36002 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 187

[Docket No. FAA–00–7018; Amendment No.

187–11]

RIN 2120–AG17

Fees for FAA Services for Certain

Flights

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Interim final rule with request

for comments; notice of public meeting.

SUMMARY: This document establishes

fees for FAA air traffic and related

services for certain aircraft that transit

U.S.-controlled airspace but neither take

off from, nor land in, the United States.

This action will allow the FAA to

recover through fees the costs it incurs

in providing these services. The FAA is

requesting comments concerning the fee

schedule and the fee collection process.

In addition, the FAA is announcing a

public meeting on the Interim Final

Rule to provide an additional

opportunity for the public to comment.

DATES: Effective date August 1, 2000.

Comments must be received on or

before October 4, 2000. The public

meeting will be held on June 29, 2000.

ADDRESSES: Comments on this

document should be mailed or

delivered, in duplicate, to: U.S.

Department of Transportation Dockets,

Docket No. FAA–00–7018, 400 Seventh

Street SW., Room Plaza 401,

Washington, DC 20590. Comments may

be filed and examined in Room Plaza

401 between 10 a.m. and 5 p.m.

weekdays, except Federal holidays.

Comments also may be sent

electronically to the Dockets

Management System (DMS) at the

following Internet address: http://

dms.dot.gov/ at any time. Commenters

who wish to file comments

electronically should follow the

instructions on the DMS web site.

The public meeting will be held at the

Holiday Inn Capitol, 550 C Street, SW.,

Washington, DC 20024; Registration:

8:30 a.m.; Meeting: 9 a.m.–4 p.m.

FOR FURTHER INFORMATION CONTACT:

Randall Fiertz, Office of Performance

Management, (APF–1), Federal Aviation

Administration, 800 Independence

Avenue, SW., Washington, DC 20591;

telephone (202) 267–7140; fax (202)

493–4191.

Requests to present a statement at the

public meeting on the Fees for FAA

Services for Certain Flights Interim

Final Rule and questions regarding the

logistics of the meeting should be

directed to Judy Courbois, Office of

Rulemaking (ARM–102), Federal

Aviation Administration, 800

Independence Avenue, SW.,

Washington, DC 20591, telephone (202)

267–9783; fax (202) 267–5075.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in this rule by submitting

such written data, views, or arguments

as they may desire. Comments relating

to the environmental, energy,

federalism, or economic impact that

might result from adopting the rules in

this document also are invited. The

FAA specifically seeks comments on the

fee schedule, formulas used to

determine the cost per unit, the

associated collection process, and the

scope of services for which costs will be

recovered. Comments must identify the

regulatory docket or amendment

number and be submitted in duplicate

to the DOT Rules Docket address

specified above.

All comments received, as well as a

report summarizing each substantive

public contact with FAA personnel

concerning this rulemaking, will be

filed in the docket. The docket is

available for public inspection before

and after the comment closing date. All

comments received on or before the

closing date will be considered by the

Administrator before taking final action

on this rulemaking. Comments filed late

will be considered as far as possible

without incurring expense or delay. The

proposals in this document may be

changed in light of the comments

received.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this document

must include a pre-addressed, stamped

postcard with those comments on which

the following statement is made:

‘‘Comments to Docket No. FAA–00–

7018.’’ The postcard will be date

stamped and mailed to the commenter.

The 120-day comment period is

intended to allow the international

commenters sufficient time to submit

comments.

In order to give the public an

additional opportunity to comment on

the Interim Final Rule, the FAA is

planning a public meeting. Because of

this additional opportunity to comment

on the Interim Final Rule, the FAA does

not intend to extend the closing date for

comments.

Requests from persons who wish to

present oral statements at the public

meeting on Fees for FAA Services for

Certain Flights Interim Final Rule

should be received by the FAA no later

than June 22, 2000. Such requests

should be submitted to Judy Courbois,

as listed in the section titled FOR

FURTHER INFORMATION CONTACT. Requests

received after June 22, 2000, will be

scheduled if time is available during the

meeting; however, the names of those

individuals may not appear on the

written agenda. The FAA will prepare

and make available at the meeting an

agenda listing the scheduled speakers.

To accommodate as many speakers as

possible, the amount of time allocated to

each speaker may be less than the

amount of time requested. Any person

desiring to have available audiovisual

equipment should notify the FAA when

requesting to be placed on the agenda.

