[Federal Register Volume 62, Number 85 (Friday, May 2, 1997)]
[Proposed Rules]
[Pages 24288-24299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11205]
[[Page 24287]]
_______________________________________________________________________
Part VII
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 11, 21, and 25
Type Certification Procedures for Changed Products; Proposed Rule
Federal Register / Vol. 62, No. 85 / Friday, May 2, 1997 / Proposed
Rules
[[Page 24288]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 11, 21, and 25
[Docket No. 28903; Notice No. 97-7]
RIN 2120-AF68
Type Certification Procedures for Changed Products
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes to amend the procedural regulations for
the certification of changes to type certificated products. The
amendments are need to address the trends toward fewer products that
are of completely new design and more products with repeated changes of
previously approved designs. Safety would be enhanced by applying the
latest airworthiness standards, to the greatest extent practicable, for
the certification of design changes of aircraft engines, and
propellers.
DATES: Comments must be received on or before September 2, 1997.
ADDRESSES: Comments on this proposal must be mailed in triplicate to:
Federal Aviation Administration, Office of the Chief Counsel,
Attention: Rules Docket (AGC-200, Docket No. 28903, 800 Independence
Avenue SW, Washington, DC 20591, or delivered in person to room 915G at
the same address. Comments may also be submitted electronically to the
following Internet address: [email protected] Comments submitted
must be marked: Docket No. 28903. Comments may be inspected in room
915G weekdays, except Federal holidays, between 8:30 am and 5:00 pm.
FOR FURTHER INFORMATION CONTACT: Lyle C. Davis, Certification
Procedures Branch (AIR-110), Aircraft Certification Service, Federal
Aviation Administration, 800 Independence Avenue, SW, Washington, DC
20591, telephone (202) 267-9588.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Commenters should identify the regulatory docket or notice
number and submit comments in triplicate to the Rules Docket at the
address specified above. All comments will be considered by the
Administrator before action on the proposed rulemaking is taken. The
proposals contained in this notice may be changed in light of the
comments received. All comments will be available in the Rules Docket,
both before and after the closing date for comments, for examination by
interested persons. A report summarizing each substantive public
contact with Federal Aviation Administration (FAA) personnel concerning
this rulemaking will be filed with the docket. Commenters wishing the
FAA to acknowledge receipt of their comments must submit with those
comments a self-addressed, stamped postcard on which the following
statement is made: ``Comments to Docket No 28903.'' The postcard will
be dated and time stamped and returned to the commenter.
Availability of NPRMs
An electronic copy of this document may be downloaded using a
modern and suitable communications software from the FAA regulations
section of the Fedworld electronic bulletin board service (telephone:
703-321-3339), the Federal Register's electronic bulletin board service
(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory
Committee Bulletin Board service (telephone: 202-267-5948).
Internet users may reach the FAA's web page at http://www.faa.gov
or the Federal Register's web page at http://www.access.gpo.gov/
su__docs for access to recently published rulemaking documents.
Any person may obtain a copy of this NPRM 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. Communications must identify the notice number or docket
number of this NPRM.
Persons interested in being placed on the mailing list for future
NPRM's should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, that
describes the application procedure.
Background
Statement of the Problem
Under the regulations in effect prior to the early 1940's, an
applicant for a change product, such as an alternate engine
installation, was required to apply for a new type certificate and
comply with the standards current at the time of application. This did
not present an unreasonable burden on the applicant then because the
airworthiness standards did not change appreciably over short periods
of time. That is, the standards current at the time of an application
were essentially the same as those with which the original product had
to comply. Since the early 1940's, however, rapid changes in technology
have resulted in significant changes in the airworthiness standards
over relatively short periods of time. Therefore, an applicant for an
extensive change to a type certificated product, which required a new
type certificate, could be faced with complying with safety standards
that varied considerably from the standards for the original product.
To relieve this situation, the FAA's predecessor agency required an
application for a new type certificate only if the change was quite
extensive.
In recent years, a trend has developed towards fewer products that
are of such significantly new design that a new type certificate is
required. In many cases, over a period of time, a series of changes
could permissively be made to a product by amending its original type
certificate such that the resultant model is substantially different
from the original model. Although each changed product in such a series
of changes may differ little from its immediate predecessor, the
changes could collectively result in a product with substantial
differences from the original product. As a result, many newly
manufactured aeronautical products are not being required to comply
with the more recent airworthiness standards. The procedural
regulations need to be changed to correspond with this trend toward
fewer new type certificates.
History of Type Certification
Title 49 U.S.C. Sec. 44701 authorizes the FAA Administrator to
promote safety of flight of civil aircraft in air commerce by
prescribing and revising minimum standards governing the design and
construction of aircraft, aircraft engines, and propellers as may be
required in the interest of safety, and such minimum standards
governing appliances as may be required in the interest of safety.
Under 49 U.S.C. Sec. 44704, the FAA may issue type certificates,
including supplemental type certificates, for aircraft, aircraft
engines, and propellers. The FAA may prescribe in any such certificates
the duration of the certificate, and the terms, conditions, and
limitations as required in the interest of safety.
The general certification procedures for products (aircraft,
aircraft engines, and propellers) and parts are set forth in 14 CFR
part 21 (part 21). As described
[[Page 24289]]
in Secs. 21.13 and 21.15, any interested person may apply for a type
certificate by submitting an application accompanied by the required
documentation to the FAA. Sections 21.16 through 21.21, 21.101, and
21.115 specify certain regulations and designate the applicable
airworthiness standards for type certification of both new and changed
products.
Section 21.17 designates the applicable regulations for the
issuance of type certificates. In order to be issued a type
certificate, the applicant must show that the product complies with the
airworthiness standards contained in one of the following 14 CFR parts,
as applicable; part 23 for normal, utility, acrobatic, and commuter
category airplanes; part 25 for transport category airplanes; part 27
for normal category rotorcraft; part 29 for transport category
rotorcraft; part 31 for manned free balloons; part 33 for aircraft
engines; part 35 for propellers; and part 21 (Sec. 21.17 (b) and (f))
for special classes of aircraft and primary category aircraft
respectively.
The airworthiness standards in these parts of the regulations may
be amended as needed to reflect continually changing technology,
correct design deficiencies, and provide for safety enhancements. An
applicant for a type certificate is required under current Sec. 21.17,
with certain exceptions, to show that the product meets the applicable
airworthiness standards that are in effect at the date of the
application. The exceptions include instances in which the
Administrator specifies otherwise or in which the applicant either
elects or is required under specific circumstances to comply with later
effective amendments. In addition, the Administrator may prescribe
special conditions.
Under Sec. 21.16, special conditions may be prescribed if the
Administrator finds that the existing airworthiness standards do not
contain adequate or appropriate safety standards because of novel or
unusual design features of the product to be type certificated relative
to the design features considered in the applicable airworthiness
standards. Also, under Sec. 21.21(b)(1), if any applicable
airworthiness standards are not complied with, an applicant may
nevertheless be entitled to a type certificate if the Administrator
finds that those standards not complied with are compensated for by
factors that provide an equivalent level of safety. Such determinations
are commonly referred to as ``equivalent safety findings'' and are made
with respect to the level of safety intended by the applicable
standard. In addition, under Sec. 21.21(b)(2), an applicant may be
denied a type certificate if the Administrator finds an unsafe feature
or characteristic of the aircraft for the category in which type
certification is requested, even though the aircraft may comply fully
with the applicable airworthiness standards.
