[Federal Register Volume 61, Number 242 (Monday, December 16, 1996)]
[Rules and Regulations]
[Pages 66182-66186]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X96-21216]
[[Page 66181]]
_______________________________________________________________________
Part VII
Departmenmt of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 91
Stage 2 Airplane Operations; Final Rule
Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 /
Rules and Regulations
[[Page 66182]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 91
[Docket No. 28213; Amdt. No. 91-252]
RIN 2120-AE83
Stage 2 Airplane Operations
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
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SUMMARY: This document revises the airplane operating rules to provide
reporting requirements for air carriers and foreign air carriers
operating Stage 2 airplanes in Hawaii. These revisions require any air
carrier or foreign air carrier that operates Stage 2 airplanes in
Hawaii to include certain information in its annual progress reports to
the Federal Aviation Administration (FAA). This action also identifies
certain operations of aircraft (otherwise restricted from operation in
the contiguous United States) that are allowed, and corrects an
oversight made when the regulations were adopted. These revisions will
implement the amendments to the law and clarify existing regulations
and FAA policy.
EFFECTIVE DATES: January 15, 1997.
FOR FURTHER INFORMATION CONTACT:
Ms. Laurette V. Fisher, Policy and Regulatory Division (AEE-300),
Office of Environment and Energy, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-
3561.
SUPPLEMENTARY INFORMATION:
Background
The Airport Noise and Capacity Act of 1990 (49 U.S.C. 47521 et
seg.) (ANCA) placed a ban on the operation of Stage 2 airplanes with a
maximum weight of more than 75,000 pounds in the contiguous United
States after December 31, 1999. To achieve an organized transition to
this goal, the FAA was charged with establishing a schedule of phased
compliance with that requirement. On September 25, 1991, the FAA
amended subpart I of 14 CFR part 91 (part 91) to add new Secs. 91.801
(c) and 91.851 through 91.875 that implemented the Stage 2 nonaddition
rules of the ANCA and adopted phased transition criteria (56 FR 26433).
The regulatory scheme established in 1991 requires all operators of
Stage 2 airplanes (including foreign air carriers and operators) to
establish a starting base level of Stage 2 airplanes from which they
will accomplish the required reduction. The regulations give operators
a choice of how they will achieve this reduction, and require that each
operator report its actions toward compliance on a yearly basis.
Neither the NCA nor the implementing regulations affected the
importation or operation of Stage 2 airplanes in the States of Alaska
and Hawaii. On October 21, 1991, Congress amended section 2157 of the
ANCA to add a new subsection (i) (now 49 U.S.C. 47528) that placed
limits on the operation of Stage 2 airplanes in Hawaii. The amendment
sought to prevent the proliferation of Stage 2 airplane noise in Hawaii
by limiting the number of Stage 2 operations allowed between Hawaii and
points outside the contiguous United States, and by restricting
``turnaround'' service within the State of Hawaii using Stage 2
airplanes. In effect, this amendment creates a kind of operational
nonaddition rule for the State of Hawaii; however, this statutory
provision differs significantly from the nonaddition rule that applies
to Stage 2 airplanes eligible to operate in the contiguous United
States and the two should not be confused.
Discussion of Comments
On May 11, 1995, the FAA published an NPRM (60 FR 25554) that
proposed amending the reporting requirements for certain operators of
Stage 2 airplanes in Hawaii. Three comments were received in response
to the NPRM.
The State of Hawaii Department of Transportation commented and
recommended that operators submit the required reports to Hawaii's
Department of Transportation in addition to the FAA. The FAA disagrees.
First, the FAA does not have the authority to require certain operators
to submit annual reports to an individual State. Second, the reports
will contain only the number of airplanes operated by reporting
operators to ensure compliance with the statute; they will not contain
the number of operations nor the locations of those operations of Stage
2 airplanes within the State of Hawaii, as the commenter implies it
needs. Accordingly, for those reasons, the filing of the reports to the
State will not be mandated by this rulemaking.
