59756 Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Parts 71 and 97

[Docket No. FAA–2004–19247; Notice No. 

04–12] 

RIN 2120–AI39

Revision of Incorporation by Reference 

Provisions

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA is proposing to 

remove the incorporation by reference 

of certain FAA Orders and terminal 

aeronautical charts from the provisions 

of 14 CFR part 97 and incorporate by 

reference instead instrument procedures 

that are documented on FAA forms. The 

FAA also proposes a conforming 

amendment in 14 CFR part 71. This 

change would ensure that the 

appropriate material is incorporated in 

the FAA’s regulations.

DATES: Send your comments on or 

before November 4, 2004.

ADDRESSES: You may send comments 

identified by docket number FAA–

200X–XXXXX using any of the 

following methods: 

• DOT Docket Web Site: Go to http:/

/dms.dot.gov and follow the instructions 

for sending your comments 

electronically. 

• Government-wide Rulemaking Web 

Site: Go to http://www.regulations.gov

and follow the instructions for sending 

your comments electronically. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

001. 

• Fax: 1–202–493–2251. 

• Hand Delivery: Room PL–401 on 

the plaza level of the Nassif Building, 

400 Seventh Street, SW., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

For more information on the 

rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Privacy: We will post all comments 

we receive, without change, to http://

dms.dot.gov, including any personal 

information you provide. For more 

information, see the Privacy Act 

discussion in the SUPPLEMENTARY

INFORMATION section of this document. 

Docket: To read background 

documents or comments received, go to 

http://dms.dot.gov at any time or to 

Room PL–401 on the plaza level of the 

Nassif Building, 400 Seventh Street, 

SW., Washington, DC, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Schneider, AFS–420, Federal 

Aviation Administration, P.O. Box 

25082, Oklahoma City, OK 73125; 

telephone (405) 954–5852; facsimile 

(405) 954–2528; e-mail 

Thomas.Schneider@faa.gov.

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The FAA invites interested persons to 

participate in this rulemaking by 

submitting written comments, data, or 

views. The FAA also invites comments 

relating to the economic, environmental, 

energy, or federalism impacts that might 

result from adopting the proposals in 

this document. The most helpful 

comments reference a specific portion of 

the proposal, explain the reason for any 

recommended change, and include 

supporting data. The FAA asks that you 

send two copies of written comments. 

The FAA will file in the docket all 

comments we receive, as well as a 

report summarizing each substantive 

public contact with FAA personnel 

concerning this proposed rulemaking. 

The docket is available for public 

inspection before and after the comment 

closing date. If you wish to review the 

docket in person, go to the address in 

the ADDRESSES section of this preamble 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

You may also review the docket using 

the Internet at the Web address in the 

ADDRESSES section. 

Privacy Act: Using the search function 

of our docket Web site, anyone can find 

and read the comments received into 

any of our dockets, including the name 

of the individual sending the comment 

(or signing the comment on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s complete 

Privacy Act Statement in the Federal 

Register published on April 11, 2000 

(65 FR 19477–78) or you may visit http:/

/dms.dot.gov. 

Before acting on this proposal, the 

FAA will consider all comments it 

receives on or before the closing date for 

comments. The FAA will consider 

comments filed late if it is possible to 

do so without incurring expense or 

delay. The FAA may change this 

proposal in light of the comments it 

receives.

If you want the FAA to acknowledge 

receipt of your comments on this 

proposal, include with your comments 

a pre-addressed, stamped postcard on 

which the docket number appears. The 

FAA will stamp the date on the postcard 

and mail it to you. 

Availability of Rulemaking Documents 

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. Be sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

Background 

On December 17, 2002, the FAA 

published a Notice of Proposed 

Rulemaking (NPRM) titled ‘‘Area 

Navigation (RNAV) and Miscellaneous 

Amendments’’ (67 FR 77326; Dec. 17, 

2002). In that NPRM, the FAA proposed 

to revise § 97.20 to remove the 

incorporation by reference (IBR) of 

standard instrument approach 

procedures as described on FAA Forms 

8260–3, 8260–4 and 8260–5. The FAA 

instead proposed to incorporate by 

reference into § 97.20 FAA Orders 

8260.3B, United States Standard for 

Terminal Instrument Procedures 

(TERPS) and 8260.19C, Flight 

Procedures and Airspace, and terminal 

aeronautical charts. Incorporating a 

publication by reference into the Code 

of Federal Regulations means that the 

information contained in that 

publication in fact becomes regulatory. 