Taken together Secs. 21.16, 21.17, and 21.21 designate the
applicable airworthiness regulations for type certification and
accommodate those circumstances when the airworthiness standards do not
adequately cover the design features of a product. These sections
recognize and balance the following four important considerations:
(1) The obligation of the FAA, under 49 U.S.C. Sec. 44701, to keep
the airworthiness standards required in the interest of safety, (i.e.,
parts 23, 25, 27, 29, 31, 33 and 35) as current as practicable;
(2) The type certificate applicant needs to know, early in a
certification program, what the applicable airworthiness standards will
be in order to finalize the detailed design of its product and to
enable the applicant to make reasonable performance guarantees to its
potential customers;
(3) In the interest of safety, rapid technological advances
presently being made by the civil aircraft industry necessitate that
the FAA be able to issue special conditions to address novel or unusual
design features that it has, as yet, not had an opportunity to address
in the airworthiness standards through the general rulemaking process,
or to address novel or unusual design features that were not considered
by the appropriate airworthiness standards applicable to changes to
type certificates; and
(4) To allow flexibility in design. Wherever possible, the
airworthiness standards of 14 CFR Chapter 1, subchapter C, are
intentionally objective in nature, and the procedural regulations
permit design changes over the operational life of a product.
Originally, the FAA would issue special conditions informally as an
interpretation of the ``no unsafe feature or characteristic''
regulations; however, in 1967, the FAA formalized the process with the
adoption of Sec. 21.16. As provided in that section, special conditions
are issued as regulations in accordance with public comment provisions
of 14 CFR part 11 (part 11). The adoption of Sec. 21.16 extended the
special condition process to include aircraft engines and propellers.
The provision in Sec. 21.21(b)(2), that a type certificate would be
issued for an aircraft only if no unsafe feature or characteristic
existed, remained unchanged.
The phrase ``novel or unusual'' is used in describing design
features for the issuance of special conditions under the provisions of
Sec. 21.16. These design features involve a state of technology not
considered for the applicable airworthiness standards at the time they
were written; in some areas, the state of the regulations may lag the
state of the art of new designs. This disparity is due to both the
rapidity in which the state of the art is advancing in civil
aeronautical design and the need to develop a sufficient experience
base with new technology before proceeding with general rulemaking.
Therefore, there may be instances in which special conditions are
required for design features considered ``state of the art'' in the
aircraft industry. Conversely, many new design features that might be
thought of as ``novel or unusual'' in the context of the product's
original certification basis may already be covered by existing
regulations, thereby obviating the need to issue special conditions.
This fact is recognized in existing Sec. 21.101(b)(1).
For example, in 1980, the holder of a small airplane type
certificate who installed turboprop engines in place of reciprocating
engines did so by complying with appropriate later regulations. Because
appropriate regulations were available for the installation of
turboprop engines, special conditions were not issued for installation
of the engines. These changes were made through the FAA issuing an
amendment to the type certificate originally issued in 1964. The
airworthiness regulations, part 23, were changed to accommodate
turboprop engines in 1969.
Special conditions are not issued for general upgrading of the
applicable airworthiness standards to achieve a higher level of safety.
Whenever the FAA concludes that a compelling need exists for a higher
level of safety in type designs, rulemaking is proposed in accordance
with the general rulemaking procedures of part 11, the Administrative
Procedure Act, and Executive Order 12866. Finally, Secs. 23.2, 25.2,
27.2, and 29.2 provide retroactive regulations in the airworthiness
standards. A complete statement of the FAA intent with respect to the
application of special conditions is found in the preamble to amendment
51 to Part 21 (45 FR 60154, September 11, 1980). That intent is in no
way changed by the proposals herein.
Sometimes new airworthiness standards contain provisions that, in
the interest of safety, should be applied
[[Page 24290]]
retroactively to existing aircraft. Typically this is accomplished by
proposing changes to 14 CFR parts 121 and 135, and sometimes part 91,
through rulemaking procedures.
History of Type Certification of Changes
Part 21 designates the applicable airworthiness standards for
changed products. Section 21.19 describes the circumstances in which an
applicant for type certification of a changed product must apply for a
new type certificate. Prior to the early 1940's, an applicant for a
changed product, such as an airplane with an alternate engine
installation, was required to apply for a new type certificate. The
regulations in effect prior to the early 1940's required an applicant
for a changed product to apply for a new type certificate for a change
such as an alternate engine installation. When a new type certificate
was required, the applicant had to comply with the standards current at
the time of application. This did not present an unreasonable burden on
the applicant then because the airworthiness standards did not change
appreciably over a period of time. The then current standards were,
therefore, essentially the same as those with which the original
product had to comply. Later, more rapid changes in technology resulted
in significant changes in the airworthiness standards over relatively
short periods of time. An applicant for a type certificate for a
changed product could thus be faced with complying with airworthiness
standards that varied considerably from those with which the original
product complied. In some instances, the differences in standards could
be so great that an applicant would be discouraged from making any
changes, including changes that would, in themselves, contribute to the
safety of the product. To relieve this situation, by the early 1940's,
an application for a new type certificate was required only if the
change was extensive.
Section 21.19(a) requires a new type certificate when a change is
considered so extensive that a substantially complete investigation of
compliance with the regulations is required. In addition, Secs. 21.19
(b), (c), and (d) provide specific types of changes that require an
application for a new type certificate because those types had already
been determined to be substantial per Sec. 21.19(a). For a normal,
utility, acrobatic, commuter, or transport category aircraft, paragraph
(b) requires a new aircraft type certificate if the proposed change is
(1) in the number of engines or rotors, or (2) to engines or rotors
using different principles of propulsion or to rotors using different
principles of operation. Similarly, paragraph (c) requires a new engine
type certificate if the proposed change is in the engine's principle of
operation, and paragraph (d) requires a new propeller type certificate
if the proposed change is in the number of blades or in the principle
of pitch change operation.
The basis for Sec. 21.19(b)(1) originated in the early 1950's
following the issuance of an amended type certificate to an applicant
who altered a popular single-engine, four-passenger, light airplane
into a twin-engine model. Although that conversion was approved by an
amendment to the original type certificate, the agency recognized that
the conversion from one to two engines added considerable complexity to
the airplane and greatly affected its handling characteristics.
Therefore, the predecessor of Sec. 21.19(b)(1) was adopted requiring a
new type certificate for a change in the number of engines or rotors.
The regulatory language was broad enough in scope to include any change
in the number of engines or rotors whether such changes would simplify
or add complexity to the type design.
The FAA does not require an applicant to apply for a new type
certificate to add small auxiliary engines to an aircraft. In the
1960's with the development of small turbojet engines to be used as
auxiliary engines, the FAA defined a jet engine that develops less than
50 percent of the static thrust developed by one of the primary
propulsion engines as an auxiliary engine. The FAA considers the
``number of engines'' as used in Sec. 21.19(b)(1) to refer to the
number of primary propulsion engines and not to any auxiliary engines
to be installed. The FAA has issued a large number of exemptions from
the regulation concerning a change in the number of engines.
Prior to 1957, predecessors of current Sec. 21.19(b)(2) stated that
an applicant must make a new application for type certificate if the
proposed change was to engines employing different principles of
operation or propulsion. This meant that an applicant desiring to
replace reciprocating engines with the same number of turbopropeller
engines would have to apply for a new type certificate. During that
period, it was recognized that considerable advances in safety,
reliability, and passenger comfort could be realized by replacing
reciprocating engines in certain transport category airplanes with
turbopropeller engines. In order to encourage such beneficial changes,
the reference to different principles of operation was deleted in 1957
for transport category airplanes. As a result, an applicant may be
granted approval for a conversion of this nature without applying for a
new type certificate providing the applicant complies with certain
later standards applicable to turbine-powered airplanes. In the
broadest sense, all powered airplanes achieve propulsion by
accelerating a mass of air and/or exhaust gases. In the narrower
context of Sec. 21.19(b)(2), however, ``principles of propulsion''
means propeller-driven versus turbojet.