Public Meeting Procedures

The public meeting will be held on

June 29, 2000, at the Holiday Inn

Capitol, 550 C Street, SW., Washington,

DC 20024; Registration: 8:30 a.m.;

Meeting: 9 a.m.–4 p.m.

The following procedures are

established to facilitate the public

meeting on the Interim Final Rule:

1. There will be no admission fee or

other charge to attend or to participate

in the public meeting. The meeting will

be open to all persons who have

requested in advance to present

statements or who register on the day of

the meeting (between 8:30 a.m. and 9

a.m.) subject to availability of space in

the meeting room.

2. The public meeting may adjourn

early if scheduled speakers complete

their statements in less time than is

scheduled for the meeting.

3. The FAA will try to accommodate

all speakers; therefore, it may be

necessary to limit the time available for

an individual or group.

4. Representatives of the FAA will

conduct the public meeting. A panel of

FAA personnel involved in this issue

will be present.

5. Participants should address their

comments to the panel. No participant

will be subject to cross-examination by

any other participant.

6. Sign and oral interpretation can be

made available at the meeting, as well

as an assistive listening device, if

requested no later than 1 week before

the meeting.

7. The meeting will be recorded by a

court reporter. A transcript of the

meeting and any material accepted by

the panel during the meeting will be

included in the public docket (Docket

No. FAA–00–7018). Any person who is

interested in purchasing a copy of the

transcript should contact the court

reporter directly. This information will

be available at the meeting.

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 36003

8. The FAA will review and consider

all material presented by participants at

the public meeting. Position papers or

material presenting views or

information related to the Interim Final

Rule may be accepted at the discretion

of the presiding officer and

subsequently placed in the public

docket. The FAA requests that persons

participating in the meeting provide 10

copies of all materials to be presented

for distribution to the panel members;

other copies may be provided to the

audience at the discretion of the

participant.

9. Statements made by members of the

public meeting panel are intended to

facilitate discussion of the issues or to

clarify issues. Because the meeting

concerning the Fees for FAA Services

for Certain Flights Interim Final Rule is

being held during the comment period,

final decisions concerning issues that

the public may raise cannot be made at

the meeting. The FAA may, however,

ask questions to clarify statements made

by the public and to ensure a complete

and accurate record. Comments made at

this public meeting will be considered

by the FAA.

10. The meeting is designed to solicit

public views on the Interim Final Rule.

Therefore, the meeting will be

conducted in an informal and

nonadversarial manner.

Availability of the Interim Final Rule

An electronic copy of this document

may be downloaded using a modem and

suitable communications software from

the FAA regulations section of the

FedWorld electronic bulletin board

service (telephone: (703) 321–3339) or

the Government Printing Office (GPO)’s

electronic bulletin board service

(telephone: (202) 512–1661).

Internet users may reach the FAA’s

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

arm/nprm/nprm.htm or the GPO’s web

page at http://www.access.gpo.gov/nara

access to recently published rulemaking

documents.

Any person may obtain a copy of this

document 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. Communications must

identify the amendment number or

docket number of this Interim Final

Rule.

Persons interested in being placed on

the mailing list for future rulemaking

documents should request from the

above office a copy of Advisory Circular

No. 11–2A, Notice of Proposed

Rulemaking Distribution System, which

describes the application procedure.

Small Business Regulatory Enforcement

Fairness Act

The Small Business Regulatory

Enforcement Fairness Act (SBREFA) of

1996, requires the FAA to comply with

small entity requests for information or

advice 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. Internet

users can find additional information on

SBREFA on the FAA’s web page at

http://www.faa.gov/avr/arm/sbrefa.htm

and may send electronic inquiries to the

following Internet address: 9–AWA–

SBREFA@faa.gov.

Background

Authority To Establish Fees

The Federal Aviation Reauthorization

Act of 1996 (the Act) directs the FAA to

establish by Interim Final Rule a fee

schedule and collection process for air

traffic control (ATC) and related

services provided to aircraft, other than

military and civilian aircraft of the U.S.

Government or of a foreign government,

that neither take off from, nor land in,

the United States (49 U.S.C. 45301, as

amended by Pub. L. 104–264).

Also, the Act directs the FAA to

ensure that the fees allowed by the Act

are directly related to the FAA’s costs of

providing the service rendered. The Act

further states that services for which

costs may be recovered include the costs

of ATC, navigation, weather services,

training and emergency services that are

available to facilitate safe transportation

over the United States, and other

services provided by the Administrator

or by programs financed by the

Administrator to flights that neither take

off from, nor land in, the United States.

