Aircraft accident prior to issuance of AWC (hypothetical)

Completely theoretical question here, but I'm hoping the DER/DAR/FAA expertise can chime in. If you have a "aircraft" that does not yet have an AWC, but at some point that "aircraft" jumps the chocks and causes more than 25k damage to a structure on the airport, or during first engine run prior to issuance of AWC someone walks into the propeller of the "aircraft", is this required reporting under part 830 or the NTSB reporting requirements?

Aircraft is in quotes because as I understand it, before the AWC is issued, you don't have an aircraft, you have a pile of parts. And there are no reporting requirements if an "aircraft" isn't involved.

I think your interpretation is correct. But I am not a lawyer.
Is there a story here?
I can tell you that after I registered my -10 (N number) but before my AW inspection, I received a property tax letter from the county. I replied that as I did not yet have an AW certificate, I didn’t have an ‘airplane’. They accepted that arguement.

I'm writing the test plan and risk mitigation plan for initial ground and flight testing at the company I work for. We'll be doing a bunch of in-hangar system checkouts and envelope expansion on the motors, high voltage systems, etc. In the test plan, I've signed us up to follow the applicable FAA guidance in 4040.26C as well. There's also a paragraph in my plans that calls out incident/accident reporting in accordance with part 830 and NTSB requirements. We're not scheduled to get our AWC until all the hangar testing is complete and the company is asking why we should report before we get issued an AWC. Technically, because we're going for an experimental R&D AWC, 4040.26C will never apply to us either, but it's still a good process to follow to be safe.

So I guess I'm looking for some justification from the experts here on how to convince the company the FAA may be interested if we burn the hangar down with a new aircraft design that isn't technically and aircraft yet. There is technically no legal requirement to follow any FAA guidance on test planning or safety mitigation with an R&D AWC, but that also seems like a very dumb thing to ignore. But realistically, if there's no legal requirement to report, then maybe I just take that wording out of the plan for now.

While this doesn't directly contribute to your original question of reporting that type of incident, but hope adds to related discussion.

I know insurance companies consider that once the aircraft moves under it's own power, it's now an airplane - regardless of whether or not it has a registration, a/w certificate, or tail number. I plan to have full 'airplane' coverage before first engine start due to this. You wouldn't be able to argue that its still a 'non-airplane project' under a builders policy for an in-motion claim.

iwannarv said:

While this doesn't directly contribute to your original question of reporting that type of incident, but hope adds to related discussion.

I know insurance companies consider that once the aircraft moves under it's own power, it's now an airplane - regardless of whether or not it has a registration, a/w certificate, or tail number. I plan to have full 'airplane' coverage before first engine start due to this. You wouldn't be able to argue that its still a 'non-airplane project' under a builders policy for an in-motion claim.

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Look at your builders policy, it likely covers certain things such as taxiiing to a fuel pump and engine start.

FAA regulation and insurance coverage are two separate things. Which one are you worried about?

My guess is that you can notify the FAA all you want, but without a "file" for an actual aircraft (that is, with an A/W certificate), they'd be stuck not being able (or willing) to do anything.

What's the difference between the day before getting the certificate or 5 years before, in the event everything turns into a **** sandwich and things get torn up, as far as the government is concerned? My money is on...nothing. It's not their responsibility or their authority unless and until it's actually a registered, airworthy aircraft in their records.

There is another possibility, that some FAA ****** could get after you for operating a non-registered aircraft. That's just paranoid speculation on my part...

Ed_Wischmeyer said:

There is another possibility, that some FAA ****** could get after you for operating a non-registered aircraft. That's just paranoid speculation on my part...

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Ah, but it's not an *aircraft* yet, as it has no A/W certificate, registered or not.

If this were truly a violation, then essentially anyone who taxis their not-yet-an-airplane during the final build, under power, has broken the law. And that can't be the case.

Unless, of course, it leaves the ground, then you ARE violating the law. But let's keep the case simple and assume no flight takes place.

The real answer is to find if the FAA has ever violated someone for having an accident in a "thing" before it's certified as an airplane. Anyone know of a case?