Section 21.19(b)(2) also states that an applicant must make a new
application for a type certificate if the proposed change is to rotors
employing different principles of operation or propulsion. The FAA is
not aware of any instance in which this specific section was the basis
for requiring an application for a new type certificate; any change of
this nature, together with all related changes, would have been so
extensive that a new type certificate would have been required under
the provisions of Sec. 21.19(a).
The FAA has never granted any exemptions from the regulation for a
new aircraft type certificate for a change to engines or rotors using
different principles of propulsion. Similarly, no exemptions have been
granted from the engine or propeller type certificate regulations for
changes involving the principle of engine operation, for changes in the
number of propeller blades, or for changes in the principle of pitch
change operation.
Under Sec. 21.101, the original type certificate may be amended to
include changes to the product when the applicant demonstrates that it
complies with the same airworthiness standards as the original product
plus appropriate special conditions, and the change does not warrant
making a new application for a type certificate under Sec. 21.19.
Because Sec. 21.101 (a) and (b) are incorporated by reference in
Sec. 21.115, these procedures are equally applicable to persons
applying for supplemental type certificates.
Section 21.101(a) requires that an applicant for a change to a type
certificate must comply with either the regulations incorporated by
reference in the type certificate or the applicable regulations in
effect at the date of application, plus any other amendments the
Administrator finds to be directly related. The ``regulations
incorporated by reference'' are the regulations that were the
certification basis for the original issuance of the type certificate.
They are frequently referred to as the ``original certification
basis.''
[[Page 24291]]
If an applicant chooses to show compliance with the regulations in
effect at the date of the application for the change, the applicant
must also comply with any other amendments that are directly related.
In some instances, a regulation may be amended to become less
stringent, but a related regulation may become more stringent. In a
situation of this nature, the applicant must also comply with the
related compensating regulation as well. Current Sec. 21.101(a) does
not otherwise require compliance with later amendments and does not
grant the Administrator the authority to require compliance with later
regulations as a method to increase the level of safety of a product.
An applicant for a change to a type certificated product is
responsible for showing that the entire product, as altered, not just
that the change itself, complies with the certification basis, because
areas that have not been changed may be affected by the change.
However, the applicant need not resubstantiate those areas of the
product where the original substantiation has not been invalidated by
the change.
Section 21.101(b) pertains to changes for which the regulations
incorporated by reference do not provide adequate standards. Such
changes generally involve features that were not envisaged at the time
the regulations incorporated by reference were adopted and are,
therefore, novel or unusual with respect to those regulations. For
these changes, the applicant must comply with regulations in effect at
the date of application for the change as found necessary to provide a
level of safety equal to that established by the regulations
incorporated by reference. In this case, the applicant is not able to
select any amendment of the regulation it chooses between those
incorporated by reference and those in existence at the date of the
application. When regulations in effect at the date of application for
the change fail to provide adequate standards, the applicant must
comply with special conditions to provide a level of safety equal to
that established by the regulations incorporated by reference.
Trends in Type Certification of Changes
In recent years, a trend has developed toward fewer products that
are of completely new designs, which would require new type
certificates. Over a period of time, a series of changes to an original
product may have been made so that the current model is substantially
different from the original model. Although each changed product in
such a series of changes may differ little from its immediate
predecessor, the changes could result collectively in a product with
substantial differences from the original product.
For example, one model originally manufactured as a normal category
airplane with two reciprocating engines has been changed through a
series of alterations to incorporate turbopropeller engines, a
stretched and heightened fuselage, a tricycle landing gear, a modified
wing planform and a 42 percent increase in maximum takeoff weight. In
this particular case, the majority of changes were made through the
FAA's issuing supplemental type certificates to modifiers other than
type certificate holder. However, the type certificate holder could
have made the same incremental changes without applying for a new type
certificate each time.
In another instance, a type certificate holder effected significant
changes in the design of a turbojet transport category airplane without
obtaining a new type certificate by making a series of changes to its
existing type certificate. Each incremental change, by itself, was
determined not to be so extensive as to require a new type certificate
under Sec. 21.19(a). This airplane evolved into a configuration
approximately 40 percent greater in fuselage length and with a 92
percent greater maximum takeoff weight than the original model. These
changes, which have been incorporated into newly manufactured
airplanes, are possible because the FAA issued amendments to the type
certificate.
Another trend in manufacturing is to keep products in production
over several decades. Some currently manufactured transport category
airplanes have, for example, evolved from airplane models originally
type-certificated 25 years ago. This does not imply that those
airplanes are ``unsafe,'' because they do, in practice, have features
that address the intent of most of the current airworthiness standards.
However, current procedural regulations (part 21) do not require that
changed products comply with the current airworthiness standards.
The basic premise behind the FAA's current policies for the
procedures and airworthiness standards for type certification is that
the highest possible degree of safety in the public interest, should be
achieved by products being certificated at any given time. In dealing
with this premise, the FAA has had to continually weigh the desire for
the highest level of safety with the cost to the manufacturers,
operators, and traveling public for achieving that highest possible
degree of safety in the public interest. This balance between safety
and cost has been exacerbated by the introduction of highly
sophisticated products whose development and manufacture have become
enormously expensive. This is one reason why, as stated before,
manufacturers choose to produce more and more changed products that, by
the FAA regulations, are not required to have new type certificates.
The FAA maintains that the issue should not be whether a product is
produced under a new type certificate or an amended one. The issue is
whether or not the level of safety of the product, embodied in the
airworthiness standards it complies with, is as high as practicable. In
addition, to require areas unaffected by the change to comply with the
later standards is not only unreasonably costly but may reduce the
level of safety of the product due to unforeseen developmental
problems. The manufacturers are constantly issuing service information
that describes approved alterations that users may make to improve the
level of safety of the product. Thus, it is common place that products
in service today possess a level of safety significantly greater than
that embodied in their certification basis.
When establishing the highest practicable level of safety for a
changed product, the FAA has determined that it is appropriate to
assess the service history of a product as well as the later
airworthiness standards. It makes little sense to mandate changes to
well understood designs, whose service experience has been acceptable,
merely to comply with new standards. The clear exception to this
premise is where the new standards were issued to address a deficiency
in the design in question or where the service experience is not
applicable to the new standards. This consideration of airworthiness
standards and service experience should form the basis for developing
the ceritifcaiton basis for a change in a product.
It can be argued, for consistency, that new airworthiness standards
should apply across the board to the entire aircraft fleet; however,
application of new standards would not be practicable in every case.
Although newly designed aircraft are required to meet all applicable
current airworthiness standards, in many cases a product being changed,
for which only an amended type certificate is needed, is required to
meet only the standards referenced in the original type certificate.
Thus, there may be a considerable difference between the standards
required for a new product and for a product undergoing change. A
[[Page 24292]]
product undergoing change that met the applicable standards at the time
of original type certification is not currently required to meet more
current airworthiness standards except in those instances where
retroactive regulations have been issued or the applicant elects to
comply with later amendments.
In recent rulemakings, the FAA has carefully considered whether
corresponding retroactive action is warranted whenever a change to the
airworthiness standards for type certification was proposed. In those
cases where it has been deemed that a safety benefit commensurate with
the cost could be achieved, the rulemaking has also included a proposal
to change the relevant operating regulations to require newly
manufactured airplanes and/or airplanes in service to comply
retroactively with the new standards, regardless of whether such
compliance would be required as a condition of type certification. For
instance, some of the regulations implemented in recent revisions to
part 25 for newly manufactured airplanes were required for the existing
fleet and were implemented in the operating regulations, such as part
121.
