[Federal Register Volume 67, Number 175 (Tuesday, September 10, 2002)]
[Rules and Regulations]
[Pages 57490-57493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22622]



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Part II





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 21



Equivalent Safety Provisions for Fuel Tank System Fault Tolerance 
Evaluations (SFAR 88); Final Rule

  Federal Register / Vol. 67, No. 175 / Tuesday, September 10, 2002 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 21

[Docket No. FAA-1999-6411; Amendment No. 21-82]
RIN 2120-AH85


Equivalent Safety Provisions for Fuel Tank System Fault Tolerance 
Evaluations (SFAR 88)

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This final rule adds a provision to the existing requirements 
for fuel tank system fault tolerance evaluations that allows type 
certificate holders to use equivalent safety provisions for 
demonstrating compliance. The current regulations do not provide such 
provisions. This rulemaking will allow current certificate holders to 
use the same equivalent safety provisions already available to 
applicants for new or changed type design approvals.

DATES: This final rule is effective August 30, 2002. Comments must be 
submitted on or before October 10, 2002.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
1999-6411 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
received your comments, include a self-addressed, stamped postcard.
    You must also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
these proposed regulations in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mike Dostert, Transport Airplane 
Directorate, Propulsion/Mechanical Systems Branch, ANM-112, Federal 
Aviation Administration, 1601 Lind Avenue SW., Renton, Washington 
98055-4056; telephone (425) 227-2132.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This final rule is being adopted without prior notice and prior 
public comment. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134, February 26, 1979), 
however, provide that, to the maximum extent possible, operating 
administrations for the DOT should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, the 
FAA invites interested persons to participate in this rulemaking by 
submitting written comments, data, or views. We also invite comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from this amendment. The most helpful comments 
reference a specific portion of the amendment, explain the reason for 
any recommended changes, and include supporting data. We ask that you 
send us two copies of written comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive pubic contact with FAA personnel 
concerning this rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES 
section.
    The FAA will consider all comments received on or before the 
closing date for comments. Late filed comments will be considered to 
the extent practicable. This final rule may be amended in light of the 
comments received.
    If you want the FAA to acknowledge receipt of your comments on this 
amendment, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it to you.

Availability of Final Rule

    You can get an electronic copy of this final rule using the 
Internet by taking the following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this final rule. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/nprm.cfm 
or the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/asces140.html.
    You can also get a copy 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. Make 
sure to identify the amendment number or docket number of this final 
rule.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Any small entity that has a question regarding this 
document may contact their local FAA official, or the person listed 
under FOR FURTHER INFORMATION CONTACT. You can find out more about 
SBREFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. 
For more information on SBREFA, e-mail us at [email protected].

Background

Amendment 25-102 and SRAF 88

    Following the 1996 TWA 800 accident, which was caused by an 
explosion in the center wing fuel tank, the FAA promulgated rulemaking 
to establish several new transport airplane fuel tank safety 
requirements (66 FR 23086, May 7, 2001). The rulemaking which was 
effective June 6, 2001, included:
    [sbull] Amendment 21-78 (SFAR 88) which requires type certificate 
(TC) and supplemental type certificate (STC) holders to conduct a 
revalidation of the fuel tank system designs on the existing fleet of 
transport category airplanes carrying 30 or more passengers or a 
payload of 7,500 lbs. or more; and to develop all design changes 
required to demonstrate they meet the new ignition prevention 
requirements and develop fuel tank maintenance and inspection 
instructions,
    [sbull] Amendments 91-266, 121-282, 125-36, and 129-30, which 
require certain operators to incorporate FAA-approved fuel tank 
maintenance and inspection requirements into their maintenance or 
inspection programs, and
    [sbull] Amendment 25-102, which includes ignition prevention design 
and maintenance requirements (Sec.  25.981(a) & (b) and paragraph H25.4 
of appendix H), and fuel tank flammability requirements (Sec.  
25.981(c)).

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Discussion of SFAR 88 and This Amendment

