[Federal Register Volume 59, Number 225 (Wednesday, November 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28916]
[[Page Unknown]]
[Federal Register: November 23, 1994]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 91
[Docket Nos. 27869; 27894; 27899]
Dispositions of Noise Waiver Petitions
AGENCY: Federal Aviation Administration, DOT.
ACTION: Disposition of Noise Waiver Petitions.
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SUMMARY: This document contains the dispositions of three petitions for
waiver from the first compliance date under the Stage 3 transition
regulations. Because of significant public interest in the filing of
these petitions and the FAA's analysis of the arguments presented
therein, the FAA is publishing these dispositions to disseminate its
policy as established in these dispositions.
EFFECTIVE DATE: These determinations are effective November 17, 1994.
FOR FURTHER INFORMATION CONTACT:
Laurette Fisher (AEE-300), Office of Environment and Energy, Federal
Aviation Administration, 800 Independence Ave., SW., Washington, DC
20591; phone (202) 267-3553.
SUPPLEMENTARY INFORMATION: When the FAA promulgated the regulations
requiring a transition to an all Stage 3 fleet, it established a series
of three dates by which a certain level of compliance must be
established; the first compliance date is December 31, 1994.
The regulations also include, in Sec. 91.871, a provision allowing
an operator to apply for a waiver from any interim compliance
requirement. Section 91.871 sets out the information that must be filed
by a petitioner, including a showing that a grant of a waiver would be
in the public interest, the operator's plan for compliance, the
petitioning operator's current financial position and fleet
composition, and a showing that compliance would be financially
onerous, physically impossible, technologically infeasible, or that it
would have an adverse impact on competition or service to small
communities.
This document sets out the FAA's dispositions of three of the first
petitions for waiver received pursuant to Sec. 91.871. Because of
significant public interest in the filing of these petitions and the
FAA's analysis of the arguments presented therein, the FAA is
publishing these dispositions to disseminate its policy on waivers from
the transition rules. Subsequent dispositions by the FAA will be
published in summary form only.
Each determination was made on the basis of the filings of the
individual petitioner, and thus no combined summary of these
dispositions is appropriate. These dispositions and the supporting
petitions, public comments, and other documentation are available for
review in the FAA Rules Docket, 800 Independence Ave., SW., Washington,
DC. Dockets may be inspected in Room 915G weekdays from 9:00 a.m. to
5:00 p.m., except federal holidays.
Issued in Washington, DC on November 17, 1994.
Louise E. Maillett,
Director of Environment and Energy.
Regulatory Docket No. 27869
In the Matter of the petition of Millon Air, Inc. for a waiver from
14 CFR 91.865.
Denial of Waiver
By petition dated August 3, 1994, Suzette Matthews, Berstein &
Matthews, 5649 John Barton Payne Road, Marshall, VA 22115, petitioned
the Federal Aviation Administration (FAA) on behalf of Millon Air, Inc.
(Millon Air), pursuant to 14 CFR 91.871 for a waiver from 14 CFR
91.865. A grant of the requested waiver would allow Millon Air to
operate all of its Stage 2 airplanes beyond the interim compliance date
of December 31, 1994.
The petitioner requests relief from the following regulation:
Section 91.865 requires that after December 31, 1994, each operator
of Stage 2 airplanes (other than new entrant air carriers) must either
reduce the number of Stage 2 airplanes it operates by 25% (to 75% of
its base level) or achieve a fleet mix of airplanes that is 55% Stage
3.
The petitioner applied for relief pursuant to 14 CFR 91.871, which
provides that any operator subject to Sec. 91.865 may apply for a
waiver from any interim compliance requirement, and must submit the
information described in that section including the applicant's
financial position, the status of its fleet and operations, the reason
the waiver is necessary, and the public interest to be served in
granting a waiver.
The petitioner submitted the following arguments and information in
support of its request for a waiver:
Millon Air operates an all-cargo service on a charter basis
worldwide and by scheduled service between the United States and
Central and South America. Millon Air operates a fleet of four Stage 2
airplanes, three Boeing 707's and one McDonnell Douglas DC-8. To comply
with the December 31, 1994, interim compliance date in Sec. 91.865(b),
Millon Air would need to retrofit or ground one of its airplanes. If
Millon Air chooses to comply with the 55% Stage 3 fleet mix requirement
of Sec. 91.867(d), it would need to add four Stage 3 airplanes to its
fleet of four Stage 2 airplanes.