In 1965, the FAA granted an exemption from the provisions of
Sec. 21.19(b)(1) to permit conversion of a four-engine amphibian to a
twin-engine configuration without the applicant applying for a new type
certificate. During the 1980's three applicants petitioned for
exemptions from the above regulations so they could convert Boeing 727
airplanes from the original three-engine configuration to ones with two
engines without having to apply for new type certificates. Another
applicant petitioned for a similar exemption to replace the four
engines of a Lockheed 1329 Jetstar aircraft with two engines of more
recent vintage. The FAA granted each exemption with the condition that
the petitioner comply with the provisions of then current part 25 in
all areas, systems, components, equipment, or appliances affected by
the conversion.
The FAA also granted a number of exemptions that permitted
increasing the number of engines without the need for the applicants to
obtain new type certificates. In 1985, an applicant received an
exemption to replace two reciprocating engines in Grumman Albatross
amphibians with four turbo propeller engines without having to obtain a
new type certificate. In granting the exemption, the FAA concurred that
the alteration should improve the Albatross by increasing safety,
increasing power plant reliability, and improving overall aircraft
efficiency. The exemption noted that compliance with Sec. 21.19(b)(1)
would have required changes to some basic systems that had provided
satisfactory performance for many years and had contributed to the
safety record of those airplanes. Applying then-current regulations to
components and systems not affected by the installation of the four
engines would have been time consuming and costly, and would not
necessarily have contributed any safety benefits. As with the
exemptions to reduce the number of engines, this exemption was granted
with the condition that the petitioner comply with the provisions of
then current part 25 in all areas, systems, components, equipment, or
appliances affected by the conversion.
A similar exemptions also granted in 1989 to enable an applicant to
increase the number of engines from one to two in certain Bel 206
series rotorcraft. The petitioner cited the increased safety afforded
by a twin-engine configuration in the event a failure occurred during
hover, and also the enhanced altitude performance. As a condition of
the grant of exemption, the applicant was required to show that the
altered rotorcraft complied with the standards of part 27 in effect at
the date of application for the change for all areas, systems,
equipment, or appliances that were changed or significantly affected by
the change.
These exemptions point out an important feature that has been
included in this proposed rulemaking. The number of engines is not, in
itself, an appropriate criterion for requiring an application for a new
type certificate as long as the type design complies with the
regulations effective at the date of the application for the change in
those areas changed or affected by the change.
Recent FAA Actions
Apart from safety considerations, there has also been a growing
international concern that some changed products are given an unfair
competitive advantage over those that are of new design and must comply
with later standards.
Because of these concerns, the FAA participated in the activities
of an ad hoc committee sponsored by the Aerospace Industries
Association of America, known as the International Certification
Procedures Task Force (ICPTF). In addition to the FAA, this task force
included representatives of the European Joint Aviation Authorities,
Transport Canada, Aerospace Industries Association of America, Air
Transport Association of America, General Aviation Manufacturers
Association, International Air Transport Association, Association
Europeenne des Constructeurs de Materiel Aerospatial, Aerospace
Industries Association of Canada, Air Line Pilots Association, and
Association of European Airlines.
The ICPTF was organized to develop the philosophy and the necessary
regulatory text and advisory material that would provide for the
implementation of later regulatory amendments applicable to
aeronautical products undergoing change, products in production, and
products in service. The specific tasks of the ICPTF were: (1) Develop
the type certification philosophy for changes to aeronautical products,
including revisions to the regulations and associated advisory
material; (2) Develop the necessary guidance information on the use of
``service experience'' in the type certification process; and (3)
Develop a method to evaluate the safety impact and cost effectiveness
of revisions to the airworthiness standards.
In order to develop future proposed safety standards by using a
system-type analysis, the FAA chartered a committee of safety experts,
known as the Aviation Rulemaking Advisory Committee (ARAC), on February
5, 1991. This committee established the International Certification
Procedures Working Group, which consists of the original ad hoc
committee formerly known as the ICPTF. The task assigned to this
working group was to present to ARAC various proposals pursuant to its
area of expertise. ARAC then had the option to submit these
recommendations to the FAA, and the FAA would decide whether or not to
issue a proposal based on the ARAC recommendations.
The Working Group presented to ARAC an NPRM and associated advisory
material concerning the type certification procedures for changes to
aeronautical products, newly manufactured products, and products
already in service. ARAC, in turn, submitted these documents as
recommendations to the FAA. The FAA recognizes the difficult task the
working group undertook in the effort to address the issues in this
proposed rule and in the advisory material. Much of the work done
within the working group could not have been accomplished without the
assistance of working group members representing the aviation
community. The rulemaking proposed by the FAA in this notice reflects
the ARAC recommendations in the type certification procedures for
changed products with only minor changes. Similar proposed changes have
been published by the Joint Aviation Authorities.
[[Page 24293]]
FAA's Proposed Policy on Changed Products
The FAA intends to require that applicants for changes to type
certificated products show compliance with the latest amendments to the
airworthiness standards that are applicable to the product being
changed. Exceptions to requiring a showing of compliance with the later
amendments would be provided to accommodate variations in the kinds of
type certificated products, of changes to these type certificated
products, and revisions of the airworthiness standards. These
exceptions would permit compliance with regulations issued prior to the
regulations in effect at the date of the application for the change.
This proposed rulemaking would amend the type certification
procedures for changes to type certificated products to bring the
certification basis for changed products and for newly type
certificated products closer together. The intent is to ensure that
when an essentially new product is developed through a series of
changes, regardless of the extent of each change, the final product
achieves a level of safety similar to that of a comparable new product.
This concept will be tempered with the knowledge that a good design
does not become unsafe as soon as a new regulation has been published.
Some differences may be acceptable between the certification basis
for a product undergoing a change and the current regulations that
would be applicable if a new product was being type certificated. This
acceptance would be based on whether there is a defined safety issue
involved in the specific product.
The FAA is already encouraging applicants of certain type
certificated products undergoing alterations to comply with later
amendments of the airworthiness standards. By this rulemaking, the FAA
proposes to require all proposed changes for all type certificated
products to comply with later amendments of the airworthiness
standards. The long term result of this approach will be that an
amended type certificate will have a certification basis that provides
a similar level of safety to that provided by the certification basis
of a new type certificate for the same product.
The FAA will issue an advisory circular based on this rulemaking.
This advisory circular will provide guidance on determining the
certification basis for changed aeronautical products, including
identifying the conditions under which it will be necessary to apply
for a new type certificate. By separate notice, in this issue of the
Federal Register, the FAA is also inviting interested persons to
comment on the proposed advisory circular. The FAA will consider
comments from this notice and comments received on the advisory
circular before taking any final action on either.
Discussion of the Proposed Rulemaking
Sections 11.11, 21.19, 21.101, 21.115, and 25.2 would be amended as
follows to implement the policy discussed above in relation to changes
to products:
Section 11.11
Current Sec. 11.11 lists special conditions required as prescribed
under Sec. 21.101(b)(2) as an FAA record that is maintained in current
docket form in the Office of the Chief Counsel. To remain consistent
with the proposed changes to Sec. 21.101, described later, it is
necessary to amend Sec. 11.11 to refer to Sec. 21.101(c) instead of
Sec. 21.101(b)(2). This would not be a substantive change.
