[Federal Register Volume 59, Number 77 (Thursday, April 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9563]


[[Page Unknown]]

[Federal Register: April 21, 1994]


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Part VII





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 21




Type Certificates for Surplus Aircraft of the Armed Forces; Proposed 
Rule
DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 21

[Docket No. 27699; Notice No. 94-12]
RIN 2120-AE41

 
Type Certificates for Surplus Aircraft of the Armed Forces

AGENCY: Federal Aviation Administration, DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This notice proposes to remove the regulations for issuing 
type certificates for surplus aircraft of the Armed Forces. The purpose 
of the proposed removal is to eliminate references to obsolete 
airworthiness standards that are no longer appropriate for type 
certification of surplus military aircraft. Surplus aircraft of the 
Armed Forces may still be certificated in the normal, utility, 
acrobatic, commuter, transport, and restricted categories when 
compliance with the applicable regulations is shown. This proposal if 
adopted as final would become effective on April 21, 1994 and is 
intended to provide a greater level of assurance that the appropriate 
airworthiness standards are met before standard airworthiness 
certificates are issued for surplus military aircraft.

DATES: Comments must be received on or before June 20, 1994.

ADDRESSES: Comments on this notice may be mailed or delivered in 
triplicate to: Federal Aviation Administration, Office of the Chief 
Counsel, Attention: Rules Docket (AGC-10), Docket No. 27699, 800 
Independence Avenue SW., Washington, DC 20591. Comments may be examined 
in the Rules Docket, room 915-G, weekdays, except Federal holidays, 
between 8:30 a.m. and 5 p.m.

FOR FURTHER INFORMATION CONTACT:
George Kaseote, Aircraft Engineering Division (AIR-100), Policy and 
Procedures Branch, Federal Aviation Administration, 800 Independence 
Avenue SW., Washington, DC 20591, telephone (202) 267-8541.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to comment on any portion of this 
rule by submitting written data, views, or arguments as they may 
desire. Comments relating to the environmental, energy, federalism, or 
economic impact that might result from adopting the proposals in this 
document are invited. Communications should identify the regulatory 
docket number and be submitted in triplicate to the address specified 
above. All communications received on or before the closing date for 
comments specified above will be considered by the Administrator before 
taking further rulemaking action. Anyone wishing the FAA to acknowledge 
receipt of their comments submitted in response to this proposed rule 
must submit with those comments a self-addressed, stamped postcard on 
which the following statement is made: ``Comments to Docket No. 
27699.'' The postcard will be date/time stamped and returned to the 
commenter. All comments submitted will be available, both before and 
after the closing dates for comments, in the Rules Docket for 
examination by interested persons. A report summarizing each 
substantive public contact with FAA personnel concerned with this 
rulemaking will be filed in the docket.

Availability of NPRMs

    Any person may obtain a copy of this NPRM by submitting a request 
to the Federal Aviation Administration, Office of Public Affairs, Attn: 
Public Inquiry Center (APA-430), 800 Independence Avenue SW., 
Washington, DC 20591, or by calling (202) 267-3484. Communications must 
identify the notice number of this NPRM.
    Persons interested in being placed on the mailing list for future 
NPRMs should also request a copy of Advisory Circular 11-2A, Notice of 
Proposed Rulemaking Distribution System, which describes the 
application procedures.

