Mailing List lml@lancaironline.net Message #46277
From: Halle, John <JJHALLE@stoel.com>
Sender: <marv@lancaironline.net>
Subject: 51% Rule
Date: Mon, 25 Feb 2008 15:57:31 -0500
To: <lml@lancaironline.net>
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.
 
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.
 
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.
 
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.
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