Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ, -135ER, -135KE, -135KL, and -135LR Airplanes; and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP Airplanes

[Federal Register Volume 72, Number 32 (Friday, February 16, 2007)]
[Rules and Regulations]
[Pages 7561-7563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2510]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2006-25892; Directorate Identifier 2006-NM-120-AD; 
Amendment 39-14941; AD 2007-04-09]
RIN 2120-AA64


Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. 
(EMBRAER) Model EMB-135BJ, -135ER, -135KE, -135KL, and -135LR 
Airplanes; and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, 
and -145EP Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The FAA is adopting a new airworthiness directive (AD) for all 
EMBRAER airplanes as described previously. This AD requires inspecting 
to determine the part number of the left- and right-hand windshield 
temperature controllers. For airplanes equipped with certain windshield 
temperature controllers, this AD also requires replacing the attaching 
hardware of the power cable terminals of the windshield temperature 
controllers with new, improved attaching hardware; inspecting the power 
cable terminals for signs of melting or damage to the terminals, cable 
insulation, or plastic crimping ring; and performing corrective actions 
if necessary. This AD results from reports of smoke on the flight deck 
caused by damage from poor electrical contact due to loosening of the 
attaching hardware of the power cables of certain windshield 
temperature controllers. We are issuing this AD to prevent overheating 
of the power cable terminals of the windshield temperature controllers, 
which could result in smoke on the flight deck.

DATES: This AD becomes effective March 23, 2007.
    The Director of the Federal Register approved the incorporation by 
reference of certain publications listed in the AD as of March 23, 
2007.

ADDRESSES: You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility, U.S. 
Department of Transportation, 400 Seventh Street, SW., Nassif Building, 
Room PL-401, Washington, DC.
    Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 
343--CEP 12.225, Sao Jose dos Campos--SP, Brazil, for service 
information identified in this AD.

FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, 
International Branch, ANM-116, FAA, Transport Airplane Directorate, 
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425) 
227-2125; fax (425) 227-1149.

SUPPLEMENTARY INFORMATION: 

Examining the Docket

    You may examine the airworthiness directive (AD) docket on the 
Internet at http://dms.dot.gov or in person at the Docket Management 
Facility office between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. The Docket Management Facility office 
(telephone (800) 647-5227) is located on the plaza level of the Nassif 
Building at the street address stated in the ADDRESSES section.

Discussion

    The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 
CFR part 39 to include an AD that would apply to all EMBRAER Model EMB-
135BJ, -135ER, -135KE, -135KL, and -135LR airplanes; and Model EMB-145, 
-145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes. That NPRM 
was published in the Federal Register on September 26, 2006 (71 FR 
56056). That NPRM proposed to require inspecting to determine the part 
number of the left- and right-hand windshield temperature controllers. 
For airplanes equipped with certain windshield temperature controllers, 
that NPRM also proposed to require replacing the attaching hardware of 
the power cable terminals of the windshield temperature controllers 
with new, improved attaching hardware; inspecting the power cable 
terminals for signs of melting or damage to the terminals, cable 
insulation, or plastic crimping ring; and performing corrective actions 
if necessary.

Comments

    We provided the public the opportunity to participate in the 
development of this AD. We have considered the comments received.

Request To Revise Consequence of Unsafe Condition

    EMBRAER requests that we revise the possible consequence of the 
unsafe condition. EMBRAER states that it has confirmed that the unsafe 
condition is the result of overheating of the power cables of the 
windshield temperature controller due to loosening of the power cable 
attachment hardware, and that tests have shown that this condition may 
cause smoke on the flight deck, but not fire. EMBRAER therefore 
requests that we revise the statement ``which could result in smoke and 
fire on the flight deck'' to read ``which could result in smoke on the 
flight deck.''
    We agree for the reasons stated and have revised the summary and 
paragraph (d) of the AD accordingly.

Request To Permit Records Check

    EMBRAER requests that we revise the NPRM to permit a maintenance 
records check to determine if the subject windshield temperature 
controller is installed on the airplane. EMBRAER states that it should 
be acceptable to show that the subject controller is or is not 
installed on the airplane by examining the airplane maintenance records 
rather than by requiring a physical inspection of the actual installed 
part.
    We agree for the reasons given. Therefore, we have revised 
paragraph (f) of the AD to permit a maintenance records check in lieu 
of the required inspection, provided the part number of the subject 
controller can be conclusively determined from that review.

Request for Publication of Service Information

    One commenter, the Modification and Replacement Parts Association 
(MARPA), requests that we revise our procedures for incorporation by 
reference (IBR) of service information in ADs. MARPA asserts that ADs 
are frequently derived from privately-authored, copyright-protected 
manufacturer service documents, but that when such a document is 
incorporated by reference into a public document like an AD, it loses 
its private, protected status and becomes itself a public document. 
MARPA continues that public laws by definition must be public and 
cannot rely for compliance upon private writings, and that unless such 
writings are incorporated by reference, a court of law will not 
consider them in interpreting the AD and might invalidate the AD.

