[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Rules and Regulations]
[Pages 13627-13628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6224]



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DEPARTMENT OF TRANSPORTATION
14 CFR Part 91

[Docket No. 28134]


Policy on Use of Interchange Agreements for Noise Compliance

AGENCY: Federal Aviation Administration, DOT.

ACTION: Policy statement.

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SUMMARY: This document sets forth a statement of Federal Aviation 
Administration (FAA) policy concerning the use of airplane sharing 
agreements to accomplish compliance with the Stage 3 noise transition 
regulations. As a result of its experience during the first interim 
compliance date, the FAA has become aware of a noise compliance concern 
involving such agreements. This policy statement is intended to provide 
operators that participate in airplane sharing agreements with notice 
and guidance on how the FAA will view such agreements for compliance 
with the Stage 3 transition regulations.

DATES: This policy is effective on March 14, 1995.
    Comments concerning this policy must be received on or before 
September 11, 1995.

ADDRESSES: Send comments on this notice to: Federal Aviation 
Administration (FAA), Office of the Chief Counsel, Attn: Rules Docket, 
AGC-200, Docket No. 28134, 800 Independence Avenue SW., Washington, DC 
20591.
    Comments may be examined or delivered in person at the above 
address in room 916G, weekdays between 8:30 a.m. and 5 p.m., except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT:
Mr. William W. Albee, Policy and Regulatory Division (AEE-300), Office 
of Environment and Energy, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3553, facsimile (202) 267-5594.

SUPPLEMENTARY INFORMATION: Sections 91.865 and 91.867 of 14 CFR each 
required that as of December 31, 1994, an operator of Stage 2 airplanes 
either reduce the number of Stage 2 airplanes it operates by 25% from 
its base level, achieve a fleet mix of airplanes that is 55% Stage 3 
airplanes, or in the case of a new entrant, achieve a fleet mix that is 
25% Stage 3 airplanes. These same regulations require that, after the 
next interim compliance date, December 31, 1996, each operator must 
either reduce the number of Stage 2 airplanes it operates by 50% from 
its base level or achieve a fleet mix that is 65% Stage 3 airplanes 
(or, 50% for new entrants). The FAA's experience with the first interim 
compliance date has raised a serious concern involving airplane 
interchange agreements and other arrangements that result in an 
individual airplane being enumerated on the operations specifications 
of more than one operator. To ensure that the objectives of the 1990 
Airport Noise and Capacity Act and the implementing regulations are not 
compromised during the interim compliance period, to ensure that the 
benefits are fully realized, and to prevent foreseeable future 
difficulties in compliance, the FAA is formally stating its policy for 
the manner in which Stage 3 airplanes are ``counted'' for compliance 
purposes.
    Recent analysis of operators' compliance reports for 1994, which 
are required under 14 CFR 91.875, has revealed that some operators 
appear to have entered into Stage 3 airplane sharing agreements solely 
or primarily for the purpose of achieving compliance with the first 
interim compliance deadline of the Stage 3 transition rules, December 
31, 1994. These airplane sharing agreements take several forms, 
including formal interchange agreements between operators and instances 
of two or more operators leasing the same airplane from a lessor. This 
results in the same Stage 3 airplane being counted for compliance by 
two or more operators, depending on the sharing arrangement. The FAA 
views this result to directly contradict the intent and objectives the 
Airport Noise and Capacity Act and its implementing regulations.
    Under such arrangements, a single Stage 3 airplane could be used to 
support the presence of an almost limitless number of Stage 2 
airplanes. Allowing a proliferation of such sharing arrangements for 
the purpose of noise rule compliance can be expected to result in the 
delay of Stage 2 airplane retirement or modification by the 
participating operators. Such delays not only reduce the anticipated 
benefits of the Congressionally mandated interim compliance period, but 
have the more insidious effect of operators further delaying the 
business and financial decisions and actions necessary to achieve full 
compliance by 1999. If these paper-only compliance situations 
[[Page 13628]] are allowed to continue, the FAA foresees that the 
underlying delays and failures to plan and implement real compliance 
may easily result in an unacceptable level of actual compliance and a 
large number of waiver applications based on arguments of financial 
hardship, and airplane and hushkit unavailability as participating 
operators are forced into complete compliance at the last minute.
    Accordingly, the FAA is formally notifying operators of its policy 
that an individual Stage 3 airplane may be counted only in the fleet of 
one operator for purposes of compliance with the Stage 3 transition 
rules, regardless of the number of operators participating in the use 
of the airplane. This single counting does not affect the actual use of 
airplanes under interchange agreements; they may simply only be counted 
in the fleet of one of the participating operators for noise compliance 
purposes.

