Airplane Fuel Efficiency Certification
| Published date | 16 February 2024 |
| Record Number | 2024-02330 |
| Citation | 89 FR 12634 |
| Court | Federal Aviation Administration |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 33 (Friday, February 16, 2024)
[Federal Register Volume 89, Number 33 (Friday, February 16, 2024)]
[Rules and Regulations]
[Pages 12634-12663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02330]
[[Page 12633]]
Vol. 89
Friday,
No. 33
February 16, 2024
Part IV Department of Transportation----------------------------------------------------------------------- Federal Aviation Administration-----------------------------------------------------------------------14 CFR Parts 21, 38, 121, et al.Airplane Fuel Efficiency Certification; Final Rule
Federal Register / Vol. 89, No. 33 / Friday, February 16, 2024 /
Rules and Regulations
[[Page 12634]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 21, 38, 121, and 125
[Docket No.: FAA-2022-0241 Amdt. No. 121-391, 125-75, 38-1, 21-107]
RIN 2120-AL54
Airplane Fuel Efficiency Certification
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This action adopts fuel efficiency requirements for
certification of certain airplanes. These certification requirements
implement the emissions standards adopted by the Environmental
Protection Agency (EPA) to allow manufacturers to certificate their
airplanes for fuel efficiency in the United States. This action also
fulfills the FAA's Clean Air Act obligations to enforce implementation
of EPA's aircraft emissions standards for greenhouse gas emissions.
DATES: Effective April 16, 2024.
The incorporation by reference of a certain publication listed in
this rule is approved by the Director of the Federal Register as of
April 16, 2024.
ADDRESSES: For information on where to obtain copies of rulemaking
documents and other information related to this final rule, see ``How
to Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this action, contact Ralph Iovinelli, Office of Policy, International
Affairs, & Environment, Emissions Division (AEE-300), Federal Aviation
Administration, 800 Independence Avenue SW, Washington, DC 20591;
telephone 202-267-3566; email [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose of the Regulatory Action
As a signatory State to the Chicago Convention, the United States
must establish minimum standards consistent with those prescribed by
the International Civil Aviation Organization (ICAO) on a wide range of
aviation-related matters, including aircraft emissions, or file a
difference. The United States' adoption of the 2017 ICAO carbon dioxide
(CO2) emission standards for certain airplanes aligns United
States law with the ICAO standards.
Moreover, the Clean Air Act Amendments of 1970 (Clean Air Act)
direct the U.S. Environmental Protection Agency (EPA) to adopt
standards applicable to the emission of any air pollutant from any
class of aircraft engines. The Clean Air Act also directs the Secretary
of Transportation (and by delegation, the Administrator of the FAA) to
implement the standards adopted by the EPA.\1\ On January 11, 2021, the
EPA published a final rule adopting new domestic airplane greenhouse
gas (GHG) emissions standards in 40 Code of Federal Regulations (CFR)
part 1030.\2\ As required by the Clean Air Act \3\, the FAA is
implementing those EPA standards through this final rule by adopting
new certification regulations in 14 CFR part 38 for fuel efficiency for
certain covered airplanes. The applicability of these regulations and
the regulatory emissions limits are the same as those adopted by ICAO
in its airplane CO2 emission standards.
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\1\ ``The Secretary of Transportation, after consultation with
the Administrator, shall prescribe regulations to insure compliance
with all standards prescribed under section 7571 of this title by
the Administrator. The regulations of the Secretary of
Transportation shall include provisions making such standards
applicable in the issuance, amendment, modification, suspension, or
revocation of any certificate authorized by part A of subtitle VII
of title 49 or the Department of Transportation Act.'' 42 U.S.C.
7572
\2\ Federal Register Vol. 86, No. 6, Final Rule, 40 CFR parts 87
and 1030 ``Control of Air Pollution from Airplanes and Airplane
Engines: GHG Emission Standards and Test Procedures,'' Environmental
Protection Agency, pp. 2136-2174.
\3\ 42 U.S.C. 7571
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This rulemaking establishes fuel efficiency certification
requirements for certain subsonic jet airplanes with a maximum takeoff
mass greater than 5,700 kilograms and for certain propeller-driven
airplanes with a maximum takeoff mass greater than 8,618 kilograms.
Under this final rule, an airplane is subject to these certification
requirements: (1) at new (original) type certification; (2) upon
manufacture of any covered airplane after January 1, 2028; or (3) when
a modification to a covered airplane meets change criteria specified in
the regulations. This rulemaking excepts from applicability airplanes
used for firefighting, amphibious airplanes, airplanes lower than
specific masses, reciprocating engine airplanes, non-pressurized
airplanes, and certain specialized operations airplanes.
For covered airplanes, a certification applicant must demonstrate
that the airplane meets these new part 38 requirements. The new part 38
requirements established by this rulemaking prescribe fuel efficiency
limits, which are the emission standards adopted by the EPA. This
rulemaking expresses fuel efficiency limits as maximum permitted fuel
efficiency metric (FEM) values that are determined by the maximum
takeoff mass of the airplane. Thus, the applicant must determine an FEM
value to demonstrate compliance against the applicable fuel efficiency
limit. The two certifiable components of the FEM are the specific air
range (SAR) and the reference geometric factor (RGF). The SAR
represents the distance an airplane can travel per unit of fuel
consumed and is determined by direct flight test measurement or use of
a validated performance model. The RGF is a representation of airplane
fuselage size based on the floor area of pressurized space in an
airplane. The technical detail needed to determine the FEM value of an
airplane is included in Appendix A to part 38. An applicant must
receive FAA approval for all information the applicant uses to
calculate the FEM value of an airplane. To comply with part 38, the FEM
value must not exceed the airplane's applicable fuel efficiency limit.
In addition, to fully implement the EPA standards through the FAA's
certification process, this rulemaking makes corresponding changes to
the FAA certification procedures in part 21 to include compliance with
part 38 as a certification requirement. Moreover, this rulemaking
requires that the FEM value of the airplane, along with other part 38
compliance information, be placed in an FAA-approved section of the
flight manual of the airplane.
The FAA's adoption of these certification requirements implements
the emissions standards adopted by the EPA, allows manufacturers to
certificate their airplane for fuel efficiency in the United States,
and fulfills the statutory obligations of the FAA under the Clean Air
Act. The FAA's promulgation of this Airplane Fuel Efficiency regulation
is the final step for the United States in implementing the 2017 ICAO
carbon dioxide (CO2) emission standards for certain
airplanes promulgated in Annex 16 Volume III under the Chicago
Convention.
B. Changes Made in This Final Rule
The FAA has adopted part 38 and sections of parts 21, 121, and 125
largely as they were proposed in a notice of proposed rulemaking (NPRM)
that was published on June 15, 2022.\4\
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\4\ Federal Register Vol. 87, No. 115, Notice of Proposed
Rulemaking, 14 CFR parts 21, 38, 121, and 125 ``Airplane Fuel
Efficiency Certification,'' Federal Aviation Administration, pp.
36076-36091.
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[[Page 12635]]
The FAA considered the public comments it received on its proposal
and the adopted rule reflects consideration of those comments. The FAA
received over 60 comments on the NPRM, ranging from suggested
typographical and grammatical edits to substantive comments on proposed
regulatory text and language in the NPRM preamble. As a result of these
comments, the FAA made changes throughout the regulatory text. For
instance, the FAA revised the language in the applicability and change
criteria sections (Sec. Sec. 38.1 and 38.19) to clarify the
applicability of part 38 to newly built airplanes and modifications to
airplanes. These revisions clarify this final rule is not applicable to
modifications of in-service airplanes that have not previously shown
compliance to part 38 prior to the modification, except for
manufacturers who are required to comply with part 38 for in-production
airplanes that have not received their first certificate of
airworthiness as provided in the applicability section of this rule.
The FAA also made edits to several technical requirements in Appendix A
(e.g., center of gravity, airplane weight, fuel samples, flight test
procedures, and calculations and corrections of test data). Revisions
to sections within parts 21 and 121 include: the inadvertent omission
of the reference to these new fuel efficiency certification
requirements in the certification provisions (Sec. 21.21), consistency
edits (Sec. 21.93), and correction of an error (Sec. 121.141).
II. Authority for This Rulemaking
The FAA's authority to issue rules on aviation safety is found in
Title 49 of the United States Code (49 U.S.C.). Subtitle I, Section 106
describes the authority of the FAA Administrator.
The Clean Air Act, 42 U.S.C. 7572, authorizes the Secretary of
Transportation to implement aviation emission standards adopted by the
EPA to insure compliance with the same. Furthermore, 49 CFR 1.83(c)
delegates to the FAA Administrator the authority to carry out the
functions of this section of the Clean Air Act.
This rulemaking adopts regulations to insure compliance with the
standards adopted by the EPA under the Clean Air Act in 40 CFR part
1030 to control the emissions of certain GHG emissions from airplanes.
This rulemaking is issued under the authority described in 42 U.S.C.
7572 and 49 CFR 1.83(c).
III. Background
A. General Background
As a signatory State to the Chicago Convention, the United States
must establish minimum standards consistent with those prescribed by
ICAO or file a difference with ICAO if the United States' standards
differ from them in any particular respect. The Committee on Aviation
Environmental Protection (CAEP) is a technical committee of the ICAO
Council that assists in formulating ICAO policy and adopting Standards
and Recommended Practices related to aircraft noise and emissions. The
FAA represents the United States on CAEP, attending annual Steering
Group meetings and CAEP triennial meetings, and contributing technical
expertise to CAEP's many working groups. The EPA serves as an advisor
to the United States member of CAEP at the annual and triennial
meetings and contributes technical expertise to the FAA and CAEP's
working groups on aviation emissions, pollution control technology, and
environmental policy. Within CAEP, the FAA assists and advises the EPA
on aviation-specific environmental issues, airplane and engine
technologies, and airworthiness certification matters.
In 2009, the ICAO Council and its Group on International Aviation
and Climate Change (GIACC) developed a ``Programme of Action'' to limit
or reduce the impact of aviation on the climate. The program's ``basket
of measures'' included the reduction of the carbon footprint of
international civil aviation, beginning with the development of a
technology-based certification standard for CO2 emissions
from subsonic airplanes.
The CO2 standard-setting process included input from
governments, airplane and engine manufacturers, non-governmental
environmental organizations, research institutions, and academics
worldwide. The standard-setting process occurred in two 3-year phases.
The first phase focused on the development of the CO2
certification requirement (i.e., a CO2 metric, test
procedures, and measurement methodology). The second phase focused on
the development of the CO2 standard itself (i.e.,
establishing regulatory limits, applicability, and assessments of cost
effectiveness). The principles and key criteria that guided the process
included the concepts that:
--No certification requirements should be imposed that compromise
airplane safety;
--Airplane CO2 emissions should be reduced through the
integration of fuel efficient technologies in airplane type designs;
--Airplanes that incorporate differing generations of CO2
reduction technologies should be treated fairly and equitably;
--Any adopted standard should be independent of airplane size, purpose
or utilization;
--The metric used should be robust and minimize unintended airplane and
system design consequences;
--Any adopted standard should use industry standard practices of
measurement and correction; and
--The implementation of any adopted standard should reflect a
manageable and appropriate level of resources to be expended by
national airworthiness authorities and manufacturers.
In February 2016, CAEP agreed on a new CO2 emission
standard for certain airplanes. ICAO adopted this new standard, set out
in Annex 16, Volume III, in March 2017.\5\
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\5\ Annex 16 to the Convention on International Civil Aviation,
Environmental Protection, Volume III, ``Aeroplane CO2 Emissions,''
First Edition, July 2017. https://store.icao.int/collections/annex-16-environmental-protection/products/annex-16-environmental-protection-volume-iii-aeroplane-co2-emissions.
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In the United States, the Clean Air Act directs the EPA to adopt
standards applicable to the emission of any air pollutant from any
class of aircraft engines, which in the EPA Administrator's judgment
causes, or contributes to, air pollution which may reasonably be
anticipated to endanger public health or welfare. The Clean Air Act
also directs the Secretary of Transportation (and by delegation, the
Administrator of the FAA) to implement the standards adopted by the
EPA. The FAA implements these EPA standards by prescribing regulations
in title 14 CFR that require the certification of aircraft and aircraft
engines to the EPA standards.
On January 11, 2021, the EPA published a final rule \6\ adopting
new domestic airplane GHG emission standards in 40 CFR part 1030. In
accordance with the Clean Air Act, the FAA is adopting new
certification regulations for certain airplanes to insure compliance
with the EPA standards. The FAA also supports the adoption of these
standards because they are aligned with the principles and key criteria
that guided the ICAO process. The applicability of these
[[Page 12636]]
regulations and the regulatory emissions limits in the United States
are the same as those adopted by ICAO as its airplane CO2
emission standard in Annex 16, Volume III.
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\6\ Federal Register Vol. 86, No. 6, Final Rule, 40 CFR parts 87
and 1030 ``Control of Air Pollution from Airplanes and Airplane
Engines: GHG Emission Standards and Test Procedures,'' Environmental
Protection Agency, pp. 2136-2174.
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The FAA, EPA, and ICAO each use different terminology to reference
the same standards. In Annex 16 Volume III, ICAO references its
standard as CO2 emissions because the amount of
CO2 emitted is directly proportional to the amount of fuel
burned by an airplane at cruise speed and altitude. ``Airplane
CO2 emissions'' is a commonly used term that fits well
within ICAO's international goals to reduce the carbon footprint of
aviation. More specifically, Part II of Annex 16 Volume III is titled
``Certification Standard for Aeroplane CO2 Emissions Based
on the Consumption of Fuel.''
Domestically, the EPA issued an endangerment finding for GHG
emissions from airplane engines,\7\ which, in turn, required the EPA to
issue GHG standards for airplane engines. The EPA rule establishes
standards for GHGs in recognition of airplane engine emissions of
CO2 and another GHG, nitrous oxide (N2O).\8\ The
EPA did not set limits on N2O emissions, noting that they
are small and are proportionally reduced as fuel consumption is
reduced. Accordingly, the EPA adopted the fuel efficiency metric
established by ICAO, which effectively limits both CO2 and
N2O GHGs emitted by airplane engines.
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\7\ Federal Register Vol. 81, No. 7, Final Rule, 40 CFR parts 87
and 1068 ``Finding that Greenhouse Gas Emissions From Aircraft Cause
or Contribute to Air Pollution That May be Reasonably Be Anticipated
To Endanger Public Health and Welfare.'' Environmental Protection
Agency pp. 54422-54475.
\8\ Both CO2 and N2O are constituents of
EPA's defined term ``greenhouse gases,'' which means an air
pollutant that is the aggregate group of six greenhouse gases:
CO2, N2O, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride. See 40 CFR 1030.105.
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The FAA describes these same limits and procedures as measures of
fuel efficiency, since this final rule prescribes a measurement of
airplane performance determined by the SAR parameter to determine fuel
efficiency. This measurement is akin to the fuel-burn-based ICAO
standard. The FAA intends that the fuel efficiency standards be the
same as the standards that the EPA adopted in 40 CFR part 1030.
In summary, it is the FAA's intent that the three standards--FAA's
fuel efficiency regulations in 14 CFR part 38, the EPA's GHG emission
standards in 40 CFR part 1030, and ICAO's CO2 emissions
standards--be considered equivalent for purposes of implementation.
The FAA is making final guidance material for part 38 available at
the same time as this final rule and has placed the final Advisory
Circular 38 (AC38) in the docket.
B. Summary of the NPRM
On June 15, 2022, the FAA published the NPRM titled ``Airplane Fuel
Efficiency Certification.'' At the same time, the FAA also posted for
comment in the NPRM docket draft guidance material for the proposal in
the form of a draft AC38.
In its NPRM, the FAA proposed the adoption of the EPA's GHG
standards as fuel efficiency standards for airplanes in a new 14 CFR
part 38. The FAA-proposed standards would impose requirements when an
applicant seeks type certification. In general, the proposal applied to
certain subsonic jet airplanes and certain propeller-driven airplanes
above a specified mass. The FAA's proposal also provided for use of the
existing part 11 exemption process.
Importantly, the NPRM provided the requirements for determining the
fuel efficiency value for subsonic airplanes at certification. The
proposal then established fuel efficiency limits as adopted by the EPA.
For an airplane, the fuel efficiency limit would be based on a fuel
efficiency value calculated using two primary parameters: the SAR and
the RGF. The FAA proposal included an Appendix A, which contained the
technical detail needed to determine the FEM value. For an airplane to
comply with part 38, under the NPRM, the FEM value could not exceed the
applicable fuel efficiency limit.
In addition, to fully implement the EPA standards through the FAA's
certification process, for applicable airplanes the proposal included
amendments to part 21 to include compliance with part 38, and to the
operating regulations to ensure that flight manuals contained fuel
efficiency certification information. The FAA solicited public comments
on the NPRM and draft AC38 for a period of 61 days. The comment period
on the NPRM closed on August 15, 2022.
C. General Overview of Comments
The FAA received 62 comments on the NPRM and the draft AC38. One of
these comments was received and considered after the comment period
closed.
Most comments were from individuals. In addition, the agency
received comments from several airplane and engine manufacturers and
industry groups: Aerospace Industries Association (AIA), Airbus,
Airlines for America (A4A), Airlines Pilots Association (ALPA), Avions
de Transport Regional (ATR), Boeing, Embraer S.A. (Embraer), FedEx
Corporation (FedEx), General Electric Aviation (GE), General Aviation
Manufacturers Association (GAMA), Gulfstream Aerospace Corporation
(Gulfstream), Modification and Replacement Parts Association (MARPA),
National Business Aviation Association (NBAA), and the Port of Seattle.
The FAA received nine comments generally supporting the rule as
proposed. These commenters included ALPA, ATR, Port of Seattle, and
some individuals. Fourteen commenters, including Boeing, AIA, A4A,
Airbus, FedEx, GE, MARPA, Gulfstream, NBAA, GAMA, Embraer, and some
individuals supported the rule generally but offered requests for
clarifications, changes, or additional provisions. The FAA received
comments from 39 individuals who opposed the proposed rule.
The commenters raised overarching issues on the NPRM related to the
FAA's authority to issue the rule, the applicability of the rule, and
potential costs of the rule. Commenters also requested clarifications
and raised several technical issues. A discussion of comments
requesting specific clarifications, changes, or revisions to the NPRM
and the FAA's responses to these requests is in Section IV,
``Discussion of Comments and the Final Rule.''
IV. Discussion of Comments and the Final Rule
The following summarizes the comments received to the NPRM and the
FAA's responses to these comments.
A. FAA's Part 38 Authority
Comments: Several individuals commented that the proposed rule
exceeded the FAA's authority or was otherwise unnecessary for a wide
variety of reasons. Conversely, other commenters indicated the proposed
rule is needed to allow manufacturers to certificate their airplanes
for fuel efficiency in the United States and would fulfill the FAA's
Clean Air Act statutory obligations.
Response: The FAA disagrees with those commenters who indicated
that the FAA exceeded its authority or that the rule was unnecessary.
The proposed rule falls well within the FAA's statutory mandate and is
required by Section 7572 of the Clean Air Act. The Clean Air Act vests
authority to regulate airplane emissions with both the EPA and the FAA.
Section 7571 of the Clean
[[Page 12637]]
Air Act directs the EPA to adopt standards applicable to the emission
of any air pollutant from any class of aircraft engines, which in the
EPA Administrator's judgment causes, or contributes to, air pollution
that may reasonably be anticipated to endanger public health or
welfare. Further, the EPA must consult with the FAA on these aircraft
engine emissions standards. The EPA adopts these standards in title 40
of the CFR.
After the EPA adopts the standards, section 7572 of the Clean Air
Act directs the Secretary of Transportation (and by delegation, the
Administrator of the FAA) \9\ to implement the standards adopted by the
EPA. The FAA implements these standards by adopting regulations in
title 14 of the CFR that allow the certification of aircraft and
aircraft engines to the EPA standards. In addition, the proposed rule
is consistent with the FAA's own statutes (49 U.S.C. 106) that
authorize the Administrator to issue regulations.
