[Federal Register Volume 71, Number 58 (Monday, March 27, 2006)]
[Rules and Regulations]
[Pages 15012-15017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2853]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2005-20728; Directorate Identifier 2005-NM-003-AD; 
Amendment 39-14527; AD 2006-07-01]
RIN 2120-AA64


Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. 
(EMBRAER) Model EMB-135 Airplanes and Model EMB-145, -145ER, -145MR, -
145LR, -145XR, -145MP, and -145EP Airplanes

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

ACTION: Final rule.

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SUMMARY: The FAA is adopting a new airworthiness directive (AD) for 
certain EMBRAER Model EMB-135 airplanes and Model EMB-145, -145ER, -
145MR, -145LR, -145XR, -145MP, and -145EP airplanes. This AD requires 
replacing the horizontal stabilizer control unit (HSCU) with a modified 
and reidentified or new, improved HSCU. For certain airplanes, this AD 
also requires related concurrent actions as necessary. This AD is 
prompted by reports of loss of the pitch trim system due to a 
simultaneous failure of both channels of the HSCU. We are issuing this 
AD to prevent loss of pitch trim and reduced controllability of the 
airplane.

DATES: This AD becomes effective May 1, 2006.
    The incorporation by reference of certain publications listed in 
the AD is approved by the Director of the Federal Register as of May 1, 
2006.

ADDRESSES: You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility, U.S. 
Department of Transportation, 400 Seventh Street, SW., Nassif Building, 
room PL-401, Washington, DC.
    Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box

[[Page 15013]]

343--CEP 12.225, Sao Jose dos Campos--SP, Brazil, for service 
information identified in this AD.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, 
International Branch, ANM-116, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 
227-2125; fax (425) 227-1149.

SUPPLEMENTARY INFORMATION:

Examining the Docket

    You may examine the airworthiness directive (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 of the Nassif 
Building at the street address stated in the ADDRESSES section.

Discussion

    The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 
CFR part 39 to include an AD that would apply to certain EMBRAER Model 
EMB-135 airplanes and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -
145MP, and -145EP airplanes. That NPRM was published in the Federal 
Register on March 30, 2005 (70 FR 16180). That NPRM proposed to require 
replacing the horizontal stabilizer control unit (HSCU) with a modified 
and reidentified or new, improved HSCU. For certain airplanes, that 
action also proposed to require related concurrent actions as 
necessary.

Comments

    We provided the public the opportunity to participate in the 
development of this AD. We have considered the comments that have been 
submitted on the NPRM.

Support for Proposed AD

    One commenter, the National Transportation Safety Board (NTSB), 
supports improvements to the pitch-trim system and concurs with the 
NPRM. Another commenter, Chautauqua Airlines, fully supports the intent 
of the AD and strongly recommends requiring upgrading the HSCU on all 
affected aircraft.

Request for Reference to Related AD

    Two commenters, EMBRAER and Chautauqua Airlines, request that we 
revise paragraph (b) of the NPRM to refer to AD 2004-25-21, amendment 
39-13909 (69 FR 76605, December 22, 2004). The commenters state that, 
since certain actions required by that existing AD are specified as 
prior or concurrent requirements with the proposed requirements of the 
NPRM, the NPRM should refer to AD 2004-25-21 as an affected AD.
    We agree with this request for the reason given by the commenters. 
We have revised paragraph (b) of the AD to refer to AD 2004-25-21 as an 
affected AD.

Request To Revise Service Information Citations

    One commenter, EMBRAER, requests that we revise the citations of 
the service information in the NPRM. EMBRAER states that new revisions 
of the service information have been released and that these latest 
revisions should be cited to accomplish the proposed requirements of 
the NPRM.
    We agree with this request. We have reviewed EMBRAER Service 
Bulletin 145-27-0106, Revision 02 (for all affected airplanes except 
Model EMB-135BJ airplanes), and EMBRAER Service Bulletin 145LEG-27-
0016, Revision 02 (for Model EMB-135BJ airplanes only); both dated 
March 14, 2005. The content of Revision 02 of both service bulletins is 
essentially the same as that specified in Revision 01, dated August 30, 
2004, of both service bulletins; the only difference is that about 5 
airplanes have been moved to the in-production effectivity, which will 
decrease the burden to U.S. operators by about 3 airplanes. Therefore, 
we have revised the Costs of Compliance section of the AD to reflect 
the decreased fleet costs, and paragraphs (c) and (f) of the AD to cite 
the latest revisions of the service bulletins as the appropriate 
sources of service information to accomplish the requirements of the 
AD.

