[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Rules and Regulations]
[Pages 4198-4202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1208]


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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2006-25079; Directorate Identifier 2006-NM-065-AD; 
Amendment 39-14885; AD 2007-01-13]
RIN 2120-AA64


Airworthiness Directives; Airbus Model A310-300 Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule.

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

SUMMARY: The FAA is adopting a new airworthiness directive (AD) for 
certain Airbus Model A310-300 airplanes. This AD requires replacing the 
existing non-return valve (NRV) of the auxiliary center tanks (ACTs) of 
the fuel system with a new, improved NRV. This AD results from a report 
that it was not possible to transfer fuel from ACTs 1 and 2 during 
flight, and no electronic centralized aircraft monitor warnings were 
triggered. Investigation revealed a faulty static inverter and blown 
fuse, resulting in failure of certain fueling bus bars and subsequent 
failure of the automatic ACT fuel transfer. We are issuing this AD to 
prevent these failures, combined with failure of the NRV to close. If 
the NRV is open during flight, the fuel supply to the engines may be 
reduced during cross-feed operation to the extent that fuel starvation 
could occur and result in engine flameout.

DATES: This AD becomes effective March 6, 2007.
    The Director of the Federal Register approved the incorporation by 
reference of a certain publication listed in the AD as of March 6, 
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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, 
France, for service information identified in this AD.

FOR FURTHER INFORMATION CONTACT: Tom Stafford, Aerospace Engineer, 
International Branch, ANM-116, Transport Airplane Directorate, FAA, 
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 
227-1622; fax (425) 227-1149.

SUPPLEMENTARY INFORMATION:

[[Page 4199]]

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 Airbus Model 
A310-300 airplanes. That NPRM was published in the Federal Register on 
June 20, 2006 (71 FR 35400). That NPRM proposed to require replacing 
the existing non-return valve (NRV) of the auxiliary center tanks 
(ACTs) of the fuel system with a new, improved NRV.

Comments

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

Request To Clarify Applicability

    Airbus asks that the applicability specified in paragraph (c) of 
the NPRM be clarified. Airbus states that the applicability excludes 
airplanes on which Airbus Modification 8928 was embodied during 
production. Airbus has the following reservations:
    During production, Airbus Modification 8928 could be embodied 
either ``completely'' or ``partially.'' This means that, for airplanes 
on which the modification was partially embodied, NRV part number (P/N) 
C23AE0103s could be fitted in the outer tanks and other positions; any 
combination of P/Ns C23AE0102s and C23AE0103s could be fitted and 
operators could claim full accomplishment of the modification. However, 
this exception is fully valid for airplanes on which Airbus 
Modification 8928 has been completely embodied. As a ``safety 
principle'' Airbus recommends excluding airplanes on which Airbus 
Modification 8928 has been completely embodied (i.e., Airbus Model 
A310-300 airplanes, with manufacturer serial numbers 0636 through 0706 
inclusive).
    Airbus also states that, as specified in the applicability of the 
French airworthiness directive, the AD is applicable to airplanes 
equipped with ACTs, or provisioned to receive ACTs. Airbus notes that 
airplanes equipped with provisions for ACTs on which either Airbus 
(production) Modifications 6918 and 6919 or 6918, 6919, and 8339 have 
been installed could also be fitted with NRVs having P/N C23AE0102.
    We agree that the applicability specified in paragraph (c) of this 
AD should be clarified, and we have included additional information 
which we determined would add further clarity regarding the possible 
installation of a NRV, as identified by Airbus. We have changed the 
applicability as follows: ``This AD applies to Airbus Model A310-304, -
308, -324, and -325 airplanes, certificated in any category; equipped 
with one or more auxiliary center tanks (ACTs); on which either Airbus 
(production) Modifications 6918 and 6919 or 6918, 6919, and 8339 have 
been installed; except those on which Airbus Modification 8928 has been 
done in production.''