The petitioner states that neither option is considered possible.
First, Millon Air states that because no retrofit equipment is
currently available or under development to upgrade its current
airplanes to Stage 3, retrofit of one airplane is technically and
physically impossible. Further, even if Stage 3 retrofit equipment were
available, the cost of such equipment would, based on the cost of
comparable equipment, exceed the value of the airplanes.
The petitioner also states that purchasing a replacement Stage 3
airplane would be prohibitively expensive for a carrier its size, and
that such airplanes would be too costly to operate in the competitive
markets in which Millon Air operates. Millon Air also states that it
has been unable to locate any used aircraft that have been upgraded to
Stage 3 for lease or purchase.
Millon Air states that because it operates out of Miami, Florida,
taking off over water, the environmental impact of its one additional
airplane would be negligible. Millon Air states that removing one
aircraft from service, however, would have a significant negative
impact on competition in the markets it serves. Millon Air states that
it believes that the FAA should grant waivers to all operators of 707's
and DC-8's for which no noise retrofit equipment is available.
Millon Air also states that a waiver would be in the public
interest because there are no safety implications in continuing Stage 2
operation, and because those wishing to ship items between the United
States and Central and South America have ``no real alternatives to the
reasonably priced air transportation provided by small operators such
as Millon Air.''
On September 7, 1994, the FAA sent a letter to the petitioner
indicating that the agency considered the petition to be lacking
certain information. Specifically, the FAA requested that the
petitioner submit additional information concerning how the grant of a
waiver would benefit the public as a whole, and more information on the
petitioner's compliance plan and its good faith efforts to comply with
Sec. 91.865.
On September 19, 1994, the petitioner responded by reiterating the
arguments presented in its original petition concerning public
interest. The petitioner also stated that its compliance plans were
submitted pursuant to Sec. 91.875 as required.
On October 6, 1994, a summary of the petitioner's request was
published in the Federal Register for public comment. Eight commenters
responded to the notice, including four operators, two air carrier
associations, and two airport associations. All of the commenters
opposed a grant of the requested waiver.
The FAA's analysis is as follows:
The FAA has determined that the petitioner has not met the criteria
outlined in 14 CFR Sec. 91.871, and the grant of the petitioner's
request for a waiver would not be in the public interest.
First, Millon Air states that it needs the requested waiver because
no equipment is available to retrofit either of the airplane types it
operates, Boeing 707's and a McDonnell Douglas DC-8. Accordingly,
Millon Air concludes that retrofit is technically and physically
impossible.
The FAA cannot accept the nonexistence of retrofit equipment as the
basis for a waiver. If it did, the agency would be obligated to grant a
waiver to every operator of such equipment, ostensibly for the entire
interim compliance period. The FAA is confident that this was not the
intent of Congress in directing a phased reduction in noise in the
Airport Noise and Capacity Act of 1990; in fact, these older airplanes
with no ability to be upgraded are precisely the airplanes that must be
eliminated from the fleet to meet the goals established by Congress for
a quieter overall aircraft operating environment. Further, by ordering
a phased reduction, Congress sought to soften the economic blow of a
sudden operational prohibition. To protect these airplanes until the
final compliance date would not only negate the goal of the
Congressional mandate, but would eliminate the expected interim noise
benefits and unduly reward the actions of those operators of the oldest
airplanes that chose not to invest in the newer technology that their
competitors have.
To the FAA, technologically infeasible means a viable retrofit
program is under active development for a particular aircraft model,
and that the petitioner has committed to taking advantage of that
technology as soon as it is available. The FAA would evaluate such
requests in light of whether a reasonable expectation exists for
certification, manufacture, delivery, and installation of that
technology as put forth by the petitioner, including an evaluation of
when the development program began.
To the FAA, physically impossible means while appropriate noise
abatement technology exists, the petitioner is unable to achieve
delivery and installation of that technology in time to meet the
interim compliance date. In evaluating such a petition, the FAA would
consider the amount of notice the individual petitioner had of its need
for the technology, as well as the petitioner's other actions toward
compliance. The FAA would not, for example, accept the argument of an
established operator that, when it sought to purchase such technology
in late 1994, discovered that delivery positions were not available in
time to meet the December 31, 1994, compliance date.
