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 Department of Transportation Federal Aviation Administration 14 CFR Part 39
[Docket No. FAA-2005-20352; Directorate Identifier 2004-NM-214-AD; Amendment 39-14249; AD 2005-18-09]
RIN 2120-AA64
 AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT).
 ACTION: Final rule.
 SUMMARY: The FAA is adopting a new airworthiness directive (AD) for certain Boeing Model 757-200 and -300 series airplanes and Model 767 series airplanes. This AD requires replacing the existing operational software of the Pegasus flight management computer (FMC) system with new, improved operational software. This AD results from reports of “old” or expired air traffic control (ATC) clearance messages being displayed on the control display unit (CDU) of the FMC system during subsequent flights. We are issuing this AD to prevent display of “old” or expired ATC clearance messages on the CDU of subsequent flights, which could result in the airplane entering unauthorized airspace or following a flight path that does not provide minimum separation requirements between aircraft, and a consequent near miss or a mid-air collision.
 DATES: Effective October 12, 2005. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of October 12, 2005.
 ADDRESSES: You may examine the AD docket on the Internet at 
                        *http://dms.dot.gov*
                         or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this AD.
 FOR FURTHER INFORMATION CONTACT: Samuel Slentz, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 917-6483; fax (425) 917-6590.


SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the AD docket on the Internet at 
                    *http://dms.dot.gov*
                     or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the 
                    **ADDRESSES**
                     section. Discussion The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 757-200 and -300 series airplanes and Model 767 series airplanes. That NPRM was published in the 
                    **Federal Register**
                     on February 15, 2005 (70 FR 7676). That NPRM proposed to require replacing the existing operational software of the Pegasus flight management computer (FMC) system with new, improved operational software. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM. Supportive or No Objection Comments for the NPRM One commenter supports the NPRM, and another commenter advises that it has no objection to the NPRM. Requests To Limit the Applicability of the NPRM Several commenters request that the applicability of the NPRM be limited to those airplanes that have the Air Traffic Services Data Link (ATS DL) enabled. The commenters advise that Flight Management Computer (FMC) systems that are not equipped with the optional operational program configuration (OPC) software to enable the ATS DL will never display Air Traffic Control (ATC) clearance messages (new, old, or expired) on the control display unit (CDU). The commenters point out that without the OPC, there is not the capability to get ATC clearance messages on the CDU. Therefore, the commenters contend that the NPRM should be applicable only to those airplanes that have the ATS DL FMC option enabled. Additionally, one commenter, an operator, contends that if airplanes not using ATS DL FMC are required to upgrade the Pegasus FMC software, the operators also will be forced to upgrade their older inertial reference units (IRU) due to differences in the magnetic variation models between Pegasus 2003 and the older IRU models. The commenter explains that upgrading the IRU would be a significant increase in its costs. The FAA agrees that the requirement to replace the OPS and FIDO software of the existing FMC with Pegasus 2003 OPS and FIDO software or Pegasus 2004 OPS and FIDO software should apply only to airplanes operating with an Air Traffice Services data link function enabled. We have revised paragraph (f) of this AD to clarify the applicability of that requirement. Requests To Add Service Information Several commenters, including the manufacturer, note that since the issuance of the NPRM, Boeing has issued new service bulletins that describe replacing the existing operational program software (OPS) and flight information and data output (FIDO) software of the FMC with Pegasus 2005 OPS and FIDO software. Accomplishment of the service bulletins is intended to correct certain problems that were experienced as a result of the installation of the Pegasus 2003 OPS and FIDO software, and to add other improvements on the map displays. The commenters request that the new service bulletins be added to the NPRM 
                    ( print page 53054)
                    as an optional method of compliance with the proposed requirements of the NPRM. We agree with the commenters' request. We have reviewed the new service bulletins and have added them to paragraph (f) of the AD and new Table 2, Pegasus 2005 OPS and FIDO—Applicable Service Bulletins, of this AD as an optional method of compliance with the requirements of this AD. Requests To Revise Paragraph (f) of the NPRM Two commenters request that we clarify that the use of the onboard software media binder (SMB) is optional. The commenters note that the accomplishment instructions of the service bulletins referenced in the NPRM could be construed to create a regulatory requirement for the existence of the onboard SMB. We agree with the commenters' request for the reason specified and have revised paragraph (f) of the AD to specify that replacing the existing OPS and FIDO diskettes in the software media binder is not required by this AD. Requests To Approve Later Service Bulletins Several commenters request that we revise the NPRM to permit use of future FAA-approved service bulletins to comply with the proposed requirements of the NPRM. The commenters contend that future FAA-approved service bulletins provide assurance that the software described in future bulletins would meet the required level of safety specified in the NPRM. Specifically, the commenters would like us to add the words, “or later approved versions.” We do not agree with the commenters' request. When referencing a specific service bulletin in an AD, using the phrase “or later FAA-approved revisions” in an AD would violate the Office of the Federal Register (OFR) regulations for approving materials that are incorporated by reference. In general terms, we are required by these OFR regulations to either publish the service document contents as part of the actual AD language, or submit the service document to the OFR for approval as “referenced” material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR