[Federal Register Volume 71, Number 102 (Friday, May 26, 2006)]
[Proposed Rules]
[Pages 30335-30338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-8117]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 2004-NM-36-AD]
RIN 2120-AA64


Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. 
(EMBRAER) Model EMB-135BJ and EMB-145XR Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Supplemental notice of proposed rulemaking; reopening of 
comment period.

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SUMMARY: This document revises an earlier supplemental notice of 
proposed rulemaking (NPRM), applicable to certain Empresa Brasileira de 
Aeronautica S.A. (EMBRAER) Model EMB-135BJ and Model EMB-145XR 
airplanes. The first supplemental NPRM would have required, for all 
airplanes, installation of an additional indication device to the 
clear-ice indication system. For certain airplanes, the first 
supplemental NPRM would also have required replacing the existing 
clear-ice indication lamp with a new, improved lamp. For certain other 
airplanes, the first supplemental NPRM would also have required 
modifying certain electrical connections to add an indication device to 
the clear-ice indication system; removing a certain placard; and re-
activating the clear-ice additional indicator lamp. This new action 
revises the first supplemental NPRM by adding airplanes to the 
applicability. The actions specified by this new proposed supplemental 
NPRM are intended to prevent undetected build-up of clear ice on the 
wing surfaces, which could lead to reduced controllability of the 
airplane. This action is intended to address the identified unsafe 
condition.

DATES: Comments must be received by June 20, 2006.

ADDRESSES: Submit comments in triplicate to the Federal Aviation 
Administration (FAA), Transport Airplane Directorate, ANM-114, 
Attention: Rules Docket No. 2004-NM-36-AD, 1601 Lind Avenue, SW., 
Renton, Washington 98055-4056. Comments may be inspected at this 
location between 9 a.m. and 3 p.m., Monday through Friday, except 
Federal holidays. Comments may be submitted via fax to (425) 227-1232. 
Comments may also be sent via the Internet using the following address: 
[email protected]. Comments sent via fax or the Internet must 
contain ``Docket No. 2004-NM-36-AD'' in the subject line and need not 
be submitted in triplicate. Comments sent via the Internet as attached 
electronic files must be formatted in Microsoft Word 97 or 2000 or 
ASCII text.
    The service information referenced in the proposed rule may be 
obtained from Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. 
Box 343-CEP 12.225, Sao Jose dos Campos-SP, Brazil. This information 
may be examined at the FAA, Transport Airplane Directorate, 1601 Lind 
Avenue, SW., Renton, Washington.

FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, 
International Branch, ANM-116, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 
227-1175; fax (425) 227-1149.

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. Communications shall identify the Rules Docket number 
and be submitted in triplicate to the address specified above. All 
communications received on or before the closing date for comments, 
specified above, will be considered before taking action on the 
proposed rule. The proposals contained in this action may be changed in 
light of the comments received.
    Submit comments using the following format:
     Organize comments issue-by-issue. For example, discuss a 
request to change the compliance time and a request to change the 
service bulletin reference as two separate issues.
     For each issue, state what specific change to the proposed 
AD is being requested.
     Include justification (e.g., reasons or data) for each 
request.
    Comments are specifically invited on the overall regulatory, 
economic, environmental, and energy aspects of the proposed rule. All 
comments submitted 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 FAA-public contact concerned with 
the substance of this proposal will be filed in the Rules Docket.
    Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this action must submit a self-addressed, 
stamped postcard on which the following statement is made: ``Comments 
to Docket Number 2004-NM-36-AD.'' The postcard will be date stamped and 
returned to the commenter.

Availability of NPRMs

    Any person may obtain a copy of this NPRM by submitting a request 
to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules 
Docket No. 2004-NM-36-AD, 1601 Lind Avenue, SW., Renton, Washington 
98055-4056.

