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[Federal Register Volume 60, Number 84 (Tuesday, May 2, 1995)]
[Rules and Regulations]
[Pages 21429-21433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10709]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 94-NM-44-AD; Amendment 39-9214; AD 74-08-09 R1]

Airworthiness Directives; Transport Category Airplanes

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule.

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SUMMARY: This amendment revises an existing airworthiness directive 
(AD) that is applicable to all transport category airplanes. The 
existing AD currently requires installation of placards prohibiting 
smoking in the lavatory and disposal of cigarettes in the 
[[Page 21430]] lavatory waste receptacles; establishment of a procedure 
to announce to airplane occupants that smoking is prohibited in the 
lavatories; installation of ashtrays at certain locations; and 
repetitive inspections to ensure that lavatory waste receptacle doors 
operate correctly. That action was prompted by fires occurring in 
lavatories, which were caused by, among other things, the improper 
disposal of smoking materials in lavatory waste receptacles. The 
actions specified by the AD are intended to prevent such fires. This 
amendment provides for an alternative action regarding the current 
requirement to install specific placards at certain locations.

EFFECTIVE DATE: June 1, 1995.

ADDRESSES: Information pertaining to this rulemaking action may be 
examined at the Federal Aviation Administration (FAA), Transport 
Airplane Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, 
Washington.

FOR FURTHER INFORMATION CONTACT: Monica Nemecek, Aerospace Engineer, 
Airframe Branch, ANM-120S, Seattle Aircraft Certification Office, FAA, 
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, 
Washington 98055-4056; telephone (206) 227-2773; fax (206) 227-1181.

SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal 
Aviation Regulations (14 CFR part 39) by revising AD 74-08-09, 
amendment 39-1917, which is applicable to all transport category 
airplanes having one or more lavatories equipped with paper or linen 
waste receptacles, was published in the Federal Register on November 1, 
1994 (59 FR 54535). The action proposed to provide for an alternative 
action regarding the current requirement to install specific placards 
at certain locations.

Disposition of Comments

    Interested persons have been afforded an opportunity to participate 
in the making of this amendment. Due consideration has been given to 
the comments received.
    One commenter supports the proposal.
    The FAA responds to additional comments and requests for revision 
of the proposal as follows:

Request To Add Inspections of Smoke Detectors

    One commenter requests that the proposal be revised to include an 
additional requirement for a periodic inspection and test of the 
lavatory smoke detector. The commenter suggests that such inspections 
be required either every six months or at the same time as the 
inspections of the trash receptacle doors are required. This commenter 
considers that such inspections are necessary because smoke and fire, 
as a result of smoking materials deposited in lavatories, continue to 
be a hazard. The commenter points out that, in the span of time since 
the AD was originally issued in 1974, there have been numerous lavatory 
fires reported on transport category airplanes; many of these fires 
were not detected by the smoke detectors, but by passengers and crew. 
The commenter acknowledges that it is not clear whether the fire 
detector failed to function in these cases of fire; however, it is 
clear that the detector failed to perform as intended. Since the 
National Fire Protection Association recommends inspection and testing 
of residential smoke detectors because they are subject to failure, the 
commenter believes that a comparable test and inspection of detectors 
on airplanes is also warranted.
    The FAA does not concur with the commenter's suggestion to revise 
the proposal. The FAA has issued numerous AD's, applicable to specific 
aircraft models, whenever an unsafe condition has been identified 
relative to potential fires in the lavatories. In fact, many AD's as 
well as many individual operator's maintenance programs already call 
for repetitive inspections of the smoke detectors located in the 
lavatories. Notwithstanding these current AD's and practices, the FAA 
will continue to monitor the situation within the transport fleet and 
may consider the commenter's comments for possible separate rulemaking 
action.