Section 21.19
Current Sec. 21.19(a) states that any person who proposes to change
a product must make a new application for a type certificate if the
Administrator finds that the proposed change in design, configuration,
power, power limitation (engines), speed limitations (engines), or
weight is so extensive that a substantially complete investigation of
compliance with the applicable regulations is required. This sentence
has caused confusion because it covers several types of changes for all
products--airplanes, rotorcraft, aircraft engines, and propellers. In
addition, current paragraph (b), (c), and (d) list other specific types
of changes that mandate a new application for a type certificate. Only
the general language of current paragraph (a) would be incorporated
into the new Sec. 21.19, while the previously listed specific changes
would be subject to case-specific evaluations to determine whether they
are substantial. Application of Sec. 21.19 would depend upon an
evaluation of whether the proposed change in ``design, power, thrust,
or weight'' would necessitate a substantially complete investigation of
the compliance of the changed product. Each of the following airplane
design changes, considered alone, could typically be regarded as
substantial design change:
(1) Change from a high wing to a low wing airplane, or vice versa;
(2) Change of empennage configuration for larger airplanes
(cruciform vs `T' or `V' tail);
(3) Complete repositioning of engines (tail to wing, etc.); and
(4) An increase in airplane design complexity resulting from an
increase in the number of engines.
Currently Sec. 21.19(b) describes specific changes for which the
applicant must apply for a new aircraft type certificate. These include
(1) changes in the number of engines or rotors; and (2) changes to
engines or rotors using different principles of propulsion or to rotors
using different principles of operation. Historically, these types of
changes have fallen into one of two categories--those that were not
extensive enough to require a new application for a type certificate,
as evidenced by the large number of exemptions that have been granted
over the past quarter century, or those that were so extensive that a
new application was required because a complete investigation of
compliance is required. Accordingly, the provisions of current
Sec. 21.19(b) are not needed and are not included in this proposal. The
exemptions that have been granted from current Sec. 21.19(b) have
typically required that those areas, systems, components, equipment,
and appliances that are changed or significantly affected by the change
must comply with the applicable regulations in effect at the date of
the application for that change. This requirement would be embodied in
proposed Sec. 21.101, which would generally require that an applicant
for a change to a type certificate must comply with the regulations in
effect at the date of the application for that change, with an
exception, however, that those areas, systems, components, equipment,
and appliances not affected by the change could continue to comply with
the regulations incorporated in the reference type certification basis.
Accordingly, this proposed amendment would be consistent with the
exemptions that have been granted on changes in the number of engines.
The need for requiring a new application for a type certificate would
be alleviated in many instances by the proposed changes to Sec. 21.101.
Current Sec. 21.19(c) describes another specific change in which
the applicant must apply for a new aircraft engine type certificate.
This change is in the principle of operation. Also, current
Sec. 21.19(d) describes specific changes in which the applicant must
apply for a new propeller type certificate. These changes are in the
number of blades or principle of pitch change operation. Invariably,
the type of changes set forth in both of these sections are so
extensive that a new application would be required in any event because
a
[[Page 24294]]
complete investigation of compliance is required. Accordingly, this
proposal would delete these types of changes from Sec. 21.19. Under
proposed Sec. 21.101, with certain exceptions, these types of changes
and all areas, systems, components, equipment, and appliances affected
by the changes would have to comply with the regulations in effect at
the date of application for the change to the type certificate.
Section 21.101
Current Sec. 21.101(a) states that if a person applies for a change
in a type certificate, the product must comply with either the
regulations referenced in the type certificate or the applicable
regulations in effect at the date of the application for the change, if
elected by the applicant, plus any other amendments the Administrator
finds to be directly related.
Current paragraph (b) addresses novel or unusual design features
where the Administrator finds that the regulations incorporated by
reference in the type certificate do not provide adequate standards. In
this case the applicant must comply with the regulations in effect at
the date of the application for the change and any necessary special
conditions ``to provide a level of safety equal to that established by
the regulations incorporated by reference in the type certificate for
the product.'' This means that the level of safety must be at least
equal to the level of safety that was required by the regulations
referenced in the type certificate.
To ensure that the products meet the latest airworthiness standards
wherever practicable, proposed Sec. 21.101 would specify that, with
certain exceptions, the applicant for a change must comply with the
applicable regulations in effect at the date of the application for the
change. The intent of this proposal is to apply the applicable
regulations in effect at the date of the application to those areas,
systems, components, equipment, and appliances affected by the change.
For those areas, systems, components, equipment, and appliances not
affected by the change, continued compliance with the regulations
incorporated by reference in the type certificate is considered
acceptable.
Section 21.101(a)
This proposed paragraph would require an applicant for a change to
a type certificate to comply with the applicable regulations in effect
at the date of the application for the change, also referred to as the
later regulations, and with parts 34 and 36.
Section 21.101(b)
This proposed paragraph would provide exceptions to the regulation
in proposed paragraph (a), permitting the applicant to comply with
earlier amendments to the regulations. A ``regulation'' as used herein
means individual paragraphs of the Federal Aviation Regulations or
predecessor regulations. When choosing the amendment level of a
regulation, all related regulations associated with that amendment
level would have to be included. The amendment level chosen would not
be allowed to predate either the existing basis or anything required by
the retroactive sections, Secs. 23.2, 25.2, 27.2, or 29.2. Design
changes vary in both complexity and magnitude so it is necessary for
each proposed change to be evaluated on a case by case basis, taking
into account previous changes and their certification basis. Individual
incremental changes may be modest; however, the cumulative effect can
result in a significant overall change. In this context, the following
factors should be considered: (1) the extent of the previous changes
and the extent to which later amendments have been addressed for these
individual changes; and (2) the extent of revisions to the
airworthiness standards from those of the original certification basis
of the model being changed. When an essentially new product is
developed, step by step, through a series of non-substantial design
changes, it should achieve a level of safety similar to that of a
comparable new product.
Substantial changes are addressed in Sec. 21.19. Those that are not
substantial will be either nonsignificant or significant. A small
weight increase or the installation of a flight management system is an
example of a non-significant change. The installation of a cargo door
is an example of a significant change. A change from a low wing to a
high wing is an example of a substantial change.
In evaluating a design and making the final determination of
nonsignificant or significant, under the exceptions provided for in
Sec. 21.101(b), the FAA would rely on documented engineering, safety,
and economic data. Any data submitted by the applicant should have the
same degree of thoroughness and engineering quality expected for
initial compliance with airworthiness standards.
Section 21.101(b)(1)
This proposed paragraph would provide the first exception to the
regulation in proposed paragraph (a), to show compliance with the later
applicable regulations. The proposed paragraph would state that the
applicant would be allowed to demonstrate compliance with earlier
regulations, but not earlier than the regulations incorporated in the
existing certification basis, if the effect of the proposed change is
not significant, taking into account earlier design changes and
previous updating of the type certification basis.
There may be concurrent significant and non-significant changes
made to a product. For example, there may be a small change in the
model of engines used at the same time large changes are made to the
airframe. Each part of the total change would be evaluated to determine
its significance on its own merit. It must be recognized, however, that
a number of related non-significant changes may collectively represent
a significant change to the product.
Section 21.101(b)(2)
This proposed paragraph would provide the second exception to the
regulation in proposed paragraph (a), to show compliance with the later
applicable regulations. The proposed paragraph would state that the
applicant may show compliance with earlier regulations for those areas,
systems, components, equipment, and appliances that are not affected by
the change.
The FAA recognizes that arbitrarily requiring compliance with later
regulations in areas, systems, components, equipment, and appliances
not affected by the change may cause redesign of components that have
an acceptable service record without an attendant improvement in
safety, or may have the counterproductive effect of discouraging any
changes at all, including those that would provide a notable
improvement in safety.
Section 21.101(b)(3)
This proposed paragraph would provide the third exception to the
regulation in proposed paragraph (a) to show compliance with the later
applicable regulations. If compliance with a regulation in effect at
the date of the application for the change would not contribute
materially to the level of safety of the product to be changed, or
would be impractical, the applicant may demonstrate compliance with an
earlier amendment of a regulation provided that the amended regulation
does not precede either the corresponding regulation in Secs. 23.2,
25.2, 27.2, or 29.2 of this chapter, or the corresponding regulation
incorporated by reference in the type certificate.