Discussion

    A proposal to amend part 39 of the Federal Aviation Regulations (14 
CFR part 39) to add an airworthiness directive (AD), applicable to 
certain Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-
135BJ and Model EMB-145XR series airplanes, was published as a 
supplemental notice of proposed rulemaking (NPRM) (``the first 
supplemental NPRM'') in the Federal Register on June 22, 2005 (70 FR 
36081). That first supplemental NPRM would have required installation 
of an additional indication device to the clear-ice indication system. 
For certain airplanes that first supplemental NPRM would also have 
required replacing the existing clear-ice indication lamp with a new, 
improved lamp. For certain other airplanes, that first supplemental 
NPRM would also have required modifying certain electrical connections 
to add an indication device to the clear-ice indication system; 
removing a certain placard; and re-activating the clear-ice additional 
indicator lamp. That first supplemental NPRM was prompted by new 
revisions of service information that expanded the scope of the 
originally proposed rule. We issued the first supplemental NPRM to 
prevent undetected build-up of clear ice on the wing surfaces, which 
could lead to reduced controllability of the airplane.

[[Page 30336]]

Actions Since Issuance of First Supplemental NPRM

    EMBRAER has issued new service information, which adds airplanes to 
the applicability. We have reviewed EMBRAER Service Bulletin 145-30-
0035, Revision 03, dated March 8, 2005, and have revised this second 
supplemental NPRM to refer to this new service information.
    In addition, due consideration has been given to the comments 
received in response to the first supplemental NPRM:

Request To Revise Credit Paragraph

    EMBRAER requests that we revise paragraph (c) of the first 
supplemental NPRM to remove references to EMBRAER Service Bulletin 145-
30-0035, dated July 16, 2003, and Revision 01, dated September 2, 2003; 
and to EMBRAER Service Bulletin 145LEG-30-0002, dated September 2, 
2004. EMBRAER states that it was notified of technical problems that 
operators experienced while accomplishing these service bulletins. 
These technical issues could lead to the system not operating as 
predicted. EMBRAER suggests that we revise paragraph (c) of the first 
supplemental NPRM to allow credit only for the accomplishment of 
EMBRAER Service Bulletin 145-30-0035, Revision 02, dated January 6, 
2005.
    We agree with EMBRAER for the reasons stated. We have revised 
paragraph (c) of the second supplemental NPRM to include a reference 
only to EMBRAER Service Bulletin 145-30-0035, Revision 02.

Request To List First Supplemental NPRM in Docket Management System 
(DMS)

    Modification and Replacement Parts Association (MARPA) objects to 
the issuance of AD rulemaking without concurrent listing in the DMS at 
http://dms.dot.gov. MARPA requests that the first supplemental NPRM be 
reconfigured pursuant to the requirements for listing the action under 
the DMS system so that comments may be published on-line.
    We disagree with the commenter. On May 17, 2004, we implemented new 
procedures for maintaining AD dockets electronically. As of that date 
new AD actions are posted on DMS and assigned a docket number. However, 
actions that were started before that date are not posted on the DMS 
system. In order to post them on DMS, we would have to assign a new 
docket number and break the continuity of comments and changes to the 
action. These changes are tracked by airplane operators. We have not 
changed the second supplemental NPRM in this regard.

Service Bulletin Availability

    MARPA notes that the first supplemental NPRM specifies that the 
clear-ice indicator lamp be replaced in accordance with a manufacturer 
service bulletin. MARPA also states service bulletins are proprietary 
documents and are difficult to obtain for those who are not aircraft 
owners and/or operators. MARPA states that it is not possible without 
reference to the service bulletin to determine precisely the lamps that 
are approved replacement parts.
    We infer that MARPA is requesting that we attach a copy of all 
service information to the relevant AD when we distribute it, or that 
we scan and post all service information on-line. As noted above, the 
contents of this second supplemental NPRM will not be posted on-line at 
DMS. However, paper copies of the service bulletins are available for 
anyone to review at the locations cited in the ADDRESSES paragraph of 
this second supplemental NPRM. No change has been made to this second 
supplemental NPRM in this regard.

