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###### Department of Transportation

###### Federal Aviation Administration 

          - 14 CFR Part 25 
          - [Docket No. NM391; Special Conditions No. 25-273-SC] 

# AGENCY:

Federal Aviation Administration (FAA), DOT. 

# ACTION:

Final special conditions. 

# SUMMARY:

These special conditions are issued for the Embraer S.A. Model ERJ 190-100 ECJ airplane. This airplane will have novel or unusual design features associated with access during flight of the main deck Class C cargo compartment. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. 

# DATES:

*Effective Date:*                         September 10, 2008.                     

# FOR FURTHER INFORMATION CONTACT:

Jayson Claar, FAA, Airframe/Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone 425-227-2194; facsimile 425-227-1232. 

# SUPPLEMENTARY INFORMATION:

## Background 

Embraer S.A., made the original application for certification of the ERJ 190 on May 20, 1999. The Embraer application includes six different models, the initial variant being designated as the ERJ 190-100. The application was submitted concurrently with that for the ERJ 170-100, which received an FAA type certificate (TC) on February 20, 2004. Although the applications were submitted as two distinct TCs, the airplanes share the same conceptual design and general configuration. On July 2, 2003, Embraer S.A., submitted a request for an extension of its original application for the Embraer S.A., Model ERJ 190 series, with a new application date of May 30, 2001, for establishing the type certification basis. The FAA certification basis was adjusted to reflect this new reference date. In addition, Embraer has elected to voluntarily comply with certain 14 CFR part 25 amendments introduced after the May 30, 2001, application date. 

                    On May 30, 2001, Embraer S.A., amended the application to include the Embraer S.A., Model ERJ 190-100 ECJ. The Embraer S.A., Model ERJ 190-100 ECJ is a derivative of the Embraer S.A.,                           ( print page 46540)                        Model ERJ 190 which is approved under Type Certificate No. A57NM. The Embraer S.A., Model ERJ 190-100 ECJ is a low wing, transport-category aircraft powered by two wing-mounted General Electric CF34-10E6 turbofan engines. The airplane is a 19 passenger regional jet with a maximum take off weight of 54,500 kilograms (120,151 pounds). The maximum operating altitude and speed are 41,000 feet and 320 knots calibrated air speed (KCAS)/0.82 MACH, respectively. The Embraer S.A., Model ERJ 190-100 ECJ design includes an accessible main deck Class C cargo compartment.                 

The regulations consider that a “cargo compartment” is not intended for access during flight by the traveling public. The intent of the Class C cargo compartment was that it be a self-contained, isolated compartment intended to carry baggage and/or cargo. It was not intended for access during flight. Access into a cargo compartment inherently carries with it an increased level of risk as baggage or cargo could shift, a decompression could occur in the compartment, or a fire could develop during the flight. The FAA considers that any of these threats are beyond passengers' capabilities. In addition, there are security concerns with in-flight access to baggage and/or cargo placed in the Class C cargo compartment. 

The FAA acknowledges that an allowance was made specifically for crew access into a Class B cargo compartment for the express purpose of fire fighting. Passengers' access during flight into aft Class B cargo compartments has been permitted in the past for other small aircraft that are operated under part 91 and 135 operations. Passengers' quick access to luggage has been allowed because of the limited duration for use and limited number of passengers possibly affected. These approvals were granted before the increased security concerns and the new regulations imposed by the Transportation Security Administration (TSA) to address the security concerns. 

The FAA gave no consideration to a flight-accessible Class C cargo compartment when the classification was first developed, as no manufacturer had ever proposed to incorporate such a feature into their design. Inherently a “cargo compartment” was not intended for access, especially by the traveling public. 

The FAA acknowledges that a previous Embraer airplane, the Embraer S.A., Model EMB 135BJ, has a flight-accessible Class C cargo compartment that was approved using an equivalent level of safety finding. The Embraer S.A., Model EMB 135BJ design is similar to the proposed design for the ERJ 190-100 ECJ. The Embraer S.A., Model EMB 135BJ approval was granted before the increased security concerns and the new regulations imposed by the TSA to address security concerns. We have determined that because the existing airworthiness standards do not contain adequate or appropriate safety standards, relative to cargo compartment accessibility by passengers during flight, special conditions are the appropriate method for this and all future accessible Class C cargo compartments. 

## Type Certification Basis 

Under the provisions of § 21.101, Embraer S.A. must show that the Embraer S.A., Model ERJ 190-100 ECJ meets the applicable provisions of the regulations incorporated by reference in Type Certificate No. A57NM or the applicable regulations in effect on the date of application for the change to the ERJ 190-100 ECJ. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” 

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the Embraer S.A., Model ERJ 190-100 ECJ because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. 

In addition to the applicable airworthiness regulations and special conditions, the Embraer S.A., Model ERJ 190-100 ECJ must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. 

The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.101. 

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. 

## Novel or Unusual Design Features 

The Embraer S.A., Model ERJ 190-100 ECJ will incorporate a novel or unusual design feature of in-flight access to a Class C cargo compartment. 