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\9\ Boeing commented that the proposed rule should update the
DOT regulations in 49 CFR 1.83(c) that delegate this authority to
the FAA Administrator to reflect the new 40 CFR part 1030. Paragraph
1.83(c) delegates to FAA the authority to implement the standards
adopted by the EPA under 42 U.S.C. 7572. The FAA does not have the
authority to amend 49 CFR 1.83(c) but will raise the issue to DOT.
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On January 11, 2021,\10\ the EPA published a final rule adopting
GHG emissions standards applicable to certain aircraft engines and
airplanes in 40 CFR part 1030. In accordance with the mandate under
Section 7572, the FAA adopts this rule through new certification
regulations in part 38 for certain airplanes to insure compliance with
the EPA standards in 40 CFR part 1030.
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\10\ Federal Register Vol. 86, No. 6, Final Rule, 40 CFR parts
87 and 1030 ``Control of Air Pollution from Airplanes and Airplane
Engines: GHG Emission Standards and Test Procedures,'' Environmental
Protection Agency, pp. 2136-2174.
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B. FAA's Role in Establishing Fuel Efficiency Standards
Comments: Several commenters opined that the proposal was
unrealistic or that the FAA was ``simply bowing to'' the EPA. Others
said that the FAA should focus on other matters, such as safety.
Response: As described in the ``General Background,'' the FAA and
the EPA both participated heavily in the ICAO working group and CAEP
that established ICAO's Aeroplane CO2 standard. Other
entities also provided significant input into the process, including
the affected global aviation industry and many other representatives.
The standard that ICAO ultimately established was based on a process
that considered views from all participants. This process resulted in
the adoption of technology-following certification requirements that
also prevent backsliding to less fuel-efficient airplanes. For the same
reasons articulated in the principles and key criteria that guided the
ICAO standard development process, the FAA supported and continues to
support the adoption of the ICAO and EPA standards.
Finally, as described in ``FAA's Part 38 Authority,'' the FAA is
statutorily obligated to adopt the EPA standard.
Comments: Other commenters suggested that the goals of the proposed
regulation may already be met by the existing body of regulations or
that industry was already incentivized to achieve fuel efficiency
through market forces or otherwise. Some suggested that the industry
had already achieved low emissions.
Response: The CO2 standard-setting process at ICAO
included input from many stakeholders, including airplane and engine
manufacturers. In addition, the FAA received comments from several
airplane and engine manufacturers, including Boeing, Gulfstream,
Airbus, GE, Embraer, and ATR, as well as industry groups that represent
the broader aviation manufacturers and airlines such as GAMA, AIA, A4A,
and NBAA. In their comments on the proposed rule, these entities
recognized the domestic and international need of expeditiously
adopting these standards in order to establish a global fuel efficiency
certification scheme for airplanes. The aviation industry has shown
strong support for the standard, which is the first aviation standard
aimed at improving airplane fuel efficiency and reducing CO2
emissions.
C. Consideration of Other Alternatives
Comment: A number of comments went beyond the scope of the proposed
rule to suggest that the FAA should instead consider alternative means
of achieving decreased CO2 emissions, such as adding a tax on fuel
sales; increasing airplane registration fees; changing flight
procedures; creating incentives to encourage operators to purchase
newer, more fuel-efficient airplanes; restricting business jets;
developing alternative fuels; or increasing the availability of
alternative fuels. Other commenters indicated that the rule was not
going far enough to improve fuel efficiency.
Response: The FAA reiterates that part 38 is consistent with the
FAA's authority under its own statutes and the Clean Air Act. In
particular, the purpose of this rule is to implement EPA's GHG
standards through the FAA certification process. Comments received
requesting that FAA take an alternative approach to address fuel
efficiency are not within the scope of the proposed rule.\11\
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\11\ In California v. EPA, a number of states and environmental
organizations challenged EPA's adoption of the standards in 40 CFR
part 1030. The District of Columbia Circuit Court of Appeals held
that the rule was within EPA's authority under 42 U.S.C. 7571 and
that the agency reasonably explained its decision to harmonize its
regulation with the ICAO standards. The Court also held that as the
EPA had made the policy choice to align with ICAO standards, the EPA
did not have a need to examine alternatives departing from the ICAO
standards. 72 F.4th 308 (D.C. Cir. 2023).
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Comment: Other commenters were concerned that the proposed rule
would result in manufacturers' transitioning to alternative fuels, such
as biofuels, or wanted clarity on the applicability of the proposed
rule to hybrid airplanes or airplanes using alternative fuels.
Response: This rule is a technology-based standard, aiming at
measuring the performance of the airplane in terms of fuel efficiency,
predicated on the ability of manufacturers to improve engine propulsion
efficiency, aerodynamics, and airplane weight--all elements of the SAR
parameter in the FEM. Neither the SAR nor the RGF parameters are
affected by the type of fuel used in the airplane. Therefore, the FEM
value does not change based on the fuel used in the airplane.
As a general matter, the rule could apply to any airplanes meeting
the applicability criteria of Sec. 38.1, including hybrids or those
using alternative fuels as long as those fuel(s) meet the applicable
specifications in Appendix A. The FAA wants to clarify that the use of
alternative fuels does not exempt covered airplanes from compliance
with this rule.
D. General Applicability (Sec. 38.1(a) and (b))
In the NPRM, the FAA proposed that part 38 would apply to certain
subsonic jet airplanes and propeller-driven airplanes at three
applicability points. These three points are airplanes (1) receiving
original type certification on or after January 11, 2021; (2)
manufactured after January 1, 2028, regardless of the date of type
certification; and (3) type-certificated before the applicable
compliance date but where a modification is made that would affect the
fuel efficiency of the airplane after January 1, 2023.
1. Discussion of Final Rule
The FAA adopts the applicability requirements for part 38 in Sec.
38.1(a) and
[[Page 12638]]
(b). These paragraphs remain largely as proposed and have the same
applicability as the EPA regulations. These paragraphs continue to
provide for the applicability of these standards to certain subsonic
jet airplanes and propeller-driven airplanes at three applicability
points. After consideration of public comments, the FAA is revising the
regulation to clarify the applicability of part 38 to the currently
flying in-service airplanes as well as to proposed modifications to
covered \12\ airplanes that have received their type certificate. The
regulation was also revised to make some other non-substantive changes
to the text. These changes are discussed in this section.
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\12\ For the purpose of FAA's final rule, ``covered airplanes''
are defined the same as EPA's definition in their final rule:
``Civil subsonic jet airplanes (those powered by turbojet or
turbofan engines and with a MTOM greater than 5,700 kilograms), as
well as larger civil subsonic propeller driven airplanes (those
powered by turboprop engines and with a MTOM greater than 8,618
kilograms).'' 86 FR 2136 (Jan. 11, 2021).
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As developed by ICAO, the standards adopted by the EPA include
three occasions on which an airplane becomes subject to the 40 CFR 1030
standards. These same applicability points are included in Sec.
38.1(a) and (b): (1) at new (original) type certification; (2) the
manufacture of any covered airplane after January 1, 2028; or (3) a
modification to a covered airplane that meets the change criteria of
Sec. 38.19. These change criteria pertaining to airplane modifications
are described in further detail in Sec. 38.19. The applicability
points include:
New (Original) Type Certification Applicability:
Paragraphs 38.1(a)(1)-(3) describe airplanes whose applications for
original type certification were submitted after January 11, 2021.
Although the ICAO standard on which these regulations are based was
effective on January 1, 2020, for certifications of new type designs,
the effective date of the EPA regulation was January 11, 2021, for
certifications of new type designs. Except for the effective date, the
EPA and the FAA regulations have the same applicability as the ICAO
standard. The difference in effective dates between the ICAO and EPA
standards has no practical effect in the United States. In the twelve
months between the effective date of the ICAO standard and the
effective date of the EPA standards, the FAA received no applications
for new type certification that would meet the applicability criteria
of this rule. Although EPA's GHG emissions standards are now applicable
in the United States through 40 CFR part 1030, the FAA did not receive
an application for new type certification before the adoption of either
EPA's rule or the FAA's rule. Once an airplane is type-certificated for
fuel efficiency in accordance with this rule, all airplanes produced
under that type certificate must comply with the fuel efficiency
standards.
Manufacture of covered airplanes after January 1, 2028:
Paragraphs 38.1(a)(6)-(7) describe the second instance of applicability
for covered airplanes manufactured after January 1, 2028. These
paragraphs address covered airplanes that are newly built after January
1, 2028, regardless of the date of type certification. Airplanes
manufactured after this date would not be eligible for a first
certificate of airworthiness unless compliance with part 38 has been
shown.
A modification to a covered airplane that meets the change
criteria of Sec. 38.19: Paragraphs 38.1(a)(4)-(5) address
modifications to covered airplanes whose type designs were not
certified under this rule, where an application by the type certificate
holder for a type design change is submitted on or after January 1,
2023, and the first certificate of airworthiness is issued with the
modified type design that exceeds the change criteria in Sec.
38.19(c). In determining applicability under these paragraphs, a
certification applicant must consider Sec. 38.1(b), which addresses
modifications made to covered airplanes and directs the reader to the
change criteria in Sec. 38.19. See section IV.N for a discussion on
the change criteria in Sec. 38.19.
As noted, the FAA made a few non-substantive changes to the
applicability provisions. The FAA added levels of designation to
paragraph (a)(1) at the suggestion of the Federal Register to help
clarify the two independent applicability provisions in Sec.
38.1(a)(1). The FAA also fixed a minor typographical error in Sec.
38.1(a)(6)(ii) and changed the order of the agencies identified in
Sec. 38.1(a)(4) to reflect that the FAA is issuing this rule.
2. Public Comments and FAA Response
Comments: Multiple commenters, such as A4A, AIA, Boeing, Airbus,
FedEx, NBAA, and some individuals, requested clarification that the
rule would not apply to in-service airplanes, consistent with the
related EPA regulation and the applicable ICAO standard. These
comments, summarized in the following sentences, included specific
statements and questions related to the applicability of the rule to
current in-service airplanes and modifications to such airplanes.
Boeing requested clarity that individual in-service airplanes, whose
type designs have not been previously certificated to part 38, and to
which modifications are made by the owners/operators or other third
parties, do not need to demonstrate compliance with part 38. Similarly,
some of the commenters, including A4A, Airbus, and Boeing, requested
that the FAA clarify the part 38 applicability provisions regarding
modified type designs and modified versions of airplanes to more
clearly state that part 38 applies only when a type-certificate holder
changes the type design of an airplane mid-production by applying for
FAA approval of a modified type design. To clarify these concepts, the
AIA, A4A, Airbus, and Boeing specifically requested that the FAA modify
Sec. 38.1(a)(4)(iii) and (a)(5)(iii) to add ``by the holder of the
type certificate'' to explain that a third party would not be required
to show compliance to part 38 when requesting a supplemental type
certificate that aims to modify one or more individual in-service
airplanes.
In addition, Airbus requested that the FAA clarify the regulatory
text in Sec. 38.1(b) by changing ``prior version'' to ``prior non-
modified version'' to emphasize that the prior version of the airplane
is the one that does not include the modification.
Response: The FAA intends this rule to have the same applicability
as the related EPA regulation and the ICAO standard. As such, this
final rule is not applicable to current in-service airplanes. Where a
type certificate holder submits an application for a change in type
design after January 1, 2023, and the change meets the requirements of
Sec. 38.19(c), part 38 will apply to a newly built airplane
incorporating this change in order to receive its first certificate of
airworthiness. After January 1, 2028, part 38 will apply to all newly
built airplanes receiving their first certificate of airworthiness.
The FAA recognizes that determining the applicability of this rule
to a specific airplane requires consideration of multiple sections in
part 38. Although Sec. 38.1 addresses applicability in general, when
an applicant requests a change in type design, it must also consider
Sec. 38.19's change criteria to determine the applicability of part
38. Sections 38.1(a)(1) through (3) address newly built airplanes whose
applications for original type certification were submitted after the
specified dates. Sections 38.1(a)(4) and (5) provide applicability
requirements for a modified version of an airplane whose type design
was not certificated under part 38. Further, Sec. 38.1(a)(4) and (5)
[[Page 12639]]
relate to a newly built airplane, receiving its first certificate of
airworthiness, based on a type design change submitted by the type
certificate holder on or after January 1, 2023, that exceeds the change
criteria in Sec. 38.19(c). On or after January 1, 2028, all newly
built covered airplanes that meet the requirements of Sec. 38.1(a)(6)
and (7) must comply with part 38 to receive their first certificate of
airworthiness.
Section 38.1(b) makes the important connection to the Sec. 38.19
change criteria. In Sec. 38.1(b), part 38 applies to an airplane where
an applicant requests a change in type design that meets the change
criteria of Sec. 38.19. Airplanes that have demonstrated compliance to
this rule (i.e., those that do not fall in Sec. 38.1(a)(4) and (5))
and subsequently undergo modifications will need to re-demonstrate
compliance according to the change criteria shown in Sec. 38.19(a) and
(b).
With the applicability context described in the previous
paragraphs, the FAA agrees to revise the proposed Sec. Sec. 38.1 and
38.19 to clarify part 38 applicability to individual in-service
airplanes and modifications to airplanes. The FAA recognizes that Sec.
38.1(a)(4)(iii) and (5)(iii) in the NPRM may have been interpreted, as
commenters suggested, to require compliance with part 38 for any
modifications to an airplane, even a currently in-service airplane. The
FAA does not intend this applicability. This final rule slightly
updates these paragraphs to clarify that this specific set of
applicability requirements are for applications for a change in type
design made by the type certificate holder. Specifically, in response
to comments requesting clarity on modifications to airplanes under
these specific applicability requirements, this rule revises Sec.
38.1(a)(4)(iii) and (5)(iii) to state that compliance is required when
``an application by the type certificate holder for a type design
change is submitted on or after January 1, 2023.'' In combination with
the rest of the requirements under Sec. 38.1(a)(4) and (5), the part
38 now reads clearly that it does not apply to a type design change
application for a currently in-service airplane that has not previously
shown compliance to part 38. Only a newly built airplane with a change
in type design by the type certificate holder, applied for on or after
January 1, 2023, and exceeding change criteria in Sec. 38.19(c), would
be required to comply with part 38. Therefore, the final rule clarifies
that part 38 does not apply to currently in-service airplanes,
including modifications, and instead focuses on newly built airplanes
that incorporate modifications.
Further, in proposed Sec. 38.1(a)(4)(iv) and (a)(5)(iv), the words
``for an airplane built'' were redundant with the introductory text of
Sec. 38.1(a)(4) and (5), which already stated, ``A subsonic jet
airplane--'' and ``A propeller-driven airplane--'', respectively. To
correct this redundancy, this final rule removes ``for an airplane
built'' from Sec. 38.1(a)(4)(iv) and (a)(5)(iv). Also, this change is
consistent with other changes FAA made to Sec. 38.1(a)(4) and (5) to
clarify to the applicability. This change does not alter the meaning of
the paragraph.
For consistency with and to fully respond to the comments on Sec.
38.1(a), the FAA updates the proposed Sec. 38.1(b) to reflect that
part 38 applies to modifications that are based on an application for a
change in type design and meet the change criteria of Sec. 38.19. As
part of these updates, the FAA moves the Sec. 38.19 reference earlier
in the paragraph to incorporate the change criteria more clearly in
Sec. 38.1(b). Also, the FAA revises Sec. 38.1(b) to explicitly state
that the applicability is tied to an application for a change in the
type design. This better aligns with the text of Sec. 38.1(a)(4) and
(5).
In response to Airbus' request that to change ``prior version'' to
``prior non-modified version,'' the FAA recognizes that ``prior
version'' of an airplane may not have been described with sufficient
detail. Based on these considerations, this rule also revises Sec.
38.1(b) for consistency with Sec. 38.1(a) to more accurately describe
the state of an airplane before or after modifications, rather than
using ``prior version,'' and to highlight the connection to the change
criteria in Sec. 38.19.
Finally, because Sec. 38.19(b) and (c) also use ``prior version,''
this rule makes similar consistency changes to these paragraphs.
In summary, these edits to Sec. Sec. 38.1(a) and (b) and 38.19(b)
and (c) clarify that part 38 does not apply to current in-service
airplanes.
Comments: Airbus, A4A, and Boeing also recommended that table 1 in
the NPRM be clarified to avoid the implication that part 38 be applied
to in-service airplanes.
Response: In lieu of providing an updated table 1 from the NPRM to
provide a quick reference for applicability with examples, the FAA has
provided a much more detailed discussion here to clarify applicability
of part 38 to in-service airplanes in this section.
Comments: Similar to comments requesting clarity on prior version
of an airplane, Boeing, AIA, and A4A requested a definition of
``subsequent version,'' a term that appears in Sec. 38.19, to clarify
that modifications to individual in-service airplanes do not require
application of the fuel efficiency standards.
Response: This rule's changes to Sec. 38.1 address the fact that
current in-service airplanes, or modification to such airplanes, do not
require compliance with this rule. Therefore, the FAA does not see a
need to add a definition for the term ``subsequent version.''
Comments: Boeing requested that the FAA add a definition of
``modified type design,'' which is used in Sec. 38.1(a)(4)(iv) and
(5)(iv), because it was concerned that the lack of a definition could
create potential ambiguity when the text is read together with the
well-established aircraft certification regulations in part 21 that
address `changes in type design.'
Response: The FAA notes that the term ``modified type design'' in
the context of Sec. 38.1(a)(4)(iv) and (5)(iv), where it appears,
refers to the final modified configuration of an airplane receiving its
first certificate of airworthiness.
The FAA is using the word modified for consistency with EPA's
regulations. For the purposes of part 38, the FAA uses the words
``changed'' and ``modified'' interchangeably.
Comment: Airbus recommended that the four (4) applicability
requirements listed under Sec. 38.1(a)(4) and (a)(5) should be joined
by adding the conjunction ``and'' after each individual requirement to
clarify that applicability to this rule consists of all four
requirements in total.
Response: The FAA reviewed the grammatical structure of Sec.
38.1(a)(4) and (a)(5). As proposed, the four applicability requirements
listed under each of these sections are separated by a semicolon in a
list from (i) to (iv) with the conjunction ``and'' between the final
two provisions (iii) and (iv), signifying that the ``and'' applies to
all requirements in this list. This format follows the Office of the
Federal Register (OFR) formatting practices, and, therefore, the
repetition of ``and'' between each requirement is not required. The FAA
believes this is the correct structure and will not incorporate
Airbus's recommendation to add an ``and'' after each requirement.
Comment: Airbus further commented on several items such as changing
the following text from the proposed rule: ``. . . an application . .
.'' to ``. . . the application . . .'' in paragraph (a)(4)(iii); ``. .
. type design is submitted . . .'' to ``. . . type design was submitted
. . .'' in paragraph (a)(4)(iii);
[[Page 12640]]
and ``. . . for an airplane built . . .'' to ``. . . for that airplane
built . . .'' in paragraph (a)(4)(iv).
Response: The FAA does not agree with these suggestions. The FAA
wrote this rule to apply to a wide range of civil airplanes and
changing words to ``that airplane'' or ``the application'' adds a level
of specificity that is not needed for this rule. The suggested change
to ``for that airplane built with'' is not necessary because the FAA
removed this phrase from Sec. Sec. 38.1(a)(4)(iv) and (a)(5)(iv) in
response to previously addressed comments. Regarding the change from
``is'' to ``was,'' the FAA notes that the verb tense of this rule is
written in present tense.
Comment: Airbus commented on Sec. 38.1(a)(6) and (a)(7) that the
words ``An individual . . .'' should be added to the beginning of these
applicability paragraphs to reinforce that these requirements apply to
individual airplanes. Airbus states this would be similar to the
applicability language in ICAO Annex 16 Vol III, Part II, Chapter 2,
Sec. 2.1.1(f)&(g).
Response: The applicability language in Sec. 38.1(a)(6) and (a)(7)
has the same meaning as the ICAO Annex 16 Vol III language even if the
terminology is slightly different. The applicability language in Sec.