Request To Reference Parts Manufacturing Approval (PMA) Parts

    MARPA also requests that the ``new and improved'' indicator lamp be 
identified in the text of the action by the manufacturer and the part 
number; and that the wording of the action be adjusted to embrace the 
possibility that alternative parts may be used in place of those 
prescribed in the service document. To that end, MARPA suggested that 
the following wording may be appropriate: ``The requirements to remove 
or install certain part-numbered specific parts shall be interpreted 
broadly to include any parts approved under FAR 21.303 as replacements 
for the original equipment parts cited in this action. It is the 
responsibility of the operator to determine such extended 
applicability. Nothing in this action prevents or precludes the 
installation of alternatively approved parts.''
    We infer that the commenter would like the first supplemental NPRM 
to permit installation of any equivalent PMA parts so that it is not 
necessary for an operator to request approval of an alternative method 
of compliance (AMOC) in order to install an ``alternative'' 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.
    In response to the commenter's statement regarding a conflict with 
14 CFR 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 21.203), 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 Sec.  21.303.
    An 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, an 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 an AD would make the operator subject to 
an enforcement action and result in a civil penalty. No change to the 
second supplemental NPRM is necessary in this regard.

Request To Address Defective PMA Parts

    MARPA also requests that the first supplemental NPRM be revised to 
identify the defective indicator lamp by manufacturer and part number. 
MARPA states that it is not possible for interested parties to 
determine if the affected indicator lamp has an approved replacement 
part qualified under 14 CFR 21.303. If such a part does exist then it 
may suffer the same deficiencies as the original equipment manufacturer 
(OEM) part and should also be replaced. MARPA states that because PMA 
parts

[[Page 30337]]

usually carry different part numbers than OEM parts, the possibility 
exists that a defective PMA part may escape the regulatory force of the 
AD, thereby compromising safety.
    We concur with the commenter's general request that, if we know 
that an unsafe condition also exists in PMA parts, an AD should address 
those parts, as well as the OEM parts. For this second supplemental 
NPRM, we are not aware of other PMA parts that have a different part 
number. The commenter'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 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 second supplemental NPRM in this regard.

Clarification of AMOC Paragraph

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

Explanation of Change to Cost Estimate

    After the first supplemental NPRM was issued, we reviewed the 
figures we have used over the past several years to calculate AD costs 
to operators. To account for various inflationary costs in the airline 
industry, we find it necessary to increase the labor rate used in these 
calculations from $65 per work hour to $80 per work hour. The cost 
impact information, below, reflects this increase in the specified 
hourly labor rate.

Explanation of Change to Applicability

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

Conclusion

    Since certain changes expand the scope of the first supplemental 
NPRM, the FAA has determined that it is necessary to reopen the comment 
period to provide additional opportunity for public comment.

Cost Impact

    The FAA estimates that about 49 airplanes of U.S. registry would be 
affected by this proposed AD. The average labor rate is $80 per work 
hour.
    For 41 Model EMB-145XR airplanes, it would take 16 work hours per 
airplane to accomplish the proposed actions. Required parts would cost 
between $242 and $817 per airplane. Based on these figures, the cost 
impact of the proposed AD on U.S. operators of Model EMB-145XR 
airplanes is estimated to be between $62,402 and $85,977, or between 
$1,522 and $2,097 per airplane.
    For 8 Model EMB-135BJ airplanes, it would take 16 work hours per 
airplane to accomplish the proposed actions. Required parts would cost 
between $240 and $820 per airplane. Based on these figures, the cost 
impact of the proposed AD on U.S. operators of Model EMB-135BJ 
airplanes is estimated to be between $12,160 and $16,800, or between 
$1,520 and $2,100 per airplane.
    The cost impact figures discussed above are based on assumptions 
that no operator has yet accomplished any of the proposed requirements 
of this AD action, and that no operator would accomplish those actions 
in the future if this AD were not adopted. The cost impact figures 
discussed in AD rulemaking actions represent only the time necessary to 
perform the specific actions actually required by the AD. These figures 
typically do not include incidental costs, such as the time required to 
gain access and close up, planning time, or time necessitated by other 
administrative actions.