    SFAR 88 requires that holders of type certificates and supplemental 
type certificates review the designs of fuel tank systems of large 
transport category airplanes, and develop design changes and 
maintenance and inspection programs based on the findings of those 
reviews. The reviews are conducted using the identical ignition 
prevention requirements that were adopted for new or amended type 
designs in Sec.  25.981. Reports documenting compliance are required to 
be submitted to the FAA by December 6, 2002.
    During initial implementation of the rule, the FAA learned that 
mandating all the design changes required to meet the new safety 
assessment requirements of Amendment 25-102 for in-service airplanes, 
as required by SFAR 88, may not be needed to achieve the safety level 
intended by the rule. For example, the SFAR requires that design 
changes be developed to comply with the new design standard, Sec.  
25.981, which in turn requires that all possible ignition sources be 
eliminated from fuel systems. In the final rule preamble, we said that 
these design changes would be mandated by airworthiness directive (AD); 
however, ADs are issued only when we find an unsafe condition. This 
means that in some cases the SFAR would require development of design 
changes to address problems that are not serious enough (e.g., because 
of very low probabilities of occurrence) to warrant issuance of an AD. 
This result would be consistent with existing FAA policy that 
noncompliance with certification requirements is not by itself 
sufficient to establish an unsafe condition. The existing rule results 
in an unnecessary and inappropriate burden on industry to develop 
design changes that would never be required to be implemented. The cost 
of developing these changes would, therefore, not result in an 
improvement in safety and may divert resources needed to develop design 
changes that will be mandated via AD.
    This new amendment will allow certificate holders to propose other 
means of demonstrating equivalent safety. For example, in the preamble 
to Amendment 25-102, the FAA discussed a change in philosophy regarding 
fuel tank safety. Data from past accidents indicated reduced fuel tank 
flammability, in combination with prevention of ignition sources, would 
provide the needed level of safety. Section 25.981(c) requires that 
fuel tank flammability be minimized.
    The flammability level required by Sec.  25.981(c) was based on the 
report of a 1998 industry advisory group that determined the 
flammability exposure of an unheated aluminum wing tank would provide 
an acceptable level of safety for all transport airplane fuel tanks. At 
the time of the rulemaking, however, the FAA did not have data to 
support rulemaking to require reduced fuel tank flammability on in-
service airplanes. Since the rulemaking, FAA research into nitrogen 
inerting systems has shown that the practicality of incorporating 
nitrogen inerting systems into in-service airplanes has significantly 
improved. Type certificate holders may therefore wish to propose use of 
reduced fuel tank flammability to mitigate the need to make other more 
costly changes or implement expensive maintenance actions to prevent 
certain fuel tank ignition sources. This rulemaking will allow the FAA 
to consider these proposals that may well provide a better long-term 
solution to the fuel tank safety issues than that of ignition source 
prevention alone, as is currently require by SFAR 88.
    The SFAR applies to two groups: current TC holders and applicants 
whose TC applications were pending on June 6, 2001, the SFAR's 
effective date. (All subsequent applicants are subject to the new part 
25 standard.) [Note: In this discussion, STC holders are included in 
the term TC holders.] For TC applicants, the problem described above 
can be resolved under existing regulations. Specifically, Sec.  
21.21(b)(1) provides that the FAA can issue a TC if we find that 
standards ``not complied with are compensated for by factors that 
provide an equivalent level of safety.'' For example, an applicant for 
a TC whose application was submitted prior to June 6, 2001 (for which 
the flammability requirements of Sec.  25.981(c) would not normally 
apply), may propose incorporation of a fuel tank nitrogen inerting 
system to provide an equivalent level of safety to certain portions of 
the fuel tank ignition source prevention requirements of Amendment 25-
102 to Sec.  25.981.
    Since Sec.  21.21 only applies to the issuance of TCs, this 
``equivalent safety'' provision does not apply to current TC holders. 
Because this type of provision is needed for existing TCs at least as 
much as for pending applications, an immediately adopted ``spot 
amendment'' to the SFAR is necessary. This amendment adds a new 
provision to the SFAR that allows the FAA to approve a TC holder's 
required submission based on a finding that it provides an equivalent 
level of safety to full compliance with the SFAR. It would therefore 
provide a ``level playing field'' between pending applicants and 
current holders of TCs.
    In originally adopting the SFAR, we anticipated neither the need 
for this provision, nor the difference in treatment between TC 
applicants and holders. Given the impending compliance deadline later 
this year, it would not be practicable to complete this rulemaking 
following notice and comment procedures in sufficient time to provide a 
meaningful alternative to TC holders. Good cause therefore exists for 
issuing this amendment without following those procedures.
    Since this rule would simply make available to all persons subject 
to the SFAR an alternative that is currently available only to some, it 
is not ``significant'' for purposes of Executive Order 12866, DOT 
Regulatory Policies and Procedures, or the Regulatory Flexibility Act, 
and it does not require preparation of a regulatory evaluation.

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this amendment.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these regulations.

Good Cause for Immediate Adoption

    Sections 553(b)(3)(B) and 553(d)(3) of the Administrative 
Procedures Act (APA) (5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3)) 
authorize agencies to dispense with certain notice procedures for rules 
when they find ``good cause'' to do so. Under section 553(b)(3)(B), the 
requirements of notice and opportunity for comment do not apply when 
the agency for good cause finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' 
Section 553(d)(3) allows an agency, upon finding good cause, to make a 
rule effective immediately, thereby avoiding the 30-day delayed 
effective date requirement in section 553.
    The FAA finds that notice and public comments on this final rule 
are impracticable, unnecessary, and contrary to the public interest. 
For certificate holders to have sufficient time to take advantage of 
the alternative compliance methods allowed by this

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rule before the compliance deadline of December 6, 2002, this rule must 
adopted immediately. Notice and comment procedures would delay its 
adoption to the point where the rule would be of little value to them, 
thereby defeating the purpose of this rule. Therefore, notice and 
comment procedures are impracticable. Furthermore, as explained 
previously, this rule simply makes available to current certificate 
holders an alternative that is already provided to current certificate 
applicants by 14 CFR 21.21(b)(1).

