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Date: Mon, 25 Feb 2008 15:57:31 -0500
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Subject: 51% Rule
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From: "Halle, John" <JJHALLE@stoel.com>

A lot of the current debate over the 51% rule (on both sides) ignores =
what is, I think, at least one of the major issues.  The FAA is charged =
with making sure that companies that build airplanes for a profit do not =
build unsafe airplanes, a really good idea.  Because the government is =
the government, what it ends up doing with any good idea is to drive it =
into the ground.  It applies the same processes and standards to issues =
about whether the stereo set installed in the panel of a certified =
airplane works reliably as it does to whether a wing design will carry =
the load it needs to carry.  Then the plaintiff's bar shows up and =
convinces juries that perfection is an achievable design standard.  The =
result is that innovation in general aviation is prohibitively =
expensive.  Until very recently, it had all but stopped and the few =
manufacturers who had managed to remain in business at all were turning =
out beautiful examples of 1940's technology.
=20
The idea that the government has a mission to promote the development of =
knowledge of how to build airplanes among amateurs in pursuit of which =
it is prepared to develop and fund an entire program is just silly.  The =
fact is that the homebuilder program is a way of taking innovation out =
of the bureaucracy associated with certification (a process that even =
the government itself finds impossible in any program for which it =
accepts result responsibility) and thus allow people to come up with, =
and test, new ideas, many of which contribute to flight safety.  The =
results end up in certifiied aircraft but only after actual, in-flight =
experience with the idea makes it possible to go through the =
certification process within reasonable time and cost parameters (just =
think of Cirrus and Columbia, not to mention all of the neat avionics =
innovations that are just now getting to the certified world.)  It also =
protects innovators from the plaintiff's bar by creating judgment proof =
defendants until the technology can be empirically defended.
=20
The problem that the FAA faces is how to draw a line between legitimate =
homebuilding and a more or less typical airplane manufacturing operation =
that seeks to avoid standard certification requirements by giving lip =
service to the homebuilding rules.  A program that offers kits for sale =
that must be assembled at the factory with the assistance (possibly =
total) of the kit company's employees clearly falls on the wrong side of =
that line.  If Epic can do it, why can't Cessna?  The question of =
commercial assistance is harder because, in the end, it depends on =
whether the commercial assistance comes in the form of a regular =
business that turns out airplanes as if on an assembly line or in the =
form of a hobbyist trying to indulge his or her passion and make a =
little money on the side.  It also depends on whether the assistance is =
just that or whether it is simply manufacture for hire.  Right now, the =
rules as written resolve the issue based on whether the builder funds =
the construction phase, a distinction that cries out to be blurred.
=20
The government's inability to regulate intelligently is legendary.  =
There is no reason to suppose that it will do better in this case than =
in others so there will be some problems with the new rules.  In trying =
to work with the government, however, the hombuilder community needs to =
understand what the problem is really about and it is not about =
education.  It is about safety but only indirectly.