[Federal Register: February 15, 2005 (Volume 70, Number 30)]
[Proposed Rules]
[Page 7829-7837]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15fe05-30]
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Part III
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 21 and 91
Standard Airworthiness Certification of New Aircraft; Proposed Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 21 and 91
[Docket No. FAA-2003-14825; Notice No. 05-01]
RIN 2120-AH90
Standard Airworthiness Certification of New Aircraft
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA seeks public comments on a proposal to amend the
regulations for issuing a standard airworthiness certificate to certain
new aircraft manufactured in the United States. The proposal addresses
a concern that under the current regulations, certain new aircraft are
eligible for a standard airworthiness certificate without meeting the
requirements of a type certificate and without having been manufactured
under an FAA production approval. The intended effect of this proposal
is to ensure that new aircraft manufactured in the United States that
receive a standard airworthiness certificate are type certificated and
manufactured under an FAA production approval.
The FAA also proposes to incorporate requirements contained in laws
recently passed by Congress. A holder of a type certificate or
supplemental type certificate who allows another person to use the
certificate would have to provide written permission to that person. In
addition, any person who manufactures an aircraft, aircraft engine, or
propeller based on a type certificate would have to either hold the
type certificate or have a licensing agreement from the holder. The
proposal would also prohibit a person from altering an aircraft based
on a supplemental type certificate (STC) unless the owner or operator
either holds the STC or has written permission from the holder.
Additionally, it would require the owner or operator of an aircraft
that has been altered based on written permission to use a supplemental
type certificate to retain that permission and transfer it at the time
the aircraft is sold.
DATES: Send comments to reach us before April 18, 2005.
ADDRESSES: You may send comments identified by Docket Number FAA-2003-
14825, using any of the following methods:
DOT Docket Web Site: Go to http://dms.dot.gov
and follow the instructions for sending your comments electronically.
Government-wide Rulemaking Web Site: Go to
http://www.regulations.gov and follow the instructions for sending your
comments electronically.
Mail: Docket Management Facility; U.S.
Department of Transportation, 400 Seventh Street, SW., Nassif Building,
Room PL-401, Washington, DC 20590-001.
Fax: 1-202-493-2251.
Hand Delivery: Room PL-401 on the plaza level of
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
http://dms.dot.gov, including any personal information you provide. For
more information, see the Privacy Act discussion in the SUPPLEMENTARY
INFORMATION section of this document.
Docket: To read background documents or comments received, go to
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Dan Hayworth, Airworthiness
Certification Branch, AIR-220, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-
8449.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested people to take part in this rulemaking
by sending written comments, data, or views. We also invite comments
about the economic, environmental, energy, or federalism impacts that
might result from adopting the proposals in this document. The most
helpful comments reference a specific portion of this notice, explain
the reason for any recommendation, and include supporting data. We ask
that you send us two copies of written comments.
We will file in the docket all comments we receive, as well as a
report summarizing each substantive public contact with FAA personnel
about this notice. The docket is available for public inspection before
and after the comment closing date. If you wish to review the docket in
person, go to the address in the ADDRESSES section of this notice. The
docket is open between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. You may also review the docket using the Internet at
the Web address in the ADDRESSES section.
Before taking other rulemaking action we will consider all comments
we receive before the closing date for comments. We will consider
comments filed late if it is possible to do so without incurring
expense or delay. We may change this proposal because of the comments
we receive.
If you want the FAA to acknowledge receipt of your comments on this
notice, include with your comments a preaddressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it back to you.
Proprietary or Confidential Business Information
Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD ROM, mark the outside of the disk or CD
ROM and also identify electronically within the disk or CD ROM the
specific information that is proprietary or confidential.
Under 14 CFR 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
Searching the Department of Transportation's electronic
Docket Management System (DMS) Web page (http://dms.dot.gov/search); Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm
; or
Accessing the Government Printing Office's Web page at
http://www.access.gpo.gov/su_docs/aces/aces140.html.
You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking,
[[Page 7831]]
ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling
(202) 267-9680. Make sure to identify the docket number, notice number,
or amendment number of this rulemaking.
Background
This notice of proposed rulemaking (NPRM) addresses a concern that
under the current regulations, certain new aircraft are eligible for a
standard airworthiness certificate without meeting the requirements of
a type certificate and without having been manufactured under an FAA
production approval. The NPRM also proposes to incorporate requirements
contained in laws recently passed by Congress. The requirements apply
to holders and users of both type certificates and supplemental type
certificates. We have divided the explanatory material that follows
into three parts: Issuance of standard airworthiness certificates to
used aircraft and surplus military aircraft; use of type certificates
to manufacture new aircraft, aircraft engines, or propellers; and use
of supplemental type certificates for alterations. Within each of the
three parts, we provide both background information and a discussion of
the specific amendatory language we are proposing.