## Discussion 

The FAA considers that Class C cargo compartment access during flight may impact the isolation of the passenger cabin from the cargo compartment, which is needed to protect the passengers from any fire and smoke that may start within the cargo compartment, as required by § 25.857(c). In addition, in-flight access to the Class C compartment creates unique hazards resulting from passengers having access to cargo and baggage in the compartment. These hazards include safety for the persons entering the cargo compartment, possible hazards to the airplane as a result of this access, and security concerns with access to the baggage and/or cargo. These special conditions provide additional requirements necessary to ensure sufficient cabin isolation from fire and smoke in this unusual design configuration, and for passenger safety while occupying the Class C compartment during flight. 

### Security 

The FAA has been in contact with the TSA to understand the security concerns with passengers having access in-flight to baggage and/or cargo, and specifically with regard to unscreened (checked) baggage/cargo. The TSA has provided the following information to clarify the regulations concerning access to cargo compartments by passengers. 

Aircraft operators holding operating certificates under 14 CFR part 119 for scheduled passenger operations, public charter passenger operations, and private charter passenger operations must have an aircraft operator security program. For U.S. flag carriers 49 CFR 1544 regulates the operator security program. Specifically, 49 CFR 1544.101(a)-(i) describes the type of program an aircraft operator must adopt depending on the type of aircraft operation. For the vast majority of operations in-flight access to checked baggage and/or cargo by passengers is NOT permitted by the aircraft operator security program. Aircraft operators should contact their Principal Security Inspector (PSI) concerning in-flight access to checked baggage and/or cargo by passengers. 

                    For airplanes not operated for hire or offered for common carriage (e.g., operation under FAA operating rules 14 CFR parts 91 or 125), flight-accessibility to baggage and/or cargo placed in the Class C cargo compartment is controlled by the operator of the airplane. This provision does not preclude the operator from receiving remuneration to the extent consistent with 14 CFR parts 125 and 91, subpart F, as applicable. These airplane operators do not hold                           ( print page 46541)                        operating certificates under 14 CFR part 119.                 

For airplanes operated for hire or for common carriage (e.g., operation under FAA operating rules 14 CFR part 119), the TSA regulations provided in 49 CFR 1544.203 prohibit in-flight access to checked baggage and cargo. Checked baggage and cargo do not pass through the screening required of carry-on baggage, and thus may introduce a security concern if passengers are provided in-flight access. 

# Note:

These special conditions are specific to the in-flight accessible Class C cargo compartment. Security requirements for occupants and for baggage/cargo placed in other locations continue to be subject to the screening requirements and operator's security program as identified in 49 CFR 1544.

### Fire Protection and Alerting 

It is the FAA's position that the threat of fire is of paramount concern, and therefore prompt crew action to fight the fire must be taken to prevent a fire from threatening the safety of the airplane. 

For Class C cargo compartments, the means of controlling a fire is by flooding the compartment with an extinguishing agent. These extinguishing agents are hazardous to humans. In the event of smoke detection, the flightcrew should ensure that the cargo compartment is not occupied before they discharge the extinguishing agent. To address this concern, a warning system is provided to the flight crew to alert them when a person is in the cargo compartment. 

After the extinguishing agent has been discharged into the compartment, there must be a means of alerting a person(s) not to enter the compartment. It must be located adjacent to the entry/exit door that provides access into the compartment. Access into the cargo compartment must be prevented after discharge of the extinguishing agent to prevent persons from being exposed to the extinguishing agent and to keep the extinguishing agent in the compartment to control the fire. 

Passengers in the cabin are alerted when oxygen is needed. A person in the cargo compartment would not be alerted when oxygen is needed. To address this concern, an aural and visual indication system within the cargo compartment is required to alert the person(s) that oxygen is required. An oxygen dispensing unit must be provided adjacent to the entry door into the cargo compartment to have oxygen readily available for the person leaving the compartment. The oxygen supply lines must not be routed into the cargo compartment because that would provide a source of oxygen to the cargo which would feed a fire. 

### Cargo Restraint 

If a net is used as the primary means of retention of the cargo, an untrained person accessing a cargo compartment may not be capable of securing the net correctly to maintain the retention of the cargo. The improperly restrained cargo could be a hazard in flight to the safe operation of the airplane and a hazard to the occupants under crash load conditions. 

## Discussion of Comments 

                    A notice of proposed special conditions No. 25-08-05-SC for the Embraer S.A., Model ERJ 190-100 ECJ airplanes was published in the                     **Federal Register**                     on April 21, 2008 (73 FR 21286).                 

A comment was received from Embraer S.A. 

*Requested change:*                     Embraer agreed with all proposed special conditions except for the private use only limitation in Condition No. 8. Embraer noted that 49 CFR 1544.203(d)(2) requires the operator to prevent access to checked baggage. Embraer also noted that because the ERJ 190-100 ECJ Class C cargo compartment is accessible in-flight, all baggage placed there is not checked baggage, but rather is considered accessible subject to the screening requirements of 49 CFR 1544.201. Embraer proposed to include guidance in the ERJ 190-100 ECJ operational publications describing the applicable TSA regulations and how the accessible main deck Class C compartment should be treated in compliance with those regulations. Embraer further noted that the security issue is relevant to in-flight baggage accessibility, and is not related to the unique feature (built-in fire extinguishing) of the ERJ 190-100 ECJ Class C compartment, and that many other airplanes have been certified since the EMB-135BJ with flight accessible compartments, without any private use limitations. Embraer believes that the private use, not-for-hire limitation proposed by the FAA is not necessary and, if imposed, would preclude the ERJ 190-100 ECJ from operating in the charter market. Embraer proposed that when all of the in-flight accessible cargo/baggage is screened as carried on baggage/cargo, the airplane should be permitted to be operated for hire and for common carriage.                 