38.1(a)(6) and (a)(7) is written in singular form starting with: ``A
subsonic jet airplane . . .'' and ``A propeller-driven airplane . . .''
that has ``Its first certificate of airworthiness issued on or after
January 1, 2028.'' The word ``a'' already places the subject in
singular form that clearly represents an individual airplane, which is
consistent with the ICAO Annex 16 Vol III. For these reasons, it is not
necessary to reinforce that these paragraphs apply to ``individual''
airplanes.
Comment: The GAMA commented that the applicability requirements for
propellor-driven airplanes with maximum takeoff mass (MTOM) greater
than 8,618 kilograms (kg), as used in the proposed rule, could include
airplanes with maximum takeoff weight (MTOW) greater than 18,999.45 lbs
when 8,618 kilograms are converted to pounds. The GAMA noted that the
mathematical conversion of an MTOM of 8,618 kg equates to 18,999.45
lbs, which is less then what is used for the MTOW limits of parts 21
and 23 for normal category airplanes. Therefore, the GAMA argues the
proposed part 38 fuel efficiency standards would apply to FAA type
certificated part 23 airplanes at the maximum allowable MTOW of 19,000
lbs. The GAMA suggested two alternative approaches to address this
potential unit conversion issue in Sec. 38.1 MTOM references: (1) use
8,619 kg in all instances for MTOM threshold for propeller-driven
airplanes instead of 8,618 kg; or (2) list both the applicable MTOM
(mass) of 8,618 kg and MTOW (weight) 19,000 lbs.
Response: The FAA acknowledges that conversion from 8,618 kg to lbs
equates to a weight that is approximately 0.5 lbs less than the 19,000
lbs threshold of other FAA regulations. However, when applying the
conversion in reverse, going from 19,000 lbs to kg, the result is 0.25
kg greater than 8,618 kg. This difference of less than 1 lb or 1 kg is
extremely small; it is unlikely that an airplane would fall within this
conversion difference. Importantly, differences less than 1 lb or 1 kg
would not be reflected in either a TCDS or an airplane flight manual.
Additionally, the use of kilograms as the applicability threshold is
consistent with the EPA standards. For these reasons, the FAA finalizes
the threshold as proposed in Sec. 38.1(a)(3)(i).
Comments: The MARPA requested that the FAA clarify that part 38
does not apply to parts manufactured by holders of a Parts Manufacturer
Approval (PMA). In particular, the MARPA asked that the FAA include
text in the preamble to the final rule stating that the rule applies
only to the design and approval of type certificated products. In
addition, the MARPA wanted this text to also state that the proposed
rule does not apply to Parts Manufacturer Approval (PMA) manufacturers
of modification and replacement parts under part 21 subpart K.
Response: The FAA disagrees with adding the suggested text to the
preamble. The applicability section does not apply to parts
manufactured by holders of a PMA. Because these parts have the same
fit, form, and function of the parts they replace they are not
considered a change in type design.
Comment: One individual thought that this rule would benefit those
who use private airplanes for travel, implicitly indicating that those
types of planes would not need to comply with part 38.
Response: The FAA disagrees as the applicability of this rule
includes all airplanes that meet the applicability requirements
regardless of who is using the airplane or whether they are privately
owned. The type of airplanes described by the commenter are not
necessarily exempted from the rule.
E. Exceptions to Applicability (Sec. 38.1)
In the NPRM, the FAA proposed several exclusions to the
applicability of part 38. Part 38 would not apply to airplanes with
lesser MTOMs than those specified in Sec. 38.1(a). Part 38 also would
exclude airplanes that are designed for specialized operations
(including the presence of unique design features to carry out those
operations). The NPRM also would exclude amphibious airplanes,
airplanes that have no pressurized areas, airplanes designed for
firefighting, and airplanes powered by reciprocating aircraft engines.
1. Discussion of the Final Rule
In Sec. 38.1(c), the FAA is adopting the same exclusions to part
38 that were adopted by the EPA and ICAO. The section is remaining as
proposed, except for one minor non-substantive change in Sec.
38.1(c)(4) where the FAA switched the EPA and FAA references so that
the FAA is identified first as the agency is issuing this rule.
As finalized, part 38 does not apply to airplanes with lower MTOMs
than those specified in Sec. 38.1(a) and Sec. 38.1(c)(1) and (2)).
The rule also excludes airplanes that are initially designed, or
modified and used, for specialized operations (including the presence
of unique design features to carry out those operations) from part 38,
subject to a determination that a design for specialized operation is
detrimental to fuel efficiency. The FAA and the EPA would make this
determination at the time an airplane is presented for certification.
Examples of such airplanes could include specialized cargo features,
specialized missions, or crop dusting (Sec. 38.1(c)(4)). The rule
excludes from part 38 the following: amphibious airplanes (as defined
in Sec. 38.3); airplanes that have no pressurized areas (described as
having zero reference geometric factor (RGF)); airplanes designed for,
or modified and used for, firefighting; and airplanes powered by
reciprocating aircraft engines (Sec. 38.1(c)(3), (5), (6), and (7)).
2. Public Comments and FAA Response
Comments: Commenters, including Boeing and AIA (echoed by GE \13\),
requested that the FAA clarify and revise the regulatory text to
explicitly state that the rule only applies to civil airplanes and not
military airplanes. The AIA specifically requested clarification that
part 38 did not apply to state airplanes, such as those used by
military, customs, and police services,
[[Page 12641]]
or other types of airplanes, such as rotorcraft or piston-engine
airplanes. Boeing requested that the FAA clarify the language in Sec.
38.1(a) so that the regulation explicitly stated that part 38 only
applied to civil airplanes as defined in 14 CFR 1.1.
---------------------------------------------------------------------------
\13\ GE specifically incorporated by reference Boeing's
substantive, non-technical comments on the NPRM, including comments
on the applicability to military aircraft and other requested
changes for alignment with EPA and ICAO standards. GE also
specifically incorporated by reference AIA's substantive comments on
the proposed rule, including comments on the inapplicability of the
rule to state aircraft and modifications to an in-service aircraft.
---------------------------------------------------------------------------
Boeing further requested a change in Sec. 38.1(a) from original
type certification to original civil certification. Boeing believed
this change and other consistency changes would remove any ambiguity
and clarify that only airplanes seeking civil certification are subject
to the rule. GE supported Boeing and AIA comments on this issue.
Response: The FAA disagrees with the request to explicitly revise
the regulatory text to state that the rule only applies to civil
airplanes and not military airplanes. This rule addresses the
certification of fuel efficiency for subsonic, civil airplanes.\14\ As
defined in 14 CFR 1.1, civil aircraft are aircraft other than public
aircraft. Public aircraft is an operational status under the statute,
not a certification status, since any airplane operated by a valid
government entity could be a public aircraft depending on its use. 49
U.S.C. 40102(a)(41), 40125. Because the FAA cannot predict whether a
type certificated airplane may be used for a public aircraft operation,
and the status of that airplane may change from civil to public and
back on a flight-by-flight basis, the FAA finds that this distinction
is not appropriate for purposes of this rule.
---------------------------------------------------------------------------
\14\ 87 FR at 36082.
---------------------------------------------------------------------------
Further, the FAA disagrees with Boeing's suggested change to
original civil certification. The FAA does not reference its
airworthiness certificates as ``civil certificates.'' The FAA uses
terminology such as ``original type certificates,'' consistent with
part 21.
Thus, the FAA declines to modify Sec. 38.1 as suggested by
commenters.
Comments: Commenters also suggested the FAA clarify that part 38
does not apply to airplanes that are initially certificated as civil
airplanes during the production process but immediately used for
military operations. Both AIA and Boeing explicitly requested that the
FAA add these types of airplanes to the list of airplanes not covered
by the rule in Sec. 38.1(c). Boeing also requested corresponding
changes to the draft Advisory Circular. These commenters indicated that
these changes are consistent with the ICAO standards. In particular,
they referenced the ICAO Environmental Technical Manual (ETM) \15\ and
its inclusion of these types of airplanes in a list of examples of
specialized operational requirements. Because the FAA had included
language in the NPRM to propose the same exclusions adopted by ICAO,
Boeing stated the FAA should include language excluding these types of
airplanes from coverage under part 38. Boeing stated the exception
would be consistent with the examples for these airplanes in the ICAO
guidelines (the ETM). Boeing also indicated that this exception would
be consistent with past EPA and Department of Defense (DOD) practice,
citing to the EPA's 2012 Final Rule adopting new aircraft engine
emissions standards for nitrogen oxides.
---------------------------------------------------------------------------
\15\ Volume III--Procedures for the CO2 Emissions
Certification of Airplanes, Sec. 2.1.3.
---------------------------------------------------------------------------
Response: Commenters indicated that to be consistent with the ICAO
standards, the FAA needs to exclude from part 38 a civil-certificated
airplane immediately converted to military use. The FAA disagrees with
the underlying premise that part 38 does not apply to civil
certificated airplanes immediately converted to military use. The FAA
regulations are consistent with ICAO Annex 16 Volume III standards,
which contain no such exemption. The ICAO language suggesting the
exception of military airplanes from CO2 applicability is in
ICAO guidance (i.e., the ETM guidance document to Annex 16 Volume III),
not in the ICAO standards (i.e., Annex 16 Volume III).\16\ The FAA is
not obligated to include in its standards any exception suggested in
ICAO guidance that is not in the ICAO standard.
---------------------------------------------------------------------------
\16\ The FAA inadvertently included guidance from ICAO's
Environmental Technical Manual in the draft AC38 that was included
in the docket for review with the NPRM. The exception has never been
included in the part 38 rule text, and for the reasons discussed it
has been removed from the final AC38.
---------------------------------------------------------------------------
The FAA has no authority over military airplanes involved in public
aircraft operations, and its regulations do not apply to airplanes
produced for the armed services. The FAA certification regulations
apply only to airplanes that seek civil certification in the United
States. When an airplane is produced, the FAA issues an airworthiness
certificate for that airplane if it conforms to the type design and
complies with all applicable civil regulations. FAA regulations do not
consider intended use or conversion involved in airplane
certification--either the airplane complies with all regulatory
requirements and is eligible for a civil airworthiness certificate, or
it does not.
A manufacturer may produce airplanes and parts for the military
without involving the FAA. If an applicant requests civil certification
from the FAA, the applicant must satisfy all applicable regulations for
that airplane regardless of the potential for that airplane's use for
military operations.
In the United States, the FAA has no statutory authority over
military airplanes involved in public aircraft operations. Part 38 does
not apply to these airplanes; accordingly, these airplanes cannot be
exempted or excluded from something that does not apply in the first
place. For these reasons, the FAA does not see the need to modify Sec.
38.1(c) in this respect.
F. Definitions (Sec. 38.3)
In the NPRM, the FAA proposed several definitions for part 38.
These definitions would be specific to fuel efficiency certification.
The proposed definitions included: amphibious airplane; ICAO Annex 16,
Volume III; maximum takeoff mass (MTOM); performance model; reference
geometric factor (RGF); specific air range (SAR); subsonic; and type
certificated maximum passenger seating capacity.
1. Discussion of the Final Rule
The rule includes a definitions section as Sec. 38.3. The section
is adopted, as proposed, except this rule makes modifications to the
definition of maximum takeoff mass (MTOM) based on comments received.
2. Public Comments and FAA Response
Comments: Some commenters suggest the FAA include additional
definitions, such as ``subsequent version'' and ``modified type
design.''
Response: See responses to these comments that are discussed in
section IV.D.
Comments: The FAA received several comments on the definition of
Maximum takeoff mass (MTOM) in Sec. 38.3. Specifically, Airbus
commented that the definition of MTOM should be modified by replacing
``maximum allowable'' with ``highest of all certified'' takeoff masses.
Airbus stated that the proposed definition could be misinterpreted and
suggested clarifying that the MTOM represents the highest of all of the
certified takeoff masses in the Type Certificate Data Sheet (TCDS).
Airbus also suggested replacing ``approved certification basis'' with
``Type Certificate Data Sheet'' since the approved certification basis
of a type design generally represents the set of applicable
requirements to the type
[[Page 12642]]
design and it would be more exact to refer to the TCDS.
Response: The FAA does not agree that ``highest of all certified''
should replace ``maximum allowable'' in the definition of MTOM. The
MTOM is intended to mean the maximum takeoff mass an airplane type
design is certified to and recorded in the TCDS. As mentioned by an
individual commenter, the FAA agrees that the TCDS may contain several
maximum takeoff masses for different variants of the same airplane type
design, and the MTOM is the highest of these maximum takeoff masses.
The comments reflected confusion around which maximum mass was meant--
maximum structural, maximum takeoff for an airplane, or the maximum
mass of several variants of similar design. The FAA does recognize that
the definition as proposed was not clear on this point and is changing
``maximum allowable takeoff mass'' to ``maximum certified takeoff
mass,'' which clarifies reference to certified MTOM values in the TCDS.
The FAA also notes that the use of ``maximum certified takeoff weight''
(similar to maximum certified takeoff mass) is used in other parts of
title 14 CFR, including parts 21, 25, and 36.
Regarding the reference in the proposal to the ``approved
certification basis'' and the requests to replace this phrase in the
MTOM definition with ``TCDS,'' the FAA agrees that the TCDS is the
appropriate document to reference in determining the maximum takeoff
weight for FAA-certified variants of the base model. However, the FAA
decided to remove ``approved certification basis'' from the regulatory
text, and not replace it with ``TCDS,'' because the change to ``maximum
certified takeoff mass,'' earlier in the definition addresses these
concerns. Applicants may propose the use of the highest weight of an
airplane type design to represent lower-weight variants. This allowance
provides flexibility to applicants who may not be interested in
certifying an individual FEM value for each lower weight variant. Such
proposals will be considered on a case-by-case basis for FAA approval
as provided in Sec. 38.23.
Comment: Boeing commented that the FAA should revise its
description of the MTOM definition to clarify that MTOM is not an
international standard term for airplane weight expressed in kilograms.
Boeing indicated that its expression in kilograms is not integral to
its meaning. Boeing requested that the FAA revise its description to
state that the MTOM is the highest of all takeoff masses for the type
design configuration.
Similarly, an individual commented that although MTOM needs to be
expressed in kilograms for use in showing compliance with the proposed
requirements, MTOM is not an international standard term for airplane
weight expressed in kilograms. In addition, the commenter noted that
MTOM is the highest maximum takeoff mass specified for the airplane
type design as stated in the airplane TCDS, and that the TCDS may
contain several maximum takeoff masses (identified as maximum takeoff
weights in the TCDS) for different weight variants for the same
airplane type design. The commenter concluded by stating that the MTOM
is the highest of these maximum takeoff masses.
Response: The FAA acknowledges that in the NPRM preamble the FAA
described MTOM as the international standard term of airplane weight
expressed in kilograms. The FAA recognizes that this statement is
incorrect as MTOM is not an international standard term for airplane
weight.
The FAA made minor revisions for clarification and moved the
reference to kilograms to be more closely associated with the relevant
terms.
As a result, the FAA has modified the definition of MTOM in this
final rule to be:
The maximum certified takeoff mass, expressed in kilograms, for an
airplane type design
Comment: A commenter asked that the definition of MTOM include the
phrase ``for the purposes of complying with the requirements of this
part.''
Response: The FAA notes that Sec. 38.3 already begins with the
phrase, ``For the purpose of showing compliance with this part, the
following terms have the specified meanings:.'' Based on that, the FAA
has not changed the definition as suggested by the commenter.
Comment: Airbus provided a comment on the definition of
``Performance model'' stating that in the phrase ``using corrected
flight test data that can be used to determine the specific air range
values,'' the word ``corrected'' should be removed since test data in
test conditions could also be used to validate a performance model.
Response: The FAA disagrees with this change as it would cause a
substantive difference between the FAA and the EPA and ICAO standards,
both of which include the term ``corrected flight test data'' in the
definition (See, e.g., 40 CFR 1030.105). A substantive difference would
change the meaning, intent, or level of a particular requirement.
G. Compatibility With Airworthiness Requirements (Sec. 38.4)
As proposed, this section addressed compatibility between
environmental and airworthiness standards. The NPRM intended to
prohibit the sequencing of certification tests for an airplane that has
not met the applicability airworthiness requirements. This requirement
would ensure that no airworthiness requirements are compromised during
the fuel efficiency certification. In addition, the FAA proposed to
require that all the procedures used to conduct the flights to
demonstrate fuel efficiency compliance be conducted in compliance with
all airworthiness regulations that apply to the airplane.
1. Discussion of the Final Rule
The FAA received one comment on Sec. 38.4 regarding the sequencing
of certification tests. The FAA did not make any changes to the section
based on the comment and is adopting the section as proposed.
2. Public Comments and FAA Response
Comment: Gulfstream asked if an applicant, when developing an aero-
propulsion model, could substantiate the score by conducting some of
the testing (on a conforming test article) before 100% of airworthiness
certification is complete.
Response: The FAA recognizes that Gulfstream's comment was in
response to a sentence in the NPRM preamble noting that Sec. 38.4 is
intended to prohibit the sequencing of certification tests for an
airplane that has not met the applicable airworthiness requirements. In
response to Gulfstream's question, the FAA clarifies that testing could
be done on a type design conforming test article before 100% of the
airworthiness certification is complete. The airplane configuration
conformed for fuel efficiency testing purposes must represent the
configuration sufficiently such that the FEM is representative of the
final type design. The FAA must approve configuration(s) not completely
conforming to the type design prior to testing. The FAA did not revise
the regulatory text based on this comment.
H. Exemptions (Sec. 38.5)
In the NPRM, the FAA proposed a process for exemptions. The NPRM
proposed that a petitioner submit petitions for exemption from any
requirement in part 38 in accordance with 14 CFR part 11. The proposal
also noted that the FAA would consult with the EPA on any request for
exemption from the regulations of part 38. This proposed process is the
same process
[[Page 12643]]
the FAA follows when it considers petitions for exemption from the
engine emissions standards promulgated by the EPA under 40 CFR part 87
and by the FAA in 14 CFR part 34.
1. Discussion of the Final Rule
The FAA is adopting Sec. 38.5 as proposed. In accordance with 42
U.S.C. 7572, 49 CFR 1.83(a)(6) and (c), and 49 U.S.C. 44701(f), the FAA
may issue exemptions from its regulations when such exemption would be
in the public interest. As adopted, Sec. 38.5 continues to provide for
submittal of petitions for exemption from any requirement in part 38 in
accordance with 14 CFR part 11. The FAA is adopting Sec. 38.5 as
proposed.
2. Public Comments and FAA Response
Comments: Some commenters, including AIA, A4A, Boeing, NBAA, and
Airbus, expressed overall support for the FAA's approach to addressing
exemption requests from part 38. In particular, Boeing supported the
use of the public interest standard under 49 U.S.C. 44701 in
considering exemptions. Several commenters requested clarity on the FAA
process for exemptions in Sec. 38.5.
Response: The FAA will follow its standard process for petitions
for exemption that are outlined in 14 CFR part 11. Section 11.15 of
these regulations defines a petition for exemption and Sec. Sec. 11.61
through 11.103 contain the FAA's regulatory process for exemptions.
Part of what must be included in a petition for exemption is an
explanation of why the proposed action will be in the public interest
(14 CFR 11.71). Section 38.5 adds a requirement to this process as it
provides that the FAA consult with the EPA on each exemption petition
before taking action. This process is the same as that followed when
the FAA considers petitions for exemption from the engine emissions
standards promulgated by the EPA under 40 CFR part 87 and by the FAA in
14 CFR part 34.
Comment: Airbus requested that the FAA provide information on the
number of exemptions that could be granted and whether the FAA would
follow the ICAO recommendations in granting exemptions.
Response: How the FAA will process future exemptions under part 11
and the possible number of exemptions the FAA could issue is outside
the scope of this rulemaking. Although ICAO provides some guidance on
exemptions that member countries could consider, the FAA processes each
request for exemption on a case-by-case basis.