1. Issuance of Standard Airworthiness Certificates to Used Aircraft and
Surplus Military Aircraft
14 CFR 21.183 governs the issuance of standard airworthiness
certificates. Section 21.183(a) applies to new aircraft manufactured
under a production certificate, Sec. 21.183(b) applies to new aircraft
manufactured under type certificate only, and Sec. 21.183(c) applies
to import aircraft.
Section 21.183(d) of our current regulations applies to applicants
for standard airworthiness certificates for aircraft not covered by
Sec. 21.183(a), (b), or (c). An applicant is entitled to a standard
airworthiness certificate under Sec. 21.183(d)(1) if he or she
presents evidence the aircraft conforms to a type design approved under
a type certificate or a supplemental type certificate and applicable
Airworthiness Directives. The FAA must also find, after inspection, the
aircraft conforms to the type design and is in condition for safe
operation (14 CFR 21.183(d)(3)).
The requirements of Sec. 21.183(d) were originally adopted in 1959
as an amendment to Sec. 1.67(d) of the Civil Air Regulations (CAR),
which were issued by the FAA's predecessor, the Federal Aviation
Agency. CAR Amendment 1-2, dated September 1, 1959 (24 FR 7065), added
a new paragraph (d), entitled ``Other aircraft'' to Sec. 1.67.
Amendment 1-2 provided for the airworthiness certification of aircraft
that were used in military service and later released for civil use,
and for other aircraft that had not had their airworthiness status
maintained. The discussion of the amendment stated the regulation was
created for other than newly manufactured aircraft. The requirements
initially set forth in Sec. 1.67(d) of the CAR, and now contained in
Sec. 21.183(d), have remained substantially unchanged since 1959.
The plain language of the regulation, however, does not limit the
applicability of Sec. 21.183(d) to surplus military aircraft, aircraft
that have not had their airworthiness status maintained, or other than
newly manufactured aircraft. Limited data and historical records show
that, until recently, only a few newly manufactured aircraft have
received standard airworthiness certificates on a case-by-case basis
under Sec. 21.183(d). These newly manufactured aircraft are presented
for airworthiness certification as new aircraft that have not been
produced under an FAA production approval. Also, the practice of
issuing standard airworthiness certificates to surplus military
aircraft released for civil use and aircraft that have not had their
airworthiness status maintained has been ongoing for many years.
Surplus military aircraft and aircraft that have not had their
airworthiness status maintained are presented for airworthiness
certifications as used aircraft (those that have had time in-service).
In 1966, the FAA proposed to amend Sec. 21.183 by creating a
separate paragraph for aircraft not manufactured under a type
certificate or a production certificate. See 31 FR 8075, June 8, 1966.
Public comments received in response to the proposal showed a
misunderstanding of the proposal's intent. Commenters believed the FAA
intended a broad change to the past certification practice of issuing
airworthiness certificates to surplus military aircraft and aircraft
that had not had their airworthiness status maintained. Since the FAA
did not intend such a broad change, and since few new aircraft fell
within the intended scope of the change, the FAA decided to abandon the
proposal. The FAA stated that we would not adopt the proposed change,
and we would continue to issue standard airworthiness certificates to
newly manufactured aircraft under Sec. 21.183(d). See 32 FR 14926,
Oct. 28, 1967.
The System for Production of New Duplicate Aircraft Issued Standard
Airworthiness Certificates
For the FAA to have confidence in the certification system for new
aircraft manufactured in the United States and issued standard
airworthiness certificates, the FAA has created a three-step system of
type certification, production certification, and airworthiness
certification. Type certification examines the basic design of the
aircraft against the applicable airworthiness standards. Issuance of a
type certificate (TC) for an aircraft is FAA approval that the design
meets the applicable airworthiness standards of our regulations.
Production certification for an aircraft examines whether the system
produces duplicate aircraft that meet the design provisions of the
pertinent TC. Issuance of a production certificate (PC) is a finding by
the FAA that the quality control system of a manufacturer will permit
it to produce duplicate versions of aircraft that conform to an
approved type design. The FAA issues a standard airworthiness
certificate to individual aircraft after finding that the aircraft
conforms to the type design and is in condition for safe operation. The
FAA relies heavily on the PC quality control system to make this
finding.
