[Federal Register Volume 72, Number 8 (Friday, January 12, 2007)]
[Rules and Regulations]
[Pages 1438-1442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-338]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 121

[Docket No. FAA-2006-24277; Amendment No. 121-330]
RIN 2120-AI75


Fire Penetration Resistance of Thermal/Acoustic Insulation 
Installed on Transport Category Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The FAA extends, by 24 months, the date for operators to 
comply with the fire penetration resistance requirements of thermal/
acoustic insulation used in transport category airplanes manufactured 
after September 2, 2007. This extension is from September 2, 2007, to 
September 2, 2009. This action is necessary to allow airframe 
manufacturers enough time, after getting an acceptable certification 
test facility, to select and certificate appropriate installations.

DATES: This amendment becomes effective February 12, 2007.

FOR FURTHER INFORMATION CONTACT: Jeff Gardlin, FAA, Airframe and Cabin 
Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft 
Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-
3356; telephone (425) 227-2136, facsimile (425) 227-1149, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending 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 
rulemaking.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

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. If you are a small entity and you have a question 
regarding this document, you may contact its local FAA official, or the 
person listed under FOR FURTHER INFORMATION CONTACT. You can find out 
more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. 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.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Subpart III, Section 44701. Under that section, 
the FAA is charged with promoting safe flight of civil aircraft in air 
commerce by prescribing minimum standards required in the interest of 
safety for the design and performance of aircraft. This regulation is 
within the scope of that authority, because it prescribes new safety 
standards for the design of transport category airplanes.

[[Page 1439]]

Background

    We issued a notice of proposed rulemaking (NPRM) on April 3, 2006 
(71 FR 16678) to extend the compliance date of 49 CFR 121.312(e)(3) 
because of unforeseen difficulties in establishing acceptable test 
equipment for showing compliance with that regulation. As discussed in 
the NPRM, that section requires that transport category airplanes 
manufactured after September 2, 2007, comply with the provisions of 14 
CFR 25.856(b) when entering part 121 service. Section 25.856(b), in 
turn, requires that thermal/acoustic insulation installed in the lower 
half of the fuselage of those airplanes resist penetration of an 
external fire. The performance criteria are contained in Appendix F, 
part VII of part 25.
    Based on difficulties in obtaining and qualifying the necessary 
test equipment that arose following publication of the requirement, we 
determined that the compliance date for Sec.  121.312(e)(3) should be 
extended. This is discussed in detail in the NPRM.

Discussion of Comments

    Nine commenters responded to the NPRM. Two commenters, Daher-
Lhotellier and Cogebi, are affiliated insulation material manufacturers 
that do not support extending the compliance date. These commenters 
contended that materials meeting the rule are available and that 
compliance within the existing date is possible. They provided no 
further information. The basis of the proposed extension was that 
manufacturers were not able to show that materials that are optimized 
for cost and weight would reliably meet the requirement. We agree there 
are materials that satisfy the test requirements of the regulation, but 
these are heavier or more expensive than envisioned by the rule. The 
commenters did not address this point in their comments. We therefore 
do not agree the current compliance date should be maintained.
    All other commenters (Airbus, Airline Pilots Association (ALPA), 
Air Transport Association (ATA), Association of European Airlines 
(AEA), Aerospace Industries Association (AIA), Boeing, and Bombardier) 
supported an extension to the compliance date.
    ALPA agreed that an extension of the compliance date is warranted, 
but had other comments on the basic requirement. These comments 
included expanding the number of airplanes affected, and the portion of 
the airplane that must be protected with insulation meeting the 
requirement. ALPA had made these same comments during the original 
rulemaking. These comments went beyond the scope of the NPRM, which 
simply addresses the compliance date for newly manufactured airplanes. 
However, as discussed in the original rulemaking, we have determined 
that broadening the applicability of the rule would have a very small 
benefit, and significant cost.
    Airbus, Boeing, Bombardier, AIA and AEA all contended the test 
equipment is still not sufficiently developed to support a fixed 
compliance date. They maintained the scatter in test results is too 
wide for a certification standard.
    We do not agree. The FAA William J. Hughes Technical Center has 
worked aggressively to resolve the issues with the test equipment, and 
has made significant progress in eliminating differences between test 
facilities. The most significant issue was the difference in 
performance between two test burners with slightly different 
configurations. We have developed small modifications that bring the 
two configurations into alignment. These modifications have been 
distributed to the test facilities that required them. In addition, we 
have conducted a series of tests with different materials to confirm 
the modifications do, in fact, work. It should be noted that all test 
methods, and in particular, fire test methods, have variability. This 
test method is consistent with other fire test methods in terms of the 
variation in results from one test to the next. As discussed below, 
some of the variation in test results is not because of the test method 
or equipment.
    We have also identified variability in materials that can lead to 
variability in test results. In the tests cited by these commenters, 
many of the materials tested were ``off the shelf'' and not necessarily 
developed to comply with an aviation safety standard. More recent 
efforts to develop materials whose properties were carefully controlled 
have shown the test results can be very consistent, if the material 
being tested is itself very consistent.
    Airbus, Boeing, and AIA commented the burner used in the test 
method is obsolete, and no longer available. They stated this 
contributes to difficulties in obtaining consistency among facilities 
and within a facility.
    While the burner is no longer commercially available; there are 
numerous burners already in industry. As discussed above, the FAA 
Technical Center has developed refinements to the burner that 
standardize its performance. However, as the supply of burners is 
limited, we have also developed an alternative burner that eliminates 
many of the parameters that are currently the source of performance 
variations. This design will be documented and the plans made available 
to anyone requesting them. The new burner can be fabricated from 
standard parts and should eliminate concerns that the old burner is out 
of production.
    Airbus commented there are no commercially available test 
facilities. At the time the comment was made, no commercial facilities 
had requested FAA acceptance. However, since the NPRM was published, 
two facilities have requested and received FAA review and would be 
eligible to conduct certification testing if they so choose.
    Airbus also commented the late availability of the associated 
advisory circular (AC) 25.856-2 has contributed to the need for further 
extension. Airbus noted the final AC was published in January 2006, and 
not concurrently with the final rule. They stated the lack of published 
guidance affected their ability to begin designing suitable solutions.
    Part of the reason the AC publication was delayed was to permit as 
much consideration as possible of the equipment issues that had arisen. 
We had to balance the need to issue the AC as soon as possible with the 
need to make it as comprehensive as possible. The absence of the AC did 
not, however, limit any manufacturer's ability to propose, and gain 
acceptance for, methods of compliance. The FAA has worked with each 
affected manufacturer to develop methods of compliance. While the ideal 
situation would have been to have the AC available concurrent with the 
final rule, this should not have inhibited the development of methods 
of compliance.
    Bombardier, Boeing and Airbus, with supporting comments from AEA 
and AIA, contended there are no, or limited, materials available that 
satisfy the cost/weight criteria specified in the original rulemaking. 
We believe that part of this comment stemmed from the prior problems 
with test equipment, and the potential for certain materials to pass at 
one facility, but fail at another. Since the material used to establish 
cost and weight in the original rulemaking is still available, we do 
not agree there are no materials available. However, we agree the 
scatter in test results that prompted this rule introduced uncertainty, 
and reluctance on the part of the manufacturers to commit to a 
material.
    Bombardier commented on specific areas of the airplane that may be 
more complex to address than others, as well as some alternative 
approaches to providing protection from flame penetration. These 
comments were not directly related to the subject of the compliance 
date. Nonetheless, we agree