History

On March 20, 1997, the FAA

published an Interim Final Rule, Fees

for Air Traffic Services for Certain

Flights through U.S.-Controlled

Airspace (62 FR 13496), which

established fees for FAA air traffic and

related services provided to certain

aircraft that transit U.S.-controlled

airspace but neither take off from, nor

land in, the United States. The FAA

invited public comment on this Interim

Final Rule. The effective date of the rule

was May 19, 1997, and the comment

period closed on July 18, 1997. In

addition, the FAA held a public meeting

on May 1, 1997. The FAA also

published two additional Interim Final

Rules that amended the original Interim

Final Rule on May 2, 1997 (62 FR

24285) and October 2, 1997 (62 FR

51735).

This rulemaking was subsequently

challenged. The Airline Transportation

Association of Canada and six airlines

petitioned the United States Court of

Appeals for the District of Columbia

(court) to review the rule.

On January 30, 1998, the court issued

its opinion on the seven petitions

consolidated in the case of Asiana

Airlines et al., v. the FAA, 328 U.S. App.

D.C. 237, 134 F. 3d 393, 1998 U.S. App.

LEXIS 1286 (1998). The court rejected

the petitioners’ claims that the FAA

acted improperly in employing an

expedited procedure before the effective

date of the Interim Final Rule, and that

the FAA violated the antidiscrimination provisions of various

international aviation agreements.

However, the court concluded that the

FAA’s methodology of determining cost

violated statutory requirements.

Therefore, the court vacated the

Interim Final Rule in its entirety and

remanded the Interim Final Rule to the

FAA for further proceedings consistent

with the opinion.

Since the date the court vacated the

Interim Final Rule issued in 1997 the

FAA has met with various user and

aviation interest groups to listen to their

concerns about fees under the Act. The

last such meeting was on May 24, 2000,

and included the Department of

Transportation General Counsel and

members of her staff. A summary of

each these meetings can be found in the

docket of this rulemaking.

The New Interim Final Rule

When Congress passed the Act it

explicitly required the FAA to collect

the relevant fees initially by establishing

an Interim Final Rule. The D.C. Circuit

referenced this fact in 1998, but

nevertheless struck the FAA’s earlier

rule because it did not comport with

another Congressional requirement, that

is, that the fee be based on costs

incurred and not value to the user

paying the fee. Although nearly 4 years

have passed since the passage of the

Act, the Act continues to require that

the fees be promulgated by Interim Final

Rule (see in the docket the FAA

Information Paper to ICAO, September

1998, entitled ‘‘Fees for Air Traffic

Services for Certain Flights through

U.S.-Controlled Airspace’’).

The Congressional purpose of

requiring the fees by Interim Final Rule

has not been changed by the passage of

time. Congress has not changed the

statutory requirements (despite multiple

opportunities to do so) and has

continued to appropriate funds each

year based on the collection of these

fees. (See May 25, 2000, letter in the

36004 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

docket from Congressman Duncan,

Chairman, Aviation Subcommittee.)

The FAA has at all times acted as

quickly as possible in establishing the

fees but, as noted by the court in 1998,

the FAA has been constrained by the

lack of accurate cost information on

which to base the fees. The

development of an accurate cost

information system, which is the

predicate for the imposition of

reasonable fees, has been a time

consuming but necessary process. Only

recently has the FAA’s new Cost

Accounting System provided this

information and only now can the FAA

proceed with rulemaking as directed by

49 U.S.C. 45301. The FAA has therefore

determined that the Act continues to

require that the fees the FAA is now

imposing be established initially as an

Interim Final Rule.

Therefore, effective 60 days after the

publication of this Interim Final Rule,

the FAA will again assess a fee for air

traffic and related services provided to

users of aircraft that transit U.S.-

controlled airspace (airspace owned or

delegated to the United States) but do

not take off from or land in the United

States. The rule does not apply to

military and civil aircraft operated by

the U.S. Government or by a foreign

government or to certain Canada-toCanada flights.

For the purpose of this rulemaking,

U.S.-controlled airspace includes all

U.S. airspace either directly owned by

the United States or allocated to the

United Sates by the International Civil

Aviation Organization or by other

countries. This can further be defined in

general as enroute and oceanic airspace.

