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A Rule for All Builders

Defending our privileges ... and supporting new alternatives


by Mary Jones

It’s known by many names — the 51-percent rule, the experimental amateur-built rule, the major portion rule — but it serves one purpose; it allows anyone willing to embark upon the challenge to build and fly an aircraft for their own “education and recreation.” It could be an aircraft of their own design or an aircraft they build from another’s plans or a manufacturer’s kit.

When you think about it, that’s a lot of freedom. But, “It’s a privilege, not a right,” says EAA Founder Paul Poberezny. “There’s nothing that guarantees anyone the ‘right’ to build an aircraft. We’re granted that privilege through regulations the (then) CAA created in the early 1950s. Then, as now, the words ‘education and recreation’ were specifically used to convey the government’s position that individuals could not build their own aircraft for profit or any other commercial reason.”

The privilege to build and fly aircraft of their own design was granted to aviation enthusiasts with the establishment of the experimental amateur-built category in 1952. That regulation resulted from the perseverance of early homebuilders who petitioned the government to legitimize aircraft built by the hands and minds of ordinary citizens. People like George Bogardus of Oregon, who in 1947 flew his homebuilt Little Gee Bee from Oregon to Washington, D.C., to prove the viability of such aircraft to the Civil Aeronautics Administration (CAA), the predecessor to the FAA. And people like Paul Poberezny, who in 1953 formally organized a group of homebuilders in the Midwest into this association to support those who wish to pursue that avenue to flight.

Yet change is inevitable, and the aircraft people aspire to build and fly have changed over the history of mankind’s pursuit of flight — from the designs of Leonardo da Vinci to Otto Lilienthal to Octave Chanute to the Wright brothers to … well … Scaled Composites’ SpaceShipOne.

It’s understandable that there’s a difference between what today’s homebuilders, or pilots in general, want to build and fly and what their counterparts dreamed about in the late 1940s and early 1950s. Consider the evolution of society in those intervening 50-plus years. Consider also the impact that homebuilding has had on aviation. Today, homebuilt aircraft make up approximately 20 percent of the active single-engine general aviation (GA) fleet. And much of the true innovation in aircraft design — new materials, building techniques, electronic instrumentation and flight systems, and more — has resulted from the freedom allowed homebuilt designers. There’s a reason pilots gravitate to homebuilt designs: those are the aircraft that have kept pace with technology, proven popular and created viable alternatives. Experimental aircraft have run the gamut from affordable to the technologically cutting-edge. Witness the popularity of the Cirrus design (which evolved from the homebuilt movement) and its airframe parachute recovery system and modern cockpit design, and of some of today’s new light-sport aircraft.

Over the years, EAA has on more than one occasion suggested that new regulations were needed to keep pace with the evolution of homebuilt aircraft and the needs/desires of pilots. In his Homebuilder’s Corner column in the May 1972 issue of Sport Aviation, Paul Poberezny wrote, “EAA has long supported a new sport aviation category for a manufactured light aircraft, using our past technology and the least amount of paperwork and expense upon the part of private enterprise to develop a product. Instead of being smothered by bureaucracy, we need to wear out more brakes, more engines, more propellers, more instruments, more spark plugs … so we can build a healthy and useful industry.” That text was actually a part of a paper Paul presented to the FAA’s National Aviation System Planning Review Conference on May 2, 1972.

In December 1972, Paul continued that dialogue in Homebuilder’s Corner, writing, “What about the future of the amateur-built airplane? We have been asked this many, many times…. We have been working very closely with FAA during these past several months on a project that was started over a year ago in establishing new procedures and regulations governing the operation and construction of amateur-built.… My meetings with FAA on your behalf … have been extremely well accepted. I am convinced that FAA desires to ensure the future of the amateur-built movement and the privileges we enjoy in building and flying…. We — and FAA — are very hesitant to add more rules, more regulations … for they know better than we that it is the nature of bureaucracy that once more rules are added to the books, they are very difficult to remove. On the other hand, what do we have to offer in the way of standards in the event we are called upon to answer for our actions?”

Those exact words could be written today by EAA’s government and industry affairs staff and be just as true, both in terms of EAA’s relationship with the FAA and EAA’s stewardship of the homebuilt movement … and FAA’s concern about where the homebuilt movement is going.
It hasn’t escaped the FAA’s notice that some of today’s experimental aircraft designs may exceed the construction capabilities of some amateur builders and thus may lead to the use of builder or commercial assistance beyond 51 percent to complete. This concern has been increasing in recent years and culminated in the FAA chartering an aviation rulemaking committee (ARC) during EAA AirVenture Oshkosh 2006 to examine and make recommendations on the experimental amateur-built rules. The FAA’s issue, documented in the charter for the ARC, is that some in the kit-building community are using the experimental amateur-built rules “to circumvent the normal certification regulations and procedures applicable to serial production of duplicate aircraft.”

The ARC, which was co-chaired by Earl Lawrence, EAA’s vice president of industry and regulatory affairs, and Dick Van Grunsven, founder and CEO of Van’s Aircraft (and which included FAA staffers as well as Mikael Via of New Glasair, Joe Bartels of Lancair, Dave Saylor of AirCrafters LLC, Jeremy Monnett of Sonex Aircraft LLC, Rick Schrameck of Epic Aircraft, and EAA Homebuilt Council member Joe Gauthier representing designated airworthiness interests), has met several times since AirVenture 2006. The ARC concluded its discussion on November 15 in Washington, D.C., and made a presentation to the FAA, including numerous observations and recommendations regarding FAA policies and practices, all of which supported three major conclusions:

  • First, it urged the FAA to exercise great care in adopting any new policies regarding the interpretation or enforcement of the 51-percent rule. Specifically, it cautioned against any changes that could cause currently accepted kits to be disqualified, citing ripple effects that would impact general aviation’s suppliers of technology, parts, components, and subcontracted services.
  • Second, it advised against any revisions to the existing experimental amateur-built regulations and the amateur-built category. “The committee recognized that any attempt to modify or tailor the language of the broad rules to fit one particular segment of amateur building would result in a more limited overall category. We didn’t want to hamstring the creativity and innovation that have become the hallmarks of the experimental amateur-built category,” said Lawrence.
  • Third, it recommended that FAA pave a new regulatory avenue for the considerable market of aviation enthusiasts who are interested in building and flying their own aircraft, but who may not want to be bound by the requirement to perform more than half of the construction tasks themselves.
     