Safety Benefits From the Linkage of the Type Certificate and the
Production Certificate for Aircraft Issued Standard Airworthiness
Certificates
A connection between the TC and the PC provides both an individual
and a cumulative benefit. The individual benefit applies to an aircraft
produced for initial airworthiness certification by a PC holder. For
these aircraft, any deviation from the approved type design that is
found during the conformity inspection can be evaluated by comparison
to the data that supports issuance of the TC and any changes made after
the initial TC issuance. This evaluation determines that the individual
aircraft meets all the airworthiness standards identified by the TC.
The cumulative benefit applies to evaluating the total effect of
any design change made after the initial issuance of the TC. The
linkage of the PC to the data supporting the TC enables the aircraft
manufacturer to evaluate the cumulative effect of design changes over
time. The manufacturer can more readily determine whether a changed
aircraft presented for original airworthiness certification continues
to comply with the airworthiness standards identified in the TC.
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The Level of Safety Assumed for Newly Manufactured Aircraft Issued
Standard Airworthiness Certificates
Nearly all new aircraft manufactured in the United States are
eligible for a standard airworthiness certificate if they are produced
under the TC and PC processes. This ensures the aircraft conform to a
type design and are in condition for safe operation. For aircraft
issued standard airworthiness certificates, the FAA, the manufacturer,
civil aviation authorities of other countries, and the public rely on
the TC and PC processes to accurately produce multiple copies of an
aircraft that meet airworthiness standards. Paragraphs (a) and (b) of
Sec. 21.183 recognize this process in issuing standard airworthiness
certificates to aircraft produced in this manner. Also, as discussed in
subsequent sections of this notice, TC and PC holders have certain
responsibilities connected with holding these certificates.
Currently, new aircraft presented for standard airworthiness
certification under Sec. 21.183(d) do not have the same level of
production oversight as newly manufactured aircraft produced under the
TC and PC processes. Aircraft presented for airworthiness certification
under Sec. 21.183(d) do not have the advantage of prior examination
and approval by the FAA of a production quality system, and a finding
by the FAA of accurate reproduction to a type design is difficult. The
applicant for an airworthiness certificate under Sec. 21.183(d) must
make a detailed aircraft-by-aircraft showing to support the entitlement
to individual airworthiness certificates, placing a great burden on
both the applicant and the FAA.
Advance Notice of Proposed Rulemaking (ANPRM)
The FAA published an ANPRM on this issue in the Federal Register on
April 3, 2003 (68 FR 16217). We asked for public comments in advance of
a specific proposal. The comment period closed June 6, 2003. We
received four comments. Three of the four commenters, Cessna Aircraft,
The New Piper Aircraft, Inc., and Air Transport Association of America,
Inc., agreed with the concept expressed in the ANPRM, although one was
concerned that the definitions of the terms ``spare parts'' and
``surplus parts'' were inadequate to meet current practices. The other
commenter, Mr. Darrell A. Freeman, opposed the concept expressed in the
ANPRM.
Mr. Freeman believed this change should be abandoned, as it was in
1966, because of the minor number of aircraft involved. As discussed
earlier, the FAA decided, in 1967, that adoption of a separate
paragraph specifically addressing certification of new aircraft not
manufactured under a TC or PC was not appropriate since few new
aircraft fell within the intended scope of the change and these
aircraft could be certificated under the existing regulation. Now,
however, we have seen a recent increase in the number of applicants
engaging in serial production of new aircraft without holding a type
certificate or production certificate and seeking a standard
airworthiness certificates under section 21.183(d). This recent
development causes us to revisit the 1966 proposal.
A member of the Air Transport Association of America believed that
strict application of the proposed definitions of ``spare parts'' and
``surplus parts'' would cause the FAA to not consider parts produced
under 14 CFR 21.303(b)(2), 21.502, or 43.13(b) as ``spare parts,'' and
might require a manufacturer to get FAA production approval for such
parts. Also, the commenter believed it is not clear whether the FAA
would consider ``standard parts,'' as defined in 14 CFR 21.303(b)(4),
as ``spare parts.'' As a result of this comment, we reviewed all
definitions set forth in the ANPRM and decided to exclude them from
this NPRM.
Basis for the Proposal
Readers should note that we are directing the proposed changes to
Sec. 21.183(d) to applicants seeking issuance of standard
airworthiness certificates. Aircraft that have received a standard
airworthiness certificate prior to the final rule would not be affected
by this proposal. We do not intend for this change to apply to the new
category of light-sport aircraft, which is the subject of a recent
final rule (69 FR 44772, July 27, 2004).