OSHA

agent4573 said:

I'm writing the test plan and risk mitigation plan for initial ground and flight testing at the company I work for. We'll be doing a bunch of in-hangar system checkouts and envelope expansion on the motors, high voltage systems, etc. In the test plan, I've signed us up to follow the applicable FAA guidance in 4040.26C as well. There's also a paragraph in my plans that calls out incident/accident reporting in accordance with part 830 and NTSB requirements. We're not scheduled to get our AWC until all the hangar testing is complete and the company is asking why we should report before we get issued an AWC. Technically, because we're going for an experimental R&D AWC, 4040.26C will never apply to us either, but it's still a good process to follow to be safe.

So I guess I'm looking for some justification from the experts here on how to convince the company the FAA may be interested if we burn the hangar down with a new aircraft design that isn't technically and aircraft yet. There is technically no legal requirement to follow any FAA guidance on test planning or safety mitigation with an R&D AWC, but that also seems like a very dumb thing to ignore. But realistically, if there's no legal requirement to report, then maybe I just take that wording out of the plan for now.

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Seems like OSHA might be a bigger headache.

Accident vs. Incident

What you are touching upon is from 49 CFR 830.2 and the definition of 'accident' which is reportable to the NTSB (and not the FAA, no obligation to contact the FAA in either event) and a 'incident'. An incident is "an occurrence other than an accident, associated with the operation of an aircraft . . . An 'accident' which is reportable to the NTSB is an occurrence associated with the operation of an aircraft which takes place "between the time any person boards the aircraft with the intention of flight' and the statute continues on referencing any person suffers death or serious injury, or in which the aircraft receives substantial damages or $25,000 in damage to other property. Serious injury and substantial damage also has lengthy definitions.

As I understand your hypothetical, there was no intention on flight, so there would not be a 'accident' to be reported. The statute itself does not answer your question about is a collection of parts without an AWC being an airplane and could be a valid point that I would want to look into to answer. But the main point is the reporting is to the NTSB versus FAA and that is a significant factor. Anytime there is an "issue" you should do a detailed review of the statue to see if it needs to be reported to the NTSB. You may have an obligation to the FAA if they started an investigation (give them your log books, ect.) but you do not have to report it or discuss it with the FAA.

If the company has a real concern over FAA and NTSB issues of these nature they should probably retain an attorney with a solid aviation background versus relying upon post here. (PM me if you want more information - I have 45 years flying experience, own 3 aircraft including a RV4 I just built and 30+ year attorney doing aviation matters)

Ed_Wischmeyer said:

There is another possibility, that some FAA ****** could get after you for operating a non-registered aircraft. That's just paranoid speculation on my part...

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unless it takes flight, or you are intending to take flight, its just an odd looking trike. the dmv might care, but the faa has no say in it.

n82rb said:

unless it takes flight, or you are intending to take flight, its just an odd looking trike. the dmv might care, but the faa has no say in it.

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So let's take the hypothetical one step further. I'm building a helicopter of my own design and have a hangar large enough that I can operate my helicopter inside the hangar. I fly my helicopter (before getting an AWC) in the hangar and crash it. Since I wasn't in the NAS and I didn't have an AWC, was I flying an unregistered aircraft, or did I just crash my pile of parts? I guess a similar idea would be when mythbusters proved the "human powered helicopter" idea. Did they have to register that and get an N number before they were allowed to attempt to fly that inside a hangar?


MarlonYoung, I appreciate the offer, but we have lawyers on staff and a few DERs as consultants. My main issue is that they are all very "certificated" focussed. They've already asked us for documentation and process that's only required during certification efforts and the default answer to any questions is to make us do everything boeing did during their last cert effort, even though we're an experimental r&d. So this will stay a hypothetical, and the final answer will eventually be whatever agreement we can work out with the FAA, but having valid counterpoints to the "abundance of caution" default solutions will help save us years of testing.

FAR definitions

CFR 1.1
Aircraft means a device that is used or intended to be used for flight in the air.
Doesn’t really say anything about an AWC. A good lawyer could swing this in either direction I suppose.