The second commenter, a major air carrier serving Hawaii, comments
through its industry association and recommends that the rule language
in proposed Secs. 91.877(c) (1) and (2) be clarified to reflect that
the number of Stage 2 airplanes used to conduct Hawaiian operations on
November 5, 1990, means the number of Stage 2 airplanes in the
operator's fleet that were used in Hawaiian operations at that time,
rather than the number of airplanes actually flown on the single day
set out in the statute.
The FAA agrees with the comment that the law did not necessarily
intend to restrict the number of Stage 2 airplanes to the number that
actually operated in service to Hawaii on November 5, 1990. However,
the language adopted in this final rule will be changed only slightly.
The FAA is sensitive to the fact that general language describing Stage
2 airplanes could lead to the number reported being the entire fleet of
a carrier's Stage 2 airplanes, regardless of whether all of these
airplanes were regularly used in such service. This was clearly not the
intent of the 1991 legislation. To include all of the Stage 2 airplanes
in the fleet of a carrier that serves Hawaii would obviate the intent
of the restriction. Accordingly, rather that the proposed language
``Stage 2 airplanes used to conduct such operations on November 5,
1990,'' the final rule requires a report of the number of ``Stage 2
airplanes used to conduct such operations as of November 5, 1990.''
This change is intended to allow affected carriers to provide the FAA
with the number of Stage 2 airplanes that were usually available for
the indicated service as of November 5, 1990. The FAA may require
reporting carriers to justify the number claimed under this provision,
especially if the number is adjusted for seasonal or other schedule
variation.
The commenter also states that the term ``turnaround service'' is
defined in the legislation as a flight between two or more points
within the State of Hawaii, and indicates that this language could be
read to mean that inter-island segments of mainland-to-Hawaii service
should be reported as turnaround service. The commenter states that
this does not appear to be the intent of Congress in the legislation,
and that the proposed reporting requirement should include the word
``exclusively'' to indicate that the operations reported as turnaround
service are not segments of mainland-to-Hawaii service.
The FAA disagrees that a change to the proposed regulation is
necessary. The Hawaiian operations amendment restricts the number of
Stage 2 airplanes that conduct turnaround service in the State of
Hawaii, as indicated by the commenter. The original language of the
legislation described turnaround service as ``the operation of a flight
between two or more points, all of which are within the State of
Hawaii.'' The Senate Report that accompanied the legislation indicated
that it covered ``the operation
[[Page 66183]]
of local flights between two Hawaii cities and/or counties which also
serve as the origin and destination for those flights.'' The comment's
suggestion that the regulation should read ``operations conducted
exclusively within the State of Hawaii'' does not appear to add clarity
to the proposed regulation. The commenter has interpreted the statute
correctly, in that inter-island segments of flights that begin outside
the state are not considered turnaround service under the law. The FAA
has determined that adding a term that does not appear in the
legislation is unnecessary, a conclusion bolstered by the fact that the
commenter interpreted the law correctly without the term.
The commenter also suggests that the new required and amended
reports be submitted concurrently with the next annual report of an air
carrier, since the proposed 90 days may not be sufficient to gather the
necessary information. The FAA agrees, and this change is reflected in
the text of the final rule.
The third commenter supported the rule as proposed.
The FAA received no comments on the other two changes proposed in
the NPRM. One proposal was to eliminate the references to parts 125 and
135 in the definition of new entrant in Sec. 91.851, and in the special
provisions for new entrant air carriers under Sec. 91.867. The FAA
inadvertently included operators operating under 14 CFR parts 125 and
135 in the original regulation. The inclusion of each of these parts
was in error since, by definition, there can be no new entrant air
carriers operating under either of these parts. No comments were
received on this proposal, and it is adopted as proposed.