Any subsequent modification is a rule 

change and is accomplished by 

rulemaking under the Administrative 

Procedures Act. 

On April 8, 2003, the FAA adopted 

the final rule titled ‘‘Designation of 

Class A, B, C, D, and E Airspace Areas; 

Air Traffic Service Routes; and 

Reporting Points’’ (68 FR 16943; April 8, 

2003), which adopted the proposed 

amendments to 14 CFR 97.20. Upon 

staff review, the FAA concluded that the 

incorporation by reference of FAA 

Orders 8260.3B and 8260.19C and the 

terminal aeronautical charts was in error 

and resulted in the inappropriate 

designation of certain material as 

regulatory. 

Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Proposed Rules 59757

Section 97.20 

Specifically, FAA Order 8260.3 

provides agency policy and 

standardized methods for designing 

instrument flight procedures. The FAA 

follows this policy for the preparation, 

approval, and promulgation of terminal 

instrument procedures. FAA Order 

8260.19, provides guidance for 

administering the Flight Procedure and 

Airspace Program. It also defines 

responsibilities, establishes criteria and 

provides standards to assure effective 

and orderly processing of all types of 

procedure actions. 

Section 91.175(a) requires a pilot to 

use an instrument procedure prescribed 

in part 97, unless otherwise authorized 

by the FAA, when it is necessary to 

conduct an instrument letdown to a 

civil airport. Consistent with this 

requirement, the FAA, via rulemaking, 

adopts instrument procedures by 

amending § 97.20. While the adopted 

instrument procedures become part of 

§ 97.20, the agency policy and criteria 

for designing, preparing and approving 

the procedure should not become part of 

§ 97.20, as they are not regulatory 

actions and should not be incorporated 

by reference into part 97. Similarly, it is 

not appropriate to incorporate by 

reference terminal aeronautical charts, 

as those charts merely depict the 

instrument procedures for use by the 

pilot. 

The FAA is proposing to revise 

§ 97.20 by removing the IBR of FAA 

Orders 8260.3 and 8260.19. 

Additionally, the IBR of terminal 

aeronautical charts would be removed. 

The FAA instead would incorporate by 

reference the instrument procedures 

detailed on FAA Forms 8260–3, 8260–

4, 8260–5 and 8260–15A into § 97.20. 

The proposed text for § 97.20 would 

set forth the FAA Forms that contain the 

instrument procedures that would be 

IBR, and provide information to the 

public as to where the procedures may 

be examined. It also provides 

information on the availability of 

aeronautical charts depicting standard 

instrument procedures. 

The FAA currently coordinates all 

new and revised TERPS criteria and 

procedures in Orders 8260.3 and 

8260.19 with those organizations 

affected, both public and private, in 

accordance with the coordination 

process contained in FAA Order 1320.1, 

FAA Directives Systems. In addition, the 

agency coordination process for these 

two orders includes any person 

requesting the opportunity to comment. 

Section 71.11 

The FAA proposes to delete 

paragraph (b), and the existing 

paragraph (c) would be redesignated as 

paragraph (b). This section would 

conform to § 97.20, which would 

remove the IBR of FAA Orders 8260.3 

and 8260.19. 

The Director of the Federal Register 

must approve all rules that incorporate 

by reference material into the Code of 

Federal Regulations. If this rule is 

adopted as proposed, the FAA will 

submit a final rule to the Director of the 

Federal Register seeking approval to 

incorporate by reference into § 97.20 the 

instrument procedures on FAA forms.

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. The 

FAA has determined that there is no 

new information collection requirement 

associated with this proposed rule. 

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 practicable. The FAA 

has determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these proposed 

regulations. 

Economic Assessment, Regulatory 

Flexibility Determination, 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 

private sector, of $100 million or more 

annually (adjusted for inflation). 

