[Federal Register: December 27, 2004 (Volume 69, Number 247)]
[Rules and Regulations]
[Page 77595-77599]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de04-8]


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Part VII





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 91



Pyrotechnic Signaling Device Requirements; Final Rule


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2004-19947; Amendment No. 91-285]
RIN 2120-AI42


Pyrotechnic Signaling Device Requirements

AGENCY: Federal Aviation Administration, DOT.

ACTION: Direct final rule; request for comments.

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SUMMARY: This direct final rule removes the requirement for a
pyrotechnic signaling device required for aircraft operated for hire
over water and beyond power-off gliding distance from shore for air
carriers operating under part 121 unless it is part of a required life
raft. All other operators will continue to be required to have onboard
one pyrotechnic signaling device if they operate aircraft for hire over
water and beyond power-off gliding distance from shore. The FAA amends
the rule to remove the redundancy and regulatory burden for air
carriers operating under part 121.

DATES: Effective February 7, 2005. The FAA must receive comments on
this direct final rule by January 26, 2005.

ADDRESSES: You may send comments to Docket Number FAA-2004-19947 using
any of the following methods:
     DOT Docket Web site: Go to http://dms.dot.gov and follow

the instructions for sending your comments electronically.
     Government-wide rulemaking Web site: Go to http://www.regulations.gov
 and follow the instructions for sending your

comments electronically.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    Privacy Act: We will post all comments we receive, without change,
to http://dms.dot.gov, including any personal information you provide.

Using the search function of our docket Web site, anyone can find and
read the comments received into any of our dockets. This will include
the name of the individual sending the comment (or signing the comment
for an association, business, labor union). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

    Docket: To read background documents or comments received, go to
http://dms.dot.gov. You may also go to Room PL-401 on the plaza of the

Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Joe Keenan, Air Transportation
Division (AFS-220), Flight Standards Service, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
Telephone No. (202) 267-9579.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites anyone to take part in this rulemaking by sending
written comments, data, or views. We also invite comments about the
economic, environmental, energy, or federalism impacts that might
result from adopting the proposals in this document. The most helpful
comments reference a specific portion of the proposal, explain any
recommended change, and include supporting data. We ask that you send
us two copies of written comments.
    We will file all comments received, as well as a report summarizing
each substantive public contact with FAA personnel on this rulemaking,
in the public docket. The docket is available for public inspection
before and after the comment closing date. If you wish to review the
docket in person, go to the address in the ADDRESSES section of this
preamble between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. You may also review the docket using the Internet at
the web address in the ADDRESSES section.
    Before this direct final rule becomes effective, we will consider
all comments we receive by the closing date for comments. We may change
this rule because of the comments we receive. For more information
about direct final rule procedures, see the ``Direct Final Rule
Procedures'' later in this document.
    If you want the FAA to acknowledge receipt of your comments on this
proposal, include with your comments a preaddressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by taking the
following steps:
    (1) Go to the search function of the Department of Transportation's
electronic Docket Management System (DMS) Web page--http://dms.dot.gov/search
.

    (2) On the search page type in the last five digits of the Docket
number of this notice (19947), click on ``search.''
    (3) On the next page, which contains the Docket summary information
for the Docket you selected, click on the document number for the item
you wish to view.
    You can also get an electronic copy using the Internet through the
Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm or the Federal Register's Web page at http://www.gpoaccess.gov/fr/index.html.
    You can also get a copy by filing a request to the Federal Aviation

Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue,
SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to
identify the amendment number or docket number of this rulemaking.

Small Entity Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires the FAA to report inquiries from small entities about
information on, and advice about, compliance with statutes and
regulations within its jurisdiction. Therefore, any small entity that
has a question about this document may contact their local FAA
official, or the person listed under FOR FURTHER INFORMATION CONTACT.
You can also find more information on SBREFA on the FAA's Web page at
http://www.faa.gov/avr/arm/sbrefa.cfm.


