| [Federal Register: December 16, 1996 (Volume 61, Number 242)]
[Rules and Regulations]
[Page 66181-66186]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[[Page 66181]]
Part VII
Departmenmt of Transportation
Federal Aviation Administration
14 CFR Part 91
Stage 2 Airplane Operations; Final Rule
[[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.
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 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 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 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.
Issued in Washington, DC, on November 21, 1996.
Linda Hall Daschle,
Acting Administrator.
[FR Doc. 31873 Filed 12-13-96; 8:45 am]
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