[Federal Register Volume 89, Number 2 (Wednesday, January 3, 2024)]
[Rules and Regulations]
[Pages 253-256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28850]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2023-2399; Project Identifier MCAI-2023-00592-T; 
Amendment 39-22644; AD 2023-26-01]
RIN 2120-AA64


Airworthiness Directives; Embraer S.A. (Type Certificate 
Previously Held by Yabor[atilde] Ind[uacute]stria Aeron[aacute]utica 
S.A.; Embraer S.A.) Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: The FAA is adopting a new airworthiness directive (AD) for all 
Embraer S.A. Model ERJ 190-300 and -400 airplanes. This AD was prompted 
by a report that the method for calculating level-off altitude by the 
computerized airplane flight manual (CAFM), may result in a non-
conservative level-off height. This AD requires revising the existing 
airplane flight manual (AFM) to incorporate new CAFM versions as 
specified in an Ag[ecirc]ncia Nacional de Avia[ccedil][atilde]o Civil 
(ANAC) AD, which is incorporated by reference. The FAA is issuing this 
AD to address the unsafe condition on these products.

DATES: This AD is effective January 18, 2024.
    The Director of the Federal Register approved the incorporation by 
reference of a certain publication listed in this AD as of January 18, 
2024
    The FAA must receive comments on this AD by February 20, 2024.

ADDRESSES: You may send comments, using the procedures found in 14 CFR 
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to regulations.gov. Follow 
the instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9 
a.m. and 5

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p.m., Monday through Friday, except Federal holidays.
    AD Docket: You may examine the AD docket at regulations.gov under 
Docket No. FAA-2023-2399; or in person at Docket Operations between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD 
docket contains this final rule, the mandatory continuing airworthiness 
information (MCAI), any comments received, and other information. The 
street address for Docket Operations is listed above.
    Material Incorporated by Reference:
     For service information identified in this final rule, 
contact National Civil Aviation Agency (ANAC), Aeronautical Products 
Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230--
Centro Empresarial Aquarius--Torre B--Andares 14 a 18, Parque 
Residencial Aquarius, CEP 12.246-190--S[atilde]o Jos[eacute] dos 
Campos--SP, Brazil; telephone 55 (12) 3203-6600; email anac.gov.br">pac@anac.gov.br; 
website anac.gov.br/en/. You may find this material on the ANAC website 
at sistemas.anac.gov.br/certificacao/DA/DAE.asp.
     You may view this referenced service information at the 
FAA, Airworthiness Products Section, Operational Safety Branch, 2200 
South 216th St., Des Moines, WA. For information on the availability of 
this material at the FAA, call 206-231-3195. It is also available at 
regulations.gov under Docket No. FAA-2023-2399.

FOR FURTHER INFORMATION CONTACT: Joshua Bragg, Aviation Safety 
Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; 
phone: 216-316-6418; email: [email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to send any written relevant data, views, or 
arguments about this final rule. Send your comments to an address 
listed under ADDRESSES. Include ``Docket No. FAA-2023-2399; Project 
Identifier MCAI-2023-00592-T'' at the beginning of your comments. The 
most helpful comments reference a specific portion of the final rule, 
explain the reason for any recommended change, and include supporting 
data. The FAA will consider all comments received by the closing date 
and may amend this final rule because of those comments.
    Except for Confidential Business Information (CBI) as described in 
the following paragraph, and other information as described in 14 CFR 
11.35, the FAA will post all comments received, without change, to 
regulations.gov, including any personal information you provide. The 
agency will also post a report summarizing each substantive verbal 
contact received about this final rule.

Confidential Business Information

    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public 
disclosure. If your comments responsive to this AD contain commercial 
or financial information that is customarily treated as private, that 
you actually treat as private, and that is relevant or responsive to 
this AD, it is important that you clearly designate the submitted 
comments as CBI. Please mark each page of your submission containing 
CBI as ``PROPIN.'' The FAA will treat such marked submissions as 
confidential under the FOIA, and they will not be placed in the public 
docket of this AD. Submissions containing CBI should be sent to Joshua 
Bragg, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, 
Westbury, NY 11590; phone: 216-316-6418; email: [email protected]. 
Any commentary that the FAA receives which is not specifically 
designated as CBI will be placed in the public docket for this 
rulemaking.