The FAA's Aircraft Certification Service has learned that people
are, or plan to be, engaged in the manufacture or assembly of new
aircraft, with the intent of obtaining standard airworthiness
certificates under 14 CFR 21.183(d). These people intend to build
aircraft that match a type design under a previously approved TC. The
builders of these aircraft do not hold a TC, or a PC, nor do they have
authorization from the original TC holder to use the TC in the
manufacture of new aircraft.
Since these aircraft builders do not hold a PC, the FAA has no
assurance preceding issuance of a standard airworthiness certificate
that the individual aircraft produced conforms to a type design. Each
aircraft must be individually evaluated, compared to type design data,
and determined to be in condition for safe operation, which is often
difficult to do. If the builder can meet this burden for each aircraft
produced, the resulting burden on the FAA to make the evaluations is
significant. Given the limited resources available to the FAA, such a
process is impractical.
Also, since these builders do not hold a TC, several of the
regulatory responsibilities of a TC holder do not apply. For example,
without a TC, builders of new aircraft who apply for standard
airworthiness certificates under paragraph (d) do not have to:
Have access to the supporting data originally used to show
compliance to the airworthiness standards;
Provide instructions for continued airworthiness;
Establish and maintain an FAA production approval;
Report failures, malfunctions, or defects; or
Develop design changes to address safety issues identified
by an Airworthiness Directive.
As a result, safety may be compromised, and an undue burden placed
on the FAA to oversee or independently perform these functions, which
legitimately should remain with the TC holder for the aircraft.
Obtaining type and production certificates for manufacturing new
products is a fundamental concept in the regulatory framework for the
issuance of a standard airworthiness certificate. Inherent in this
concept is that a PC holder is entitled to obtain a standard
airworthiness certificate for an aircraft without further showing to
the FAA. However, building new aircraft for the issuance of standard
airworthiness certificates under Sec. 21.183(d) is not consistent with
the regulatory framework or with the requirements for obtaining
standard airworthiness certificates for new aircraft manufactured under
a production certificate under Sec. 21.183(a) or new aircraft
manufactured under type certificate only under Sec. 21.183(b).
Section-by-Section Analysis
The FAA proposes to amend the current Sec. 21.183(d) to preclude
standard airworthiness certification of new aircraft manufactured by
persons who do not hold a type certificate (or license to it), and
production approval. Specifically, paragraph (d) would apply only to
used aircraft and surplus military aircraft. This would include used
aircraft without a current airworthiness certificate, used aircraft
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certificated under Sec. 21.29, and U.S.-manufactured civil aircraft
that were exported and later returned to the United States for FAA
certification. Under this section, used aircraft are considered
aircraft with time in service that have held an airworthiness
certificate or have been operated by the U.S. Armed Forces. Time in
service does not include aircraft operations for the purpose of
conducting research and development or production flight testing.
Used aircraft do not include aircraft that have been classified as
destroyed or demolished by the National Transportation Safety Board.
Additionally, the term used aircraft does not include an aircraft
damaged to the extent that it would be impracticable or unsafe to
return it to an airworthy condition. Such an aircraft would be
classified as destroyed. This action could be the result of occurrences
such as tornados, hurricanes, floods, fires, or vandalism. Under
current regulations, the FAA considers these aircraft as totally
destroyed for the purposes of meeting the provisions of Sec.
47.41(a)(3). Section 47.41 terminates the Certificate of Aircraft
Registration once an aircraft is identified as destroyed. At that time
the owner must return the Certificate of Aircraft Registration to the
FAA Aircraft Registry per Sec. 47.41(b)(3). With the Certificate of
Aircraft Registration terminated, the standard airworthiness
certificate is no longer effective per Sec. 21.181(a)(1). Although
these aircraft would not be entitled to a standard airworthiness
certificate under Sec. 21.183(d), an applicant, in special
circumstances, may want to pursue issuance of a special airworthiness
certificate.
This proposed amendment would ensure the proper assignment of type
certificate and production approval holder responsibilities to
manufacturers of new aircraft produced in the United States. We are not
proposing any change to other paragraphs under Sec. 21.183.
2. Use of Type Certificates To Manufacture New Aircraft, Aircraft
Engines, or Propellers
Vision 100--Century of Aviation Reauthorization Act of 2003 (Pub.
