66182 Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 / Rules and Regulations

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 §§ 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 §§ 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
Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 / Rules and Regulations 66183

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

§ 91.851, and in the special provisions

for new entrant air carriers under

§ 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

§ 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 § 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 § 91.851,

the definitions applicable to the

transition regulations, is being revised

to reference § 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 § 91.801 and add a new

§ 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
66184 Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 / Rules and Regulations

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 × 10 × 3) to

process this information. The total

annual cost of this provision is,

therefore, $1,312.

2. Other Stage 2 Operations

Currently § 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 § 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 § 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 § 91.867. In that regulation, and

in the definition of new entrant in

§ 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-forprofit 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

§ 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
Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 / Rules and Regulations 66185

reporting requirement, in itself, has no

environmental impact.

The change to § 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.

§ 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:

§ 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.

§ 91.851 [Amended]

4. The introductory text of § 91.851 is

amended by removing the reference

‘‘91.875’’ and by adding the reference

‘‘91.877’’ in its place.

§ 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:

§ 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—

* * * * *

§ 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 § 91.877 is added to read as

follows:

§ 91.877 Annual reporting of Hawaiian

operations.

(a) Each air carrier or foreign air

carrier subject to § 91.865 or § 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 § 91.865 or

§ 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 interisland 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.
66186 Federal Register / Vol. 61, No. 242 / Monday, December 16, 1996 / Rules and Regulations

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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