Request To Incorporate-by-Reference the Relevant Service Information

    The Modification and Replacement Parts Association (MARPA) states 
that the NPRM references two documents for accomplishing the specified 
actions. MARPA adds that neither of these documents is incorporated by 
reference in the NPRM pursuant to 5 U.S.C. 552(a) and 1 CFR part 51. 
MARPA notes that because the service information is not incorporated by 
reference, it has copyright protection against duplication and 
distribution by anyone, including the U.S. Government. MARPA adds that 
when an otherwise private document is incorporated by reference into a 
public document, such as an AD, it loses its protections and becomes a 
public document. MARPA believes that mandatory reference to a private 
document in order to comply with a rule is fatally flawed, unless the 
private document is incorporated by reference, thereby making it 
public. MARPA believes that public laws, by definition, should be 
public, which means they cannot rely upon private writings for 
compliance. MARPA asks that all service documents required for 
accomplishing the mandated work be incorporated by reference.
    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, as noted by the 
commenter, 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 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 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, 
D.C. As stated in the Federal Register Document Drafting Handbook, when 
documents are filed for public inspection, anyone may inspect or copy 
file 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.

Request To Publish Service Information in the Docket Management System 
(DMS)

    MARPA states that service documents incorporated by reference 
should be made available to the public by publication in the DMS, keyed 
to the action that incorporates those documents. MARPA adds that under 
the aforementioned authorities, incorporation by reference is a 
technique used to reduce the size of the Federal Register when the 
information is already available to the affected individuals. MARPA 
adds that, 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/or servicing alternatively 
certified parts under section 21.303 (``Replacement and modification 
parts'') of the Federal Aviation Regulations (14 CFR 21.303). MARPA 
notes that the concept of brevity is now nearly archaic as documents 
exist more frequently in electronic format than on paper.

[[Page 4200]]

Therefore, MARPA asks that the service documents deemed essential to 
the accomplishment of the NPRM be incorporated by reference into the 
regulatory instrument and published in DMS.
    In regard to MARPA'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 the 
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 AD is necessary in response to this comments.

Request To Reference Parts Manufacturer Approval (PMA) Parts

    MARPA states that type certificate holders in their service 
documents universally ignore the possible existence of PMA parts. 
According to MARPA, this is especially true with foreign manufacturers 
where the concept may not exist or be implemented in the country of 
origin. MARPA states that frequently the service bulletin upon which an 
AD is based will require the removal of a certain part number and the 
installation of a different part number as a corrective action. MARPA 
states that this practice runs afoul of 14 CFR 21.303, which permits 
the development, certification, and installation of alternatively 
certified parts (PMA). MARPA states that mandating the installation of 
a certain part number to the exclusion of all other parts is not a 
favored general practice. According to MARPA, such action has the dual 
effect of preventing, in some cases, the installation of perfectly good 
parts, while at the same time prohibiting the development of new parts 
permitted under 14 CFR 21.303. MARPA states that such a prohibition 
runs the risk of taking the AD out of the realm of safety and into the 
world of economics since prohibiting the development, sale, and use of 
a perfectly airworthy part has nothing to do with safety. MARPA adds 
that courts could easily construe such actions as being outside the 
statutory basis of the AD (safety), and thus unenforceable. MARPA adds 
that courts are reluctant to find portions of rule unenforceable since 
they lack the knowledge and authority to rewrite requirements, and are 
generally inclined to void the entire rule.
    We do not agree to change the AD 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 ``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 practice that ``runs 
afoul of 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.
    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 AD 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. We have not changed the AD in this regard.

