[Federal Register Volume 61, Number 238 (Tuesday, December 10, 1996)]
[Proposed Rules]
[Pages 65142-65145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31446]



[[Page 65141]]

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Part V





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Parts 121 and 135



Digital Flight Data Recorder Rules Revisions; Proposed Rule

  Federal Register / Vol. 61, No. 238 / Tuesday, December 10, 1996 / 
Proposed Rules  

[[Page 65142]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 121 and 135

[Docket No. 28109; Notice No. 96-7A]
RIN 2120-AF76


Revisions to Digital Flight Data Recorder Rules

AGENCY: Federal Aviation Administration, DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: This document proposes to revise the Federal Aviation 
Administration's (FAA's) recent Notice of Proposed Rulemaking entitled 
``Revisions to Digital Flight Data Recorder Rules,'' that was published 
July 16, 1996. In this document, the FAA proposes to modify the 
previously proposed flight data recorder requirements to make them 
applicable to those airplanes placed on the operations specifications 
of a U.S. operator after a certain date. This document also proposes a 
two-year compliance date for certain aircraft that must be retrofitted 
with flight data recorder equipment as a result of a change in policy 
announced in the NPRM. The first revision is being proposed to close an 
unintended loophole in the current regulation that was repeated in the 
NPRM. The second change is needed to allow operators time to comply 
with the rule following the change in policy. The FAA is also 
soliciting additional comment concerning aircraft that should be 
exempted from the proposed DFDR upgrade.

DATES: Comments on this proposed revision must be received by December 
30, 1996.

ADDRESSES: Comments on this notice should be mailed in triplicate to: 
Federal Aviation Administration, Office of Chief Counsel, Attention: 
Rules Docket (AGC-200), Docket No. 28109, 800 Independence Avenue SW., 
Washington, DC 20591. Comments delivered must be marked Docket No. 
28109. Comments may also be submitted electronically to the following 
Internet address: [email protected]. Comments may be examined in 
Room 915G weekdays, except on Federal holidays, between 8:30 a.m. and 5 
p.m.

FOR FURTHER INFORMATION CONTACT: Frank Rock, Aircraft Engineering 
Division, Aircraft Certification Service, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591, 
telephone (202) 267-9567.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in the making of the 
proposed rule by submitting such written data, views, or arguments as 
they may desire. Comments relating to the environmental, energy, 
federalism, or economic impact that might result from adopting the 
proposal in this notice are also invited. Substantive comments should 
be accompanied by cost estimates. Comments should identify the 
regulatory docket or notice number and should be submitted in 
triplicate to the Rules Docket address specified above. All comments 
received on or before the closing date for comments specified will be 
considered by the Administrator before taking action on this proposed 
rulemaking. The proposal contained in this notice may be changed in 
light of comments received. All comments received will be available, 
both before and after the closing date for comments, in the Rules 
Docket for examination by interested persons. A report summarizing each 
substantive public contact with FAA personnel concerned with this 
rulemaking will be filed in the docket. Commenters wishing the FAA to 
acknowledge receipt of their comments submitted in response to this 
notice must include a pre-addressed, stamped postcard on which the 
following statement is made: ``Comments to Docket No. 28109.'' The 
postcard will be date-stamped and mailed to the commenter.

Availability of SNPRM's

    An electronic copy of this document may be downloaded from the FAA 
regulations section of the Fedworld electronic bulletin board service 
(telephone: 703-321-3339), the Federal Register's electronic bulletin 
board service (telephone: 202-512-1661), or the FAA's Aviation 
Rulemaking Advisory Committee Bulletin Board service (telephone: 202-
267-5948). A modem and suitable communications software are required.
    Internet users may reach the FAA's web page at http://www.faa.gov 
or the Federal Register's web page at http://www.access.gpo.gov/
su__docs for access to recently published rulemaking documents.
    Any person may obtain a copy of this SNPRM by submitting a request 
to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 
267-9680. Communications must identify the notice number or docket 
number of this SNPRM.
    Persons interested in being placed on the mailing list for future 
Notices of Proposed Rulemaking (NPRM's) should request from the above 
office a copy of Advisory Circular No. 11-2A, Notice of Proposed 
Rulemaking Distribution System, that describes the application 
procedure.