Request To Add Alternative Service Information

    One commenter, EMBRAER, requests that paragraph (f) of the NPRM be 
revised to specify EMBRAER Service Bulletins 145LEG-27-0002, Revision 
02, dated August 24, 2004; and 145-27-0084, Revision 06, dated March 
14, 2005; as alternative sources of service information for installing 
the new HSCU. EMBRAER states that those service bulletins describe 
procedures for installing the new HSCU, part number (P/N) 362100-1013. 
EMBRAER has provided a suggested revision to paragraph (f) of the NPRM 
to include these service bulletins.
    We agree with this request. Therefore, we have revised paragraph 
(f) of the AD to include EMBRAER Service Bulletin 145LEG-27-0002, 
Revision 02, dated August 24, 2005; and EMBRAER Service Bulletin 145-
27-0084, Revision 06, dated March 14, 2005; as alternative sources of 
service information for installing the new HSCU.

Request To Clarify Description of Related AD

    Two commenters, EMBRAER and Chautauqua Airlines, request that we 
revise paragraph (g) of the NPRM to clarify which affected airplanes 
are subject to the prior or concurrent accomplishment of certain 
requirements of AD 2004-25-51. EMBRAER also requests that we include 
two additional EMBRAER service bulletins to more clearly identify the 
airplanes involved. Both commenters further request that we revise 
paragraph (g) to specify which paragraphs of AD 2004-25-21 are 
applicable to the affected airplanes identified in the service 
information. The commenters state that these revisions will help to 
prevent any operator confusion about these requirements.
    We agree with this request for the reasons given. Therefore, we 
have revised paragraph (g) of the AD to include EMBRAER Service 
Bulletin 145-27-0084, Revision 04, dated October 21, 2003; and EMBRAER 
Service Bulletin 145-27-0096, Revision 04, dated March 14, 2005; and to 
identify paragraphs (a)(1), (a)(2), (b)(2), (b)(3), (b)(4)(i), 
(b)(4)(ii), (b)(5), (b)(6), and (b)(7) of AD 2004-25-21, as applicable 
to the affected airplanes.

Request To Revise Paragraph (h) of the NPRM

    One commenter, EMBRAER, requests that we revise paragraph (h) of 
the NPRM to include previous revisions of EMBRAER service bulletins 
that may be used to accomplish certain requirements of the NPRM. 
EMBRAER believes this will make it easier for operators to show 
compliance with the NPRM.
    We agree with this request for the reason given. Therefore, we have 
revised paragraph (h) of the AD to include EMBRAER Service Bulletin 
145-27-0106, Revision 01, dated August 30, 2004; EMBRAER Service 
Bulletin 145LEG-27-0016, Revision 01, dated August 30, 2004; and 
EMBRAER Service Bulletin 145-27-0084, Revision 05, dated August 24, 
2004; as additional sources of service information that are considered 
acceptable for complying with the applicable actions required by the 
AD.

Request To Permit Installation of Future Approved Parts

    One commenter, EMBRAER, requests that we revise the NPRM to include 
a note or paragraph permitting operators to install any HSCU that will 
be

[[Page 15014]]

approved in the future having P/N 362100-1014, -1015, -1016, and so on. 
EMBRAER believes this would relieve operators of the burden of 
additional requirements while allowing them to comply with the intent 
of the NPRM.
    We do not agree with this request. Our policy does not allow 
installing parts that do not yet exist and are, therefore, not 
referenced in the AD. However, any operator may submit a request for 
approval of an alternative method of compliance (AMOC) to install a 
part having a different P/N, as described in paragraph (j) of the AD. 
The request must include data substantiating that an acceptable level 
of safety would be maintained by use of the different part.