Request To Revise Applicability of AD

    One commenter requests that the applicability of the proposal be 
revised to include only those aircraft types known to be affected by 
the existing AD's provisions, and to exclude all aircraft that were 
type certificated after August 6, 1974 (the effective date of AD 74-08-
09), when the FAA has confirmed that the approved type design 
incorporates the provisions intended by AD 74-08-09. As justification 
for this request, the commenter points out the following:
    1. The current applicability of the AD makes it applicable to all 
transport category airplanes ever built, including those that were type 
certificated after the effective date of AD 74-08-09. It also 
encompasses all aircraft certificated under Federal Aviation 
Regulations (FAR) part 25 (14 CFR part 25) whose type design has 
originated during the past 20 years. The applicability of the AD 
appears to be a burdensome action placed on the aviation industry for 
only a minor FAA administrative convenience.
    2. The current ``open-ended'' applicability of the AD places the 
manufacturer of airplanes type certificated after August 6, 1974, in a 
peculiar position: The FAA makes a finding during type certification 
that, in compliance with FAR 21.21(b)(2), ``* * * no feature or 
characteristic makes it unsafe for the category in which certification 
is requested;'' yet, at the same time, the FAA states that a newly type 
certificated/manufactured airplane is ``unsafe'' by the terms of AD 74-
08-09. -
    The FAA does not consider that revising the applicability of this 
AD, as requested by the commenter, is necessary for the following 
reasons:
    As for Item 1, above, the FAA acknowledges that almost all of the 
requirements of this AD are similar to other requirements of newly-
certified airplanes. However, the FAA does not consider that 
accomplishment of the requirements of this AD constitutes any 
additional undue burden on operators. For the most part, operators will 
be required merely to enter a one-time sign-off in the airplane log to 
indicate compliance. (The only requirement of this AD that is not 
similar to any other is the requirement that calls for repetitive 
inspections of the waste receptacle doors. As is explained later in 
this preamble, service history data indicates that the 1,000-hour 
repetitive inspections are necessary and appropriate.) To the extent 
that the requirements of this AD are similar to those of other rules, 
their continued presence as part of this AD emphasizes their importance 
and makes it less likely that they will be overlooked.
    Additionally, since the various requirements of this AD were 
adopted in certification and operating rules at different times and by 
different amendments to the FAR, it would make the AD unnecessarily 
complex to create exceptions for those airplanes and operators subject 
to other requirements.
    As for Item 2, above, the FAA does not consider that any 
manufacturer would be placed in a ``peculiar situation,'' as described 
by the commenter. During the certification process, the manufacturer 
will necessarily have to consider the requirements of this AD prior to 
certification of an airplane, and will eliminate the unsafe condition 
by complying with the AD; therefore, there will be no feature or 
characteristic that [[Page 21431]] makes the airplane unsafe as 
certificated.

