[Federal Register: December 9, 2002 (Volume 67, Number 236)]
[Rules and Regulations]
[Page 72830-72834]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de02-2]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 21, 91, 121, 125, and 129
[Docket No. FAA-1999-6411; Amendment Nos. 21-82, 91-272, 121-285, 125-
140, 129-35, Special Federal Aviation Regulation No. 88-1]
RIN 2120-AG62
Extension of Compliance Times for Fuel Tank System Safety
Assessments
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; request for comments.
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SUMMARY: This final rule extends the compliance deadline for
supplemental type certificate holders to complete safety assessments of
their fuel tank systems, and any system that may affect the fuel tank
system, and to develop design changes and maintenance programs needed
to correct unsafe conditions. It also extends the compliance time for
the affected operators to incorporate instructions for maintenance and
inspection of the fuel tank system into their maintenance or inspection
programs. This action is needed to allow supplemental type certificate
holders additional time to complete their compliance submittals using a
newly identified method of completing their safety assessments and
identifying corrective actions without acquiring information from the
type certificate holders. Because the operators are dependent upon the
supplemental certificate holders for showing compliance with the
operating rules, this rule allows them the same time extension.
DATES: This final rule is effective December 9, 2002. Comments must be
submitted on or before February 7, 2003.
ADDRESSES: Address your comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. You must identify the docket number FAA-
1999-6411 at the beginning of your comments, and you should submit two
copies of your comments. If you wish to receive confirmation that FAA
received your comments, include a self-addressed, stamped postcard.
You may also submit comments through the Internet to http://dms.dot.gov.
You may review the public docket containing comments to
these proposed regulations in person in the Dockets Office between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
Dockets Office is on the plaza level of the NASSIF Building at the
Department of Transportation at the above address. Also, you may review
public dockets on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mike Dostert, Transport Airplane
Directorate, Propulsion/Mechanical Systems Branch, ANM-112, Federal
Aviation Administration, 1601 Lind Avenue SW., Renton, Washington
98055-4056; telephone (425) 227-2132.
SUPPLEMENTARY INFORMATION:
Comments Invited
This final rule is being adopted without prior notice and prior
public comment. The Regulatory Policies and Procedures of the
Department of Transportation (DOT) (44 FR 1134, February 26, 1979),
however, provide that, to the maximum extent possible,
[[Page 72831]]
operating administrations for the DOT should provide an opportunity for
public comment on regulations issued without prior notice. Accordingly,
the FAA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. We also invite comments
relating to the economic, environmental, energy, or federalism impacts
that might result from this amendment. The most helpful comments
reference a specific portion of the amendment, explain the reason for
any recommended changes, 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 this rulemaking. The docket is available for public
inspection before and after the comment closing date. If you wish to
review the docket in person, go to the address in the ADDRESSES
section.
The FAA will consider all comments received on or before the
closing date for comments. Late filed comments will be considered to
the extent practicable. This final rule may be amended in light of the
comments received.
If you want the FAA to acknowledge receipt of your comments on this
amendment, 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 to you.
Availability of Final Rule
You can get an electronic copy of this final rule using the
Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search).
(2) On the search page, typing in the last four digits of the
Docket number shown at the beginning of this final rule, and clicking
on ``search.''
(3) On the next page, which contains the Docket summary information
for the Docket you selected, clicking on the final rule.
You can also get an electronic copy using the Internet through the
Office of Rulemaking's Web page at http:/www.faa.gov/avr/armhome.htm,
or the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html
.
You can also get a copy by submitting 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 final
rule.
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. 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. You can find out more about
SBREFA on the Internet at, http://www.faa.gov/avr/arm/sbrefa.htm. For
more information on SBREFA, e-mail us at 9-AWA-SBREFA@faa.gov.
Background
Amendment 25-102 and SFAR 88
Following the 1996 TWA 800 accident, which was caused by an
explosion in the center wing fuel tank, the FAA issued regulations to
establish several new transport airplane fuel tank safety requirements
(66 FR 23086, May 7, 2001). The final rule, which was effective June 6,
2001, included:
1. Amendment 21-78 (SFAR 88) which requires type certificate (TC)
and supplemental type certificate (STC) holders to:
[sbull] Conduct a revalidation of the fuel tank system designs on
the existing fleet of transport category airplanes carrying 30 or more
passengers or a payload of 7,500 lbs. or more;
[sbull] Develop all design changes required to demonstrate they
meet the new ignition prevention requirements; and
[sbull] Develop fuel tank maintenance and inspection instructions,
2. Amendments 91-266, 121-282, 125-36, and 129-30, which require
certain operators to incorporate FAA-approved fuel tank maintenance and
inspection requirements into their maintenance or inspection programs,
and
3. Amendment 25-102, which adopts new airworthiness standards for
future designs to impose ignition prevention design and maintenance
requirements (Sec. 25.981(a) & (b) and paragraph H25.4 of appendix H),
and fuel tank flammability requirements (Sec. 25.981(c)).
