[Federal Register Volume 73, Number 155 (Monday, August 11, 2008)]
[Rules and Regulations]
[Pages 46539-46542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18474]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. NM391; Special Conditions No. 25-273-SC]


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

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final special conditions.

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SUMMARY: These special conditions are issued 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 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: Effective Date: September 10, 2008.

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 98057-
3356; telephone 425-227-2194; facsimile 425-227-1232.

SUPPLEMENTARY INFORMATION:

Background

    Embraer S.A., 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 TCs, the 
airplanes share the same conceptual design and general configuration. 
On July 2, 2003, Embraer S.A., submitted a request for an extension of 
its original application for the Embraer S.A., Model 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., amended the application to include 
the Embraer S.A., Model ERJ 190-100 ECJ. The Embraer S.A., Model ERJ 
190-100 ECJ is a derivative of the Embraer S.A.,

[[Page 46540]]

Model ERJ 190 which is approved under Type Certificate No. A57NM. The 
Embraer S.A., Model 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 Embraer S.A., 
Model 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 in-flight access to baggage and/or cargo 
placed in the Class C cargo compartment.
    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 
S.A., Model EMB 135BJ, has a flight-accessible Class C cargo 
compartment that was approved using an equivalent level of safety 
finding. The Embraer S.A., Model EMB 135BJ design is similar to the 
proposed design for the ERJ 190-100 ECJ. The Embraer S.A., Model 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 Embraer S.A., 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 
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.''
    If the Administrator finds that the applicable airworthiness 
regulations (i.e., part 25) do not contain adequate or appropriate 
safety standards for the Embraer S.A., 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 S.A., 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 S.A., Model ERJ 190-100 ECJ will incorporate a novel or 
unusual design feature of in-flight access to 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 security concerns with 
access to the baggage and/or cargo. These 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.

Security

    The FAA has been in contact with the TSA to understand the security 
concerns with passengers having access in-flight to baggage and/or 
cargo, and specifically with regard to unscreened (checked) baggage/
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, and 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.

    For airplanes not operated for hire or offered for common carriage 
(e.g., operation under FAA operating rules 14 CFR parts 91 or 125), 
flight-accessibility to baggage and/or cargo placed in the Class C 
cargo compartment 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

[[Page 46541]]

operating certificates under 14 CFR part 119.
    For airplanes operated for hire or for common carriage (e.g., 
operation under FAA operating rules 14 CFR part 119), the TSA 
regulations provided in 49 CFR 1544.203 prohibit in-flight access to 
checked baggage and cargo. Checked baggage and cargo do not pass 
through the screening required of carry-on baggage, and thus may 
introduce a security concern if passengers are provided in-flight 
access.

    Note: These special conditions are specific to the in-flight 
accessible Class C cargo compartment. Security requirements for 
occupants and for baggage/cargo placed in other locations continue 
to be subject to the screening requirements and operator's security 
program as identified in 49 CFR 1544.

Fire Protection and Alerting

    It is the FAA's position that the threat of fire 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.
    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.
    After the extinguishing agent has been discharged into the 
compartment, there must be a means of alerting a 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 from 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.

Cargo Restraint

    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.

Discussion of Comments

    A notice of proposed special conditions No. 25-08-05-SC for the 
Embraer S.A., Model ERJ 190-100 ECJ airplanes was published in the 
Federal Register on April 21, 2008 (73 FR 21286).
    A comment was received from Embraer S.A.
    Requested change: Embraer agreed with all proposed special 
conditions except for the private use only limitation in Condition No. 
8. Embraer noted that 49 CFR 1544.203(d)(2) requires the operator to 
prevent access to checked baggage. Embraer also noted that because the 
ERJ 190-100 ECJ Class C cargo compartment is accessible in-flight, all 
baggage placed there is not checked baggage, but rather is considered 
accessible subject to the screening requirements of 49 CFR 1544.201. 
Embraer proposed to include guidance in the ERJ 190-100 ECJ operational 
publications describing the applicable TSA regulations and how the 
accessible main deck Class C compartment should be treated in 
compliance with those regulations. Embraer further noted that the 
security issue is relevant to in-flight baggage accessibility, and is 
not related to the unique feature (built-in fire extinguishing) of the 
ERJ 190-100 ECJ Class C compartment, and that many other airplanes have 
been certified since the EMB-135BJ with flight accessible compartments, 
without any private use limitations. Embraer believes that the private 
use, not-for-hire limitation proposed by the FAA is not necessary and, 
if imposed, would preclude the ERJ 190-100 ECJ from operating in the 
charter market. Embraer proposed that when all of the in-flight 
accessible cargo/baggage is screened as carried on baggage/cargo, the 
airplane should be permitted to be operated for hire and for common 
carriage.
    FAA Disposition: We partially agree with the Embraer comments. When 
all of the occupants and in-flight accessible baggage/cargo are subject 
to the accessible baggage screening requirements identified in 49 CFR 
part 1544 there would not be a need to limit the operation of the 
airplane to private use, not for common carriage. We have revised 
Condition No. 8 to allow operation for hire and common carriage when 
the occupants and the baggage/cargo that is accessible in-flight are 
subject to the screening requirements of 49 CFR part 1544. It should be 
noted that the screening of the occupants and carry on baggage is 
addressed by the operators' security program as identified in 49 CFR 
part 1544. AFM Limitations are necessary to ensure that flight crews 
are aware of the unique security requirements associated with in-flight 
accessible compartments when operating for hire or for common carriage. 
The FAA has imposed similar limitations on other programs initiated 
since increased security requirements were introduced, and intends to 
continue to do so for future projects that introduce in-flight 
accessible cargo compartments, regardless of the classification of 
those compartments per 14 CFR 25.857.

Applicability

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

Conclusion

    This action affects only certain novel or unusual design features 
on the Embraer S.A., 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.

0
The authority citation for these special conditions is as follows:

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

The Special Conditions

0
Accordingly, pursuant to the authority delegated to me by the 
Administrator, the following special conditions are issued 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

[[Page 46542]]

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 when 
they exit the 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 m3 or less. Class C 
cargo compartments that are accessible to passengers with a volume 
greater than 10 m3 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. Operational limitations: The airplane has operational 
limitations associated with the level of screening required for 
baggage/cargo that is placed in the in-flight accessible Class C cargo 
compartment. These limitations must be documented in the Airplane 
Flight Manual (AFM).
    (a) When the airplane is not operated for hire or offered for 
common carriage screening of the baggage/cargo placed in the in-flight 
accessible Class C compartment is the responsibility of 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.
    (b) When the airplane is operated for hire or operated for common 
carriage, the baggage/cargo placed in the in-flight accessible Class C 
compartment is subject to the screening requirements and operators 
security program as identified in 49 CFR part 1544.

    Issued in Renton, Washington, on July 31, 2008.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. E8-18474 Filed 8-8-08; 8:45 am]
BILLING CODE 4910-13-P