Background and Discussion of Proposal

    On July 16, 1996, the FAA published an NPRM (Notice No. 96-7, 61 FR 
37144) entitled ``Revisions to Digital Flight Data Recorder Rules.'' 
That document proposed that operators be required to record additional 
parameters of flight data on certain airplanes, and requested public 
comment. The comment period closed on August 15; the FAA received 21 
comments to the proposed rule. Since the closing of the comment period, 
some additional issues have come to the FAA's attention that are 
related to the issues addressed in the NPRM but are outside the scope 
of that document. Accordingly, the FAA is issuing this Supplemental 
Notice of Proposed Rulemaking to present the new proposals and allow 
time for public comment.

Aircraft Registered Outside the United States

    Current Sec. 135.152(a) requires that airplanes operated under Part 
135 that were brought onto the U.S. register after October 11, 1991, be 
equipped with digital flight data recorders. The particular language 
``brought onto the U.S. register'' was used when the rule was adopted 
in 1988 as a means to identify those airplanes that would be required 
to have DFDR's installed. At the time, the FAA had considered whether 
to require the retrofit of all existing airplanes operating under part 
135 with DFDR's or require a retrofit based on a date of manufacture or 
on some other basis. Based on economic analysis and a recommendation 
from National Transportation Safety Board personnel, the FAA determined 
that the ``brought onto the U.S. register'' language would avoid an 
expensive retrofit of airplanes already operating in the United States. 
The agency also concluded that the ``brought onto the U.S. register'' 
language would deter the importation of older non-DFDR equipped 
airplanes into the United States.
    This same language was included in Notice 96-7 as proposed 
Sec. 121.344a(a) in order to maintain the same applicability for 
airplanes that will be

[[Page 65143]]

operated under part 121 as of March 20, 1997, when the ``commuter 
rule'' takes effect.
    In reviewing Notice 96-7, however, the FAA discovered that it had 
overlooked one possible effect of the 1988 language--that Part 135 
operators would acquire non-DFDR equipped airplanes that were 
registered outside the United States and decide not to place them on 
the U.S. register. These aircraft could be operated as foreign-
registered airplanes in accordance with Sec. 135.25, but would not be 
subject to the DFDR requirements of Sec. 135.152. The FAA has 
determined that there is no justification for excluding these aircraft 
from the DFDR requirements, considering the agency's policy, as 
detailed in Notice 96-7, concerning the necessity of upgrading flight 
data recorders.
    Accordingly, the FAA is proposing to change the requirement in 
current Sec. 135.152(a) and in proposed Sec. 121.344a(a), by describing 
the group of airplanes that must be equipped with DFDR's as those that 
are either brought onto the U.S. register after October 11, 1991, or 
are foreign-registered and were added to an operator's U.S. operations 
specifications after October 11, 1991.
    This change would have a limited effect on carriers operating under 
part 135 and those that will operate under part 121. Information 
available to the FAA indicates that there are no operators currently 
taking advantage of this rule language by operating foreign-registered 
airplanes in the United States under part 135. Accordingly, no costs 
are expected to result from this change in the rule. The FAA has 
determined that the change will have only a prospective effect and 
prevent the domestic operation of foreign-registered airplanes that are 
not equipped with digital flight data recorders.
    Since there are no airplanes currently operating that would be 
affected by this change in the rule, the FAA has no basis to estimate 
whether there are airplanes that, in the future, would have been 
brought into the U.S. for operation under part 135 while maintaining 
foreign registration. Accordingly, it would be speculative for the FAA 
to presume a specific number of airplanes and estimate a cost of DFDR 
retrofit for them because the rule would no longer allow operation 
without a DFDR.
    The FAA solicits comment on the impact of this proposal, and 
particularly needs to know if there are any foreign-registered 
airplanes that are not equipped with an appropriate flight data 
recorder and are operating under the provisions of part 135. The FAA 
specifically requests data concerning the costs involved with bringing 
such airplanes into compliance with the flight data recorder 
requirements as proposed.