Request To Identify Additional Possibly Defective Parts

    One commenter, the Modification and Replacement Parts Association 
(MARPA), requests that the NPRM be revised to apply to all unmodified 
HSCUs; whether marketed through EMBRAER as original equipment 
manufacturer (OEM) parts or by the holder of a parts manufacturer 
approval (PMA); and whether those parts are installed on an airplane or 
not. MARPA asserts that repair and supply facilities might have 
defective OEM or PMA parts in stock that could be put into service 
unless such parts are identified as subject to the requirements of the 
NPRM.
    We concur with MARPA's general request that, if we know that an 
unsafe condition also exists in PMA parts, the AD should address those 
parts, as well as the original parts. We are not aware of other PMA 
parts that have a different part number. However, to ensure that no 
defective part is put into service, we have added new paragraph (i) to 
address installation of the identified good parts and accordingly 
reidentified the subsequent paragraphs of the NPRM in the AD.
    MARPA's remarks are timely in that the Transport Airplane 
Directorate currently is in the process of reviewing this issue as it 
applies to transport category airplanes. We acknowledge that there may 
be other ways of addressing this issue to ensure that unsafe PMA parts 
are identified and addressed. Once we have thoroughly examined all 
aspects of this issue, including input from industry, and have made a 
final determination, we will consider whether our policy regarding 
addressing 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.

Request To Reference PMA Parts

    One commenter, MARPA, requests that the wording of the NPRM be 
changed to provide for approved alternatives to the type-certificated 
designated part. MARPA suggests that this could be accomplished by 
adding the phrase ``or PMA alternative'' to the part number in the 
proposed requirement. MARPA adds that PMA parts are ``by law approved 
parts and are not, as some regions opine, an AMOC requiring further FAA 
approval before being installed.'' MARPA states that the provision in 
the NPRM to replace an HSCU with a specific part number assigned by the 
type certificate (TC) holder conflicts with Sec.  21.303 of the Federal 
Aviation Regulations (14 CFR 21.303) and may be unenforceable.
    We do not agree with MARPA's request to revise the AD to permit 
installation of any equivalent PMA parts so that it is not necessary 
for an operator to request approval of an AMOC in order to install an 
``equivalent'' PMA part. Whether an alternative part is ``equivalent'' 
in adequately resolving the unsafe condition can only be determined on 
a case-by-case basis based on a complete understanding of the unsafe 
condition. We are not currently aware of any such parts. Our policy is 
that, in order for operators to replace a part with one that is not 
specified in the AD, they must request an AMOC. This is necessary so 
that we can make a specific determination that an alternative part is 
or is not susceptible to the same unsafe condition. However, the 
Transport Airplane Directorate currently is in the process of reviewing 
this issue as it applies to transport category airplanes. Once we have 
thoroughly examined all aspects of this issue and have made a final 
determination, we will consider whether our policy regarding addressing 
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.
    In response to MARPA's statement regarding a variance with FAR 
21.303, under which the FAA issues PMAs, this statement appears to 
reflect a misunderstanding of the relationship between ADs and the 
certification procedural regulations of part 21 of the Federal Aviation 
Regulations (14 CFR part 21). Those regulations, including section 
21.303 of the Federal Aviation Regulations (14 CFR 21.303), are 
intended to ensure that aeronautical products comply with the 
applicable airworthiness standards. But ADs are issued when, 
notwithstanding those procedures, we become aware of unsafe conditions 
in these products or parts. Therefore, an AD takes precedence over 
design approvals when we identify an unsafe condition, and mandating 
installation of a certain part number in an AD is not at variance with 
section 21.303.
    The AD provides a means of compliance for operators to ensure that 
the identified unsafe condition is addressed appropriately. For an 
unsafe condition attributable to a part, the AD normally identifies the 
replacement parts necessary to obtain that compliance. As stated in 
section 39.7 of the Federal Aviation Regulations (14 CFR 39.7): 
``Anyone who operates a product that does not meet the requirements of 
an applicable airworthiness directive is in violation of this 
section.'' Unless an operator obtains approval for an AMOC, replacing a 
part with one not specified by the AD would make the operator subject 
to an enforcement action and result in a civil penalty. No change to 
the AD is necessary in this regard.

Explanation of Change to Applicability

    We have revised the applicability to identify model designations as 
published in the most recent type certificate data sheet for the 
affected models.

Clarification of AMOC Paragraph

    We have revised this action to clarify the appropriate procedure 
for notifying the principal inspector before using any approved AMOC on 
any airplane to which the AMOC applies.

