Garry Kingma with his 51 percent rule qualifying Sonerai II. Photo by Phil Weston

The FAA’s amateur-built experimental aircraft category must be preserved, so that individuals can continue to build their own airplanes for "education and recreation." That was the strong consensus at a meeting of the Amateur-Built Experimental Aviation Rulemaking Committee (ABE-ARC), a working group of FAA and industry leaders who are addressing issues relating to the ABE rule, on Thursday at EAA AirVenture.

At past ABE-ARC meetings, FAA officials have voiced serious concerns over abuses of the "51 percent rule," which says an aircraft cannot qualify for amateur-built certification unless the owner/builder has completed at least 51 percent—"the major portion"—of the work of building the aircraft. Paul Fiduccia, president of the Small Aircraft Manufacturers Association (SAMA), noted that the definition, interpretation, and verification of the "major portion" clause have been an issue since the rule was issued.

More recently, said John Hickey, FAA’s director of aircraft certification, "We have experienced an evolution in amateur-built aircraft, into something that is not part of the original intent of the rule.

"I am an absolute believer in the amateur-built rule," he added, "and we [FAA] are going to do everything we can to support it." But, he said, "We’re working up to a situation where people are not building their own airplanes. I cannot accept a policy that would support amateur-built aircraft certification for airplanes that are not built by their owners."

It was admitted that there are a lot of people buying airplanes in the amateur-built category who never touched their airplanes during construction—a clear abuse of the 51 percent rule. The committee’s goal, they agreed, is to preserve the 51 percent rule, avoid abuses, and not hurt builders who unknowingly violate the "major portion" clause.

The FAA needs to provide clear guidance on what "51 percent" means and how to compute it, Hickey told the group. "I want to look for a policy that is clear and transparent to the industry, to builders, and to inspectors."

Dick VanGrunsven of Van’s Aircraft, Lancair General Manager Tim Ong, SAMA Executive Director Paul Fiduccia, and others noted that the critical issue for the ABE-ARC and the 51 percent rule—the "sticking point"—came down to the question of how to measure 51 percent of the work on an amateur-built aircraft. There is currently no single standardized accounting system for assigning credit for work to the builder, the kit manufacturer, or both. Hickey cited FAA’s particular concerns with quick-build kits, in which major assemblies are completed by the manufacturer, and about composite kits, for which major composite components are virtually always fabricated by the manufacturer.

"I want us to work together and come up with an accounting system that is transparent and that we can defend," he said. Hickey assured the manufacturers that he is looking to the expertise of the ARC members for ways to preserve the 51 percent rule. "I don’t know what the answer is; I’m asking you guys to come up with a proposal." But at the end of the day, he said, some kits might not meet the 51 percent test.

As for abuses and misapplications of the 51 percent rule, Hickey said, "I’m concerned that if we don’t police this properly, we are in danger of losing the entire rule."

SAMA’s Paul Fiduccia outlined several possible ways to prevent abuse of the 51 percent rule, including the creation of a Kit Evaluation Team (KET) within the FAA that would have the expertise to evaluate kit manufacturers and commercial builder assistance programs for compliance with the rule. Other items suggested by SAMA included clear guidance on situations that might not meet the "recreation and education" intent of the rule; more detailed disclosure by builders about commercial builder assistance they have received; and changes in the builder’s task list and aircraft inspection process to prevent fraudulent claims by "builders" who haven’t actually built their aircraft.

FAA officials want the kit manufacturers to continue working on this with the support of the agency. In particular, tell the FAA what companies do to comply with the 51 percent rule. If it’s legally defensible, that’s what they’re looking for.

"We need you to give us a few more months to work on this," EAA’s Earl Lawrence told the FAA officials. In response, Hickey said that he is being pressured by his superiors to come up with a solution, "but I will tell them we need more time."