Compliance Time for Changed Policy

    The NPRM also contained a clarification of the meaning of the 
phrase ``brought onto the U.S. register after October 11, 1991'' 
language as it applies to part 135 aircraft that were removed from the 
U.S. register and brought back onto the register after October 11, 
1991. As explained in the preamble to the original proposed rule, 
airplanes that were on the register before October 11, 1991, but were 
removed from the register and brought back on after October 11, 1991, 
would have to be retrofitted to be in compliance with Sec. 135.152. A 
previous FAA interpretation erroneously concluded that these airplanes 
were somehow ``grandfathered'' (and thus did not have to have flight 
data recorders installed). This former interpretation was found to be 
inconsistent with the text of the rule (61 FR at 37154, July 16, 1996).
    Several commenters to the NPRM state that because of the previous 
interpretation, their airplanes that were manufactured before October 
11, 1991, did not have to have digital flight data recorders installed, 
and that to do so now would be expensive. The commenters argue that the 
date of manufacture should be used in determining applicability, rather 
than the date the aircraft were brought onto the U.S. register, so that 
older aircraft will not be required to upgrade to digital flight data 
recorders.
    The FAA disagrees. In drafting the NPRM, the FAA considered whether 
to change the applicability for aircraft operating under part 135, and 
determined that it was best to maintain the date brought on the U.S. 
register as the determining factor for applicability of the rule 
requiring installation of a DFDR. The FAA recognized that whatever date 
is used (e.g., manufacture or registration) would present a burden to 
some operators.
    Nor does the FAA agree that some airplanes should be allowed to be 
removed from the U.S. register and be brought back without complying 
with the regulations in effect at the time of return, simply because 
they were manufactured prior to October 11, 1991. Since the adoption of 
the rule, the FAA has always intended that when airplanes are added to 
the U.S. register, they meet the standards in existence at the time, 
and that intent is clear from the language of the regulation. When that 
regulation was adopted in 1988, the determination was made that date of 
manufacture would not be used so as not to perpetuate the use (and 
import) of older aircraft to avoid the installation of digital flight 
data recorders.
    The factors that were discussed in Notice 96-7 concerning the need 
for flight data information apply to all aircraft. Flight data recorder 
information is often a critical investigative tool; the current part 
135 regulations were issued, and the amendments proposed, to ensure 
that all aircraft record flight data to the maximum extent feasible. 
Operators that consider certain aircraft beyond the range of cost-
effective retrofit were invited to submit information why those 
aircraft models should be excluded. As discussed below, such 
information was received on only one aircraft model.
    While the FAA determined that airplanes removed from the U.S. 
register are not grandfathered and must meet the requirements for 
flight data recorders, no time for delayed compliance was proposed in 
Notice 96-7 for aircraft that may have been operating under the old 
interpretation. To relieve the burden of immediate compliance, the FAA 
is proposing that operators of these airplanes may take up to two years 
to install the required flight data recorders. The proposed compliance 
time of two years may appear inconsistent with the four-year compliance 
time proposed elsewhere in Notice 96-7, but the four-year compliance 
time is intended for those airplanes undergoing an upgrade from current 
requirements. The two-year compliance time proposed here is for certain 
operators that thought their aircraft were grandfathered to meet the 
current requirements of part 135, not for installation of an upgrade. 
The FAA solicits comments that include the number of airplanes that 
would be affected by this proposed two-year delayed compliance, as well 
as the appropriateness of a two-year compliance time.