Background

    The practice of issuing type certificates and airworthiness 
certificates for surplus aircraft of the Armed Forces became effective 
on November 21, 1946, with the adoption of Civil Air Regulation (CAR) 
Part 09 (later changed to Part 9), Aircraft Airworthiness, Limited 
Category. The promulgation of that rule occurred when there was a 
substantial number of surplus military airplanes being offered for sale 
to the public, accompanied by an increasing need for aircraft in civil 
use, but at a time when the civil aircraft industry was not capable of 
meeting those needs. CAR Part 9 permitted airworthiness certification 
of surplus military aircraft in the limited category only if the 
Administrator found that the aircraft's service history was 
satisfactory, the particular aircraft was in a good state of 
preservation and repair, and the aircraft was in a condition for safe 
operation. The carriage of cargo or passengers for hire was not 
permitted in these aircraft.
    Because CAR Part 9 was based on conditions in the aviation industry 
in 1946 which were believed to be of a temporary nature, the 
regulations required that type certificate applications had to be made 
prior to December 31, 1947, and that no airworthiness certificates were 
to be issued after August 31, 1948. Those time limits were established 
so that the development of postwar civilian-type aircraft would not be 
stifled by an extended overloading of the market with surplus war 
aircraft. The August 31, 1948 time limit for the issuance of 
airworthiness certificates was removed on November 20, 1950, as a 
consequence of the increased demand for military-type aircraft (Korean 
War), with the resultant conversion of civilian aircraft manufacturing 
facilities to the production of military-type aircraft, and an 
increased demand for war surplus aircraft that could be used as 
executive-type transports.
    Part 9 was amended on January 10, 1964, to reimpose a time limit 
for the issuance of airworthiness certificates in the limited category. 
The new time limit for issuance of ``original'' airworthiness 
certificates was June 30, 1965. That time limit was subsequently 
rescinded indefinitely on July 23, 1965, due to the interest of 
individuals and groups in surplus military aircraft (Warbirds) 
preservation. The term ``original'' airworthiness certificates was 
necessary because an aircraft that had a Limited airworthiness 
certificate could be issued another kind of airworthiness certificate 
(``experimental'' or ``restricted'') and then be re-issued a limited 
airworthiness certificate.
    Still, surplus military aircraft for which an application for a 
type certificate was made after 1947 were no longer eligible for 
certification under CAR Part 9. A purchaser of one of those aircraft 
was confronted with the fact that the only way to certificate the 
aircraft was in the normal, utility, acrobatic, and transport 
categories in accordance with the provisions of CAR Parts 3, 4b, 6 or 
7, or in the restricted category under the provisions of CAR Part for 
special purpose operations only. The provisions of those parts 
prescribe that compliance be shown with the requirements of those parts 
effective on the date of application for the type certificate. Since 
the regulations are amended as the state of the art progresses in the 
aviation industry, demonstration of compliance with many of the current 
airworthiness requirements by an aircraft which was designed many years 
previously could be prohibitively burdensome and costly. As a 
consequence, CAR Part 9a was adopted effective January 10, 1964. This 
allowed military aircraft to be certificated in the normal, utility, 
acrobatic, and transport categories if the aircraft was found to 
conform not to the certification requirements in effect on the date of 
application for a type certificate, but to specified earlier versions 
of CAR Parts 3, 4b, 6, or 7. Under CAR Part 9a, aircraft that were 
military models of previously type certificated civil aircraft could be 
certificated upon compliance with the regulations governing the 
original type certificate. These aircraft were eligible to conduct the 
same type of operations as other civil aircraft for which a standard 
type of airworthiness certificate had been issued; for example, they 
could be used to carry cargo and passengers for hire. CAR Part 9a made 
no mention of limited category aircraft. When the CAR was recodified in 
1965, Sec. 21.27 replaced CAR Part 9A.
    FAR Section 21.27 allows compliance with the applicable 
certification requirements of either the CAR or FAR that was 
appropriate on the date the aircraft was accepted for operational use 
by the Armed Forces of the United States. Since Sec. 21.27 was first 
adopted, changes have been made to the FAR to upgrade the level of 
safety required for civilian aircraft and to incorporate certification 
standards for modern state-of-the-art technology. Consequently, the 
CAR's are obsolete and no longer appropriate as certification standards 
for the issuance of new type certificates for modern aircraft.

