[Federal Register Volume 72, Number 17 (Friday, January 26, 2007)]
[Proposed Rules]
[Pages 3761-3764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1215]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2006-25419; Directorate Identifier 2006-NM-055-AD]
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: Supplemental notice of proposed rulemaking (NPRM); reopening of 
comment period.

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SUMMARY: The FAA is revising an earlier NPRM for an airworthiness 
directive (AD) that applies to certain EMBRAER Model ERJ 170 airplanes. 
The original NPRM would have required replacing the mini-latches on 
certain lavatory waste compartment doors with new, stronger latches, 
and other specified actions. The original NPRM resulted from reports of 
certain lavatory waste compartment doors opening during flight due to 
movement of the waste compartment during takeoff, because the mini-
latches installed on the doors of those compartments lose their 
strength over time. This action revises the original NPRM by adding 
airplanes to the applicability. We are proposing this supplemental NPRM 
to prevent the inability of the waste compartment doors to adequately 
contain a fire inside the lavatory waste compartment, and consequent 
uncontained fire and smoke within a lavatory during flight.

DATES: We must receive comments on this supplemental NPRM by February 
20, 2007.

ADDRESSES: Use one of the following addresses to submit comments on 
this supplemental NPRM.
     DOT Docket Web site: Go to http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide rulemaking web site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590.
     Fax: (202) 493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    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 proposed 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:

Comments Invited

    We invite you to submit any relevant written data, views, or 
arguments regarding this supplemental NPRM. Send your comments to an 
address listed in the ADDRESSES section. Include the docket number 
``Docket No. FAA-2006-25419; Directorate Identifier 2006-NM-055-AD'' at 
the beginning of your comments. We specifically invite comments on the 
overall regulatory, economic, environmental, and energy aspects of this 
supplemental NPRM. We will consider all comments received by the 
closing date and may amend this supplemental NPRM in light of those 
comments.
    We will post all comments submitted, without change, to http://dms.dot.gov, including any personal information you provide. We will 
also post a report summarizing each substantive verbal contact with FAA 
personnel concerning this supplemental NPRM. Using the search function 
of that Web site, anyone

[[Page 3762]]

can find and read the comments in any of our dockets, including the 
name of the individual who sent the comment (or signed the comment on 
behalf of an association, business, labor union, etc.). You may review 
the DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

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 in the Nassif Building at the DOT 
street address stated in ADDRESSES. Comments will be available in the 
AD docket shortly after the Docket Management System receives them.

Discussion

    We proposed to amend 14 CFR part 39 with a notice of proposed 
rulemaking (NPRM) for an airworthiness directive (AD) (the ``original 
NPRM''). The original NPRM applies to certain EMBRAER Model ERJ 170 
airplanes. The original NPRM was published in the Federal Register on 
July 28, 2006 (71 FR 42776). The original NPRM proposed to require 
replacing the mini-latches on certain lavatory waste compartment doors 
with new, stronger latches, and other specified actions.
    Since we issued the original NPRM, we have received Revision 01 of 
EMBRAER Service Bulletin 170-25-0024, dated January 9, 2006. The 
procedures in EMBRAER Service Bulletin 170-25-0024, Revision 01, are 
essentially identical to those in the original issue of the service 
bulletin, dated July 21, 2005, which we referred to as the appropriate 
source of service information for the proposed latch replacement in the 
original NPRM. EMBRAER issued Revision 01 of the service bulletin to 
add airplanes to the effectivity and to transmit Revision 1 of C & D 
Aerospace Service Bulletin 170-18616-25-023, dated November 29, 2005.
    Accomplishing the actions specified in the service information is 
intended to adequately address the unsafe condition.

Comments

    We have considered the following comments on the original NPRM.

Request To Make Service Documents Available to the Public by 
Incorporation by Reference and Publication in DMS