Aircraft Excluded From Upgrade Requirements

    Finally, several comments on the NPRM included airplanes that the 
commenters thought should be excluded from the applicability of the 
digital flight data recorder upgrades. Except for the DeHavilland DHC-6 
(Twin Otter), however, the comments contained little or no support for 
the exclusion of these airplanes. As the FAA stated in the NPRM, 
requests that aircraft to be excluded ``should contain a detailed 
explanation of the reasons why these aircraft should be included on the 
list [of exclusions], and the number of aircraft that would be

[[Page 65144]]

affected'' (61 FR at 37153). The simple statement that an aircraft is 
out of production is insufficient for the FAA to make a decision on 
whether exclusion of the airplane is appropriate. Persons who commented 
on this issue are invited to resubmit their comments with the necessary 
explanation, number of airplanes affected, and any retrofit cost data 
that may be available.
    The FAA did not propose an exemption paragraph for part 135 similar 
to that proposed for part 121 because the FAA has no information 
suggesting that there are specific airplane types that cannot readily 
comply with the requirements of Sec. 135.152(a). The only aircraft 
currently under consideration for exclusion from the rule is the 
DeHavilland DHC-6 using the information provided in the comments 
referenced above. The FAA has determined that if there is only one 
airplane type under consideration for exclusion, it would be more 
appropriate to provide relief under an exemption pursuant to 14 CFR 
part 11. However, no determination on this will be made until after the 
close of the comment period for this supplemental notice, since the 
agency is inviting those persons who submitted other airplane types for 
exclusion to submit more information in support of their comments.
    The FAA is also proposing to revise the language of current 
Secs. 135.152(a) and (d), and Appendices B and C of part 135, to 
reflect that the industry standard for recorders is a 25-hour recorder, 
rather than the 8-hour recorder currently required. The FAA is unaware 
of any 8-hour recorder currently being used and has determined that 
this change would result in no costs to operators. The FAA requests 
that commenters submit any information to the contrary concerning usage 
of 8-hour recorders and any costs associated with the proposed change 
in the standard.

International Compatibility

    The FAA has reviewed corresponding International Civil Aviation 
Organization standards and Joint Aviation Authority regulations, where 
they exist. Any differences between those documents and these 
regulations are of a minor, technical nature, and are deemed 
insignificant. They would not adversely affect harmonization.

Paperwork Reduction Act

    No information collection has been proposed.

Regulatory Evaluation Summary

    The FAA does not anticipate that the revisions proposed in this 
SNPRM would alter the costs as developed in Notice 96-7 and has not 
altered the cost estimates. The reasons for this are twofold. First, 
regarding the proposed amendment to Secs. 121.244a(a) and 135.152(a) to 
add the date a foreign-registered aircraft is placed on the operations 
specifications of a carrier, the FAA does not know of any carriers 
currently operating foreign-registered airplanes in domestic service. 
Even if such aircraft are being operated, they would already have been 
accounted for because the FAA's fleet estimates are derived from 
domestic air carrier operations specifications. Air carrier data for 
part 121 operators provided to the FAA by the Air Transport Association 
accounted for about 80 percent of the domestic fleet; these data were 
adjusted to reflect the U.S. domestic fleet as estimated by the FAA's 
Economic Forecast Branch. Similarly, detailed data from the Regional 
Airline Association (RAA) is presumed to reflect the RAA's fleet 
estimates based on the operations specification of part 135 operators, 
and already included any foreign-registered airplanes that may be 
operated in domestic service.
    Second, the cost estimates contained in Notice 96-7 apply only to 
the upgrade of digital flight data recorders as proposed in that 
notice. Any costs associated with the installation of the flight data 
recorders as required under current Sec. 135.152 (and the policy 
statement discussed) were contained in the original costs estimates 
generated for that rulemaking in 1988. The policy statement under which 
some operators did not install flight data recorders was made after 
that regulation was in place.

Initial Regulatory Flexibility Determination

    The FAA has determined that the costs associated with this rule 
have been considered and discussed in previous rulemaking actions, and 
therefore has not made a duplicate determination for this SNPRM. 
Information currently available to the FAA indicates that the revisions 
proposed in this SNPRM, as described above, do not have any costs 
associated with them, and seeks any information to the contrary.