Background

    ANAC, which is the aviation authority for Brazil, has issued ANAC 
AD 2023-04-02, effective April 11, 2023 (ANAC AD 2023-04-02) (also 
referred to as the MCAI), to correct an unsafe condition for all 
Embraer S.A. Model ERJ 190-300 and -400 airplanes. The MCAI states that 
the method to calculate level-off altitude by the CAFM may result in a 
non-conservative level-off height. In case of an engine failure during 
a takeoff, the airplane may not be able to overcome obstacles when the 
airport is limited to obstacle clearance in the acceleration segment. 
Since this condition may occur in other airplanes and affects flight 
safety, corrective action is required.
    The FAA is issuing this AD to address the unsafe condition on these 
products. You may examine the MCAI in the AD docket at regulations.gov 
under Docket No. FAA-2023-2399.

Related Service Information Under 1 CFR Part 51

    ANAC AD 2023-04-02 specifies procedures for updating Supplement 1 
of the AFM to incorporate CAFM version 1.9 or further versions for 
Model ERJ 190-300 airplanes or CAFM version 1.5 or further versions for 
Model ERJ 190-400 airplanes, as approved versions in the Limitations 
block. This service information is reasonably available because the 
interested parties have access to it through their normal course of 
business or by the means identified in ADDRESSES.

FAA's Determination

    This product has been approved by the aviation authority of another 
country and is approved for operation in the United States. Pursuant to 
the FAA's bilateral agreement with this State of Design Authority, it 
has notified the FAA of the unsafe condition described in the MCAI 
referenced above. The FAA is issuing this AD after determining that the 
unsafe condition described previously is likely to exist or develop on 
other products of the same type design.

Requirements of This AD

    This AD requires accomplishing the actions specified in ANAC AD 
2023-04-02 described previously, except for any differences identified 
as exceptions in the regulatory text of this AD.

Explanation of Required Compliance Information

    In the FAA's ongoing efforts to improve the efficiency of the AD 
process, the FAA developed a process to use some civil aviation 
authority (CAA) ADs as the primary source of information for compliance 
with requirements for corresponding FAA ADs. The FAA has been 
coordinating this process with manufacturers and CAAs. As a result, 
ANAC AD 2023-04-02 is incorporated by reference in this AD. This AD 
requires compliance with ANAC AD 2023-04-02 in its entirety through 
that incorporation, except for any differences identified as exceptions 
in the regulatory text of this AD. Service information required by ANAC 
AD 2023-04-02 for compliance will be available at regulations.gov under 
Docket No. FAA-2023-2399 after this AD is published.

Justification for Immediate Adoption and Determination of the Effective 
Date

    Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 
U.S.C. 551 et seq.) authorizes agencies to dispense with notice and 
comment procedures for rules when the agency, for ``good cause,'' finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' Under this section, an agency, upon finding good 
cause, may issue a final rule without providing notice and seeking 
comment prior to issuance. Further, section 553(d) of the APA 
authorizes agencies to make rules

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effective in less than thirty days, upon a finding of good cause.
    In addition, the FAA finds that good cause exists pursuant to 5 
U.S.C. 553(d) for making this amendment effective in less than 30 days, 
for the same reasons the FAA found good cause to forgo notice and 
comment.
    There are currently no domestic operators of these products. 
Accordingly, notice and opportunity for prior public comment are 
unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the 
foregoing reason(s), the FAA finds that good cause exists pursuant to 5 
U.S.C. 553(d) for making this amendment effective in less than 30 days.

Regulatory Flexibility Act

    The requirements of the Regulatory Flexibility Act (RFA) do not 
apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt 
a rule without prior notice and comment. Because the FAA has determined 
that it has good cause to adopt this rule without prior notice and 
comment, RFA analysis is not required.

Costs of Compliance

    Currently, there are no affected U.S.-registered airplanes. If an 
affected airplane is imported and placed on the U.S. Register in the 
future, the FAA provides the following cost estimates to comply with 
this AD:

                  Estimated Costs for Required Actions
------------------------------------------------------------------------
                                                      Parts    Cost per
                    Labor cost                        cost      product
------------------------------------------------------------------------
1 work-hour x $85 per hour = $85..................       $0         $85
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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.
    The FAA is 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

    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, and
    (2) Will not affect intrastate aviation in Alaska.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by 
reference, Safety.

The Amendment

    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 FAA amends Sec.  39.13 by adding the following new airworthiness 
directive:

2023-26-01 Embraer S.A. (Type Certificate Previously Held by 
Yabor[atilde] Ind[uacute]stria Aeron[aacute]utica S.A.; Embraer 
S.A.): Amendment 39-22644; Docket No. FAA-2023-2399; Project 
Identifier MCAI-2023-00592-T.