Request To Include Terminating Actions for Requirements of AD

    This commenter also requests that the proposal be revised to 
provide for ``terminating actions'' for operators whenever the required 
ashtrays and placards are installed on the airplane and when the 
provisions for the recurring inspections are incorporated into the FAA-
approved inspection program [required by FAR 91.409 (14 CFR 91.409), 
``Inspections'']. The commenter contends that, in requiring the 
continuing inspection, the FAA has ``gone counter to the commitment of 
the Administrator,'' who stated in the preamble to amendments 21-3 and 
39-106, ``The agency * * * will not issue AD's as a substitute for 
enforcing maintenance rules.'' Revising the proposal in accordance with 
the commenter's request, the commenter states that the FAA would 
``correct its error'' with respect to enforcement of maintenance rules.
    The FAA does not concur with the commenter's request. First, 
according to Sec. 39.1 of the FAR (14 CFR 39.1), the issuance of an AD 
is based on the finding that an unsafe condition exists or is likely to 
develop in aircraft of a particular type design. The responsibilities 
placed on the FAA by the Federal Aviation Act do not limit it from 
making any unsafe condition--whether resulting from maintenance, design 
defect, or otherwise--the proper subject of an AD. Therefore, 
regardless of the cause or the source of an unsafe condition, the FAA 
has the authority to issue an AD when it is found that an unsafe 
condition is likely to exist or develop on other products of the same 
type design.
    Second, it is within the FAA's authority to issue AD's to require 
actions to address unsafe conditions that are not otherwise being 
addressed (or addressed adequately) by normal maintenance procedures. 
This AD has not been issued as a substitute for enforcement of 
maintenance rules. On the contrary, it establishes the maintenance 
rule. Currently, there is no other rule that imposes the 1,000-hour 
inspection of the waste receptacle doors. Based on in-service history 
of problems encountered, it is especially important that the 
requirement for these repetitive inspections continue in this AD in 
order to ensure that the problem addressed is not reintroduced in the 
fleet.
    As for providing terminating action for the requirements of AD 74-
08-09, the FAA has not approved any action or modification that would 
constitute an appropriate ``terminating action.'' Specifically:
    a. With regard to the required installation of placards and 
ashtrays, those are one-time actions, requiring no additional 
``repetitive'' installations. Once they are installed, operators merely 
need to document the appropriate maintenance records to indicate this.
    b. With regard to the required procedure for announcements to 
aircraft occupants, this, too, would be a one-time action. Once a 
procedure is established, the operator would need only document the 
appropriate records to indicate this; no further documentation would be 
required.
    c. With regard to the required repetitive inspections, data 
currently available to the FAA indicate that the majority of U.S. 
operators of transport category airplanes are conducting these 
inspections every 1,000 hours, as specified by the AD, and some are 
conducting the inspections more frequently. Many operators have found 
discrepancies at the 1,000-hour inspection interval. There currently is 
no in-service data to substantiate that any action or modification 
exists that would preclude the need for a 1,000-hour inspection. These 
repetitive inspections are appropriate, since they ensure that any 
discrepancy will be identified and corrected in a timely manner.
    Further, the FAA does not concur with the commenter's request to 
allow operators to incorporate the provisions for these recurring 
inspections into the FAA-approved inspection program as ``terminating 
action'' for the AD. Incorporating the repetitive inspection program 
into the operator's maintenance or inspection program would allow 
escalation of inspection intervals, which the FAA finds inappropriate 
without adequate control.
    Additionally, while the vast majority of affected U.S.-registered 
airplanes are operated under FAA-approved maintenance/inspection 
programs, there are some airplanes that are not so operated, namely, 
certain airplanes that are excepted from the requirements of FAR part 
125 by Sec. 125.1. Because the applicability of the rule includes all 
transport airplanes, those ``excepted'' airplanes would still be 
subject to the AD's requirements; however, because they are not 
operated under an FAA-approved maintenance/inspection program, their 
operators would not be able to comply with an AD that required a 
revision to that program. Moreover, in accordance with existing 
bilateral airworthiness agreements with foreign countries, the FAA 
recognizes that one of the purposes of this AD action is to advise 
foreign authorities of the addressed unsafe condition, and to provide 
them with guidance as to appropriate methods for correcting it. Again, 
while revising the FAA-approved maintenance/inspection programs may be 
effective for many U.S. carriers, other countries do not regulate 
carriers in the same way. Specifically, foreign authorities may not 
have the same regulatory system of ``approved maintenance programs'' as 
in the U.S. Since the AD is formulated to address a worldwide system 
for preventing potential fires, the FAA considers that it would not be 
appropriate to change the requirement for the inspections as the 
commenter has requested.

Request To Permit Removal of Ashtrays

    One commenter requests that the proposal be revised to allow the 
removal of lavatory door ashtrays, especially on air carriers that 
prohibit smoking, or on flights for which smoking is prohibited under 
the appropriate portions FAR section 252 (14 CFR 252, ``Smoking aboard 
aircraft''). This commenter points out that the existing AD requires 
that ashtrays be installed, while other parts of the FAR prohibit 
smoking in the passenger cabin and lavatories for certain flights. This 
commenter, a U.S. operator, notes that it has, on occasion, experienced 
delays due to missing lavatory door ashtrays, even though smoking is 
not permitted during the flight. The commenter recommends that lavatory 
door ashtrays be considered ``passenger convenience items'' and, as 
such, be dispositioned under the provision of the appropriate Minimum 
Equipment List (MEL).
    The FAA does not concur. The requirement for the presence of an 
ashtray on or near the lavatory door provides a convenient disposal 
location for cigarettes (or other smoking material), and thereby 
ensures that there is a place to dispose of such material in the event 
that the ``no smoking'' policy is not adhered to. Further, the 
installation of an ashtray on or near the lavatory door will ensure 
that uninformed persons who find themselves with lighted smoking 
materials on the airplane will have an obvious location to dispose of 
smoking materials before entering the lavatory. Previous experience and 
reports have shown that there is a high probability that these persons 
may deposit the lighted smoking material in the lavatory paper or linen 
receptacle when no safe and convenient place to dispose it exists; such 
actions can result in an in-flight fire aboard the airplane. 
Accordingly, while the ``no smoking'' [[Page 21432]] policy is a 
positive feature that may contribute to safety, it is not meant to be a 
substitute for required equipment.
    Additionally, the FAA does not concur with the commenter's request 
to consider ashtrays as ``passenger convenience items'' that can be 
dispositioned under the MEL. As explained above, ashtrays do serve a 
safety function and, therefore, must be considered required equipment.

