77596 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

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. 

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 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77597

(NACA), the Air Transport Association 

(ATA), and Southwest Airlines (SWA) 

that address § 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 § 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 § 91.205 read as 

follows:

§ 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 § 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 takeoff 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 § 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 

§ 91.205(b)(12) 

The FAA has consistently denied 

petitions for exemption from 

§ 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 § 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 § 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 § 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:

§ 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 § 91.205(b)(12) onboard 

77598 Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 

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 § 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 abovespecified 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 

Federal Register / Vol. 69, No. 247 / Monday, December 27, 2004 / Rules and Regulations 77599

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 inflationadjusted 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. § 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

■ 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

■ 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).

■ 2. Amend § 91.205 by revising 

paragraph (b)(12) to read as follows:

§ 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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