RV7A Flyer said:

My guess is that you can notify the FAA all you want, but without a "file" for an actual aircraft (that is, with an A/W certificate), they'd be stuck not being able (or willing) to do anything.

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I think that you will need to dig deep into the FAR's as well as any applicable FAA official interpretations (similar to judicial precedence in the legal system) in order to figure out "What" constitutes an airplane in relation to this specific reporting requirement. I wouldn't trust anyone but an experienced aviation lawyer on this matter.

I can say with good certainty that once an aircraft is registered, the FAA knows about it and has a "file" for it and considers it an "airplane." Whether or not an airplane is airworthy is something entirely different. If you take parts off your plane it is no longer airworthy sitting in your hanger, but it is still a plane. An AWC can be revoked, reissued and temporarily suspend, all with the registered aircraft still being an aircraft. There are also countless FAR's that temporarily make a plane un-airworthy, however it is still a registered plane and therefore subject to any laws relating to that class of aircraft.

I do not feel that the AWC is the key magic document that turns a pile of parts into an airplane in the eyes of the FAA and have a guess on your question, but purely a guess and that is not what I would want to give my boss in a corporate setting.

Larry

agent4573 said:

So let's take the hypothetical one step further. I'm building a helicopter of my own design and have a hangar large enough that I can operate my helicopter inside the hangar. I fly my helicopter (before getting an AWC) in the hangar and crash it. Since I wasn't in the NAS and I didn't have an AWC, was I flying an unregistered aircraft, or did I just crash my pile of parts? I guess a similar idea would be when mythbusters proved the "human powered helicopter" idea. Did they have to register that and get an N number before they were allowed to attempt to fly that inside a hangar?


MarlonYoung, I appreciate the offer, but we have lawyers on staff and a few DERs as consultants. My main issue is that they are all very "certificated" focussed. They've already asked us for documentation and process that's only required during certification efforts and the default answer to any questions is to make us do everything boeing did during their last cert effort, even though we're an experimental r&d. So this will stay a hypothetical, and the final answer will eventually be whatever agreement we can work out with the FAA, but having valid counterpoints to the "abundance of caution" default solutions will help save us years of testing.

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I think the key difference with your hypothetical is that is was not registered. Once you register an aiplane with the FAA, you can no longer make a legal claim that is IS NOT an aircraft. I suspect that if you assembled a helo in your hanger and flew and damaged it INSIDE your hanged and it wasn't registered, the FAA would have a difficult time pursuing you, but not convinced they wouldn't ultimately win anyways. However, that hypothetical no longer applies to you, as you have already registered this plane with the FAA. No going back and saying we were just playing around with parts. If you crash your un-registered car into your neighbors house, do you somehow think the local police would be unable to charge you with various motor vehicle laws? If you do not have a drivers license, are you immune from receiving traffic violations? You get the point, a car is a car, a driver is a driver and a plane is a plane. The legal labelling, registration, certification, etc. has little relevance on your requirement to follow the laws put in place related to the use of that vehicle type. I would not want to be in court arguing that my airplane was not really an airplane just because the AWC was not issued.

If there is a FAR (i.e. Federal Law) that airplane accidents must be reported I don't see how you end run that by saying that it had no AWC and therefore not an airplane. If the judge and jury can look at a picture and deduce that it is an airplane, then it is an airplane and the operator must follow the laws put in place for possessing or using that airplane.

I am no attorney but….

So if the crate my kit comes in falls off the truck and causes a death, does the FAA or NTSB care?

What if the unfinished fuselage falls and kills me in my hangar?

What if my overhauled motor explodes on a test stand and causes death or burns my hangar down?

I had an engine quit in a Learjet at FL450, emergency declared and fire trucks dispatched. All ended safely and nobody at the FAA was interested in any details or reports.

My guess is that you are over thinking the purpose of the reporting process.

lr172 said:

I think that you will need to dig deep into the FAR's as well as any applicable FAA official interpretations (similar to judicial precedence in the legal system) in order to figure out "What" constitutes an airplane in relation to this specific reporting requirement. I wouldn't trust anyone but an experienced aviation lawyer on this matter.