Request To Revise Estimated Cost of Compliance

    One commenter requests that the FAA revise its economic impact 
estimate relative to the cost of compliance with the AD. This commenter 
states that FAA's analysis of the cost may be reasonably representative 
of the recurring inspections currently required, but it does not 
consider the cost of research and recordkeeping involved when 
determining whether or not an airplane is fitted with lavatories or 
receptacles subject to the AD. The commenter contends that research and 
recordkeeping needed just to confirm that an airplane is not subject to 
the AD results in costs approximating the 1.5 work hours that the FAA 
indicates is the time required to accomplish the inspections.
    The FAA does not concur with the commenter's request. The 
applicability statement of the AD clearly limits the AD to those 
transport category airplanes that have one or more lavatories equipped 
with paper or linen waste receptacles. If an operator is not certain 
whether its airplane has lavatories so equipped, it may simply review 
the type design (drawings) of the airplane to determine this. A one-
time check of a drawing to determine whether or not the AD is 
applicable should not create an undue burden on any operator.

Conclusion

    After careful review of the available data, including the comments 
noted above, the FAA has determined that air safety and the public 
interest require the adoption of the rule as proposed.

Economic Impact

    Since this action only provides for an alternative method of 
complying with an existing rule, it does not add any new additional 
economic burden on affected operators. The current costs associated 
with this AD are reiterated below for the convenience of affected 
operators:
    The costs associated with the currently required placard 
installations entail approximately 1 work hour per airplane, at an 
average labor rate of $60 per work hour. The cost of required parts is 
negligible. Based on these figures, the total cost impact of the 
installation requirements of the AD on U.S. operators is estimated to 
be $60 per airplane.
    The costs associated with the currently required inspections entail 
approximately 1.5 work hours per airplane per inspection, at an average 
labor rate of $60 per work hour. Based on these figures, the total cost 
impact of the inspection requirements of this AD on U.S. operators is 
estimated to be $90 per airplane per inspection.

Regulatory Impact

    The regulations adopted 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 final 
rule does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.
    For the reasons discussed above, I certify that this action (1) is 
not a ``significant regulatory action'' under Executive Order 12866; 
(2) is not a ``significant rule'' under DOT Regulatory Policies and 
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a 
significant economic impact, positive or negative, on a substantial 
number of small entities under the criteria of the Regulatory 
Flexibility Act. A final evaluation has been prepared for this action 
and it is contained in the Rules Docket. A copy of it may be obtained 
from the Rules Docket at the location provided under the caption 
ADDRESSES.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me by the 
Administrator, the Federal Aviation Administration amends part 39 of 
the Federal Aviation Regulations (14 CFR part 39) as follows:

PART 39--AIRWORTHINESS DIRECTIVES -

    1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. App. 1354(a), 1421 and 1423; 49 U.S.C. 
106(g); and 14 CFR 11.89.

Sec. 39.13  [Amended] -

    2. Section 39.13 is amended by removing amendment 39-1917, and by 
adding a new airworthiness directive (AD), amendment 39-9214, to read 
as follows:

74-08-09 R1 Transport Category Aircraft: Amendment 39-9214. Docket 
94-NM-44-AD. Revises AD 74-08-09, Amendment 39-1917.

     -Applicability: All transport category airplanes, certificated 
in any category, that have one or more lavatories equipped with 
paper or linen waste receptacles.

     -Note: The following is a partial list of aircraft, some or all 
models of which are type certificated in the transport category and 
have lavatories equipped with paper or linen waste receptacles:

     -Aerospatiale Models ATR42 and ATR72 series airplanes; -
    Airbus Models A300, A310, A300-600, A320, A330, and A340 series 
airplanes; -
    Boeing Models 707, 720, 727, 737, 747, 757, and 767 series 
airplanes; -
    Boeing Model B-377 airplanes; -
    British Aircraft Models BAC 1-11 series, BAe-146 series, and ATP 
airplanes; -
    CASA Model C-212 series airplanes; -
    Convair Models CV-580, 600, 640, 880 and 990 series airplanes; -
    Convair Models 240, 340, and 440 series airplanes; -
    Curtiss-Wright Model CW 46; -
    de Havilland Models DHC-7 and DHC-8 series airplanes; -
    Fairchild Models F-27 and C-82 series airplanes; -
    Fairchild-Hiller Model FH-227 series airplanes; -
    Fokker Models F27 and F28 series airplanes; -
    Grumman Model G-159 series airplanes; -
    Gulfstream Model 1159 series airplanes; -
    Hawker Siddeley Model HS-748; -
    Jetstream Model 4101 series airplanes; -
    Lockheed Models L-1011, L-188, L-1049, and 382 series airplanes; 
-
    Martin Model M-404 airplanes; -
    McDonnell Douglas Models DC-3, -4, -6, -7, -8, -9, and -10 
series airplanes;
    Model MD-88 airplanes; and Model MD-11 series airplanes; -
    Nihon Model YS-11; -
    Saab Models SF340A and SAAB 340B series airplanes; -
    Short Brothers and Harlin Model SC-7 series airplanes; -
    Short Brothers Models SD3-30 and SD3-60 series airplanes:

    -Compliance: Required as indicated, unless accomplished 
previously. -
    To prevent possible fires that could result from smoking 
materials being dropped into lavatory paper or linen waste 
receptacles, accomplish the following: -
    (a) Within 60 days after August 6, 1974 (the effective date of 
amendment 39-1917, AD 74-08-09), or before the accumulation of any 
time in service on a new production aircraft after delivery, 
whichever occurs later, except that new production aircraft may be 
flown in accordance with Secs. 21.197 and 21.199 of the Federal 
Aviation Regulations (14 CFR 21.197 and 21.199) to a base where 
compliance may be accomplished, accomplish the requirements of 
paragraphs (a)(1) and (a)(2) of this AD: - [[Page 21433]] 
    (1) Install a placard either on each side of each lavatory door 
over the door knob, or on each side of each lavatory door, or 
adjacent to each side of each lavatory door. The placards must 
either contain the legible words, ``No Smoking in Lavatory'' or ``No 
Smoking;'' or contain ``No Smoking'' symbology in lieu of words; or 
contain both wording and symbology; to indicate that smoking is 
prohibited in the lavatory. The placards must be of sufficient size 
and contrast and be located so as to be conspicuous to lavatory 
users. -
    (2) Install a placard on or near each lavatory paper or linen 
waste disposal receptacle door, containing the legible words or 
symbology indicating ``No Cigarette Disposal.'' -
    (b) Within 30 days after August 6, 1974, establish a procedure 
that requires that no later than a time immediately after the ``No 
Smoking'' sign is extinguished following takeoff, an announcement be 
made by a crewmember to inform all aircraft occupants that smoking 
is prohibited in the aircraft lavatories; except that, if the 
aircraft is not equipped with a ``No Smoking'' sign, the required 
procedure must provide that the announcement be made prior to each 
takeoff. -
    (c) Within 180 days after August 6, 1974, or before the 
accumulation of any time in service on a new production aircraft, 
whichever occurs later, except that new production aircraft may be 
flown in accordance with Secs. 21.197 and 21.199 of the Federal 
Aviation Regulations (14 CFR 21.197 and 21.199) to a base where 
compliance may be accomplished, install a self-contained, removable 
ashtray on or near the entry side of each lavatory door. One ashtray 
may serve more than one lavatory door if the ashtray can be seen 
readily from the cabin side of each lavatory door served. -
    (d) Within 30 days after August 6, 1974, and thereafter at 
intervals not to exceed 1,000 hours time-in-service from the last 
inspection; accomplish the following: -
    (1) Inspect all lavatory paper and linen waste receptacle 
enclosure access doors and disposal doors for proper operation, fit, 
sealing, and latching for the containment of possible trash fires. -
    (2) Correct all defects found during the inspections required by 
paragraph (d)(1) of this AD. -
    (e) Upon the request of an operator, the FAA Principal 
Maintenance Inspector may adjust the 1,000 hour repetitive 
inspection interval specified in paragraph (d)(1) of this AD to 
permit compliance at an established inspection period of the 
operator if the request contains data to justify the requested 
change in the inspection interval. -
    (f) This amendment becomes effective on June 1, 1995.

    Issued in Renton, Washington, on April 26, 1995.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification 
Service.
[FR Doc. 95-10709 Filed 5-1-95; 8:45 am]
BILLING CODE 4910-13-U
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