[[Page 7562]]

MARPA contends that IBR service documents should be published in the 
Docket Management System (DMS), keyed to the action that incorporates 
them. IBR was adopted to relieve the Federal Register from publishing 
documents already held by affected individuals, which traditionally 
meant aircraft owners and operators who received service information 
from manufacturers. However, MARPA contends that a new affected class 
of maintenance and repair organizations (MRO), component service and 
repair shops, parts purveyors and distributors, and organizations that 
manufacture or service alternatively certified parts under 14 CFR 
21.303 (PMA) now perform a majority of aircraft maintenance. MARPA 
continues that service information distributed to owners and operators 
who are financing or leasing institutions may not reach this class, who 
may actually be responsible for accomplishing ADs. MARPA therefore 
requests that service documents deemed essential to accomplishing this 
proposed action be (1) incorporated by reference into the regulatory 
instrument, and (2) published in the DMS.
    We understand MARPA's comment concerning IBR. The Office of the 
Federal Register (OFR) requires that documents that are necessary to 
accomplish the requirements of the AD be incorporated by reference 
during the final rule phase of rulemaking. This final rule incorporates 
by reference the documents necessary for accomplishing the requirements 
mandated by this AD. Further, we point out that while documents that 
are incorporated by reference do become public information, they do not 
lose their copyright protection. For that reason, we advise the public 
to contact the manufacturer to obtain copies of the referenced service 
information.
    In regard to MARPA's request to post service bulletins on the 
Department of Transportation's DMS, we are currently in the process of 
reviewing issues surrounding the posting of service bulletins on the 
DMS as part of an AD docket. Once we have thoroughly examined all 
aspects of this issue and have made a final determination, we will 
consider whether our current practice needs to be revised. No change to 
the final rule is necessary in response to this comment.

Request for Policy Changes and Clarification

    MARPA also expresses concern about several perceived 
inconsistencies in current FAA policy as regards parts manufacturing 
approval (PMA) parts. MARPA states: ``Type certificate holders in their 
service documents universally ignore the possible existence of PMA 
parts. This is especially true with foreign manufacturers where the 
concept may not exist or be implemented in the country of origin. In 
the instant case we are aware of a Rosemount Aerospace temperature 
controller that carries the part number (P/N) of 3801D2 approved for 
replacement of Embraer P/N: 145-38558-505 (Rosemount PMA supplement 
number 191, dated September 5, 2002). We do not have sufficient 
knowledge to determine whether the Rosemount part suffers from the same 
deficiencies as the Goodyear part. We are concerned that it may and 
because the proposed action restricts applicability to the Goodyear 
part the possibly defective Rosemount parts may continue in operation. 
We believe, at the very least, the Rosemount part should be addressed 
in the action to advise whether the regulatory action is intended to 
apply or not apply to this particular part.''
    We do not agree. EMBRAER P/N 145-38558-505 is not a replaceable 
part; it is a drawing used by EMBRAER to install the Goodrich 
(Rosemount) controller, P/N 3801D2, during production. As the NPRM does 
not address deficiencies in the subject controller, but only the 
installation of the controller power cable mounting hardware, replacing 
the subject controller is not an issue of this AD.
    MARPA continues: ``We have, in the past, issued several comments on 
proposed actions suggesting the incorporation of language designed to 
extend applicability to known or unknown alternatively approved (PMA) 
parts. The Small Airplane Directorate has adopted, in whole or in part, 
MARPA's suggestion and we would recommend and request that the 
Transport Airplane Directorate coordinate with the Small Airplane 
Directorate to promulgate a uniform policy on this issue pursuant to 
Section 1, paragraph (b)(10) of Executive Order 12866.''
    The FAA recognizes the need for standardization on this issue and 
is currently in the process of reviewing it at the national level. 
However, the Transport Airplane Directorate considers that to delay 
this particular AD action for resolution of this matter would be 
inappropriate, since we have determined that an unsafe condition exists 
and that replacement of certain parts must be accomplished to ensure 
continued safety.
    No change has been made to the final rule in regard to these 
concerns.

Conclusion

    We have carefully reviewed the available data, including the 
comments received, and determined that air safety and the public 
interest require adopting the AD with the changes described previously. 
We have determined that these changes will neither increase the 
economic burden on any operator nor increase the scope of the AD.

Costs of Compliance

    This AD affects about 689 airplanes of U.S. registry. The required 
actions take about 1 work hour per airplane, at an average labor rate 
of $80 per work hour. Required parts will be supplied from operator 
stock. Based on these figures, the estimated cost of the AD for U.S. 
operators is $55,120, or $80 per airplane.

