Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 Airplanes

AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.

SUMMARY:

The FAA is revising an earlier NPRM for an airworthiness directive (AD) that applies to certain EMBRAER Model ERJ 170 airplanes. The original NPRM would have required replacing the mini-latches on certain lavatory waste compartment doors with new, stronger latches, and other specified actions. The original NPRM resulted from reports of certain lavatory waste compartment doors opening during flight due to movement of the waste compartment during takeoff, because the mini-latches installed on the doors of those compartments lose their strength over time. This action revises the original NPRM by adding airplanes to the applicability. We are proposing this supplemental NPRM to prevent the inability of the waste compartment doors to adequately contain a fire inside the lavatory waste compartment, and consequent uncontained fire and smoke within a lavatory during flight.

DATES:

We must receive comments on this supplemental NPRM by February 20, 2007.

ADDRESSES:

Use one of the following addresses to submit comments on this supplemental NPRM.

• DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically.
• Government-wide rulemaking web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590.
• Fax: (202) 493-2251.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil, for service information identified in this proposed AD.

FOR FURTHER INFORMATION CONTACT:

Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 227-1175; fax (425) 227-1149.

SUPPLEMENTARY INFORMATION:

Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2006-25419; Directorate Identifier 2006-NM-055-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments.

We will post all comments submitted, without change, to http://dms.dot.gov,, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this supplemental NPRM. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

Examining the Docket

You may examine the AD docket on the Internet at http://dms.dot.gov,, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level in the Nassif Building at the DOT street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the Docket Management System receives them.

Discussion

We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking (NPRM) for an airworthiness directive (AD) (the “original NPRM”). The original NPRM applies to certain EMBRAER Model ERJ 170 airplanes. The original NPRM was published in the Federal Register on July 28, 2006 (71 FR 42776). The original NPRM proposed to require replacing the mini-latches on certain lavatory waste compartment doors with new, stronger latches, and other specified actions.

Since we issued the original NPRM, we have received Revision 01 of EMBRAER Service Bulletin 170-25-0024, dated January 9, 2006. The procedures in EMBRAER Service Bulletin 170-25-0024, Revision 01, are essentially identical to those in the original issue of the service bulletin, dated July 21, 2005, which we referred to as the appropriate source of service information for the proposed latch replacement in the original NPRM. EMBRAER issued Revision 01 of the service bulletin to add airplanes to the effectivity and to transmit Revision 1 of C & D Aerospace Service Bulletin 170-18616-25-023, dated November 29, 2005.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

Comments

We have considered the following comments on the original NPRM.

Request To Make Service Documents Available to the Public by Incorporation by Reference and Publication in DMS

The Modification and Replacement Parts Association (MARPA) requests that we incorporate by reference the essential service documents in the NPRM. MARPA states that ADs are typically based upon service information originating with the type certificate holder or its suppliers. MARPA asserts that, if a service document is used as a mandatory element of compliance, it should not only be referred to, but also incorporated into the AD. MARPA adds that manufacturer's service documents are privately authored instruments, generally having copyright protection against duplication and distribution. When a service document is incorporated by reference into a public document, such as an AD, pursuant to 5 U.S.C. 552(a) and 1 CFR part 51, it loses its private, protected status and becomes a public document. MARPA notes that the NPRM is one of these public documents, but does not incorporate by reference that service document. Therefore, the NPRM, as proposed, attempts to require compliance with a public law by reference to a private writing. MARPA believes that public laws, by definition, should be public and that they cannot rely on private writings.

We do not agree that documents should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. The final rule for this action will incorporate by reference the document necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

MARPA also requests that essential service documents be published in the Docket Management System (DMS). MARPA states that service documents incorporated by reference should be made available to the public by publication in either the Federal Register or DMS. MARPA also states that the purpose of the incorporation by reference method is brevity, to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals. MARPA adds that, traditionally, “affected individuals” means aircraft owners and operators, who are generally provided service information by the manufacturer. MARPA further adds that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. This new class includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors, and/or organizations repairing or servicing alternatively certified parts under section 21.303 (“Parts Manufacturer Approval”) of the Federal Aviation Regulations (14 CFR 21.303). MARPA states that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper.

