The New Kitbuilt Rules: Endangering the Freedom of the Many for the Excesses of the Few

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As we in the aviation journalism field prepare to slouch aboard crowded, pay-extra-for-the-checked-bags airliners (hoping against hope that we'll actually get there the day we intend to) aimed generally toward Oshkosh, we do so knowing that fireworks could be in our future-and I don't mean the kind associated with the aerial exhibitions.

Just two weeks before the big show, the FAA, months late, finally dropped into our world drafts of revised and combined Advisory Circulars that dramatically change the requirements for licensing Experimental/Amateur-Built aircraft and complicate the situation almost beyond belief. From an initiative that began to weed out the flagrant violators in the homebuilt world-the shops and companies that will build you a complete airplane with little to no involvement of the "builder"-the FAA has expanded the "guidance" to such an extent that core builders, the men and women toiling away for years in their garages, will be burdened by nonsense requirements, flustered by inconsistent (contradictory, even) language and helped not at all to make their airplanes safer.

A bit of background. An advisory panel was formed last year to look into the "problems" if "excessive commercial assistance," and the initial findings were published in February,. A draft of revised rulemaking was supposed to appear this spring. In fact, the draft of the new rules appeared in the middle of July, with a substantially shorter comment period than the industry was given to understand. We have 30 days, until August 15, to comment; those on the advisory panel believed it would be 60 or even 90 days. As this is written, the EAA has petitioned for an extension to the comment period. It's my view that the short comment period is a tactic to reduce the blowback of the new rules, which you have to assume the FAA knew would be wildly unpopular. In the proposed changes, which will cause current guidance ACs to be superseded, simple and effective rules that have worked for decades have been supplanted by a new, complicated set of guidelines that, at their most onerous, specifically require a certain amount of "fabrication" from builders. In past guidance, the terms assembly and fabrication were used interchangeably.

When applied honestly-that is, when the builders didn't perjure themselves on the documents that go with every Experimental/Amateur-Built aircraft that proclaim the builder to, in fact, be the builder-the combination of these terms have worked extremely well.

Let's understand fabrication. In the past, builders created airplanes from largely raw parts-cutting and welding steel tube, for example, or working with foam cores over which fiberglass cloth and wet resin were applied. But the industry has inextricably moved on to where builders are working with far more complete basic, structural components. Fiberglass (and Kevlar and carbon fiber) shells are premolded using high-technology tooling that offers much better form control and consistency.

Even the common aluminum kits come with a high degree of fabrication, particularly of critical structural items; these pieces fit together like a high-quality puzzle, and don't often need hours with a hacksaw or file to make fit. Very few of the popular kits I know of that use steel tubing require any welding by the builder at all. Maybe if you're trying out for a welding job this experience would be useful, but for the vast majority of the modern builders, who are scared stiff of welding, requiring them to spark up a torch is a bad thing.

Into this, the FAA has decided that it wants a certain amount of "fabrication," namely 20percent. In the draft documents, the 51percent of the kit that is the minimum to be left to the builder is broken down by 20percent assembly, 20percent fabrication, and 11percent that can be either. Never before has the FAA required a specific amount of fabrication; the previous rules said simply that the builder had to commit the majority of the assembly and fabrication, though every modern kit I can think of includes some degree of pure fabrication.

And then there's the issue of just what fabrication is. In the guidance, the FAA says this means working from "raw" materials. But how raw is raw? If you have a composite airplane, do you have to go back to raw glass and foam? Or can you get credit for working with seaming materials-say, installing a strip of glass that joins two other prefabricated pieces? This is one area where the working group was at odds with the FAA, and it seems that the group's recommendations have been ignored.

I spoke at length with Dick VanGrunsven about the proposals, and he said that the FAA had come through Van's Aircraft and run a test of the new checklist on the popular RV-7 quickbuild kit. It passed the 20percent fabrication level, but not by a lot. I asked if the RV-10, which is a more advanced kit, would pass and Dick said he didn't know; it hadn't been run through the same checklist. And as for the RV-12, it's difficult to say, but the high level of prefabrication seen on that kit would, near as I can tell, put it right on the edge.

