[Federal Register Volume 73, Number 77 (Monday, April 21, 2008)]
[Proposed Rules]
[Pages 21286-21289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8582]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. NM391; Notice No. 25-08-05-SC]


Special Conditions: Embraer S.A., Model ERJ 190-100 ECJ Airplane; 
Flight-Accessible Class C Cargo Compartment

AGENCY: Federal Aviation Administration (FAA), DOT.

[[Page 21287]]


ACTION: Notice of proposed special conditions.

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SUMMARY: This action proposes special conditions for the Embraer S.A. 
Model ERJ 190-100 ECJ airplane. This airplane will have novel or 
unusual design features associated with access during flight of the 
main deck Class C cargo compartment. The applicable airworthiness 
regulations do not contain adequate or appropriate safety standards for 
this design feature. These proposed special conditions contain the 
additional safety standards that the Administrator considers necessary 
to establish a level of safety equivalent to that established by the 
existing airworthiness standards.

DATES: Comments must be received on or before May 12, 2008.

ADDRESSES: Comments on this proposal may be mailed in duplicate to: 
Federal Aviation Administration, Transport Airplane Directorate, 
Attention: Rules Docket (ANM-113), Docket No. NM391, 1601 Lind Avenue, 
SW., Renton, Washington, 98057-3356. You may deliver two copies to the 
Transport Airplane Directorate at the above address. You must mark your 
comments: Docket No. NM391. You may inspect comments in the Rules 
Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m.

FOR FURTHER INFORMATION CONTACT: Jayson Claar, FAA, Airframe/Cabin 
Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft 
Certification Service, 1601 Lind Avenue, SW., Renton, Washington 
980557-3356; telephone 425-227-2194; facsimile 425-227-1232.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite interested persons to participate in this rulemaking by 
sending written comments, data, or views. The most helpful comments 
reference a specific portion of the special conditions, explain the 
reason for any recommended change, and include supporting data. We ask 
that you send us two copies of written comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with FAA personnel 
concerning these special conditions. You can inspect the docket before 
and after the comment closing date. If you wish to review the docket in 
person, go to the address in the ADDRESSES section of this preamble 
between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.
    We will consider all comments we receive on or before the closing 
date for comments. We will consider all comments filed late if it is 
possible to do so without incurring expense or delay. We may change 
these special conditions based on the comments we receive.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. We will stamp the date on the 
postcard and mail it back to you.