We determined this proposed rule (1) 

has benefits that justify its costs, 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; (2) will not have a 

significant economic impact on a 

substantial number of small entities; (3) 

will not have any effect on barriers to 

international trade; and (4) does not 

impose an unfunded mandate on state, 

local, or 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 proposal does not 

warrant a full evaluation, a statement to 

that effect and the basis for it is 

included in proposed regulation. Since 

this NPRM is administrative in nature 

removing inappropriate interpretation 

by reference material from FAA 

regulations and adding appropriate 

incorporation by reference material, 

these changes will not impact the 

integrity of existing rules. As a result, 

this proposed rule will have a minimal 

economic impact. The FAA requests 

comments with supporting justification 

regarding the FAA determination of 

minimal impact. 

Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(RFA) 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 explain the rationale 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 

59758 Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Proposed Rules 

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 proposed rule is administrative 

in nature correcting an earlier action 

that resulted in an inappropriate 

designation of certain material as 

regulatory. Consequently, the FAA 

certifies the proposed 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 

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 

rulemaking and has determined that it 

will impose the same costs on domestic 

and international entities and thus have 

a neutral trade impact. 

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 an expenditure 

of $100 million or more (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 NPRM does not contain such a 

mandate. The requirements of Title II of 

the Act do not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this proposed 

rule under the principles and criteria of 

Executive Order 13132, Federalism. The 

FAA has determined that this action 

would not have a substantial direct 

effect 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, and 

therefore would not have federalism 

implications. 

Environmental Analysis 

FAA Order 1050.1D defines FAA 

actions that may be categorically 

excluded from preparation of a National 

Environmental Policy Act (NEPA) 

environmental impact statement. In 

accordance with FAA Order 1050.1D, 

appendix 4, paragraph 4(j), this 

proposed rulemaking action qualifies for 

a categorical exclusion. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this NPRM 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

FAA has 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 

14 CFR Part 71 

Airspace, Navigation (air). 

14 CFR Part 97 

Air traffic control, Airports, 

Navigation (air), Weather.

The Proposed Amendments 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend chapter I of title 14, 

Code of Federal Regulations, as follows:

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

1. The authority citation for part 71 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E.O. 10854, 24 FR 9565, 3 CFR 1959–

1963 Comp., p 389.

§ 71.11 [Amended] 

2. Amend § 71.11 by removing 

paragraph (b) and redesignating 

paragraph (c) as paragraph (b).

PART 97—STANDARD INSTRUMENT 

APPROACH PROCEDURES 

3. The authority citation for part 97 

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40106, 

40113, 40114, 40120, 44502, 44514, 44701, 

44719, and 44721–44722.

4. Revise § 97.20 to read as follows:

§ 97.20 General. 

(a) This subpart prescribes standard 

instrument procedures based on the 

criteria contained in FAA Order 8260.3, 

U.S. Standard for Terminal Instrument 

Procedures (TERPs), and other related 

Orders in the 8260 series that also 

address instrument procedure design 

criteria. 

(b) Standard instrument procedures 

and associated supporting data adopted 

by the FAA are documented on FAA 

Forms 8260–3, 8260–4, 8260–5, and 

8260–15A, and were approved for 

incorporation by reference by the 

Director of the Federal Register pursuant 

to 5 U.S.C. 552(a) and 1 CFR Part 51. 

The standard instrument procedures are 

available for examination at the Rules 

Docket (AGC–200) and at the National 

Flight Data Center, 800 Independence 

Avenue, SW., Washington, DC 20590, 

and at the Office of the Federal Register, 

800 North Capitol Street, NW., suite 

700, Washington, DC. 

(c) Standard instrument procedures 

are depicted on aeronautical charts 

published by the FAA National 

Aeronautical Charting Office and these 

charts are available for purchase from 

the FAA’s National Aeronautical 

Charting Office, Distribution Division, 

6303 Ivy Lane, Suite 400, Greenbelt, MD 

20770.

Issued in Washington, DC, on September 

29, 2004. 

John M. Allen, 

Acting Director, Flight Standards Service.

[FR Doc. 04–22376 Filed 10–4–04; 8:45 am] 

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