From: Kevin O'Brien <kevin@useorganisationasadomainname.com>
Newsgroups: rec.aviation.homebuilt
Subject: Re: FAA 51% rules
Date: Tue, 02 May 2000 09:57:19 -0400

In article <LVoO4.2927$LM4.193342@monger.newsread.com>, "Alan Higgs"
<ahiggs@netcrafters.net> wrote:

> Ron:
>
> CFR is law.  Code of Federal Regulations.
>
> Major portion:  The FAA ONLY requires that a kit require 51% for the
> Amateur-builder to construct.  This is determined BEFORE the kit is
> bought...in most cases.  The FAA has no intentions of increasing the
> percentage.  Regardless, majority is anything more than 49%,
> mathematically
> speaking.

One small clarification here... the FAA requires that more than 49% be
built by an amateur builder, it doesn't need to be the last builder, the
one that registers the aeroplane. I mention this because it's frequently
asked here in the NG. Some would-be builders fear that if they buy a kit
with 40% of the work done by a previous builder or series of builders,
and another 51% prepared by the kit factory, the FAA will not permit
them to register. This is not the case. Such a builder might not be
qualified for the repairman certificate for the aeroplane, so he would
have to contract an A&P (not even an IA) for his condition inspections,
which is a completely different issue from whether the aeroplane is
certified as amateur-built or not. Because of the restrictions on other
expo. certificates, the amateur built certificate is most desirable. I
have heard anecdotal evidence of a/c built by hired guns where the FAA
insisted that they be registered as experimental exhibition, but it's
always a sort of urban rumour...

In my experience the FAA people are eager to work with the community and
get safe planes properly registered. They can't overlook violations of
the laws. If you have transgressed on something like the am-built regs
they will often be helpful in suggesting a method of compliance woith
the letter of the law that is least onerous. The FAA is made up of
people (an issue I'll revisit in a moment) and there no denying that
many of them love aviation and go out of their way to help.

> The dual controls issue came up because of the NTSB...NOT the
> FAA.. <snip> The FAA did not instigate this issue.

Actually you are mistaken here, Alan. While NTSB has he Dual Controls
issue at the RIC FSDO arose because someone in the FSDO had a beef with
a particular Part 61 school and decided to 'get' the school. The letter
or interpretation was only issued to ONE operator. Incidentally, the
letter-groups did pitch in but the issue was first raised by the
electronic media, especially AvWeb. The FAA was already backpedalling
furiously by the time the big guns like AOPA got into battery (not that
their attention to this madness is unwelcome).

Under the law and the regs an FSDO manager and a regional counsel (the
people involved in this power grab) can't even issue an interpretation
(only the GC can), but they did, and until the office of the GC could
overrule them their illegal, petty and just plain stupid
'interpretation' had the force of law. In fact, it still does -- ask the
poor CFI candidate they busted on his checkride over this. I think one
of Ron's major beeves is that there's no recourse if you wind up singled
out like this.

If a flight school operates illegally or unsafely the FAA has a duty to
close it down if need be to correct the deficiencies. However, in the
absence of illegal or unsafe operation there is no justification for the
type of schoolyard vendetta we've just seen in Richmond. In this case
the FAA is obligated to treat the school and examinees from that school
identically to any other, a standard they clearly haven't achieved.

> Ron, you obviously are disgruntled with the FAA.  You state, "but on a
> bureaucratic whim they could change it tomorrow."  Ron, the EAA would be
> all over them BIG DOG.

Would that stop them? It took YEARS to resolve the Hoover thing, which
was nothing but a couple of FAAniks deciding they could make a big name
for themselves by grounding a famous airshow performer, and even then
the FAA refused to admit that they were wrong or out of line. It took
YEARS and the personal intervention of the Administrator to get them to
let go of Bill Bainbridge's neck, and they again never admitted being
wrong nor were there any consequences for the bureaucrats who
perpetrated this wrong. In both of these cases the entire community was
up in arms to the point where the Administrator considered NOT attending
GA fly-ins. Ron is absolutely right that they could change it tomorrow.
You are absolutely right that the three-letter groups, the net, and
vigilance mean that they probably won't. For instance, the retarded
rewrite of the mechanics' regs died on the vine because people knew
about it and stopped it. Remember, the FAA is people... many of which
are as captivates as we by the dream of flight, and a small but
increasing number of whom are uninformed, arrogant lawyers.

> Believe me, Ron, the FAA are victims by due process as well.

I think it's a good thing that FAA is largely decentralised and that
local FSDOs have a degree of autonomy. However, we have seen a number of
cases where rogue inspectors abetted by the sort of lawyer that asks
'what do you WANT the law to be?' have acted in a manner that is
inappropriate for agents of a constitutional republic. The one that
REALLY burns me is the Mike Taylor case; another one where somebody was
singled out and a stretched interpretation of a reg rammed down his
throat. The details of that are on Phil Kolczynski's website at
www.aviationlaw.com although Phil does not mention Mike by name.


> Who do you think the Dignitary complained to?
> Three letters...FAA.

That's appropriate; I can't speak for Ron but I have no beef with the
FAA enforcing the regs impartially and in the interests of safety. I get
very concerned when they enforce it selectively, and EXTREMELY concerned
when attempts to subvert the law for personal gain of whatever kind go
unpunished. I have written a little more about the brakes issue as a
letter to AvWeb, so I won't repeat it all here.

cheers

-=K=-