[[Page 1440]]

that some areas of the airplane are more complicated than others, but 
this was accounted for in the rulemaking. In terms of alternative 
approaches, an applicant is free to propose an approach that provides 
an equivalent level of safety.
    Boeing expressed a concern that the local Aircraft Certification 
Offices will not have enough information with which to review, and find 
acceptable, test facilities. As noted above, two facilities have been 
reviewed and accepted to date. The FAA plans to make such reviews a 
priority and there have been no unforeseen difficulties in successfully 
accomplishing the facility review.
    Boeing and Airbus both indicated that they cannot comply, even with 
a 12 month extension. They stated their current production schedules 
and design requirements mean that compliance with the existing proposal 
will cause severe disruption of their schedules and cause them to 
implement materials that are heavier, or more costly than can be 
developed soon. This in turn would require them to change 
configurations twice: once to meet the compliance date, and again to 
optimize the materials, after they complete their development. They 
proposed an additional 12 month extension, for a total of 24 months to 
minimize disruption of their production.
    We have carefully considered these comments, as they are 
fundamental to the impact of the rule. When the original rule was 
promulgated, we determined that a four year compliance time was 
sufficient for newly manufactured airplanes. This assessment presumed 
that materials and test equipment were readily available and that 
manufacturers would begin to address compliance immediately. However, 
we have acknowledged the test equipment was not readily available in a 
condition to always provide reliable test results, and that this 
brought into question the suitability of certain materials presumed to 
be acceptable. Since this rule does add weight and cost to the 
airplane, the balance between the total cost impact and the safety 
benefit is very important. If the cost of implementating the rule is 
much more significant than anticipated, the justification for the rule 
may be revisited. Since we believe the rule provides a significant 
safety benefit, we must maintain the balance between the cost impact, 
and the safety benefit provided. Clearly, for various reasons, two 
major airplane manufacturers are not prepared to comply with the rule, 
even allowing for a 12 month extension from the original compliance 
date. While we do not agree that all the reasons for this lie with the 
issues associated with the test method, we believe that the current 
proposal will result in significantly greater economic impact than was 
anticipated.
    We have worked closely with each of the affected airplane 
manufacturers to address compliance questions and certification 
methodology. This has involved on-site visits and inspection of 
airplane design details, in addition to numerous discussions. These 
reviews give us a good appreciation of the magnitude of the design 
changes required to achieve compliance, which are substantial. Since a 
significant amount of the compliance time was absorbed with test 
equipment issues, the airplane manufacturers are significantly behind 
in implementing designs. Even though we had concluded that a 12 month 
extension would be sufficient, the two largest airplane manufactures 
are clearly not postured to accommodate compliance in that timeframe 
using materials that they consider optimal and that they intend to use 
for future compliance. We agree that they could not comply within the 
current proposed timeframe without a substantial cost impact that we 
did not originally anticipate.
    Considering all of the above we have concluded that an additional 
12 month extension, for a total of 24 months, is appropriate to 
implement this requirement in keeping with the original cost/benefit 
balance of the rule. In making this decision, we have considered that 
we would very likely receive petitions for exemption to address 
specific certification programs if the current proposal is maintained. 
The potential for further extensions is a significant factor in 
changing the proposal. Barring some unforeseen event, we do not 
envision any more changes to the compliance date. The final rule is 
changed accordingly.
    Notwithstanding the 24 month extension, we would expect the 
manufacturers to implement the required design changes as early as 
possible, to improve the safety of the fleet.