Amendment to SFAR 88 To Allow Equivalent Safety Findings
On September 10, 2002, the FAA amended SFAR 88 by incorporating
provisions into the rule that allow for findings of equivalent safety
(Amendment 21-82, 67 FR 67490). This amendment added a paragraph that
allows the FAA to approve a type certificate holder's required
submission based on a finding that it provides an equivalent level of
safety to full compliance with the SFAR. SFAR 88 is a part 21 rule
which did not provide certificate holders the ability to make
compliance findings based upon a finding of equivalent safety, as is
available when making findings of compliance with part 25 for new or
amended type certificates. Therefore, Amendment 21-82 provides a
``level playing field'' between pending applicants and current holders
of TCs. It also allows applicants to propose other means to achieve the
safety goals of the SFAR such as flammability reduction using
polyurethane foam or nitrogen inerting.
Discussion of SFAR 88 and This Amendment
SFAR 88 requires that holders of type certificates and supplemental
type certificates review the designs of fuel tank systems of large
transport category airplanes, and develop design changes and
maintenance and inspection programs based on the findings of those
reviews. The reviews are conducted using the ignition prevention
requirements that were adopted for new or amended type designs in Sec.
25.981. Reports documenting compliance must be submitted to the FAA by
December 6, 2002.
When the SFAR was written, the FAA believed that, to the extent
that STC holders would be dependent upon the TC holders for the
information needed to show compliance with the SFAR, this information
would be available either from the original certification data or
through business agreements with the TC holders. For a variety of
reasons, this information has generally not been made available to the
STC holders.
Since issuance of SFAR 88, we have gained experience and now
recognize that STC holders can show compliance without access to data
from the TC holders. On August 27, 2002, about 3 months prior to the
compliance date for the SFAR, we conducted a seminar in Chicago with
STC holders where methods for showing compliance without TC data were
presented. (Presentations from this seminar can be accessed at the
following Web site: http://www.faa.gov/certification/aircraft/sfar88/index.htm
). These methods allow STC holders to conduct the safety
assessment of their STC up to the interface with the TC holder's
design, and to define service information (both maintenance
instructions and design changes) needed to correct any deficiencies
identified in
[[Page 72832]]
the assessment. For all safety issues associated with the interface
between the STC and the TC holder's design, the STC holder can
reference the design configuration control limitations defined by the
TC holder, which will be sufficient to address these issues.
Until the August seminar, STC holders did not have access to this
information regarding a means of compliance that is not dependent on
access to TC holder data. Because of the widespread belief that access
to these data was necessary, many STC holders had not made significant
progress in assessing their designs. A six-month extension of the
compliance time for STC holders will allow them to complete their
compliance submittals using the method described above. This amendment
therefore provides an extension of six months for STC holders to the
compliance time of December 6, 2002, specified in SFAR 88.
It should be noted that the compliance deadline is not being
extended for TC holders; and we expect them to comply by the original
deadline. As noted previously, Amendment 21-82 allows TC holders to use
factors providing an equivalent level of safety in complying with SFAR
88. Under this provision, some TC holders have expressed an intention
to provide fuel tank inerting systems as an alternative to some design
changes that would otherwise be necessary to eliminate ignition
sources. Because these inerting systems involve new technology, the TC
holders have indicated that they will not be able to complete the
design changes by the deadline. Given the potential safety benefits of
these systems, we have stated that a short delay in providing these
design changes may be acceptable for a finding of equivalent safety,
provided that the TC holders otherwise comply with SFAR 88's system
safety assessment and maintenance program requirements by the December
6, 2002, deadline.
Operators are dependent upon STC holders for showing compliance
with the operating rules (parts 91, 121, 125, and 129) that require
development of an approved maintenance program by June 2004. Therefore
this rulemaking would also provide a six-month extension of the
compliance times for these rules. This extension will also enable
operators to fully address any maintenance program changes associated
with fuel tank inerting system changes that TC holders may develop, as
discussed previously.
Since this rule simply extends the compliance time for STC holders
and operators, it should not result in additional costs and therefore
is not considered ``significant'' for purposes of Executive Order
12866, DOT Regulatory Policies and Procedures, or the Regulatory
Flexibility Act, and it does not require preparation of a regulatory
evaluation.
Paperwork Reduction Act
There are no new requirements for information collection associated
with this amendment.
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
determined that there are no ICAO Standards and Recommended Practices
that correspond to these regulations.
