Airworthiness Directives & Amateur Built Aircraft

    The applicability of Airworthiness Directives (AD’s) to experimental amateur-built aircraft is an intensely contested subject. Regardless of what position one takes on this subject, many will take a personal affront to your position. It would be difficult to sum this topic up in a sentence. That said EAA does take the general position that:

    Airworthiness Directives do not apply to experimental amateur-built aircraft or to any previously type certificated parts being operated on an experimental amateur-built aircraft.

    That statement made, there are several things that need to be added. EAA is not saying AD’s that directly relate to any component on your aircraft, need not be addressed. The owner of an experimental amateur-built aircraft should comply with, to the best of his or her ability, any AD that relates to a component installed on his or her aircraft. EAA is saying; there is no legal basis to apply an AD to an aircraft or component that is not required to be operated in compliance with a Type Certificate, or Type Design. There are some references in older outdated FAA guidance materials (e.g. Advisory Circulars) that indicate that AD’s apply to experimental aircraft, and the FAA has held the position that AD’s on type certificated parts, installed on experimental aircraft, should be complied with. However, despite what certain FAA field personnel have indicated in the past, the FAA Certification Office (AIR) has never produced a written position that states AD’s are applicable to non-type certificated products. Further, there is no Federal Aviation Regulation (FAR) requirement for AD’s on experimental amateur-built aircraft.

    Because of the lack of written policy from FAA headquarters, EAA formally asked for the certification offices written position on AD’s, as they relate to experimental amateur-built aircraft. After much debate within the FAA, a written position is still not available at this time. However, in 1998 a FAA headquarters Aircraft Certification Management Team1 studying the issue of AD’s, stated the following in a written report of their findings:

    "1. FAA has authority to issue an AD against any aircraft operating in U.S. airspace except under Part 129. FAA’s ability to issue AD’s is limited by practical considerations. The FAR do not support AD’s for non-TC’ed aircraft. If FAA issues an AD against a non-TC'ed aircraft, it could be challenged strongly in court for violating its own rules. AGC (FAA Legal Council) is adamant in this. FAA refrains from AD's for experimental amateur-builts and foreign manufactured non-TC'ed aircraft."

    Further, the FAA specifically stated that, FAR 39.1 Applicability, does not include experimental aircraft because it requires that the aircraft, engine, propeller or appliances referred to, must have a "type design." No experimental amateur-built aircraft has a "type design" therefore no AD’s can apply to them. The FAA said, "the wording of the rules shows clearly, that in writing the rules, FAA had no intention of issuing AD’s for non-TC’ed aircraft. 39.1 requires that the aircraft have a type design as defined in 21.312." Experimental amateur-built aircraft do not have a TC.

    The problem with applying an AD to an experimental amateur-built aircraft is:

    1. The aircraft has no type design, nor do any of the design standards in the FAR’s apply (e.g. Part 23)
    2. FAR Part 43 Maintenance, Preventive Maintenance, Rebuilding and Alteration does not apply.3
    3. FAR 39 Airworthiness Directives, does not apply.4
    4. The airworthiness standard for experimental aircraft is "safe to fly" not "Conformity to a type design5."

    Does this mean you can ignore AD’s?

    No! There is an airworthiness standard for experimental amateur-built aircraft: "The aircraft must be in a condition for safe operation6."

    It is reasonable to make the judgment, if the owner of an experimental aircraft did not address an AD issued against a component installed on his aircraft, it could be considered unairworthy. A pilot who operated such an aircraft could be considered in violation of FAR’s 91.13(a)7 and 91.319(b)8. Notice that the term "address" was used, not "complied with" when referring to an AD on a component used on an experimental amateur-built aircraft. As was stated previously, there is no type design to comply with on an experimental amateur-built aircraft, therefore one cannot "comply" with the type design.


    How should one "address" the requirements of an AD?

    To ensure that your experimental amateur-built aircraft is "safe to fly," the owner of the aircraft should, at a minimum, study for any AD’s that have been issued to similar type certificated components that are installed on their aircraft. The owner and the person performing the annual condition inspection should evaluate any such AD’s and make a determination as to what action, if any, should be taken to ensure the aircraft is safe to fly. EAA suggests that the owner of the aircraft make a logbook entry indicating how any ADs that applies to components installed on his or her aircraft have been addressed.


    Example 1
    : The magnetos installed have an AD against them. The solution may be to replace one with an experimental electronic ignition system, thereby insuring a back up ignition system if the magneto in question fails. This insures that the aircraft is "safe to fly."