Paperwork Reduction Act

    There are no current or 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 has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these regulations.

Regulatory Evaluation, Regulatory Flexibility Analysis, International 
Trade Impact Assessment, and Unfunded Mandate Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall 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 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Act requires agencies to consider international 
standards and, where appropriate, that they be 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 with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    A two-year postponement of the new thermal acoustic insulation 
standards would spare manufactures an added setup cost of slightly less 
than $60 million at an expected societal loss of $4 million in 
benefits. The Improved Flammability Standards for Thermal/Acoustic 
Insulation final regulatory evaluation (July, 2002) estimated the new 
insulation requirements would produce present value benefits of $222.6 
million with present value costs of

[[Page 1441]]

$108.4 million (Table M). The two-year benefit/cost delay dichotomy is 
because of large set up costs and a relatively short postponement of 
corresponding benefits. The benefits increase slowly with a gradual 
increase in the fleet because of annual deliveries of new production 
airplanes with the new thermal/acoustic insulation.
    As shown in the 2002 final regulatory evaluation nearly half of the 
regulatory evaluation estimated $108 million present value costs are 
the setup costs ($58.1 million in present value), which are incurred in 
the two years before installing the improved insulation on new 
production airplanes. These setup costs occur because of configuration 
management, or the cost resulting from engineering time to change 
airplane configuration--such as fully accounting for all parts, tools, 
and shop manual changes. To be in compliance with the new requirements 
the industry would first have to install a heavier insulation, before 
lighter weight insulation becomes fully available. Two different types 
of insulation materials require configuration management costs to 
double.
    Thus this final rule results in large cost savings with a minor 
loss in social benefits. The FAA has, therefore, determined that this 
final rule 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.

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives 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 this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' 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 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.
    However, if an agency determines that a 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.
    With this rule airplane manufacturers will avoid incurring an added 
configuration management cost. While these manufacturers are not small 
entities, the small entity operators are expected to save fuel burn 
expense, as the one-year interim fix insulation is heavier. Thus this 
rule is cost relieving and does not impose a significant economic 
impact on a substantial number of small entities.
    We did not receive comments following the NPRM about the cost 
impact on small entities.
    Therefore, as the FAA Administrator, I certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing any standards or engaging in 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 final rule and has determined that it provides 
the same cost relief to domestic and international entities and thus 
has a neutral trade impact.

Unfunded Mandate Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 an expenditure of $100 million or more 
(adjusted annually for inflation with the base year 1995) 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.'' The FAA currently uses an inflation-adjusted value 
of $128.1 million in lieu of $100 million. This final rule does not 
contain such a mandate.

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, and therefore does not have federalism implications.

Regulations Affecting Intrastate Aviation in Alaska

    Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 
3213) requires the FAA, when modifying its regulations in a manner 
affecting intrastate aviation in Alaska, to consider the extent to 
which Alaska is not served by transportation modes other than aviation, 
and to establish appropriate regulatory distinctions. In the NPRM, we 
requested comments on whether the proposed rule should apply 
differently to intrastate operations in Alaska. We didn't receive any 
comments, and we have determined, based on the administrative record of 
this rulemaking, that there is no need to make any regulatory 
distinctions applicable to intrastate aviation in Alaska.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 3f and involves no extraordinary 
circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (66 FR 28355, May 18, 2001). We have determined 
that it is not a ``significant energy action'' under the executive 
order because it is not a ``significant regulatory action'' under 
Executive Order 12866, and it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

List of Subjects in 14 CFR Part 121

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements, Safety, Transportation.

[[Page 1442]]

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Chapter I of Title 14, Code of Federal Regulations as follows:

PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL 
OPERATIONS

0
1. The authority citation for part 121 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702, 
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904, 
44912, 46105.

0
2. Amend Sec.  121.312 by revising paragraph (e)(3) to read as follows:


Sec.  121.312  Materials for compartment interiors.

* * * * *
    (e) * * *
    (3) For airplanes with a passenger capacity of 20 or greater, 
manufactured after September 2, 2009, thermal/acoustic insulation 
materials installed in the lower half of the fuselage must meet the 
flame penetration resistance requirements of Sec.  25.856 of this 
chapter, effective September 2, 2003.

    Issued in Washington, DC, on January 4, 2007.
Marion C. Blakey,
Administrator.
[FR Doc. E7-338 Filed 1-11-07; 8:45 am]
BILLING CODE 4910-13-P