Millon Air's circumstances do not meet either the situations
outlined above, but the petition does state that Millon Air seeks only
temporary relief ``so it can continue to operate its aircraft until
suitable retrofit or comparable replacement equipment becomes
available.'' Millon Air also argues that there are no comparable
replacements for these airplanes that can be operated as cheaply. Taken
together, one conclusion would be that there will never be a suitable
replacement since it is unlikely that a newer, quieter airplane would
ever be cheaper to acquire and operate than those in Millon Air's
current fleet; a waiver on such grounds would apparently continue
indefinitely. Further, Sec. 91.871(e) states that no waiver will be
granted for a period any longer than the date of the next compliance
period. Millon Air's petition does not show any expectation that the
circumstances or its approach to compliance will change in that time.
As indicated previously, the FAA examines closely each petitioner's
plans and actual actions toward compliance in determining whether a
waiver request is reasonable and was made in good faith. In its
required filings, Millon Air initially reported that it planned to meet
the compliance requirements by ``retirement of Stage II or addition of
Stage III aircraft.'' In two subsequent reports, Millon Air indicated
that it planned to comply in 1994 by phasing out 25% of its Stage 2
airplanes without further detail. Millon Air's petition does not
contain any information as to changed circumstances or why the
retirement of one airplane is no longer feasible. While Millon Air has
looked into the lease or purchase of Stage 3 airplanes as an
alternative, it concluded that purchase of a new airplane is
financially impossible and that no used aircraft are available for
purchase or lease. Accordingly, the petitioner has chosen to re-lease
the same airplanes with full knowledge that the composition of its
fleet would not meet the first compliance deadline.
The FAA has determined that these actions do not constitute a good
faith effort to comply with the interim compliance requirements. In
general, a good faith effort to comply is one in which the operator
established a timely, achievable plan for compliance and made
reasonable efforts to keep that plan current and follow it. Waivers
will be considered for operators with such a plan that, for the reasons
presented, became unable to follow that plan in time to meet the
compliance date. Good faith would generally not be found when, for
example, an operator's plan depends on its hope that new technology
will be developed, where an operator's actions reflect no effort to
investigate available options, or when an operator makes only eleventh-
hour efforts that it reasonably should have known would not be
successful before the compliance date at hand. In this case, the FAA
has determined that no good faith effort has been demonstrated, since
Millon Air has not shown a willingness even to adhere to its own
compliance plan, but appears to be relying on the existence of the
waiver provision to continue its current operations after the December
31, 1994, compliance date.
Finally, the FAA considers full compliance with the interim
compliance requirements to be in the public interest, and any waiver
granted from an interim requirement must reflect a net public benefit
when weighed against noncompliance with the rule. Contrary to the
statements of the petitioner, the FAA considers this balance to be more
than a lack of safety impact or a negligible impact on overall noise in
the petitioner's operating environment. The petitioner argues that the
public would be harmed if the one airplane involved in this waiver is
removed from service in the United States-South America cargo operation
it offers. In presenting such an argument in a petition for waiver, the
FAA would expect to see some assessment of the actual impact of
diminished service that could reasonably be anticipated by the removal
of the petitioner's airplane from the market. Millon Air offers no such
assessment, only stating without supporting evidence that the
prohibition of operation of one of its aircraft will have a
``significant negative impact on competition.''
The petitioner also states that cargo shippers have ``no real
alternatives to the reasonably priced air transportation provided by
operators such as Millon Air.'' Again, the petitioner's statement was
not accompanied by any evidence to support this assertion of current or
anticipated market conditions. The statement is contradicted, however,
by submissions of the commenters, including air cargo associations and
other cargo carriers. In fact, by noting the existence of other similar
operators, the petitioner's statement appears to contradict its own
argument that removal of its single airplane will have the proffered
significant effect on competition.
Finally, many of the petitioner's arguments have at their base the
petitioner's choice to continue operating with the same equipment and
desire not to adhere to its own compliance plan. The only reasons put
forth are that no noise abatement technology has been developed by
anyone else for the old airplanes it operates, and that new technology
is expensive. These same factors face every operator of 707's and DC-
8's, and each of these factors has been known at least since the phased
compliance regulations were promulgated in 1991. The petitioner's
choice to continue operating this same equipment is a business decision
made with full knowledge of the regulatory requirements, and there is
no public interest to be served in allowing a waiver on this basis.