Compliance with the later amendment would be considered to ``not
materially
[[Page 24295]]
contribute to the level of safety'' if the level of safety achieved by
the existing design with the proposed design change would not be
enhanced by compliance with that later amendment. In demonstrating
this, the applicant would show that the level of safety achieved by the
existing design incorporating the proposed design change would achieve
a safety level similar to that reflected in the later amendment.
The factors that would be considered in comparing the level of
safety achieved by the existing design incorporating the proposed
design change with the level of safety achieved by compliance with the
later amendment would include: whether the product has compensating
design features; the extent that the service experience of the product
shows that the operational performance and reliability of the product
provides a level of safety similar to that of later amendments; and
whether compliance with a later amendment, notably when it necessitates
a redesign, would have an adverse effect on safety in terms of
operational performance and reliability.
Nothing would limit the future operation or transfer of a product
after a design change is approved with an older certification basis;
furthermore, the intent of this proposal is to establish certification
bases appropriate to the designs of the products and the designs of the
changes. Therefore, if an applicant for a design change is changing one
or two items of a product, and another applicant is making the same
change to 100 items of the same product, the applicant's design changes
should be certificated to the same basis.
Demonstrating that compliance with later regulations would not
materially contribute to the level of safety could necessitate analyses
of the safety features of the existing design and the proposed change,
and an analysis of the safety concerns addressed by the relevant
amendment. The evaluation may be accomplished using a numerical-
statistical approach, subject to the availability and relevance of
applicable data. In practice, engineering judgment, based on
scientific, rational, and reasoned analysis of the relevant data, would
be used in the development of this evaluation. The essentials of the
evaluation would involve:
a. A clear understanding of the regulatory change and what prompted
the change;
b. A detailed knowledge of the proposed design feature; and
c. A comprehensive review of the applicable service experience.
An applicant may be unable to show that compliance with the
original certification basis, together with the level of safety
demonstrated by the applicable service experience, provides a level of
safety similar to that of the later airworthiness regulations. If
compliance with the later airworthiness regulations would then involve
a design change, the benefits of such a redesign would be considered in
the light of any possible adverse effects of the redesign on safety.
An applicant for a change to a type certificate would not be
required to demonstrate that the changed product complies with a later
amendment to an airworthiness standard if the applicant shows that such
compliance would be ``impractical.'' Compliance with a later amendment
would be considered ``impractical'' when the applicant can establish
that the cost of the design change and related changes necessary to
demonstrate compliance with the amendment would not be commensurate
with the resultant safety benefit. Where compliance with the later
amendment would prompt a redesign, the cost of redesigning other parts
of the product to accommodate this redesign also would be considered.
The FAA continually weighs the desire for the maximum level of
safety with the cost to the manufacturers, operators, and traveling
public for achieving that level of safety. If the designer of an
aircraft in development is tasked with incorporating a ``change'' to a
system in that new design, the designer usually has many more options
in making ``changes'' to related systems to accommodate the ``change.''
Conversely, the systems related to a system to be changed in a
certificated design have been established, and there may be few such
options, if any. These restraints are exacerbated by a change in the
certification basis, and the consideration of the service experience of
the product. Under these conditions, it may become unreasonably costly
for the change to comply with the latest standards.
A safety benefit-resource evaluation could be used to assist in
determining impracticality, and would be discussed between the
applicant and the Administrator while establishing the certification
basis. The economic issues associated with compliance with the later
amended airworthiness standards would be a major portion of this
evaluation.
Any safety benefit-resource evaluation used to determine
``impractical'' should evaluate the enhancement of the safety involved
with complying with the airworthiness regulation under consideration
along with the cost associated with this compliance. This evaluation
would weigh the factors associated with the safety benefit and the
factors associated with the cost of compliance.
The factors involved with the safety issue could include
seriousness of the consequences of the hazard that the regulatory
change addresses, frequency, of those consequences, and the
effectiveness of applying the regulatory change to the changed product.
The factors involved with the cost of compliance could include labor,
new capital equipment needed, materials, operating cost increase, and
revenue loss. The agency is seeking comments on this concept of using
``Impractical'' as defined herein.
Associated Advisory Circular
The proposed associated advisory circular includes guidance for
purposes of complying with the requirements of this proposed rule. This
advisory circular also contains a safety benefit-resources evaluation
guide, which was recommended by the ARAC to be an acceptable means of
compliance with the exceptions of proposed Sec. 21.101(b). As elsewhere
in this edition of the Federal Register, the safety benefit-resource
evaluation guide has been included in the draft advisory circular for
purposes of information only. The safety benefit-resource guide does
describe some of the kinds of issues that the applicant would address,
and the FAA would consider, in determining the certification basis in
accordance with this proposed rule.
Section 21.101(c)
This proposed paragraph would contain the provisions of current
Sec. 21.101(b)(2) concerning special conditions. For consistency with
the other proposed changes to Sec. 21.101, this paragraph would state
that an applicant for a change must comply with any special conditions,
and amendments to those special conditions, if needed, that would
provide a level of safety equal to that established by the regulations
in effect at the date of the application for the change. The
interpretation of ``novel or unusual design features'' shall be the
same as present practice under current Sec. 21.101(b)(2). The
provisions of current Sec. 21.101(b)(1), concerning the use of later
regulations when the regulations incorporated by reference do not
provide adequate standards with respect to the proposed change, would
no longer be needed and would not be incorporated into the proposed
regulation. This is because proposed Sec. 21.101(a) would require the
use of later regulations.
[[Page 24296]]
The provisions of current Sec. 21.101(c), concerning the
replacement of reciprocating engines with turbopropeller engines, are
not incorporated into the proposed regulation. A change of this nature
would be considered a significant change, and compliance with the
regulations in effect at the date of application for the change,
therefore, would be required.
Section 21.101(d)
This proposed paragraph would state that an application for a
change to a type certificate for a transport category aircraft would be
effective for 5 years, and an application for a change to a type
certificate for all other products would be effective for 3 years.
These proposed effectivity periods for an application are the same as
those in current Sec. 21.17 (c) and (d) for an application for a type
certificate. Because current Sec. 21.101 requires compliance with the
regulations incorporated by reference in the type certificate and
because the certification basis of the original product doesn't change,
having an effectivity period for an application for a design change has
not been necessary. Under the proposed Sec. 21.101, which would require
meeting the airworthiness standards in effect at the date of the
application for the change, it is necessary to limit the effectivity of
the application for a change, to support the intent of the proposed
regulation. This proposed section would state that if an application
for a design change expires, an applicant may file a new application or
apply for an extension of the original application as in present
Sec. 21.17 (c) and (d).
Section 21.101(e)
This proposed paragraph would contain procedures that would be
applicable for changes of aircraft, aircraft engines, and propellers
that have been type certificated using the airworthiness standards
listed in Chapter 1. Proposed paragraph (e)(1) of Sec. 21.101 would
mandate that the certification basis for a change to a product
certificated under the applicable regulations that preceded parts 23,
25, 27, 29, 31, 33, or 35 would be established in the same manner as a
change to a product certificated under one of these parts. For example,
an applicant would be required to show compliance with the latest
amendment(s) under part 23 that would apply to a change to a small
airplane originally certificated under Part 3 of the Civil Air
Regulations (CAR 3). A change to an airplane type certificated under
Special Federal Aviation Regulation No. 41 (SFAR 41), would be handled
somewhat differently. The SFAR 41 requirements incorporated by
reference in the type certificate of such an airplane have expired, and
may no longer be used for purposes of issuing certificates;
accordingly, under proposed Sec. 21.101, only the latest amendments of
the part 23 requirements of the SFAR 41 certification basis would be
applicable for a change to an SFAR 41 airplane design.