    Example 2
    : Particular batches of accessory case gears have been found to be failing in engines, which resulted in loss of vacuum pump drive. The AD’s background information states that the failures have been taking place on gears with 500 to 1000 hours of operation. The AD requires replacement at the next annual inspection, or 500 hours, whichever occurs first; the engine installed in a homebuilt has 300 hours on it and the particular gear was installed at the last overhaul; the builder could determine that his aircraft was currently safe to fly with a note in the logbook, indicating that the gear in question should be replaced within the next 200 hours of operation, or if not replaced, no IFR flight should be attempted until the gear was replaced.


    What about a type certificated engine installed on an experimental amateur-built aircraft?

    Again legally, the AD will not apply for several reasons. One reason is that for the engine to comply with its type certificate it must be operated on an approved, type certificated aircraft. Since by definition no engines have been type certificated to operate on an experimental aircraft the engine is no longer in compliance with its type certificate once it is installed on an experimental aircraft. Further, the builder of an experimental aircraft may make any modification they wish to that "type certificated" engine. Once any change has been made to the engine, it is no longer a type-certificated engine. For example, if an AD is issued on a Bendix magneto the owner may remove the magneto and install an experimental electronic ignition system. The owner has still not complied with the AD, nor should he be required to. Further, the owner could simply remove the data plate from the magneto and replace it with one that says "no name magneto S/N 1". Because of this ability to modify any component on an experimental amateur-built aircraft, the fact that no certificated mechanic is required to approve maintenance or alterations (FAR 43.1(b)), and there is no "type design" for the aircraft, it is neither practical nor legal to require compliance with FAR 39 Airworthiness Directives.


    This may lead you to the question, what does one have to do to install an engine previously used on a homebuilt on a type certificated aircraft?

    The engine must have a conformity inspection performed were a certificated mechanic verifies that every component on the engine is one authorized on the TC for that particular make and model of engine and that all AD’s have been complied with. Then the mechanic or repair station would make a log book entry attesting to the fact that the engine is in compliance with its TC. In many cases this would require the complete disassembly of the engine to verify the correct internal parts are in compliance with the TC for that engine. Disassembly could be avoided if the engine records confirm that the engine was in compliance when installed, e.g. factory new, no changes to the engine have been made and that a certificated mechanic performed all the maintenance since installation.


    What about insurance?

    While EAA cannot speak to every insurance policy issued, we can speak to the EAA Aircraft Insurance Plan by Falcon Insurance. This policy assumes that all components on an experimental amateur-built aircraft are experimental, and therefore compliance with an AD is not expected.

    Non-compliance with an AD would not void the Falcon policy.

    If AD’s are not required, why do they have to be complied with to get a 25-hour instead of a 40-hour test period?

    The FAA may impose any restriction they wish to protect the people and property on the ground from your "experiment". The 25-hour test period is given as a "reward" for showing that your engine and propeller combination meet a higher standard of safety than just "safe to fly." You are not required to comply with AD’s to get your special airworthiness certificate. You must show the engine and propeller have complied with any applicable AD to qualify for the reduced test period9.

    Can the FAA require AD’s or the aircraft to be signed off by an A&P as a condition of certification?

    No. Only the person who is applying for the certificate makes the determination of airworthiness and the FAA cannot require any other signatures or approvals in determining the airworthiness of a new experimental amateur-built aircraft.12

    What about FAR 91.403 requirement to comply with Part 39?

    FAR 91.403(a)11 requires the owner or operator of an aircraft to be responsible for compliance with FAR Part 39. As was explained earlier, FAA’s legal office has stated that FAR Part 39 is not applicable to experimental amateur-built aircraft because they have no type design. Since FAR 39 is not applicable to experimental amateur-built aircraft - then the owner is always in compliance with the part 39 referred to in FAR 91.403(a).

