[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Rules and Regulations]
[Pages 13627-13628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6224]
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DEPARTMENT OF TRANSPORTATION
14 CFR Part 91
[Docket No. 28134]
Policy on Use of Interchange Agreements for Noise Compliance
AGENCY: Federal Aviation Administration, DOT.
ACTION: Policy statement.
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SUMMARY: This document sets forth a statement of Federal Aviation
Administration (FAA) policy concerning the use of airplane sharing
agreements to accomplish compliance with the Stage 3 noise transition
regulations. As a result of its experience during the first interim
compliance date, the FAA has become aware of a noise compliance concern
involving such agreements. This policy statement is intended to provide
operators that participate in airplane sharing agreements with notice
and guidance on how the FAA will view such agreements for compliance
with the Stage 3 transition regulations.
DATES: This policy is effective on March 14, 1995.
Comments concerning this policy must be received on or before
September 11, 1995.
ADDRESSES: Send comments on this notice to: Federal Aviation
Administration (FAA), Office of the Chief Counsel, Attn: Rules Docket,
AGC-200, Docket No. 28134, 800 Independence Avenue SW., Washington, DC
20591.
Comments may be examined or delivered in person at the above
address in room 916G, weekdays between 8:30 a.m. and 5 p.m., except
Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Mr. William W. Albee, Policy and Regulatory Division (AEE-300), Office
of Environment and Energy, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3553, facsimile (202) 267-5594.
SUPPLEMENTARY INFORMATION: Sections 91.865 and 91.867 of 14 CFR each
required that as of December 31, 1994, an operator of Stage 2 airplanes
either reduce the number of Stage 2 airplanes it operates by 25% from
its base level, achieve a fleet mix of airplanes that is 55% Stage 3
airplanes, or in the case of a new entrant, achieve a fleet mix that is
25% Stage 3 airplanes. These same regulations require that, after the
next interim compliance date, December 31, 1996, each operator must
either reduce the number of Stage 2 airplanes it operates by 50% from
its base level or achieve a fleet mix that is 65% Stage 3 airplanes
(or, 50% for new entrants). The FAA's experience with the first interim
compliance date has raised a serious concern involving airplane
interchange agreements and other arrangements that result in an
individual airplane being enumerated on the operations specifications
of more than one operator. To ensure that the objectives of the 1990
Airport Noise and Capacity Act and the implementing regulations are not
compromised during the interim compliance period, to ensure that the
benefits are fully realized, and to prevent foreseeable future
difficulties in compliance, the FAA is formally stating its policy for
the manner in which Stage 3 airplanes are ``counted'' for compliance
purposes.
Recent analysis of operators' compliance reports for 1994, which
are required under 14 CFR 91.875, has revealed that some operators
appear to have entered into Stage 3 airplane sharing agreements solely
or primarily for the purpose of achieving compliance with the first
interim compliance deadline of the Stage 3 transition rules, December
31, 1994. These airplane sharing agreements take several forms,
including formal interchange agreements between operators and instances
of two or more operators leasing the same airplane from a lessor. This
results in the same Stage 3 airplane being counted for compliance by
two or more operators, depending on the sharing arrangement. The FAA
views this result to directly contradict the intent and objectives the
Airport Noise and Capacity Act and its implementing regulations.
Under such arrangements, a single Stage 3 airplane could be used to
support the presence of an almost limitless number of Stage 2
airplanes. Allowing a proliferation of such sharing arrangements for
the purpose of noise rule compliance can be expected to result in the
delay of Stage 2 airplane retirement or modification by the
participating operators. Such delays not only reduce the anticipated
benefits of the Congressionally mandated interim compliance period, but
have the more insidious effect of operators further delaying the
business and financial decisions and actions necessary to achieve full
compliance by 1999. If these paper-only compliance situations
[[Page 13628]] are allowed to continue, the FAA foresees that the
underlying delays and failures to plan and implement real compliance
may easily result in an unacceptable level of actual compliance and a
large number of waiver applications based on arguments of financial
hardship, and airplane and hushkit unavailability as participating
operators are forced into complete compliance at the last minute.
Accordingly, the FAA is formally notifying operators of its policy
that an individual Stage 3 airplane may be counted only in the fleet of
one operator for purposes of compliance with the Stage 3 transition
rules, regardless of the number of operators participating in the use
of the airplane. This single counting does not affect the actual use of
airplanes under interchange agreements; they may simply only be counted
in the fleet of one of the participating operators for noise compliance
purposes.
Policy Statement
For the purpose of compliance with Secs. 91.865 or 91.867, the FAA
will not count an individual Stage 3 airplane in the fleet of more than
one operator.
This policy statement does not effect any operator's compliance
with the December 31, 1994, compliance date. Thus, if an operator used
shared airplanes to achieve compliance in 1994, that compliance is
considered valid until December 31, 1996.