*FAA Disposition:*                     We partially agree with the Embraer comments. When all of the occupants and in-flight accessible baggage/cargo are subject to the accessible baggage screening requirements identified in 49 CFR part 1544 there would not be a need to limit the operation of the airplane to private use, not for common carriage. We have revised Condition No. 8 to allow operation for hire and common carriage when the occupants and the baggage/cargo that is accessible in-flight are subject to the screening requirements of 49 CFR part 1544. It should be noted that the screening of the occupants and carry on baggage is addressed by the operators' security program as identified in 49 CFR part 1544. AFM Limitations are necessary to ensure that flight crews are aware of the unique security requirements associated with in-flight accessible compartments when operating for hire or for common carriage. The FAA has imposed similar limitations on other programs initiated since increased security requirements were introduced, and intends to continue to do so for future projects that introduce in-flight accessible cargo compartments, regardless of the classification of those compartments per 14 CFR 25.857.                 

## Applicability 

As discussed above, these special conditions are applicable to the Embraer S.A., Model ERJ 190-100 ECJ. Should Embraer S.A. apply at a later date for a change to the type certificate on the same type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well. 

## Conclusion 

This action affects only certain novel or unusual design features on the Embraer S.A., Model ERJ 190-100 ECJ airplanes. It is not a rule of general applicability. 

# List of Subjects in 14 CFR Part 25

      - Aircraft
      - Aviation safety
      - Reporting and recordkeeping requirements

The authority citation for these special conditions is as follows: 

Authority:49 U.S.C. 106(g), 40113, 44701, 44702, 44704. 

## The Special Conditions 

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer S.A. Model ERJ 190-100 ECJ airplanes. 

1. There must be a clear, visual message in the cockpit to advise the flightcrew when the main deck Class C cargo compartment is occupied. 

                        2. There must be means provided to keep the cargo door open while the                               ( print page 46542)                            cargo compartment is occupied. There must be a placard located on or adjacent to the cargo door instructing occupants that the door must be closed and latched at all times except when someone is in the cargo compartment. This placard must also instruct the person entering the cargo compartment to keep the door open when they are in the cargo compartment and to immediately close and latch the door when they exit the cargo compartment.                     

3. There must be a (on/off) visual advisory/warning stating “Do Not Enter” (or similar words) to be located outside of and on or near the main entry door/hatch to the main deck cargo compartment. The advisory/warning is to be controlled from the flight deck. 

4. There must be an aural and visual warning provided in the baggage compartment to alert an occupant when an oxygen mask must be donned immediately. 

5. Oxygen dispensing units must be automatically presented and immediately available to an occupant(s) of the baggage compartment when they exit the compartment. For these special conditions, immediately available means the oxygen dispensing units are located in the passenger cabin near the main entry door/hatch to the main deck cargo compartment (no oxygen supply lines are allowed to be routed into the compartment). The number of oxygen dispensing units must be equal to the number of occupants allowed in the cargo compartment. There must be a placard located on or adjacent to the cargo door instructing occupants of the maximum number of occupants allowed in the cargo compartment. 

6. For cargo and baggage placed in the baggage compartment whose primary retention means is by net, the net must be constructed so that the means of opening and closing or securing the net is easily identified and operated. 

                        7. These special conditions apply to main deck accessible Class C cargo compartments with volumes of 10 m3                         or less. Class C cargo compartments that are accessible to passengers with a volume greater than 10 m3                         may be approved, but would likely require additional limitations or provisions to mitigate the larger volume. Note that there may also be a maximum volume above which access is not acceptable.                     

8. Operational limitations: The airplane has operational limitations associated with the level of screening required for baggage/cargo that is placed in the in-flight accessible Class C cargo compartment. These limitations must be documented in the Airplane Flight Manual (AFM). 

(a) When the airplane is not operated for hire or offered for common carriage screening of the baggage/cargo placed in the in-flight accessible Class C compartment is the responsibility of the operator of the airplane. This provision does not preclude the operator from receiving remuneration to the extent consistent with 14 CFR parts 125 and 91, subpart F, as applicable. 

(b) When the airplane is operated for hire or operated for common carriage, the baggage/cargo placed in the in-flight accessible Class C compartment is subject to the screening requirements and operators security program as identified in 49 CFR part 1544.

Issued in Renton, Washington, on July 31, 2008. 

Ali Bahrami, 

Manager, Transport Airplane Directorate, Aircraft Certification Service.

[FR Doc. E8-18474 Filed 8-8-08; 8:45 am] 

BILLING CODE 4910-13-P