The other proposal was to revise Sec. 91.857 to remove the
reference to ``imported'' airplanes. The proposed rule would refer only
to Stage 2 airplanes ``operating between points outside the contiguous
United States .'' This section was always intended to apply to both
``imported'' Stage 2 airplanes covered by the nonaddition rule but
operated outside the contiguous United States, and Stage 2 airplanes
removed from the operation in the contiguous United States as a means
of complying with the phased transition regulations. No comments were
received on this proposal, and it is adopted as proposed.
In the NPRM, the FAA also solicited comments about the continuing
coverage of airplanes that operate under nonstandard airworthiness
certificates but are included in the applicability section of the
phased transition rules. As stated in the NPRM, the underlying statute
does not distinguish between airplanes that operate under standard
category airworthiness certificates, and those that operate under an
experimental or other restricted category certificate. No comments
concerning the effect of this provision were received. Accordingly,
there is no change to the section of the regulations. The regulations
will continue to require that by December 31, 1999, the operator of any
civil subsonic turbojet aircraft with a maximum weight of more than
75,000 pounds must comply with the Stage 3 noise requirements contained
in 14 CFR part 36, regardless of the category of airworthiness
certificate under which a covered airplane operates. Similarly,
operators of these airplanes must continue to comply with the phased
transition requirements of part 91 as well.
Other Changes
In reviewing the NPRM, the FAA determined that the proposed rule
language regarding Hawaiian operation reporting was overly broad,
referring to ``operators'' rather than ``air carriers,'' as provided by
the law. That reference has been corrected in the final rule to
indicate that only air carriers and foreign air carriers subject to the
restriction in the law need report their Hawaiian operations under
Sec. 91.877. This correction does not affect the costs detailed in the
regulatory evaluation.
Also in reviewing the NPRM, the FAA determined that the language of
the proposed reporting requirement may not have clearly distinguished
that there are three types of flights to report--those between the
contiguous U.S. and the State of Hawaii, those between the State of
Hawaii and a point outside the contiguous U.S., and turnaround service
only between the islands. All three of these flights are limited by
law, and the FAA always intended that all three be reported.
Accordingly, the language of the final rule has been changed to clarify
this distinction. This clarification does not affect the costs detailed
in the regulatory evaluation.
Finally, the applicability of Sec. 91.851, the definitions
applicable to the transition regulations, is being revised to reference
Sec. 91.877, which is being added by this rule. This revision does not
change the scope of this rule.
Paperwork Reduction Act
Information collection requirements currently contained in part 91
have been approved by the Office of Management and Budget (OMB) under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.) and have been assigned OMB control number 2120-0553. An
amendment of that approval is being submitted to OMB to include the
small additional burden associated with this final rule.
Economic Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic effect of regulatory changes on small entities. Third, the
Office of Management and Budget directs agencies to assess the effect
of regulatory changes on international trade. In conducting these
analyses, the FAA has determined that this rule: (1) Will generate
benefits that justify its costs and is not ``a significant regulatory
action'' as defined in Executive Order 12866; (2) is not significant as
defined in Department of Transportation's Regulatory Policies and
Procedures; (3) will not have a significant impact on a substantial
number of small entities; and (4) will not constitute a barrier to
international trade. Since the impacts of the change are relatively
minor, this economic summary constitutes the analysis and no regulatory
evaluation will be placed in the docket.
Costs
There are three new provisions of the rule.
1. Stage 2 Operations in Hawaii
The current requirements of the law restricting Stage 2 airplane
operations in Hawaii do not include the reporting necessary for the FAA
to ensure compliance with the statutory restrictions added by the 1991
amendment. This rule will add a new paragraph to Sec. 91.801 and add a
new Sec. 91.877 that will contain the reporting requirements for
aircraft operated within the State of Hawaii or between the State of
Hawaii and points outside the contiguous United States on and since
November 5, 1990. Each affected operator will need to report the number
of Stage 2 airplanes it operated in either described operation since
November 5, 1990, and any changes in the number since that time. This
reporting requirement is needed to ensure compliance with the 1991
amendment to ANCA.