I. Incorporation by Reference (Sec. 38.7)
In the NPRM, the FAA noted that it was reserving Sec. 38.7 for
materials to be incorporated by reference into part 38. As part of the
final rule development, FAA assessed the references to external
documents throughout the proposed rule and is incorporating by
reference ICAO Doc 7488/3, Manual of the ICAO Standard Atmosphere
(extended to 80 kilometres (262 500 feet)), 1993 (Manual) in Sec.
38.7. The Manual was identified in the part 38 Appendix and the FAA did
not receive any comments on the Manual. Specifically, this Manual is
referenced in sections A38.2.1.3.1, A38.5.2.2.1.9, and A38.5.2.2.1.10
of Appendix A to part 38. In these sections, the applicant must use
this Manual to establish certain reference specifications when
determining SAR.
The OFR has regulations concerning incorporation by reference (1
CFR part 51). These regulations require that, for a final rule,
agencies must discuss in the preamble the way in which the materials
that the agency incorporated by reference are reasonably available to
interested persons, and how interested parties can obtain the
materials. In addition, in accordance with 1 CFR 51.5(b), the agency
must summarize the material in the preamble of the final rule.
In accordance with the OFR's requirements, the Manual provides the
standard values of atmospheric parameters, the values of constants and
coefficients, and the underlying equations used in the calculation of
the atmospheric parameters. The Manual is intended for use in
calculations in the design of airplanes, in presenting test results of
airplanes and their components under identical conditions, and in
facilitating standardization in the development and calibration of
instruments.
Interested persons can purchase this Manual from the ICAO Store at
999 Robert-Bourassa Boulevard Montr[eacute]al (Quebec) Canada H3C 5H7,
(www.store.icao.int).
J. Relationship to Other Regulations (Sec. 38.9)
Section 38.9 in the proposed rule described the authority of the
EPA and the FAA under the Clean Air Act to set and implement standards
for aircraft engine emissions. In proposed Sec. 38.9, if the EPA
changed any requirement in 40 CFR part 1030 that corresponded with a
regulation in part 38, applicants could request a waiver for provisions
as they appear in part 38 to comply with the changes; proposed Sec.
38.9 also described the circumstances under which a waiver may be
granted.
This proposed section also provided that, unless otherwise
specified in this part, all terminology and abbreviations in part 38,
that are defined in 40 CFR part 1030, have the same meaning as
specified in part 1030.
The FAA did not receive comments on this section. However, the FAA
did make some corrections to the text, including fixing a typographical
error and an incorrect reference to the DOT delegations of authority to
the FAA. Other than these corrections, the FAA is adopting this section
as proposed.
K. Fuel Efficiency Metric (Sec. 38.11)
The NPRM proposed that the fuel efficiency of an airplane be
determined by the amount of fuel it uses to travel a certain distance
under prescribed conditions. This measure was proposed as the fuel
efficiency metric (FEM). As proposed, for each airplane subject to part
38 (including an airplane subject to the change criteria of Sec.
38.19), Sec. 38.11 would require the calculation of an FEM value using
an equation identical to the one adopted by the EPA in 40 CFR 1030.20.
1. Discussion of the Final Rule
The FAA is adopting Sec. 38.11 as proposed. This section describes
the FEM of an airplane. The FEM value is calculated using an equation
identical to the one adopted by the EPA. The two primary components of
the FEM are the SAR (provided in Sec. 38.13) and the RGF (provided in
Sec. 38.15). As described in Sec. 38.11, the FEM is ultimately
calculated by dividing the average SAR values by RGF in a universal
equation to denote the fuel efficiency of any airplane in a manner that
is transport capability neutral.
2. Public Comments and FAA Response
Comment: Gulfstream commented that the NPRM preamble description
for Sec. 38.11 was confusing and highly simplified when it stated that
dividing SAR by RGF results in a universal equation to denote the fuel
efficiency of any airplane regardless of size.
Response: The FAA notes that the preamble is not meant to reflect
every detail of the rule, but rather summarizes its contents and
elaborates as necessary. The statement was referring to the fuel
efficiency metric equation, provided in Sec. 38.11, which is (1/
SAR)average divided by RGF\0.24\. In describing it as a
universal equation, the FAA was referring to the fact that these
parameters also comprise the metric in ICAO's international Aeroplane
CO2 Emissions standard.
[[Page 12644]]
Comment: An individual commented that the FEM seems to be defined
upside down because the higher the fuel efficiency value gets, the
worse the airplane is, efficiency-wise.
Response: The term ``Fuel Efficiency Metric'' (FEM), as used in
this rule, is not a measure of airplane fuel efficiency, as commonly
understood. This rule uses a newly defined term, FEM, that represents a
correlation to the level of GHG emissions produced by the airplane.
The ICAO designed the FEM system (the FEM metric plotted against
MTOM) similarly to other ICAO environmental standards, where the FEM of
an airplane must be below a limit line to pass the standard. In order
to achieve this result, the parameter SAR was inversed (i.e., 1/SAR).
L. Specific Air Range (Sec. 38.13)
Section 38.13 of the NPRM proposed the requirements for determining
SAR, one of the two primary components of the FEM.
1. Discussion of the Final Rule
As adopted, Section 38.13 describes the SAR. The SAR is an
aeronautical parameter used in the aviation industry to represent the
distance an airplane can travel per unit of fuel consumed. In part 38
it is used to represent the instantaneous fuel efficiency of an
airplane at any point during stable cruise flight. The FAA made one
minor revision to Sec. 38.13(a)(2)(ii) by replacing ``made'' with
``submitted'' to be consistent with the FAA's intent. The FAA made a
second minor revision to add the word ``or'' after Sec. 38.13(a)(1) to
indicate the requirements more clearly. Otherwise, the FAA is adopting
this section as proposed.
2. Public Comments and FAA Response
Comment: Boeing suggested that Sec. 38.13(b), as proposed, could
be overbroad and subject to misinterpretation as it could limit SAR
calculations until the performance model is approved by the FAA. Boeing
requested that the FAA change ``are made'' to ``are submitted.''
Response: The FAA agrees that this requirement could be read to
mean applicants may not make SAR calculations, whether for compliance
or not, until the performance model is approved by the FAA. That was
not the intent of this requirement. In the final regulatory text, the
word ``made'' is changed to ``submitted.''
Comment: Boeing commented that the SAR should be multiplied by the
airplane's instantaneous weight in order to be used as a measurement of
fuel efficiency. Boeing suggested clarifying that in part 38, the term
``efficiency'' is used to represent the instantaneous fuel efficiency
of an airplane at any point during stable cruise flight. Other
individual commenters agreed with Boeing's assertion that SAR alone
does not measure the fuel efficiency of an airplane.
Response: The FAA recognizes that the parameter SAR does not
``measure'' the instantaneous fuel efficiency. As stated above, SAR is
the distance an airplane can travel per unit of fuel consumed to
represent instantaneous fuel efficiency. Inherently, the determination
of instantaneous SAR already includes the instantaneous weight of the
airplane (i.e., structural efficiency in context of this rule), as well
as the airplane aerodynamic and propulsive efficiencies of the
airplane. The FAA agrees that, in this part, SAR is used to represent
the instantaneous fuel efficiency of an airplane at any point during
stable cruise flight.
Comment: Gulfstream requested clarification of the FAA's
expectations for substantiation of the performance model and allowances
for weight increases.
Response: Although models may be built with first principles
analysis or wind tunnel data, the model used to show compliance must be
validated by flight test data and approved by the FAA. The FAA must
also approve any allowances regarding models. See section 38.13. The
AC38 contains additional related guidance.
Comment: An individual commenter questioned the need for the
statement to exclude auxiliary power units (APU) from the 1/SAR
calculation in Sec. 38.13(c), stating that they would not normally
need to be included. The commenter noted that if there was ever a
design where they did need to be included for some reason, this
requirement would preclude that. Another commenter said that APU usage
for traditional airplanes should be included because the goal is to
reduce the consumption of hydrocarbons rather than potentially shifting
the location where hydrocarbons are burned from a place where they are
included to one where they are not.
Response: Section 38.13 specifically excludes APUs from the SAR
calculation. The EPA's standard in 40 CFR 1030.23 also contains this
exclusion and this is a key component of the standards. To comply with
42 U.S.C. 7572 and maintain consistency with EPA's standards in 40 CFR
part 1030, the FAA is adopting this paragraph as proposed.
M. Reference Geometric Factor (Sec. 38.15)
Section 38.15 of the NPRM proposed the requirements for determining
RGF, one of the two primary components of the FEM.
1. Discussion of the Final Rule
As adopted, Sec. 38.15 describes the RGF. The RGF is a
representation of airplane fuselage size based on the floor area of
pressurized space in an airplane and is flexible enough to account for
single or multi-deck airplanes. This rule adopts changes from
``cockpit'' to ``flight deck'' to provide gender-neutral language
without changing the meaning or intent. Other than this change, the FAA
is adopting this section as proposed.
2. Public Comments and FAA Response
Comments: Some commenters, including A4A and Boeing, requested
clarifications on FAA's descriptions of the RGF. Specifically, they
requested that the preamble state that the RGF is a representation of
airplane fuselage size based on the floor area of pressurized space in
an airplane and is flexible enough to account for single or multi-deck
airplanes. They further stated that dividing SAR by RGF results in a
universal equation to denote the fuel efficiency of any airplane in a
manner that is transport capability neutral (which is the FEM). Boeing
stated that this change was needed because RGF was not developed to
account for productivity and load carrying capability, noting that RGF
was included to achieve the aim of having a transport-capability-
neutral metric.
Response: The FAA agrees with A4A and Boeing's characterization of
RGF, specifically its purpose to create a transport capability neutral
FEM, and the FAA believes the regulatory text is consistent with this
description. As a result, FAA has determined that no changes to Sec.
38.15 are necessary based on this comment.
Comment: An individual commenter questioned the appropriateness of
RGF. The commenter proposed an example to show that a poorly designed
airplane could have a similar FEM value as a better-designed airplane.
The commenter also questioned the value of the RGF concept when
passengers or payload transported over a given distance, per unit of
energy input could be considered instead.
Response: The FAA disagrees. A specific goal of the standards are
to avoid unintentionally incentivizing airplane manufacturers to design
airplanes for specific operational objectives, such as payload-carrying
[[Page 12645]]
capability or mission range. The RGF is not intended to account for an
airplane's transport capabilities (e.g., its productivity or payload-
carrying capability). Instead, the use of RGF in this regulation
creates a transport capability neutral fuel efficiency metric. The FAA
asserts that RGF is appropriate.
The FEM system is designed to account for aerodynamic, structural
(i.e., airplane weight), and propulsive efficiencies using its SAR
parameter, and utilizes RGF to normalize those efficiencies across a
broad range of MTOMs. If two airplanes have the same efficiencies in
these three categories as well as in RGF, as described in the
commenter's example, then the FEM will be the same--regardless of
whether the interior layout or sub-weight components of MTOM result in
a poor design with respect to a particular operational purpose.
N. Fuel Efficiency Regulatory Limits (Sec. 38.17)
As proposed, Sec. 38.17 incorporated, as fuel efficiency limits,
the emission standards adopted by the EPA in 40 CFR 1030.30. Airplanes
subject to part 38 would be required to demonstrate that the FEM value
does not exceed the fuel efficiency limits in Sec. 38.17. Using the
applicable provision in Sec. 38.1, the NPRM proposed calculating the
fuel efficiency limit using the airplane's MTOM and the equations
listed in the last column of the table in Sec. 38.17(b).
The FAA did not receive comments on this section and is adopting it
as proposed.
O. Change Criteria (Sec. 38.19)
As proposed, this section would apply the fuel efficiency
requirement at the time certain modifications were made. The NPRM would
adopt the EPA airplane change criteria of 40 CFR 1030.35. The change
criteria proposed in Sec. 38.19 described the modifications affecting
compliance. The requirements differ depending on whether or not the
airplane had previously demonstrated compliance with part 38.
1. Discussion of the Final Rule
Section 38.19 provides the change criteria for modified airplanes.
Section 38.19 adopts the EPA airplane change criteria of 40 CFR
1030.35.
As discussed in section IV.D. of this preamble, the third occasion
when part 38 applies is at the time certain modifications are made to
the airplane. Airplanes routinely have modifications incorporated into
their designs. A modification may require demonstration of compliance
to part 38, regardless of whether the airplane was required to
previously demonstrate compliance with part 38.
The change criteria in Sec. 38.19 describe the modifications which
require compliance with part 38. The requirements differ depending on
whether an airplane demonstrated compliance with part 38 before a
modification is made, or whether an airplane was type certificated
before January 1, 2023, and had not previously demonstrated compliance
to this rule. The change criteria in Sec. 38.19(a) indicates that a
compliance demonstration to this new rule is required if a modification
to an airplane, that has been shown to comply with Sec. 38.17, will
increase the MTOM of the airplane as written in Sec. 38.19(a)(1) or
increases the FEM value above the thresholds provided in Sec.
38.19(a)(2)(i) through (iii). Where an airplane has been shown to
comply with Sec. 38.17, for a modification that does not increase
either the MTOM or the FEM value, then under section Sec. 38.19(b) the
airplane may retain the same FEM value as prior to modification. The
last piece of the change criteria in Sec. 38.19(c) provides that an
airplane, which meets the applicability provisions of Sec. 38.1(a)(4)
or (5) on or after January 1, 2023, and before January 1, 2028, must
demonstrate compliance if the incorporated modifications exceed 1.5%
when comparing its FEM before and after the modifications.
The FAA received several comments on this section. Some of these
comments were directly related to Sec. 38.1 because of the
relationship between the regulatory text of Sec. Sec. 38.1 and 38.19.
As such, the FAA responded to some of the Sec. 38.19 comments in the
related applicability responses (see IV.D. General Applicability). As a
result of FAA responses to those comments in the general applicability
discussion, FAA made changes to Sec. 38.19(b) and (c). As a result of
other comments, the FAA made minor clarification changes to Sec.
38.19(a)(2)(i) and (ii) and (b). Other than these changes, the FAA
adopts the section as proposed.
The FAA recognized that the change criteria as proposed in the NPRM
may have been difficult to understand because it described the change
criteria thresholds as ``values'' that could be confused with fuel
efficiency metric ``values'' described in Sec. 38.11. The FAA made
minor edits to the text in Sec. 38.19(a) to remove the potential for
confusion by properly describing the change criteria as a threshold
whereby changes in fuel efficiency metric values are compared to the
thresholds in percentages.
2. Public Comments and FAA Response
Comment: Several commenters, including Embraer, Boeing, AIA, and
Airbus, commented on Sec. 38.19(b) that the text ``this paragraph
(b)'' should say ``paragraph (a) of this section.''
Response: The FAA agrees that this was a typographical error and
has corrected the text.
Comment: Airbus recommended that the non-cumulative (non-tracking)
nature of changes that meet the change criteria, a core part of the
change criteria developed by ICAO, should be mentioned in either part
38 or AC38.
Response: The FAA disagrees. The FAA recognizes that the ICAO
standard and the EPA rule do not require cumulative tracking of
airplane modifications to a type design. In kind, the FAA also does not
have such a requirement. Since there is no requirement to track
cumulative modifications, the FAA does not see a need to include any
explanation of modification tracking in either part 38 or the AC38.
Comment: Boeing asked to clarify Sec. 38.19(a)(2)(i) and (ii) by
specifying the MTOM starting point associated with the percentage
starting point in these two change criteria.
Response: The FAA agrees these edits may help to clarify the
requirement. The FAA has added the phrases ``for an airplane with a
MTOM of 5,700 kg'' to clarify the 1.35 percent in Sec. 38.19(a)(2)(i)
and ``for an airplane with an MTOM of 60,000 kg'' to clarify the 0.75
percent in Sec. 39.19(a)(2)(ii).
Comment: Gulfstream requested that the FAA provide clarification
for documentation expectations in Sec. 38.19(c). Gulfstream noted that
it is not clear how it is determined and what the FAA expectation will
be to document that a modification does not increase the FEM by more
than 1.5%.
Response: For context, Sec. 38.19(c) requires an airplane that
meets the criteria of Sec. 38.1(a)(4) and (5) on or after January 1,
2023, and before January 1, 2028, to demonstrate compliance with Sec.
38.17 if it incorporates any modification that increases the FEM value
of the airplane by more than 1.5% prior to modification.
Regarding the portion of Gulfstream's comment on documentation
expectations, the FAA will determine whether part 38 applies to a
covered airplane according to the criteria in Sec. 38.19(c) and the
supporting documentation provided by the applicant. This determination
is part of the type design change certification process in Sec.
21.93(d) and FAA will decide documentation expectations on a
[[Page 12646]]
case-by-case basis depending on the complexity of the type design
change.
Comment: Gulfstream asked how a change in the FEM value is
determined.
Response: The requirements in part 38 and its appendix provide the
detailed information required to determine a fuel efficiency metric
value for a type design, such as corrections, tolerances, and
confidence intervals. The AC38 provides additional detailed guidance
and worked examples on how applicants can evaluate the FEM value for an
airplane.
Comment: An individual commented that the magnitude of change in
the FEM value caused by the addition of a satellite antenna could be
lower than in the example provided in that discussion.
Response: The FAA acknowledges that FEM value changes due to
modifications to airplanes could vary significantly. As provided in
Sec. 38.19, the FEM values can increase or decrease when there are
modifications to an airplane that impact aerodynamics.
The NPRM discussion for Sec. 38.19 intended to focus on how the
change criteria thresholds work, rather than the specific examples
themselves. This comment does not require changes to the regulatory
text.
P. FAA Approval Before Compliance Testing (Sec. 38.21)
As proposed, Sec. 38.21 would require FAA approval of all
procedures, weights, configurations, and other information needed to
calculate the FEM value of an airplane. As described in the NPRM, the
FAA would not apply this section to data an applicant submits for
validation following fuel efficiency certification by another
authority.
1. Discussion of the Final Rule
As adopted, Sec. 38.21 requires FAA approval of all information
needed to calculate the FEM value of an airplane. The FAA approvals are
necessary and establish the airplane configuration and fuel efficiency
certification procedures. These procedures remain unchanged before fuel
efficiency compliance tests are conducted. This section does not apply
to data submitted for validation following fuel efficiency
certification by another authority. The FAA received several comments
on proposed Sec. 38.21. The FAA adopts Sec. 38.21 as proposed.
2. Public Comments and FAA Response
Comment: The GAMA requested that the FAA add the phrase
``documented in compliance demonstration plans'' before ``approved by
the FAA'' to Sec. 38.21.
Response: The FAA finds the proposed change to be too prescriptive.
Section 38.21 requires FAA approval of certain items prior to
compliance testing, including procedures, weights, configurations, and
other information. These items are used to establish the fuel
efficiency level. Compliance demonstration plans may be one way of
providing this information to the FAA. However, the FAA intends to
preserve the ability for applicants to use other mechanisms to provide
the required information to the FAA. The GAMA's proposed change would
remove this flexibility.
Q. Manual Information and Limitations (Sec. 38.23)
As proposed, Sec. 38.23 would require placement of the FEM value
of the airplane, along with other part 38 compliance information, in an
FAA-approved section of the flight manual of the airplane. Inclusion of
this information in the approved airplane flight manual would provide
owners, operators, and flight crew with information regarding the
airplane's compliance with part 38. The FAA proposed that if a weight
lower than the MTOM was used for fuel efficiency certification, then
that lower weight becomes an operating limitation for that airplane and
would be included in the operating limitations section of the flight
manual. As provided in the NPRM, operators could not exceed the weight
at which compliance with part 38 was demonstrated, even if that weight
was lower than the MTOM for the airplane under other airworthiness
requirements.
1. Discussion of the Final Rule
The FAA made one change to this section in response to comments to
specify that the manual include the fuel efficiency level as
established in part 38. Other than the change to Sec. 38.23(a)(1), the
FAA adopts the regulation as proposed.
2. Public Comments and FAA Response
Comment: Boeing suggested clarifying the language in Sec.
38.23(a)(1) to refer to compliance, as required by the part, rather
than during certification. Boeing indicated that the proposed text
could give rise to potential ambiguity with respect to an in-production
airplane that complies with the fuel efficiency requirement in part 38,
and compliance to part 38 need not be shown during type certification.
