[Federal Register Volume 71, Number 172 (Wednesday, September 6, 2006)]
[Rules and Regulations]
[Pages 52416-52418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14637]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2005-22125; Directorate Identifier 2005-NM-130-AD; 
Amendment 39-14745; AD 2006-18-07]
RIN 2120-AA64


Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. 
(EMBRAER) Model ERJ 170 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 ERJ 170 airplanes. This AD requires replacing the 
very high frequency (VHF) antenna located in position 1 of the fuselage 
with a new, improved VHF antenna. This AD results from a report of the 
loss of all voice communications due to a lightning strike damaging all 
the VHF antennas. We are issuing this AD to prevent the loss of voice 
communication, which, when combined with the complexity of the national 
airspace system, could result in reduced flightcrew situational 
awareness, increased flightcrew workload, and increased risk of human 
error, and consequent reduced ability to maintain safe flight and 
landing of the airplane.

DATES: This AD becomes effective October 11, 2006.
    The Director of the Federal Register approved the incorporation by 
reference of a certain publication listed in the AD as of October 11, 
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 
343--CEP 12.225, Sao Jose dos Campos--SP, Brazil, for service 
information identified in this AD.

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

SUPPLEMENTARY INFORMATION:

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 
ERJ 170 airplanes. That NPRM was published in the Federal Register on 
August 18, 2005 (70 FR 48500). That NPRM proposed to require replacing 
the very high frequency (VHF) antenna located in position 1 of the 
fuselage with a new, improved VHF antenna.

Comments

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

Request for All Very High Frequency (VHF) Antennas To Be Replaced

    Air Line Pilots Association (ALPA) requests that all of the VHF 
antennas on the subject airplanes be replaced with the new, improved 
antennas. ALPA suggests that, for redundancy purposes, all of the VHF 
antennas should be replaced because ``all'' of the VHF antennas were 
damaged in the event that precipitated the AD.
    We do not agree to require replacement of all the VHF 
communications antennas. Section 25.1316(b) of the Federal Aviation 
Regulations (FARs) (14 CFR 25.1316) requires that a major aircraft 
system that, if it failed, would contribute to or cause a condition 
that would reduce the capability of the airplane or flightcrew to cope 
with adverse operating conditions must be designed to be able to 
recover in a timely manner after exposure to lightning. In the incident 
precipitating this AD, the VHF communications system failed because 
none of the VHF antennas were able to recover. The newly designed 
replacement antenna required by this

[[Page 52417]]

AD has been through considerable testing and we find that sufficient 
data exist to demonstrate that it meets the requirements of section 
25.1316(b) and will be able to recover function of the VHF 
communications system following a lightning strike. Therefore, 
replacing the position 1 VHF communications antenna with the new 
antenna instead of replacing all of the VHF antennas is sufficient to 
ensure system recovery in the event of a lightning strike and will 
adequately address the unsafe condition addressed by this AD. However, 
operators are free to replace the position 2 and 3 VHF communications 
antennas with the newly designed antenna at their discretion. We have 
not changed the AD in this regard.

Request for Review of the Subject Airplane's Ability To Handle 
Lightning Strikes

    ALPA also requests that the FAA look into the subject airplane's 
ability to adequately and safely handle lightning strikes and static 
discharges. ALPA gives no justification for this request.
    We do not agree. This airplane model design was certificated to the 
airworthiness standards for lightning protection provided in part 25 of 
the FARs (14 CFR part 25). The purpose of these standards is to ensure 
that the operation of the airplane is not adversely affected when the 
airplane is exposed to lightning. Beyond the event that is the subject 
of this AD, we are unaware of any other instances of this model 
airplane being adversely affected by exposure to lightning. We have 
made no change to the AD in this regard.

