[Federal Register Volume 70, Number 217 (Thursday, November 10, 2005)]
[Proposed Rules]
[Pages 68374-68376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22457]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 21

[Docket No. FAA-2003-14825; Notice No. 05-13]
RIN 2120-AH90


Standard Airworthiness Certification of New Aircraft

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The FAA is proposing language to supplement a proposal 
published in the Federal Register on February 15, 2005. This action is 
necessary to include in the proposal a provision from the recently 
enacted Safe, Accountable, Flexible, and Efficient Transportation 
Equity Act: A Legacy for Users. The supplemental language allows a 
person to manufacture one new aircraft based on a type certificate 
without holding the type certificate or having a licensing agreement 
from the type certificate holder, provided the manufacturing began 
before August 5, 2004.

DATE: Send your comments on or before December 12, 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-230, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-
8449.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. We also 
invite comments relating to 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 the proposal, explain the reason for any recommended change, 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 
concerning this proposed rulemaking. 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 preamble 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.
    Privacy Act: Using the search function of our docket Web site, 
anyone can find and read the comments received into any of our dockets, 
including the name of the individual sending the comment (or signing 
the comment on behalf of an association, business, labor union, etc.). 
You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
http://dms.dot.gov.
    Before acting on this proposal, we will consider all comments we 
receive on or 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 in light of the comments 
we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it 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:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, 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.

[[Page 68375]]

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. Subtitle I, section 106 
describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the agency's authority. 
This rulemaking is promulgated under the authority described in 
subtitle VII, part A, subpart III, section 44701(a)(5). Under that 
section the FAA is charged to promote safe flight of civil aircraft in 
air commerce by prescribing regulations and minimum standards for 
practices, methods, and procedures that the Administrator finds 
necessary for safety in air commerce. Additionally, Sec.  44704(a)(3) 
specifically mandates that a ``person may manufacture a new aircraft, 
aircraft engine, propeller, or appliance based on a type certificate 
(TC) only if such other person is the holder of the type certificate or 
has permission from the holder.'' Paragraph (a)(4) of that section 
includes a limitation for aircraft manufactured before August 5, 2004 
and states that ``paragraph (3) shall not apply to a person who began 
the manufacture of an aircraft before August 5, 2004, and who 
demonstrates to the satisfaction of the Administrator that such 
manufacture began before August 5, 2004.'' That paragraph further 
states that ``a person is permitted to invoke this exception with 
regard to the manufacture of one aircraft.'' By prescribing 
requirements for manufacturers of new aircraft, this proposed 
regulation is within the scope of the Administrator's general authority 
and fulfills the statutory mandate set forth in Sec.  44704(a).

Background

    On February 15, 2005, the FAA published in the Federal Register a 
proposal that, among other things, would incorporate into our 
regulations requirements contained in laws recently passed by Congress. 
See 70 FR 7829. One portion of the proposal would incorporate a 
provision enacted as part of Vision 100--Century of Aviation 
Reauthorization Act of 2003 (Pub. L. 108-176, 117 Stat. 2490). Section 
811 of that Act states that ``a person may manufacture a new aircraft, 
aircraft engine, propeller, or appliance based on a type certificate 
(TC) only if such other person is the holder of the type certificate or 
has permission from the holder.'' Accordingly, our proposal was to add 
a new section to our regulations, 14 CFR 21.6, which would prohibit 
manufacture of a new aircraft, aircraft engine, or propeller based on a 
TC unless the manufacturer is the holder of the TC or has a licensing 
agreement from the holder to manufacture the product. The comment 
period on the proposal closed on April 18, 2005.

The New Proposal

    The Safe, Accountable, Flexible, and Efficient Transportation 
Equity Act: A Legacy for Users (SAFETEA-LU), Public Law 109-59, which 
was signed into law on August 10, 2005, contains an exception from the 
requirement that the manufacturer of a new aircraft based on a TC be 
the holder of the TC or have the permission of the TC holder. This 
exception is available with regard to the manufacture of only one 
aircraft, which the person seeking the exception must have begun 
manufacturing before August 5, 2004.
    In light of this development, we are requesting public comment on 
the corresponding language we are proposing as a supplement to the 
original proposal (discussed below). We are not requesting comment on 
other portions of the original proposal at this time. The comments we 
received in response to the original proposal are posted in the 
electronic docket for public information purposes. We plan to respond 
to the issues raised by the commenters on the original proposal in the 
final rule document. We will also respond to any comments we receive in 
response to this supplementary proposal at that time.

