[Federal Register: June 16, 2008 (Volume 73, Number 116)]
[Rules and Regulations]
[Page 33879-33882]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn08-4]
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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
Jim.Ryan@faa.gov. 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
Bruce.Glendening@faa.gov.
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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