News - new ruling on AD applicability to homebuilts

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Jman

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EAA News - Big Win for Experimental Aircraft on AD Applicability


I believe it swung in the direction most of us thought it would, but it's nice to see it is official.

March 15, 2012 – EAA and experimental category aircraft owners waited a long time for this piece of good news, but it finally arrived on March 12, when the FAA published an updated Advisory Circular (AC 39-7D) on Airworthiness Directives (ADs). The circular formally set FAA policy that ADs are not applicable on non-type certificated aircraft, except when specifically noted. This is an issue that has been on EAA's "Top 10" list of advocacy issues and has been part of the agenda at the last three EAA/FAA Recreational Aviation Summits. The absence of FAA headquarters guidance had created a patchwork of regional policies that varied and at times conflicted with each other."This is an outcome that is the result of many hours of hard work on EAA's insistence that ADs do not apply to experimental aircraft," said Sean Elliott, EAA vice president of safety and advocacy. "It clears up a great deal of confusion by setting a consistent FAA policy."
The circular also maintained FAA's option to include experimental category aircraft in an AD but must state that inclusion. Examples may include an Emergency AD involving an immediate safety of flight issue or products that may be installed on type certificated and non-type certificated aircraft, such as aircraft engines, propellers, and similar products.
 

Dave Prizio

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It probably oversimplifies things to say we are "off the hook." The ruling does say that unless it specifically includes experimentals that it does not apply to them, but in this ruling the FAA has officially introduces the possibility that they may require AD compliance by experimental owners in the future. As far as I know this breaks new ground.

There is also the broader matter of certifying that your experimental is in a condition safe for flight. If an AD relates to a possibly deficiency on your plane, say with the engine, prop, or avionics, and you just ignore it, can you really certify that it is safe to fly? What liability do you create for yourself if you deliberately ignore something like this?

The great thing about experimentals is that we get to decide how to take care of our airplanes and do the work ourselves. It doesn't really mean that we are "off the hook" when it comes to doing things that need to be done to be safe.

Dave Prizio
 

TFF

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"The circular also maintained FAA's option to include experimental category aircraft in an AD but must state that inclusion. " It makes it easer on them and now there is no doubt you have to search ADs to make sure your part or aircraft is not included. Before, the statement in the ADs said something like" part xyz unmodified or modified." It never mentioned experimentals it just said if a part was used on an aircraft, in any form.
Before you could argue applicability; now you cant.
 

SVSUSteve

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There is also the broader matter of certifying that your experimental is in a condition safe for flight. If an AD relates to a possibly deficiency on your plane, say with the engine, prop, or avionics, and you just ignore it, can you really certify that it is safe to fly? What liability do you create for yourself if you deliberately ignore something like this

The same liability as you did before this came out. Even if you're not legally obligated to follow the FARs and ADs, you're still likely (assuming you're still alive) to face questioning as to why you didn't follow known advice and standards that have been established. I know of one case I assisted with where the builder was reamed up one side and down the other (before settling out of court) about his failure to follow guidelines for restraint installation

To me and a lot of other folks, thumbing one's nose at the FARs and ADs is a pretty silly/stupid thing to do from both a liability and safety standpoint. Those regulations, for the most part, exist for a reason. This "don't tread on me" attitude is a good thing if it is kept in check by common sense but as my grandfather liked to say "Common sense is an uncommon virtue".
 

Topaz

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"The circular also maintained FAA's option to include experimental category aircraft in an AD but must state that inclusion. " It makes it easer on them and now there is no doubt you have to search ADs to make sure your part or aircraft is not included. Before, the statement in the ADs said something like" part xyz unmodified or modified." It never mentioned experimentals it just said if a part was used on an aircraft, in any form.
Before you could argue applicability; now you cant.

So by and large, this would most likely apply to certified parts that are included in the experimental, yes? Could an AD apply to the (non-certified) airframe?
 

BBerson

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I know of one case I assisted with where the builder was reamed up one side and down the other (before settling out of court) about his failure to follow guidelines for restraint installation

.

EAA states that no homebuilder has lost in court (in an EAA video about liability with selling a homebuilt)

Your statement above seems to contradict the EAA statement. Or maybe every case has settled.
 

BBerson

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Could an AD apply to the (non-certified) airframe?

I would say no, none have been issued as far as I know. FAR 43 exempts experimental aircraft completely. But experimental aircraft must comply with Part 91 and maybe Part 39 Airworthiness Directives.
A review of Part 39 might be best to answer this question.
 

SVSUSteve

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Your statement above seems to contradict the EAA statement.

The cases I'm familiar with (n=3) through my work have all involved pilot/builders who wound up crashing their aircraft and killing or seriously injuring someone, not folks who sold their aircraft. It would be interesting to see the numbers of successful defenses for pilot/builders who themselves ended up killing or seriously injuring someone and either they or their estates decided to chance it with a jury.

Or maybe every case has settled.

Every case I am aware of has been...usually right after the depositions. I mean, when you're dealing with a jury of people who aren't familiar with homebuilding and the plaintiff's attorney points out that you didn't follow what are basically internationally accepted standards for aircraft design and construction, you would have to either be really ballsy or very stupid to go to trial over that. Whether we're legally beholden to them or not, we're certainly not doing ourselves any favors either in terms of safety or public perception thereof by not following those standards just because of some misguided "don't tread on me" mentality.
 