(a) Effective Date

    This airworthiness directive (AD) is effective January 18, 2024.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to all Embraer S.A. (Type Certificate previously 
held by Yabor[atilde] Ind[uacute]stria Aeron[aacute]utica S.A.; 
Embraer S.A.) Model ERJ 190-300 and -400 airplanes, certificated in 
any category.

(d) Subject

    Air Transport Association (ATA) of America Code 34, Navigation.

(e) Reason

    This AD was prompted by a report that the method for calculating 
level-off altitude by the computerized airplane flight manual 
(CAFM), for Model ERJ 190-300 and ERJ 190-400 airplanes, may result 
in a non-conservative level-off height. The FAA is issuing this AD 
to address the possibility that, in the event of an engine failure 
during takeoff, an airplane may not be able to overcome obstacles 
when the airport is limited to obstacle clearance in the 
acceleration segment.

(f) Compliance

    Comply with this AD within the compliance times specified, 
unless already done.

(g) Requirements

    Except as specified in paragraph (h) of this AD: Comply with all 
required actions and compliance times specified in, and in 
accordance with, Ag[ecirc]ncia Nacional de Avia[ccedil][atilde]o 
Civil (ANAC) AD 2023-04-02, effective April 11, 2023 (ANAC AD 2023-
04-02).

(h) Exceptions to ANAC AD 2023-04-02

    (1) Where ANAC AD 2023-04-02 refers to its effective date, this 
AD requires using the effective date of this AD.
    (2) Paragraph (c) of ANAC AD 2023-04-02 is not adopted by this 
AD.

(i) Additional AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager, 
International Validation Branch, FAA, has the authority to approve 
AMOCs for this AD, if requested using the procedures found in 14 CFR 
39.19. In accordance with 14 CFR 39.19, send your request to your 
principal inspector or responsible Flight Standards Office, as 
appropriate. If sending information directly to the manager 
International Validation Branch, send it to the attention of the 
person identified in paragraph (j)(2) of this AD. Information may be 
emailed to: [email protected]. Before using any approved 
AMOC, notify your appropriate principal inspector, or lacking a 
principal inspector, the manager of the responsible Flight Standards 
Office.
    (2) Contacting the Manufacturer: For any requirement in this AD 
to obtain instructions from a manufacturer, the instructions must be 
accomplished using a method approved by the Manager, International 
Validation Branch, FAA; or ANAC; or ANAC's authorized Designee. If 
approved by the ANAC Designee, the approval must include the 
Designee's authorized signature.

(j) Additional Information

    (1) Refer to ANAC AD 2023-04-02, effective April 11, 2023, for 
related information. This ANAC AD may be found in the AD docket at 
regulations.gov under Docket No. FAA-2023-2399.
    (2) For more information about this AD, contact Joshua Bragg, 
Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, 
Westbury, NY 11590; phone: 216-316-6418; email: 
[email protected].

(k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the 
incorporation by reference

[[Page 256]]

(IBR) of the service information listed in this paragraph under 5 
U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do 
the actions required by this AD, unless this AD specifies otherwise.
    (i) Ag[ecirc]ncia Nacional de Avia[ccedil][atilde]o Civil (ANAC) 
AD 2023-04-02, effective April 11, 2023.
    (ii) [Reserved]
    (3) For ANAC AD 2023-04-02, contact National Civil Aviation 
Agency (ANAC), Aeronautical Products Certification Branch (GGCP), 
Rua Dr. Orlando Feirabend Filho, 230--Centro Empresarial Aquarius--
Torre B--Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-
190--S[atilde]o Jos[eacute] dos Campos--SP, Brazil; telephone 55 
(12) 3203-6600; email anac.gov.br">pac@anac.gov.br; website anac.gov.br/en/. You 
may find this ANAC AD on the ANAC website at sistemas.anac.gov.br/
certificacao/DA/DAE.asp.
    (4) You may view this material at the FAA, Airworthiness 
Products Section, Operational Safety Branch, 2200 South 216th St., 
Des Moines, WA. For information on the availability of this material 
at the FAA, call 206-231-3195.
    (5) You may view this material at the National Archives and 
Records Administration (NARA). For information on the availability 
of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations, or email [email protected].

    Issued on December 18, 2023.
Victor Wicklund,
Deputy Director, Compliance & Airworthiness Division, Aircraft 
Certification Service.
[FR Doc. 2023-28850 Filed 1-2-24; 8:45 am]
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