International Trade Impact Assessment

    The FAA has determined that the proposed amendments pertain to only 
U.S. operators and will not have an impact on International trade.

Conclusion

    For the reasons discussed in the preamble, the FAA has determined 
that this proposed regulation would be a nonsignificant regulatory 
action under Executive Order 12866, and is considered nonsignificant 
under DOT Regulatory Policies and Procedures (44 FR 11034, Feb. 26, 
1979).

List of Subjects

14 CFR Part 121

    Air carriers, Aviation safety, Reporting and recordkeeping 
requirements, Transportation.

14 CFR Part 135

    Aviation safety, Reporting and recordkeeping requirements

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend 14 CFR parts 121 and 135 of the 
Federal Aviation Regulations as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

    1. The authority citation for part 121 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 
44912, 46105.

    2. In Sec. 121.344a, the introductory text of paragraph (a), as 
proposed in the Federal Register issue of July 16, 1996, (61 FR 37161), 
is revised to read as follows:


Sec. 121.344a  Digital flight data recorders for 10-19 seat airplanes.

    (a) No person may operate a turbine-engine-powered airplane having 
a passenger seating configuration, excluding any required crewmember 
seat, of 10 to 19 seats, that was either brought onto the U.S. register 
after or was registered outside the United States and added to an 
operator's U.S. operations specifications after October 11, 1991, 
unless it is equipped with one or more approved flight recorders that 
use a digital method of recording and storing data and a method of 
readily retrieving that data from the storage medium. On or before [4 
years after the effective date of the final rule], airplanes brought 
onto the U.S. register or registered outside of the United States and 
added to an air carrier's operations specifications after October 11, 
1991, must comply with either the requirements in this section or the 
applicable paragraphs in Sec. 135.152 of this chapter. In addition, by 
[4 years after the effective date of the final rule]--
* * * * *

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PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON-DEMAND OPERATIONS

    3. The authority citation for part 135 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709, 
44711-44713, 44715-44717, 44722.

    4. Section 135.152(a) is revised to read as follows:


Sec. 135.152  Flight recorders.

    (a) No person may operate a multi-engine, turbine-engine-powered 
airplane or rotorcraft having a passenger seating configuration, 
excluding any required crewmember seat, of 10 to 19 seats, that was 
either brought onto the U.S. register after or was registered outside 
the United States and added to the operator's U.S. operations 
specifications after October 11, 1991, unless it is equipped with one 
or more approved flight recorders that use a digital method of 
recording and storing data and a method of readily retrieving that data 
from the storage medium. On or before [2 years after the effective date 
of the final rule], aircraft brought onto the U.S. register or 
registered outside of the United States and added to an air carrier's 
operations specifications after October 11, 1991, must record the 
parameters specified in either Appendix B or C of this part, as 
applicable. The parameters must be recorded within the range, accuracy, 
resolution, and recording intervals as specified. The recorder shall 
retain no less than 25 hours of aircraft operation.
* * * * *


Sec. 135.152  [Amended]

    5. In Sec. 135.152(d), the first sentence is amended by removing 
the phrase ``8 hours'' and adding the phrase ``25 hours'' in its place.

Appendix B to Part 135--[Amended]

    6. In Appendix B to part 135, Airplane Flight Recorder 
Specifications, in the ``Range'' column, the first entry is amended by 
removing the phrase ``8 hr minimum'' and adding the phrase ``25 hr 
minimum'' in its place.

Appendix C to Part 135--[Amended]

    7. In Appendix C to part 135, Helicopter Flight Recorder 
Specifications, in the ``Range'' column, the first entry is amended by 
removing the phrase ``8 hr minimum'' and adding the phrase ``25 hr 
minimum'' in its place.

    Issued in Washington, DC, on December 5, 1996.
Elizabeth Yoest,
Acting Director, Aircraft Certification Service.
[FR Doc. 96-31446 Filed 12-9-96; 8:45 am]
BILLING CODE 4910-13-P