Request To Allow Use of PMA Parts

    MARPA reiterates paragraph 9.a.(4) of draft FAA Order 8040.2 and 
notes that the draft 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. MARPA adds that any parts approved 
and installed under this regulation should be subject to the actions of 
the AD and included in the applicability. MARPA states that the NPRM 
does not appear to have considered this aspect; and it should be 
adjusted to give due consideration to the possible existence of 
alternatively certified parts before issuance. MARPA asserts that the 
service documents referred to in the NPRM require the installation of a 
specific ``new and improved'' parts to the exclusion of all other 
parts; which predicated the following comments. MARPA has, on numerous 
occasions, objected to the Transport Airplane Directorate's (TAD's) 
practice of mandating the installation of a certain part as the sole 
method of compliance with an AD. MARPA's belief has been, and remains, 
that such practice violates 14 CFR 21.303 by enjoining the installation 
of approved parts, while simultaneously prohibiting the development of 
other parts, both of which were not intended by Congress. MARPA 
disagrees with TAD's general response, which has been that MARPA simply 
does not understand that ADs take precedence over all other statutory 
requirements. MARPA suggests that we adopt language used in ADs issued 
by directorates other than the TAD, which specifies installing an 
``FAA-approved equivalent part number'' or ``airworthy parts.'' MARPA, 
therefore, requests that we revise the NPRM to allow use of PMA parts.
    MARPA adds that, in the past, the TAD addressed this issue by 
requiring an AMOC to use a PMA part, when it had been determined that 
the OEM part is defective; that action appears to defy logic. MARPA 
states that when a PMA is granted, a part is approved for installation 
and it cannot be ``unapproved'' by any action without cause; a 
defective OEM part is not cause for invalidating a PMA when the PMA 
part is not defective; this is not addressed in the AD.
    We do not agree to revise this AD. 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 MCAI-related ADs. 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

[[Page 4201]]

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 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 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 affects about 11 airplanes of U.S. registry. The 
replacement will take about 1 work hour per airplane, at an average 
labor rate of $80 per work hour. Required parts will cost about $368 
per airplane. Based on these figures, the estimated cost of the AD for 
U.S. operators is $4,928, or $448 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

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):

2007-01-13 Airbus: Amendment 39-14885. Docket No. FAA-2006-25079; 
Directorate Identifier 2006-NM-065-AD.

Effective Date

    (a) This AD becomes effective March 6, 2007.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Airbus Model A310-304, -308, -324, and -
325 airplanes, certificated in any category; equipped with one or 
more auxiliary center tanks (ACTs); on which either Airbus 
(production) Modifications 6918 and 6919 or 6918, 6919, and 8339 
have been installed; except those on which Airbus Modification 8928 
has been done in production.

Unsafe Condition

    (d) This AD results from a report that it was not possible to 
transfer fuel from ACTs 1 and 2 during flight, and no electronic 
centralized aircraft monitor warnings were triggered. Investigation 
revealed a faulty static inverter and blown fuse, resulting in 
failure of certain fueling bus bars and subsequent failure of the 
automatic ACT fuel transfer. We are issuing this AD to prevent these 
failures, combined with failure of the non-return valve (NRV) to 
close. If the NRV is open during flight, the fuel supply to the 
engines may be reduced during cross-feed operation to the extent 
that fuel starvation could occur and result in engine flameout.

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

    (f) Within 15,000 flight hours after the effective date of this 
AD: Replace the existing NRV with a new, improved NRV by doing all 
the actions in accordance with the Accomplishment Instructions of 
Airbus Service Bulletin A310-28-2158, dated September 1, 2005.

    Note 1: The Airbus service bulletin refers to Lucas Air 
Equipment Service Bulletin C23AE01-28-01, Revision 1, dated July 20, 
1994, as an additional source of service information for replacing 
the NRV.

Parts Installation

    (g) As of the effective date of this AD, no person may install, 
on any airplane, a NRV having part number C23AE0102, unless it has 
been modified according to paragraph (f) of 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) French airworthiness directive F-2005-197, dated December 7, 
2005, also addresses the subject of this AD.

Material Incorporated by Reference

    (j) You must use Airbus Service Bulletin A310-28-2158, dated 
September 1, 2005, 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 Airbus, 1 
Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, 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.


[[Page 4202]]


    Issued in Renton, Washington, on December 26, 2006.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. E7-1208 Filed 1-29-07; 8:45 am]
BILLING CODE 4910-13-P