Further, Boeing remarked that there is no reason that the compliance
demonstration itself needs to be done during type certification and the
FAA's regulatory language should be sufficiently flexible to
accommodate such an approach.
Response: The FAA concurs with the change proposed by Boeing and
has replaced ``during type certification'' with ``as required by this
part'' in Sec. 38.23(a). The use of ``as required by this part'' more
specifically refers to the part 38 requirements rather than the type
certification process.
Comment: Airbus suggested removing the requirement to publish
certified fuel efficiency data in the flight manual by deleting
Sec. Sec. 38.23 and 21.5(b)(3). Airbus indicates that the adoption of
these provisions would create de-harmonization between certification
authorities. Airbus instead suggests relying on the ICAO CO2
databank maintained by the FAA as well as through the EASA
CO2 databank. Using the same justification, Airbus also
requested that the FAA remove the proposed flight manual requirements
from Sec. Sec. 121.141(b) and 125.75.
Airbus was also concerned that if the certification applicant
chooses to certify several MTOMs against the new part 38, several
flight manual supplements would have to be created and maintained for
the same airplane model.
Response: The FAA disagrees with removing the flight manual
publication requirement. Although most information may be available
through the ICAO CO2 database \17\ or another certification
authority-maintained database, these databases are either outside the
FAA's control or potentially incomplete, because manufacturers are not
required to submit information to the database. For these reasons, the
databanks may not provide a complete set of information and may not
contain information for a particular airplane. The inclusion of fuel
efficiency levels and MTOM in the flight manual associated with a
serial number specific airplane allows anyone, including an authority,
to determine the compliance state of an airplane.
---------------------------------------------------------------------------
\17\ The FAA hosts but does not control the contents of the ICAO
Airplane CO2 Certification Database located at:
www.faa.gov/headquartersoffices/apl/aee/icao-airplane-co2-certification-database.
---------------------------------------------------------------------------
For these reasons, the FAA is retaining these requirements.
Comment: Gulfstream asked if the industry could expect to see
airports imposing fees or restrictions based on fuel efficiency,
similar to noise, that would motivate an applicant to certify an
airplane at a lower MTOM. Gulfstream recommended clarifying the
potential for any benefit with artificially limiting the MTOM to a
lower value than the design specification.
[[Page 12647]]
Response: The FAA cannot speculate as to whether third parties,
such as airports, would impose fees or restrictions on airplanes based
on these fuel efficiency values.
R. Appendix A to Part 38
As proposed, Appendix A provided the technical detail needed to
determine the FEM value of an airplane required to demonstrate
compliance with part 38. It also detailed the process and procedures an
applicant needed to use when measuring an airplane for fuel efficiency.
The proposal also described the data the applicant would submit to the
FAA.
1. Discussion of the Final Rule
As adopted, Appendix A to part 38 provides the technical,
certification-specific details an applicant needs to determine the FEM
value of an airplane and demonstrate compliance with part 38. The
primary sources of the information contained in the appendix are
Sections 2.5 and 2.6 of ICAO Annex 16, Volume III, as well as
appendices 1 and 2 to that volume. These sources of information were
not included in the EPA rule directly but were incorporated by
reference. In coordination with the EPA, the FAA decided it was
important to include such certification-related details in part 38
given the FAA's responsibility to enforce the EPA rule within the FAA
airplane certification framework. As a result, in this rule, the FAA
does not incorporate this Annex information by reference but includes
all the requirements from Annex 16 Volume III using current United
States certification terminology, format, and references.
Appendix A to part 38 details the processes and procedures to be
used when measuring an airplane for fuel efficiency. To comply with
part 38, a certification applicant would need to determine the core
parameters of the FEM, specifically the SAR and RGF. The specifications
for the flight tests to gather airplane performance data are provided
in Appendix A, including the formulas to be used to determine the SAR
and RGF from data gathered during testing. The appendix also describes
certification data that would be submitted to the FAA in the
certification test report that is a part of fuel efficiency
certification.
The FAA received comments on several sections of Appendix A to part
38. As a result of these comments, as well as consistency edits that
result from the FAA's responses to these comments, the FAA has made
changes to proposed paragraphs A38.1.2.3.1, A38.1.2.3.4, A38.2.1.1.3,
A38.2.1.1.6, A38.2.1.3.1, A38.2.1.3.2, A38.4.2.1.2, A38.4.2.1.3,
A38.4.2.1.4.1, A38.4.2.1.4.2, A38.4.2.1.5.1, A38.4.2.1.5.2, A38.4.2.2,
A38.4.2.2.1, A38.4.2.2.1.2, A38.4.2.2.1.4, A38.4.2.3.2.1,
A38.4.2.3.2.2, A38.4.2.3.2.3, A.38.5.2.2.1.1, A38.6, A38.6.1.2,
A38.6.3.7, A38.6.3.9, and A38.6.4. In general, the comments pertained
to clarifications on airplane weighing and mass requirements, fuel
sampling requirements, fuel kinematic viscosity requirements, airplane
trim requirements, the use of standard United States aerospace
terminology, engine deterioration, corrections to reference
specifications, the reporting of data, the fixing titles of reference
citations, and some minor typographical errors.
Paragraph A38.2.1.3.1 identifies a reference specification for
standard day atmosphere. As discussed in relation to Sec. 38.7, the
FAA has determined that this specification needs to be incorporated by
reference and has indicated that in A38.2.1.3.1 as well as the other
paragraphs that include this same reference specification (i.e.,
paragraphs A38.5.2.2.1.9 and A38.5.2.2.1.10). Also, in paragraph
A38.2.1.3.1, the FAA noticed that it inadvertently failed to include an
``and'' at the end of this paragraph, which is now included for
consistency with the ICAO standard. The FAA corrected the section
accordingly. In paragraphs 38.3.2, 38.3.3, and 38.3.4, this rule adopts
changes from ``cockpit'' to ``flight deck'' to provide gender-neutral
language without changing the meaning or intent.
Other than these changes, the FAA adopts the Appendix as proposed.
2. Public Comments and FAA Response
The comments and responses below are categorized based on the
relevant appendix section.
a. Appendix A to Part 38, A38.1 Introduction
Comment: For proposed paragraphs A38.1.2.3.1 and A38.1.2.3.4,
Airbus noted potential errors including a missing ``and'' between
listed requirements of a performance model, and incorrect numbering of
appendix sections where A38.1.2.3.4 should have been A38.1.2.3.3.
Response: The FAA disagrees with the request to add an ``and'' at
the end of A38.1.2.3.1. The FAA notes the proposal contained an ``and''
in the next to last item in the list and this is sufficient to make
each of the items under A.38.1.2.3 a requirement. Thus, the FAA did not
make this proposed change. However, with respect to the incorrect
numbering in proposed A38.1.2.3.4, the FAA agrees that this is a
typographical error and has corrected it.
b. Appendix A to Part 38, A38.2 Reference Specifications for SAR Flight
Tests
Comment: For paragraph A38.2.1.1.3, Boeing suggested using standard
industry terminology of ``unaccelerated'' instead of
``unaccelerating.''
Response: The FAA agrees that ``unaccelerated'' is a more common
aerospace industry terminology when describing steady-level flight,
thus the FAA made the suggested changes. The FAA also made these same
changes to paragraphs A38.4.2.2.1.2 and A38.5.2.2.1.
Comment: For paragraph A38.2.1.1.5, Gulfstream requested
confirmation that, when it uses a performance model, all the provided
information in the section will be embedded in the model and additional
corrections will not be required in the model results.
Response: The FAA confirms that reference specifications are
required for flight test data, which can be used to validate a
performance model. Depending on how the performance model is built and
on what data it is based, corrections may be necessary for SAR values
calculated from the model.
c. Appendix A to Part 38, A38.4 Certification Test Specifications
Comment: For paragraph A38.4.2.1.2, Boeing requested to clarify the
airplane weight and balance requirement by removing the words ``prior
to the test flight.'' Boeing indicated it may be possible that the
weight before flight may not be the best engineering value; because
test data may, after post-flight weighing, suggest a more optimal means
for establishing accurate weight.
Response: The FAA agrees that this airplane weight requirement can
be clarified, however disagrees with the proposed changes as they would
cause a substantive difference (discussed in IV.F.) with the ICAO
international standard that includes the words ``prior to the test
flight.'' The FAA has revised the text to align with the ICAO
international standard by changing the requirement to read: ``The test
airplane must be weighed. Any change in mass after the weighing and
prior to the test flight must be accounted for.'' During its review of
this paragraph, the FAA recognized that the ``and balance'' text that
was contained in the proposed A38.4.2.1.2 is not required given the
various center of gravity requirements throughout Appendix A. After
reviewing all center of gravity requirements in Appendix A, the FAA
[[Page 12648]]
made a clarifying change in A38.2.1.1.6 by changing ``a'' to ``the'' in
the proposed text (i.e., representative of a mid-CG point relevant to
design cruise performance). The FAA's clarifying change ensures there
is no ambiguity as there is only one mid-CG point at each of the three
reference airplane masses.
Comment: For paragraphs A38.4.2.1.3, A38.4.2.1.4.1, A38.4.2.1.5.1,
and A38.4.2.1.5.2, Boeing suggested correcting these reference
citations by: (1) removing the word ``specification'' when referring to
the external American Society for Testing and Materials (ASTM)
documents, and (2) correcting the titles of the documents as needed.
Response: The FAA agrees to these minor editorial changes and
accepts them. The FAA also noticed, and corrected, that the word
``titled'' instead of ``entitled'' should have been used when quoting
the titles of these documents.
Comment: For paragraph A38.4.2.1.4.2, Airbus suggested that it did
not understand the text ``and may not have variations'' at the end of
the fuel sample requirement, because fuel samples are analyzed for each
test flight and a single lower heating value is determined.
Response: The FAA agrees with this reasoning and has revised the
text to better align with the ICAO international standard regarding
flexibility on variations and errors. The language now reads:
The fuel sample may be representative of the fuel used for each
flight test and should not have errors or variations due to fuel being
uplifted from multiple sources, fuel tank selection, or fuel layering
in a tank.
Comment: For paragraph A38.4.2.1.5.2, Airbus requested an
additional ASTM document be added for determining fuel kinematic
viscosity.
Response: The FAA disagrees because it would result in a
substantive difference (discussed in IV.F.) with the ICAO international
standard. In addition, the FAA notes that the words ``or as approved by
the FAA'' at the end of that paragraph allow applicants to seek
approval of other methods for determining fuel kinematic viscosity,
which is consistent with the ICAO standard.
Comment: An individual commented on paragraph A38.4.2.2 regarding
the use of the term ``configuration.'' They indicated that this section
relates to criteria, procedures, or requirements and that it does not
relate to configurations, which is a term used for defining an airplane
configuration such as a flap position, gear position, or some aspect of
the type design.
Response: Upon review, the FAA acknowledges the word
``configuration(s)'' does not accurately reflect the requirement. The
requirement relates more to procedures on how the pilot should fly the
airplane during flight testing. As such, the FAA has replaced the word
``configuration(s)'' with the word ``procedure(s)'' in A38.4.2.2 and
A38.4.2.2.1.
Comment: For paragraph A38.4.2.2.1.4, Boeing requested a change to
the text ``there are no changes in trim.'' Boeing requested that the
text be revised to allow some changes by stating that changes are to be
avoided or minimized as practicable. Boeing explained that it may not
be possible to eliminate all changes during flight because there may be
unavoidable circumstances during flight; however, such changes may be
accounted for through data analysis and interpretation.
Response: The FAA agrees that in-flight conditions may not make it
possible to eliminate changes to some trim and engine settings, and
that changes may be accounted for through post-flight data analysis.
The FAA also notes that providing flexibility better aligns with the
same recommendation in the ICAO international standard. Accordingly,
the FAA revised the text to read as follows:
Changes in trim or engine power/thrust settings, engine stability
and handling bleeds, or electrical and mechanical power extraction
(including bleed flow) are avoided or minimized as practicable.
Comment: For paragraph A38.4.2.3.2, Airbus explained that the
requirement regarding airplane mass determination should provide for
alternative methods, specifically by changing the word ``must'' to
``may.''
Response: The FAA agrees that this requirement should allow
additional methods to determine the mass of the airplane because the
ICAO Annex 16 Vol III also lists the two methods as recommended options
for determining mass, not as required methods. Therefore, the FAA kept
the word ``must,'' but added a third option to A38.4.2.3.2.3: other
methods as approved by the FAA. This third option will allow
alternative methods in addition to the two options listed.
d. Appendix A to Part 38, A38.5 Measurement of Specific Air Range
Comment: For paragraph A38.5.2.2.1.7, Airbus suggested the sentence
starting with the text ``(s)ince engine deterioration is rapid when . .
.'' may not be grammatically correct.
Response: The FAA notes that this is a partial sentence that is a
lead-in to the two sub-paragraphs that follow it. In that context, the
FAA does not see a need to make changes to this text.
Comment: For paragraph A38.5.2.2.1.7.2, Boeing suggested replacing
the proposed text, ``. . . and no correction is permitted'' with, ``. .
. and a correction to the reference deterioration level may be approved
by the FAA.'' Boeing asserted that technology and processes have
advanced to the point where it is reasonable to employ engine
deterioration corrections in certain circumstances. Boeing noted that
it has successfully employed deterioration corrections on occasion and
believes that the FAA provide flexibility for deterioration corrections
if the FAA approves of the correction.
Response: The FAA disagrees with providing the suggested
flexibility for this requirement because this change would cause a
substantive difference (discussed in IV.F.) with the ICAO international
standard that precludes correction in these instances.
Comment: For paragraph A38.5.3, Gulfstream commented that it is
unclear how an applicant will manage confidence intervals when a
performance model is used.
Response: The AC38 provides guidance on determining and using
confidence intervals.
e. Appendix A to Part 38, A38.6 Submission of Certification Data to the
FAA
Comment: For paragraph A38.6, Airbus recommended edits to the
proposed text to allow other analysis reports to convey the required
information, not just the certification test report.
Report: The FAA agrees that there are various types of reports
during certification that could contain the required information. The
FAA made the change from ``certification test report'' to
``certification reports.''
Comment: For paragraphs A38.6.1.2, A38.6.3.7, and A38.6.3.9, Airbus
and Boeing noted typographical and reference errors, including a
reference to Sec. 38.23(a)(3) that does not exist in A38.6.1.2, a
correction to a semicolon in A38.6.3.7, and incorrect references within
A38.6.3.9.
Response: The FAA agrees and fixed the noted typographical and
reference errors.
Comment: For paragraph A38.6.4, Airbus requested that the FAA
remove the text ``defined in Sec. 38.13(b).'' Airbus indicated that
this language suggested that the test measurements are
[[Page 12649]]
systematically done at the reference masses of the standard but that
this was not the case when a performance model was used.
Response: The FAA agrees that the reference to Sec. 38.13(b)
should be removed for the reasons Airbus stated and has removed the
reference. In addition, the FAA's review resulted in the need to
clarify this requirement in paragraph A38.6.4 by clearly stating that
SAR values, corrections from measured data to reference specifications,
and finally the SAR values calculated from corrected data must be
provided for the test measurement points. As such, the requirement has
been updated to the following language:
The measured SAR test data, all corrections of the measured data to
the reference specifications, and the SAR values calculated from the
corrected data must be provided.
S. Other Revisions to 14 CFR
The proposed rule set forth several amendments to part 21 to
include compliance with part 38 as a requirement for type, supplemental
type, or airworthiness certification using the applicability described
in Sec. 38.1. If adopted, the amendment proposed to part 21 would
include adding references to part 38 in Sec. Sec. 21.5, 21.17, 21.29,
21.31, 21.93, 21.101, 21.115, 21.183, and 21.187. The NPRM also
proposed to adopt the move and redesignation of Sec. 21.187(c) to
Sec. 21.187(a)(3). The proposal also included amendments to the
operating regulations (Sec. Sec. 121.141 and 125.75) for airplanes
subject to part 38. The revisions were included to add the
certification information for fuel efficiency to the airplane flight
manuals.
1. Discussion of the Final Rule
With some changes, this rule adopts the proposed changes to part 21
and Sec. Sec. 121.141 and 125.75.
In particular, in this final rule, the FAA also makes a change to
Sec. 21.93(d) by adding that a voluntary change that may increase the
MTOM of that airplane is a ``fuel efficiency change.'' The proposal
only identified an increase in the FEM value as a ``fuel efficiency
change.'' This change was made to ensure consistency with the change
criteria in Sec. 38.19.
Further, as a result of comments, the FAA made changes to
Sec. Sec. 21.21, 21.93, and 121.141. These changes ensure that the
fuel efficiency requirements are appropriately included in part 21 and
corrected an inadvertent change in Sec. 121.141. Other than these
identified changes, the FAA adopts the amendments to part 21 and
Sec. Sec. 121.141 and 125.75 as proposed.
Finally, this rule adopts changes to Sec. 21.187 to provide
gender-neutral language (from ``He'' to ``The applicant'') without
changing the meaning or intent of the rule.
The comments and responses are organized by the specific regulatory
section.
2. Public Comments and FAA Response
a. Section 21.5: Airplane or Rotorcraft Flight Manual
Comment: One individual commenter recommended adding ``Rotorcraft
Flight Manual'' to the change proposed in Sec. 21.5(b)(3).
Response: The FAA does not concur with adding ``Rotorcraft Flight
Manual'' to the changes in Sec. 21.5(b)(3) to accommodate the addition
of part 38 requirements as this rule only applies to fixed wing
airplanes.
Comment: One commenter stated Sec. 21.5 only pertains to airplanes
and rotorcraft not type certificated with an Airplane or Rotorcraft
Flight Manual and asked whether there were any such airplanes in
existence that would be subject to part 38.
Response: Section 21.5 applies to all airplanes that do not have
flight time prior to March 1, 1979. Airplanes produced or certified on
or after that date are required to have an approved flight manual.
Comment: One individual proposed the airplane flight manual
requirement should be placed in Sec. Sec. 25.1581 and 23.2620. They
stated that it was also unclear how the requirement in Sec. 21.5
meshes with Sec. 38.23. They thought the requirements of Sec. 38.23
should either be placed in or reference the sections of parts 23 and 25
pertaining to Airplane Flight Manuals and airplane limitations.
Response: The FAA disagrees with the requested amendments to parts
23 and 25. Flight manual requirements are covered in the revised Sec.
21.5. This final rule also amends the applicability requirements in
other sections of part 21 such that Sec. 21.5 applies to part 23 and
25 airplanes. Accordingly, the flight manuals for these airplanes must
include the flight manual requirements of part 38.
b. Section 21.21: Issue of Type Certificate: Normal, Utility,
Acrobatic, Commuter, and Transport Category Aircraft; Manned Free
Balloons; Special Classes of Aircraft; Aircraft Engines; Propellers
Comment: Boeing recommended that the FAA revise Sec. 21.21(b) and
(b)(1) by adding ``and fuel efficiency'' to be consistent with proposed
Sec. 38.1(a)(1), (2) and (3) (for new-type airplanes seeking original
type certification). Boeing noted that adding ``fuel venting and
exhaust emissions'' to Sec. 21.21 would also be consistent with the
FAA's revision of Sec. 21.29.
Response: Section 21.21 identifies all the necessary requirements
for receiving a type certificate. In order to fully effectuate part 38
into the type certification requirements, it is important to include
this rule in paragraph (b) of this section. Further, the FAA agrees
that consistency is necessary between Sec. Sec. 21.21 and 21.29.
Section 21.21 was revised to list fuel efficiency in addition to the
other environmental requirements that an applicant must comply with in
order to get a type certificate. The FAA has modified Sec. 21.21 to
include fuel efficiency.
The FAA inadvertently revised Sec. 21.29 with a punctuation error
in the proposed rule to state, ``fuel venting and exhaust emissions,
and fuel efficiency.'' The FAA has corrected this in the final rule to
state ``fuel venting, exhaust emission, and fuel efficiency'' to be
consistent with Sec. 21.21.
c. Section 21.93: Classification of Changes in Type Design
Comments: Gulfstream requested clarity on the use of the word
``voluntary'' regarding type design changes in Sec. 21.93(d).