Conclusion

    We have carefully reviewed the available data, including the 
comments that have been submitted, and determined that air safety and 
the public interest require adopting the AD with the changes described 
previously. We have determined that these changes will neither increase 
the economic burden on any operator nor increase the scope of the AD.

Costs of Compliance

    This AD will affect about 613 airplanes of U.S. registry. The 
required actions will take about 1 work hour per airplane, at an 
average labor rate of $65 per work hour. Required parts will be 
supplied by the manufacturer at no cost. Based on these figures, the 
estimated

[[Page 15015]]

cost of the AD for U.S. operators is $39,845, or $65 per airplane.

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 AD will not have federalism 
implications under Executive Order 13132. This AD will 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 this AD:
    (1) Is not a ``significant regulatory action'' under Executive 
Order 12866;
    (2) Is not a ``significant rule'' under 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 AD. 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, Incorporation by 
reference, Safety.

Adoption of the Amendment

0
Accordingly, under the authority delegated to me by the Administrator, 
the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

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


Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness 
directive (AD):

2006-07-01 Empresa Brasileira de Aeronautica S.A. (EMBRAER): 
Amendment 39-14527. Docket No. FAA-2005-20728; Directorate 
Identifier 2005-NM-003-AD.

Effective Date

    (a) This AD becomes effective May 1, 2006.

Affected ADs

    (b) Accomplishing paragraph (g) of this AD eliminates certain 
requirements specified by AD 2004-25-21, amendment 39-13909 (69 FR 
76605, December 22, 2004).

Applicability

    (c) This AD applies to EMBRAER Model EMB-135BJ, -135ER, -135KE, 
-135KL, -135LR, -145, -145ER, -145MR, -145LR, -145XR, -145MP, and -
145EP airplanes; certificated in any category; as identified in 
EMBRAER Service Bulletin 145-27-0106, Revision 02 (for all affected 
airplanes except Model EMB-135BJ airplanes); and EMBRAER Service 
Bulletin 145LEG-27-0016, Revision 02 (for Model EMB-135BJ airplanes 
only); both dated March 14, 2005.

Unsafe Condition

    (d) This AD was prompted by reports of loss of the pitch trim 
system due to a simultaneous failure of both channels of the 
horizontal stabilizer control unit (HSCU). We are issuing this AD to 
prevent loss of pitch trim and reduced controllability of the 
airplane.

Compliance

    (e) You are responsible for having the actions required by this 
AD performed within the compliance times specified, unless the 
actions have already been done.

Replacement

    (f) Within 18 months or 4,000 flight hours after the effective 
date of this AD, whichever occurs first, replace the HSCU with a 
modified and reidentified or new, improved HSCU having part number 
362100-1013, by doing all the actions specified in the 
Accomplishment Instructions of the applicable EMBRAER service 
bulletin specified in Table 1 of this AD. Actions accomplished using 
the alternative sources of service information shown in Table 2 of 
this AD are considered acceptable for compliance with the 
requirements of this paragraph. Doing the requirements of this 
paragraph before the compliance time specified in paragraph (b) of 
AD 2004-25-21 eliminates the requirement to accomplish the actions 
required by paragraph (b)(1) of AD 2004-25-21.

                      Table 1.--Service Information
------------------------------------------------------------------------
                                 Revision
   EMBRAER service bulletin       level                Dated
------------------------------------------------------------------------
145-27-0106...................         02  March 14, 2005.
145LEG-27-0016................         02  March 14, 2005.
------------------------------------------------------------------------


                Table 2.--Alternative Service Information
------------------------------------------------------------------------
                                 Revision
   EMBRAER service bulletin       level                Dated
------------------------------------------------------------------------
145-27-0084...................         06  March 14, 2005.
145LEG-27-0002................         02  August 24, 2005.
------------------------------------------------------------------------

Airplanes Identified in Certain Other Service Bulletins/Concurrent 
Requirements

    (g) For airplanes identified in the EMBRAER service bulletins 
listed in Table 3 of this AD: Prior to or concurrently with the 
actions required by paragraph (f) of this AD, replace the HSCU with 
a new HSCU with improved features, and having a new part number, in 
accordance with EMBRAER Service Bulletin 145LEG-27-0002, Revision 
01, dated April 15, 2003; or 145-27-0084, Revision 04, dated October 
21, 2003; as applicable. Accomplishing this replacement eliminates 
the requirement to accomplish all actions required by paragraphs 
(a)(1), (a)(2), (b)(2), (b)(3), (b)(4)(i), (b)(4)(ii), (b)(5), 
(b)(6), and (b)(7) of AD 2004-25-21.