On this issue of defining fabrication, the EAA has decided that it will fight the FAA on at least the requirement for a certain percentage. According to the EAA's Earl Lawrence, "EAA will be opposing the 20 percent fabrication requirement in favor of a simple majority portion of the tasks. EAA believes that there is just too much debate and opinion as to what is fabrication and what is assembly, what is the definition of the two etc. for builders to wade through all of this." The EAA is going to push the idea that "a task is a task is a task," which is how the previous set of rules were laid out. If a builder did a "task," say, build a rib, he simultaneously received credit for fabrication and assembly, even if the vast majority of the true effort was assembly.

In order to define who did what, the FAA has created Figure 9-3: Amateur-Built Fabrication and Assembly Checklist, which consists of 187 tasks and breaks them down. A column is used to define what has been done by the manufacturer, what was done by commercial assistance, what was assembled by the builder and what was fabricated by the builder. In a stark turnaround from previous indication, where the FAA opposed the idea of multiple credit among various entities for a specific task, the new checklist allows the builder to define, by 10percent increments, who did what. For example, Task 1 is "fabricate longitudinal members."

The maximum value for any line is 1, so the manufacturer might be listed as 0.5 and the builder 0.5, if he fabricated half of the longitudinal members. But what is half? How do you define it? By steps in the process? Time? Effort? It takes an automated stamping machine about a second to pound out a wingrib, but it could take a builder days to complete the same task by hand. (And do I have to point out that the professionally manufactured rib, with its locating holes, is almost certainly a better, more consistent part than one hammered on a workbench next to the washer and dryer by an amateur builder?) More troubling is that some major components are now on that list. For example, one line says "Fabricate engine propeller." Assuming the builder did not create his own propeller, that line scores a 1.0 for the Manufacturer/Kit/Part/Component line, which takes away a point from his own participation. In the past, purchasing such critical items as the propeller didn't count for or against the builder, or even factor into the computations determining major portion. Now the prop is joined by such things as the engine mount and exhaust system, which, if the builder does not fabricate (presumably from "raw materials") counts against his efforts. Does the FAA really want builders welding their own exhaust systems?

This Fabrication and Assembly Checklist continues down to a tally chart at the end, where the points are supposed to add up and create percentages of the effort. Given that the manufacturer can have only 49percent, maximum involvement in the basic structure of the airplane, the total remaining assembly and fabrication columns must add up to 51percent. And the fabrication column alone must be 20percent or more. If it's not, the FAA is supposed to reject the application.

Commercial assistance is next on the list. Back to that form. The column next to Manufacturer is Commercial Assistance. Any commercial assistance is deducted from the manufacturer's score; as it's written, the builder gets NO credit for any commercial assistance, even if he is intimately involved during that time. Worse than that, the ability for builders to get credit for educational assistance has been removed.

And while the new rules continue to leave overall construction of the engine, avionics, interior (and painting) outside the realm of the checklist, a few items have been snuck in. For example, the builder has to "fabricate instrument panel." By placing this item on the task list, it removes it from the free category and requires the builder to specify how much was done by the kit maker, how much by himself, and how much by commercial assistance. If, for example, the kit he's working from has a 49percent completion rate, and the builder honestly admits that his panel was professionally built, that line becomes a 1.0 under Commercial Assistance, and the airplane is no longer eligible.

Potentially the worst aspect of these new rules is the strain it puts on the DARs, or designated airworthiness representatives, who are the foot soldiers for the FAA in the Experimental world. These independent inspectors, who regularly (and rightly) charge a fee to "sign off" on Experimentals, are going to be put to a massive amount of work and responsibility under the new rules. In many places, the new draft documents refer to the FAA as making a determination, but you can read that as DAR. In many parts of the country, FAA inspectors outright refuse to come and inspect Experimental/Amateur- Built aircraft, citing workload.