L. 108-176, 117 Stat. 2490) was signed into law December 12, 2003. This
Act amends 49 U.S.C. 44704(a) by adding a requirements paragraph to the
section. This paragraph establishes a requirement for the type
certificate holder to provide persons permitted to use its type
certificate to manufacture a new aircraft, aircraft engine, or
propeller with written evidence of that permission in a form and manner
acceptable to the FAA. In addition, the statute states that a person
may manufacture a new aircraft, aircraft engine, or propeller based on
a type certificate only if the person is the holder of the certificate,
or has permission from the holder of the certificate.
Section-by-Section Analysis
The FAA proposes adding new Sec. 21.6, titled ``Manufacture of new
aircraft, aircraft engines, and propellers.'' This new section would
prohibit a person from manufacturing a new aircraft, aircraft engine,
or propeller based on a type certificate unless the person--
Is the holder of the type certificate, or has a licensing
agreement from the holder of the type certificate to manufacture the
product; and
Meets the requirements of subpart F or G of part 21.
The reference to subparts F and G means that the person would have
to comply with our regulations governing production under a type
certificate only or production certificates, respectively when
manufacturing a new aircraft, aircraft engine, or propeller.
The FAA also proposes adding new Sec. 21.55, titled
``Responsibility of type certificate holders to provide written
licensing agreements.'' This new section would require a type
certificate holder who agrees to permit another person to use a type
certificate to manufacture a new aircraft, aircraft engine, or
propeller to provide that person with a licensing agreement in a form
and manner acceptable to the FAA. To be acceptable to the FAA, the
licensing agreement should contain the following:
A written statement of the agreement specifying product(s)
to be manufactured;
The model number; and
The name of the person(s) who is being given consent to
use the type certificate.
The type certificate holder may include more information, such as
the effective date of the agreement or how long the type certificate
may be used.
3. Use of Supplemental Type Certificates for Alterations
The Federal Aviation Reauthorization Act of 1996 (Pub. L. 104-264,
110 Stat. 3213) was signed into law on October 9, 1996. This Act
amended 49 U.S.C. 44704 by establishing a requirement for a
supplemental type certificate (STC) holder to provide to persons
permitted to use the STC to alter an aircraft, aircraft engine, or
propeller written evidence of the agreement in a form and manner
acceptable to the FAA. In addition, a person may alter an aircraft,
aircraft engine, or propeller based on an STC only if the person
requesting the change is the holder of the certificate, or has written
permission from the holder of the certificate.
Section-by-Section Analysis
The FAA proposes adding new Sec. 21.120, titled ``Responsibility
of supplemental type certificate holders to provide written permission
for alterations.'' This new section would require a supplemental type
certificate holder who agrees to permit another person to use a
supplemental type certificate to alter an aircraft, aircraft engine, or
propeller to provide that person with written permission. This written
permission would be known as the ``permission statement.'' The form of
the permission statement, to be acceptable to the FAA, should contain
at least the following:
A written statement of the agreement specifying product(s)
to be altered;
The STC number; and
The name of the person(s) who is being given consent to
use the STC.
The STC holder may include more information, such as the effective
date of the permission and how many times the STC may be used for
fleets of aircraft.
The FAA also proposes adding a new Sec. 91.403(d) that would
establish a requirement that a person may only alter an aircraft based
on a supplemental type certificate if the owner or operator of the
aircraft is the holder of the supplemental type certificate or has
written permission from the holder. After the effective date of the
rule, any owner or operator of an aircraft who receives written
permission to alter an aircraft based on a supplemental type
certificate would be required to retain the written permission until
the alteration is superceded. The owner or operator also would be
required to transfer this written permission with the aircraft at the
time the aircraft is sold.
In addition, when a person alters an aircraft by installing an
aircraft engine or propeller that had previous alterations based on
another person's supplemental type certificate, under proposed Sec.
91.403(d), the owner or operator would be required to retain the
written permission used to alter each engine or propeller installed on
the aircraft. If an STC holder is making alterations to an aircraft,
aircraft engine, or propeller that the STC holder owns, the proposed
provisions of Sec. 91.403(d) would not apply. The FAA has determined
that such provisions should not apply to STC holders because ownership
is identified on the STC
[[Page 7834]]
document itself and the document is available for review.
Each person who alters an aircraft based on another person's STC,
including a person making an alteration for a product owner or
operator, should be aware of the statutory requirement for the person
requesting the change to have the permission of the STC holder before
performing the alteration. The statute also clearly prohibits a person
from performing the alteration unless the person requesting the change
has the permission of the STC holder. The mechanic, repair station, or
other facility making the installation should, to ensure their own
compliance with the statutory requirement, request to see a copy of the
written permission provided by the STC holder to the person requesting
the change. The installer, mechanic, or repair station who has obtained
permission directly from the STC holder to use the STC should also
furnish a copy of the STC holder's permission statement to the owner or
operator of the modified product to ensure the owner's compliance with
statutory and regulatory requirements.