Good Cause for Immediate Adoption
Sections 553(b)(3)(B) and 553(d)(3) of the Administrative
Procedures Act (APA) (5 U.S.C. Sections 553(b)(3)(B) and 553(d)(3))
authorize agencies to dispense with certain notice procedures for rules
when they find ``good cause'' to do so. Under section 553(b)(3)(B), the
requirements of notice and opportunity for comment do not apply when
the agency for good cause finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Section 553(d)(3) allows an agency, upon finding good cause, to make a
rule effective immediately, thereby avoiding the 30-day delayed
effective date requirement in section 553.
In the context of the APA, ``impracticable'' means that, if notice
and comment procedures are followed, they would defeat the purpose of
the rule. As explained previously, the purpose of this final rule is to
prevent a large number of STC holders from being in noncompliance with
SFAR 88 as of the December 6, 2002, deadline by extending this deadline
by six months. There is no way we could issue a notice, receive
comments, and issue a final rule before then. Therefore, it is
``impracticable'' to provide notice and opportunity to comment.
This final rule also provides a six-month extension of the
compliance time for the operating rules, which originally had a
deadline of June 2004 (18 months after the deadline for SFAR 88). The
need to extend this deadline results directly from the extension for
STC holders. We acknowledged in the original fuel tank safety final
rule that the operators are heavily dependent on TC and STC holders'
compliance, and we gave the operators 18 months after the SFAR 88
compliance deadline with the understanding that they would need that
entire time to develop the maintenance program changes required by the
operating rules. Nothing has occurred to make us reconsider that
decision, so the extension of the STC holder deadline necessitates
extending the operating rule deadline, as well.
Providing notice and opportunity to comment on this extension would
create uncertainty for the operators and could be highly disruptive.
Since it is important for operators to be able to plan their compliance
activities, and notice and comment procedures would make this
impossible, we also find that providing notice and opportunity to
comment are impracticable for the operating rule extension.
For the same reasons, we find good cause to make this rule
effective immediately upon publication.
Economic Evaluation, Regulatory Flexibility Determination, 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 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. section 2531-2533) 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 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 the private sector, of $100
million or more annually (adjusted for inflation.)
In conducting these analyses, the FAA has determined this rule (1)
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; (2) will not have a significant
impact on a substantial
[[Page 72833]]
number of small entities; (3) will have little effect on international
trade; and (4) does not impose an unfunded mandate on state, local, or
tribal governments, or on the private sector.
For regulations with an expected minimal economic impact, the
above-specified analyses are not required. The Department of
Transportation Order DOT 2100.5 prescribes policies and procedures for
simplification, analysis, and review of regulations. If it is
determined that the expected impact is so minimal that the proposal
does not warrant a full evaluation, a statement to that effect and the
basis for it is included in the proposed regulation. The FAA has
determined that there are minimal costs associated with this final rule
and the safety benefits contemplated by the SFAR will still be
achieved. Since current circumstances preclude industry from meeting
the original compliance time, a 6-month extension will impose de
minimus economic impact.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective 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 that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. 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 proposed or
final 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. If, however, an agency determines that a proposed or final
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 action simply provides a six-month extension of the original
compliance times. The FAA therefore expects this final rule to impose
no cost on small entities. Consequently, the FAA certifies that this
final rule will not have a significant economic impact on a substantial
number of small entities.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or 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 FAA has assessed the potential effect of this final rule
and has determined that it will not result in additional costs to
supplemental type certificate holders or operators and will have a
minimal effect on international trade
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
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 a $100 million or more expenditure (adjusted
annually for inflation) 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.''
This final rule does not contain such a mandate; therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 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. We therefore determined that this final rule does not have
federalism implications.
Plain English
Executive Order 12866 (58 FR 51735, Oct. 4, 1993) requires each
agency to write regulations that are simple and easy to understand. We
invite your comments on how to make these regulations easier to
understand, including answers to questions such as the following:
[sbull] Are the requirements in the regulation clearly stated?
[sbull] Does the regulation contain technical language or jargon
that interferes with their clarity?
[sbull] Would the regulation be easier to understand if it was
divided into more (but shorter) sections?
[sbull] Is the description in the preamble helpful in understanding
the regulation?
Please send your comments to the address specified in the ADDRESSES
section.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this final rule qualifies for a categorical
exclusion.
Energy Impact
The energy impact of the final rule has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as
amended (42 U.S.C. 6362), and FAA Order 1053.1. It has been determined
that the final rule is not a major regulatory action under the
provisions of the EPCA.
List of Subjects
14 CFR Parts 21, 91, and 125
Aircraft, Aviation safety, Reporting and recordkeeping
requirements.