Prior to the ARC making recommendations to the FAA, EAA’s board of directors voted to reiterate EAA’s support of the existing amateur-building rules and commitment to defend those rules, stating:

EAA supports the intent of the experimental “Amateur-Built” regulation and its requirement that the majority portion of the aircraft be fabricated and assembled by amateurs for their education and recreation, while maximizing safety and promoting design innovation.

“The EAA community consistently rallies behind efforts to open as many doors as possible to aviation enthusiasts,” said Tom Poberezny. “That’s why we want to protect the existing amateur-building rules, including the spirit of the 51-percent requirement, to preserve the nearly unlimited scope of that category. Under those rules, an innovator has the flexibility to construct virtually any imaginable flying machine. We don’t want to lose that freedom.”

Yet EAA also recognizes the need to find a way to meet the needs and desires of today’s builders and fliers. EAA acknowledges that a growing number of enthusiasts may want to build and fly their own airplane, but some may not want to be bound by the requirement to perform at least 51 percent of the construction tasks themselves. Accordingly, EAA is suggesting a readily available alternative for many kit manufacturers and their customers. The alternative would entail a revision to the little-known and essentially unused category in the primary category rule, which was approved by FAA in 1993. The category, called the experimental primary kit-built, established simplified methods of showing compliance with FAR Part 23 regulations to open the way for production of four-place, single-engine airplanes (up to 2,700 pounds gross weight and powered by certificated engines and propellers) for training and/or recreation.

To address the segment of fliers whose dream machine may extend beyond the amateur-built category, EAA’s board also voted to support paving avenues for kit-building approaches and builder-assistance programs that do not meet the 51-percent criterion, stating:

EAA supports the revision of the existing experimental “primary kit-built” category to make this certification category readily available to consumers who desire to build their own personal aircraft without a restriction on the amount of commercial assistance they receive.
EAA advocated the creation of the primary category to address the unique needs of general aviation’s kit-building segment and reduce the costly and burdensome requirement for manufacturers to obtain type certificates and production certificates to ensure quality standards. It’s part of the same philosophy EAA espoused in championing the sport pilot/light-sport aircraft rule; it’s about reducing the barriers that prevent or inhibit enthusiasts’ ability to fly—be they time, money, or access to affordable training or aircraft.

To that end, EAA is suggesting the FAA consider the ASTM standards process as a means to create alternative methods of showing compliance. “The breakthrough we achieved in the light-sport aircraft arena, replacing expensive government oversight with high industry consensus standards, could significantly bolster the kit-built category,” Lawrence said. “The standards already exist. It’s just a matter of the FAA recognizing those quality and safety standards for kit-built aircraft and empowering an industry-auditing group to ensure compliance.”

“EAA’s members believe in making personal flight more affordable, accessible, and achievable,” said Lawrence. “We’re looking at ways to sustain not only the ability to market a variety of kits, but also the building, owning, and flying opportunities that those products represent to our members. We believe that feasible and workable solutions exist for recreational fliers and the businesses that serve them. These issues affect a core constituency of EAA’s members, and we will push to preserve the sanctity of the amateur-building rules and to explore solutions for participants representing the spectrum of building and flying interests.”

The FAA indicated to the ARC that it will issue a Federal Register notice in early 2008, with a comment period to follow. The notice will delineate the FAA’s policy on determining the proportion of assistance provided to an amateur builder.

Meanwhile, EAA will continue to identify and advocate solutions. “Our association was founded on the principle of enthusiasts building and flying their own aircraft for educational and recreational purposes, ” Lawrence said. “That commitment hasn't changed. ”

A Little Regulatory History

The Air Commerce Act of 1926 was the first federal regulation to address civil aviation. According to the government’s Centennial of Flight website (www.CentennialOfFlight.gov), the act “charged the secretary of commerce with fostering air commerce, issuing and enforcing air traffic rules, licensing pilots, certificating aircraft, establishing airways, and operating and maintaining aids to air navigation.”

Initially, the Department of Commerce focused on rulemaking regarding safety issues and the certification of pilots and aircraft. Only aircraft that were used in interstate commerce were required to have an airworthiness certificate, but in 1931 various state legislatures began adopting their own versions of the regulations governing civil aviation and applied that requirement to all aircraft, effectively outlawing homebuilding because there was no process for a homebuilt aircraft to get an airworthiness certificate. By 1941, every state except Oregon had adopted such regulations.

World War II essentially put civil aviation in the United States on hold as efforts were focused on building the military aircraft needed to protect the country … and eventually end the war. After the war, the building and flying of homebuilt aircraft resumed. In 1947, the Civil Aeronautics Administration, which was created in 1940 to oversee civil aviation in the United States, agreed to consider a permanent category for homebuilts. In 1951, an amendment to the Civil Air Regulations was published recognizing aircraft with “experimental” airworthiness certificates, and in September 1952, the amateur-built category was officially adopted within the experimental aircraft category.

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