Gulfstream recollected that the ICAO language did not include the word
``voluntary'' and asked if it was the FAA's intent to protect
applicants from having to reverify part 38 compliance after a mandated
design change.
Response: The FAA's intent was to prevent applicants from having to
reverify part 38 compliance after a mandated design change. The FAA
uses the word ``voluntary'' to describe the action initiated by an
applicant to obtain an approval. On the other hand, non-voluntary or
mandated changes, typically required by an authority, are needed to
maintain the airworthiness of in-service airplanes as soon as possible
for safety concerns. The ICAO Standards and Recommended Practices do
not have a similar exception for authority-mandated changes to an
airplane. It is the responsibility of the authority adopting the
Annexes to provide their own procedures for handling mandated changes
required for continued operational safety.
Comments: Embraer noted that 14 CFR 21.93(d) defines the term `fuel
efficiency change' that is not used within 14 CFR part 38. This leaves
the applicability definition of 14 CFR part 38 within Sec. 38.19. On
the other hand,
[[Page 12650]]
Embraer stated that ICAO/RBAC \18\ uses the definition of ``derived
version'' to determine applicability. Although the definitions are
similar, Embraer states this could generate interpretation problems
when classifying a modification and, consequently, to define the
involvement of the authorities.
---------------------------------------------------------------------------
\18\ This is an acronym in Portuguese for Brazilian Regulations
for Civil Aviation.
---------------------------------------------------------------------------
Response: The FAA is not defining a new term ``fuel efficiency
change'' as Embraer indicates. This language refers to changes in the
certified ``fuel efficiency metric value'' as provided in part 38. The
applicability of Sec. 38.1 includes a direct reference to Sec. 38.19
(see in Sec. 38.1(b)) and, therefore, includes modifications as part
of applicability considerations. Similarly, ICAO includes modifications
via a definition of ``derived versions'' that is contained outside the
applicability provisions.
d. Other Part 21 Sections
Comments: Boeing suggested adding additional text to Sec. Sec.
21.101(a), 21.115(a)(3), 21.183(j), and 21.187(a)(4) that direct a
reader to specific applicability sections of part 38. Boeing was
concerned that, as drafted, these sections could mistakenly be read to
mean that an obligation to demonstrate compliance with part 38 applies
automatically upon any application for approval of a modification in
type design for any airplane, including an in-service airplane,
regardless of whether the requirements of Sec. Sec. 38.1 and 38.19 are
met.
Response: The FAA disagrees. Section 21.93(d) refers to part 38 for
purposes of maintaining compliance with part 38. Part 38 is the
appropriate regulatory location to determine which sections of part 38
apply in a particular circumstance.
Further, the FAA has revised the applicability requirements in part
38 to clarify its applicability to modifications in type design for any
airplane, including an in-service airplane. See FAA's responses to
comments in section IV.D. For these reasons, the FAA is not adopting
the suggested changes.
e. Section 121.141 (Airplane Flight Manual) and 125.75 (Airplane Flight
Manual)
Comment: One individual commenter noted that changing the word
``may'' to ``must'' is a significant change in Sec. 121.141(b), making
it mandatory to revise the performance section of the Airplane Flight
Manual when operators create their own manual. The commenter also noted
that this change was not consistent with the proposal to change Sec.
125.75(b), which does not change a similar ``must'' in the existing
text to ``may.'' The commenter also recommended that if FAA meant to
change the language to ``must'' in Sec. 121.141(b), the FAA should
make a corresponding change in Sec. 125.75(b) and explain the change
in the preamble.
Response: The FAA concurs that the text added to Sec. 121.141(b)
should have said ``may revise'' not ``must revise.'' This was an
inadvertent change from existing text. Accordingly, the final rule text
is corrected to ``may revise'' and the FAA does not need to make the
suggested change to Sec. 125.75(b).
T. Costs
A number of individuals commented generally regarding their
concerns about the monetary costs of the rule.
The FAA conducted an analysis of the costs and benefits of the
proposed rule. As described in the preliminary regulatory impact
analysis (RIA) that accompanied the proposal, in the absence of the
FAA's rule aircraft manufacturers would have to certify to the fuel
efficiency standards through foreign authorities. As a result, the rule
reduces the cost of this certification by enabling certification
through the FAA. Therefore, the FAA does not expect this rule will
impose an undue burden on industry, an increase in the cost of air
travel, or other negative economic impacts commenters attribute to the
rule. Regarding the need for government intervention, airplane fuel
efficiency has increased as the standard is technology-following, but
the rule prevents backsliding to less fuel-efficient airplanes. The FAA
also noted that the rule may generate minimal benefits since the ICAO
designed the standard in such a way that most airplanes would already
meet the standard.
Boeing asserted that footnote 8 in the preliminary RIA contradicted
the EPA's unambiguous intent with respect to the inapplicability of its
GHG standards to modifications of individual in-service airplanes. The
footnote stated that owners or operators that modify an airplane that
was not certificated to the proposed fuel efficiency standard may also
need to comply with the rule when the modifications are made. The
National Business Aviation Association (NBAA) also asserted that in the
preliminary RIA, the FAA failed to analyze the financial impact this
rule may have on the current fleet. Specifically, it stated that
operators seeking to modify their airplanes through a Supplemental Type
Certificate (STC) may have to complete additional modifications or data
analysis to meet the FEM, resulting in additional costs. The NBAA
encouraged the FAA to consider this submission prior to applying this
rule to modified airplanes.
The FAA asserts that there will be no economic impact on the
current fleet stemming from this rule. The FAA agrees that owners or
operators that modify an airplane that was not certificated to the fuel
efficiency standards will not need to comply with the rule when those
modifications are made. The rule does not apply to the in-service fleet
that was not certified to the fuel efficiency standard, including any
future modifications. As such, there will be no impact on the current
fleet for operators seeking to modify their airplane through an STC.
The FAA deleted the referenced footnote 8 in the final RIA.
V. Regulatory Notices and Analyses
Federal agencies consider impacts of regulatory actions under a
variety of executive orders and other requirements. First, Executive
Order 12866 and Executive Order 13563 direct that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify the costs. Second,
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires
agencies to analyze the economic impact of regulatory changes on small
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits
agencies from setting standards that create unnecessary obstacles to
the foreign commerce of the United States. 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 that may
result in the expenditure by State, local, and Tribal governments, in
the aggregate, or by the private sector, of $100 million or more
(adjusted annually for inflation) in any one year. The current
threshold after adjustment for inflation is $177 million using the most
current (2022) Implicit Price Deflator for the Gross Domestic Product.
The FAA has provided a detailed Regulatory Impact Analysis (RIA) in the
docket for this rulemaking. This portion of the preamble summarizes the
FAA's analysis of the economic impacts of this rule.
In conducting these analyses, the FAA has determined that this
rule: will result in benefits that justify costs; is not a
``significant regulatory action'' as defined in section 3(f) of
Executive Order 12866, as amended by Executive Order 14094; will not
have a significant
[[Page 12651]]
economic impact on a substantial number of small entities; will not
create unnecessary obstacles to the foreign commerce of the United
States; and will not impose an unfunded mandate on State, local, or
Tribal governments, or on the private sector.
A. Summary of the Regulatory Impact Analysis
The FAA identified three United States manufacturers that would be
affected by the rule. Manufacturers will incur certification costs even
in the absence of the rule since they would pursue certification with
foreign authorities. Certification tasks will vary greatly depending on
the stage of the airplane development process (e.g., new type
certificate, supplemental type certificate, etc.). Additionally, the
first fuel efficiency certification project undertaken by any one
manufacturer may require more resources because of the new processes
and the need for new data generation. The FAA used information provided
by the affected airplane manufacturers to construct a timeline of when
these costs would be incurred over a 10-year period, and the cost
savings from domestic certification enabled by the rule.
Because the EPA standards apply to airplanes certificated in the
United States even in the absence of the rule, there are no incremental
benefits associated with the FAA's action; however, the rule will
result in cost savings by enabling United States manufacturers to
certificate to the standards domestically. Annualized costs savings may
be approximately $0.4 million using discount rates of 3 percent and 7
percent (a present value over 10 years of $3.5 million to $2.9 million,
using discount rates of 3 percent and 7 percent, respectively).
Please see the RIA available in the docket for more details.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, (5 U.S.C. 601-612),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121) and the Small Business Jobs Act of 2010 (Pub. L.
111-240), requires Federal agencies to consider the effects of the
regulatory action on small business and other small entities and to
minimize any significant economic impact. The term ``small entities''
comprises small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
As described in the RIA, the FAA identified three United States
manufacturers that would be affected by the proposed rule. Based on the
Small Business Administration (SBA) size standard for aircraft
manufacturing (Table 1), all three manufacturers are large businesses.
If an agency determines that a rulemaking will not result in a
significant economic impact on a substantial number of small entities,
the head of the agency may so certify under section 605(b) of the RFA.
Therefore, as provided in section 605(b) and based on the foregoing,
the head of FAA certifies that this rulemaking will not result in a
significant economic impact on a substantial number of small entities.
Table 1--Small Business Size Standards: Air Transportation
------------------------------------------------------------------------
NAICS code Description Size standard
------------------------------------------------------------------------
336411.............. Aircraft manufacturing.. 1,500 employees.
------------------------------------------------------------------------
Source: SBA (2022).\19\
NAICS = North American Industrial Classification System.
C. International Trade Impact Assessment
---------------------------------------------------------------------------
\19\ Small Business Administration (SBA). 2022. Table of Size
Standards. Effective July 14, 2022. www.sba.gov/document/support--table-size-standards.
---------------------------------------------------------------------------
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, the establishment of standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for United States standards.
The FAA has assessed the potential effects of this rule and finds
that it does not create an unnecessary obstacle to foreign commerce.
The United States has adopted the same airplane emission standards as
ICAO and many of its member States. This rule is the next step in
insuring compliance with the internationally recognized standard.
D. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. An unfunded mandate is a regulation that requires a State,
local, or Tribal government or the private sector to incur direct costs
without the Federal government having first provided the funds to pay
those costs. The FAA determined that this final rule will not result in
the expenditure of $177 million or more by State, local, or Tribal
governments, in the aggregate, or the private sector, in any one year.
This rule does not contain such a mandate; therefore, the
requirements of title II of the Act do not apply.
E. 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. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
This action contains the following new information collection
requirement. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the FAA has submitted these information collection
amendments to OMB for its review. The OMB control number for this
action is 2120-0815.
Summary
The regulations, adding a new part 38 to 14 CFR that requires
certification for fuel efficiency, includes a collection of data from
certification applicants. Certain data collected by the respondent
during its certification flight tests are to be included in a
certification test report that is submitted to the FAA. Those data are
described in Appendix A to part 38. The information in the test report
is used by the agency to determine whether the subject airplane
complies with the fuel efficiency requirements promulgated by the EPA
and the FAA. Without such information, the FAA would not have the
complete record of an airplane's fuel efficiency performance and would
be unable to issue a type or airworthiness certificate.
Use
Respondent's data will be used to determine compliance with the
fuel efficiency standards established by the
[[Page 12652]]
EPA under the requirements of the Clean Air Act. The FAA is required by
the Clean Air Act to implement those standards, which is done at the
time of airplane certification.
Respondent's test data will not be maintained by the FAA following
a certification determination. The certification test report is not
available to the public. The regulation also requires that certain
values be listed in the flight manual of the airplane, which is given
to the purchaser of an airplane.
Respondents (including number of): The FAA anticipates three
respondents to the collection of information.
Frequency: The FAA anticipates that respondents will provide
responses annually (averaged).
Annual Burden Estimate: Table 1 provides the FAA's estimates of
annual reporting (submittal of certification data) and recordkeeping
(manual information) burden.
Table 1--Summary of Annual Burden
------------------------------------------------------------------------
Category Reporting Recordkeeping
------------------------------------------------------------------------
# of respondents........................... 3 3
# of responses per respondent.............. 2 2
Time per response (hours).................. 2 8
----------------------------
Total # of responses..................... 6 6
----------------------------
Total burden (hours)................... 12 48
------------------------------------------------------------------------
F. International Compatibility
In keeping with United States' obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no substantive differences with these regulations.
G. Environmental Analysis
FAA Order 1050.1F identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA has
determined this rulemaking action qualifies for the categorical
exclusion identified in paragraph 5-6.6f for regulations and involves
no extraordinary circumstances.
VI. Executive Order Determinations
A. Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order (E.O.) 13132, Federalism. The FAA has
determined that this action will not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, will not have
federalism implications.
B. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments
Consistent with Executive Order 13175, Consultation and
Coordination with Indian Tribal Governments,\20\ and FAA Order 1210.20,
American Indian and Alaska Native Tribal Consultation Policy and
Procedures,\21\ the FAA ensures that Federally Recognized Tribes
(Tribes) are given the opportunity to provide meaningful and timely
input regarding proposed Federal actions that have the potential to
have substantial direct effects on one or more Indian Tribes, on the
relationship between the Federal government and Indian Tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian Tribes; or to affect uniquely or significantly
their respective Tribes. At this point, the FAA has not identified any
unique or significant effects, environmental or otherwise, on Tribes
resulting from this final rule.
---------------------------------------------------------------------------
\20\ 65 FR 67249 (Nov. 6, 2000).
\21\ FAA Order No. 1210.20 (Jan. 28, 2004), available at
www.faa.gov/documentLibrary/media/1210.pdf.
---------------------------------------------------------------------------
C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use
The FAA analyzed this final rule under E.O. 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it is
not a ``significant energy action'' under the executive order and not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.
D. Executive Order 13609, Promoting International Regulatory
Cooperation
Executive Order 13609, Promoting International Regulatory
Cooperation, promotes international regulatory cooperation to meet
shared challenges involving health, safety, labor, security,
environmental, and other issues and reduce, eliminate, or prevent
unnecessary differences in regulatory requirements. The FAA has
analyzed this action under the policy and agency responsibilities of
Executive Order 13609. The FAA has determined that this action will
eliminate differences between United States aviation standards and
those of other civil aviation authorities by adopting the airplane
certification regulations needed to comply with the standards adopted
by ICAO and the EPA.
VII. Additional Information
A. Electronic Access and Filing
A copy of the NPRM, all comments received, this final rule, and all
background material may be viewed online at www.regulations.gov using
the docket number listed above. A copy of this final rule will be
placed in the docket. Electronic retrieval help and guidelines are
available on the website. It is available 24 hours each day, 365 days
each year. An electronic copy of this document may also be downloaded
from the Office of the Federal Register's website at
www.federalregister.gov and the Government Publishing Office's website
at www.govinfo.gov. A copy may also be found at the FAA's Regulations
and Policies website at www.faa.gov/regulations_policies.
Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677.
Commenters must identify the docket or notice number of this
rulemaking.
All documents the FAA considered in developing this final rule,
including economic analyses and technical reports, may be accessed in
the electronic docket for this rulemaking.
B. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. A small entity with questions regarding this
document may contact its local FAA official, or the person listed under
the FOR FURTHER INFORMATION CONTACT
[[Page 12653]]
heading at the beginning of the preamble. To find out more about SBREFA
on the internet, visit www.faa.gov/regulations_policies/rulemaking/sbre_act/.
List of Subjects
14 CFR Part 21
Aircraft, Aviation safety, Exports, Imports, Reporting and
recordkeeping requirements.
14 CFR Part 38
Air Pollution Control, Aircraft, Incorporation by reference.
14 CFR Part 121
Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety,
Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping
requirements, Safety, Transportation.
14 CFR Part 125
Aircraft, Airmen, Aviation safety, Reporting and recordkeeping
requirements.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends chapter I of title 14, Code of Federal
Regulations as follows:
PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND ARTICLES
0
1. The authority citation for part 21 continues to read as follows:
Authority: 42 U.S.C. 7572; 49 U.S.C. 106(f), 106(g), 40105,
40113, 44701-44702, 44704, 44707, 44709, 44711, 44713, 44715, 45303.
0
2. Amend Sec. 21.5 by adding paragraph (b)(3) to read as follows:
Sec. 21.5 Airplane or Rotorcraft Flight Manual.
* * * * *
(b) * * *
(3) Documentation of compliance with part 38 of this chapter, in an
FAA-approved section of any approved airplane flight manual. Such
material must include the fuel efficiency metric value as calculated
under Sec. 38.11 of this chapter, and the specific paragraph of Sec.
38.17 of this chapter with which compliance has been shown for that
airplane.
0
3. Amend Sec. 21.17 by revising paragraph (a) introductory text to
read as follows:
Sec. 21.17 Designation of applicable regulations.
(a) Except as provided in Sec. Sec. 25.2, 27.2, and 29.2 of this
subchapter, and in parts 26, 34, 36, and 38 of this subchapter, an
applicant for a type certificate must show that the aircraft, aircraft
engine, or propeller concerned meets--
* * * * *
0
4. Amend Sec. 21.21 by revising paragraphs (b) introductory text and
(b)(1) to read as follows:
Sec. 21.21 Issue of type certificate: normal, utility, acrobatic,
commuter, and transport category aircraft; manned free balloons;
special classes of aircraft; aircraft engines; propellers.
* * * * *
(b) The applicant submits the type design, test reports, and
computations necessary to show that the product to be certificated
meets the applicable airworthiness, aircraft noise, fuel venting,
exhaust emission, and fuel efficiency requirements of this subchapter
and any special conditions prescribed by the FAA, and the FAA finds--
(1) Upon examination of the type design, and after completing all
tests and inspections, that the type design and the product meet the
applicable noise, fuel venting, emissions, and fuel efficiency
requirements of this subchapter, and further finds that they meet the
applicable airworthiness requirements of this subchapter or that any
airworthiness provisions not complied with are compensated for by
factors that provide an equivalent level of safety; and
* * * * *
0
5. Amend Sec. 21.29 by revising paragraphs (a)(1)(i) and (b) to read
as follows:
Sec. 21.29 Issue of type certificate: import products.
(a) * * *
(1) * * *
(i) The applicable aircraft noise, fuel venting, exhaust emissions,
and fuel efficiency requirements of this subchapter as designated in
Sec. 21.17, or the applicable aircraft noise, fuel venting, exhaust
emissions, and fuel efficiency requirements of the State of Design, and
any other requirements the FAA may prescribe to provide noise, fuel
venting, exhaust emission, and fuel efficiency levels no greater than
those provided by the applicable aircraft noise, fuel venting, exhaust
emissions, and fuel efficiency requirements of this subchapter as
designated in Sec. 21.17; and
* * * * *
(b) A product type certificated under this section is determined to
be compliant with the fuel venting and exhaust emission standards of
part 34 of this subchapter, the noise standards of part 36 of this
subchapter, and the fuel efficiency requirements of part 38 of this
subchapter. Compliance with parts 34, 36, and 38 of this subchapter is
certified under paragraph (a)(1)(i) of this section, and the applicable
airworthiness standards of this subchapter, or an equivalent level of
safety, with which compliance is certified under paragraph (a)(1)(ii)
of this section.
0
6. Amend Sec. 21.31 by revising paragraph (e) to read as follows:
Sec. 21.31 Type design.
* * * * *
(e) Any other data necessary to allow, by comparison, the
determination of the airworthiness, noise characteristics, fuel
efficiency, fuel venting, and exhaust emissions (where applicable) of
later products of the same type.
0
7. Amend Sec. 21.93 by adding paragraph (d) to read as follows:
Sec. 21.93 Classification of changes in type design.
* * * * *
(d) For the purpose of maintaining compliance with part 38 of this
chapter, any voluntary change in the type design of an airplane that
may increase the fuel efficiency metric value or the MTOM of that
airplane is a ``fuel efficiency change'', in addition to being a minor
or major change as classified in paragraph (a) of this section.
0
8. Amend Sec. 21.101 by revising paragraph (a) to read as follows:
Sec. 21.101 Designation of applicable regulations.