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.
    We are 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

    We have determined that 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;
    (2) Is not a ``significant rule'' under DOT Regulatory Policies and 
Procedures (44 FR 11034, February 26, 1979); and
    (3) Will not have a significant economic impact, positive or 
negative, on a substantial number of small entities under the criteria 
of the Regulatory Flexibility Act.

[[Page 7563]]

    We prepared a regulatory evaluation of the estimated costs to 
comply with this AD and placed it in the AD docket. See the ADDRESSES 
section for a location to examine the regulatory evaluation.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

0
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 Federal Aviation Administration (FAA) amends Sec.  39.13 by 
adding the following new airworthiness directive (AD):

2007-04-09 Empresa Brasileira De Aeronautica S.A. (Embraer): 
Amendment 39-14941. FAA-2006-25892; Directorate Identifier 2006-NM-
120-AD.

Effective Date

    (a) This AD becomes effective March 23, 2007.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to all EMBRAER Model EMB-135BJ, -135ER, -
135KE, -135KL, and -135LR airplanes; and Model EMB-145, -145ER, -
145MR, -145LR, -145XR, -145MP, and -145EP airplanes; certificated in 
any category.

Unsafe Condition

    (d) This AD results from reports of smoke on the flight deck 
caused by damage from poor electrical contact due to loosening of 
the attaching hardware of the power cables of certain windshield 
temperature controllers. We are issuing this AD to prevent 
overheating of the power cable terminals of the windshield 
temperature controllers, which could result in smoke on the flight 
deck.

Compliance

    (e) You are responsible for having the actions required by this 
AD performed within the compliance times specified, unless the 
actions have already been done.

Inspection of Part Number (P/N) of Controller

    (f) Within 5,000 flight hours after the effective date of this 
AD, inspect to determine the part number of the left- and right-hand 
windshield temperature controllers. A review of airplane maintenance 
records is acceptable in lieu of this inspection if the part number 
of the subject controller can be conclusively determined from that 
review. If any windshield temperature controller is found to have a 
part number other than Goodrich P/N 3801D2( ), no further action is 
required by this AD for that controller.

Replacement of Attaching Hardware, Further Inspection, and Corrective 
Actions

    (g) Before further flight after performing the inspection 
required by paragraph (f) of this AD, for all windshield temperature 
controllers having Goodrich P/N 3801D2( ) or any controller for 
which the part number cannot be conclusively determined: Replace the 
attaching hardware of the power cable terminals of the controllers 
with new, improved attaching hardware having new part numbers. 
Concurrently, perform a detailed inspection for signs of melting or 
damage of the plastic crimping ring, cable insulation, or terminals 
of the power cables, and, before further flight, perform applicable 
corrective actions. Perform all the actions in accordance with the 
Accomplishment Instructions of EMBRAER Service Bulletin 145-30-0043, 
Revision 02, dated May 25, 2006; or EMBRAER Service Bulletin 145LEG-
30-0013, dated June 28, 2005; as applicable.

Credit for Actions Accomplished Using Previous Issue of Service 
Bulletin

    (h) Actions accomplished before the effective date of this AD in 
accordance with EMBRAER Service Bulletin 145-30-0043, dated June 28, 
2005; or Revision 01, dated April 7, 2006; are considered acceptable 
for compliance with the applicable corresponding actions required by 
this AD.

Alternative Methods of Compliance (AMOCs)

    (i)(1) The Manager, International Branch, ANM-116, Transport 
Airplane Directorate, FAA, has the authority to approve AMOCs for 
this AD, if requested in accordance with the procedures found in 14 
FR 39.19.
    (2) Before using any AMOC approved in accordance with Sec.  
39.19 on any airplane to which the AMOC applies, notify the 
appropriate principal inspector in the FAA Flight Standards 
Certificate Holding District Office.

Related Information

    (j) Brazilian airworthiness directive 2006-05-01, effective May 
23, 2006, also addresses the subject of this AD.

Material Incorporated by Reference

    (k) You must use EMBRAER Service Bulletin 145-30-0043, Revision 
02, dated May 25, 2006; or EMBRAER Service Bulletin 145LEG-30-0013, 
dated June 28, 2005; as applicable; to perform the actions that are 
required by this AD, unless the AD specifies otherwise. The Director 
of the Federal Register approved the incorporation by reference of 
these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 
51. Contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. 
Box 343--CEP 12.225, Sao Jose dos Campos--SP, Brazil, for a copy of 
this service information. You may review copies at the FAA, 
Transport Airplane Directorate, 1601 Lind Avenue, S.W., Renton, 
Washington; or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at 
NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on February 6, 2007.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
 [FR Doc. E7-2510 Filed 2-15-07; 8:45 am]
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