The FAA is not proposing to apply the recordkeeping requirement
retroactively to alterations made before the final rule becomes
effective. STC holders who have obtained the STC by transfer after the
final rule is issued would not be required to issue a retroactive
permission statement for already installed STCs. The FAA notes,
however, that compliance with the statutory requirements of 49 U.S.C.
44704(b)(3) is required. Compliance with these requirements is not
dependent upon adoption of this proposal.
FAA responsibilities for certification activities would remain
unchanged if we adopt this NPRM. The FAA, during the certification
process, makes a finding that the applicable airworthiness requirements
have been met (based on data submitted by an applicant). Once this
finding has been made, the FAA issues a certificate to the applicant.
The certificate is the means by which the FAA conveys its approval for
the certificate holder to exercise the privileges of that certificate.
Paperwork Reduction Act
Information collection requirements associated with this NPRM have
been approved previously by the Office of Management and Budget (OMB)
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)) and have been assigned OMB Control Number 2120-0005.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
Economic Impact
Initial Economic Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic effect of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. section 2531-2533) prohibits agencies
from setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act also requires the consideration of international standards and,
where appropriate, that they be the basis of U.S. standards. And
fourth, the Unfunded Mandates Reform Act of 1995 requires agencies to
prepare a written assessment of the costs, benefits, and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local, or tribal governments, in
the aggregate, or by the private sector of $100 million or more
annually (adjusted for inflation).
The FAA has determined that this proposed rule has minimal costs,
and that it is neither ``a significant regulatory action'' as defined
in Executive Order 12866, nor ``significant'' as defined in DOT's
Regulatory Policies and Procedures. Further, this proposal would not
have a significant economic impact on a substantial number of small
entities, would not impact international trade, and would not impose an
Unfunded Mandate on State, local, or tribal governments, or on the
private sector.
DOT Order 2100.5 prescribes policies and procedures for
simplification, analysis, and review of regulations. If it is
determined the expected impact is so minimal the rule does not warrant
a full evaluation, a statement to that effect and the basis for it is
included in the regulation. Accordingly, the FAA has determined the
expected impact of this rule is so minimal the rule does not warrant a
full evaluation. The basis for this determination is provided below.
Background
There are two Public Laws upon which this proposal is based: Vision
100--Century of Aviation Reauthorization Act of 2003 was signed into
law on December 12, 2003. This Act amends Title 49 U.S.C. 44704(a)(3).
It states:
If the holder of a type certificate agrees to permit another person
to use the certificate to manufacture a new aircraft, aircraft
engine, propeller, or appliance, the holder shall provide the other
person with written evidence, in a form acceptable to the
Administrator, of that agreement. Such other person may manufacture
a new aircraft, aircraft engine, propeller, or appliance based on a
type certificate only if the person is the holder of the type
certificate or has permission from the holder.
The Federal Aviation Authorization Act of 1996 was signed into law
on October 9, 1996. This Act amends Title 49 U.S.C. 44704(b). It
states:
If the holder of a supplemental type certificate agrees to permit
another person to use the certificate to modify an aircraft,
aircraft engine, propeller, or appliance, the holder shall provide
the other person with written evidence, in a form acceptable to the
Administrator, of that agreement. A person may change an aircraft,
aircraft engine, propeller, or appliance based on a supplemental
type certificate only if the person requesting the change is the
holder of the supplemental type certificate or has permission from
the holder to make the change.
The FAA believes the economic impact of this proposal to be minimal
because this proposed rule would establish a regulatory framework to
ensure that the statutory requirements are met. It would also codify
common industry business practice for the manufacture of new aircraft
that are issued standard airworthiness certificates.
To make this determination in the economic assessment, the FAA
evaluates each section of the proposal and its relation to current
public law or to current industry practice. The FAA seeks comments on
its determination, and requests that all comments be accompanied by
supporting data and additional documentation.
Standard Airworthiness Certificates (Used Aircraft and Surplus Military
Aircraft)
The proposed change to Sec. 21.183(d) would codify common industry
practices for the manufacture of new
[[Page 7835]]
aircraft that are issued standard airworthiness certificates.