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bmcj

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So, AD implementation for homebuilts will most likely come in the form of engine, prop, avionics/instruments, or maybe even electrical (lights, batteries, etc). Instruments and electrical are pretty much a no-brainer... if you rely on the component and the FAA finds it to be potentially faulty or hazardous, then it is in your own best interest to comply with the AD. The same could also be said for engines and props, but maybe to a lesser degree. Sure, you rely on your engine and prop, but you also have leeway to make your own selection and modification. How do you enforce AD compliance when engine and prop can also be part of the "experiment"?

Additionally, many AD's only call for IRAN, meaning that they must be inspected, but only repaired/replaced if deemed necessary. In the case of the homebuilt, that leaves the decision in the lap of the builder, so no real inconvenience bayond what we might have imposed upon ourselves anyway.

Bruce :)
 

TFF

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What a local FAA said, was if they must write an AD on a homebuilt airplane, it could only apply to the one aircraft with the known problem. ADs are written to the manufacturer of the object so if they wanted to AD all the RV4s, they would have to write 2000 different ones. That is on your side; they dont have the time or money to do something like that. The big BUT is they can make an example of someone, which tarnishes homebuilding. The FAA has never written an AD on a homebuilt and pretty much let Darwinism run its course, but it is their sandbox and we are always one law away from canceling us if the public wants it. It is our best interest to at least try to comply. On the insurance side, they will try anything not to pay. Their use to be a turbine VK30 on my airport; crashed because AD was not done on the fuel control and was obvious. No pay out for a $400,000 airplane. I believe the pilot was a lawyer.
 

TFF

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I Know the WWII bombers used for fire bombing were given an AD when the wings were folding, but they had to resend it because the planes were flown under an experimental certificate. Vans has good service bulitens that are written like ADs and I have seen some from the plans sellers like Spezio make an effort.
 

SVSUSteve

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I think the Zenair wing spar mod is the closest thing we've seen to an AD on a homebuilt.
....and there was another grounding of a type of homebuilts back in the 80s according to the AOPA due to structural problems. Also, I believe there was an AD about the spars on the RV-3 due to people pulling the wings off of them while trying to pretend they were Maverick and Goose buzzing the field.
 

SVSUSteve

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So, AD implementation for homebuilts will most likely come in the form of engine, prop, avionics/instruments, or maybe even electrical (lights, batteries, etc). Instruments and electrical are pretty much a no-brainer... if you rely on the component and the FAA finds it to be potentially faulty or hazardous, then it is in your own best interest to comply with the AD. The same could also be said for engines and props, but maybe to a lesser degree. Sure, you rely on your engine and prop, but you also have leeway to make your own selection and modification. How do you enforce AD compliance when engine and prop can also be part of the "experiment"?

Additionally, many AD's only call for IRAN, meaning that they must be inspected, but only repaired/replaced if deemed necessary. In the case of the homebuilt, that leaves the decision in the lap of the builder, so no real inconvenience bayond what we might have imposed upon ourselves anyway.

Bruce :)

Granted, my experience is a bit biased given what my work happens to involve but almost all of the contention in those three cases seemed to be over restraints and occupant protection.
 

aeromike49

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Big Win regarding AD notes? I don't see any "Win" here as it seems to be the same as it always was. AD notes apply to specific ( FAA certified) components and aircraft. Experimental amateur built aircraft are each built by a different person or persons unlike a Cessna or Piper of a specific make or model built by a factory. However if there is a certified propeller or engine installed then even if a person can argue that since the engine or prop is installed on an experimental plane that automatically makes it "experimental" or does it ? As soon as you take the prop or engine off of an experimental then it’s not experimental anymore?? Or is it? The fact remains that a condition inspection sign off means that the experimental plane and all of its components are in a condition for safe operation. If there is an AD note that addresses a certain part as unsafe - maybe a crankshaft or propeller hub that has has a history of failures then it could be unsafe regardless of what type of plane the engine or prop was installed on. The person that signs off the condition inspection should be aware of this responsibility to ensure that any part proven as defective (as in the case of an AD note) is not included as part of the aircraft regardless of the experimental nature of the plane. So does an AD apply? That’s up to the person signing off the condition inspection. However as my old boss used to state "Better be able to answer the mail"?
 

TFF

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It is always up to the A&P or repairman to get it right on ADs.
It is all a legal mess. Lycoming and Continental both have service letters and the FAA asks for the removal of data plates for experimental engines; to them an engine installed on an experimental plane becomes experimental. Some DARs will not sign the AC off without removal, most tell you to file it away; some dont care. The local FSDO asks not to remove them so they can ID an engine. The Type Certificate of a stock engine is voided once put on an experimental and it takes an entry from an A&P at minimum to return it to a certified state. On and on.
I know of two RVs with a miss match of engine parts. An RV 7 I use to work on had a fixed pitch Citabria engine that was converted to a constant speed prop. The rear case had to be changed for the Gov. and the main case and oil pan did not accommodate the prop oil return mounting, defiantly not the stock crank. The RV4 next door started out as a small deck engine but has angle port heads, high compression pistons, some oil pan that did no come on a small deck engine along with data plate. With these it is a guess on parts. If signing off the condition inspection, which both owners did not build the planes, there is a bunch to trip up on.
 
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