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###### Department of Transportation

###### Federal Aviation Administration

# AGENCY:

Federal Aviation Administration, DOT.

# ACTION:

Notice of statutory changes.

# SUMMARY:

The FAA is publishing notice of further changes to the Airport Noise and Capacity Act that except certain airplanes from the law and allow operation of Stage 2 airplanes after December 31, 1999, under specified circumstances. This notice is necessitated by Congressional action taken in April 2000 to modify the statutory changes adopted in November 1999. This notice explains the effect of the changes.

# FOR FURTHER INFORMATION CONTACT:

                        Mr. Thomas Connor, Manager, Noise Division (AEE-100), Office of Environment and Energy, FAA, 800 Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-8933, fax (202) 267-5594, email                         *Thomas. Connor@faa.gov.*

# SUPPLEMENTARY INFORMATION:

## Background

The Airport Noise and Capacity Act of 1990 (ANCA) prohibits the operation of civil subsonic turbojet Stage 2 airplanes over 75,000 pounds in the contiguous United States after December 31, 1999. The original version of the law did not distinguish airplanes by type of certification or operation. The waiver provisions of the original law are very limited, and address only limited revenues operation of Stage 2 airplanes by U.S. air carriers.

                    On November 29, 1999, the President signed into law certain changes to ANCA that affect operators of Stage 2 airplanes. The prohibit on revenue operations of Stage 2 airplanes after December 31, 1999, remained in effect. The Federal Aviation Administration (FAA) was not granted any new authority to allow anyone to operate at Stage 2 airplane in revenue service after December 31, 1999. The changes to the law were summarized in the                     **Federal Register**                     document published December 17, 1999 (64 FR 70571).                

                    On April 5, 2000, new authorizing legislation became effective. That bill, the Wendell H. Ford Aviation investment and Reform Act for the 21st Century, Public Law 10-181 (Apr. 5, 2000; 114 Stat. 61) (AIR 21) repealed the legislative changes that were adopted in November 1999 and were described in the                     **Federal Register**                     notice cited above.                           ( print page 30473)                        The repealed provisions were re-enacted in AIR 21 with two additions.                

## New Provisions

### Foreign Air Carrier Waivers

The original language of ANCA did not allow foreign air carriers to apply for a waiver from the Stage 2 prohibition in the law. The AIR 21 amendment expanded the waiver provision, 49 U.S.C. 47528(b), to allow foreign air carriers, for a limited time, to apply for a waiver from the Stage 3 aircraft requirement of 49 U.S.C. 47528(a). The amendment requires that a foreign air carrier seeking a waiver must apply “not later than * * * the 15th day following the date of enactment of [AIR 21].” The law was enacted April 5, 2000; foreign air carriers seeking a waiver from section 47528(a) must have filed an application for waiver no later than April 20, 2000.

                    The FAA will consider any waiver request filed by a foreign air carrier under the same criteria that were used to evaluate requests from domestic air carriers. Those criteria are published at 14 CFR 91.873, and were summarized in a                     **Federal Register**                     notice published on March 2, 1998 (63 FR 10123).                

### Relationship to Part 161 Actions

In AIR 21, Congress re-enacted the provisions that direct the Secretary of Transportation to permit certain nonrevenue flights to Stage 2 airplanes over 75,000 pounds, 49 U.S.C. 47528(f). A new paragraph (g), which reads as follows, was added to that section:

(g) Statutory  Construction.—Nothing in this section may be construed as interfering with, nullifying, or otherwise affecting determinations made by the Federal Aviation Administration, or to be made by the Administration with respect to applications under part 161 of title 14, Code of Federal Regulations, that were pending on November 1, 1999.

Promulgated by the FAA in 1991 pursuant to ANCA, 14 CFR part 161 is titled “Notice and Approval of Airport Noise Access Restrictions,” and provides a procedure under which local airport authorities may impose restrictions on Stage 2 and Stage 3 airplanes. On November 1, 1999, there was one restriction on operation of Stage 2 airplanes that had been adopted by a local airport authority but had not yet become effective. Prior to November 1, 1999, the FAA had made a determination that this local restriction was pre-empted by Federal law. The FAA understands new paragraph (g) to mean that this prior determination, and any future determination regarding the local restriction, are not affected by the new provisions added to section 47528 by AIR 21.

                    The FAA has consistently held that the statutory waiver authority it was granted in ANCA in 1990 (49 U.S.C. 47528(b)) preempts any conflicting restriction adopted by a local airport authority. Similarly, the authority that permits nonrevenue Stage 2 flights under section 47528(f) also preempts any conflicting local regulations. This position is affirmed by the AIR 21 language, in that the authority given in section 47528(f) is not discretionary. The law states that “the Secretary                     *shall permit*                    ” Stage 2 flights that fall under one of the categories listed in the law (emphasis added). The FAA's interpretation of the new language in paragraph (g) is consistent with the non-discretionary nature of the FAA's authority under section 47528(f).                

## Previous Statutory Changes

                    As discussed above, the statutory change that allows the FAA to grant special flight authorizations for the nonrevenue operation of certain Stage 2 airplanes was re-enacted in AIR 21. Accordingly, except for the additions noted above, the explanations provided in the FAA's December 17, 1999                     **Federal Register**                     notice remain applicable, and the application procedure and form have not been changed.                

The FAA still plans to amend its regulations at 14 CFR part 91, subpart I, that are affected by the changes to its statutory authority. The reasons for these amendments remain the same as published in December 1999.

The FAA was required under the November 1999 legislation, and again by AIR 21, to publish notice of the procedures it will use to implement the Stage 2 nonrevenue flight authority. This notice fulfills that requirement by informing affected persons that the application procedure for a special flight authorization for nonrevenue Stage 2 flight remains as published in December 1999. 

                    The special flight authorization application can be obtained on the FAA's web site (http://                    *www.aee.faa.gov/​sfa/​*), or by fax or mail by contacting the Office of Environment and Energy at the number listed in the For Further Information Contact section above. The FAA reminds operators that requests for special flight authorizations for nonrevenue Stage 2 flights should be filed 30 days before the planned flight.                

Operators of Stage 2 airplanes that have any questions concerning their rights or requirements under AIR 21 language are encouraged to contact the FAA as soon as possible.

Issued in Washington, DC on May 2, 2000.

Paul R. Dykeman,

Deputy Director, Office of Environment and Energy.

[FR Doc. 00-11325  Filed 5-10-00; 8:45 am]

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