In regard to the commenter's request that service documents be made available to the public by publication in the Federal Register, we agree that incorporation by reference was authorized to reduce the volume of material published in the Federal Register and the Code of Federal Regulations. However, as specified in the Federal Register Document Drafting Handbook, the Director of the Office of the Federal Register (OFR) decides when an agency may incorporate material by reference. As the commenter is aware, the OFR files documents for public inspection on the workday before the date of publication of the rule at its office in Washington, DC. As stated in the Federal Register Document Drafting Handbook, when documents are filed for public inspection, anyone may inspect or copy filed documents during the OFR's hours of business. Further questions regarding publication of documents in the Federal Register or incorporation by reference should be directed to the OFR.

In regard to the commenter's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment.

Request To Reference Parts Manufacturer Approval (PMA) Parts

The same commenter, MARPA, also requests that the language in the NPRM be changed to permit installation of PMA equivalent parts. MARPA asserts that mandating a certain part-numbered part to the exclusion of all other parts, in some cases, prevents installation of perfectly good parts, while also prohibiting development of new parts, “* * * permitted under [14 CFR] 21.303.” MARPA further asserts that this prohibition risks removing the AD out of the realm of safety and into the realm of economics, since prohibiting the development, sale, and use of a perfectly good part has nothing to do with safety. MARPA continues, stating that the NPRM, as written, does not comply with FAA Order 8040.2, which allows replacement parts under section 21.303 of the Federal Aviation Regulations (14 CFR 21.303) based on a finding of identicality.

MARPA goes on to state that it believes “* * * the practice of requiring an [alternative method of compliance] AMOC to install a PMA part should be stopped.” It is “* * * tantamount to illogically stating that all PMA parts are inherently defective and that they all require an additional layer of approval when the [original equipment manufacturer] OEM part is determined to be defective.” MARPA further states that, if the PMA part is deemed defective, it must be deemed so in the AD, not simply implied by a “catch-all AMOC requirement.”

In addition, MARPA refers to differing language used in other ADs addressing the use of PMA parts and asserts that, because the NPRM differs in treatment of PMA parts from other ADs, “* * * the mandates contained in Section 1, paragraph (b)(10) of Executive Order 12866 are not being met.” That paragraph requires that all agencies act uniformly on a given issue.

The NPRM did not address PMA parts, as provided in draft FAA Order 8040.2, because the Order was only a draft that was out for comment at the time. After issuance of the NPRM, the Order was revised and issued as FAA Order 8040.5 with an effective date of September 29, 2006.

FAA Order 8040.5 does not address PMA parts in ADs. We acknowledge the need to ensure that unsafe PMA parts are identified and addressed in ADs related to mandatory continuing airworthiness information (MCAI). We are currently examining all aspects of this issue, including input from industry. Once we have made a final determination, we will consider how our policy regarding PMA parts in ADs needs to be revised. We consider that to delay this AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to the final rule in this regard.

The FAA recognizes the need for standardization of this issue and is currently in the process of reviewing issues that address the use of PMAs in ADs at the national level. However, the Transport Airplane Directorate considers that to delay this particular AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to the final rule in this regard.

Request To Replace Only the Lavatory Waste Compartment Latches

EMBRAER requests that we revise paragraph (f) of the original NPRM to require replacement of only the latches for the lavatory waste compartment door. EMBRAER asserts that only those latches need to be replaced, because none of the other doors identified in EMBRAER Service Bulletin 170-25-0024, dated July 21, 2005, affect fire containment, the unsafe condition addressed by this AD. EMBRAER states that the wording in paragraph (f) of the original NPRM, the mandatory accomplishment of “* * * all the actions, except for the forward and aft lavatory mirror rework, specified in the Accomplishment Instructions * * *,” will require replacement of several latches that are not associated with the identified unsafe condition. Therefore EMBRAER suggests that we identify the specific paragraphs of the Accomplishment Instructions of the service bulletin that need to be done to replace just the latches for the lavatory waste compartment.

We agree that only the latches for the lavatory waste compartment need to be replaced to address the subject unsafe condition. Therefore, as EMBRAER suggests, we have revised paragraph (f) of this supplemental NPRM to refer to the specific paragraphs of the Accomplishment Instructions of the service bulletin necessary to replace only the latches for the lavatory waste compartment door.

FAA's Determination and Proposed Requirements of the Supplemental NPRM

The changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.

Costs of Compliance

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

List of Subjects in 14 CFR Part 39

• Air transportation
• Aircraft
• Aviation safety
• Safety

The Proposed Amendment

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39—AIRWORTHINESS DIRECTIVES

1. The authority citation for part 39 continues to read as follows:

Authority: 49 U.S.C. 106(g), 40113, 44701.