[Federal Register Volume 71, Number 248 (Wednesday, December 27, 2006)]
[Rules and Regulations]
[Pages 77590-77593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22041]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2006-24440; Directorate Identifier 2006-NM-058-AD; 
Amendment 39-14862; AD 2006-26-04]
RIN 2120-AA64


Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. 
(EMBRAER) Model EMB-145XR 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-145XR airplanes. This AD requires replacement 
of certain segments of the passenger seat tracks with new, improved 
seat tracks. This AD results from instances where the shear plungers of 
the passenger seat legs were not adequately fastened. We are issuing 
this AD to prevent inadequate fastening of the seat leg shear plungers, 
which could result in failure of the passenger seat tracks

[[Page 77591]]

during emergency landing conditions and consequent injury to 
passengers.

DATES: This AD becomes effective January 31, 2007.
    The Director of the Federal Register approved the incorporation by 
reference of a certain publication listed in the AD as of January 31, 
2007.

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, FAA, Transport Airplane Directorate, 
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 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 supplemental notice of proposed rulemaking (NPRM) 
to amend 14 CFR part 39 to include an AD that would apply to certain 
EMBRAER Model EMB-145XR airplanes. That supplemental NPRM was published 
in the Federal Register on August 8, 2006 (71 FR 44935). That 
supplemental NPRM proposed to require replacement of certain segments 
of the passenger seat tracks with new, improved seat tracks.

Comments

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

Request To Publish Service Information

    The Modification and Replacement Parts Association (MARPA) states 
that, typically, ADs are based on service information originating with 
the type certificate holder or its suppliers. MARPA adds that 
manufacturer service documents are privately authored instruments 
generally having copyright protection against duplication and 
distribution. MARPA notes that when a service document is incorporated 
by reference into a public document, such as an AD, it loses its 
private, protected status and becomes a public document. MARPA adds 
that if a service document is used as a mandatory element of 
compliance, it should not simply be referenced, but should be 
incorporated into the regulatory document; by definition, public laws 
must be public, which means they cannot rely upon private writings. 
MARPA adds that incorporated by reference service documents should be 
made available to the public by publication in the Docket Management 
System (DMS), keyed to the action that incorporates them. MARPA notes 
that the stated purpose of the incorporation by reference method is 
brevity, to keep from expanding the Federal Register needlessly by 
publishing documents already in the hands of the affected individuals; 
traditionally, ``affected individuals'' means aircraft owners and 
operators, who are generally provided service information by the 
manufacturer. MARPA adds that a new class of affected individuals has 
emerged, since the majority of aircraft maintenance is now performed by 
specialty shops instead of aircraft owners and operators. MARPA notes 
that this new class includes maintenance and repair organizations, 
component servicing and repair shops, parts purveyors and distributors, 
and organizations manufacturing or servicing alternatively certified 
parts under section 21.303 (``Replacement and modification parts'') of 
the Federal Aviation Regulations (14 CFR 21.303). MARPA adds that the 
concept of brevity is now nearly archaic as documents exist more 
frequently in electronic format than on paper. Therefore, MARPA asks 
that the service documents deemed essential to the accomplishment of 
the supplemental NPRM be incorporated by reference into the regulatory 
instrument and published in DMS.
    We do not agree that documents should be incorporated by reference 
during the NPRM phase of rulemaking. The Office of the Federal Register 
(OFR) requires that documents that are necessary to accomplish the 
requirements of the AD be incorporated by reference during the final 
rule phase of rulemaking. This final rule incorporates by reference the 
document necessary for the accomplishment of the requirements mandated 
by this AD. Further, we point out that while documents that are 
incorporated by reference do become public information, they do not 
lose their copyright protection. For that reason, we advise the public 
to contact the manufacturer to obtain copies of the referenced service 
information.
    In regard to the commenter's request to post service bulletins on 
the Department of Transportation's DMS, we are currently in the process 
of reviewing issues surrounding the posting of service bulletins on DMS 
as part of an AD docket. Once we have thoroughly examined all aspects 
of this issue and have made a final determination, we will consider 
whether our current practice needs to be revised. No change to the 
final rule is necessary in response to this comment.