Applicability of this proposed regulation would include changes to
products type certificated under Secs. 21.21 and 21.29. In addition,
these proposed procedures would be applicable for changes of aircraft
that have been type certificated under Secs. 21.24, 21.25, 21.27, and
special classes of aircraft, where a part of the certification basis
contains regulations from the airworthiness standards listed in Chapter
1.
At first glance, because some of the certification basis of
aircraft type certificated under Secs. 21.24, 21.25, 21.27, and special
classes of aircraft do not completely consist of airworthiness
standards of the Federal Aviation Regulations, aircraft type
certificated under these regulations may not appear to completely
benefit from the procedures of this proposed rulemaking. However, after
careful consideration, the FAA has determined that the level of safety
of changes to an aircraft that has been type certificated under any of
these regulations, would benefit from the enhanced safety associated
with the appropriate later amendments of those portions of the
airworthiness standards that are a part of the certification basis.
This takes into consideration that the certification basis, in some
cases, may consist of airworthiness standards as well as other
requirements found by the Administrator to be necessary to provide an
equivalent level of safety.
For example, the certification basis for a special class aircraft
or primary category aircraft may be based, in part, on portions of
those airworthiness standards contained in Chapter 1 that were found by
the Administrator to be appropriate for the specific type design. Since
revisions are frequently made to the airworthiness standards to upgrade
the minimum level of safety required for civilian aircraft and to
incorporate certification standards for modern-state-of-the-art
technology, it seems logical that the level of safety of changes to
special class aircraft would benefit from compliance with the later
airworthiness standards. These proposed procedures would apply only to
those parts of the certification basis that were obtained from the
airworthiness standards listed in Chapter 1.
Joint Aviation Requirements, JAR 22, is a published regulation
being used as a means of compliance by the FAA for gliders, as a
special class of aircraft, but this regulation is not listed in Chapter
1; therefore, the proposed procedures would not be applicable in this
case. Although these procedures are not intended to be applicable to
the Joint Aviation Requirements, an applicant may comply with thee
procedures when the Administrator finds them acceptable for a specific
application.
Surplus military aircraft, type certificated in the restricted
category under Sec. 21.25(a)(2), normally are accepted on the basis of
the previous military qualifications acceptance and service record in
lieu of showing compliance with airworthiness standards in Chapter 1.
However, a change to these aircraft for a special purpose operation
usually is not supported by the military service history and needs to
comply with an airworthiness standard. Compliance with the later
amended airworthiness standard for the change would not be appropriate
as the aircraft did not meet an airworthiness standard initially.
Limited category aircraft are surplus military aircraft, mostly
from World War II, that were type certificated under Part 9 of the
Civil Air Regulations for use other than air transport. These aircraft
were not intended to carry persons or property for compensation or
hire, and normally were accepted on the basis of their previous
military qualifications acceptance and service record. However, a
change to these aircraft usually is not supported by the military
service history, therefore, the change must comply with appropriate
airworthiness standards. It seems logical that the level of safety of
changes to aircraft that have not been type certificated to an
airworthiness standard would not benefit from compliance with the later
airworthiness standards.
Section 21.115
The type certificate holder may obtain approval for a change either
by amending the type certificate under Sec. 21.101 or by obtaining a
supplemental type certificate under Sec. 21.115. Any other modifier
would have to obtain a supplemental type certificate under Sec. 21.115.
There should not be a difference in the certification basis for a
change to a type certificated product between these two methods of
approval, amended type certificate or supplemental type certificate.
Current Sec. 21.115 incorporates the provisions of current
Sec. 21.101(a) and (b)
[[Page 24297]]
by reference, making the provisions of the latter section equally
applicable to applicants for supplemental type certificates. In view of
the proposed changes to Sec. 21.101, it is necessary to amend
Sec. 21.115 to refer simply to Sec. 21.101 rather than specifically to
Sec. 21.101(a) and (b). This would not be a substantive change.
Section 25.2
Current Sec. 25.2(c) incorporates the provisions of current
Secs. 21.101(a)(2) and (b) by reference, addressing the subsequent
revisions to the special retroactive regulations. To remain consistent
with the proposed changes to Sec. 21.101, it is necessary to amend
Sec. 25.2(c) to refer to Sec. 21.101(a). This would not be a
substantive change.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-
511), there are no requirements for information collection associated
with this proposed rule.
International Compatibility
The proposal results, primarily, from a recommendation harmonized
with the aviation authorities of Canada and Europe. Similar
corresponding changes to regulations governing type certification
procedures for changed products are being proposed by Transport Canada
and the Joint Aviation Authorities.
Regulatory Evaluation, Regulatory Flexibility Determination, and Trade
Impact Assessment
Changes to federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs Federal agencies to
promulgate new regulations or modify existing regulations only if the
potential benefits to society outweigh the potential costs. Second, the
Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Finally, the
Office of Management and Budget directs agencies to assess the effects
of regulatory changes on international trade. In conducting these
assessments, the FAA has determined that this proposed rule: (1) would
generate benefits exceeding its costs and is not ``significant'' as
defined in Executive Order 12866; (2) would not be ``significant'' as
defined in DOT's Policies and Procedures; (3) would not have a
significant impact on a substantial number of small entities; and (4)
would not restrain international trade. These analyses, available in
the docket, are summarized below.
Regulatory Evaluation Summary
The following discussion of costs and benefits is provided because
the proposed procedures would be explicitly incorporated into formal
regulations. By administrative policy, the FAA is already urging
designers to show that certain changed products comply with selected
amendments that were adopted after the initial application for type
certification of the base product. It is likely that such
administrative decisions would continue, to some unknown degree for an
unknown proportion of type certificated products, in the absence of the
proposed rule.
The proposed rule would not initiate a specific certification
standard or requirement per se, but instead, would formally alter the
manner in which existing and future standards would be determined to be
applicable. As a result, the FAA can describe, but is not able to
quantify, the costs and benefits of the proposal. A quantification of
the impacts would require a forecast of potential future changes to all
commuter and transport category airplane models; all rotorcraft; and
all other categories of regulated aircraft, aircraft engines, and
propellers. In addition, a quantified evaluation would require a review
of all applicable regulations that have been adopted during the
intervening period after the type certification of the product, plus
engineering appraisals of the intended changes for each product, the
effects of those changes on other systems and components, and the
economics associated with bringing each affected system and component
up to the standards of the intervening regulations. No reasonably
accurate estimate of these factors can be made.
In addition to the absence of a comprehensive estimate, no examples
of such cost estimates are available for this evaluation. In some
instances, the FAA has urged manufacturers of changed products to
comply with later regulations. In association with these actions,
individual manufacturers of proposed changed products have evaluated
the costs and benefits that would be incurred to meet the pertinent
standards. Due to competitive economic considerations, however, such
information is considered proprietary and is not available.
The attributable costs of this proposal are the incremental costs
that would be incurred to meet any additional or more stringent
standards, adopted after the application for type certification of the
initial product, that would not be required in the absence of this
proposal. Similarly, the direct benefit of the proposal is the
augmented safety that would result from meeting such standards.
Although the attributable costs and benefits cannot actually be
quantified, the proposed rule is premised on an analysis to verify that
any actions taken pursuant to it would be cost beneficial.
As noted in the description of the proposal, compliance with later
regulations would not be required for a change that is not classified
as being significant, for those areas or components not affected by the
change, or where compliance with later regulations would not contribute
materially to the level of safety or would be ``impractical.''
Compliance with later amendments would be considered impractical if the
applicant can show that such compliance would result in costs that are
not consistent with the possible safety benefits. Further guidance on
the definition of what constitutes a significant change would be
provided in an advisory circular.