The FAA estimates that this provision will require for each carrier
no more than two hours per year of a Flight Operations Manager's time
to collect the necessary information. The FAA further
[[Page 66184]]
estimates that there will be a one-time agency cost expended in the
first year of implementation as a result of this rule change. There are
approximately 10 U.S. operators that fly Stage 2 airplanes in and out
of Hawaii that are not presently required to report the needed
information.
The FAA assumes that reporting the information required by this
action will be performed by a Flight Operations Manager at a loaded
hourly wage (which includes benefits) of $26.74. Two hours at this rate
times 10 carriers yields the total annual cost of $535.00 to affected
carriers.
The FAA estimates that it will also take a total of two hours for
the FAA to review and approve the initial information submitted. (Time
spent in review thereafter will be insignificant because it will be
included in regular reviews of reports.) Given a loaded hourly wage
rate (which includes benefits) of $38.87 for a government worker, GS-13
step 5, the FAA estimates that this provision will cost the FAA $777
($38.87 x 10 x 3) to process this information. The total annual
cost of this provision is, therefore, $1,312.
2. Other Stage 2 Operations
Currently Sec. 91.857 applies to Stage 2 airplanes imported into a
noncontiguous state, territory, or possession of the United States on
or after November 5, 1990. That section was promulgated to provide a
means by which airplanes purchased after the date of the statutory
nonaddition rule could be included on the operations specifications of
operators, but restricted from operations in the contiguous United
States. Paragraph (b) of that section allows operators to obtain a
special flight authorization to bring these airplanes into the
contiguous United States for the purpose of maintenance.
Since Sec. 91.857 was promulgated, the FAA found that the same
restricted operations specification arrangement was the most effective
means for some operators to comply with the phased compliance
regulations. Accordingly, the FAA is revising the text of Sec. 91.857
to remove the reference to ``imported'' airplanes; the revision will
include a reference only to Stage 2 airplanes ``operating between
points outside the contiguous United States.'' This language is
intended to include both Stage 2 airplanes covered by the nonaddition
rule and Stage 2 airplanes removed from operations in the contiguous
United States as a means of complying with the phased transition
regulations.
This change does not represent a change in policy toward these
airplanes. There is, therefore, no cost associated with this provision.
3. Correction of New Entrant References
As part of the required transition to an all Stage 3 fleet, the FAA
was required to consider the impact of any regulations on a ``new entry
into the airline industry.'' In adopting the regulations, the FAA made
special provisions for new entrant air carriers under Sec. 91.867. In
that regulation, and in the definition of new entrant in Sec. 91.851,
the FAA inadvertently included operators operating under parts 125 and
135. The inclusion of each of these parts was in error. As outlined in
the final rule synopsis, air carriers operate under part 121, 129, or
135; no air carriers are certificated under part 125. Also, since the
noise transition regulations affect only jet airplanes over 75,000
pounds, the airplane size limitations of part 135 mean that there are
no part 135 operators affected by the rules, and thus there can be no
part 135 new entrants.
The FAA is eliminating the references to ``new entrants'' under
parts 125 and 135 since, as explained above, such status is not
possible given the limitations of the statute and those of parts 125
and 135. There are no costs associated with this change.
Benefits
The statute contains a provision that limits the number of Stage 2
airplanes that operate exclusively within the State of Hawaii, or
between Hawaii and a point outside the contiguous United States. The
benefits associated with the reduction in noise are attributed to the
law itself. No direct benefits of the reduction in noise levels can be
attributed to this rule making. Without this rule the FAA will not have
the information necessary to enforce the law.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA; 5 U.S.C. 601 et seq.)
was enacted by Congress to ensure that small entities are not
unnecessarily and disproportionately burdened by Government
regulations. The RFA requires agencies to review rules that may have
``a significant economic impact on a substantial number of small
entities.'' Small entities are independently owned and operated small
businesses and small not-for-profit organizations.