After the effective date of this policy, however, an operator may
not use any type of airplane sharing agreement, regardless of the date
of the agreement, to increase the number of Stage 2 airplanes it
operates. As an example, a new entrant's fleet consists of three Stage
2 airplanes, and two Stage 3 airplanes that are also on the operations
specifications of another operator. For purposes of the December 31,
1994, compliance date, that new entrant will be considered in
compliance. However, that new entrant operator may not use the presence
of the two shared Stage 3 airplanes to support the addition of three
more Stage 2 airplanes to its fleet after the date of this policy
statement, even though, with the addition, it would ``remain'' in
compliance with Sec. 91.867 by maintaining a fleet that is 25% Stage 3
airplanes. The FAA will not allow the presence of ``shared'' Stage 3
airplanes act as support for additional Stage 3 airplanes after the
effective date of this policy.
The above example presumes that the new entrant attempting to add
Stage 2 airplanes is not the operator that is claiming the Stage 3
airplane as its own. If the FAA finds a Stage 3 airplane that is
reported in the fleet of more than one operator, the FAA will not count
it in the fleet of any of the reporting operators for noise compliance
purposes until the airplane is declared by one of the operators as
belonging in its fleet alone. The FAA will not mitigate disputes
between operators involved in any airplane sharing agreement. The FAA
presumes that the operators involved in a shared airplane agreement
will reach their own agreement on which operator gets to count the
airplane for compliance purposes. While the FAA anticipates that in
most cases the reporting operator will be the owner of lessor under an
interchange agreement, any agreement between the sharing operators that
results in one operator counting the airplanes is acceptable to the
FAA.
Most importantly, for purposes of the December 31, 1996, interim
compliance deadline, no shared airplanes will be allowed to count in
the fleet of more than one operator, regardless of the date of the
sharing agreement, and regardless of whether the shared arrangement was
found valid for compliance with the 1994 compliance date. Thus,
operators that achieved compliance with the 1994 compliance date by
means of shared Stage 3 airplanes are under notice that the
continuation of the same arrangement or any new arrangement will not
support compliance in with the December 31, 1996, requirement.
The FAA is formally publishing this policy at this time to give all
affected operators the maximum amount of time to achieve compliance
with the December 31, 1996 compliance date without the use of shared
Stage 3 airplanes. As stated previously, the FAA has only very recently
become aware of these arrangements and their use for compliance as the
required reports for 1994 have been filed and analyzed, and it is only
recently that the FAA has determined the serious negative consequences
of allowing such practices to continue. However, the FAA determined
that, in the interest of fairness and the lack of a formal written
policy before this date, such agreements that were used to comply with
the 1994 compliance date would not be disallowed retroactively. This
policy statement is intended to prevent the further use of such
agreements for noise compliance manipulation and preclude the
proliferation of such agreements as the perceived ``benefit'' is
realized.
Shared Stage 2 Airplanes
The FAA is also aware that there are existing sharing agreements
for Stage 2 airplanes that result in Stage 2 airplanes being listed on
the operations specifications of more than one operator. To further the
goals of the ANCA and its implementing regulations, the FAA will
continue to count a Stage 2 airplane as part of the fleet of each of
the operators sharing it. This is the method used in the compliance
calculations for the 1994 compliance date, and will not affect the
actual use of any such shared Stage 2 airplane by the participating
operators.
Further, if a shared Stage 2 airplane was used to establish base
level in the fleet of more than one operator by means of its presence
on the operations specifications of the sharing operators during the
appropriate period, the establishment of such base level is not
affected. If the shared Stage 2 airplane is eliminated from one or all
of the fleets of the operators participating in the sharing agreement,
that removal may count for compliance purposes for all of the operators
that remove it from their operations specifications.
In the event that any operator participating in the sharing of a
Stage 2 airplane restricts its operations specifications to preclude
the operation of that airplane into the contiguous United States. To
achieve compliance, all other participating operators are also
precluded from operating that airplane in the contiguous United States.
These policies concerning Stage 2 and Stage 3 airplanes apply to
all operators of aircraft affected by the Stage 3 transition
regulations, regardless of whether the operators are U.S. or non-U.S.,
and regardless of the level of formality of the agreement under which
the subject airplanes are shared.
Comments concerning the effect of this policy on individual
operators and their compliance with the Stage 3 transition regulations
should be submitted to the docket established for this policy
statement; the FAA will consider all comments received and refine the
policy if warranted. Operators that have individual questions
concerning the effect of this policy on their operations and compliance
may submit written inquiries to the individual listed in the FOR
FURTHER INFORMATION CONTACT paragraph above.
Issued in Washington, DC on March 9, 1995.
Paul R. Dykeman,
Acting Director of Environment and Energy.
[FR Doc. 95-6224 Filed 3-13-95; 8:45 am]
BILLING CODE 4910-13-M