Enroute airspace is generally defined,

for the purpose of this rulemaking, as

airspace where primarily radar-based air

traffic services are provided. Oceanic

airspace is generally defined, for the

purpose of this rulemaking, as airspace

where primarily procedural air traffic

services are provided. A description of

the U.S.-controlled airspace by latitude

and longitude has been placed in the

public docket of this rulemaking.

Canada-to-Canada operations are

defined (hereafter ‘‘Canada-to-Canada’’)

as flights conducted by any aircraft of

any nationality that take off from and

land in Canada without an intermediate

stop outside of Canada that operate in

U.S.-controlled airspace. Users are

defined as operators of aircraft flights

that neither depart from nor land in the

United States.

Flights that transit U.S.-controlled

airspace but do not land in or depart

from the United States (overflights)

currently contribute nothing financially

to the provision of air traffic services

(ATS). This is despite the fact that these

flights use ATS and other services that

impose costs on the U.S. ATC system.

Congress has determined in the 1996

Act that these users should bear a

portion of the cost of those services.

The air transportation environment

has changed over the past decades with

the advent of increasing numbers of

long-range aircraft. The use of these

aircraft and the routes they are able to

fly have greatly increased the efficiency

of air transportation. Although these

overflight operations do not generally

enter areas of high density air traffic,

they do use FAA ATS.

Operators of overflight aircraft benefit

from the FAA’s provision of ATS in

several ways. First, and most

importantly, FAA’s ATS enhance safety

through ATC, navigation, and

communications services. Second, flight

through U.S.-controlled airspace

provides optimized routing for longdistance aircraft, which is of great value

to the users of these aircraft. The level

of ATS and other services that is

actually provided to operators of

overflights depends, in part, on the

portions of U.S.-controlled airspace

such flights transit. These services can

include communications, navigation,

radar surveillance, emergency services,

and flight information services. For

aircraft transiting U.S. enroute airspace,

Air Route Traffic Control Centers

(ARTCCs) provide separation by means

of radar surveillance (if they are

operating under instrument flight rules

or in airspace above 18,000 feet). Also,

these flights generally use navigational

aids and radio communication with

ARTCCs. These services are also

provided in certain oceanic areas near

islands such as Bermuda and The

Bahamas.

For aircraft transiting oceanic

airspace, where radar surveillance and

navigational aids are not available,

navigation is generally conducted by onboard systems. Aircraft separation,

however, is provided under procedural

control, under which flights report their

position to an air traffic controller each

time they fly over a specified reporting

point.

The FAA estimates that

approximately 235,000 non-public (i.e.

aircraft that are not exempt) flights

transit U.S.-controlled airspace without

landing or taking off annually (see the

report entitled ‘‘Overflight Fee

Development Report,’’ which has been

placed in the docket).

The cost to the FAA associated with

overflights covered under this rule is

projected to be approximately $50.4

million, including the cost of

developing and collecting the fees. This

amount represents the sum of the

separate costs for providing ATC and

related services to overflights flying

through enroute and oceanic airspace as

well as all development costs and all

projected collection costs associated

with the fees.

Charging overflights for ATS and

related services is accepted in the

international arena. The International

Civil Aviation Organization (ICAO)

states that ‘‘where air navigation

services are provided for international

use, the providers may require the users

to pay their share of the costs * * *.’’

(Statements by the Council to

Contracting States on Charges for

Airports and Air Navigation Services,

Paragraph 32 (Doc. 9082/5)). Further,

paragraph 42 of Doc. 9082/5 notes that

‘‘providers * * * may require all users

to pay their share of the costs of

providing them regardless of whether or

not utilization takes place over the

territory of the provider state.’’

(Document 9082/5 has been placed in

the docket.)

Canada-to-Canada Operations

Currently, many Canadian flights

transit U.S.-controlled airspace because

of air traffic coordination between the

United States and Canada. Routing

through U.S.-controlled airspace by U.S.

or Canadian ATC occurs because it is

either the shortest route or it offers the

most favorable flight conditions. This

frequent and variable routing is done

without regard to the border between

Canada and the United States.

The FAA has a long-standing ATC

relationship with the Canadian ATC

authority, currently known as NAV

CANADA, beginning with an exchange

of notes between the United States and

Canadian governments in 1963. The

FAA has determined that assessing fees

on Canada-to-Canada flights would be

inconsistent with: (1) 49 U.S.C. 106(l),

40103, and 40105; (2) the FAA’s

international agreements with Canada;

and (3) the safety of all trans-border

U.S.-Canadian flights. This

determination gives maximum effect to

all applicable statutes and agreements.