[[Page 15016]]



                                 Table 3.--Identification of Affected Airplanes
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                                                                   Revision
      EMBRAER service bulletin                Paragraph             level                   Dated
----------------------------------------------------------------------------------------------------------------
145-27-0084........................  1.A.(1), 1.A.(2), 1.A.(3),          04  October 21, 2003.
                                      1.A.(4), and 1.A.(5).
145-27-0096........................  1.A.(1) and 1.A.(2)........         04  March 14, 2005.
145-27-0106........................  1.A........................         02  March 14, 2005.
145LEG-27-0002.....................  1.A.(1) and 1.A.(2)........         01  April 15, 2003.
145LEG-27-0016.....................  1.A........................         02  March 14, 2005.
----------------------------------------------------------------------------------------------------------------

Actions Accomplished Per Previous Issues of Service Bulletins

    (h) Actions accomplished before the effective date of this AD in 
accordance with the EMBRAER service bulletins listed in Table 4 of 
this AD are considered acceptable for compliance with the applicable 
action in this AD.

                             Table 4.--Previous Issues of EMBRAER Service Bulletins
----------------------------------------------------------------------------------------------------------------
         EMBRAER service bulletin                 Revision level                          Dated
----------------------------------------------------------------------------------------------------------------
145-27-0084..............................  05.........................  August 24, 2004.
145-27-0106..............................  Original...................  August 4, 2004.
145-27-0106..............................  01.........................  August 30, 2004.
145LEG-27-0016...........................  Original...................  August 4, 2004.
145LEG-27-0016...........................  01.........................  August 30, 2004.
----------------------------------------------------------------------------------------------------------------

Parts Installation

    (i) As of the effective date of this AD, no person may install 
an HSCU on any airplane unless it has been modified according to the 
requirements of this AD.

Alternative Methods of Compliance (AMOCs)

    (j)(1) The Manager, International Branch, ANM-116, Transport 
Airplane Directorate, FAA, has the authority to approve AMOCs for 
this AD, if requested in accordance with the procedures found in 14 
CFR 39.19.
    (2) Before using any AMOC approved in accordance with 14 CFR 
39.19 on any airplane to which the AMOC applies, notify the 
appropriate principal inspector in the FAA Flight Standards 
Certificate Holding District Office.

Related Information

    (k) Brazilian airworthiness directive 2004-11-01, dated November 
28, 2004, also addresses the subject of this AD.

Material Incorporated by Reference

    (l) You must use the service information specified in Table 5 of 
this AD, as applicable, to perform the actions that are required by 
this AD, unless the AD specifies otherwise. The Director of the 
Federal Register approves the incorporation by reference of these 
documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 
343--CEP 12.225, Sao Jose dos Campos--SP, Brazil, for copies of this 
service information. You may view copies at the Docket Management 
Facility, U.S. Department of Transportation, 400 Seventh Street, 
SW., room PL-401, Nassif Building, Washington, DC; on the Internet 
at http://dms.dot.gov; or at the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at the NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

                                  Table 5.--Material Incorporated by Reference
----------------------------------------------------------------------------------------------------------------
                                                            Revision level shown
      EMBRAER service bulletin             Page No.               on page               Date shown on page
----------------------------------------------------------------------------------------------------------------
145-27-0084, Revision 04, October      1-4, 6, 11, 12, 15  04...................  October 21, 2003.
 21, 2003.
                                     5, 7-10, 13, 14, 16-  03...................  ..............................
                                                       40
145-27-0106, Revision 02, March 14,                  1-11  02...................  March 14, 2005.
 2005.
145LEG-27-0002, Revision 01, April                   1, 5  01...................  April 15, 2003.
 15, 2003.
                                                2-4, 6-15  Original.............  February 5, 2003.
145LEG-27-0016, Revision 02, March                   1-11  02...................  March 14, 2005.
 14, 2005.
----------------------------------------------------------------------------------------------------------------



[[Page 15017]]

    Issued in Renton, Washington, on March 17, 2006.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 06-2853 Filed 3-24-06; 8:45 am]
BILLING CODE 4910-13-P