Accordingly, the FAA has determined that the totality of the
circumstances and arguments presented by the petitioner for a waiver
from Sec. 14 CFR 91.865 are not in the public interest.
In consideration of the foregoing, I find that the request for a
waiver is not in the public interest. Therefore, by the authority
delegated to me by the Administrator, the petition for a waiver by
Millon Air, Inc., to Sec. 91.865, pursuant to Sec. 91.871, is hereby
denied.
Issued in Washington, DC on November 17, 1994.
Louise E. Maillett,
Director of Environment and Energy.
Regulatory Docket No. 27899
In the Matter of the petition of AirTran Airways, Inc. for a waiver
from 14 CFR 91.867.
Denial of Waiver
By petition dated September 1, 1994, AirTran Airways, Inc.
(AirTran) petitioned the Federal Aviation Administration (FAA) pursuant
to 14 CFR 91.871 for a waiver from 14 CFR 91.865. On September 13,
1994, in response to questions from the FAA, the petitioner submitted a
supplement to its request. The requested waiver would allow AirTran to
operate an all Stage 2 fleet until June 30, 1995.
The petitioner requests relief from the following regulation:
Section 91.867 requires that after December 31, 1994, each new
entrant air carrier must operate a fleet that is at least 25% Stage 3.
The petitioner applied for relief pursuant to 14 CFR 91.871, which
provides that any new entrant operator subject to Sec. 91.867 may apply
for a waiver from any interim compliance requirement, and must submit
the information described in that section including the applicant's
financial position, the status of its fleet and operations, the reason
the waiver is necessary, and the public interest to be served in
granting a waiver.
The petitioner submitted the following arguments and information in
support of its request for a waiver:
AirTran is a subsidiary of AirTran Corporation (the Corporation).
AirTran began service in June 1994 as Conquest Sun Airlines, flying
passenger charters. AirTran began scheduled passenger Service in early
October 1994. AirTran serves the ``low fare leisure market'' from the
East Coast to Florida. AirTran currently operates two leased Stage 2
Boeing 737-200 airplanes. The leases for these airplanes were in place
when the Corporation acquired the business in June 1994. AirTran plans
to acquire two more Stage 2 737-200 airplanes in late 1994, and one
more in the spring of 1995. Under Sec. 91.867, the addition of the two
airplanes in late 1994 would require one of the four airplanes in
AirTran's fleet to be a Stage 3 airplane after December 31, 1994.
AirTran's plans to acquire those aircraft lead to his request for a
waiver.
AirTran indicates that the leases of the airplanes it currently
operates do not contain provisions to hushkit those airplanes to meet
Stage 3 noise levels. AirTran intends to incorporate hushkit provisions
in the lease for the two additional airplanes it seeks. The petitioner
notes, however, that even if the lease negotiations were already
complete, no hushkit would be available until spring 1995. Although
there is more than one hushkit available for the petitioner's airplane,
AirTran indicates that only one of them meets its range and payloads
needs, the other ``creates too large an impact on fuel efficiency to be
economically viable for AirTran operations.'' AirTran submitted a
memorandum of understanding with the hushkit manufacturer that would
guarantee a January 1995 delivery position, with the airplane being
ready for service in the spring. The petitioner states that its
research into using other aircraft models showed that they are both
expensive and do not meet its business plans.
AirTran states that timing is critical in its request for this
waiver. AirTran states that a waiver is critical if it is to be able to
conduct its planned service, ``since the winter months are the prime
travel season'' for the East Coast-Florida leisure market. AirTran
indicates that initiation of this service in the summer months would
``not be prudent'' and a failure to obtain a waiver could prevent a
service expansion for as long as nine months.
AirTran states that grant of a waiver would enable it to
``negotiate economically viable leases on hush-kitted aircraft with
proven efficiency while still providing increasing service and
competition'' in the market it serves. The petitioner also states that
its planned transition to Stage 3 airplanes will allow it ``to be in
compliance with the fifty percent Stage 3 deadlines of December 31,
1996.'' For these reasons, the petitioner states, a grant would be in
the public interest.
On October 6, 1994, a summary of the petitioner's request was
published in the Federal Register for public comment. Seven commenters
responded to the notice, including two airport associations, four
operators, and one national environmental organization. All of the
commenters opposed a grant of the requested relief.
The FAA's analysis is as follows:
The FAA has determined that a grant of the petitioner's request for
a waiver would not be in the public interest.