Discussion

    This proposed rulemaking is intended to remove Sec. 21.27, ``Issue 
of type certificate: surplus aircraft of the Armed Forces.'' This 
action would not preclude a surplus military aircraft of the Armed 
Forces from being type certificated under the provisions of Sec. 21.21, 
``Issue of type certificate: normal, utility, acrobatic, commuter, and 
transport category aircraft; manned free balloons; special classes of 
aircraft; aircraft engines; propellers,'' or Sec. 21.25, ``Issue of 
type certificate: Restricted category aircraft.''
    Currently, to obtain a type certificate for an aircraft under 
Sec. 21.21, an applicant must apply for the certificate and submit 
descriptive data, substantiating data, and test results that show 
compliance with the appropriate regulations governing the type of 
certificate for which he or she is applying, i.e., normal, utility, 
acrobatic, commuter, or transport. The FAA then evaluates that data and 
may conduct additional testing. After all data are submitted and tests 
are completed, and if the results show compliance with the regulations, 
then a type certificate is issued. This practice assures that the 
aircraft is thoroughly evaluated and meets the appropriate safety 
standards. On the other hand, Sec. 21.27 is less stringent and allows a 
greater degree of flexibility in the application of the rules. It 
provides for relief from strict compliance with specific provisions of 
the applicable requirements if the alternative method of compliance 
proposed by the applicant provides substantially the same level of 
airworthiness and if a severe burden would otherwise be incurred. Since 
military aircraft have become increasingly complex and sophisticated, 
the practice of allowing normal or transport category certification 
under Sec. 21.27 (relief from strict compliance) is no longer 
acceptable for military surplus aircraft. It is the FAA's position that 
surplus military aircraft should be certificated only under the 
provisions of Sec. 21.21 or Sec. 21.25.
    Accordingly, the FAA has determined that Sec. 21.27 has outlived 
its intent and usefulness. Since Sec. 21.27 does not provide an 
adequate level of certitude that the appropriate airworthiness 
standards have been met for the different categories of airworthiness 
certification, the FAA is proposing that it be removed, effective April 
21, 1994. The FAA specifically request comments on the proposed 
effective date for the removal of Sec. 21.27. Also, the proposed 
removal of Sec. 21.27 from the FAR affects Sec. 21.21. That section 
would be revised to accommodate the removal of Sec. 21.27. Aircraft 
that have existing type certificates and those that have applications 
for type certificates based on Sec. 21.27 dated as of April 21, 1994 
would not be affected. Also, aircraft in the limited category would not 
be affected by this rulemaking action.

Preliminary Regulatory Evaluation, Initial Regulatory Flexibility 
Determination, and Trade Impact Assessment

    Proposed 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 Office of Management and Budget directs agencies to assess 
the effects of regulatory changes on international trade. In conducting 
these analyses, the FAA has determined that this rule: (1) Would 
generate benefits that justify its costs and is not a ``significant 
regulatory action'' as defined in the Executive Order; (2) is not 
``significant'' as defined in DOT's Regulatory policies and Procedures; 
(3) would not have a significant impact on a substantial number of 
small entities; and (4) would not constitute a barrier to international 
trade. These analyses, available in the docket, are summarized below.

Costs and Benefits

A. Costs
    The incremental costs of the proposed rule would consist of the 
difference between the costs to certificate aircraft under FAR 
Sec. 21.21 or Sec. 21.25 as opposed to those under Sec. 21.27. As a 
basis for evaluating this differential, the FAA examined certification 
records for the past 10 years. This examination revealed that only one 
type certification was completed by the FAA pursuant to Sec. 21.27 (in 
1983). The costs expended by the applicant to certify the military 
transport airplane under Sec. 21.27 essentially equaled the costs 
typically incurred for certification under Sec. 21.21 or Sec. 21.25. If 
this experience were to continue, the proposed rule would impose no 
incremental costs.
    The FAA recognizes the potential for increased type certification 
applications for surplus military aircraft in the future, due to 
possible downsizing of the nation's investment in military equipment 
and other factors. However, future applications may not increase to any 
great extent despite the potential downsizing of the military. The 
substantial surplus of military aircraft following World War II and the 
Korean War occurred at a time when the civilian aircraft industry was 
not capable of meeting the increased need for civilian aircraft. 
Industrial capacity had been shifted to military production in a 
relatively short time period. However, the military buildup of the 
1980's occurred over a longer period of time and did not significantly 
affect the nation's capacity to produce civilian aircraft. 
Consequently, future type certifications of surplus military aircraft 
may not approach the levels reached following World War II and the 
Korean war. Nevertheless, the FAA is unable to reasonably forecast the 
future number of type certifications of surplus military aircraft and 
the potential variability in costs from case to case. Therefore, the 
FAA invites interested persons to submit such estimates during the 
public comment period specified in this NPRM.
B. Benefits
    The benefits of this proposed rule would be the accident risk 
differential between aircraft certificated to the more stringent 
standards of Secs. 21.21 and 21.25 as compared to the standards of 
Sec. 21.27. While the FAA is not aware of any surplus military aircraft 
that has experienced certification-related safety problems, it believes 
that continued certification to the less stringent requirements of 
Sec. 21.27 is unacceptable. Based on the continuance of negligible 
incremental costs to certificate aircraft under Secs. 21.21 and 21.25, 
the benefits associated with the prevention of only one accident would 
easily make this proposed rule cost-beneficial.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) was enacted by 
Congress to ensure that small entities are not unnecessarily and 
disproportionately burdened by Federal regulations. The RFA requires a 
Regulatory Flexibility Analysis if a proposed rule would have ``a 
significant economic impact on a substantial number of small 
entities.'' FAA Order 2100.14A, Regulatory Flexibility Criteria and 
Guidance, outlines FAA's procedures and criteria for implementing the 
RFA.
    The small entities potentially affected by the proposed rule are 
operators that own 9 or few aircraft, which is the size threshold for 
aircraft operators. The cost thresholds (in 1993 dollars) are 
approximately $119,500 for scheduled operators whose entire fleets have 
a seating capacity of over 60; $66,800 for other scheduled operators; 
and $4,700 for unscheduled operators. A substantial number of small 
entities is a number which is not less than 11 and which is more than 
one-third of the small entities subject to the rule. Given the 
historically small number of applications for certification under 
Sec. 21.27 and the finding of no incremental costs incurred by 
operators certificating surplus military aircraft under Sec. 21.21 or 
Sec. 21.25 compared to certification under Sec. 21.27, the FAA does not 
expect that 11 or more entities would experience a significant economic 
impact in any one year. Therefore, the proposed rule would not have a 
significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

