New Compliance Date Pushed As Far As April 2012

Saying it is "seriously disappointed" in major airline manufacturers, the FAA has re-opened comments on an NPRM that would require manufacturers to upgrade the digital cockpit voice and flight data recorders used in commercial aircraft. The new compliance dates are December 2010 for some aircraft, and April 2012 for others.

The change is in response to comments from half a dozen plane makers who said in concert that they would be unable to meet the April 2010 deadline for compliance. The original final rule was published in the Federal Register March 7th, 2008, and according to the FAA "53 commenters responded, but only three of them included any comment about compliance time. Most comments focused on technical considerations or the cost of compliance rather than the time proposed. Of the few comments regarding compliance time, one came from Airbus concerning the installation of the CVR independent power source for aircraft to be manufactured beginning in April 2010, requesting an increase from two to four years. We replied that Airbus was the only manufacturer that indicated that the proposed compliance time was a problem, and that Airbus did not provide us with any data to support its position that integration of the power source into newly manufactured aircraft could not be accomplished in two years. Airbus also commented that the proposed two-year time frame for integration of increased recording rates of 16 Hertz (Hz) for certain parameters was unrealistic. The FAA received numerous comments regarding technical considerations of the increased recording rates (not the compliance time). In the final rule, we adopted a lower (8 Hz) sampling rate in response to these comments. The FAA believed that incorporating the 8 Hz rate into newly manufactured aircraft was achievable in the two-year compliance time."

The requests for relief from the compliance deadline began in May of 2009. The first was from Boeing. In a letter dated May 1, 2009, the company said "[D]ue to the complexity and high level of integration of the underlying avionics systems, Boeing has determined that type certificate design changes, certification, and implementation in production are not feasible for the 777 by the date in the regulation. As a result, Boeing would not be able to offer the DLC capability it does now, and its customers would be unable to achieve the increased quality of controller-pilot communications that leads to more efficient routing, less fuel burn and reduced emissions."

In a letter dated May 1, 2009, Bombardier, Inc. (Bombardier) petitioned the FAA to change the part 135 requirements adopted in the 2008 final rule that require increased sampling rates for two DFDR parameters (docket number FAA-2009-0441). Bombardier noted that, although as a manufacturer it is not subject to part 135 since it is an operating rule, it considers itself responsible to deliver part 135 compliant aircraft to its U.S. customers. Because the FAA does not grant operational relief to manufacturers, Bombardier presented its request as a petition for rulemaking to change the regulatory requirement for its aircraft. Bombardier found that the increased rates required by the regulation for two parameters could not be integrated into its BD-700 Model aircraft by the compliance date without significant system modifications. Bombardier requested relief for the BD-700 until it is able to introduce a new avionics suite that is scheduled for installation beginning in 2011.

In a letter dated June 11, 2009, Airbus petitioned the FAA on behalf of the operators of 15 Airbus airplanes to be manufactured between April 7, 2010 and December 31, 2011, to operate without the DLC recording capability required by the 2008 final rule. Airbus cited the same reasons for its request as appear in the Boeing petitions, that certification and implementation of the design changes necessary are not feasible by April 7, 2010.

Gulfstream made a similar request in September of last year, and in October, GAMA petitioned the FAA to amend parts 91 and 135 to the extent necessary to extend the implementation date for some of the requirements in the 2008 final rule (docket number FAA-2009-0963). GAMA stated that "[F]or a number of reasons, a large segment of the general aviation business aircraft industry will not be in a position to comply with all aspects of the new requirements" by April 7, 2010. It cited equipment availability, resource constraints and greater technical impact than initially considered. The GAMA sought regulatory relief from the requirements for DLC recording and for increased DFDR sampling rates.

Similar petitions followed from AIA, Dassault, and Embraer.

In acknowledging these petitions, the FAA has agreed to push the compliance dates, but used strong language to let the manufacturers know it was not happy with the development. It wrote in the Federal Register "The FAA is seriously disappointed with the manufacturers and other facets of the industry. The identicality and scope of the various petitions appears as a decision by industry not to comply with the April 2010 date, a decision that was made some time ago. Through contact with the petitioners, the FAA was made aware that one of the current circumstances appears to be the lack of equipment design and integration that begins with avionics equipment manufacturers. Most glaringly, in none of the petitions do the airframe manufacturers indicate that they had properly planned for regulatory compliance and are petitioning now because they are unable to obtain timely delivery of the necessary equipment. Nor is there any evidence that the airframe manufacturers have pressed the suppliers for timely delivery of either design modifications or equipment. None of the petitions addresses the clear failure to plan for and implement a regulatory requirement that was first proposed in 2005. Only the GAMA petition states that economic circumstances have changed enough to warrant a change to the compliance time. Despite a dearth of specific comment to the proposed rule on compliance time, the FAA is now faced with the discovery by six major airframe manufacturers that compliance "is not feasible" less than a year before it is due. There is nothing to indicate what, if any, efforts the petitioners made in the 13 months between the publication of the final rule and the FAA's receipt of the first petition."

Under the new proposed rules, the compliance date for increased DFDR sampling rates for newly manufactured airplanes operated under part 121, 125, or 135 would be extended until December 6, 2010. For airplanes operating under parts 121, 125 or 135, datalink communications would have to be recorded when datalink communication equipment is installed after December 6, 2010.

For the ten-minute backup power source for CVRs, the compliance date for part 91 operators (only) would be extended to April 6, 2012. For increased DFDR sampling rates, the compliance date for newly manufactured airplanes operated under part 91 would be extended until April 6, 2012. And for airplanes operating under part 91, datalink communications would have to be recorded when datalink communication equipment is installed after April 6, 2012.

Comments are due by February, but the FAA says that only "[c]omments that include specific, realistic examples of equipment availability will be considered. These comments should include detailed information describing the reason for the lack of equipment availability, other options that have been considered and the efforts that have been taken to achieve compliance. Generalized statements, such as the ones presented in the petitions, are not valid evidence that the industry is unable to comply, only that it has chosen not to."

FMI: www.faa.gov