Section 21.6 Manufacture of New Aircraft, Aircraft Engines, and 
Propellers

    The FAA proposes adding new Sec.  21.6(a) that 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 a production certificate, respectively, when 
manufacturing a new aircraft, aircraft engine, or propeller based on a 
type certificate. Proposed paragraph (a) is identical in content to 
Sec.  21.6 in the original proposal.
    Proposed Sec.  21.6(b) would allow a person to manufacture one 
aircraft without meeting the requirements of paragraph (a), provided 
that person can provide evidence acceptable to the Administrator that 
he or she began manufacturing the aircraft before August 5, 2004.
    The exception for a person who began to manufacture an aircraft 
before August 5, 2004 would apply only to aircraft, not to aircraft 
engines or propellers. This is based on the specific language of 
SAFETEA-LU, which specifically refers to aircraft, but not aircraft 
engines or propellers. The person seeking to manufacture a new aircraft 
under this exception would have to demonstrate to FAA's satisfaction 
that manufacturing began before August 5, 2004. Documentation that 
could be used to demonstrate manufacture of the aircraft prior to that 
date would include items such as: Receipts for purchase of parts or 
materials; dated photographs; and dated information received from the 
FAA related to the manufacturing or certification process for the 
specific aircraft.

Paperwork Reduction Act

    Information collection requirements in proposed Sec.  21.6 have 
previously been approved 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

    The FAA has determined that a review of the Convention on 
International Civil Aviation (ICAO) Standards and Recommended Practices 
is not warranted because there are no Standards and Recommended 
Practices that correspond to these proposed regulations.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, Regulatory Planning and Review, directs the 
FAA to assess both the costs and benefits of a regulatory change. We 
are not allowed to propose or adopt a regulation unless we make a 
reasoned determination that the benefits of the intended regulation 
justify the costs. Our assessment of this proposal indicates that its 
economic impact is minimal. Since its costs and benefits do not make it 
a ``significant regulatory action'' as defined in the Order, we have 
not prepared a ``regulatory evaluation,'' which is the written cost/
benefit analysis ordinarily required for rulemaking proposals under the 
DOT Regulatory Policies and Procedures. We do not need to do the latter 
analysis where the economic impact of a proposal is minimal.

[[Page 68376]]

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601 et 
seq.) directs the FAA to fit regulatory requirements to the scale of 
the business, organizations, and governmental jurisdictions subject to 
the regulation. We are required to perform a review when a proposed or 
final action will have a significant impact on a substantial number of 
``small entities'' as defined by the Act. If we find that the action 
will have a significant impact, we must do a ``regulatory flexibility 
analysis.''
    This proposed rule implements a one-aircraft exception to the 
requirement to obtain the TC holder's permission for a person building 
a new aircraft based on a TC when that person's manufacture of the 
aircraft began before August 5, 2004. Its economic impact is minimal. 
Therefore, we certify that this proposed action would not have a 
significant economic impact on a substantial number of small entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
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. The FAA has assessed the potential effect of this proposed 
rule and has determined that it will impose the same costs on domestic 
and international entities and thus has a neutral trade impact.

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.
    The 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.

Regulations Affecting Intrastate Aviation in Alaska

    Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 
3213) requires the Administrator, when modifying regulations in Title 
14 of the CFR in a manner affecting intrastate aviation in Alaska, to 
consider the extent to which Alaska is not served by transportation 
modes other than aviation, and to establish such regulatory 
distinctions as he or she considers appropriate. Because this proposed 
rule would apply to the certification of aircraft built by individuals 
or small businesses and their subsequent operation, it could, if 
adopted, affect intrastate aviation in Alaska. The FAA therefore 
specifically requests comments on whether there is justification for 
applying the proposed rule differently in intrastate operations in 
Alaska.

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. Therefore, we determined that this proposed rule does not 
have federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
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 308(c)(1) and involves no 
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this SNPRM under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, 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 in 14 CFR Part 21

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

The Proposed Amendment

    For the reasons stated above, the FAA proposes to amend part 21 of 
Title 14, Code of Federal Regulations as follows:

PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS

    1. The authority citation for part 21 continues 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) Except as specified in paragraph (b) of this section, no person 
may manufacture a new aircraft, aircraft engine, or propeller based on 
a type certificate unless the person:
    (1) Is the holder of the type certificate or has a licensing 
agreement from the holder of the type certificate to manufacture the 
product; and
    (2) Meets the requirements of subpart F or G of this part.
    (b) A person may manufacture one new aircraft based on a type 
certificate without meeting the requirements of paragraph (a) of this 
section if that person can provide evidence acceptable to the 
Administrator that the manufacture of the aircraft by that person began 
before August 5, 2004.

    Issued in Washington, DC, on November 4, 2005.
John J. Hickey,
Director, Aircraft Certification Service.
[FR Doc. 05-22457 Filed 11-9-05; 8:45 am]
BILLING CODE 4910-13-P