    The proposed rule would not constitute a barrier to international 
trade, including the export of American goods and services to foreign 
countries and the import of foreign goods and services to the United 
States. This assessment is based on the finding of no incremental costs 
as well as the small number of applications for type certification 
pursuant to Sec. 21.27.

Federalism Implications

    The regulations proposed herein would not have substantial direct 
effects 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. Therefore, in 
accordance with Executive Order 12866, it is determined that this 
proposal would not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Conclusion

    For the reasons discussed in the preamble, and based on the 
findings in the Regulatory Flexibility Determination and the 
International Trade Impact Analysis, the FAA has determined that this 
proposed regulation in not major under Executive Order 12866. In 
addition, the FAA certifies that this proposal, if adopted, will not 
have a significant economic impact, positive or negative, on a 
substantial number of small entities under the criteria of the 
Regulatory Flexibility Act. This proposal is considered not significant 
under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 
1979). A draft regulatory evaluation of the proposal, including an 
initial Regulatory Flexibility Determination and Trade Impact Analysis, 
has been placed in the docket. A copy may be obtained by contacting the 
person identified under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 14 CFR Part 21

    Aircraft, Aviation safety, Exports, Imports, Reporting and 
recordkeeping requirements.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend part 21 of the Federal Aviation 
Regulations (14 CFR part 21) as follows:

PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS

    1. The authority citation for part 21 continues to read as follows:


    Authority: 49 U.S.C. App. 1344, 1348(c), 1352, 1354(a), 1355, 
1421 through 1431, 1502, 1651(b)(2); 42 U.S.C. 7572; E.O. 11514, 35 
FR 4247, 3 CFR 1966-1970 Comp., p. 902; 49 U.S.C. 106(g).

    2. Section 21.21 is revised to read as follows:


Sec. 21.21  Issue of type certificate: normal, utility, acrobatic, 
commuter, and transport category aircraft; manned free balloons; 
special classes of aircraft; aircraft engines; and propellers.

    An applicant is entitled to a type certificate for an aircraft in 
the normal, utility, acrobatic, commuter, or transport category, or for 
a manned free balloon, special class of aircraft, or an aircraft engine 
or propeller, if the applicant submits the type design, test reports, 
and computations necessary to show that the product to be certificated 
meets the applicable airworthiness, aircraft noise, fuel venting, and 
exhaust emission requirements of the Federal Aviation Regulations and 
any special conditions prescribed by the Administrator, and the 
Administrator finds--
    (a) Upon examination of the type design, and after completing all 
tests and inspections, that the type design and the product meet the 
applicable aircraft noise, fuel venting, and emissions requirements of 
the Federal Aviation Regulations, and further finds that they meet the 
applicable airworthiness requirements of the Federal Aviation 
Regulations or that any airworthiness provisions not complied with are 
compensated for by factors that provide an equivalent level of safety; 
and
    (b) For an aircraft, that no feature or characteristic makes it 
unsafe for the category in which certification is requested.


Sec. 21.27  [Removed]

    3. Section 21.27 is removed and reserved.


    Issued in Washington, DC, on April 11, 1994.
Thomas E. McSweeny,
Director, Aircraft Certification Service.
[FR Doc. 94-9563 Filed 4-20-94; 8:45 am]
BILLING CODE 4910-13-M