[Federal Register Volume 73, Number 116 (Monday, June 16, 2008)]
[Rules and Regulations]
[Pages 33879-33882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13479]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 121 and 135

[Docket No. FAA-2002-6717, Amendment No. 121-339, 135-115]
RIN 2120-AJ26


Extended Operations (ETOPS) of Multi-Engine Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; immediately adopted.

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SUMMARY: The Federal Aviation Administration is amending its 
regulations governing extended range operations of turbine powered 
multi-engine airplanes operated by air carriers and in commuter and on-
demand passenger carrying operations. This action clarifies the 
qualifications of individuals who certify by signature the ETOPS pre-
departure service check for ETOPS flights.
    This change follows current FAA guidance and clarifies the 
regulations for the affected public.

DATES: This action is effective June 16, 2008.

FOR FURTHER INFORMATION CONTACT: For technical information concerning 
this final rule contact Jim Ryan, Flight Standards Service, Federal 
Aviation Administration, 800 Independence Ave., SW., Washington, DC 
20591; telephone (202) 267-7493; facsimile (202) 267-5229; e-mail 
[email protected]. For legal information, contact Bruce Glendening, 
Office of the Chief Counsel, Division of Regulations, Federal Aviation 
Administration, 800 Independence Avenue, Washington, DC 20591; 
telephone (202) 267-3073; facsimile (202) 267-7971; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking

    This rulemaking is promulgated under the authority described in 49 
U.S.C. 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.

Background

    The ETOPS final rule, Extended Operations (ETOPS) of Multi-Engine 
Airplanes, published in the Federal Register on January 16, 2007, (72 
FR 1808) applies to part 121 and part 135 turbine powered multi-engine 
airplanes used in passenger-carrying, extended-range operations. All 
cargo operations in airplanes with more than two engines of both part 
121 and part 135 were exempted from the majority of this rule. The rule 
established regulations governing the design, operation, and 
maintenance of certain airplanes operated on flights involving long 
distances from an adequate airport. It codified current FAA policy, 
industry best practices and recommendations, and international 
standards designed to ensure long range flights will continue to 
operate safely. To ease the transition for current operators, the rule 
included delayed compliance dates for certain ETOPS requirements. 
However, as written, the final rule language does not accurately 
reflect the intent of the FAA to have a qualified mechanic perform the 
ETOPS pre-departure service check (PDSC) even though this intent is 
clearly stated in the preamble.
    The regulatory evaluation, found in the docket of the final rule 
(Docket No. 2002-6717), further substantiates the FAA's intent by using 
the hourly wage rate of an aircraft mechanic as the basis for 
establishing the cost of this requirement.

Good Cause Justification for Immediate Final Rule Adoption

    We find that notice and public comment under 5 U.S.C. 553(b) is 
impracticable because part 121 regulation, as currently written, would 
clearly require the use of mechanics with airframe and powerplant 
ratings to be the only people who could certify by signature the ETOPS 
pre-departure service check for ETOPS flights, even for flights outside 
of the United States. As written, an operator would be required to 
comply with an almost impossible requirement to have mechanics with an 
airframe and powerplant rating, issued by the FAA, positioned at 
numerous maintenance facilities outside of the United States. As 
literally written in the final rule, this requirement is overly 
burdensome and was not (1) The intent of the FAA, (2) contained in any 
previous FAA guidance, and (3) contained in the notice of proposed 
rulemaking for this rule.
    We find that notice and public comment under 5 U.S.C. 553(b) is 
unnecessary for the amendment to part 135 regulations because this 
intent is clearly stated in the preamble to the final rule. In response 
to the comment ``that the check required immediately before a flight 
and certified by an ETOPS qualified maintenance person is unrealistic 
for part 135 operators who do not fly ETOPS routes on a regular 
basis'', the FAA responded, ``The FAA disagrees that a predeparture 
service check is unrealistic for 135 operators. Part 135 operators are 
already required to have procedures in place to ensure that maintenance 
is performed by properly qualified maintenance personnel. Allowing a 
pilot to perform a PDSC degrades the importance of the check and places 
a safety critical task below the level of performance required to 
change a tire or replace a light bulb for reading'' (72 FR 1858, 
January 16, 2007).