(a) An applicant for a change to a type certificate must show that
the change and areas affected by the change comply with the
airworthiness requirements applicable to the category of the product in
effect on the date of the application for the change and with parts 34,
36, and 38 of this chapter. Exceptions are detailed in paragraphs (b)
and (c) of this section.
* * * * *
0
9. Amend Sec. 21.115 by revising paragraph (a) to read as follows:
Sec. 21.115 Applicable requirements.
(a) Each applicant for a supplemental type certificate must show
that the altered product meets applicable requirements specified in
Sec. 21.101 and--
(1) In the case of an acoustical change described in Sec.
21.93(b), show compliance with the applicable noise requirements of
part 36 of this chapter;
(2) In the case of an emissions change described in Sec. 21.93(c),
show compliance with the applicable fuel venting and exhaust emissions
[[Page 12654]]
requirements of part 34 of this chapter; and
(3) In the case of a fuel efficiency change described in Sec.
21.93(d), show compliance with the applicable fuel efficiency
requirements of part 38 of this chapter.
* * * * *
0
10. Amend Sec. 21.183 by adding reserved paragraph (i) and adding
paragraph (j) to read as follows:
Sec. 21.183 Issue of standard airworthiness certificates for normal,
utility, acrobatic, commuter, and transport category aircraft; manned
free balloons; and special classes of aircraft.
* * * * *
(i) [Reserved]
(j) Fuel efficiency requirements. No original standard
airworthiness certificate may be issued under this section unless the
applicant has demonstrated that the type design complies with the
applicable fuel efficiency requirements of part 38 of this chapter.
0
11. Amend Sec. 21.187 by revising paragraph (a) to read as follows:
Sec. 21.187 Issue of multiple airworthiness certification.
(a) An applicant for an airworthiness certificate in the restricted
category, and in one or more other categories except primary category,
is entitled to the certificate, if--
(1) The applicant shows compliance with the requirements for each
category, when the aircraft is in the configuration for that category;
(2) The applicant shows that the aircraft can be converted from one
category to another by removing or adding equipment by simple
mechanical means;
(3) The aircraft complies with the applicable requirements of part
34 of this subchapter; and
(4) The airplane complies with the applicable requirements of part
38 of this subchapter.
* * * * *
0
12. Add part 38 to read as follows:
PART 38--AIRPLANE FUEL EFFICIENCY CERTIFICATION
Subpart A--General
Sec.
38.1 Applicability.
38.3 Definitions.
38.4 Compatibility with airworthiness requirements.
38.5 Exemptions.
38.7 Incorporation by reference.
38.9 Relationship to other regulations.
Subpart B--Determining Fuel Efficiency for Subsonic Airplanes
38.11 Fuel efficiency metric.
38.13 Specific air range.
38.15 Reference geometric factor.
38.17 Fuel efficiency limits.
38.19 Change criteria.
38.21 Approval before compliance testing.
38.23 Manual information and limitations.
Appendix A to Part 38--Determination of Airplane Fuel Efficiency Metric
Value
Authority: 42 U.S.C. 4321 et seq., 7572; 49 U.S.C. 106(g),
40113, 44701-44702, 44704; 49 CFR 1.83(c)
Subpart A--General
Sec. 38.1 Applicability.
(a) Except as provided in paragraph (c) of this section, an
airplane that is subject to the requirements of 40 CFR part 1030 may
not exceed the fuel efficiency limits of this part when original type
certification under this title is sought. This part applies to the
following airplanes:
(1) A subsonic jet airplane that has--
(i) Either--
(A) A type-certificated maximum passenger seating capacity of 20
seats or more;
(B) A maximum takeoff mass (MTOM) greater than 5,700 kg; and
(C) An application for original type certification that is
submitted on or after January 11, 2021;
(ii) Or--
(A) A type-certificated maximum passenger seating capacity of 19
seats or fewer;
(B) A MTOM greater than 60,000 kg; and
(C) An application for original type certification that is
submitted on or after January 11, 2021.
(2) A subsonic jet airplane that has--
(i) A type-certificated maximum passenger seating capacity of 19
seats or fewer;
(ii) A MTOM greater than 5,700 kg, but not greater than 60,000 kg;
and
(iii) An application for original type certification that is
submitted on or after January 1, 2023.
(3) A propeller-driven airplane that has--
(i) A MTOM greater than 8,618 kg; and
(ii) An application for original type certification that is
submitted on or after January 11, 2021.
(4) A subsonic jet airplane--
(i) That is a modified version of an airplane whose type design was
not certificated under this part;
(ii) That has a MTOM greater than 5,700 kg;
(iii) For which an application by the type certificate holder for a
type design change is submitted on or after January 1, 2023; and
(iv) For which the first certificate of airworthiness is issued
with the modified type design.
(5) A propeller-driven airplane--
(i) That is a modified version of an airplane whose type design was
not certificated under this part;
(ii) That has a MTOM greater than 8,618 kg;
(iii) For which an application by the type certificate holder for a
type design change is submitted on or after January 1, 2023; and
(iv) For which the first certificate of airworthiness is issued
with the modified type design.
(6) A subsonic jet airplane that has--
(i) A MTOM greater than 5,700 kg; and
(ii) Its first certificate of airworthiness issued on or after
January 1, 2028.
(7) A propeller-driven airplane that has--
(i) A MTOM greater than 8,618 kg; and
(ii) Its first certificate of airworthiness issued on or after
January 11, 2028.
(b) The requirements of this part apply to an airplane for which an
application for a change in type design is submitted that includes a
modification that meets the change criteria of Sec. 38.19. A modified
airplane may not exceed the applicable fuel efficiency limit of this
part when certification under this chapter is sought. A modified
airplane is subject to the same fuel efficiency limit of Sec. 38.17 as
the airplane was certificated to prior to modification.
(c) The requirements of this part do not apply to:
(1) Subsonic jet airplanes having a MTOM at or below 5,700 kg.
(2) Propeller-driven airplanes having a MTOM at or below 8,618 kg.
(3) Amphibious airplanes.
(4) Airplanes initially designed, or modified and used, for
specialized operations. These airplane designs may include
characteristics or configurations necessary to conduct specialized
operations that the FAA and the United States Environmental Protection
Agency (EPA) have determined may cause a significant increase in the
fuel efficiency metric value.
(5) Airplanes designed with a reference geometric factor of zero.
(6) Airplanes designed for, or modified and used for, firefighting.
(7) Airplanes powered by reciprocating engines.
Sec. 38.3 Definitions.
For the purpose of showing compliance with this part, the following
terms have the specified meanings:
Amphibious airplane means an airplane that is capable of takeoff
and
[[Page 12655]]
landing on both land and water. Such an airplane uses its hull or
floats attached to the landing gear for takeoff and landing on water,
and either extendable or fixed landing gear for takeoff and landing on
land.
ICAO Annex 16, Volume III means Volume III of Annex 16 to the
Convention on International Civil Aviation.
Maximum takeoff mass (MTOM) is the maximum certified takeoff mass,
expressed in kilograms, for an airplane type design.
Performance model is an analytical tool (or a method) validated
using corrected flight test data that can be used to determine the
specific air range values for calculating the fuel efficiency metric
value.
Reference geometric factor (RGF) is a non-dimensional number
derived from a two-dimensional projection of the fuselage.
Specific air range (SAR) is the distance an airplane travels per
unit of fuel consumed. Specific air range is expressed in kilometers
per kilogram of fuel.
Subsonic means an airplane that has not been certificated under
this title to exceed Mach 1 in normal operation.
Type certificated maximum passenger seating capacity means the
maximum number of passenger seats that may be installed on an airplane
as listed on its type certificate data sheet, regardless of the actual
number of seats installed on an individual airplane.
Sec. 38.4 Compatibility with airworthiness requirements.
Unless otherwise approved by the FAA, an airplane used to
demonstrate compliance with this part must meet all of the
airworthiness requirements of this chapter required to establish the
type certification basis of the airplane, for any condition under which
compliance with this part is being demonstrated. Any procedure used to
demonstrate compliance, and any flight crew information developed for
demonstrating compliance with this part, must be consistent with the
airworthiness requirements of this chapter that constitute the type
certification basis of the airplane.
Sec. 38.5 Exemptions.
A petition for exemption from any requirement of this part must be
submitted to the Administrator in accordance with and meet the
requirements of part 11 of this chapter. The FAA will consult with the
EPA on each exemption petition before taking action.
Sec. 38.7 Incorporation by reference.
The ICAO Doc 7488/3, Manual of the ICAO Standard Atmosphere
(extended to 80 kilometres (262 500 feet)) (1993), referenced in
sections A38.2.1.3.1, A38.5.2.2.1.9, and A38.5.2.2.1.10 of appendix A
to this part, is incorporated by reference into this part with the
approval of the Director of the Federal Register under 5 U.S.C. 552(a)
and 1 CFR part 51. All approved material is available for inspection at
the FAA and at the National Archives and Records Administration (NARA).
Contact FAA at: Office of Rulemaking (ARM-1), 800 Independence Avenue
SW, Washington, DC 20590 (telephone 202-267-9677). For information on
the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email
[email protected]. The ICAO Doc 7488/3 is available for purchase
from the ICAO Store at 999 Robert-Bourassa Boulevard Montr[eacute]al
(Quebec) Canada H3C 5H7, (https://store.icao.int/).
Sec. 38.9 Relationship to other regulations.
In accordance with certain provisions of the Clean Air Act
Amendments of 1970 (CAA) (42 U.S.C. 7571 et seq.), the United States
Environmental Protection Agency (EPA) is authorized to set standards
for aircraft engine emissions in the United States, while the FAA is
authorized to ensure compliance with those standards under a delegation
from the Secretary of Transportation (49 CFR 1.83). The fuel efficiency
limits in Sec. 38.17 are intended to be the same as that promulgated
by the EPA in 40 CFR part 1030. Accordingly, if the EPA changes any
regulation in 40 CFR part 1030 that corresponds with a regulation in
this part, a certification applicant may request a waiver of those
provisions as they appear in this part in order to comply with part
1030. In addition, unless otherwise specified in this part, all
terminology and abbreviations in this part that are defined in 40 CFR
part 1030 have the meaning specified in part 1030.
Subpart B--Determining Fuel Efficiency for Subsonic Airplanes
Sec. 38.11 Fuel efficiency metric.
For each airplane subject to this part, or to determine whether a
modification makes an airplane subject to this part under the change
criteria of Sec. 38.19, a fuel efficiency metric value must be
calculated, using the following equation, rounded to three decimal
places:
[GRAPHIC] [TIFF OMITTED] TR16FE24.041
Where:
The SAR is determined in accordance with Sec. 38.13, and the RGF is
determined in accordance with Sec. 38.15. The fuel efficiency
metric value is expressed in units of kilograms of fuel consumed per
kilometer.
Sec. 38.13 Specific air range.
(a) For each airplane subject to this part, the SAR of an airplane
must be determined by either:
(1) Direct flight test measurements; or
(2) Using a performance model that is:
(i) Validated by actual SAR flight test data; and
(ii) Approved by the FAA before any SAR calculations are submitted.
(b) For the airplane model, establish a 1/SAR value at each of the
following reference airplane masses:
(1) High gross mass: 92 percent MTOM.
(2) Low gross mass: (0.45 * MTOM) + (0.63 * (MTOM[supcaret]0.924)).
(3) Mid gross mass: simple arithmetic average of high gross mass
and low gross mass.
(c) To obtain (1/SAR)avg as required to determine the
fuel efficiency metric value described in Sec. 38.11, calculate the
average of the three 1/SAR values described in paragraph (b) of this
section. Do not include auxiliary power units in any 1/SAR calculation.
(d) All determinations made under this section must be made in
accordance with the procedures applicable to SAR as described in
appendix A to this part.
Sec. 38.15 Reference geometric factor.
For each airplane subject to this part, determine the airplane's
non-dimensional RGF for the fuselage size of each airplane model,
calculated as follows:
(a) For an airplane with a single deck, determine the area of a
surface
[[Page 12656]]
(expressed in m[supcaret]2) bounded by the maximum width of the
fuselage outer mold line projected to a flat plane parallel with the
main deck floor and the forward and aft pressure bulkheads except for
the crew flight deck zone.
(b) For an airplane with more than one deck, determine the sum of
the areas (expressed in m[supcaret]2) as follows:
(1) The maximum width of the fuselage outer mold line, projected to
a flat plane parallel with the main deck floor by the forward and aft
pressure bulkheads except for any crew flight deck zone.
(2) The maximum width of the fuselage outer mold line at or above
each other deck floor, projected to a flat plane parallel with the
additional deck floor by the forward and aft pressure bulkheads except
for any crew flight deck zone.
(c) Determine the non-dimensional RGF by dividing the area defined
in paragraph (a) or (b) of this section by 1 m[supcaret]2.
(d) All measurements and calculations used to determine the RGF of
an airplane must be made in accordance with the procedures for
determining RGF in section A38.3 of appendix A to this part.
Sec. 38.17 Fuel efficiency limits.
(a) The fuel efficiency limits in this section are expressed as
maximum permitted fuel efficiency metric values, as calculated under
Sec. 38.11.
(b) The fuel efficiency metric value of an airplane subject to this
part may not exceed the following, rounded to three decimal places:
[[Page 12657]]
[GRAPHIC] [TIFF OMITTED] TR16FE24.042
[[Page 12658]]Sec. 38.19 Change criteria.
(a) For an airplane that has been shown to comply with Sec. 38.17,
any subsequent version of that airplane must demonstrate compliance
with Sec. 38.17 if the subsequent version incorporates a modification
that either increases:
(1) The maximum takeoff mass; or
(2) The fuel efficiency metric value by a percentage that is more
than the following calculated thresholds.
(i) For airplanes with a MTOM greater than or equal to 5,700 kg,
the threshold decreases linearly from 1.35 percent for an airplane with
a MTOM of 5,700 kg to 0.75 percent for an airplane with a MTOM of
60,000 kg.
(ii) For airplanes with a MTOM greater than or equal to 60,000 kg,
the threshold decreases linearly from 0.75 percent for an airplane with
a MTOM of 60,000 kg to 0.70 percent for airplanes with a MTOM of
600,000 kg.
(iii) For airplanes with a MTOM greater than or equal to 600,000
kg, the threshold is 0.70 percent.
(b) For an airplane that has been shown to comply with Sec. 38.17,
and for any subsequent version of that airplane that incorporates
modifications that do not increase the MTOM or the fuel efficiency
metric value in excess of the levels shown in paragraph (a) of this
section, the fuel efficiency metric value of the modified airplane may
be reported to be the same as the value prior to modification.
(c) For an airplane that meets the criteria of Sec. 38.1(a)(4) or
(5), on or after January 1, 2023, and before January 1, 2028, the
airplane must demonstrate compliance with Sec. 38.17 if it
incorporates any modification that increases the fuel efficiency metric
value of the airplane prior to modification by more than 1.5 percent.
Sec. 38.21 Approval before compliance testing.
All procedures, weights, configurations, and other information or
data that are used to establish a fuel efficiency level required by
this part or in any appendix to this part (including any equivalent
procedures) must be approved by the FAA prior to use in certification
tests intended to demonstrate compliance with this part.
Sec. 38.23 Manual information and limitations.
(a) Information in manuals. The following information must be
included in any FAA-approved section of a FAA-approved Airplane Flight
Manual or combination of approved manual material:
(1) Fuel efficiency level established as required by this part; and
(2) Maximum takeoff mass at which fuel efficiency level was
established.
(b) Limitation. If the fuel efficiency of an airplane is
established at a weight (mass) that is less than the maximum
certificated takeoff weight (mass) used to establish the airworthiness
of the airplane under this chapter, the lower weight (mass) becomes an
operating limitation of the airplane and that limitation must be
included in the limitations section of any FAA-approved manual.
Appendix A to Part 38--Determination of Airplane Fuel Efficiency Metric
Value
A38.1 Introduction
A38.2 Reference specifications for SAR flight tests
A38.3 Determination of reference geometric factor (RGF)
A38.4 Certification test specifications
A38.5 Measurement of specific air range
A38.6 Submission of certification data to the FAA
A38.1 Introduction
A38.1.1 This appendix describes the processes and procedures for
determining the fuel efficiency metric value for an airplane subject
to this part.
A38.1.2 Methods for Determining Specific Air Range (SAR)
A38.1.2.1 SAR may be determined by either--
A38.1.2.1.1 Direct flight test measurement at the SAR test
points, including any corrections of test data to reference
specifications; or
A38.1.2.1.2 Use of a performance model.
A38.1.2.2 For any determination made under section A38.1.2.1.1
of this appendix, the SAR flight test data must have been acquired
in accordance with the procedures defined in this appendix and
approved by the FAA.
A38.1.2.3 For any determination made under section A38.1.2.1.2
of this appendix, the performance model must:
A38.1.2.3.1 Be verified that the model produces the values that
are the same as FAA-approved SAR flight test data;
A38.1.2.3.2 Include a detailed description of any test and
analysis method and any algorithm used so as to allow evaluation by
the FAA; and
A38.1.2.3.3 Be approved by the FAA before use.
A38.2 Reference Specifications for SAR Flight Tests
A38.2.1 The following reference specifications must be
established when determining SAR values for an airplane. No
reference specification may exceed any airworthiness limit approved
for the airplane under this chapter. See section A38.5 of this
appendix for further information.
A38.2.1.1 Reference specifications at the airplane level:
A38.2.1.1.1 Airplane at the reference masses listed in Sec.
38.13(b);
A38.2.1.1.2 A combination of altitude and airspeed selected by
the applicant;
A38.2.1.1.3 Airplane in steady, unaccelerated, straight and
level flight;
A38.2.1.1.4 Airplane in longitudinal and lateral trim;
A38.2.1.1.5 Airplane gravitational acceleration when travelling
in the direction of true North in still air at the reference
altitude and a geodetic latitude of 45.5 degrees, based on
g0 (g0 is 9.80665 m/s\2\, which is the
standard acceleration due to gravity at sea level and a geodetic
latitude of 45.5 degrees);
A38.2.1.1.6 A reference airplane center of gravity (CG) position
selected by the applicant to be representative of the mid-CG point
relevant to design cruise performance at each of the three reference
airplane masses; and
A38.2.1.1.7 A wing structural loading condition defined by the
applicant that is representative of operations conducted in
accordance with the airplane's maximum payload capability.
A38.2.1.2 Reference specifications at the engine level:
A38.2.1.2.1 Electrical and mechanical power extraction and bleed
flow relevant to design cruise performance, as selected by the
applicant;
Note 1 to A38.2.1.2.1--Power extraction and bleed flow
attributable to the use of optional equipment such as passenger
entertainment systems need not be included.
A38.2.1.2.2 Engine stability bleeds operating according to the
manufacturer's normal schedule for the engine; and
A38.2.1.2.3 Engines with at least 15 cycles or 50 engine flight
hours.
A38.2.1.3 Other reference specifications:
A38.2.1.3.1 ICAO standard day atmosphere (Doc 7488/3, 3rd
edition 1993, titled ``Manual of the ICAO Standard Atmosphere
(extended to 80 kilometres (262 500 feet))'') (incorporated by
reference, see Sec. 38.7); and
A38.2.1.3.2 Fuel lower heating value equal to 43.217 MJ/kg (18,-
580 BTU/lb).
A38.2.2 If any test conditions are not the same as the reference
specifications of this appendix, the test conditions must be
corrected to the reference specifications as described in section
A38.5 of this appendix.
A38.3 Determination of Reference Geometric Factor (RGF)
A38.3.1 This section provides additional information for
determining the RGF, as required by Sec. 38.15.
A38.3.2 The area that defines RGF includes all pressurized space
on a single or multiple decks including aisles, assist spaces,
passageways, stairwells and areas that can accommodate cargo or
auxiliary fuel containers. It does not include permanent integrated
fuel tanks within the cabin, or any unpressurized fairings, crew
rest or work areas, or cargo areas that are not on the main or upper
deck (e.g., `loft' or under floor areas). RGF does not include the
flight deck crew zone.