The FAA’s costs associated with

Canada-to-Canada flights have been

excluded from the cost base that

overflight fees recoup. Accordingly, the

total cost of overflights is $50.4 million,

but expected billing is approximately

$39.6 million (the difference being

attributed to the FAA’s agreements with

NAV CANADA). These costs do not

consider operational benefits under the

agreements with Canada.

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 36005

The Overflight Fee

As noted above, the Act directs the

FAA to establish a fee schedule and

collection process for ATC and related

services provided to aircraft other than

military and civil aircraft operated by

the U.S. government or by a foreign

government that neither take off from,

nor land in, the United States. The Act

further directs the FAA to issue the

initial fee schedule and associated

collection process as an Interim Final

Rule, to ask for public comment, and to

issue a subsequent final rule.

The Act requires that fees be directly

related to the FAA’s cost of providing

the services rendered. Furthermore, the

Conference Report for the Act states

‘‘* * * assuming similar costs of

serving different carrier and aircraft

types, the fee may not vary based on

factors such as aircraft seating capacity

or revenue derived from passenger

fares’’ (Congressional Record,

September 26, 1996, H11316.).

Consistent with statutory direction, the

sense of Congress, as documented in the

Conference Report, and FAA’s aviation

safety mission, the FAA has developed

a uniform and fair fee for all users based

on the FAA’s Cost Accounting System

(CAS).

Two documents have been placed in

the docket of this rulemaking that detail

how the fees in this rule were

determined and calculated. The first

document, ‘‘Cost Methodology Used to

Develop Cost of Enroute and Oceanic

ATC Services’’ was prepared by the

public accounting firm of Arthur

Andersen. This document details how

the FAA’s new CAS, also required by

the Act, determines the FAA’s cost of

the two air traffic services, enroute and

oceanic. The second document,

‘‘Overflight Fee Development Report,’’

was prepared by the FAA. This

document details how, based on the

CAS, the FAA determined the cost of

services provided to overflights based

on the cost of enroute and oceanic

services. The document also details how

the fees were calculated in this

rulemaking. Essentially, the overflight

fee is computed based on distance flown

through U.S.-controlled airspace.

Separate computations are made for

services provided in enroute airspace

and in oceanic airspace to reflect the

different costs of providing services in

each of these environments.

The FAA will charge users $37.43 per

100 nautical miles (or portion thereof)

flown in enroute airspace and $20.16

per 100 nautical miles (or portion

thereof) flown in oceanic airspace.

Based on the second document, the

fee for users (i.e., operators of an aircraft

overflight) is calculated as follows:

Rij = (DOij × CO) + (DEij × CE)

Where:

Rij = the fee charged to aircraft flying

between city i and city j,

DOij= distance traveled in U.S.-

controlled oceanic airspace

expressed in hundreds of nautical

miles for aircraft flying between city

i and city j,

CO = $20.16 per 100 nautical miles

flown in oceanic airspace,

DEij = distance traveled in U.S.-

controlled enroute airspace

expressed in hundreds of nautical

miles for aircraft flying between city

i and city j.

CE = $37.43 per 100 nautical miles

flown in enroute airspace.

This formula assumes that actual entry

and exit data are available for individual

flights in U.S.-controlled airspace. If

not, best available flight data will be

used.

The fees are designed to charge only

the directly related costs of FAA

services to overflight users in a logical

and fair manner.

Also, the FAA has determined that no

fee will be assessed unless the

cumulative charges exceed $250 per

calendar month, based on Greenwich

Mean Time (GMT), by any particular

user. The fees in this Interim Final Rule,

including the $250 exclusion, will be

reviewed when the Final Rule is issued

and at least once every 2 years, and

adjusted to reflect changes in costs.

The following table illustrates the fee

schedule.

BILLING CODE 4910–13–P

36006 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

BILLING CODE 4910–13–C

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 36007

Fee Collection Process and Enforcement

The FAA has established and

maintains data from several sources,

including but not limited to, flight plans

and radar/radio data that identifies the

point of entry and exit, aircraft

registration number, and the type of

aircraft for all aircraft entering U.S.-

controlled airspace. Information will be

extracted from the database and used,

along with the fee formula, to compute

each fee. The fee will include a charge

to cover the cost of developing the fee

as well as the cost of billing and

collection.

