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Changes to FAA Guidelines for Type Certification of Military Surplus Aircraft and Parts

Since the end of World War II, large numbers of military aircraft and military surplus spare parts have entered the civilian market. Many military surplus aircraft enter the civilian sector under a Restricted Category Type Certificate. 14 CFR §21.25(a)(2). While many military parts look the same as their FAA approved civil counterparts, they are not automatically FAA approved for installation.1 Such sales have, on occasion, caused problems from both a regulatory standpoint and increased liability exposure to Original Equipment Manufacturers (“OEMs”) where surplus aircraft and non-FAA certified surplus parts find their way back into the civilian market in highly modified configurations operating well beyond their original design limitations.

Prior to 2006, FAA Order 8110.4 policy guidelines for Type Certification contained relatively few instructions specifically geared to certification of restricted category surplus aircraft. With increased incident rates, however, particularly in areas of repetitive heavy lift and firefighting operations, changes began to occur. A milestone of change occurred on February 27, 2006, when the FAA adopted FAA Restrictive Category Type Certification Order No. 8110.56.

FAA Order 8110.56 supplements Order 8110.4 (Type Certification) and details the responsibilities and procedure for Type Certification of Restricted Category Aircraft under 14 CFR §21.25. The following highlights some of the more important aspects of this Order. FAA Order 8110.56 is divided into five chapters.2 Of particular interest for purposes of this discussion are Chapters 2 and 4. Chapter 2 contains general guidelines for determining the Level of Safety and Certitude in compliance under 14 CFR §21.25 (a). Under these guidelines the applicant must show that “no feature or characteristic of the aircraft makes it unsafe when it is operated under the limitations prescribed for its intended use. Intended use means any operation that supports the approved special-purpose operation.” Ch. 2-6(a).

To demonstrate that the aircraft is safe for its intended use, the applicant must “complete an assessment of the aircraft in the special-purpose mission operating environment … [which may] require a fatigue and loads analysis of the aircraft in the mission operating environment to establish the limitations for safe operation, including life limits of fatigue-critical and fatigue-sensitive components.” Ch. 2-6(b). Applicants may base their fatigue and loads assessment for military-derived aircraft on a comparison of the proposed special- purpose mission operating environment with the aircraft’s previous military operating environment. However, where the special purpose operating environment is more severe than the military, the applicant may be required to identify those parts “not previously life-limited that become life-limited in the special-purpose operation.” Ch. 2-6(b)(5).

Chapter 4 of the Order sets forth instructions for aircraft eligibility, approved manuals, model number identifiers, serial numbers, data plates, continued airworthiness, TC holder responsibilities, production limitations, TC inspection and intra-departmental coordination.

In order to be eligible for a restricted category TC, the surplus aircraft must be manufactured in the United States for and accepted by the Armed Forces. A surplus aircraft of a foreign government or military is not eligible unless it was brought back into the U.S. Armed Forces inventory after foreign service or was previously surplused by the U.S. Armed Forces and the original manufacturer inspects the aircraft and attests in writing that it conforms to applicable design requirements and is in a condition for safe operation. Ch. 4-3(a). The surplus aircraft must be complete with all components matching the aircraft’s last military configuration at the time of sale. Separate TCs for engines, propellers or other components are no longer allowed. Surplus identified by the DoD as Category B (those aircraft not intended for further flight or intended for scrap or ground use only) are not eligible for certification.3 Basic documents needed for TC approval include:

• Data showing a satisfactory service life of ten years in the military.

• U.S. Armed Forces bill of sale and documentation showing the U.S. Armed Forces intended the aircraft for further flight and not for scrap.

• Historical records showing that the aircraft and its components are configured in the same manner as its last military configuration prior to surplus.

• Military flight, maintenance and overhaul manuals, technical orders, illustrative part catalogs, list of life limited parts, military life limits, and a list of all applicable ADs or their military equivalents.

• Documentation supporting safe for intended use assessment, which may include an analysis of fatigue, loads and life limits on critical components, and data necessary to establish a base line fatigue state for the aircraft using engineering assessment with detailed inspections including tear-down inspections as necessary.

• All design, test and analysis data required to substantiate any modifications to the aircraft made by the applicant.

The TCs for surplus aircraft are now based on the military aircraft type or MDS (Mission Design number and Series) and military serial numbers, not the OEM’s civilian model or serial numbers. Ch. 4-9(a). The military MDS number will appear on the Registration Certificate, the TC, the Civil Data Plate, the Airworthiness Certificate, and in the block on the TCDS, and in any configured descriptions. An applicant’s own model designation for military surplus aircraft is not allowed. Ch. 4-8(b)(1). The military flight and maintenance manuals will be used based on the military’s MDS as configured at the time of surplus along with any applicable Airworthiness Directives (AD). Ch. 4-2(i). Additional limitations may be imposed depending on the special purpose and assessment as required under Chapter 2, above. Id. Similar to an OEM, chapter 4-6 sets forth the surplus aircraft TC holder’s responsibilities which now include:

• Overseeing continued operational safety. • Complying with the requirements under 14 CFR 21.3 for reporting failures, malfunctions and defects.

• Responding to required design changes under 14 CFR 21.99.

• Responsibility for the entire aircraft not just the modifications they make.

• Responsibility for all aircraft issued and the Airworthiness Certificates based on their TC regardless of ownership of the aircraft.

• After completing certification, inserting the TC holder’s name on the Type, Airworthiness, and Registration Certificates in place of the manufacturer’s or builder’s name as appropriate.

Unlike an OEM, the surplus aircraft TC owner does not acquire production rights. In order to produce a new aircraft from spare or surplus parts, the applicant must have written permission from the holder of the original design data before approval of production of a new aircraft.4 New production military derived aircraft type certificated in restrictive category and manufactured under an FAA approved production certificate are eligible for an airworthiness certification without passing through the military acquisition system. Ch.4-7(b).

A surplus aircraft must always have its military data plate attached. If there is no military data plate, then it is not eligible for certification. In addition, a separate civil data plate must be attached to the aircraft, and must include: TC holder’s name (instead of the builder’s name); military aircraft’s MDS; military serial number; engine and propeller models, TC number to issue the Airworthiness Certificate and date the aircraft was established as airworthy and eligible for an airworthiness certificate. Ch. 4-10.

In sum, the FAA and military have tightened considerably the regulations concerning the sale and certification of surplus aircraft and parts. Unfortunately, the new policy guidelines do not appear to be retroactive and there is a grandfather clause for aircraft and parts purchased prior to the effective date of the new Order. Even so, FAA Order 8110.56 for Type Certification of Restricted Category Aircraft in conjunction with the traditional GARA and Government Contractor affirmative defenses, should substantially reduce the liability exposure to OEM’s for military surplus aircraft and parts which re-enter the civilian market.