59752 Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 91

[Docket No. FAA–2004–19246; Amendment 

Nos. 91–284] 

RIN 2120–AI40

Flight Limitation in the Proximity of 

Space Flight Operations

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Final rule.

SUMMARY: This action makes editorial 

changes to current FAA regulations 

regarding temporary flight restrictions 

near space flight operations. 

Specifically, this action removes 

references to the ‘‘Department of 

Defense (DOD) Manager for Space 

Transportation System Contingency 

Support Operations.’’ This action does 

not change the intent of the existing 

rule.

DATES: This action is effective on 

November 4, 2004.

FOR FURTHER INFORMATION CONTACT:

Sheri Edgett-Baron, Airspace and Rules, 

Office of Systems Operations and 

Safety, Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Washington, DC 20591; 

telephone (202) 267–9354.

SUPPLEMENTARY INFORMATION: 

Availability of Final Rule 

You can get an electronic copy using 

the Internet by: 

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) Web page 

(http://dms.dot.gov/search

(2) Visiting the Office of Rulemaking’s 

Web page at http://www.faa.gov/avr/

arm/index.cfm; or 

(3) Accessing the Government 

Printing Office’s Web page at http://

www.access.gpo.gov/su_docs/aces/

aces140.html. 

You can also get a copy by submitting 

a request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. Make sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

Justification for Proceeding Without a 

Notice 

The FAA is issuing this action 

without notice and opportunity to 

comment under the authority of Section 

4(a) of the Administrative Procedure 

Act, 5 United States Code (U.S.C.) 

553(b). Section 553(b) allows the FAA to 

issue a final rule without notice and 

comment when the agency, for good 

cause, finds that notice and public 

procedure are ‘‘impracticable, 

unnecessary or contrary to the public 

interest.’’ In this instance, public 

comment and notice are unnecessary. 

The change in this final rule merely 

removes a reference to a department 

now out of existence. This change will 

not have a negative effect on safety and 

does not change the original intent of 

the rule. Because this is an editorial 

change, the FAA believes the public 

will not have a substantial interest in 

this rulemaking. 

Background and Discussion of the Rule 

Currently, regulations prohibit aircraft 

from operating within certain areas 

except when authorized by Air Traffic 

Control (ATC) or the DOD Manager for 

Space Transportation System 

Contingency Support Operations. These 

temporary flight restricted areas are 

designated according to 14 CFR 91.143 

and the information made available 

through the Notice to Airmen (NOTAM) 

system. Site launch operators and 

launch licensees are required through 

the conditions of their license, or their 

regulations, to comply with all FAA 

rules and NOTAMs. During the times 

that a Space Flight Operation NOTAM 

is in effect, ATC may authorize aircraft 

to fly in the designated space flight area. 

Any such authorization could result in 

a hold for a launch operator. The ATC, 

as a matter of practice, will coordinate 

with the entity managing the space 

flight operation. Entities conducting the 

space flight operation may be private or 

federal. 

This action is an administrative 

update and merely removes a reference 

to the Department of Defense (DOD) 

manager for space transportation system 

contingency support operations. We 

have been informed by the DOD that 

this office no longer exists. 

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 

advise 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 FOR FURTHER

INFORMATION CONTACT. You can find out 

more about SBREFA on the Internet at 

our site, http://www.gov/avr/arm/

sbrefa.htm. For more information on 

SBREFA, e-mail us at 9–AWA–

SBREFA#@faa.gov.

Paperwork Reduction Act 

There are no new requirements for 

information collection associated with 

this amendment. An agency may not 

conduct or sponsor and a person is not 

required to respond to a collection of 

information 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 International Civil 

Aviation Organization (ICAO) Standards 

and Recommended Practices to the 

maximum extent practical. We have 

determined there are no ICAO 

Standards and Recommended Practices 

that correspond to these this rule. 

Economic Assessment, Regulatory 

Flexibility Determination, International 

Trade Impact Assessment, and 

Unfunded Mandates Assessment 

Executive Order 12866 directs each 

Federal agency to propose or adopt a 

regulation only upon a reasoned 

determination the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (19 U.S.C. 2531–2533) 

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 also requires 

agencies to consider international 

standards and, where appropriate, use 

them as the basis of U.S. standards. 

Fourth, the Unfunded Mandates Reform 

Act of 1995 (Public Law 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.) 

We 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) 

will reduce barriers to international 

trade; and (4) does not impose an 

unfunded mandate on state, local, or 

Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Rules and Regulations 59753

tribal governments, or on the private 

sector. 

However, for regulations with an 

expected minimal impact the abovespecified analyses are not required. The 

Department of Transportation Order 

DOT 2100.5 prescribes policies and 

procedures for simplification, analysis, 

and review of regulations. If it is 

determined that the expected impact is 

so minimal that the rule does not 

warrant a full evaluation, a statement to 

that effect and the basis for it is 

included in the rule. Since this rule is 

strictly administrative in nature 

involving editorial changes that do not 

change the intent of the existing rule, 

the expected outcome is to have a 

minimal impact. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act (RFA) 

of 1980, establishes ‘‘as a principle of 

regulatory issuance that agencies shall 

endeavor, consistent with the objective 

of the rule and of applicable statutes, to 

fit regulatory and informational 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

regulation.’’ To achieve that principle, 

the RFA requires agencies to solicit and 

consider flexible regulatory proposals 

and to explain the rational for their 

actions. 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 proposed or final 

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 proposed or final 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 in not required. The 

certification must include a statement 

providing the factual basis for this 

determination, and the reasoning should 

be clear. 

This rule is an administrative change 

only involving editorial changes that do 

not change the intent of existing rules. 

It deletes a reference to the ‘‘Department 

of Defense (DOD) Manager for Space 

Transportation System Contingency 

Support Operations’’ which no longer 

exists. Consequently, the FAA certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or 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 rulemaking 

and has determined that it will have 

only a domestic impact and therefore no 

effect on any trade-sensitive activity.

Unfunded Mandates Assessment 

The Unfunded Mandates Reform Act 

of 1995 (the Act), is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act 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 a $100 million or 

more expenditure (adjusted annually for 

inflation) 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 $120.7 

million in lieu of $100 million. 

This final rule does not contain such 

a mandate. The requirements of Title II 

do not apply. 

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 distributing 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 final rule 

qualifies for the categorical exclusion 

identified in paragraph 4(j) and involves 

no extraordinary circumstances. 

Energy Impact 

The energy impact has been assessed 

in accordance with the Energy Policy 

and Conservation Act (EPCA Pub. L. 94–

163, as amended (42 U.S.C. 6362) and 

FAA Order 1053.1). It has been 

determined that this final rule is not a 

major regulatory action under the 

provision of the EPCA.

List of Subjects in 14 CFR Part 91 

Air traffic control, Aircraft, Airmen, 

Airports, Aviation safety.

The Amendment

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends Part 91 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, 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. Section 91.143 is revised to read as 

follows:

§ 91.143 Flight limitation in the proximity 

of space flight operations. 

When a Notice to Airmen (NOTAM) 

is issued in accordance with this 

section, no person may operate any 

aircraft of U.S. registry, or pilot any 

aircraft under the authority of an airman 

certificate issued by the Federal 

Aviation Administration, within areas 

designated in a NOTAM for space flight 

operation except when authorized by 

ATC.

Issued in Washington, DC, on September 

29, 2004. 

Marion Blakely, 

Administrator.

[FR Doc. 04–22375 Filed 10–4–04; 8:45 am] 

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