The FAA will bill users pursuant to

49 CFR part 89 by sending a monthly

invoice. Affected commercial users are

requested to designate and submit to the

FAA the name and address of a U.S.

agent for billing. Users not providing a

billing address will be billed at the

address of record of the aircraft owner

as maintained in the country where the

aircraft is registered.

As provided in § 187.15(d), monthly

remittance of fees of $1,000 or more are

to be paid by electronic funds transfer.

Monthly remittances below $1,000 may

be paid by electronic funds transfer,

check, money order, credit card, or

draft. All payments must be in U.S.

currency.

Invoices that become delinquent will

be collected according to 49 CFR part

89. The FAA intends to pursue

vigorously all delinquent balances to the

extent provided by law.

If any adjustments are necessary in

the fees billed or collected the FAA will

follow the procedures in 49 CFR part 89

to settle debts of users. This includes

issuing credits and refunds to users as

appropriate and authorized by law.

Paperwork Reduction Act

In accordance with the requirements

of the Paperwork Reduction Act of 1995

(44 U.S.C. 3507(d)), the information

collection requirements associated with

this interim final rule were submitted to

the Office of Management and Budget

(OMB) for review and approval. There

are no new requirements for the

information collection associated with

this amendment. An estimated 300 to

600 aircraft operators are requested to

provide the FAA the name, the address,

and phone number of any operator

obtaining overflight services. It is

estimated to take between 5 minutes

and several days to complete the onepage form, depending on how long it

takes a carrier to notify its billing

department, and for that department to

set up an account from which to pay

these funds, for a total of 50 hours. This

would be a one-time collection unless

the carrier needs to change any of the

information provided to the FAA.

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 OMB

control number. The OMB control

number associated with this collection

is Number 2120–0618.

Compatibility With ICAO Standards

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 reviewed the corresponding ICAO

Standards and Recommended Practices

and has identified no differences with

these regulations.

Regulatory Evaluation 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, OMB directs

agencies to assess the effect of

regulatory changes on small entities and

changes on international trade. In

conducting these analyses, the FAA has

determined that this Interim Final Rule

is ‘‘a significant regulatory action’’

under section 3(f) of Executive Order

12866 and, therefore, is subject to

review by OMB. The Interim Final Rule

is considered significant under the

regulatory policies and procedures of

the Department of Transportation (44 FR

11034, February 26, 1979). This Interim

Final Rule should not have a significant

impact on a substantial number of small

entities and will not constitute a barrier

to international trade. All of these

analyses have been prepared as a

regulatory evaluation and are

summarized below. The FAA invites the

public to provide comments and

supporting data on the assumptions

made in this evaluation. All comments

received will be considered in the final

regulatory evaluation. A copy of the

complete regulatory evaluation has also

been placed into the docket.

Benefits

In addition to authority to establish

fees, the Act directs the FAA to ensure

that the fees are directly related to the

FAA’s costs of providing the service

rendered. The Act states that services

for which costs may be recovered

include ATC, navigation, weather

services, training, and emergency

services. The fees collected will

reimburse the FAA for the actual cost of

services in the manner authorized by

Congress. Thus, the beneficiaries of this

service, rather than the taxpayer, would

largely pay for the service provided by

the FAA. Moreover, the fees being

established by the FAA cover only the

costs of providing these services.

Charging a user fee is expected to

result in better allocation of scarce

societal and FAA resources. A fee will

establish a mechanism through which

those who use a service cover the

majority of the costs for resources

necessary to fund the service that is

provided. This will result in a more

efficient allocation of resources, and the

efficient allocation of resources will

benefit society at large, because more

resources will become available for

other services demanded by the public.

The user fee is expected to generate

approximately $39.6 million in billings

during the first 12 months of this rule,

including the cost of collections. The

FAA believes the established fees are

equitable and justified.

Cost of Collection of User Fees to the

FAA

The FAA estimates a one-time

development cost of approximately $1.6

million. The FAA will amortize these

development costs over a 2-year period

in equal annual amounts of

approximately $800,000. A small

portion of the original development

costs are included in the current

development costs because some items

such as system design or hardware will

be used for fee collection under the

current rule. In addition to the

development costs, the FAA estimates

an annual operating cost of

approximately $1 million.