First, it is FAA policy to consider for the possibility of waiver
only those airplanes in operation by an operator on the date of the
petition. In this instance, the operator has not yet leased the
airplanes for which it requests a waiver.
When the Corporation acquired the former Conquest Sun Airlines in
June 1994, it was, or should have been, well aware of the requirements
for new entrants in Sec. 91.867 and the status of the leased airplanes
it acquired in the transaction. The basis for its request, then, is not
that its circumstances somehow changed from its planned means of
compliance, but appears to be its own business plan to acquire two more
Stage 2 airplanes by the end of the year.
In the Airport Noise and Capacity Act of 1990, which gave rise to
the compliance schedule in Sec. 91.867, Congress mandated that there be
an analysis of the impact of any compliance schedule ``on new entry
into the airline industry.'' As a result of this mandate, the FAA
promulgated a rule that gave new entrants a less stringent compliance
schedule that was based on the perceived need to be adding new
airplanes to their fleets. The FAA does not interpret this mandate as
requiring the FAA to accept the business plans of new entrants that
call for operation of Stage 2 airplanes past any compliance date,
especially when the new entrant makes those plans and begins service
just a few months before a compliance date. In this case, the
petitioner would be free to add a third Stage 2 airplane to its fleet
without any further action. It is the fourth airplane, not yet leased,
that the petitioner would need to make Stage 3 before it operates.
Although the petitioner has not yet leased this airplane, it is
apparantly unwilling to adapt its business plans to use only that level
of service it can achieve in compliance with a regulation that predates
the existence of the airline.
Since the petitioner is a new entrant, it does not yet have a
compliance plan on file. The petition gives little information as to
the petitioner's planned compliance, other than to say it can afford
the necessary hushkit and is in the early stages of contracting for it,
to be installed on an airplane that is not yet leased. The petitioner
has submitted no information why its current business plan does not
take into account the upcoming compliance date without asking for a
waiver. As part of its annual compliance report, if any operator were
to submit as its compliance plan that it planned to ask for a waiver,
the FAA could not find that the operator's plan was made in good faith;
the petitioner exhibits the same lack of good faith by sticking to its
business plan for an airline acquired in June 1994.
The FAA has determined that, taken together, these circumstances do
not exhibit a good faith attempt to comply with the regulation, as
required in Sec. 91.871.
Moreover, the petitioner fails to state any reasonable public
interest that would be served by granting the requested relief, if it
were available. The FAA considers full compliance with the interim
compliance requirements to be in the public interest, and any waiver
granted from an interim requirement must reflect a net public benefit
when weighed against noncompliance with the rule. The petition states
only that the waiver would enable the petitioner to negotiate better
leases on hushkitted airplanes ``while still providing increasing
service and competition East Coast markets to Florida,'' and that it
will assist the petitioner in achieving ``compliance with the fifty
percent Stage 3 deadline'' in 1996.
The waiver provision was not promulgated to assist any operator in
achieving better business deals, nor is it clear how a denial of this
waiver could affect the petitioner's compliance in 1996. Further, the
FAA will consider waivers based on reduced competition when a
petitioner presents an assessment of the affected market if a waiver
were not granted. In this case, the market will not change from its
current status if the waiver is not granted. The waiver provision does
not exist for the purpose of increasing competition. The FAA does not
accept the argument that every airplane in a particular market
represents competition, and therefore it is in the public interest to
maximize that number at all costs. To allow such reasoning would be
unfair to the competing operators in the market that have already
complied with the same requirements the petitioner seeks to avoid.
Increased competition does not outweigh the public's interest in
compliance with the regulations or the accompanying reduction in noise
levels anticipated by the Congress and the public when the regulations
were adopted in 1991. These arguments are reiterated by the commenters
to this petition, one of which is a new entrant in a similar market
that is already in compliance with the rule.
Accordingly, the FAA has determined that the arguments presented by
the petitioner reflect neither a good faith attempt to comply with the
regulations nor any convincing statement of public interest in a grant
of the requested waiver.
In consideration of the foregoing, I find that the request for a
waiver is not in the public interest. Therefore, under the authority
delegated to me by the Administrator, the petition for a waiver by
AirTran Airways, Inc., to Sec. 91.865, pursuant to Sec. 91.871, is
hereby denied.
Issued in Washington, DC on November 17, 1994.