What happens in the next few weeks-and just how the FAA responds to what should be a torrent of negative feedback from the builder community, which will be incredibly hard done by these changes if they go through as written-will be interesting to watch. The EAA's responses have been measured, careful and much calmer than I could manage, but that's why I'm not in government affairs. Builders need to speak up and be counted, we need to be outraged by the confusing, contradictory and utterly unnecessary new requirements that, as I said at the outset, do absolutely nothing to improve safety or help builders complete better aircraft. It's long been supposed that the FAA is out of the business of encouraging safety and is now entrenched in pure bureaucracy.

These draft Advisory Circulars prove it.

Comments (29)

Marc, Great article. The industry brought this on themselves through rampant abuse of the original 51% rule. No one builds their own airplanes or engines anymore Everything is pre-fab and pre-punched. The contract builders were the last straw. As usual, government overreacts...

Posted by: Steve Zeller | July 26, 2008 10:31 PM    Report this comment

I agree Marc. Further, I thought the FAA was a "safety" authority.... this proposed rule doesn't make flying or the public at large safer. It actually has the potential to make it MORE DANGEROUS than it needs to be! Talk about moving away from the "Spirit and Intent" of the original rules.

Please add the location on the FAA's website where we can all go to voice our comments.... we have limited time to comment due to the delay from the FAA... so let's make our voices heard! This is still the USA from what I understand, right? thanks, Josh

Posted by: Josh Olson | July 28, 2008 10:24 PM    Report this comment

I agree. A system like this focuses too much on specific itemized requirements and classification of tasks performed, and in doing so distracts from the overall craftsmanship and safety of the final product. It seems to me that theoretically, an aircraft that was built to match the requirements of the new rules and given the green light could be of an inferior quality than one built to the existing rules, provided all the little boxes were checked.

Posted by: Ted Meyer | July 29, 2008 12:40 AM    Report this comment

The FAA is charged with promoting aviation and the safety thereof. It is not charged with promoting, nor is it qualified to support, vocational education. Yet the stated purpose of the A/B certification rules is education and FAA has openly stated that safety is not the driving issue. The safety of A/B aircraft is unquestionably improved by making the new kits as "idiot proof" as possible and by the participation of those qualified to offer commercial assistance. The new guidance discourages both on the dubious ground that they interfere with the educational mission. Even taking the educational mission fiction at face value, the new guidance makes no sense. Whoever heard of educational policies being implemented by guidance that prohibits students from hiring teachers? The FAA needs to prevent the exploitation of A/B certification to get around certification rules for commercial production but the new guidance is remarkably inept in achieving this objective. The principal effect of the new guidance will be to materially detract not only from the practical ability of the program to work for any significant number of potential builders but also from the actual safety of the end result. The FAA should listen very carefully to the considered comments of the EAA and others whose practical understanding of the issues is vastly greater than the FAA's.

Posted by: JOHN HALLE | July 29, 2008 10:36 PM    Report this comment

The FAA is charged with promoting aviation and the safety thereof. It is not charged with promoting, nor is it qualified to support, vocational education. Yet the stated purpose of the A/B certification rules is education and FAA has openly stated that safety is not the driving issue. The safety of A/B aircraft is unquestionably improved by making the new kits as "idiot proof" as possible and by the participation of those qualified to offer commercial assistance. The new guidance discourages both on the dubious ground that they interfere with the educational mission. Even taking the educational mission fiction at face value, the new guidance makes no sense. Whoever heard of educational policies being implemented by guidance that prohibits students from hiring teachers? The FAA needs to prevent the exploitation of A/B certification to get around certification rules for commercial production but the new guidance is remarkably inept in achieving this objective. The principal effect of the new guidance will be to materially detract not only from the practical ability of the program to work for any significant number of potential builders but also from the actual safety of the end result. The FAA should listen very carefully to the considered comments of the EAA and others whose practical understanding of the issues is vastly greater than the FAA's.