has approved it for “incorporation by reference.” To allow operators to use later revisions of a referenced document, we must either revise the AD to reference the specific later revisions, or operators may request approval to use later revisions as an alternative method of compliance (AMOC) with this AD. Operators may request approval of an AMOC for this AD under the provisions of paragraph (h) of this AD. Request To Revise the Costs of Compliance Section One commenter, the manufacturer, requests that we revise the estimated number of airplanes affected from 857 in the worldwide fleet and 547 on the U.S. registry to 310 airplanes estimated for the worldwide fleet and 247 airplanes estimated for airplanes of U.S. registry. We agree with the commenter. Based on our decision to clarify the applicability of the requirements of paragraph (f) of the AD, (reference the first comment discussion, “Request to Limit the Applicability of the NPRM”), we have revised the “Costs of Compliance” section of this AD to reflect the numbers specified by the commenter above. Clarification of Error in Certain Boeing Service Bulletins We noticed a typographical error in the effectivity of Boeing Service Bulletin 767-34-0472, dated March 17, 2005, and Boeing Alert Service Bulletin 767-34A0390, dated February 19, 2004. We have verified with the manufacturer that the effectivity of these service bulletins is intended to be for Model 767-400ER series airplanes rather than for 747-400ER series airplanes. Therefore, the applicability of this AD is correct and remains the same as the NPRM. Conclusion We have carefully reviewed the available data, including the comments that have been received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance There are about 310 airplanes of the affected design in the worldwide fleet. This AD will affect about 247 airplanes of U.S. registry. The required actions will take about 3 work hours per airplane, at an average labor rate of $65 per work hour. The manufacturer will provide required parts to the operators at no cost. Based on these figures, the estimated cost of this AD for U.S. operators is $48,165, or $195 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the 
                    **ADDRESSES**
                     section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation
Aircraft
Aviation safety
Incorporation by reference
Safety
 Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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. 106(g), 40113, 44701. § 39.13
 2.The Federal Aviation Administration (FAA) amends § 39.13 by adding the following new airworthiness directive (AD): **2005-18-09 Boeing:**
                             Amendment 39-14249. Docket No. FAA-2005-20352; Directorate Identifier 2004-NM-214-AD. Effective Date (a) This AD becomes effective October 12, 2005. Affected ADs (b) None. Applicability (c) This AD applies to Boeing Model 757-200 and -300 series airplanes and Model 767-200, -300, -300F, and -400ER series airplanes; certificated in any category; equipped with a Pegasus flight management computer (FMC) system. Unsafe Condition (d) This AD was prompted by reports of “old” or expired air traffic control (ATC) clearance messages being displayed on the control display unit (CDU) of the FMC system during subsequent flights. We are issuing this AD to prevent the airplane from entering unauthorized airspace or following a flight path that does not provide minimum separation requirements between aircraft, and a consequent near miss or mid-air collision. Compliance (e) You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Replacing the Operational Program Software (OPS) and Flight Information and Data Output (FIDO) Software (f) For all airplanes operating with an Air Traffic Services data link function enabled: With the exception of the work instruction to replace the existing OPS and FIDO diskettes in the software media binder, which is not required by this AD, within 18 months after the effective date of this AD, replace the OPS and FIDO software of the existing FMC with Pegasus 2003 OPS and FIDO software or Pegasus 2005 OPS and FIDO software, in accordance with the applicable service bulletin specified in either Table 1 or Table 2 of this AD. Table 1.—Pegasus 2003 OPS and FIDO—Applicable Service Bulletins
Boeing Airplane Model
Boeing Alert Service Bulletin
Dated757-200 series airplanes
757-34A0258
February 12, 2004.757-300 series airplanes
757-34A0259
February 12, 2004.767-200, -300, and -300F series airplanes
767-34A0389, Revision 2
December 16, 2004.767-400ER series airplanes
767-34A0390
February 19, 2004.
 Table 2.—Pegasus 2005 OPS and FIDO—Applicable Service Bulletins
Boeing Airplane Model
Boeing 
                                     Service  
                                     Bulletin
Dated757-200 series airplanes
757-34-0324
March 17, 2005.757-300 series airplanes
757-34-0325
March 17, 2005.767-200, -300, and -300F series airplanes
767-34-0471
March 17, 2005.767-400ER series airplanes
767-34-0472
March 17, 2005.
 Acceptable for Compliance (g) Accomplishment of Boeing Alert Service Bulletin 767-34A0389, dated February 19, 2004; or Revision 1, dated September 16, 2004, before the effective date of this AD, is an acceptable method of compliance with the requirements of this AD. Alternative Methods of Compliance (AMOCs) (h) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19. Material Incorporated by Reference (i) You must use the applicable service bulletin in Table 3 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Room PL-401, Nassif Building, Washington, DC; on the internet at 
                            *http://dms.dot.gov*; or at the National Archives and Records Administration (NARA). For information on the availability of this material at the NARA, call (202) 741-6030, or go to 
                            *http://www.archives.gov/​federal_​register/​code_​of_​federal_​regulations/​ibr_​locations.html*. Table 3.—Material Incorporated by Reference
Service Bulletin
Revision level
DateBoeing Alert Service Bulletin 757-34A0258
Original
February 12, 2004.Boeing Alert Service Bulletin 757-34A0259
Original
February 12, 2004.Boeing Alert Service Bulletin 767-34A0389
2
December 16, 2004.Boeing Alert Service Bulletin 767-34A0390
Original
February 19, 2004.Boeing Service Bulletin 757-34-0324
Original
March 17, 2005.Boeing Service Bulletin 757-34-0325
Original
March 17, 2005.Boeing Service Bulletin 767-34-0471
Original
March 17, 2005.Boeing Service Bulletin 767-34-0472
Original
March 17, 2005.
 Issued in Renton, Washington, on August 29, 2005. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.


[FR Doc. 05-17607 Filed 9-6-05; 8:45 am] BILLING CODE 4910-13-P