Background

    Embraer made the original application for certification of the ERJ 
190 on May 20, 1999. The Embraer application includes six different 
models, the initial variant being designated as the ERJ 190-100. The 
application was submitted concurrently with that for the ERJ 170-100, 
which received an FAA Type Certificate (TC) on February 20, 2004. 
Although the applications were submitted as two distinct type 
certificates, the airplanes share the same conceptual design and 
general configuration. On July 2, 2003, Embraer submitted a request for 
an extension of its original application for the ERJ 190 series, with a 
new application date of May 30, 2001, for establishing the type 
certification basis. The FAA certification basis was adjusted to 
reflect this new reference date. In addition, Embraer has elected to 
voluntarily comply with certain 14 CFR part 25 amendments introduced 
after the May 30, 2001, application date.
    On May 30, 2001, Embraer S.A. applied for an amendment to Type 
Certificate No. A57NM to include the new Embraer Model ERJ 190-100 ECJ. 
The ERJ 190-100 ECJ is a derivative of the Embraer ERJ 190 which is 
approved under Type Certificate No. A57NM. The ERJ 190-100 ECJ is a low 
wing, transport-category aircraft powered by two wing-mounted General 
Electric CF34-10E6 turbofan engines. The airplane is a 19-passenger 
regional jet with a maximum take off weight of 54,500 kilograms 
(120,151 pounds). The maximum operating altitude and speed are 41,000 
feet and 320 knots calibrated air speed (KCAS)/0.82 MACH, respectively. 
The ERJ 190-100 ECJ design includes an accessible main deck Class C 
cargo compartment.
    The regulations consider that a ``cargo compartment'' is not 
intended for access during flight by the traveling public. The intent 
of the Class C cargo compartment was that it be a self-contained, 
isolated compartment intended to carry baggage and/or cargo. It was not 
intended for access during flight. Access into a cargo compartment 
inherently carries with it an increased level of risk as baggage or 
cargo could shift, a decompression could occur in the compartment, or a 
fire could develop during the flight. The FAA considers that any of 
these threats are beyond passengers' capabilities. In addition, there 
are security concerns with access to the checked baggage and/or cargo.
    The FAA acknowledges that an allowance was made specifically for 
crew access into a Class B cargo compartment for the express purpose of 
fire fighting. Passengers' access during flight into aft Class B cargo 
compartments has been permitted in the past for other small aircraft 
that are operated under part 91 and 135 operations. Passengers' quick 
access to luggage has been allowed because of the limited duration for 
use and limited number of passengers possibly affected. These approvals 
were granted before the increased security concerns and the new 
regulations imposed by the Transportation Security Administration (TSA) 
to address the security concerns.
    The FAA gave no consideration to a flight-accessible Class C cargo 
compartment when the classification was first developed, as no 
manufacturer had ever proposed to incorporate such a feature into their 
design. Inherently a ``cargo compartment'' was not intended for access, 
especially by the traveling public.
    The FAA acknowledges that a previous Embraer airplane, the Embraer 
EMB 135BJ, has a flight-accessible Class C cargo compartment that was 
approved using an equivalent level of safety finding. The Embraer EMB 
135BJ design is similar to the proposed design for the ERJ 190-100 ECJ. 
The EMB 135BJ approval was granted before the increased security 
concerns and the new regulations imposed by the TSA to address security 
concerns. We have determined that because the existing airworthiness 
standards do not contain adequate or appropriate safety standards, 
relative to cargo compartment accessibility by passengers during 
flight, special conditions are the appropriate method for this and all 
future accessible Class C cargo compartments.

Type Certification Basis

    Under the provisions of Sec.  21.101, Embraer S.A. must show that 
the Model ERJ 190-100 ECJ meets the applicable provisions of the 
regulations incorporated by reference in Type Certificate No. A57NM or 
the applicable regulations in effect on the date of

[[Page 21288]]

application for the change to the ERJ 190-100 ECJ. The regulations 
incorporated by reference in the type certificate are commonly referred 
to as the ``original type certification basis.'' The regulations 
incorporated by reference in Type Certificate No. A57NM are as follows:
    Embraer has proposed to voluntarily adopt several 14 CFR part 25 
amendments that became effective after the requested new application 
date of May 30, 2001, specifically Amendment 25-102, except paragraph 
25.981(c); Amendments 25-103 through 25-105 in their entirety; 
Amendment 25-107, except paragraph 25.735(h); Amendment 25-108 through 
25-110 in their entirety; and Amendments 25-112 through 25-114 in their 
entirety.
    If the Administrator finds that the applicable airworthiness 
regulations (i.e., part 25) do not contain adequate or appropriate 
safety standards for the Embraer Model ERJ 190-100 ECJ because of a 
novel or unusual design feature, special conditions are prescribed 
under the provisions of Sec.  21.16.
    In addition to the applicable airworthiness regulations and special 
conditions, the Embraer Model ERJ 190-100 ECJ must comply with the fuel 
vent and exhaust emission requirements of 14 CFR part 34 and the noise 
certification requirements of 14 CFR part 36.
    The FAA issues special conditions, as defined in Sec.  11.19, under 
Sec.  11.38, and they become part of the type certification basis under 
Sec.  21.101.
    Special conditions are initially applicable to the model for which 
they are issued. Should the type certificate for that model be amended 
later to include any other model that incorporates the same or similar 
novel or unusual design feature, or should any other model already 
included on the same type certificate be modified to incorporate the 
same or similar novel or unusual design feature, the special conditions 
would also apply to the other model under Sec.  21.101.