Posted by: JOHN HALLE | July 29, 2008 10:36 PM    Report this comment

I agree with those who ask, "Why are we even talking about a 51% rule?" It has nothing to do with safety. I think the fault lies with the homebuilder community for acquiescing to that rule from the start. We are fighting the wrong battle. Let's resist the encroachment of the bureaucracy into where it does not belong. The hardest part of the battle may be to change the minds of the old-guard EAA guys.

Posted by: TOTILA GRANDBERGS | July 30, 2008 12:11 AM    Report this comment

Personally, I see no reason, nor Constitutional authority, for our government to intrude on our citizens' freedom to commission the construction of an aircraft.

The FAA's jurisdiction should be, and probably is, limited to assuring that a given aircraft is (or is not) _safe_ for operation in the National Airspace System, nothing more.

By what authority does the FAA presume to govern armature builders' participation in fabrication and assembly of aircraft seeking a Experimental Airworthiness Certificate?

FAA should be solely concerned that the aircraft in question poses no unacceptable hazard to the operator, passengers, and public, nothing more.

Clearly the FAA has overstepped its purview for decades in regulating the activities of armature aircraft builders.

This entire Armature Build oversight by the FAA belies the FAA's desire to shield their Type Certificate program and the commercial manufacturers that have a vested interest in suppressing marketplace competition.

If the FAA is going to permit the sale of armature built aircraft licensed as experimental, and operation of those aircraft by certificated non-builder airmen, then the ban on commissioning one to be built for you seems at least arbitrary and inconsistent with the FAA's objectives.

Posted by: Larry Dighera | July 30, 2008 11:30 AM    Report this comment

Here's the link to enter you comments on Docket ID: FAA-2008-0797: http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=FAA-2008-0797

Here's where you can enter your comments on extending the comment period on FAA NPRM Docket ID: FAA-2008-0823: http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=FAA-2008-0823 Comments Due by: Sep 30, 2008

Posted by: Larry Dighera | July 30, 2008 11:31 AM    Report this comment

Marc,

After reading your excellent summary and critique of the announced revisions to Chapter 4, Special Airworthiness Certification, Section 9 of the FAA Order 8130.2F, Airworthiness Certification of Aircraft and Related Products, and the Advisory Circular (AC) 2027G, Certification and Operation of Amateur-Built Aircraft, I rushed to read the NPRM in docket FAA-2008-0823. It is impossible for me to consider these "proposed" rule revisions as anything other than the death of kit building as we know it.

Some of us rather naively hoped that the rule revisions being considered by the FAA would address the current state of the kit building industry in a positive way. Rather than taking this opportunity to recognize how advances in the industry have resulted in increasingly sophisticated and unquestionably safer amateur built aircraft, the FAA has chosen to look backward more than 20 years and resurrect an outmoded internal directive, FAA Order 8130.2B. I suspect this reliance on outdated precedent rather than forward looking imagination reflects an over abundance of attorneys as opposed to pilots and innovators in the FAA rule making division / bureaucracy. Sorry, that was a cheap shot.

Larry Simpson

Posted by: Larry Simpson | July 30, 2008 5:36 PM    Report this comment

Four and a half years ago I embarked upon an incredible journey in building an RV7A. I invested something more than 2,000 hours of thinking, studying, reading, drilling, dimpling, bucking, wiring, designing, fabricating and learning the aircraft as it slowly went together. I purchased a firewall forward automotive conversion. I made extensive use of various experienced kit builders and paid experts in specific specialties (fiberglass, electronics, and painting to name a few) that I worked side by side with to help me translate my ideas into reality. Since this was a quick-build kit, if I read the rules correctly, I had used up almost all of the 49% non-builder contribution by the time the sub-kits arrived. Under the new rules could I use the help of those experts who taught me the necessary skills and helped me avoid a myriad of pitfalls in the process of building a safe and capable machine? It does not seem so.

And that is just wrong.

Larry Simpson

Posted by: Larry Simpson | July 30, 2008 5:37 PM    Report this comment

I'm wondering... who gains, and who loses, if these rules are adopted? Does the FAA need or want an EAB market? And if it doesn't... ?

Posted by: Unknown | July 30, 2008 9:22 PM    Report this comment

Mark, great comments above. After attending both forums early in the week, I question what the FAA's response and reaction will be.