It would require airplane manufacturers to hold both a type
certificate and production approval for all airplanes produced that are
issued a standard airworthiness certificate. Current industry practice
shows that TC holders who are involved in the serial production of
aircraft, also hold production approval. Production approvals relieve
manufacturers of the additional time required to have the FAA examine
each aircraft prior to the issuance of its airworthiness certificate.
The FAA believes the proposed requirement meets the statutory intent
and codifies common industry practice for the manufacture of new
aircraft that are issued standard airworthiness certificates. The FAA
believes that this requirement would not result in significant
additional cost to the industry.
Responsibility of Supplemental Type Certificate Holders
The FAA proposes Sec. 21.120 to conform with 49 U.S.C. 44704(b),
Supplemental Type Certificates. The proposal would require supplemental
type certificate holders to provide written permission, when allowing
use of a supplemental type certificate. The proposed change does not
impose cost to the industry because it is a current statutory
requirement for STC holders.
Alterations Based on Supplemental Type Certificates
The FAA proposes Sec. 91.403(d) to conform with 49 U.S.C.
44704(b), Supplemental Type Certificates. It would require an owner or
operator requesting that an aircraft be altered based on a supplemental
type certificate to obtain written permission from the supplemental
type certificate holder. The owner or operator of an aircraft who
receives written permission to alter an aircraft based on a
supplemental type certificate must retain the written permission until
the alteration is superceded. The owner or operator must transfer this
written permission with the aircraft at the time the aircraft is sold.
Requiring the owner or operator to retain written permission provides a
means to ensure compliance with the statute. The FAA believes that
these records are retained by owners and operators as common industry
practice and therefore would not impose additional cost to the
industry.
Responsibility of Type Certificate Holder To Provide Written Licensing
Agreements
The FAA proposes Sec. 21.55 to conform with the statutory intent
of 49 U.S.C. 44704(a)(3). The proposal would require a type certificate
holder to provide a person with a licensing agreement when allowing use
of a type certificate to manufacture an aircraft, aircraft engine, or
propeller. The proposed change does not impose a cost to the industry
because it is a current statutory requirement for TC holders to provide
written evidence in a form acceptable to the Administrator of such an
agreement.
Manufacture of New Aircraft, Aircraft Engines and Propellers
The FAA proposes Sec. 21.6 to conform with 49 U.S.C. 44704(a)(3).
It would preclude a person from manufacturing new aircraft, aircraft
engines and propellers, based on a type certificate, without a
licensing agreement from the type certificate holder. The proposed
change does not impose a cost to the industry because it is a current
statutory requirement that a person manufacturing a new aircraft,
aircraft engine, or propeller based on a type certificate do so only if
that person is the holder of the type certificate or has permission
from the holder.
Economic Summary
The FAA believes the economic impacts of this proposal are minimal
because the proposal would codify common industry business practice and
is based upon current public law. The FAA requests comments regarding
these findings and requests that these comments provide supporting
documentation.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the Act requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The Act covers a wide range of small
entities, including small businesses, not-for-profit organizations, and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the Act provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
Individuals affected by this proposal would include applicants for
standard airworthiness certificates under Sec. 21.183(d), supplemental
type certificate holders, persons who alter aircraft, type certificate
holders, and owners or operators of aircraft. Many of these would
qualify as small businesses. Although the proposed rule could affect a
substantial number of small businesses, the FAA believes there would be
no small entity impact for the following reasons:
The proposed change to Sec. 21.183(d) would codify common industry
practices for the manufacture of new aircraft that are issued standard
airworthiness certificates.
Current industry practice shows that TC holders, who are involved
in the serial production of aircraft, also hold production approvals.
Because all new aircraft intended for standard airworthiness
certification are type certificated and are either manufactured or
intended to be manufactured under a production approval, there are no
resulting costs to small entities.
In addition, supplemental type certificate holders, persons who
alter aircraft, type certificate holders, manufacturers of new
aircraft, and owners or operators of aircraft would be affected by this
proposal. Although many are small businesses, they would not be
adversely affected by the proposed rule because the proposal would
establish a regulatory framework to ensure that the existing statutory
requirements are met.
Consequently, the FAA certifies that the rule would not have a
significant economic impact on a substantial number of small entities.
The FAA invites comments on this determination and requests all
comments be accompanied by clear and detailed supporting documentation.
Initial International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
[[Page 7836]]
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and, where appropriate, that they be the basis for U.S.
standards.
This proposed rule considers and incorporates existing public laws
and common industry practices as the basis of an FAA regulation. Thus,
the FAA believes that the proposed rule would not create obstacles to
international trade.