    The Modification and Replacement Parts Association (MARPA) requests 
that we incorporate by reference the essential service documents in the 
NPRM. MARPA states that ADs are typically based upon service 
information originating with the type certificate holder or its 
suppliers. MARPA asserts that, if a service document is used as a 
mandatory element of compliance, it should not only be referred to, but 
also incorporated into the AD. MARPA adds that manufacturer's service 
documents are privately authored instruments, generally having 
copyright protection against duplication and distribution. When a 
service document is incorporated by reference into a public document, 
such as an AD, pursuant to 5 U.S.C. 552(a) and 1 CFR part 51, it loses 
its private, protected status and becomes a public document. MARPA 
notes that the NPRM is one of these public documents, but does not 
incorporate by reference that service document. Therefore, the NPRM, as 
proposed, attempts to require compliance with a public law by reference 
to a private writing. MARPA believes that public laws, by definition, 
should be public and that they cannot rely on private writings.
    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. The final rule for this action will 
incorporate 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.
    MARPA also requests that essential service documents be published 
in the Docket Management System (DMS). MARPA states that service 
documents incorporated by reference should be made available to the 
public by publication in either the Federal Register or DMS. MARPA also 
states that the 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. 
MARPA adds that, traditionally, ``affected individuals'' means aircraft 
owners and operators, who are generally provided service information by 
the manufacturer. MARPA further 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. This new class includes maintenance and repair 
organizations, component servicing and repair shops, parts purveyors 
and distributors, and/or organizations repairing or servicing 
alternatively certified parts under section 21.303 (``Parts 
Manufacturer Approval'') of the Federal Aviation Regulations (14 CFR 
21.303). MARPA states that the concept of brevity is now nearly archaic 
as documents exist more frequently in electronic format than on paper.
    In regard to the commenter's request that service documents be made 
available to the public by publication in the Federal Register, we 
agree that incorporation by reference was authorized to reduce the 
volume of material published in the Federal Register and the Code of 
Federal Regulations. However, as specified in the Federal Register 
Document Drafting Handbook, the Director of the Office of the Federal 
Register (OFR) decides when an agency may incorporate material by 
reference. As the commenter is aware, the OFR files documents for 
public inspection on the workday before the date of publication of the 
rule at its office in Washington, DC. As stated in the Federal Register 
Document Drafting Handbook, when documents are filed for public 
inspection, anyone may inspect or copy filed documents during the OFR's 
hours of business. Further questions regarding publication of documents 
in the Federal Register or incorporation by reference should be 
directed to the OFR.
    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 Reference Parts Manufacturer Approval (PMA) Parts

    The same commenter, MARPA, also requests that the language in the 
NPRM

[[Page 3763]]

be changed to permit installation of PMA equivalent parts. MARPA 
asserts that mandating a certain part-numbered part to the exclusion of 
all other parts, in some cases, prevents installation of perfectly good 
parts, while also prohibiting development of new parts, ``* * * 
permitted under [14 CFR] 21.303.'' MARPA further asserts that this 
prohibition risks removing the AD out of the realm of safety and into 
the realm of economics, since prohibiting the development, sale, and 
use of a perfectly good part has nothing to do with safety. MARPA 
continues, stating that the NPRM, as written, does not comply with FAA 
Order 8040.2, which allows replacement parts under section 21.303 of 
the Federal Aviation Regulations (14 CFR 21.303) based on a finding of 
identicality.
    MARPA goes on to state that it believes ``* * * the practice of 
requiring an [alternative method of compliance] AMOC to install a PMA 
part should be stopped.'' It is ``* * * tantamount to illogically 
stating that all PMA parts are inherently defective and that they all 
require an additional layer of approval when the [original equipment 
manufacturer] OEM part is determined to be defective.'' MARPA further 
states that, if the PMA part is deemed defective, it must be deemed so 
in the AD, not simply implied by a ``catch-all AMOC requirement.''
    In addition, MARPA refers to differing language used in other ADs 
addressing the use of PMA parts and asserts that, because the NPRM 
differs in treatment of PMA parts from other ADs, ``* * * the mandates 
contained in Section 1, paragraph (b)(10) of Executive Order 12866 are 
not being met.'' That paragraph requires that all agencies act 
uniformly on a given issue.
    The NPRM did not address PMA parts, as provided in draft FAA Order 
8040.2, because the Order was only a draft that was out for comment at 
the time. After issuance of the 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 related to mandatory continuing airworthiness information 
(MCAI). 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. 
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.
    The FAA recognizes the need for standardization of this issue and 
is currently in the process of reviewing issues that address the use of 
PMAs in ADs at the national level. 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 the final rule 
in this regard.