A38.3.3 The aft boundary to be used for calculating RGF is the
aft pressure bulkhead. The forward boundary is the forward pressure
bulkhead, not including the flight deck crew zone.
[[Page 12659]]
A38.3.4 Areas that are accessible to both crew and passengers
are not considered part of the flight deck crew zone. For an
airplane that has a flight deck door, the aft boundary of the flight
deck crew zone is the plane of the flight deck door. For an airplane
that has no flight deck door or has optional interior configurations
that include different locations of the flight deck door, the aft
boundary is determined by the configuration that provides the
smallest available flight deck crew zone. For airplanes certificated
for single-pilot operation, the flight deck crew zone is measured as
half the width of the flight deck.
A38.3.5 Figures A38-1 and A38-2 of this appendix provide a
notional view of the RGF boundary conditions.
[GRAPHIC] [TIFF OMITTED] TR16FE24.043
[[Page 12660]]
[GRAPHIC] [TIFF OMITTED] TR16FE24.044
A38.4 Certification Test Specifications
A38.4.1 Certification Test Specifications. This section prescribes
the specifications under which an applicant must conduct SAR
certification tests.
A38.4.2 Flight Test Procedures
A38.4.2.1 Before a Test Flight. The test flight procedures must
include the following elements and must be approved by the FAA before
any test flight is conducted:
A38.4.2.1.1 Airplane conformity. The test airplane must conform to
the critical configuration of the type design for which certification
is sought.
A38.4.2.1.2 Airplane weight. The test airplane must be weighed. Any
change in mass after the weighing and prior to the test flight must be
accounted for.
A38.4.2.1.3 Fuel. The fuel used for each flight test must meet the
specification defined in either ASTM D1655-15 (titled ``Standard
Specification for Aviation Turbine Fuels''), UK MoD Defense Standard
91-91, Issue 7, Amendment 3 (titled ``Turbine Fuel, Kerosene Type, Jet
A-1, NATO Code F-35; Join Services Designation; AVTUR''), or as
approved by FAA.
A38.4.2.1.4 Fuel lower heating value. The lower heating value of
the fuel used on a test flight must be determined from a sample of fuel
used for the test flight. The lower heating value of the fuel sample
must be used to correct measured data to reference specifications. The
determination of lower heating value and the correction to reference
specifications are subject to approval by the FAA.
A38.4.2.1.4.1 The fuel lower heating value may be determined in
accordance with ASTM D4809-13 ``Standard Test Method for Heat of
Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter (Precision
Method)'', or as approved by the FAA.
A38.4.2.1.4.2 The fuel sample may be representative of the fuel
used for each flight test and should not have errors or variations due
to fuel being uplifted from multiple sources, fuel tank selection, or
fuel layering in a tank.
A38.4.2.1.5 Fuel specific gravity and viscosity. When volumetric
fuel flow meters are used, the specific gravity and viscosity of the
fuel used on a test flight must be determined from a sample of fuel
used for the test flight.
A38.4.2.1.5.1 The fuel specific gravity may be determined in
accordance with ASTM D4052-11 ``Standard Test Method for Density,
Relative Density, and API Gravity of Liquids'', or as approved by FAA.
A38.4.2.1.5.2 The fuel kinematic viscosity may be determined in
accordance with ASTM D445-15 (titled ``Standard Test Method for
Kinematic Viscosity of Transparent and Opaque Liquids (and Calculation
of Dynamic Viscosity)''), or as approved by FAA.
A38.4.2.2 Flight Test Procedures and Test Condition Stability. An
applicant must conduct each flight test in accordance with the flight
test procedures and the stability conditions as follows:
A38.4.2.2.1 Flight Test Procedure. The following procedures must be
maintained during each flight used to gather data for determining SAR
values:
A38.4.2.2.1.1 To the extent that is practicable, the airplane is
flown at constant pressure altitude and constant heading along isobars;
A38.4.2.2.1.2 The engine thrust/power setting is stable for
unaccelerated level flight;
A38.4.2.2.1.3 The airplane is flown as close as practicable to the
reference specifications to minimize the magnitude of any correction;
A38.4.2.2.1.4 Changes in trim or engine power/thrust settings,
engine stability and handling bleeds, or electrical and mechanical
power extraction (including bleed flow) are avoided or minimized as
practicable; and
A38.4.2.2.1.5 There is no unnecessary movement of on-board
personnel.
A38.4.2.2.2 Test Condition Stability. To obtain a valid SAR
measurement, the following conditions must be maintained during each
test flight, including the indicated tolerances for at least 1 minute
while SAR data is acquired:
A38.4.2.2.2.1 Mach number within 0.005;
[[Page 12661]]
A38.4.2.2.2.2 Ambient temperature within 1 [deg]C;
A38.4.2.2.2.3 Heading within 3 degrees;
A38.4.2.2.2.4 Track within 3 degrees;
A38.4.2.2.2.5 Drift angle less than 3 degrees;
A38.4.2.2.2.6 Ground speed within 3.7 km/h (2 kt);
A38.4.2.2.2.7 Difference in ground speed at the beginning of the
SAR measurement from the ground speed at the end of the SAR measurement
within 2.8 km/h/min (1.5 kt/min); and
A38.4.2.2.2.8 Pressure altitude within 23 m (75 ft).
A38.4.2.2.3 Alternatives to the stable test condition criteria of
section A38.4.2.2.2 of this appendix may be used provided that
stability is sufficiently demonstrated to the FAA.
A38.4.2.2.4 Data obtained at test points that do not meet the
stability criteria of section A38.4.2.2.2 may be acceptable as an
equivalent procedure, subject to FAA approval.
A38.4.2.2.5 SAR measurements at the test points must be separated
by either:
A38.4.2.2.5.1 Two minutes; or
A38.4.2.2.5.2 An exceedance of one or more of the stability
criteria limits described in A38.4.2.2.2.
A38.4.2.3 Verification of Airplane Mass at Test Conditions
A38.4.2.3.1 The procedure for determining the mass of the airplane
at each test condition must be approved by the FAA.
A38.4.2.3.2 The mass of the airplane during a flight test is
determined by subtracting the fuel used from the mass of the airplane
at the start of the test flight. The accuracy of the determination of
the fuel used must be verified by:
A38.4.2.3.2.1 Weighing the test airplane on calibrated scales
before and after the SAR test flight;
A38.4.2.3.2.2 Weighing the test airplane before and after another
test flight that included a cruise segment, provided that flight occurs
within one week or 50 flight hours (at the option of the applicant) of
the SAR test flight and using the same, unaltered fuel flow meters; or
A38.4.2.3.2.3 Other methods as approved by the FAA.
A38.5 Measurement of Specific Air Range
A38.5.1 Measurement System
A38.5.1.1 The following parameters must be recorded at a minimum
sampling rate of 1 Hertz (cycle per second):
A38.5.1.1.1 Airspeed;
A38.5.1.1.2 Ground speed;
A38.5.1.1.3 True airspeed;
A38.5.1.1.4 Fuel flow;
A38.5.1.1.5 Engine power setting;
A38.5.1.1.6 Pressure altitude;
A38.5.1.1.7 Temperature;
A38.5.1.1.8 Heading;
A38.5.1.1.9 Track; and
A38.5.1.1.10 Fuel used (for the determination of gross mass and CG
position).
A38.5.1.2 The following parameters must be recorded:
A38.5.1.2.1 Latitude;
A38.5.1.2.2 Engine bleed positions and power off-takes; and
A38.5.1.2.3 Power extraction (electrical and mechanical load).
A38.5.1.3 The value of each parameter used for the determination of
SAR (except for ground speed) is the simple arithmetic average of the
measured values for that parameter obtained throughout the stable test
condition described in section A38.4.2.2.2 of this appendix.
A38.5.1.4 For ground speed, the value is the rate of change of
ground speed during the SAR test measurement. The rate of change of
ground speed during the SAR measurement must be used to evaluate and
correct any acceleration or deceleration that might occur during the
SAR measurement.
A38.5.1.5 Each measurement device must have sufficient resolution
to determine that the stability of a parameter defined in section
A38.4.2.2.2 of this appendix is maintained during SAR measurement.
A38.5.1.6 The SAR measurement system consists of the combined
instruments and devices, and any associated procedures, used to acquire
the following parameters necessary to determine SAR:
A38.5.1.6.1 Fuel flow;
A38.5.1.6.2 Mach number;
A38.5.1.6.3 Altitude;
A38.5.1.6.4 Airplane mass;
A38.5.1.6.5 Ground speed;
A38.5.1.6.6 Outside air temperature;
A38.5.1.6.7 Fuel lower heating value; and
A38.5.1.6.8 CG.
A38.5.1.7 The SAR value is affected by the accuracy of each element
that comprises the SAR measurement system. The cumulative error
associated with the SAR measurement system is defined as the root sum
of squares (RSS) of the individual accuracies.
A38.5.1.8 If the absolute value of the cumulative error of the
overall SAR measurement system is greater than 1.5 percent, a penalty
equal to the amount that the RSS value exceeds 1.5 percent must be
applied to the SAR value that has been corrected to reference
specifications (see section A38.5.2 of this appendix). If the absolute
value of the cumulative error of the overall SAR measurement system is
less than or equal to 1.5 percent, no penalty will be applied.
A38.5.2 Calculation of Specific Air Range from Measured Data
A38.5.2.1 Calculating SAR. SAR must be calculated using the
following equation:
SAR = TAS/Wf
Where:
TAS is the true airspeed and Wf is total airplane fuel
flow.
A38.5.2.2 Correcting Measured SAR Values to Reference
Specifications
A38.5.2.2.1 The measured SAR values must be corrected to the
reference specifications listed in A38.2 of this appendix. Unless
otherwise approved by the FAA, corrections to reference specifications
must be applied for each of the following measured parameters:
A38.5.2.2.1.1 Acceleration/deceleration (energy). Drag
determination is based on an assumption of steady, unaccelerated
flight. Acceleration or deceleration occurring during a test condition
affects the assessed drag level. The reference specification is in
section A38.2.1.1.3 of this appendix.
A38.5.2.2.1.2 Aeroelastics. Wing aeroelasticity may cause a
variation in drag as a function of airplane wing mass distribution.
Airplane wing mass distribution will be affected by the fuel load
distribution in the wings and the presence of any external stores. The
reference specification is in section A38.2.1.1.7 of this appendix.
A38.5.2.2.1.3 Altitude. The altitude at which the airplane is flown
affects the fuel flow. The reference specification is in section
A38.2.1.1.2 of this appendix.
A38.5.2.2.1.4 Apparent gravity. Acceleration, caused by the local
effect of gravity, and inertia, affect the test weight of the airplane.
The apparent gravity at the test conditions varies with latitude,
altitude, ground speed, and direction of motion relative to the Earth's
axis. The reference gravitational acceleration is the gravitational
acceleration for the airplane travelling in the direction of true North
in still air at the reference altitude, a geodetic latitude of 45.5
degrees, and based on g0 (see section A38.2.1.1.5 of this
appendix).
A38.5.2.2.1.5 CG position. The position of the airplane CG affects
the drag due to longitudinal trim. The reference specification is in
section A38.2.1.1.6 of this appendix.
A38.5.2.2.1.6 Electrical and mechanical power extraction and bleed
flow. Electrical and mechanical power extraction, and bleed flow affect
the fuel
[[Page 12662]]
flow. The reference specifications are in sections A38.2.1.2.1 and
A38.2.1.2.2 of this appendix.
A38.5.2.2.1.7 Engine deterioration level. The requirement in
section A38.2.1.2.3 of this appendix addresses the minimum
deterioration of an engine that is used to determine SAR. Since engine
deterioration is rapid when an engine is new, when used for SAR
determination:
A38.5.2.2.1.7.1 Subject to FAA approval, an engine having less
deterioration than the reference deterioration level in section
A38.2.1.2.3 of this appendix must correct the fuel flow to the
reference deterioration using an approved method.
A38.5.2.2.1.7.2 An engine with greater deterioration than the
reference deterioration level in section A38.2.1.2.3 of this appendix
may be used, and no correction is permitted.
A38.5.2.2.1.8 Fuel lower heating value. The fuel lower heating
value defines the energy content of the fuel. The lower heating value
directly affects the fuel flow at a given test condition. The reference
specification is in section A38.2.1.3.2 of this appendix.
A38.5.2.2.1.9 Reynolds number. The Reynolds number affects airplane
drag. For a given test condition the Reynolds number is a function of
the density and viscosity of air at the test altitude and temperature.
The reference Reynolds number is derived from the density and viscosity
of air from the ICAO standard atmosphere at the reference altitude (see
sections A38.2.1.1.2 and A38.2.1.3.1 of this appendix, incorporated by
reference see Sec. 38.7).
A38.5.2.2.1.10 Temperature. The ambient temperature affects the
fuel flow. The reference temperature is the standard day temperature
from the ICAO standard atmosphere at the reference altitude (see
section A38.2.1.3.1 of this appendix, incorporated by reference see
Sec. 38.7).
Note 2 to A38.5.2.2.1.10--Post-flight data analysis includes the
correction of measured data for data acquisition hardware response
characteristics (e.g., system latency, lag, offset, buffering, etc.).
A38.5.2.2.2 Correction methods are subject to the approval of the
FAA.
A38.5.2.3 Using Specific Air Range to Determine the Fuel Efficiency
Metric Value
A38.5.2.3.1 Calculate the SAR values for each of the three
reference masses as described in Sec. 38.13, including any corrections
to reference specifications, as required under this part. The final SAR
value for each reference mass is the simple arithmetic average of all
valid test points at the appropriate gross mass, or derived from a
validated performance model. No data acquired from a valid test point
may be omitted unless approved by the FAA.
A38.5.2.3.2 When an FAA-approved performance model is used,
extrapolations to aircraft masses other than those tested may be
approved when such extrapolations are consistent with accepted
airworthiness practices. Since a performance model must be based on
data covering an adequate range of lift coefficient, Mach number, and
thrust specific fuel consumption, no extrapolation of those parameters
is permitted.
A38.5.3 Validity of Results
A38.5.3.1 A 90 percent confidence interval must be calculated for
each of the SAR values at the three reference masses.
A38.5.3.2 If the 90 percent confidence interval of the SAR value at
any of the three reference airplane masses--
A38.5.3.2.1 Is less than or equal to 1.5 percent, the
SAR value may be used.
A38.5.3.2.2 Exceeds 1.5 percent, a penalty equal to the
amount that the 90 percent confidence interval exceeds 1.5
percent must be applied to the SAR value, as approved by the FAA.
A38.5.3.3 If clustered data is acquired separately for each of the
three gross mass reference points, the minimum sample size acceptable
for each of the three gross mass SAR values is six.
A38.5.3.4 If SAR data is collected over a range of masses, the
minimum sample size is 12 and the 90 percent confidence interval is
calculated for the mean regression line through the data.
A38.6 Submission of Certification Data to the FAA
The following information must be provided to the FAA in the
certification reports for each airplane type and model for which fuel
efficiency certification under this part is sought.
A38.6.1 General Information
A38.6.1.1 Designation of the airplane type and model:
A38.6.1.2 Configuration of the airplane, including CG range, number
and type designation of engines and, if fitted, propellers, and any
modifications or non-standard equipment expected to affect the fuel
efficiency characteristics;
A38.6.1.3 MTOM used for certification under this part;
A38.6.1.4 All dimensions needed for calculation of RGF; and
A38.6.1.5 Serial number of each airplane used to establish fuel
efficiency certification in accordance with this part.
A38.6.2 Reference Specifications. The reference specifications used
to determine any SAR value as described in section A38.2 of this
appendix.
A38.6.3 Test Data. The following measured test data, including any
corrections for instrumentation characteristics, must be provided for
each of the test measurement points used to calculate the SAR values
for each of the reference masses defined in Sec. 38.13(b):
A38.6.3.1 Airspeed, ground speed and true airspeed;
A38.6.3.2 Fuel flow;
A38.6.3.3 Pressure altitude;
A38.6.3.4 Static air temperature;
A38.6.3.5 Airplane gross mass and CG for each test point;
A38.6.3.6 Levels of electrical and mechanical power extraction and
bleed flow;
A38.6.3.7 Engine performance;
A38.6.3.7.1 For jet airplanes, engine power setting; or
A38.6.3.7.2 For propeller-driven airplanes, shaft horsepower or
engine torque, and propeller rotational speed;
A38.6.3.8 Fuel lower heating value;
A38.6.3.9 When volumetric fuel flow meters are used, fuel specific
gravity and kinematic viscosity (see section A38.4.2.1.5. of this
appendix);
A38.6.3.10 The cumulative error (RSS) of the overall measurement
system (see section A38.5.1.7 of this appendix);
A38.6.3.11 Heading, track and latitude;
A38.6.3.12 Stability criteria (see section A38.4.2.2.2 of this
appendix); and
A38.6.3.13 Description of the instruments and devices used to
acquire the data needed for the determination of SAR, and the
individual accuracies of the equipment relevant to their effect on SAR
(see sections A38.5.1.6 and A38.5.1.7 of this appendix).
A38.6.4 Calculations and Corrections of SAR Test Data to Reference
Specifications. The measured SAR test data, all corrections of the
measured data to the reference specifications, and the SAR values
calculated from the corrected data must be provided for each of the
test measurement points.
A38.6.5 Calculated Values. The following values must be provided
for each airplane used to establish fuel efficiency certification in
accordance with this part:
A38.6.5.1 SAR (km/kg) for each reference airplane mass and the
associated 90 percent confidence interval;
A38.6.5.2 Average of the 1/SAR values;
A38.6.5.3 RGF; and
A38.6.5.4 Fuel efficiency metric value.
[[Page 12663]]
PART 121--OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL
OPERATIONS
0
13. The authority citation for part 121 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113, 40119,
41706, 42301 preceding note added by Pub. L. 112-95, sec. 412, 126
Stat. 89, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-
44717, 44722, 44729, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348
(49 U.S.C. 44701 note); Pub. L. 112-95 126 Stat 62 (49 U.S.C. 44732
note).
0
14. Amend Sec. 121.141 by revising paragraph (b) introductory text to
read as follows:
Sec. 121.141 Airplane flight manual.
* * * * *
(b) In each airplane required to have an airplane flight manual in
paragraph (a) of this section, the certificate holder shall carry
either the manual required by Sec. 121.133, if it contains the
information required for the applicable flight manual and this
information is clearly identified as flight manual requirements, or an
approved Airplane Manual. If the certificate holder elects to carry the
manual required by Sec. 121.133, the certificate holder may revise the
operating procedures sections and modify the presentation of
performance data, except for the information required by Sec. 38.23 of
this chapter identifying compliance with the fuel efficiency
requirements of part 38 of this chapter, from the applicable flight
manual if the revised operating procedures and modified performance
data presentation are--
* * * * *
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR MORE; AND RULES GOVERNING PERSONS ON BOARD SUCH
AIRCRAFT
0
15. The authority citation for part 125 continues to read as follows:
Authority: 49 U.S.C. 106(f), 106(g), 40113, 44701-44702, 44705,
44710-44711, 44713, 44716-44717, 44722.
0
16. Amend Sec. 125.75 by revising paragraph (b) to read as follows:
Sec. 125.75 Airplane flight manual.
* * * * *
(b) Each certificate holder shall carry the approved Airplane
Flight Manual or the approved equivalent aboard each airplane it
operates. A certificate holder may elect to carry a combination of the
manuals required by this section and Sec. 125.71. If it so elects, the
certificate holder may revise the operating procedures sections and
modify the presentation of performance from the applicable Airplane
Flight Manual if the revised operating procedures and modified
performance data presentation are approved by the Administrator. Any
approved equivalent must include the information required by Sec.
38.23 of this chapter identifying compliance with the fuel efficiency
requirements of part 38 of this chapter.
Issued under authority provided in 42 U.S.C. 4321 et seq., 7572,
49 U.S.C. 106(f), 40133, 44701-44701, 44703, and 44704 in
Washington, DC.
Michael Gordon Whitaker,
Administrator.
[FR Doc. 2024-02330 Filed 2-15-24; 8:45 am]
BILLING CODE 4910-13-P