Initial Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (the Act), enacted as
Public Law 104-4 on March 22, 1995, is intended, among other things, to
curb the practice of imposing unfunded Federal mandates on State,
local, and tribal governments.
Title II of the Act requires each Federal agency to prepare a
written statement assessing the effects of any Federal mandate in a
proposed or final agency rule that may result in a $100 million or more
expenditure (adjusted annually for inflation) in any one year by State,
local, and tribal governments, in the aggregate, or by the private
sector. Such a mandate is deemed to be a ``significant regulatory
action.'' The FAA currently uses an inflation-adjusted value of $120.7
million in lieu of $100 million.
This proposed rule does not contain such a mandate. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore would not have federalism implications.
Plain English
Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each
agency to write regulations that are simple and easy to understand. We
invite your comments on how to make these proposed regulations easier
to understand, including answers to questions such as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain unnecessary technical
language or jargon that interferes with their clarity?
Would the regulations be easier to understand if they were
divided into more (but shorter) sections?
Is the description in the preamble helpful in
understanding the proposed regulations?
Please send your comments to the address specified in the ADDRESSES
section.
Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment of
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined this proposed rulemaking action qualifies for the
categorical exclusion identified in paragraph 308c(1) and involves no
extraordinary circumstances.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this NPRM under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). We have determined that it is not
a ``significant energy action'' under the executive order because it is
not a ``significant regulatory action'' under Executive Order 12866,
and it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
List of Subjects
14 CFR Part 21
Aircraft, Aviation safety, Exports, Imports, Reporting and
recordkeeping requirements.
14 CFR Part 91
Aircraft, Airmen, Airports, Aviation safety, Reporting and
recordkeeping requirements.
The Proposed Amendment
In consideration of the foregoing, the FAA proposes to amend
chapter I of Title 14, Code of Federal Regulations, as follows:
PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS
1. The authority citation for part 21 is revised to read as
follows:
Authority: 42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113,
44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
2. Add new Sec. 21.6 to read as follows:
Sec. 21.6 Manufacture of new aircraft, aircraft engines, and
propellers.
A person must not manufacture a new aircraft, aircraft engine, or
propeller based on a type certificate unless the person--
(a) Is the holder of the type certificate or has a licensing
agreement from the holder of the type certificate to manufacture the
product; and
(b) Meets the requirements of subparts F or G of this part.
3. Add new Sec. 21.55 to read as follows:
Sec. 21.55 Responsibility of type certificate holders to provide
written licensing agreements.
A type certificate holder who allows another person to use the type
certificate to manufacture a new aircraft, aircraft engine, or
propeller must provide that person with a written licensing agreement
acceptable to the FAA.
4. Add new Sec. 21.120 to read as follows:
Sec. 21.120 Responsibility of supplemental type certificate holders
to provide written permission for alterations.
A supplemental type certificate holder who allows another person to
use the supplemental type certificate to alter an aircraft, aircraft
engine, or propeller must provide that person with written permission
acceptable to the FAA.
5. Amend Sec. 21.183 by revising paragraph (d) introductory text
to read as follows:
Sec. 21.183 Issue of standard airworthiness certificates for normal,
utility, acrobatic, commuter, and transport category aircraft; manned
free balloons; and special classes of aircraft.
* * * * *
(d) Used aircraft and surplus military aircraft. An applicant for a
standard airworthiness certificate for a used aircraft or surplus
military aircraft is entitled to a standard airworthiness certificate
if--
* * * * *
PART 91--GENERAL OPERATING AND FLIGHT RULES
6. The authority citation for part 91 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717,
44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-
47531, articles 12 and 29 of the Convention on International Civil
Aviation (61 Stat. 1180).
7. Add new paragraph (d) to Sec. 91.403 to read as follows:
[[Page 7837]]
Sec. 91.403 General.
* * * * *
(d) A person must not alter an aircraft based on a supplemental
type certificate unless the owner or operator of the aircraft is the
holder of the supplemental type certificate, or has written permission
from the holder. After (INSERT EFFECTIVE DATE OF THE FINAL RULE), any
owner or operator of an aircraft who receives written permission to
alter the aircraft based on a supplemental type certificate must retain
the written permission until the alteration is superseded. The owner or
operator must transfer this written permission with the aircraft at the
time the aircraft is sold.
Issued in Washington, DC, on February 7, 2005.
Nicholas A. Sabatini,
Associate Administrator for Aviation Safety.
[FR Doc. 05-2799 Filed 2-14-05; 8:45 am]
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