Request To Replace Only the Lavatory Waste Compartment Latches

    EMBRAER requests that we revise paragraph (f) of the original NPRM 
to require replacement of only the latches for the lavatory waste 
compartment door. EMBRAER asserts that only those latches need to be 
replaced, because none of the other doors identified in EMBRAER Service 
Bulletin 170-25-0024, dated July 21, 2005, affect fire containment, the 
unsafe condition addressed by this AD. EMBRAER states that the wording 
in paragraph (f) of the original NPRM, the mandatory accomplishment of 
``* * * all the actions, except for the forward and aft lavatory mirror 
rework, specified in the Accomplishment Instructions * * *,'' will 
require replacement of several latches that are not associated with the 
identified unsafe condition. Therefore EMBRAER suggests that we 
identify the specific paragraphs of the Accomplishment Instructions of 
the service bulletin that need to be done to replace just the latches 
for the lavatory waste compartment.
    We agree that only the latches for the lavatory waste compartment 
need to be replaced to address the subject unsafe condition. Therefore, 
as EMBRAER suggests, we have revised paragraph (f) of this supplemental 
NPRM to refer to the specific paragraphs of the Accomplishment 
Instructions of the service bulletin necessary to replace only the 
latches for the lavatory waste compartment door.

FAA's Determination and Proposed Requirements of the Supplemental NPRM

    The changes discussed above expand the scope of the original NPRM; 
therefore, we have determined that it is necessary to reopen the 
comment period to provide additional opportunity for public comment on 
this supplemental NPRM.

Costs of Compliance

    The following table provides the estimated costs for U.S. operators 
to comply with this proposed AD.

                                                 Estimated Costs
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                                                                                        Number of
                                               Average                    Cost per        U.S.-
           Action              Work hours    labor rate       Parts       airplane     registered    Fleet cost
                                              per hour                                  airplanes
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Replacement of lavatory                 2           $80            $0          $160            75       $12,000
 waste compartment door
 latches....................
----------------------------------------------------------------------------------------------------------------

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.

[[Page 3764]]

Regulatory Findings

    We have determined that this proposed AD would not have federalism 
implications under Executive Order 13132. This proposed AD 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.
    For the reasons discussed above, I certify that the 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. 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 supplemental NPRM 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, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the 
Administrator, the FAA proposes to amend 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. The Federal Aviation Administration (FAA) amends Sec.  39.13 by 
adding the following new airworthiness directive (AD):

Empresa Brasileira De Aeronautica S.A. (EMBRAER): Docket No. FAA-
2006-25419; Directorate Identifier 2006-NM-055-AD.

Comments Due Date

    (a) The FAA must receive comments on this AD action by February 
20, 2007.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to EMBRAER Model ERJ 170-100 LR, -100 STD, -
100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes, 
certificated in any category; as identified in EMBRAER Service 
Bulletin 170-25-0024, Revision 01, dated January 9, 2006.

Unsafe Condition

    (d) This AD results from reports of certain lavatory waste 
compartment doors opening during flight due to movement of the waste 
compartment during takeoff, because the mini-latches installed on 
those doors lose their strength over time. We are issuing this AD to 
prevent the inability of the waste compartment doors to adequately 
contain a fire inside the lavatory waste compartment, and consequent 
uncontained fire and smoke within a lavatory during flight.

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 Mini-Latches on Certain Lavatory Waste Compartment Doors

    (f) Within 700 flight hours after the effective date of this AD: 
Replace the mini-latches for the forward and aft lavatory waste 
compartment doors by accomplishing all the actions, except for the 
forward and aft lavatory mirror rework, specified in paragraphs 3.B. 
and 3.G. of paragraph 4., ``Appendix 1,'' of EMBRAER Service 
Bulletin 170-25-0024, Revision 01, dated January 9, 2006.

    Note 1: EMBRAER Service Bulletin 170-25-0024, Revision 01, dated 
January 9, 2006, refers to C & D Aerospace Service Bulletin 170-
18616-25-023, Revision 1, dated November 29, 2005, as an additional 
source of service information for replacing the mini-latches on 
certain lavatory waste compartment doors required by paragraph (f) 
of this AD.

Credit for Actions Done Using Previous Issue of Service Information

    (g) Replacements done before the effective date of this AD in 
accordance with paragraphs 3.B. and 3.G. of paragraph 4., ``Appendix 
1,'' of EMBRAER Service Bulletin 170-25-0024, dated July 21, 2005, 
are considered acceptable for compliance with the corresponding 
action specified in this AD.

Alternative Methods of Compliance (AMOCs)

    (h)(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

    (i) Brazilian airworthiness directive 2005-11-01, effective 
December 8, 2005, also addresses the subject of this AD.

    Issued in Renton, Washington, on January 12, 2007.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
 [FR Doc. E7-1215 Filed 1-25-07; 8:45 am]
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