Background

    On February 25, 2004, the FAA published a ``Review of Existing
Regulations'' proposal in the Federal Register (69 FR 8575; docket
number FAA-2004-17168) seeking comments on regulations that it should
amend, remove, or simplify. The FAA stated that the intent of this
review was to ``identify regulations that impose undue regulatory
burden, are no longer necessary, or overlay, repeat, or conflict with
other Federal regulations.'' Further, the FAA stated that it would
review comments and ``point out, where appropriate, how we will adjust
our regulatory priorities.''
    The FAA received comments from the National Air Carrier Association

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(NACA), the Air Transport Association (ATA), and Southwest Airlines
(SWA) that address Sec.  91.205(b)(12), a regulation that has been an
issue of both petitions for exemption and enforcement policy for some
time. That issue is whether air carriers conducting operations under
part 121 should be required to comply with Sec.  91.205(b)(12).
Specifically, paragraph (b)(12) requires aircraft that operate for
hire, over water, and beyond power off gliding distance from shore to
carry one pyrotechnic signaling device. The relevant parts of Sec.
91.205 read as follows:


Sec.  91.205  Powered civil aircraft with standard category U.S.
airworthiness certificates: Instrument and equipment requirements.

    (a) General. Except as provided in paragraphs (c)(3) and (e) of
this section, no person may operate a powered civil aircraft with a
standard category U.S. airworthiness certificate in any operation
described in paragraphs (b) through (f) of this section unless that
aircraft contains the instruments and equipment specified in those
paragraphs (or FAA-approved equivalents) for that type of operation,
and those instruments and items of equipment are in operable
condition.
    (b) Visual-flight rules (day). For VFR flight during the day,
the following instruments and equipment are required:
    (1)-(11)* * *
    (12) If the aircraft is operated for hire over water and beyond
power-off gliding distance from shore, approved flotation gear
readily available to each occupant and at least one pyrotechnic
signaling device. As used in this section, ``shore'' means that area
of the land adjacent to the water which is above the high water mark
and excludes land areas which are intermittently under water.
    (13)-(17) and (c) * * *
    (d) Instrument flight rules. For IFR flight, the following
instruments and equipment are required:
    (1) Instruments and equipment specified in paragraph (b) of this
section, and, for night flight, instruments and equipment specified
in paragraph (c) of this section.
    (2)-(9) and (e)-(h) * * *

    SWA states that the FAA should rescind Sec.  91.205(b)(12) for part
25 airplanes because mandating a flare gun be carried in the cockpit is
an unnecessary and hazardous requirement that is without aviation
safety justification. SWA asserts that the risk of a modern multi-
engine turbo jet experiencing a total power loss on take-off and not
being able to return to the departure airport for an emergency landing
is extremely low. SWA states that even if an aircraft had to ditch in
the ocean, departure radar control would easily pinpoint its location.
SWA believes the minimal value that a flare gun would provide is far
outweighed by the danger it imposes to the cockpit. SWA states that
this device is hazardous because if it is triggered in flight it cannot
be extinguished.
    The ATA asserts that the rule requires operators that do not
operate with life rafts and survival equipment as required by Sec.
91.509 to carry pyrotechnic signaling devices. This association states
that eliminating the rule's applicability to air carriers would
eliminate the purchase of the devices and additional engineering,
manufacture, approval, and installation of security boxes. The
association also points out that the elimination would also save
unnecessary incorporation into maintenance programs and special
training of flight crews.
    The NACA states that when this rule was written, pyrotechnic flares
were the state-of-art signaling devices. This association states that
since that time we have emergency locator transmitters (ELTs), enhanced
ELTs, better communications, radar surveillance, and more practical and
timely options.

Petitions for Exemption From Sec.  91.205(b)(12)

    The FAA has consistently denied petitions for exemption from Sec.
91.205(b)(12), partly on the basis that a grant of exemption would be
more appropriate to an entire class of operators and thus should be
accomplished under rulemaking. In recent years, however, the FAA has
received several petitions that present compelling arguments for
relief. America West, in a petition dated June 17, 2004, presents a
probability analysis, based on the FAA's model in developing Special
Federal Aviation Regulation (SFAR) 88 for fuel systems, that finds the
probability of an in-flight shut down is far less likely than
``extremely improbable'' or ``extremely remote,'' as defined by the FAA
in Appendix B: ``SFAR 88--Mandatory Action Decision Criteria,'' Memo
Number 2003-112-15, dated February 25, 2003.
    SWA, in a petition dated June 18, 2004, also states that the
requirement is unnecessary. The airline asserts that during take-off
and landing the aircraft's position is closely monitored by air traffic
control, and if an over water event were to occur, the location of the
aircraft would be known and broadcast long before a flight crewmember
could locate and activate a pyrotechnic signaling device. SWA therefore
finds the requirement obsolete. SWA also asserts that the device is
hazardous. It argues that if the device is accidentally activated in
the cockpit, the results could be catastrophic. SWA points out that
ensuring pyrotechnic devices are safely stowed for security reasons
poses an additional expense for airlines for a questionable increase in
public safety. In its petition, SWA asks for an exemption or policy of
nonenforcement for itself and similarly situated operators from Sec.
91.205(b)(12) for 2 years while the FAA considers rulemaking.