My concern is the fabication issues the FAA has proposed.

The FAA has inspected kits and been happy with the level of "fabrication" required by the builder. That's what the kit list is designed for. So what goal is meant to be achieved by the new fabrication rules?

It was my understanding the issue at hand was excessive "after the kit was sold" commercial assistance.

-Brian Warner brianW@freedom-aviation.com

Posted by: Brian Warner | August 1, 2008 9:51 AM    Report this comment

All this is to say, the FAA needs to enforce the 51% Rule that EAA has established. It doesn't take a Rocket Scientist to know, the FAA has never really enforced the Rule. All the FAA has to to do is what the IRS does with the income tax. Charge several well known professional builders and buyers once a year with a federal crime for "circumventing" the 51% rule. Therefore, honesty returns to the system. You violate the law at your own peril. It only takes a few to ruin it for the many. A little self policing might help too. It's very simple. If you did not build over half of your kit, you can't work on it. What's needed a "Custom Category" for those individuals that are not builders but have lots of money. Estabishing a separate category would accomodate the quick build kits that need professional help and special jigs/tools.

Posted by: Norman Gracy | August 2, 2008 9:11 AM    Report this comment

Marc, excellent write-up as usual. EAA made a big deal out of "affordable flying" this year. This month's EAA magazine's theme features an affordable flyer built for $6500.00. If I understand this new rule, this airplane would not be able to be built. It used a lot of surplus components from other aircraft in its construction. What is the FAA's true motive? Are they trying to make it so hard that people won't do it anymore? I agree with the other posts here. Enforce the rule that is in place now, punish the few that have gone overboard and leave the rest alone.

Posted by: Rick Pellicciotti | August 5, 2008 9:18 AM    Report this comment

Marc,an oxymoron is a Sport Pilot flying an expensive SELSA with a glass cockpit,gilhooleys galore and bragging about the cost, how fast it is and that its IFR rated.

Posted by: Norman Gracy | August 5, 2008 9:34 AM    Report this comment

I take exeption to "Totila Grandbergs remarks about "old Guard." Lets face it the handwriting is on the wall- the older generan is passing on. The "old guard" has the experience, knowledge and wisdom to keep the 51% Rule. Without the rule, you don't have the EAA! The younger generation has had a free ride. They haven't paid their dues.

Posted by: Norman Gracy | August 5, 2008 4:37 PM    Report this comment

Norman, would you please explain how it is that the EAA cannot exist without the 51% rule? To me it appears to benefit only the certified aircraft manufacturers. I wish them no harm but I also see no need to abridge our rights to build our own aircraft as we choose, as long as they are safe.

Posted by: TOTILA GRANDBERGS | August 5, 2008 5:05 PM    Report this comment

What is the purpose of specifying any percentage built by the purchaser? Is it to protect the aircraft manufacturers or is it a safety measure? Wouldn't if be safer the higher percentage was not build by the purchaser? Please let me know the reason for the 51% rule in the first place.

Posted by: S Morgan | August 5, 2008 6:55 PM    Report this comment

Gentlemen. it's very simple. Build over half and you can work on it. The 51% Rule has existed for years and it works, If it ain't broke don't fix it! We are a nation of laws. The 51% rule keeps the system honest! Those that circumvent it will be in violation of the law! The 51% Rule protects the A/B aspect of why the EAA exist.

Posted by: Norman Gracy | August 5, 2008 7:45 PM    Report this comment

I agree with the comments that we should not be limited in how much or how little we assemble or fabricate but since the FAA and EAA have established some correlation between how much work a person does on their plane to the "right to repair" the plane there may be a simple solution to this to appease both the FAA and the builders. If you build a kit that is virtually "all assembly" and no "fabrication from raw materials" then your repair work on that kit should have the same limitation. Should a homebuilder be allowed to repair a welded fuselage if during the building process he never had to do any welding? That doesn't seem right.

