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

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]

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