Related Requirements in Part 121

    In addition to petitions, over the years, other carriers have
requested interpretation of Sec.  91.205(b)(12). Part of the confusion
results from other regulations in part 121 that provide a redundancy in
the requirement for pyrotechnic devices in that one device must be
carried for each required raft onboard aircraft that operate in
extended over water operations. For aircraft other than helicopters,
``extended over water operation'' is defined in Sec.  1.1 of 14 CFR as
an operation over water at a horizontal distance of more than 50
nautical miles from the nearest shoreline. The relevant parts of the 14
CFR 121.339 requirement are as follows:


Sec.  121.339  Emergency equipment for extended over-water operations.

    (a) Except where the Administrator, by amending the operations
specifications of the certificate holder, requires the carriage of
all or any specific items of the equipment listed below for any
overwater operation, or upon application of the certificate holder,
the Administrator allows deviation for a particular extended
overwater operation, no person may operate an airplane in extended
overwater operations without having on the airplane the following
equipment:
    (1) * * *
    (2) Enough life rafts (each equipped with an approved survivor
locator light) of a rated capacity and buoyancy to accommodate the
occupants of the airplane. Unless excess rafts of enough capacity
are provided, the buoyancy and seating capacity beyond the rated
capacity of the rafts must accommodate all occupants of the airplane
in the event of a loss of one raft of the largest rated capacity.
    (3) At least one pyrotechnic signaling device for each life
raft.
    (4) and (b)-(c) * * *

    Thus, the question might be asked that if an aircraft is already
required to have pyrotechnic signaling devices onboard for each
required life raft, should it also be required to have one additional
device onboard the aircraft?

The Amended Rule

    Having considered the arguments of petitioners and commenters to
FAA docket number 17168, the FAA has determined that as a reasonable
and judicious action, the requirement for air carriers operating under
part 121 to have the pyrotechnic signaling device required by Sec.
91.205(b)(12) onboard

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should be removed from the regulations. The FAA finds that commenters
have presented sufficient grounds to convince the FAA that the
requirement for the pyrotechnic signaling device required by Sec.
91.205(b)(12) for operators conducting operations under part 121 poses
an unnecessary burden on those operators to secure the signaling
device.
    The FAA also finds that petitioners and commenters have presented
compelling arguments that other regulatory requirements, such as air
traffic control, dispatch/flight following, and advanced
communications, provide an equivalent, if not greater, level of safety
as would be provided by a pyrotechnic signaling device located on the
aircraft.
    Section 91.205(b)(12) will continue in force for operators not
conducting their operations under part 121, since these operators'
safety redundancies, such as dispatch/flight following systems, do not
exist to the same extent as for part 121 air carriers. In addition,
this amendment does not affect in any way the regulatory requirements
for section 121.339 that require a pyrotechnic signaling device for
each life raft required to be carried onboard aircraft that conduct
extended over water operations. The FAA also notes that these
operations do not need an additional pyrotechnic signaling device
onboard the aircraft beyond the one required for each life raft.

Direct Final Rule Procedure

    Under 14 CFR 11.29, the FAA may issue a direct final rule if an
NPRM would be unnecessary because the agency expects no adverse
comments to the changed rule. The FAA anticipates that this regulation
will not result in adverse or negative comment and therefore is issuing
it as a direct final rule. The provisions in this final rule remove a
requirement as it applies to air carriers conducting operations under
part 121. The removal of the requirement will not affect the safety of
these operations because of the redundancies built into the air traffic
control and dispatch/flight following systems. As a result, the FAA has
determined that this amendment is a minor relieving change that has no
effect on public safety.
    Unless a written adverse or negative comment, or a written notice
of intent to submit an adverse or negative comment, is received within
the comment period, the regulation will become effective on the date
specified above. After the close of the comment period, the FAA will
publish a document in the Federal Register indicating that no adverse
or negative comments were received and confirming the date on which the
final rule will become effective. If the FAA does receive, within the
comment period, an adverse or negative comment, or written notice of
intent to file such a comment, the FAA will publish in the Federal
Register a document withdrawing the direct final rule. The FAA may then
issue another direct final rule accommodating the comment or may issue
a notice of proposed rulemaking with a new comment period.