According to the FAA's Order on Regulatory Flexibility Criteria and
Guidance, a small operator of airplanes for hire is one that owns, but
does not necessarily operate, nine or fewer airplanes. The Order also
defines a substantial number of small entities as a number that is not
less than 11 and that is more than one-third of the small entities
subject to the rule. The small entities that will be affected by this
rule are the operators of Stage 2 civil subsonic airplanes with maximum
weights of more than 75,000 pounds that operate in Hawaii.
The annual costs of this rule are negligible ($535 per operator).
For this reason the FAA concludes that the final rule does not
significantly affect a substantial number of small air carrier entities
as defined in the FAA's Regulatory Flexibility Criteria and Guidance.
International Trade Impact
The final rule is expected to have little or no impact on trade
opportunities of U.S. firms conducting business overseas or for foreign
firms conducting business in the United States. The rule will impose
the same requirements on both domestic air carriers operating under
part 121 and foreign air carriers subject to part 129. The costs of
compliance to foreign air carriers flying into the United States and
domestic operators are similar and negligible. Therefore, it will not
cause a competitive disadvantage for U.S. carriers operating overseas
or for foreign carriers operating in the Untied States.
Federalism Implications
This regulation will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this proposal would not have
sufficient federalism implications to warrant preparation of a
Federalism Assessment.
Environmental Analysis
This rule will ensure implementation of the law by adding a new
section Sec. 91.877 that will contain new reporting requirements for
operators conducting Stage 2 operations in the State of Hawaii. The new
reporting requirement refines existing reporting requirements in part
91, and will not have a significant effect on the quality of the human
environment. Any environmental impact associated with this regulation
is the result of the amendment to the statute made by Congress. This
action, the addition of a
[[Page 66185]]
reporting requirement, in itself, has no environmental impact.
The change to Sec. 91.857 that acknowledges an acceptable means of
compliance with the Stage 3 transition, and the elimination of two
drafting errors, also will not have a significant effect on the quality
of the human environment. This rule does not in any way change the
substantive effect of the transition regulations, but only reflects the
practices of the FAA since the regulations were adopted in 1991.
Conclusion
These amendments to part 91 will result in no substantial costs or
savings. They will not have an annual effect on the economy of $100
million or more, will not result in a major increase in costs to
consumers or others, nor have other significant adverse effects. In
addition, this rule will have little or no impact on trade
opportunities for U.S. firms doing business overseas, or on foreign
firms doing business in the United States. Accordingly, the FAA has
determined that these amendments: (1) Are not a significant regulatory
action under Executive Order 12866; (2) are not a significant
regulatory action under DOT Regulatory Policies and Procedures (44 FR
11034; February 26, 1979); and (3) will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 91
Aircraft, Noise control, Reporting and recordkeeping requirements.
The Amendment
Accordingly, the Federal Aviation Administration amends 14 CFR part
91 as follows:
PART 91--GENERAL OPERATING AND FLIGHT RULES
1. The authority citation for part 91 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44715, 44716, 44717, 44722, 46306, 46315,
46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
Sec. 91.801 [Amended]
2. Section 91.801(c) is amended by removing the reference to
``91.875'' and adding the reference ``91.877'' in its place.
3. Section 91.801 is amended by adding a new paragraph (d) to read
as follows:
Sec. 91.801 Applicability: Relation to part 36.
* * * * *
(d) Section 91.877 prescribes reporting requirements that apply to
any civil subsonic turbojet airplane with a maximum weight of more than
75,000 pounds operated by an air carrier or foreign air carrier between
the contiguous United States and the State of Hawaii, between the State
of Hawaii and any point outside of the 48 contiguous United States, or
between the islands of Hawaii in turnaround service, under part 121 or
129 of this chapter on or after November 5, 1990.