    FOOTNOTES

    1. Report To The Aircraft Certification Management Team, Airworthiness Directive Application Team, April 28030, 1998 Washington, D.C. Team Membership included representatives from FAA offices AIR-200, AFS-610, AIR-200, AFS-300, ACE-100, ANE-100, ANM-100, ASW-100, and AGC-210.
      Page 2, Summary of Conclusions.
    2. Report To The Aircraft Certification Management Team, Airworthiness Directive Application Team, April 28030, 1998 Washington, D.C. Team Membership included representatives from FAA offices AIR-200, AFS-610, AIR-200, AFS-300, ACE-100, ANE-100, ANM-100, ASW-100, and AGC-210.
      Appendix 1 Page 8, Aircraft with no U.S. TC.
    3. FAR Part 43.1(b) "This part does not apply to any aircraft for which an experimental airworthiness certificate has been issued, unless a different kind of airworthiness certificate had previously been issued for that aircraft."
    4. Report To The Aircraft Certification Management Team, Airworthiness Directive Application Team, April 28030, 1998 Washington, D.C. Team Membership included representatives from FAA offices AIR-200, AFS-610, AIR-200, AFS-300, ACE-100, ANE-100, ANM-100, ASW-100, and AGC-210.
      Appendix 1 Page 8, Aircraft with no U.S. TC.
    5. FAR Part 91.319(b) "No person may operate an aircraft that has an experimental certificate outside of an area assigned by the administrator until it is shown that- (1) The aircraft is controllable throughout its normal range of speeds and throughout all the maneuvers to be executed; and (2) The aircraft has no hazardous operating characteristics or design features."
      FAA Order 8130.2D, Chapter 1, page 4, paragraph 9 Interpretation of the Term Airworthy for U.S. Certificated Aircraft. For non-TC’ed aircraft paragraph 9(b) the airworthiness requirement as "The aircraft must be in a condition for safe operation. This refers to the condition of the aircraft relative to wear and deterioration, e.g. skin corrosion, window delamination/crazing, fluid leaks, tire wear, etc."
    6. FAR Part 91.319(b) "No person may operate an aircraft that has an experimental certificate outside of an area assigned by the administrator until it is shown that- (1) The aircraft is controllable throughout its normal range of speeds and throughout all the maneuvers to be executed; and (2) The aircraft has no hazardous operating characteristics or design features."
      FAA Order 8130.2D, Chapter 1, page 4, paragraph 9 Interpretation of the Term Airworthy for U.S. Certificated Aircraft. For non-TC’ed aircraft paragraph 9(b) the airworthiness requirement as "The aircraft must be in a condition for safe operation. This refers to the condition of the aircraft relative to wear and deterioration, e.g. skin corrosion, window delamination/crazing, fluid leaks, tire wear, etc."
    7. FAR Part 91.319(b) "No person may operate an aircraft that has an experimental certificate outside of an area assigned by the administrator until it is shown that- (1) The aircraft is controllable throughout its normal range of speeds and throughout all the maneuvers to be executed; and (2) The aircraft has no hazardous operating characteristics or design features."
      FAA Order 8130.2D, Chapter 1, page 4, paragraph 9 Interpretation of the Term Airworthy for U.S. Certificated Aircraft. For non-TC’ed aircraft paragraph 9(b) the airworthiness requirement as "The aircraft must be in a condition for safe operation. This refers to the condition of the aircraft relative to wear and deterioration, e.g. skin corrosion, window delamination/crazing, fluid leaks, tire wear, etc."
    8. FAR 91.13(a) "Aircraft operations for the purpose of air navigation. No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another."
    9. FAR Part 91.319(b) "No person may operate an aircraft that has an experimental certificate outside of an area assigned by the administrator until it is shown that- (1) The aircraft is controllable throughout its normal range of speeds and throughout all the maneuvers to be executed; and (2) The aircraft has no hazardous operating characteristics or design features."
    10. AMATEUR-BUILT AIRCRAFT CERTIFICATION INSPECTION GUIDE C\INSPGIDE.DOC:7/10/97 AIR220:GMCNEILL:78152 File Number: 8100-1A: Page 2. I. "Was the engine and propeller originally type designed for operation in a type certificated (TC) aircraft? Is the installed engine/prop a compatible combination? (This would be validated by the engine/prop combination being listed on a type certificate data sheet for a certificated aircraft). This information will dictate whether the Phase I test flight time is 25 or 40 hours. To be eligible for the 25 hours, the certificated engine and propeller combination when installed, must be "airworthy." This means, the engine and propeller must meet its type design and be in a condition for safe operation. All applicable Airworthiness Directives must be complied with at this time. If these conditions are not met, the aircraft limitations will mandate the 40 hour Phase I test-flight time requirement."
    11. FAR 91.403(a) "The owner or operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy condition, including compliance with part 39 of this chapter."

    FAA Order 8130.2D Airworthiness Certification Of Aircraft and Related Products, Chapter 4, Section 7 Experimental Amateur-built Airworthiness Certifications, Paragraph 128(b)(7) Note: "There is NO requirement for Airframe and Powerplant mechanics to sign off amateur-built airworthiness inspection. The Aircraft builder’s signature on Form 8130-6 Block III attest to the airworthiness of the amateur-built aircraft."


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