Economic Assessment, Regulatory Flexibility Determination, Trade Impact
Assessment, and Unfunded Mandates Assessment

    Proposed changes to Federal regulations must undergo several
economic analyses. First, Executive Order 12866 directs each Federal
agency to propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. In developing U.S.
standards, this Trade Act also requires agencies to consider
international standards and, where appropriate, use them as the basis
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4) requires agencies to prepare a written assessment of
the costs, benefits, and other effects of proposed or final rules that
include a Federal mandate likely to result in the expenditure by State,
local, or tribal governments, in the aggregate, or by the private
sector, of $100 million or more annually (adjusted for inflation).
    However, for regulations with an expected minimal impact the above-
specified analyses are not required. If it is determined that the
expected impact is so minimal that the proposal does not warrant a full
evaluation, a statement to that effect and the basis for it is included
in the proposed regulation. Since this final rule is relieving and is
expected to provide some cost savings to some part 121 operators, the
FAA has determined that the rule will have minimal impact. The FAA
requests comment with supporting justification regarding the FAA
determination of minimal impact.
    The FAA has determined this rule (1) has benefits that justify its
costs, is not a ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866 and is not a ``significant regulatory
action'' as defined in section 3(f) of Executive Order 12866 and is not
``significant'' as defined in DOT's Regulatory Policies and Procedures;
(2) will not have a significant economic impact on a substantial number
of small entities; (3) will not reduce barriers to international trade;
and (4) does not impose an unfunded mandate on state, local, or tribal
governments, or on the private sector.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The RFA covers a wide range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
    However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the RFA provides that the
head of the agency may so certify and a regulatory flexibility analysis
is not required. The certification must include a statement providing
the factual basis for this determination, and the reasoning should be
clear.
    This rule will not impose any cost on any small part 121 operator,
but it will provide some minor cost savings to them. Therefore, the FAA
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. The FAA requests comments
regarding its certification.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic

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objectives, such as safety, are not considered unnecessary obstacles.
The statute also requires consideration of international standards and
where appropriate, that they be the basis for U.S. standards. The FAA
accordingly has assessed the potential effect of this rule to be
minimal and has determined that this rule will have no impact on
international trade.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $120.7 million in lieu of $100
million.
    This final rule does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of
Executive Order 13132, Federalism. We determined that this final rule
would not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We determined that this rule, therefore, would not have
federalism implications.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
are no requirements for information collection associated with this
rule.

Environmental Analysis

    FAA Order No. 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental assessment or environmental impact statement. In
accordance with FAA Order No. 1050.1D, Appendix 4, paragraph 4(j),
regulations, standards, and exemptions (excluding those that may cause
a significant impact on the human environment if implemented) qualify
for a categorical exclusion. The FAA has determined that this rule
qualifies for a categorical exclusion because no significant impacts to
the environment are expected to result from its implementation.

Energy Impact

    We assessed the energy impact of this rule in accordance with the
Energy Policy and Conservation Act (EPCA), Public Law 94-163, as
amended (42 U.S.C. Sec.  6362). We have determined that this rule is
not a major regulatory action under the provisions of the EPCA.

List of Subjects in 14 CFR Part 91

    Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen,
Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico,
Noise control, Political candidates, Reporting and recordkeeping
requirements, Yugoslavia.

The Amendment

0
For the reasons stated in the preamble, the Federal Aviation
Administration amends part 91 of Title 14 of the Code of Federal
Regulations as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101,
44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722,
46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531,
articles 12 and 29 of the Convention on International Civil Aviation
(61 Stat. 1180).


0
2. Amend Sec.  91.205 by revising paragraph (b)(12) to read as follows:


Sec.  91.205  Powered Civil Aircraft with standard category U.S.
airworthiness certificates: Instrument and equipment requirements.

    (b) * * *
    (12) If the aircraft is operated for hire over water and beyond
power-off gliding distance from shore, approved flotation gear readily
available to each occupant and, unless the aircraft is operating under
part 121 of this subchapter, at least one pyrotechnic signaling device.
As used in this section, ``shore'' means that area of the land adjacent
to the water which is above the high water mark and excludes land areas
which are intermittently under water.
* * * * *

    Issued in Washington, DC, on December 20, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-28230 Filed 12-23-04; 8:45 am]

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