14 CFR Part 121
Air carriers, Aircraft, Aviation safety, Reporting and
recordkeeping requirements, Safety, Transportation.
14 CFR Part 129
Air carriers, Aircraft, Aviation safety, Reporting and
recordkeeping requirements.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends parts 21, 91, 121, 125, and 129 of Title 14, Code
of Federal Regulations, as follows:
PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS
1. The authority citation for part 21 continues to read:
Authority: 42 U.S.C. 7572; 40105, 40113; 44701-44702, 44707,
44709, 44711, 44713, 44715, and 45303.
2. SFAR No. 88-1 is amended by revising the introductory text of
paragraph 2 and by adding a new paragraph 2(e) to read as follows:
[[Page 72834]]
SFAR No. 88--Fuel Tank System Fault Tolerance Evaluation Requirements
* * * * *
2. Compliance: Each type certificate holder, and each
supplemental type certificate holder of a modification affecting the
airplane fuel tank system, must accomplish the following within the
compliance times specified in paragraph (e) of this section:
* * * * *
(e) Each type certificate holder must comply no later than
December 6, 2002, or within 18 months after the issuance of a type
certificate for which application was filed before June 6, 2001,
whichever is later; and each supplemental type certificate holder of
a modification affecting the airplane fuel tank system must comply
no later than June 6, 2003, or within 18 months after the issuance
of a supplemental type certificate for which application was filed
before June 6, 2001, whichever is later.
PART 91--GENERAL OPERATING AND FLIGHT RULES
3. The authority citation for part 91 continues to read:
Authority: 49 U.S.C. 1301(7), 1303, 1344, 1348, 1352-1355, 1401,
1421-1431, 1471, 1472, 1502, 1510, 1522, and 2121-2125; Articles 12,
29, 31, and 32(a) of the Convention on International Civil Aviation
(61 Stat 1180); 42 U.S.C. 4321 et. seq.; E.O. 11514; 49 U.S.C.
106(g) (Revised Pub. L. 97-449, January 21, 1983).
4. Amend Sec. 91.410 by revising the first sentence of paragraph
(b) to read as follows:
Sec. 91.410 Special maintenance program requirements.
* * * * *
(b) After December 6, 2004, no person may operate a turbine-powered
transport category airplane with a type certificate issued after
January 1, 1958, and either a maximum type certificated passenger
capacity of 30 or more, or a maximum type certificated payload capacity
of 7,500 pounds or more, unless instructions for maintenance and
inspection of the fuel tank system are incorporated into its inspection
program. * * *
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
5. The authority citation for part 121 continues to read:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
6. Amend Sec. 121.370 by revising the first sentence of paragraph
(b) to read as follows:
Sec. 121.370 Special maintenance program requirements.
* * * * *
(b) After December 6, 2004, no certificate holder may operate a
turbine-powered transport category airplane with a type certificate
issued after January 1, 1958, and either a maximum type certificated
passenger capacity of 30 or more, or a maximum type certificated
payload capacity of 7,500 pounds or more, unless instructions for
maintenance and inspection of the fuel tank system are incorporated in
its maintenance program. * * *
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE; AND RULES GOVERNING PERSONS ON BOARD SUCH
AIRCRAFT
7. The authority citation for part 125 continues to read:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-
44711, 44713, 44716-44717, 44722.
8. Amend Sec. 125.248 by revising the first sentence of paragraph
(b) to read as follows:
Sec. 125.248 Special maintenance program requirements.
* * * * *
(b) After December 6, 2004, no certificate holder may operate a
turbine-powered transport category airplane with a type certificate
issued after January 1, 1958, and either a maximum type certificated
passenger capacity of 30 or more, or a maximum type certificated
payload capacity of 7,500 pounds or more unless instructions for
maintenance and inspection of the fuel tank system are incorporated in
its inspection program. * * *
PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE
9. The authority citation for part 129 continues to read:
Authority: 49 U.S.C. 106(g), 40104-40105, 40113, 40119, 44701-
44702, 44712, 44716-44717, 44722, 44901-44904, 44906.
10. Amend Sec. 129.32 by revising the first sentence of paragraph
(b) to read as follows:
Sec. 129.32 Special maintenance program requirements.
* * * * *
(b) For turbine-powered transport category airplanes with a type
certificate issued after January 1, 1958, and either a maximum type
certificated passenger capacity of 30 or more, or a maximum type
certificated payload capacity of 7,500 pounds or more, no later than
December 6, 2004, the program required by paragraph (a) of this section
must include instructions for maintenance and inspection of the fuel
tank systems. * * *
Issued in Washington, DC on December 3, 2002.
Marion C. Blakey,
Administrator.
[FR Doc. 02-30997 Filed 12-4-02; 3:40 pm]
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