02-2277. Review of Existing Regulations

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Disposition of comments on existing regulations.

SUMMARY:

The FAA is notifying the public of the outcome of our periodic review of existing regulations. This action summarizes the public comments we received and our responses to them. This action is part of our effort to make our regulatory program more effective and less burdensome.

FOR FURTHER INFORMATION CONTACT:

Patrick W. Boyd, Office of Rulemaking, ARM-23, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

Under section 5 of Executive Order 12866, Regulatory Planning and Review, each agency has developed a program to periodically review its existing regulations to determine if they should be changed or eliminated. See 58 FR 51735, October 4, 1993. The purposes of the review are to make the agency's regulatory program more effective in achieving the regulatory objectives and less burdensome. The FAA conducts its review on a three-year cycle.

On July 13, 2000, we published a document in the Federal Register asking the public to tell us which regulations we should amend, eliminate, or simplify. See 65 FR 43265. The document stated that we would consider the comments and adjust our regulatory priorities, consistent with our statutory responsibilities. The document also stated we would publish a summary of the comments and an explanation of how we would act on them.

Summary of Comments

In response to the July document, we received a total of 476 comments from 207 different commenters. The issue generating the most public comments is the proposed Aviation Noise Abatement Policy 2000, which we published in the Federal Register on July 14, 2000. See 65 FR 43802. The noise-related topics most frequently mentioned include the following:

• Noise levels,
• Day/night average sound levels,
• Local control,
• Minimum altitude requirements,
• Supersonic aircraft and sonic booms,
• National park overflights,
• The FAA's and the public's conflict of interest,
• Night flights, and
• General comments about the policy.

Overall, commenters are opposed to both the proposed policy and the growing noise problem and indicated that the FAA should do more to protect the public from aircraft noise. The commenters addressed the following specific issues:

• Reducing the current maximum noise allotment (decibel level is too high);
• Creating different noise levels for day and night;
• Giving communities more local control over noise policies;
• Increasing the minimum altitude requirements (many commenters specified 3,000 feet);
• Creating stricter regulations for supersonic aircraft and sonic booms, helicopters, and ultralights; and
• Banning or reducing the overflights of national parks to preserve the park and wildlife.

Other issues not related to the proposed noise policy that were raised by the commenters include the following:

• Age 60 rule: Commenters indicated that this rule causes age discrimination and, because of advances in medical technology, some people remain healthy and fit to fly after age 60.
• Agricultural aircraft flight operations: Commenters addressed the dispensing of chemicals and the differences in agricultural operations over congested areas versus noncongested areas.
• Annual aircraft inspections: Commenters favored an increase between aircraft inspections from 1 year to 11/2, 2, or 3 years.
• Biennial flight reviews: Commenters stated that biennial flight reviews should be allowed in aircraft without fully functioning dual controls.
• Certification requirements for commercial pilots: Some commenters indicated that the regulations need to be clarified and need to have regulatory options for gliders, because gliders are different than other aircraft and some of the current regulations are irrelevant. Commenters also specifically requested clarification of solo requirements.
• Certification requirements for private pilots: Some commenters encouraged more night flying requirements, especially for training. Commenters also requested specific glider requirements.
• Commuter and on-demand flight operations: Commenters discussed takeoff, approach, and landing minimums and how long records should be kept on file.
• Drug and alcohol use, testing, and offenses: Some commenters believe charity airlifts and smaller flight operations should be excused from drug and alcohol testing requirements and that regulations concerning use of alcohol should be more restrictive with “zero tolerance.” Various commenters also requested clarification of the regulations dealing with drug or alcohol offenses in aircraft or in motor vehicles.
• Flight- and duty-time rest requirements: Some commenters indicated that there should be a better definition of “duty time” and its official beginning or end. The commenters suggested having one set of regulations instead of a set for each kind of operation.
• Instrument and equipment requirements: Commenters discussed certain types of equipment, such as transponders, aircraft lights, pitot heat indication systems, emergency equipment, and flight recorders. Some commenters want more stringent regulations, while others want fewer restrictions and some indicated the regulation should be deleted.
• Medical standards and certification: Commenters addressed medical waivers, self-certification for medical certificates, eye requirements and tests, and the removal of the physical requirements for private pilots.
• Minimum altitude requirements: Commenters requested overall clarification of the minimum altitude requirements. One commenter suggested that hot-air balloons not be restricted by a minimum altitude.
• Recent night flight experience: Most commenters indicated that the requirements for recent night flight experience are too stringent and need to be reevaluated.
• Single-engine certification course: Commenters requested that the commercial pilot, single-engine aircraft certification course requirement allow training to be conducted in multi-engine aircraft because many commercial pilots already have multi-engine aircraft ratings.

