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Reaction on ARC Report, Moratorium

February 21, 2008 — Last week’s story on the FAA’s “51 percent List moratorium” and the Amateur-Built Aviation Rulemaking Committee (ARC) report prompted some questions and comments from EAA members. The most-asked question regarding the moratorium was also the easiest to answer: “Does this moratorium affect previously accepted (approved) kits?”

As we indicate in our Questions and Answers page, no, it does not. The list will remain exactly as is until after FAA publishes its new process revision for determining the major portion (51 percent) for amateur-builts. The FAA has left open the possibility that it may re-evaluate some approved kits after posting its new certification policy. EAA is advocating that all aircraft currently on the list should be grandfathered.

Jim Auman, an AB DAR from Illinois, mentioned he had received some calls from kit aircraft builders who thought they would be unable to certificate their finished projects. Auman assured them that this was not the case, telling them, “It (moratorium) does not, in any way, suspend the initial airworthiness certification actions of completed amateur-built kit aircraft. FAA inspectors and DARs are ready to start the certification inspection process for your newly completed aircraft.”

We also received some suggestions to change the existing rules that regulate homebuilts: “If it takes you longer to assemble the kit than it takes them to manufacture it, that's 51 percent homebuilt, right?” Currently, the FAA uses a task-based system to determine what qualifies under the rules. The agency is in the latter stages of revising those methods as we speak.

Another suggestion: “Why not just change the rules from 51 percent to 40 or 35 percent?” The ARC and the FAA are both on record as being committed to preserving the 51 percent rule and that category’s inherent flexibility, which allows builders to construct virtually any imaginable flying machine. Through EAA’s participation on the ARC, FAA has made it clear that a re-examination of the 51 percent rule would likely result in fewer privileges, not more. As a result, the industry representatives of the ARC recommended exploring alternative regulatory avenues (like the Primary Kit-built category) allowing for different levels of participation in aircraft building and flying activities.

Jeremy Monnett, CEO of Sonex Aircraft, LLC, stated in a recent open letter to the public, “Without necessarily intending it, these professional builders and companies building and selling completed and/or mostly completed aircraft are risking the entire set of Experimental Amateur-Built Rules by continuing to push them beyond their intended boundaries.” He adds, “The key to the continued success of the Experimental-Amateur Built rules depends on the consistent enforcement of the rules already in place.”

Dick VanGrunsven, CEO of Van’s Aircraft, wrote in his essay, Look Back - Look Forward - Move Forward; The future of homebuilding: “For those currently building, I am quite confident you have little to worry about. It is possible that by the time you are ready for final airworthiness inspection, the inspector may request more evidence that you did perform more than 50 percent of the construction. Unless you had significant levels of commercial assistance, there should be no problem.”

Joe Bartels, owner of Lancair, is not as positive when discussing the situation. He said he favors a different approach to determining the major portion. “Have FAA come and do an audit and determine how many hours I take to build the raw components, and even some of the fast-build components,” he said. “I don’t care if you’re a pro builder, you’re never going to be able to do it better. Thus it will take more hours and will be more than 51 percent.”

EAA continues to advocate the protection of the privileges builders currently have under the regulations and to support regulatory changes that result in lowering the barriers for members to participate in building and flying for fun.  For continuing updates on the homebuilt issue, click on the Amateur-Built Aircraft menu in the left side of the EAA website’s Government Advocacy section.

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