Louise E. Maillett,
Director of Environment and Energy.
Regulatory Docket No. 27894
In the Matter of the petition of AirTran Corporation for a waiver
from 14 CFR 91.867.
Denial of Waiver
By petition dated August 29, 1994, AirTran Corporation (AirTran)
petitioned the Federal Aviation Administration (FAA) pursuant to 14 CFR
91.871 for a waiver from 14 CFR 91.855 and 91.865. The requested waiver
would allow AirTran to import Stage 2 airplanes from foreign markets,
and begin and continue operation with an all Stage 2 fleet beyond the
interim compliance date of December 31, 1994.
The petitioner requests relief from the following regulations:
Section 91.855 prohibits the operation in the contiguous United
States of any Stage 2 airplane that was not U.S.-owned on November 5,
1990.
Section 91.867 requires that after December 31, 1994, each new
entrant must operate a fleet that is at least 25% Stage 3.
The petitioner applied for relief pursuant to 14 CFR 91.871, which
provides that any new entrant operator subject to Sec. 91.867 may apply
for a waiver from any interim compliance requirement, and must submit
the information described in that section including the applicant's
financial position, the status of its fleet and operations, the reason
the waiver is necessary, and the public interest to be served in
granting a waiver.
The petitioner submitted the following arguments and information in
support of its request for a waiver:
AirTrain does not currently own or operate any aircraft. Its
planned service includes daily passenger flights between Pittsburgh,
Philadelphia, and Detroit. On January 24, 1994, AirTrain was granted a
Certificate of Public Convenience and Necessity by the Department of
Transportation. That certificate is not yet effective, pending
AirTrain's receipt of an air carrier certificate, not yet issued by the
FAA.
AirTrain indicates that its strategic business plan calls for it to
provide the planned service using McDonnell Douglas DC-9 aircraft
exclusively. The petitioner's efforts to locate any suitable DC-9 30/40
series airplanes domestically has been unsuccessful, but it has located
several of them overseas that it can ``more realistically afford at
this stage as a new entrant.'' The petitioner is aware that Sec. 91.855
prohibits the operation of imported airplanes, and seeks relief from
that section. The petitioner also states that to have 25% of its
airplanes be Stage 3 after December 31 of this year ``would be
financially onerous to it as a new entrant, and in addition be
physically impossible to accomplish before December 31, 1994, even if
it were not financially onerous,'' and thus seeks a waiver from that
requirement as well.
The petitioner did not submit a current balance sheet and cash flow
statement as required by Sec. 91.871(c)(1), stating that the
information was not available.
The petitioner states that a grant of the requested relief would be
in the public interest because the public has an unfulfilled need for
the contemplated service, because the commencement of operations will
create jobs in the market cities, because the contemplated service will
be an economical alternative for travel between the market cities,
because failure to grant the requested relief would have an adverse
effect on competition since the public would be ``deprived of an
additional mode of transportation'' between the market cities, because
failure to provide the requested relief would have an adverse effect on
service to small communities surrounding the market cities, and because
failure to grant the requested relief would ``severely limit
competition and free market pricing of air fares'' in the market.
On August 31, 1994, the petitioner supplemented its original
request by submitting an updated copy of its Certificate of Public
Convenience and Necessity.
On October 6, 1994, a summary of the petitioner's request was
published in the Federal Register for public comment. Seven commenters
responded to the notice, including two airport associations, four
operators, and one national environmental organization. All of the
commenters opposed a grant of the requested relief.
The FAA's analysis is as follows:
The FAA has determined that the petitioner has not met the criteria
outlined in 14 CFR 91.871, and that grant of the petitioner's request
for a waiver and other relief is not within FAA's authority and would
not be in the public interest.
The request for relief from Sec. 91.855 is inappropriate. The
prohibition on the operation of foreign-owned aircraft purchased by a
U.S. person in the contiguous United States is contained in Sec. 9309
of the Airport Noise and Capacity Act of 1990 (ANCA) and is known as
the nonaddition rule. The only exemption allowed under ANCA is for an
imported Stage 2 airplane to be brought into the United States to
obtain modifications to meet Stage 3 noise levels. The principles of
that prohibition were incorporated into Sec. 91.855, but the FAA has no
authority to go beyond the single exemption found in the ANCA. Simply,
the FAA cannot grant the relief requested--to permit operation of an
imported Stage 2 airplane in the contiguous United States. The waiver
provision of Sec. 91.871 by its terms applies only to the interim
compliance requirements of Sec. Sec. 91.865 and 91.867.