Note:

All comments received on this topic are form letters from various commenters.

Although no commenters specifically addressed the Regulatory Flexibility Act, the National Air Transportation Association commented that its small business members are burdened by unnecessary or unclear regulations, specifically addressing the flight- and duty-time rest requirements. Other commenters implied that certain regulations cause undue economic, staffing, or work burdens for them as well. No comments addressed the topic of performance-based versus prescriptive regulations, and only one commenter suggested a simplified, plain language rewrite of the flight- and duty-time rest requirements.

Issues That We Will Consider for Rulemaking

During the review of comments, the FAA didn't identify any comments or recommendations that require response through an immediate rulemaking. The FAA notes, however, that several commenters raised issues that merit consideration for future rule changes. As opportunities arise, we will try to incorporate these issues into ongoing and future projects. For example, in response to the comment that hot-air balloons not be included in the minimum altitude requirements, the FAA is gathering data generated from flight testing taking place under an exemption for the balloon altitude restriction. The FAA will analyze these data for a possible change of minimum altitude requirements for balloons.

One commenter recommended that we revise commuter and on-demand flight operations regulations to reflect the unique capabilities of helicopters. The FAA agrees that a change in the operating specifications for helicopters may be warranted.

Some commenters suggested changing the instrument and equipment requirements. Specifically, one commenter suggested that protective breathing equipment (PBE) be checked before each flightcrew change, not before each flight. The FAA agrees. It wasn't our intent to require a check of PBE at the beginning of each flight. In addition, one commenter recommended that the FAA remove the regulations requiring signal flares. The FAA issued this regulation before there were radar, global positioning systems (GPSs), and continuous communications; therefore, the requirement to carry signal flares is outdated and could be removed from the regulation without reducing safety.

Other issues the FAA will consider for future rulemaking include the following:

• Revising 14 CFR 23.1587(a)(1) regarding airplane performance to reference both “clean” and landing configurations and 14 CFR 23.1587(a)(2) to specify “multiengine.”
• Amending 14 CFR 91.109(a) to permit dual instruction in airplanes that lack dual flight controls.
• Revising 14 CFR 121.711 regarding radio communications because it is outdated.
• Codifying Exemption No. 3585 into the rules for dispatching. Exemption No. 3585 permits part 121 operators to continue to dispatch airplanes under instrument flight rules (IFR) when conditional language in a one-time increment of the weather forecast states that the weather at the destination airport, alternate airport, or both airports could be below the authorized weather minimums. This would occur when other time increments of the weather forecast state that the weather conditions will be at or above the authorized weather minimums.
• Clarifying the language for weather minimums for special visual flight rules.

Issues We Are Currently Addressing

The FAA is currently considering numerous issues addressed by the commenters. The most common issues include the following:

• The Aviation Noise Abatement Policy 2000: The FAA is preparing a final version.
• Airworthiness directives: The FAA will address comments related to proposed airworthiness directives (ADs) during the preparation of final ADs.
• Certification requirements for mechanics: The FAA is now studying this issue as a prerequisite for future rulemaking.
• Certification requirements for pilots: The FAA is drafting a notice of proposed rulemaking (NPRM) on additional revisions to the pilot, flight instructor, and pilot school certification rules.
• Drug and alcohol use, testing, and offenses: The FAA is drafting an NPRM on anti-drug and alcohol misuse prevention programs for personnel engaged in specified aviation activities.
• Flight and duty time rest requirements: The FAA is drafting a supplemental NPRM on flight crewmember duty period, flight-time, and rest requirements.
• Single-engine certification course: The FAA has incorporated recommendations by commenters into the rulemaking project on additional revisions to the pilot, flight instructor, and pilot school certification rules.

The FAA is also addressing policies and procedures regarding issues raised by commenters. For example, one commenter suggested that the FAA review the redundancy in the Aircraft Certification Systems Evaluation Program (ACSEP) evaluations and ongoing principal inspector assignments. The FAA is currently addressing this issue in the “AIR-200 ACSEP Phase II” project scheduled for implementation in fiscal year 2002.

In addition, the Aviation Rulemaking Advisory Committee (ARAC) most recently considered numerous issues addressed by the commenters, including the following:

• Alternate inspection program/annual aircraft inspections: the 14 CFR part 43 General Aviation Working Group addressed these issues in the NPRM that the working group presented to the Air Carrier and General Aviation Maintenance Issue Area.
• Major/minor repairs or alterations: the ARAC will consider comments during its review of a task on major/minor repairs or alterations.
• Pressurized compartment loads: the ARAC will consider comments during its review of a task on pressurized compartment loads.
• Pressurized and low pressure pneumatic systems: these issues were discussed at past working group meetings, but were not included in the draft rule. The harmonization working group will address this issue at its next meeting.