I can say with good certainty that once an aircraft is registered, the FAA knows about it and has a "file" for it and considers it an "airplane." Whether or not an airplane is airworthy is something entirely different. If you take parts off your plane it is no longer airworthy sitting in your hanger, but it is still a plane. An AWC can be revoked, reissued and temporarily suspend, all with the registered aircraft still being an aircraft. There are also countless FAR's that temporarily make a plane un-airworthy, however it is still a registered plane and therefore subject to any laws relating to that class of aircraft.

I do not feel that the AWC is the key magic document that turns a pile of parts into an airplane in the eyes of the FAA and have a guess on your question, but purely a guess and that is not what I would want to give my boss in a corporate setting.

Larry

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We're not nypothesizing on an incident or an accident in an aircraft with an AWC. Read the hypothetical in post 1 again:

If you have a "aircraft" that does not yet have an AWC

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Yes, however, you are right that the proper forum for a discussion such as this is with an attorney who knows aviation law. Unless you're looking for every conceivable answer under the sun, in the hopes someone will tell you what you want to hear...in which case, the internet is just fine.

agent4573 said:

MarlonYoung, I appreciate the offer, but we have lawyers on staff and a few DERs as consultants. My main issue is that they are all very "certificated" focussed. They've already asked us for documentation and process that's only required during certification efforts and the default answer to any questions is to make us do everything boeing did during their last cert effort, even though we're an experimental r&d. So this will stay a hypothetical, and the final answer will eventually be whatever agreement we can work out with the FAA, but having valid counterpoints to the "abundance of caution" default solutions will help save us years of testing.

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Is this *your* company, or someone else's? If it were mine, I'd be pretty tempted to say "thanks, counselor, for providing COUNSEL, but we've decided not to do all that until it is required". If it's someone else's company, well, you might just have to suck it up.

I've seen waaaaay too many times where reasonable, perfectly legal things were shot down by in-house attorneys and management just accepts their opinion as decisive. 99% of the time, doing what the attorneys say is the best course, naturally. But they're not infallible. And IMO, most in-house counsel is scared stiff about any possibility of ending up court, so they are super-conservative, sometimes needlessly so.

But, if it ain't your company, is it really worth arguing about? You'll at least have all the paperwork ready to go ahead of time, when it comes time to register and get the AWC for the collection of parts.

RV7A Flyer said:

We're not nypothesizing on an incident or an accident in an aircraft with an AWC. Read the hypothetical in post 1 again:

.

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I am aware. The OP seemed to be looking for whether on not having an AWC would change the rule requiring reporting and I was pointing out that it likely doesn't matter whether an AWC was issued or not when determining that an aircraft had an incident or accident. Was also responding to you comment that the FAA doesn't have a "file" on your plane with just a registration and believe that is inaccurate. Once you register an aircraft with the FAA, they absolutely have a record of your plane.

lr172 said:

I am aware. The OP seemed to be looking for whether on not having an AWC would change the rule requiring reporting and I was pointing out that it likely doesn't matter whether an AWC was issued or not when determining that an aircraft had an incident or accident. Was also responding to you comment that the FAA doesn't have a "file" on your plane with just a registration and believe that is inaccurate. Once you register an aircraft with the FAA, they absolutely have a record of your plane.

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You're right...I was thinking of an N-number reservation.

Not sure what they have if you have filed a registration, as you have to, prior to an AWC.

I had ASSumed the OP had not registered it yet, since they seem to be in R&D still, but that might be wrong.

RV7A Flyer said:

You're right...I was thinking of an N-number reservation.

Not sure what they have if you have filed a registration, as you have to, prior to an AWC.

I had ASSumed the OP had not registered it yet, since they seem to be in R&D still, but that might be wrong.

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We have a registration. Just no AWC.

agent4573 said:

We have a registration. Just no AWC.

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Still, until it has a dataplate attached to it, who is to say it's the aircraft in the registration documentation?

"That wreck over there? THAT'S not the aircraft I registered. I'm still designing that one. See? That wreck has no dataplate nor AWC. It's just a test I was running."

*After* the AWC, along with the permanently attached dataplate, you have a different situation. Removing the dataplate from the wreck would constitute evidence of attempted fraud, I would think.