In addition to the benefits of any individual action taken pursuant
to the proposed rule, the proposal would also generate procedural
benefits. The formalization of this policy by regulation would expedite
decisions about the certification basis of proposed changed products
and, therefore, would provide manufacturers and modifiers with earlier
and more dependable information on which to base their product
development decisions. In addition, the proposed procedures have been
harmonized with the foreign aviation authorities of Canada and Europe
and the resulting common standards would reduce the costs and delays
necessary to formally determine and fulfill dissimilar international
requirements.
Although the attributable costs and benefits of the proposed rule
cannot be quantified, the FAA holds that it would be cost beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis if a proposed rule would have a
significant economic impact, either detrimental or beneficial, on a
substantial number of small entities. FAA Order 2100.14A, Regulatory
Flexibility Criteria and Guidance, establishes threshold cost values
and small entity size standards for complying with RFA review
requirements in FAA rulemaking actions. The proposed amendments
[[Page 24298]]
would not have a significant economic impact on a substantial number of
small entities.
Trade Impact Assessment
The proposed rule would not constitute a barrier to international
trade, including the export of American goods and services to foreign
countries and the import of foreign goods and services into the United
States. Instead, the proposed type certification procedures for changed
products have been harmonized with those of foreign aviation
authorities and would lessen the restraints on trade.
Federalism Implications
The regulations proposed herein will not have substantial direct
effects 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. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposed would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Analysis, the FAA has determined that this
proposed regulation is not a significant regulatory action under
Executive Order 12866. In addition, the FAA certifies that this
proposal, if adopted, 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. This proposal is
considered nonsignificant under DOT Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979). An initial regulatory evaluation of
the proposal, including a Regulatory Flexibility Determination and
International Trade Impact Analysis, has been placed in the docket. A
copy may be obtained by contacting the person identified under FOR
FURTHER INFORMATION CONTACT.
List of Subjects
14 CFR Part 11
Administrative practice and procedure, Reporting and recordkeeping
requirements.
14 CFR Part 21
Aircraft, Aviation safety, Safety, Type certification
14 CFR Part 25
Aircraft, Aviation safety, Safety, Type certification
The Proposed Amendments
Accordingly, the FAA proposes to amend 14 CFR parts 11, 21, and 25
as follows:
PART 11--GENERAL RULEMAKING PROCEDURES
1. The authority citation for part 11 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40101, 40103, 40105, 40109, 40113,
44110, 44502, 44701--44702, 44711, 46102.
2. The first sentence of Sec. 11.11 is revised to read as follows:
Sec. 11.11 Docket.
Official FAA records relating to rulemaking actions are maintained
in current docket form in the Office of the Chief Counsel. These
records include: Proposals, notices of proposed rulemaking, written
material received in response to notices, petitions for rulemaking and
exemptions, written material received in response to summaries of
petitions for rulemaking and exemptions, petitions for rehearing or
reconsideration, petitions for modification or revocation, notices
denying petitions for rulemaking, notices granting or denying
exemptions, summaries required to be published under Sec. 11.27,
special conditions required as prescribed under Secs. 21.16 or
21.101(c), written material received in response to published special
conditions, reports of proceedings conducted under Sec. 11.47, notices
denying proposals, and final rules or order. * * *
PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS
3. The authority citation for part 21 continues to read as follows:
Authority: 42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113,
44701-44702, 44707, 44709, 44711, 44713, 44715, 45303.
4. Section 21.19 is revised to read as follows:
Sec. 21.19 Changes requiring a new type certificate.
Each person who proposes to change a product must apply for a new
type certificate if the Administrator finds that the proposed change in
design, power, thrust, or weight is so extensive that a substantially
complete investigation of compliance with the applicable regulations is
required.
5. Section 21.101 is revised to read as follows:
Sec. 21.101 Designation of applicable regulations.
(a) Except as provided in paragraph (b) of this section, an
applicant for a change to a type certificate must show that the changed
product complies with:
(1) Each regulation in parts 23, 25, 27, 29, 31, 33, and 35 of this
chapter that is applicable to the changed product and that is in effect
at the date of the application for the change; and
(2) Parts 34 and 36 of this chapter.
(b) The applicant may show that the changed product complies with
an earlier amendment of a regulation required by paragraph (a)(1) of
this section, and of any other regulation the Administrator finds is
directly related, provided that the amended regulation does not precede
either the corresponding regulation in Secs. 23.2, 25.2, 27.2, or 29.2
of this chapter, or the corresponding regulation incorporated by
reference in the type certificate:
(1) For a change the effect of which, combined with all previous
relevant changes, the Administrator finds is nonsignificant;
(2) For each area, system, component, equipment, or appliance that
the Administrator finds is not affected by the change; and
(3) For each area, system, component, equipment, or appliance that
is affected by the change, if the Administrator also finds that
compliance with a regulation described in paragraph (a)(1) of this
section would not contribute materially to the level of safety of the
changed product or would be impractical.
(c) If the Administrator finds that the regulations in effect at
the date of the application for the change do not provide adequate
standards with respect to the proposed change because of a novel or
unusual design feature, the applicant must also comply with special
conditions, and amendments to those special conditions, prescribed
under the provisions of Sec. 21.16, to provide a level of safety equal
to that established by the regulations in effect at the date of the
application for the change.
(d) An application for a change to a type certificate for a
transport category aircraft is effective for 5 years, and an
application for a change to any other type certificate is effective for
3 years. If the change has not been approved, or it is clear that it
will not be approved under the time limit established under this
paragraph, the applicant may--
(1) File a new application for a change to the type certificate and
comply with all the provisions of paragraph (a) of this
[[Page 24299]]
section applicable to an original application for a change; or
(2) File for an extension of the original application and comply
with the provisions of paragraph (a) of this section for an effective
date of application, to be selected by the applicant, not earlier than
the date that precedes the date of approval of the change by the time
period established under this paragraph for the original application
for the change.
(e) For purposes of this section, ``each regulation that is
applicable to the change'' includes:
(1) Each regulation that is applicable to the change that would
apply to the same change in a product type certificated prior to the
codification of the applicable part(s) of this chapter, if that product
were type certificated at the date of the application for the change;
and
(2) Each regulation that the Administrator found to be appropriate
to a product type certificated under Secs. 21.24, 21.25, or 21.27, or
an aircraft type certificated under Sec. 21.17(b), where the type
certificate incorporated regulations from parts 23, 25, 27, 29, 31, or
35, based on the nature of the product design and the proposed change.
6. Paragraph (a) of 21.115 is revised to read as follows:
Sec. 21.115 Applicable requirements.
(a) Each applicant for a supplemental type certificate must show
that the altered product meets applicable requirements specified in
Sec. 21.101 and, in the case of an acoustical change described in
Sec. 21.93(b), show compliance with the applicable noise requirements
of part 36 of this chapter and, in the case of an emissions change
described in Sec. 21.93(c), show compliance with the applicable fuel
venting and exhaust emissions requirements of part 34 of this chapter.
* * * * *
PART 25--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY AIRPLANES
7. The authority citation for part 25 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
8. Paragraph (c) of Sec. 25.2 is revised to read as follows:
Sec. 25.2 Special retroactive requirements.
* * * * *
(c) Compliance with subsequent revisions to the sections specified
in paragraph (a) or (b) of this section may be elected or may be
required in accordance with Sec. 21.101(a) of this chapter.
Issued in Washington, DC, on April 22, 1997.
Ava L. Mims,
Acting Director, Aircraft Certification Service.
[FR Doc. 97-11205 Filed 5-1-97; 8:45 am]
BILLING CODE 4910-13-M