Novel or Unusual Design Features

    The Embraer Model ERJ 190-100 ECJ will incorporate the following 
novel or unusual design features: an unusual design relative to those 
which have been certificated under 14 CFR part 25, and passenger access 
during flight of a Class C cargo compartment.

Discussion

    The FAA considers that Class C cargo compartment access during 
flight may impact the isolation of the passenger cabin from the cargo 
compartment, which is needed to protect the passengers from any fire 
and smoke that may start within the cargo compartment, as required by 
Sec.  25.857(c). In addition, in-flight access to the Class C 
compartment creates unique hazards resulting from passengers having 
access to cargo and baggage in the compartment. These hazards include 
safety for the persons entering the cargo compartment, possible hazards 
to the airplane as a result of this access, and the security concerns 
with access to the checked baggage and/or cargo. The proposed special 
conditions provide additional requirements necessary to ensure 
sufficient cabin isolation from fire and smoke in this unusual design 
configuration, and for passenger safety while occupying the Class C 
compartment during flight. In the future, the FAA position on this 
special condition may change due to increasing concern over airplane 
security.
    The FAA has been in contact with the TSA to understand the security 
concerns with passengers having access in-flight to checked baggage 
and/or cargo. The TSA has provided the following information to clarify 
the regulations concerning access to cargo compartments by passengers.

    Aircraft operators holding operating certificates under 14 CFR 
part 119 for scheduled passenger operations, public charter 
passenger operations, private charter passenger operations must have 
an aircraft operator security program. For U.S. flag carriers 49 CFR 
1544 regulates the operator security program. Specifically, 49 CFR 
1544.101(a)-(i) describes the type of program an aircraft operator 
must adopt depending on the type of aircraft operation. For the vast 
majority of operations in-flight access to checked baggage and/or 
cargo by passengers is NOT permitted by the aircraft operator 
security program. Aircraft operators should contact their Principal 
Security Inspector (PSI) concerning in-flight access to checked 
baggage and/or cargo by passengers.

Based on this understanding of the TSA regulations, the FAA's position 
is that the basic approval for flight-accessible Class C cargo 
compartment should be limited to airplanes operated for private use, 
not-for-hire, not for common carriage.
    For airplanes not operated for hire or offered for common carriage, 
flight-accessibility to check baggage and/or cargo is controlled by the 
operator of the airplane. This provision does not preclude the operator 
from receiving remuneration to the extent consistent with 14 CFR parts 
125 and 91, subpart F, as applicable. These airplane operators do not 
hold operating certificates under 14 CFR part 119.
    For Class C cargo compartments, the means of controlling a fire is 
by flooding the compartment with an extinguishing agent. These 
extinguishing agents are hazardous to humans. In the event of smoke 
detection, the flightcrew should ensure that the cargo compartment is 
not occupied before they discharge the extinguishing agent. To address 
this concern, a warning system is provided to the flight crew to alert 
them when a person is in the cargo compartment. However, the FAA's 
position is that the fire threat is of paramount concern, and therefore 
prompt crew action to fight the fire must be taken to prevent a fire 
from threatening the safety of the airplane.
    After the extinguishing agent has been discharged into the 
compartment, there must be a means of alerting person(s) not to enter 
the compartment. It must be located adjacent to the entry/exit door 
that provides access into the compartment. Access into the cargo 
compartment must be prevented after discharge of the extinguishing 
agent to prevent persons being exposed to the extinguishing agent and 
to keep the extinguishing agent in the compartment to control the fire.
    Passengers in the cabin are alerted when oxygen is needed. A person 
in the cargo compartment would not be alerted when oxygen is needed. To 
address this concern, an aural and visual indication system within the 
cargo compartment is required to alert the person(s) that oxygen is 
required. An oxygen dispensing unit must be provided adjacent to the 
entry door into the cargo compartment to have oxygen readily available 
for the person leaving the compartment. The oxygen supply lines must 
not be routed into the cargo compartment because that would provide a 
source of oxygen to the cargo which would feed a fire.
    If a net is used as the primary means of retention of the cargo, an 
untrained person accessing a cargo compartment may not be capable of 
securing the net correctly to maintain the retention of the cargo. The 
improperly restrained cargo could be a hazard in flight to the safe 
operation of the airplane and a hazard to the occupants under crash 
load conditions.