The costs of collection of the fee are

relatively small compared to the

billings. The cost of collection will be

reviewed at least once every 2 years at

the same time when fee charges are

reviewed and adjusted to reflect the

current costs of performing the services

covered. The first review will be

scheduled for no later than 2 years after

the date of publication of the Final Rule.

Fees will be adjusted to reflect historical

great circle distance entry and exit

mileage within U.S.-controlled airspace.

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

36008 Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations

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 rationale for their

actions. The RFA covers a wide-range of

small entities, including small

businesses, not-for-profit organizations,

and small governmental entities.

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 determination is 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 is not required. The

certification must include a statement

providing the factual basis for this

determination, and the reasoning should

be clear.

The overflight fee will primarily affect

foreign users. Since the RFA applies to

domestic entities and does not apply to

foreign entities, no consideration of the

Interim Final Rule’s impact on foreign

users is required. In addition, because

no fee will be assessed to a user unless

they accumulate charges that exceed

$250 per month, small domestic and

infrequent operators should not be

impacted by the rule. Accordingly, the

FAA certifies that this rule will not have

a significant economic impact on a

substantial number of small entities.

International Trade Impact

The overflight provisions will

primarily affect foreign commercial

operators. Most commercial aircraft are

designed to operate more efficiently at

altitudes in excess of 18,000 feet. All

operations at altitudes at or above

18,000 feet controlled by the United

States must be under ATC. The FAA

believes that it is unlikely that foreign

commercial users will alter behavior to

avoid using ATS and other services. In

addition, to some extent, commercial

users are able to pass the overflight fee

on to their passengers or cargo

customers.

The Interim Final Rule may have a

favorable competitive impact on U.S.

commercial operators. Currently U.S.

commercial operators are at a

comparative disadvantage with their

foreign counterparts when users (U.S.

and foreign) must pay user fees to

transit other countries’ airspace while

foreign users do not have to pay a fee

to transit U.S.-controlled airspace. The

Interim Final Rule could enhance the

competitiveness of domestic

commercial operators in international

markets.

Executive Order 13132, Federalism

The FAA has analyzed this interim

final rule under the principles and

criteria of Executive Order 13132,

Federalism. The FAA has determined

that this action will 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. Therefore, the

FAA has determined that this interim

final rule does not have federalism

implications.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), codified in

2 U.S.C. 1501–1571, requires each

Federal agency, to the extent permitted

by law, to prepare a written assessment

of the effects of any Federal mandate in

a proposed or final agency rule that may

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more (adjusted annually for inflation)

in any 1 year. Section 204(a) of the

UMRA, 2 U.S.C. 1534(a), requires the

Federal agency to develop an effective

process to permit timely input by

elected officers (or their designees) of

State, local, and tribal governments on

a proposed ‘‘significant

intergovernmental mandate.’’ A

‘‘significant intergovernmental

mandate’’ under the UMRA is any

provision in a Federal agency regulation

that will impose an enforceable duty

upon State, local, and tribal

governments, in the aggregate, of $100

million (adjusted annually for inflation)

in any 1 year. Section 203 of the UMRA,

2 U.S.C. 1533, which supplements

section 204(a), provides that before

establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall have developed a plan that,

among other things, provides for notice

to potentially affected small

governments, if any, and for a

meaningful and timely opportunity to

provide input in the development of

regulatory proposals.

This rule does not contain any

Federal intergovernmental mandates or

private sector mandate that exceeds

$100 million in any 1 year.

Environmental Analysis

FAA Order 1050.1D defines FAA

actions that may be categorically

excluded from preparation of a National

Environmental Policy Act

environmental assessment or

environmental impact statement. In

accordance with FAA Order 1050.1D,

appendix 4, paragraph 4(j), this

rulemaking action qualifies for a

categorical exclusion.

Energy Impact

The energy impact of the Interim

Final Rule has been assessed in

accordance with the Energy Policy and

Conservation Act (EPCA), Pub. L. 94–

163, and FAA Order 1053.1. It has been

determined that the Interim Final Rule

is not a major regulatory action under

the provisions of the EPCA.

List of Subjects in 14 CFR Part 187

Administrative practice and

procedure and Air transportation.

The Amendment

In consideration of the foregoing, the

Federal Aviation Administration

amends part 187 of Title 14, Code of

Federal Regulations as follows:

PART 187—FEES

1. The authority citation for part 187

continues to read as follows:

Authority: 31 U.S.C. 9701, 49 U.S.C.

