E8-3583. Operation of Civil Aircraft of U.S. Registry Outside of the United States

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action amends certain regulations governing U.S. registered aircraft operating beyond the territorial airspace of the United States. This action is necessary to correct an error in the recodification of the regulations concerning general operating and flight rules. The intended effect of this action is to correct an inadvertent error in the regulations.

DATES:

This action is effective February 26, 2008.

FOR FURTHER INFORMATION CONTACT:

Nancy Lauck Claussen, Flight Standards Service, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone: [phone]; facsimile [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

You can get an electronic copy using the Internet by:

(1) Searching the Federal eRulemaking portal at http://www.regulations.gov;​;

(2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/​regulations_​policies/​; or

(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/​fr/​index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling [phone]. Make sure to identify the amendment number or docket number of this rulemaking.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Acting Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Section 44701(a)(5), General Requirements. Under that section, the FAA is charged with prescribing regulations and minimum standards for other practices, methods, and procedure the Acting Administrator finds necessary for safety in air commerce and national security. This regulation is within the scope of that authority because it addresses operational requirements that support aviation safety.

Background

In August 1966, the FAA amended 14 CFR part 91 to prescribe rules that apply to civil aircraft of U.S. registry operating outside of the United States. This final rule made the general operating rules of Subpart A and the maintenance rules of Subpart C of Part 91 applicable to U.S. registered civil aircraft operations outside of, as well as within, the United States. (See 31 FR 8354; June 15, 1966.) Section 91.1, Applicability, was amended by adding paragraph (b)(3), which provided that “Each person operating a civil aircraft of U.S. registry outside of the United States shall * * * Except for §§ 91.15(b), 91.17, 91.38, and 91.43, comply with Subparts A and C of this part so far as they are not inconsistent with applicable regulations of the foreign country where the aircraft is operated or Annex 2 to the Convention on International Civil Aviation.”

On August 18, 1989, the FAA issued a final rule that recodified Part 91 (54 FR 34284). The purpose of this action was to reorganize and clarify existing rules.^[1] The FAA designated new § 91.703—Operations of civil aircraft of U.S. registry outside of the United States, and moved several paragraphs from § 91.1 relating to the operation of U.S. registered aircraft outside the U.S. to the newly established § 91.703. Specifically, paragraph (b)(3) of § 91.1 was moved to § 91.703(a)(3). The FAA did not intend any substantive change to this paragraph.

As recodified, § 91.703 provides that “Each person operating a civil aircraft of U.S. registry outside of the United States shall * * * (3) Except for §§ 91.307(b), 91.309, 91.323, and 91.711, comply with this part so far as it is not inconsistent with applicable regulations of the foreign country where the aircraft is operated or annex 2 of the Convention of International Civil Aviation.” Referring to “this part” instead of referring specifically to subparts A and C in part 91 substantively affects the regulatory requirements. Under the current language, except for the four noted exceptions, all the provisions of part 91 apply to U.S. registered aircraft operating outside of the United States.

The FAA has reviewed this matter, as it applies to the speed restrictions articulated in § 91.117(a).^[2] The current regulatory text of § 91.703(a)(3) makes the speed restrictions of § 91.117(a) applicable to U.S registered civil aircraft when operating outside the United States (and not within a foreign country). We conclude that the final rule in 1989 erroneously changed the requirements and that this result was unintended. This rule corrects that error. The FAA will further review Part 91 to determine whether there are similar issues that need to be addressed.

Good Cause for Immediate Adoption of This Final Rule

On the basis of the above information, the FAA finds that immediate action is necessary to correct the regulations to accurately depict the agency's intentions. As a practical matter, the FAA is aware that most of the affected industry was unaware of the literal effect of the recodification with respect to the speed restrictions contained in § 91.117(a). Until recently, the FAA was not aware of the error, and has proceeded from an operational perspective that the speed restrictions of § 91.117(a) do not apply to U.S. registered aircraft, via § 91.703(a)(3), when operating outside the U.S. (and not within another country's territorial airspace).^[3]

Because the circumstances described in this notice warrant immediate action by the FAA to correct and accurately depict the regulatory requirements, I find that notice and public comment under 5 U.S.C. 553(b) are impracticable and contrary to the public interest. Further, I find that good cause exists for making this rule effective immediately upon publication.

Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT. You can find out more about SBREFA on the Internet at our site, http://www.faa.gov/​regulations_​policies/​rulemaking/​sbre_​act/​.

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. We have determined that there is no new information collection requirement associated with this direct final rule.

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.

International Compatibility

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with 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 differences with these regulations.

Economic Evaluation, Regulatory Flexibility Determination, International Trade Impact Assessment, and Unfunded Mandates Assessment

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 (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. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. 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 likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995).

In conducting these analyses, FAA has determined this rule— (1) Has benefits which do justify its costs, is not a “significant regulatory action” as defined in the Executive Order and is not “significant” as defined in DOT's Regulatory Policies and Procedures; (2) will not have a significant impact on a substantial number of small entities; (3) reduces barriers to international trade; and (4) does not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. These analyses, available in the docket, are summarized below.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

Since this final rule merely corrects an inadvertent error in the regulations, the expected outcome will be a minimal impact with positive net benefits, and a regulatory evaluation was not prepared. FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This final rule corrects an inadvertent error in the regulations. Its economic impact is minimal. Therefore, we certify that this action will not have a significant economic impact on a substantial number of small entities.

Therefore, as the FAA Acting Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and has determined that it will impose no costs on domestic and international entities and thus has a neutral trade impact.

Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million.

This final rule does not contain such a mandate.

Executive Order 13132, Federalism

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we determined that this final rule does not have federalism implications.

Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

List of Subjects in 14 CFR Part 91

• Air traffic control
• 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 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), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180).

2. Amend § 91.703 by revising paragraph (a)(3) to read as follows:

§ 91.703

Operations of civil aircraft of U.S. registry outside of the United States.

(a) * * *

(3) Except for §§ 91.117(a), 91.307(b), 91.309, 91.323, and 91.711, comply with this part so far as it is not inconsistent with applicable regulations of the foreign country where the aircraft is operated or annex 2 of the Convention on International Civil Aviation; and

* * * * *

Issued in Washington, DC on February 15, 2008.

Robert A. Sturgell,

Acting Administrator.

Footnotes

1.  The FAA also made four substantive changes to the regulations during this rulemaking that are not at issue in this rule.

2.  Section 91.117(a) provides that unless otherwise authorized by the Administrator, no person may operate an aircraft below 10,000 feet mean sea level (MSL) at an indicated airspeed of more than 250 knots (288 m.p.h.).

3.  The FAA's Office of the Chief Counsel realized this issue in issuing an interpretation dated October 12, 2005 to Mr. Michael Di Marco, which concludes appropriately that the speed restriction of § 91.117(a) does in fact apply to U.S. registered civil aircraft when operating over the high seas under the current regulations. This interpretation was reaffirmed on April 10, 2007, in the agency's response to Mr. David Shacknai. Concurrent with the adoption of this final rule, the FAA will rescind the interpretation as it is no longer valid.