Economic Evaluation, Regulatory Flexibility Determination, Trade Impact 
Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs each Federal agency to 
propose or adopt a regulation only upon a reasoned determination that 
the benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. section 2531-2533) prohibits agencies 
from setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. In developing U.S. standards, this Trade 
Act requires agencies to consider international standards and, where 
appropriate, use them as the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies 
to prepare a written assessment of the costs, benefits, and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, the FAA has determined this rule (1) 
has benefits which justify its costs; (2) is not a ``significant 
regulatory action'' as defined in section 3(f) of Executive Order 12866 
and is not ``significant'' as defined in DOT's Regulatory Policies and 
Procedures; (3) will not have a significant impact on a substantial 
number of small entities; (4) will have little effect on international 
trade; and (5) does not impose an unfunded mandate on State, local, or 
tribal governments, or on the private sector.
    For regulations with an expected minimal impact, the above-
specified analyses are not required. The Department of Transportation 
Order DOT 2100.5 prescribes policies and procedures for simplification, 
analysis, and review of regulations. If it is determined that the 
expected impact is so minimal that the proposal does not warrant a full 
evaluation, a statement to that effect and the basis for it is included 
in the proposed regulation. The FAA has determined that there are no 
costs associated with this final rule and the current level of safety 
is maintained. Instead, this rule change relieves holders of existing 
TCs from a cost that would have been inadvertently imposed on them in 
the adoption of the 2001 SFAR. This change effectuates the original 
intent of the 2001 SFAR.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
businesses, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA. If, however, an agency determines that a proposed or final 
rule is not expected to have a significant economic impact on a 
substantial number of small entities, section 605(b) of the RFA 
provides that the head of the agency may so certify and a regulatory 
flexibility analysis is not required. The certification must include a 
statement providing the factual basis for this determination, and the 
reasoning should be clear.
    This action will relieve unnecessary costs to holders of existing 
TCs. The FAA therefore expects this rule to impose no cost on small 
entities. Consequently, the FAA certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and, where appropriate, that they be the basis for U.S. 
standards. The FAA has assessed the potential effect of this rulemaking 
and has determined that it will reduce costs on holders of existing TCs 
and will have a minimal effect on international trade

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of the Act 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed or final agency rule 
that may result in as $100 million or more expenditure (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector. Such a mandate 
is deemed to be a ``significant regulatory action.''
    This final rule does not contain such a mandate; therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action will not have a substantial direct effect on the States, or the 
relationship between the national Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We therefore determined that this final rule does not have 
federalism implications.

Plain English

    Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each 
agency to write regulations that are simple and easy to understand. We 
invite your comments on how to make these regulations easier to 
understand, including answers to questions such as the following:
    [sbull] Are the requirements in the regulation clearly stated?
    [sbull] Does the regulation contain technical language or jargon 
that interferes with their clarity?
    [sbull] Would the regulation be easier to understand if it was 
divided into more (but shorter) sections?
    [sbull] Is the description in the premable helpful in understanding 
the regulation?

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    Please send your comments to the address specified in the ADDRESSES 
section.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of the final rule has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as 
amended (42 U.S.C. 6362), and FAA Order 1053.1. It has been determined 
that the final rule is not a major regulatory action under provisions 
of the EPCA.

List of Subjects in 14 CFR Part 21

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends part 21 of Title 14, Code of Federal Regulations, 
as follows:

PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS

    1. The authority citation for part 21 continues to read as follows:

    Authority: 42 U.S.C. 7572; 40105, 40113; 44701-44702, 44707, 
44709, 44711, 44713, 44715, and 45303.

    2. SFAR No. 88 is amended in the introductory text of paragraph 2 
by adding the words ``Except as provided in paragraph (d) of this 
section,'' after the word ``Compliance:'' and by adding a new paragraph 
2(d) to read as follows:

SFAR No. 88--Fuel Tank System Fault Tolerance Evaluation Requirements

* * * * *
    (d) The Aircraft Certification Office (ACO), or office of the 
Transport Airplane Directorate, having cognizance over the type 
certificate for the affected airplane, may approve a report submitted 
in accordance with paragraph 2(c) of it determines that any provisions 
of this SFAR not compiled with are compensated for by factors that 
provide an equivalent level of safety.

    Issued in Washington, DC, on August 30, 2002.
Monte R. Belger,
Acting Administrator.
[FR Doc. 02-22622 Filed 9-9-02; 8:45 am]
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