106(g), 49 U.S.C. 106(l)(6), 40104–40105,

40109, 40113–40114, 44702.

2. In § 187.1, add the following

sentences to the end of the section:

§ 187.1 Scope.

* * * Appendix A to this part

prescribes the methodology for

computation of fees for certification

services performed outside the United

States. Appendix B to this part

prescribes the fees for certain aircraft

flights that transit U.S.-controlled

airspace.

3. In § 187.15, add paragraph (d) to

read as follows:

§ 187.15 Payment of fees.

* * * * *

(d) The fees described in appendix B

of this part are payable to the Federal

Aviation Administration in U.S.

currency. Remittance of fees of $1,000

or more are to be paid by electronic

funds transfer. Remittances below

$1,000 may be paid by electronic funds

transfer, check, money order, credit

card, or draft.

4. In Part 187, add appendix B to read

as follows:

Federal Register / Vol. 65, No. 109 / Tuesday, June 6, 2000 / Rules and Regulations 36009

Appendix B to Part 187—Fees for FAA

Services for Certain Flights

(a) Applicability. Except as provided in

paragraphs (b) and (c) of this appendix, this

appendix applies to any person who

conducts a flight through U.S.-controlled

airspace that does not include a landing or

takeoff in the United States. U.S.-controlled

airspace is defined as all U.S. airspace either

directly owned by the United States or

allocated to the United States by the

International Civil Aviation Organization or

by other countries. This is further defined,

for this section only, as enroute and oceanic

airspace. Enroute airspace is defined, for this

section only, as airspace where primarily

radar-based air traffic services are provided.

Oceanic airspace is defined, for this section

only, as airspace where primarily procedural

air traffic services are provided.

(b) Governmental flights. This appendix

does not apply to any military or civil flight

operated by the United States Government or

by any foreign government.

(c) Canada-to-Canada flights. This

appendix will not apply to any operator of

a flight that takes off and lands in Canada,

without an intermediate stop outside Canada,

that operates in U.S.-controlled airspace.

(d) Services. Persons covered by paragraph

(a) of this appendix must pay a fee for the

use of certain services, including but not

limited to the following:

(1) Air traffic management.

(2) Communications.

(3) Navigation.

(4) Radar surveillance, including

separation services.

(5) Flight information services.

(6) Procedural control.

(7) Emergency services and training.

(e) Methodology for the computation of

fees. 

(1) For the use of any of the services listed

in paragraph (d) of this appendix, the fee is

computed based on the distance flown in

either enroute or oceanic airspace (U.S.-

controlled airspace.) Distance flown is based

on the great circle distance (GCD) for the

actual point of entry and the actual point of

exit of U.S.-controlled airspace. Fees are

assessed using the methodology presented in

paragraph (e)(2) of this appendix. Where

actual entry and exit points are not available,

the best available flight data will be used to

calculate the fee.

(2) A User (operator of an overflight) is

assessed a fee for each 100 nautical miles (or

portion thereof) flown in U.S.-controlled

airspace. Separate calculations are made for

transiting enroute and oceanic airspace. The

total fee charged for an overflight between

any two cities is equal to the sum of these

two charges. This relationship is summarized

as:

Rij = $20.16*DOij + $37.43*DEij,

Where:

Rij = the fee charged to aircraft flying between

city i and city j,

DOij= distance traveled in U.S.-controlled

oceanic airspace expressed in hundreds

of nautical miles for aircraft flying

between city i and city j,

DEij = distance traveled in U.S.-controlled

enroute airspace expressed in hundreds

of nautical miles for aircraft flying

between city i and city j.

(f) Billing and payment procedures. 

(1) Billing. The FAA will send an invoice

to each user that is covered by this appendix

when fees are owed to the FAA. No invoice

will be sent unless the monthly (based on

Greenwich Mean Time) fees for service equal

or exceed $250. Users will be billed at the

address of record in the country where the

aircraft is registered, unless a billing address

is otherwise provided.

(2) Payment. Payment must be made by

one of the methods described in § 187.15(d).

(g) Review of fees. The fees prescribed in

this appendix will be reviewed at least once

every 2 years and adjusted to reflect the

current costs of performing the services

covered by this appendix.

Issued in Washington, DC, on May 30,

2000.

Jane F. Garvey,

Administrator.

[FR Doc. 00–14045 Filed 6–2–00; 8:45 am]

BILLING CODE 4910–13–P