Discussion of the Final Rule

Clarification of Who May Certify by Signature That the ETOPS Pre-
Departure Service Check (PDSC) Has Been Completed

    Following publication of the ETOPS final rule, the FAA learned that 
the qualification requirements for mechanics certifying by signature 
the completion of the ETOPS PDSC did not codify existing FAA ETOPS 
guidance for part 121 operators. Since 1998, FAA Advisory Circular (AC) 
120-42A, Extended Range Operation with Two-Engine Airplanes (applicable 
to part 121 operators) has stated, ``This check should be accomplished 
and signed off by an ETOPS qualified maintenance person, immediately 
prior to an ETOPS flight.''
    In the United States, this person is typically a certificated 
mechanic with an airframe and powerplant rating who received adequate 
airplane and engine specific training, as well as ETOPS specific 
training focused on the special nature of ETOPS flights. Outside of the 
United States, however, it is extremely difficult for an operator to 
ensure that a

[[Page 33880]]

certificated mechanic with an airframe and powerplant rating performs 
the pre-departure service check. In many cases, these maintenance 
technicians do not possess U.S. Mechanic's Certificates with Airframe 
and Powerplant Ratings. Instead, they have their country's Civil 
Aviation Authority's equivalent to an airframe and powerplant rating. 
The FAA does not officially recognize maintenance technicians' 
certificates from other countries except in the case of the Canadian 
equivalent to the U.S. Airframe and Powerplant Certificate (14 CFR 
43.17).
    In order for U.S. ETOPS operators to function overseas, the FAA 
consistently allowed part 121 operators to establish alternative 
qualification criterion to ensure an equivalent level of safety for 
maintenance technicians who conduct pre-departure service checks for 
ETOPS flights. Outside the U.S., the FAA always allowed the pre-
departure service check for ETOPS flights for part 121 operators to be 
accomplished and signed off by trained maintenance personnel who work 
for a repair station or another part 121 operator.
    The final rule did not accurately convey the FAA's intent to codify 
current practice and apply it to both part 121 and part 135 operators. 
This rule clarifies FAA's intent and corrects the regulatory language 
in Sec. Sec.  121.374(b)(3) and Appendix G to Part 135, section 
G135.2.8(b)(3) and new (b)(4).

Continuous Airworthiness Maintenance Program (CAMP) for Two-Engine 
ETOPS in Part 121

    The language in current Sec.  121.374(b)(3), as written, requires 
the use of mechanics with airframe and powerplant ratings to be the 
only people who can certify by signature the ETOPS pre-departure 
service check for ETOPS flights, including flights outside the United 
States. As written, an operator is required to comply with an almost 
impossible requirement to have mechanics with an airframe and 
powerplant rating, issued by the FAA, positioned at numerous 
maintenance facilities outside of the United States. This requirement 
is (1) overly burdensome, (2) not the intent of the FAA, and (3) 
contrary to FAA guidance. The FAA has reconsidered the applicability of 
this rule in consideration of existing guidance and determined that 
this requirement must be consistent with existing guidance and 
practice.

ETOPS Pre-Departure Service Check (PDSC) in Part 135

    The language in current Appendix G to Part 135, section 
G135.2.8(b)(3), does not accurately reflect the intent of the FAA to 
have a qualified maintenance person perform the ETOPS PDSC.
    The intent is clearly stated in the preamble of the final rule (72 
FR 1808, January 16, 2007). In response to the public comment ``* * * 
that the check required immediately before a flight and certified by an 
ETOPS qualified maintenance person is unrealistic for part 135 
operators who do not fly ETOPS routes on a regular basis'', the FAA 
responded, ``The FAA disagrees that a pre-departure service check is 
unrealistic for part 135 operators.''

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with these amendments.
    The FAA included a detailed discussion of the new information 
collection requirements of the proposed rule at 68 FR 64782, November 
14, 2003. No comments were received on these estimated requirements.

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 
reviewed the corresponding ICAO Standards and Recommended Practices and 
has identified no differences with these regulations.

Regulatory Evaluation, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs each Federal agency to 
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, this Trade 
Act also requires agencies to consider international standards and, 
where appropriate, use them as 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 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:
    Since this final rule merely clarifies FAA regulations covering 
ETOPS flights, the expected outcome will be a minimal impact with 
positive net benefits and a regulatory evaluation was not prepared.
    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 Determination

    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 explain the 
rationale for their actions to assure 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.

[[Page 33881]]

    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.
    This final rule merely clarifies FAA regulations covering ETOPS 
flights. The expected outcome will have minimal impact on any small 
entity affected by this rulemaking action.
    Therefore, as the Acting 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. 96-039) 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 requirements imposed on both domestic and foreign operators 
create no obstacles to the foreign commerce of the United States. Thus, 
complies with the Trade Agreements Act of 1979.

Unfunded Mandates Reform Act

    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 
(in 1995 dollars) 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 $136.1 million in lieu of $100 
million.
    This final rule does not contain such a mandate; therefore, the 
requirements of Title II of the Act do not apply.

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. Therefore, we have determined that this final rule does not 
have federalism implications.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the 
Internet by:
    (1) Searching the Federal eRulemaking Portal at http://www.regulations.gov;
    (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.

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. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official or the person listed 
under FOR FURTHER INFORMATION CONTACT heading at the beginning of the 
preamble. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects

14 CFR Part 121

    Aircraft, Aviation Safety.