Applicability

    As discussed above, these special conditions are applicable to the 
ERJ 190-100 ECJ. Should Embraer S.A. apply at a later date for a change 
to the type certificate to include another model incorporating the same 
novel or unusual design feature, the special conditions would apply to 
that model as well.
    Certification of the ERJ 190-100 ECJ is currently scheduled for 
June 2008. The substance of these special conditions

[[Page 21289]]

has been subject to the notice and public comment procedure in several 
prior instances. Therefore, because a delay would significantly affect 
the applicant's installation of the system and certification of the 
airplane, we are shortening the public comment period to 20 days.

Conclusion

    This action affects only certain novel or unusual design features 
on Model ERJ 190-100 ECJ airplanes. It is not a rule of general 
applicability.

List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping 
requirements.

    The authority citation for these special conditions is as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

    Therefore, under the authority delegated to me by the 
Administrator, the following special conditions are issued as part of 
the supplemental type certification basis for the Embraer S.A. Model 
ERJ 190-100 ECJ.

The Proposed Special Conditions

    Accordingly, the Federal Aviation Administration (FAA) proposes the 
following special conditions as part of the type certification basis 
for Embraer S.A. Model ERJ 190-100 ECJ airplanes.
    1. There must be a clear, visual message in the cockpit to advise 
the flightcrew when the main deck Class C cargo compartment is 
occupied.
    2. There must be means provided to keep the cargo door open while 
the cargo compartment is occupied. There must be a placard located on 
or adjacent to the cargo door instructing occupants that the door must 
be closed and latched at all times except when someone is in the cargo 
compartment. This placard must also instruct the person entering the 
cargo compartment to keep the door open when they are in the cargo 
compartment and to immediately close and latch the door when they exit 
the cargo compartment.
    3. There must be a (on/off) visual advisory/warning stating ``Do 
Not Enter'' (or similar words) to be located outside of and on or near 
the main entry door/hatch to the main deck cargo compartment. The 
advisory/warning is to be controlled from the flight deck.
    4. There must be an aural and visual warning provided in the 
baggage compartment to alert an occupant when an oxygen mask must be 
donned immediately.
    5. Oxygen dispensing units must be automatically presented and 
immediately available to an occupant(s) of the baggage compartment. For 
these special conditions, immediately available means the oxygen 
dispensing units are located in the passenger cabin near the main entry 
door/hatch to the main deck cargo compartment (no oxygen supply lines 
are allowed to be routed into the compartment). The number of oxygen 
dispensing units must be equal to the number of occupants allowed in 
the cargo compartment. There must be a placard located on or adjacent 
to the cargo door instructing occupants of the maximum number of 
occupants allowed in the cargo compartment.
    6. For cargo and baggage placed in the baggage compartment whose 
primary retention means is by net, the net must be constructed so that 
the means of opening and closing or securing the net is easily 
identified and operated.
    7. These special conditions apply to main deck accessible Class C 
cargo compartments with volumes of 10 m\3\ or less. Class C cargo 
compartments that are accessible to passengers with a volume greater 
than 10 m\3\ may be approved, but would likely require additional 
limitations or provisions to mitigate the larger volume. Note that 
there may also be a maximum volume above which access is not 
acceptable.
    8. The airplane is not operated for hire or offered for common 
carriage. This provision does not preclude the operator from receiving 
remuneration to the extent consistent with 14 CFR parts 125 and 91, 
subpart F, as applicable.

    Issued in Renton, Washington, on April 11, 2008.
Philip L. Forde,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
 [FR Doc. E8-8582 Filed 4-18-08; 8:45 am]
BILLING CODE 4910-13-P