checking out before the rego falls due and you cant fly......

 

Anyone? Any other aircraft caught up in this issue?

 

Andy

Firstly, RAAus does not issue type certificates, it issues type acceptance certificates. The two are quite different; see CASR Part 21.013A and CASR 21.029A. A TC under 21.013A requires the issuing authority (CASA in that case) to make a determination that the design of the aircraft complies with a relevant design standard. That requires a level of technical competence that is not posessed by RAAus. (I say this from the perspective of having been involved in that capacity in two Australian type certification exercises.) By contrast, a TAC under CASR 21.029A is an acknowledgement that a Type Certificate has been issued by the National Airworthiness Authority of a recognised foreign country. COA 95.55.1.6(A) in effect allows RAAus to issue a TAC based on the foreign type certification. It does NOT allow RAAus to increase the MTOW beyond that given in the foreign TC; however I have evidence of two instances in which it has done precisely this. It would appear that the CASA audit has found a numer of such instances, and is now requiring the situation to be corrected.

 

Secondly, many aircraft design standards require that the aircraft must be able to carry either (i) Full fuel plus an 86 Kg pilot; or (ii) full seats (86 Kg occupant weight) plus fuel for one hour. The reason for this is that full tanks with pilot only is useful for a positioning flight, and full seats with one hour's fuel is the minimum acceptable safety standard. With such ridiculously tight category limits as the Euro microlight standard, one can understand why manufacturers are forced to do this. So purchasing an aircraft is caveat emptor, and it really pays to read the fine print. However some importers of aircraft of this ilk, have gone to great lengths to try to try to get the MTOW increased to the Australian category limit of 544 Kg, instead of the Euro limit of 450 Kg (472.5 Kg with a ballistic recovery parachute system); I am aware of one such case where the importer resorted to outright fraud.