So insteand of the 51% rule how about the kit builder determining what repairs a homebuilder could make by the work required to put the kit together. Simply stated if you fabricate something from raw stock then you are qualified to make repairs using the same process. If you assemble a prefabicated part from the factory and it needs repair then you may have to buy the replacement part from the factory to make that repair unless you demonstated similar fabrication skills on a similar part in the airplane. Seems to me the focus ought to be on demonstrated skill sets not what % of the plane you built.

Posted by: FRANK SMITH | August 6, 2008 7:19 PM    Report this comment

Franklin,

I believe you're on the right track here.

By the same token, if a pilot wants to commission a kit to be fabricated and assembled for him by the kit manufacturer or a job shop, the FAA should permit that with the requirement that maintenance and inspections be performed by FAA certificated airframe and power plant mechanics, and IAs. Seems reasonable to me.

Posted by: Larry Dighera | August 6, 2008 7:28 PM    Report this comment

Gentlemen; Here it comes ready or not! The FAA will assess the health of ASTM compliance by manufacturers. If they find noncompliance, violations of law follows. See Aug, 7 www.avweb.com The 51% Rule will remain intact is the word I'm getting. Doing away with the 51% Rule is like throwing the baby out with the bath water. If you want the 51% A/B experimental priviledges, learn the skills required.

Posted by: Norman Gracy | August 7, 2008 6:32 AM    Report this comment

Mr Gracy your comment: "Build over half and you can work on it. The 51% Rule has existed for years and it works, If it ain't broke don't fix it!" 51% rule has nothing to do with being able to work on it or not.

Posted by: Jerry Springer | August 22, 2008 10:09 AM    Report this comment

Mr.Springer, if you want a "Repairman Experimental Aircraft Builder Certificate" you'll have to convince the FAA you built 51%. As for working on your plane; I hope an inspector doesn't drop by your hanger and ask to see your cerificate. Mine is framed and hanging on the hangar wall.I agree with you. If the 51% Rule isn't broke, don't fix it! We don't want the few to ruin a good thing for the many.

Posted by: Norman Gracy | August 22, 2008 10:44 AM    Report this comment

Mr Gracy, anyone can work on it,(I am not saying that is wise) you only need the repairman certficate to do an condition I do have the repairman certficate for my RV-6 and have had several over the 35+ years of building and flying experimental aircraft. Once again 51% rule has nothing to do with repairman certficate

Posted by: Jerry Springer | August 22, 2008 12:28 PM    Report this comment

Mr.Springer I have the correct certificate for working on my experimental 51% kit amphibian. I agree it isn't wise to work on a plane you didn't build. Having been a mechanic/pilot in aviation since 1953-owned three aircraft and flew 48 types both USAF/Commercial/Private, I know when not to work on a plane. I'm comfortable working on my kit amphibian. The 51% Rule exists for a reason. I've always felt if I don't have the skill, it's easy enough to get.

Posted by: Norman Gracy | August 22, 2008 2:30 PM    Report this comment

miguel.vasconcelos@faa.gov

This is the link of the individual at the FAA that would like to hear your comments. The comment period is extended to September 30th. So if you think you have something constructive to say to the FAA, now would be the time. I recieved a prompt reply with an invitation to write to him again should I have any additional comments.

Posted by: FRANK SMITH | August 22, 2008 4:44 PM    Report this comment

Franklin, I sent my comments on the rule--thanks!

Posted by: Norman Gracy | August 22, 2008 5:41 PM    Report this comment

For more than a generation we have noted an increase in "builder assistance". This is nothing less than an attempt to circumvent the 51% rule. It has always been about learning skills that allow a builder to complete a project. Now the FAA is calling the amature builder out about transgretions of the past. I agree with other posts that would have the FAA cite builders and professional completion cernters/individuals that knowingly violate the intent of the 51% rule. If you cannot build it yourself it is not just a matter of not being able to work on it after it is flying. It is about all the rest of us that are hammered by the FAA because a few take liberties with a good rule. Now gone forever.

Posted by: Richard Woodbury | August 5, 2009 12:31 AM    Report this comment

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