Even if the petitioner were able to acquire airplanes domestically,
its petition would fail for other reasons. First, it is FAA policy to
consider for the possibility of waiver only those airplanes in
operation by an operator on the date of the petition. In this instance,
the petitioner does not have any airplanes in operation.
Second, it is also FAA policy that no prospective relief be
granted. Section 91.851 defines ``new entrant'' as an air carrier that
begins operating after November 5, 1990. Since the petitioner has not
yet achieved FAA certification to operate, it is not yet operating
under the provisions of Sec. 91.867 to be considered a new entrant or
to ask relief from that regulation.
Further, even if the petition were not inappropriate for these
reasons, it would still fail on it merits. The primary basis of the
petitioner's argument is its ``strategic business plan'' that calls for
the operation of one type of aircraft. The petitioner has noted that
such airplanes are not available domestically, but has chosen to remain
with that plan and seek exemption from a legislative prohibition. The
petition does not contain the required financial information or any
other data concerning acquisition costs to support its statement that
compliance would be financially onerous. Since the petitioner claims to
be a new entrant, it does not have a compliance plan on file, but
neither does the petition include the petitioner's plan for compliance
nor any evidence of how the petitioner would meet future interim
compliance requirements were the requested relief granted.
The FAA has determined that, taken together, these arguments
demonstrate neither reasonableness nor good faith in applying for a
waiver. Instead of changing its business plan to meet the requirements
of a regulation that has been in place since 1991, the petitioner has
requested that it be grandfathered into the compliance schedule as if
it had begun operation already, and then asks that that relief be
extended beyond what would be required if it had commenced operations.
Simply put, if the petitioner cannot affort to commence operation
according to the regulations, the FAA can have little expectation that
the petitioner will ever be able to comply, and the only good faith
action is for the petitioner to adjust its business plans accordingly,
a course of action that the petitioner has already expressed it is
unwilling to take.
Moreover, the petitioner fails to state any reasonable public
interest that would be served by granting the requested relief, if it
were available. The FAA considers full compliance with the interim
compliance requirements to be in the public interest, and any waiver
granted from an interim requirement must reflect a net public benefit
when weighed against noncompliance with the rule. The petitioner has
stated but not shown that there is an ``unfulfilled need'' for the
contemplated service between Philadelphia, Pittsburgh, and Detroit, but
the data it submitted regarding the current available service rebuts
this. While the petitioner states that its contemplated service will be
at much lower fares than currently available, the only evidence is the
petitioner's plan to charge less and its general statements that
dramatic fare reductions have been achievable by other carriers in
other markets.
Taken as a whole, these general statements are not convincing that
the waivers required to achieve this contemplated service in any manner
outweighs the public interest in a quieter environment as established
by Congress and in compliance with the regulations in general. The
petitioner has not presented any logical evidence how the failure to
grant relief could have a negative impact on competition or fares,
since the petitioner is not yet offering any competing service nor has
it presented evidence that it will be able to operate for lower fares;
as yet, there are no aircraft on which to even base cost estimates. The
petitioner's claim of adverse effect on service to small communities
surrounding the market cities is oxymoronic, since considerations of
service to small communities have historically had no relation to
service from the closest large cities. Finally, to allow the petitioner
to begin operation without being subject to the same rules under which
its competition operates would be markedly unfair to the operating
carriers in those markets who have met the requirements with the same
notice and market conditions affecting the petitioner.
Accordingly, the FAA has determined that the petitioner's requested
relief from Sec. 91.855 is outside the authority of the FAA to grant,
that its petition requesting relief under Sec. 91.867 is inappropriate
given its lack of certification and current operation, and that the
arguments presented in its petition do not reflect a good faith attempt
to comply with the regulations and are not in the public interest.
In consideration of the foregoing, I find that the request for a
waiver is not in the public interest. Therefore, by the authority
delegated to me by the Administrator, the petition for a waiver by
AirTran Corporation to Sec. 91.865, pursuant to Sec. 91.871, is hereby
denied.
Issued in Washington, DC on November 17, 1994.
Louise E. Maillett,
Director of Environment and Energy.
[FR Doc. 94-28916 Filed 11-18-94; 3:36 pm]
BILLING CODE 4910-13-M