Request To Reference Parts Manufacturer Approval (PMA) Parts

    Modification and Replacement Parts Association (MARPA) requests 
that the language in the NPRM be changed to permit installation of PMA 
equivalent parts. The commenter states that the mandated installation 
of a certain part number in the NPRM ``creates a conflict with 14 CFR 
Section 21.303.''
    We do not agree with MARPA's request. We infer that MARPA would 
like the AD to specify the manufacturer and part number in order to 
permit installation of any equivalent PMA parts. We also infer that 
MARPA believes that it is not necessary for an operator to request 
approval of an alternate method of compliance (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.
    In response to MARPA's statement regarding a ``conflict 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 21.203), 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 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.

Request To Address Defective PMA Parts

    MARPA notes that safety gaps may occur because original equipment 
manufacturer (OEM) parts determined to be defective may have been 
replaced with PMA parts that are also defective. MARPA further states 
that frequently design defects that arise in OEM parts will also exist 
in PMA parts, since they may actually only differ in part number, while 
sharing the same design data. Therefore MARPA requests that the 
defective parts be identified by manufacturer and part number in the 
NPRM. MARPA also suggests wording be added to the NPRM that would 
``embrace any present or future PMA alternatives to either the 
defective part or the `new and improved' part.''
    From these statements, we infer that MARPA would like the NPRM to 
be revised to cover possible defective PMA alternative parts, rather 
than just OEM parts listed in the service bulletin, so that those 
defective PMA parts also are subject to 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. 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. 
Therefore, no change has been made to the final rule in this regard.

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 received, and determined that air safety and the public 
interest require adopting the AD with the change described previously. 
We have determined that this change will neither increase the economic 
burden on any operator nor increase the scope of the AD.

Costs of Compliance

    This AD will affect about 43 airplanes of U.S. registry. The 
required actions will take about 2 work hours per airplane, at an 
average labor rate of $65 per work hour. Required parts will cost $654. 
Based on these figures, the estimated cost of the AD for U.S. operators 
is $33,712, or $784 per airplane.

[[Page 52418]]

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 and placed it in the AD docket. See the ADDRESSES 
section for a location to examine the regulatory evaluation.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, 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 Federal Aviation Administration (FAA) amends Sec.  39.13 by 
adding the following new airworthiness directive (AD):

2006-18-07 Empresa Brasileira De Aeronautica S.A. (EMBRAER): 
Amendment 39-14745. Docket No. FAA-2005-22125; Directorate 
Identifier 2005-NM-130-AD.

Effective Date

    (a) This AD becomes effective October 11, 2006.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to EMBRAER Model ERJ 170-100 LR, -100 STD, -
100 SE, and -100 SU airplanes, certificated in any category; as 
identified in EMBRAER Service Bulletin 170-23-0005, dated December 
29, 2004.

Unsafe Condition

    (d) This AD results from a report of the loss of all voice 
communications due to a lightning strike damaging all the very high 
frequency (VHF) antennas. We are issuing this AD to prevent the loss 
of voice communication, which, when combined with the complexity of 
the national airspace system, could result in reduced flightcrew 
situational awareness, increased flightcrew workload, and increased 
risk of human error, and consequent reduced ability to maintain safe 
flight and landing 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.

Modification

    (f) Within 700 flight hours after the effective date of this AD, 
replace the VHF antenna located in position 1 of the fuselage with a 
new, improved VHF antenna in accordance with the Accomplishment 
Instructions of EMBRAER Service Bulletin 170-23-0005, dated December 
29, 2004.

Alternative Methods of Compliance (AMOCs)

    (g)(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

    (h) Brazilian airworthiness directive 2005-04-04, effective 
April 30, 2005, also addresses the subject of this AD.

Material Incorporated by Reference

    (i) You must use EMBRAER Service Bulletin 170-23-0005, dated 
December 29, 2004, to perform the actions that are required by this 
AD, unless the AD specifies otherwise. The Director of the Federal 
Register approved the incorporation by reference of this document 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 a copy of this service 
information. You may review 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.

    Issued in Renton, Washington, on August 23, 2006.
Kalene C. Yanamura,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
 [FR Doc. E6-14637 Filed 9-5-06; 8:45 am]
BILLING CODE 4910-13-P