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| Proposed Changes to the 51 Percent Rule for Amateur-Built Aircraft | Oct '08 |
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| By Robert B. Schultz, Attorney at Law |
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It's one of the simplest regulations in the FARs, yet it's generating an enormous amount of controversy—FAR 21.191(g). Operating amateur built aircraft. First a primer. No aircraft can operate in the United States without an airworthiness certificate. At first glance, ultralights would seem to be an exception. But the FAA has never classified them as aircraft. They are called ultralight vehicles.
There are two kinds of airworthiness certificates, standard and special. Only aircraft whose design has been approved by the FAA by issuance of a type certificate are eligible for a standard airworthiness certificate. All other airworthiness certificates are special, which allow the aircraft to be operated for limited purposes. Within the category of special airworthiness certificates are those issued for various "experimental" purposes. And one such experimental purpose is for the operation of so-called amateur or homebuilt aircraft "by persons who undertook the construction project solely for their own education or recreation."
To qualify for this special airworthiness certificate, the amateur builder must certify to the FAA that he or she built the "major portion" of the aircraft. The two words, major portion, are not defined anywhere in the FARs and therein lies the controversy. This rule, which has come to be known as the 51 percent rule, is extremely ambiguous. Does major portion refer to weight, size, complexity, time, tasks, etc.? In advisory circular 20-139—Commercial Assistance During Construction Of Amateur-Built Aircraft—the FAA defined major portion as "the majority of the fabrication and assembly tasks have been performed by the amateur builder(s) who submit the application for certification." That definition seems simple enough on its face. Fabricate means build parts and assemble means put parts together. The FAA even provided a sample Fabrication Assembly Operation Checklist in AC 20-139. It's broken down into major aircraft components such as fuselage and wings. Each component is then further broken down into tasks such as "fabricate wing spars" and "assemble aileron structure." After each task, there are spaces for check marks indicating whether it was accomplished by the builder or commercial assistant or both. The problem arises when both a builder and assistant legitimately work on a task. For example, if the assistant does almost all of the work fabricating a wing spar and the builder drills one hole, both can legitimately check their respective boxes as having accomplished this task. If all the boxes are checked by both the assistant and the builder except for one check by just the builder, under this FAA provided documentation, the builder built the major portion and is entitled to an amateur built airworthiness certificate.
This ambiguity has led to abuses where "amateur-built" aircraft are built by commercial builders allowing the amateur to simply show up at appropriate times for photo-op to display in a builder's log. It's not that amateurs do not want to build aircraft. The fact is, many new aircraft sold as kits are far too complex to be built by amateurs. These kits included turboprop and jet aircraft that, in many cases, outperform production aircraft. So, as a practical matter, it would arguably be unsafe to allow these aircraft to be built by amateurs.
To address these issues, in July 2006, FAA established the Amateur-Built Aviation Rulemaking Committee, made up of representatives from the FAA, aircraft kit manufacturers, commercial assistance center owners and associations. It was to make recommendations regarding the use of builder or commercial assistance when fabricating and assembling amateur-built aircraft. In its final report, dated Feb. 14, 2008, the committee concluded that FAA directives and advisory circulars regarding commercial assistance for amateur-built aircraft are inadequate and that the forms used in determining the amateur-built status need to be updated to more accurately reflect who actually performed the fabrication and assembly of the aircraft. Ironically, they still could not agree on how to define "major portion." Nonetheless, as a deterrent, they recommended more FAA enforcement actions for egregious violations of the major portion rule—a rule that they could not define—and they recommended against changing the rule!
On Feb. 15, 2008, the FAA published a notice in the Federal Register seeking comments on its "proposed minimum percentage of fabrication and assembly" for amateur-built aircraft. In addition, the FAA also sought comments on a proposed revision to the chapter on certification of amateur-built aircraft in FAA Order 8130.2F and a new draft advisory circular, AC 20-27G, Certification and Operation of Amateur-Built Aircraft. The draft AC amends the definition "major portion" that of the 51 percent to be built by the amateur, "the amateur builder must fabricate at least 20 percent of the aircraft kit and assemble at least another 20 percent. The remaining 11 percent may vary between fabrication and assembly."
This notice set off a firestorm of comments by the amateur aircraft builder community, most of which opposed any changes to the system. I agree. The system is flawed, but it does work. The number of builders who violate the 51 percent rule, either in spirit or in fact, is tiny compared with the huge number of legally amateur built. As they say, if it ain't, broke don't fix it.
Robert B. Schultz practices law in Denver and specializes in aviation law nationwide. He can be reached at bob.schultz@airportjournals.com and welcomes your comments and questions.
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