Request To Allow Use of Parts Manufacturer Approval (PMA) Parts

    MARPA states that the practice of requiring the replacement of a 
defective part with a certain part conflicts with 14 CFR 21.303. MARPA 
asserts that requiring installation of a certain part prevents 
installation of other good parts and prohibits the development of new 
parts. MARPA also states that the practice of requiring an alternative 
method of compliance (AMOC) to install a PMA part should be stopped. 
MARPA concludes that this practice presumes that all PMA parts are 
inherently defective and require an additional layer of approval.
    MARPA further states the NPRM does not comply with FAA Order 
8040.2; that order states that replacement or installation of certain 
parts could have replacement parts approved under 14 CFR 21.303 based 
on a finding of identicality. That order also states that any parts 
approved under this regulation and installed should be subject to the 
actions of the AD and included in the applicability.
    MARPA states that if a PMA part is defective, then it must be 
addressed in an AD and not just simply implied by an AMOC requirement. 
MARPA suggests that we adopt language used in ADs issued by 
directorates other than the Transport Airplane Directorate, which 
specify installing an ``FAA-approved equivalent part number'' or 
``airworthy parts.'' MARPA contends that the mandates contained in 
Section 1, paragraph (b)(1) of Executive Order 12866 are not being met 
because the directorates differ in their treatment of this issue. 
MARPA, therefore, requests that we revise the supplemental NPRM to 
allow use of PMA parts.
    We do not agree to revise this AD. The supplemental NPRM does not 
address PMA parts, as provided in draft FAA

[[Page 77592]]

Order 8040.2, because the Order was only a draft that was out for 
comment at the time. After issuance of the supplemental NPRM, the Order 
was revised and issued as FAA Order 8040.5 with an effective date of 
September 29, 2006. FAA Order 8040.5 does not address PMA parts in ADs.
    We acknowledge the need to ensure that unsafe PMA parts are 
identified and addressed in ADs in a standardized way at the national 
level. We are currently examining all aspects of this issue, including 
input from industry. Once we have made a final determination, we will 
consider how our policy regarding PMA parts in ADs needs to be revised. 
However, the Transport Airplane Directorate considers that to delay 
this particular 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 this AD in this regard.

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 as proposed in the supplemental NPRM.

Costs of Compliance

    This AD affects about 97 airplanes of U.S. registry. The required 
actions take about 10 work hours per airplane, at an average labor rate 
of $80 per work hour. Required parts cost about $82 per airplane. Based 
on these figures, the estimated cost of this AD on U.S. operators is 
$85,554, or $882 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 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

    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):

2006-26-04 Empresa Brasileira de Aeronautica S.A. (EMBRAER): 
Amendment 39-14862. Docket No. FAA-2006-24440; Directorate 
Identifier 2006-NM-058-AD.

Effective Date

    (a) This AD becomes effective January 31, 2007.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to EMBRAER Model EMB-145XR airplanes, 
certificated in any category; as identified in EMBRAER Service 
Bulletin 145-53-0059, Revision 01, dated March 9, 2006.

Unsafe Condition

    (d) This AD results from instances where the shear plungers of 
the passenger seat legs were not adequately fastened. We are issuing 
this AD to prevent inadequate fastening of the seat leg shear 
plungers, which could result in failure of the passenger seat tracks 
during emergency landing conditions and consequent injury to 
passengers.

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 of Passenger Seat Tracks

    (f) Within 5,000 flight hours after the effective date of this 
AD, replace segments of the internal and external passenger seat 
tracks with new, improved seat tracks, by accomplishing all of the 
actions specified in the Accomplishment Instructions of EMBRAER 
Service Bulletin 145-53-0059, Revision 01, dated March 9, 2006.

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 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.

Related Information

    (h) Brazilian airworthiness directive 2006-01-01R1, effective 
May 23, 2006, also addresses the subject of this AD.

Material Incorporated by Reference

    (i) You must use EMBRAER Service Bulletin 145-53-0059, Revision 
01, dated March 9, 2006, to perform the actions that are required by 
this AD, unless the AD specifies otherwise. EMBRAER Service Bulletin 
145-53-0059, Revision 01, dated March 9, 2006, contains the 
following effective pages:

------------------------------------------------------------------------
                                  Revision level
           Page No.                shown on page     Date shown on page
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1, 2, 16......................  01................  March 9, 2006.
3-15, 17......................  Original..........  July 1, 2005.
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    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

[[Page 77593]]

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 December 11, 2006.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. E6-22041 Filed 12-26-06; 8:45 am]
BILLING CODE 4910-13-P