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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-9563

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** April 21, 1994

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-9563. Public record. Not legal advice.