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 Impact

    The regulations proposed herein 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. Therefore, it 
is determined that this proposal would not have federalism implications 
under Executive Order 13132.
    For the reasons discussed above, I certify that this 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) if promulgated, 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. A copy of the draft 
regulatory evaluation prepared for this action is contained in the 
Rules Docket. A copy of it may be obtained by contacting the Rules 
Docket at the location provided under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me by the 
Administrator, the Federal Aviation Administration proposes to amend 
part 39 of the Federal Aviation Regulations (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.


Sec.  39.13  [Amended]

    2. Section 39.13 is amended by adding the following new 
airworthiness directive:

Empresa Brasileira De Aeronautica S.A. (EMBRAER): Docket 2004-NM-36-
AD.
    Applicability: Model EMB-145XR airplanes, as listed in EMBRAER 
Service Bulletin 145-30-0035, Revision 03, dated March 8, 2005; and 
Model EMB-135BJ airplanes, as listed in EMBRAER Service Bulletin 
145LEG-30-0002, Revision 01, dated January 4, 2005; certificated in 
any category.
    Compliance: Required as indicated, unless accomplished 
previously.
    To prevent undetected build-up of clear ice on the wing 
surfaces, which could lead to

[[Page 30338]]

reduced controllability of the airplane, accomplish the following:

Modification of Clear-Ice Indication System

    (a) For Model EMB-145XR airplanes: Within 24 months or 5,000 
flight hours after the effective date of this AD, whichever comes 
first, perform the actions specified in paragraphs (a)(1) and (a)(2) 
of this AD, as applicable, in accordance with the Accomplishment 
Instructions of EMBRAER Service Bulletin 145-30-0035, Revision 03, 
dated March 3, 2005.
    (1) Install complete electrical connections and provisions to 
add an additional indication device to the clear-ice indication 
system, as specified in the Accomplishment Instructions, Part I.
    (2) Replace the existing clear-ice indication lamp with a new 
lamp having a new part number, as specified in the Accomplishment 
Instructions, Part II.
    (b) For Model EMB-135BJ airplanes: Within 24 months or 5,000 
flight hours after the effective date of this AD, whichever comes 
first, perform the actions of paragraphs (b)(1), (b)(2), (b)(3), and 
(b)(4) of this AD, as applicable, in accordance with the 
Accomplishment Instructions of EMBRAER Service Bulletin 145LEG-30-
0002, Revision 01, dated January 4, 2005.
    (1) Install complete electrical connections and provisions to 
add an additional indication device to the clear-ice indication 
system, as specified in the Accomplishment Instructions, Part I.
    (2) Modify the electrical connections of factory-provisioned 
airplanes to add an additional indication device to the clear-ice 
indication system, as specified in the Accomplishment Instructions, 
Part II.
    (3) Remove the ``Clear-Ice Inoperative'' placard and reactivate 
the clear-ice additional indicator lamp, as specified in the 
Accomplishment Instructions, Part III.
    (4) Replace the existing clear-ice indicator lamp with a new, 
improved lamp having a new part number, as specified in the 
Accomplishment Instructions, Part IV or Part V.

Actions Accomplished Per Previous Issues of Service Bulletins

    (c) Actions accomplished before the effective date of this AD in 
accordance with EMBRAER Service Bulletin 145-30-0035, Revision 02, 
dated January 06, 2005, are considered acceptable for compliance 
with the corresponding actions specified in this AD.

Alternative Methods of Compliance

    (d)(1) In accordance with 14 CFR 39.19, the Manager, 
International Branch, ANM-116, FAA, Transport Airplane Directorate, 
is authorized to approve alternative methods of compliance for this 
AD.
    (2) Before using any AMOC approved in accordance with Sec.  
39.19 on any airplane to which the AMOC applies, notify the 
appropriate principal inspector in the FAA Flight Standards 
Certificate Holding District Office.

    Note 1: The subject of this AD is addressed in Brazilian 
airworthiness directive 2004-01-01, dated January 27, 2004.


    Issued in Renton, Washington, on May 15, 2006.
Kevin M. Mullin,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. E6-8117 Filed 5-25-06; 8:45 am]
BILLING CODE 4910-13-P