14 CFR Part 135

    Aircraft, Airmen, Aviation Safety.

The Amendment

0
For the reasons discussed in the preamble, the Federal Aviation 
Administration amends Title 14, parts 121 and 135 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, 41706, 44101, 44701-
44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-
44904, 44912, 45101-45105, 46105, 46301.


0
2. Amend Sec.  121.374 by revising paragraph (b)(3) and adding 
paragraph (b)(4) to read as follows:


Sec.  121.374  Continuous airworthiness maintenance program (CAMP) for 
two-engine ETOPS.

* * * * *
    (b) * * *
    (3) An appropriately trained maintenance person, who is ETOPS 
qualified, must accomplish and certify by signature ETOPS specific 
tasks. Before an ETOPS flight may commence, an ETOPS pre-departure 
service check (PDSC) Signatory Person, who has been authorized by the 
certificate holder, must certify by signature, that the ETOPS PDSC has 
been completed.
    (4) For the purposes of this paragraph (b) only, the following 
definitions apply:
    (i) ETOPS qualified person: A person is ETOPS qualified when that 
person satisfactorily completes the operator's ETOPS training program 
and is authorized by the certificate holder.
    (ii) ETOPS PDSC Signatory Person: A person is an ETOPS PDSC 
Signatory Person when that person is ETOPS qualified and that person:
    (A) When certifying the completion of the ETOPS PDSC in the United 
States:
    (1) Works for an operator authorized to engage in part 121 
operation or works for a part 145 repair station; and
    (2) Holds a U.S. Mechanic's Certificate with airframe and 
powerplant ratings.
    (B) When certifying the completion of the ETOPS PDSC outside of the 
U.S. holds a certificate in accordance with Sec.  43.17(c)(1) of this 
chapter; or
    (C) When certifying the completion of the ETOPS PDSC outside the 
U.S. holds the certificates needed or has the requisite experience or 
training to return aircraft to service on behalf of an ETOPS 
maintenance entity.
    (iii) ETOPS maintenance entity: An entity authorized to perform 
ETOPS maintenance and complete ETOPS PDSC and that entity is:
    (A) Certificated to engage in part 121 operations;
    (B) Repair station certificated under part 145 of this chapter; or
    (C) Entity authorized pursuant to Sec.  43.17(c)(2) of this 
chapter.
* * * * *

[[Page 33882]]

PART 135--OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATION 
AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

0
3. The authority citation for part 135 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 41706, 44113, 44701-44702, 44705, 
44709, 44711-44713, 44715-44717, 44722.


0
4. Amend Appendix G to Part 135 by revising section G135.2.8(b)(3) and 
adding paragraph G135.2.8(b)(4) to read as follows:

Appendix G to Part 135--Extended (ETOPS)

* * * * *
    G135.2.8 Maintenance Program Requirements. * * *
* * * * *
    (b) * * *
    (3) An appropriately trained maintenance person, who is ETOPS 
qualified must accomplish and certify by signature ETOPS specific 
tasks. Before an ETOPS flight may commence, an ETOPS pre-departure 
service check (PDSC) Signatory Person, who has been authorized by 
the certificate holder, must certify by signature, that the ETOPS 
PDSC has been completed.
    (4) For the purposes of this paragraph (b) only, the following 
definitions apply:
    (i) ETOPS qualified person: A person is ETOPS qualified when 
that person satisfactorily completes the operator's ETOPS training 
program and is authorized by the certificate holder.
    (ii) ETOPS PDSC Signatory Person: A person is an ETOPS PDSC 
Signatory Person when that person is ETOPS Qualified and that 
person:
    (A) When certifying the completion of the ETOPS PDSC in the 
United States:
    (1) Works for an operator authorized to engage in part 135 or 
121 operation or works for a part 145 repair station; and
    (2) Holds a U.S. Mechanic's Certificate with airframe and 
powerplant ratings.
    (B) When certifying the completion of the ETOPS PDSC outside of 
the U.S. holds a certificate in accordance with Sec.  43.17(c)(1) of 
this chapter; or
    (C) When certifying the completion of the ETOPS PDSC outside the 
U.S. holds the certificates needed or has the requisite experience 
or training to return aircraft to service on behalf of an ETOPS 
maintenance entity.
    (iii) ETOPS maintenance entity: An entity authorized to perform 
ETOPS maintenance and complete ETOPS pre-departure service checks 
and that entity is:
    (A) Certificated to engage in part 135 or 121 operations;
    (B) Repair station certificated under part 145 of this title; or
    (C) Entity authorized pursuant to Sec.  43.17(c)(2) of this 
chapter.
* * * * *

    Issued in Washington, DC on June 9, 2008.
Robert A. Sturgell,
Acting Administrator.
[FR Doc. E8-13479 Filed 6-13-08; 8:45 am]
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