Sec. 91.851 [Amended]
4. The introductory text of Sec. 91.851 is amended by removing the
reference ``91.875'' and by adding the reference ``91.877'' in its
place.
Sec. 91.851 [Amended]
5. Section 91.851 is amended in the definition of ``New entrant''
by revising the phrase ``part 121, 125, 129 or 135'' to read ``part 121
or 129''.
6. Section 91.857 is amended by revising the heading and
introductory text to read as follows:
Sec. 91.857 Stage 2 operations outside of the 48 contiguous United
States, and authorization for maintenance.
An operator of a Stage 2 airplane that is operating only between
points outside the contiguous United States on or after November 5,
1990, shall--
* * * * *
Sec. 91.867 [Amended]
7. Section 91.867(a)(1) is amended by revising the phrase ``part
121, 125, or 135'' to read ``part 121''.
8. A new Sec. 91.877 is added to read as follows:
Sec. 91.877 Annual reporting of Hawaiian operations.
(a) Each air carrier or foreign air carrier subject to Sec. 91.865
or Sec. 91.867 of this part that conducts operations between the
contiguous United States and the State of Hawaii, between the State of
Hawaii and any point outside of the contiguous United States, or
between the islands of Hawaii in turnaround service, on or since
November 5, 1990, shall include in its annual report the information
described in paragraph (c) of this section.
(b) Each air carrier or foreign air carrier not subject to
Sec. 91.865 or Sec. 91.867 of this part that conducts operations
between the contiguous U.S. and the State of Hawaii, between the State
of Hawaii and any point outside of the contiguous United States, or
between the islands of Hawaii in turnaround service, on or since
November 5, 1990, shall submit an annual report to the FAA, Office of
Environment and Energy, on its compliance with the Hawaiian operations
provisions of 49 U.S.C. 47528. Such reports shall be submitted no later
than 45 days after the end of a calendar year. All progress reports
must provide the information through the end of the calendar year, be
certified by the operator as true and complete (under penalty of 18
U.S.C. 1001), and include the following information--
(1) The name and address of the air carrier or foreign air carrier;
(2) The name, title, and telephone number of the person designated
by the air carrier or foreign air carrier to be responsible for
ensuring the accuracy of the information in the report; and
(3) The information specified in paragraph (c) of this section.
(c) The following information must be included in reports filed
pursuant to this section--
(1) For operations conducted between the contiguous United States
and the State of Hawaii--
(i) The number of Stage 2 airplanes used to conduct such operations
as of November 5, 1990;
(ii) Any change to that number during the calendar year being
reported, including the date of such change;
(2) For air carriers that conduct inter-island turnaround service
in the State of Hawaii--
(i) The number of Stage 2 airplanes used to conduct such operations
as of November 5, 1990;
(ii) Any change to that number during the calendar year being
reported, including the date of such change;
(iii) For an air carrier that provided inter-island trunaround
service within the state of Hawaii on November 5, 1990, the number
reported under paragraph (c)(2)(i) of this section may include all
Stage 2 airplanes with a maximum certificated takeoff weight of more
than 75,000 pounds that were owned or leased by the air carrier on
November 5, 1990, regardless of whether such airplanes were operated by
that air carrier or foreign air carrier on that date.
(3) For operations conducted between the State of Hawaii and a
point outside the contiguous United States--
(i) The number of Stage 2 airplanes used to conduct such operations
as of November 5, 1990; and
(ii) Any change to that number during the calendar year being
reported, including the date of such change.
(d) Reports or amended reports for years predating this regulation
are required to be filed concurrently with the next annual report.
[[Page 66186]]
Issued in Washington, DC, on November 21, 1996.
Linda Hall Daschle,
Acting Administrator.
[FR Doc. 31873 Filed 12-13-96; 8:45 am]
BILLING CODE 4910-13-M