One commenter stated that the current regulations indicate a major difference between 14 CFR part 25 and JAR 25, jeopardizing the objective of harmonization. The FAA is aware of industry concerns regarding this regulation and plans to have the ARAC Transport Airplane and Engine Issue Area and the Occupant Safety Issue Area address harmonization efforts.

Issues That We May Address in the Future

The FAA received comments on issues it may consider for future action, such as initiating new or revising existing guidance material, policies, or procedures. One commenter suggested that very high frequency omnirange station (VOR) equipment checks be permitted against an installed IFR-certified GPS receiver in addition to checking against a second VOR receiver. The FAA notes that using a GPS as a cross-reference for the VOR could show a higher degree of accuracy than comparing one VOR to another. The FAA will examine this issue and determine its use as a possible new procedure.

Issues That We Have Addressed

The FAA had already addressed some recommendations made by commenters. They were addressed as NPRMs or final rules before the request for comments for the Review of Existing Rules was published. Several commenters recommend changing the Age 60 Rule. The FAA notes that on December 11, 1995, it issued a Disposition of Comments and Notice of Agency Decisions (Disposition) regarding the Age 60 Rule. The Disposition announced the FAA's determination not to propose to change the Age 60 Rule at that time; the FAA maintains that position. One commenter recommended that the requirement for a valid medical certificate be dropped from the private pilot certificate criteria because it places a financial and managerial burden on the FAA and has no correlation to safety. The FAA notes that this recommendation was originally proposed in the Pilot, Flight Instructor, Ground Instructor, and Pilot School Certification Rules NPRM (60 FR 41160, Aug. 11, 1995), but was withdrawn from the final rule. Another commenter suggested that the FAA extend the exception to the recent night flight takeoff and landing experience requirements for pilots who hold more than one type rating; the commenter suggested extending it to pilots in command (PICs) who hold only one type rating. The FAA notes that it considered this change during the development of the final rule on 14 CFR 61.57(e)(3); however, it rejected the change because the purpose of the regulation was not to alleviate the night takeoff and landing currency, but to alleviate a financial burden on pilots who operate multiple type-rated airplanes requiring a pilot crew of two or more.

In addition, the FAA received comments on issues that became final rules after the comment period closed. For example, one commenter suggested that the Federal Bureau of Investigation perform the background checks for employees requiring unescorted access to the Security Identification Display Area (SIDA) because of the difficulty and economic burden that it places on the employee. Another commenter suggested that if a fixed-base operator is physically separated from the air carrier areas of the airport, it should be excluded from the SIDA. The FAA considered these comments during the development of the final rule on airport security, 14 CFR part 107, issued July 2, 2001 (66 FR 37273).

Issues That We Won't Address

In some cases, the FAA found that the current regulation is necessary and doesn't need a revision, or the recommendations didn't address a safety concern. For example, some commenters suggested that the Mode C transponder requirement be expanded in the Los Angeles International Airport area because of the intense air traffic. The FAA doesn't agree that further rulemaking in this case would measurably enhance the operation of the national airspace system. Some commenters suggested that the recent night flight experience regulation causes inconvenience and financial expenditure, and the FAA should reevaluate or eliminate the requirement. The FAA doesn't believe the recommendation to eliminate the PIC night takeoff and landing currency requirements can be justified considering the FAA's statutory requirements to regulate safety and air commerce. Other commenters suggested that the FAA revise 14 CFR 91.109 to permit a biennial flight review (BFR) to be given in an airplane without fully functional dual controls. The FAA believes that because a BFR is a training session by a flight instructor, dual controls for a BFR are justified in the interest of safety. One commenter stated that the definitions of “congested,” “noncongested,” and “other than congested” areas in relation to agricultural aircraft regulations are clear. However, the commenter stated that the local FAA who takes enforcement action on an agricultural airplane operator for low flying interprets the regulation to correspond to circumstances at the time instead of following the regulations. The commenter questions whether the regulations are being followed or if the FAA is “satisfying urban sprawl.” The FAA notes that 14 CFR 137.49 provides relief to the agricultural aerial applicator from the minimum altitude requirements; therefore, a revision to the regulation is not necessary.

Conclusion

The FAA finds that reviewing public comments on our regulations helps us in assessing the effectiveness of our regulatory agenda and adjusting the agenda, when necessary. As a result of this review, we have identified several issues that we will address in future rulemaking projects. In addition, the review offers us a general understanding of the public's concerns regarding our regulations. We intend to continue to request public comments on a three-year cycle to identify any necessary changes to our regulatory program. We plan to issue a document soliciting public comments for our next review in 2003.

Issued in Washington, DC, on January 18, 2002.

Nicholas A. Sabatini,

Associate Administrator for Regulation and Certification.