Policy Statement

    For the purpose of compliance with Secs. 91.865 or 91.867, the FAA 
will not count an individual Stage 3 airplane in the fleet of more than 
one operator.
    This policy statement does not effect any operator's compliance 
with the December 31, 1994, compliance date. Thus, if an operator used 
shared airplanes to achieve compliance in 1994, that compliance is 
considered valid until December 31, 1996.
    After the effective date of this policy, however, an operator may 
not use any type of airplane sharing agreement, regardless of the date 
of the agreement, to increase the number of Stage 2 airplanes it 
operates. As an example, a new entrant's fleet consists of three Stage 
2 airplanes, and two Stage 3 airplanes that are also on the operations 
specifications of another operator. For purposes of the December 31, 
1994, compliance date, that new entrant will be considered in 
compliance. However, that new entrant operator may not use the presence 
of the two shared Stage 3 airplanes to support the addition of three 
more Stage 2 airplanes to its fleet after the date of this policy 
statement, even though, with the addition, it would ``remain'' in 
compliance with Sec. 91.867 by maintaining a fleet that is 25% Stage 3 
airplanes. The FAA will not allow the presence of ``shared'' Stage 3 
airplanes act as support for additional Stage 3 airplanes after the 
effective date of this policy.
    The above example presumes that the new entrant attempting to add 
Stage 2 airplanes is not the operator that is claiming the Stage 3 
airplane as its own. If the FAA finds a Stage 3 airplane that is 
reported in the fleet of more than one operator, the FAA will not count 
it in the fleet of any of the reporting operators for noise compliance 
purposes until the airplane is declared by one of the operators as 
belonging in its fleet alone. The FAA will not mitigate disputes 
between operators involved in any airplane sharing agreement. The FAA 
presumes that the operators involved in a shared airplane agreement 
will reach their own agreement on which operator gets to count the 
airplane for compliance purposes. While the FAA anticipates that in 
most cases the reporting operator will be the owner of lessor under an 
interchange agreement, any agreement between the sharing operators that 
results in one operator counting the airplanes is acceptable to the 
FAA.
    Most importantly, for purposes of the December 31, 1996, interim 
compliance deadline, no shared airplanes will be allowed to count in 
the fleet of more than one operator, regardless of the date of the 
sharing agreement, and regardless of whether the shared arrangement was 
found valid for compliance with the 1994 compliance date. Thus, 
operators that achieved compliance with the 1994 compliance date by 
means of shared Stage 3 airplanes are under notice that the 
continuation of the same arrangement or any new arrangement will not 
support compliance in with the December 31, 1996, requirement.
    The FAA is formally publishing this policy at this time to give all 
affected operators the maximum amount of time to achieve compliance 
with the December 31, 1996 compliance date without the use of shared 
Stage 3 airplanes. As stated previously, the FAA has only very recently 
become aware of these arrangements and their use for compliance as the 
required reports for 1994 have been filed and analyzed, and it is only 
recently that the FAA has determined the serious negative consequences 
of allowing such practices to continue. However, the FAA determined 
that, in the interest of fairness and the lack of a formal written 
policy before this date, such agreements that were used to comply with 
the 1994 compliance date would not be disallowed retroactively. This 
policy statement is intended to prevent the further use of such 
agreements for noise compliance manipulation and preclude the 
proliferation of such agreements as the perceived ``benefit'' is 
realized.

Shared Stage 2 Airplanes

    The FAA is also aware that there are existing sharing agreements 
for Stage 2 airplanes that result in Stage 2 airplanes being listed on 
the operations specifications of more than one operator. To further the 
goals of the ANCA and its implementing regulations, the FAA will 
continue to count a Stage 2 airplane as part of the fleet of each of 
the operators sharing it. This is the method used in the compliance 
calculations for the 1994 compliance date, and will not affect the 
actual use of any such shared Stage 2 airplane by the participating 
operators.
    Further, if a shared Stage 2 airplane was used to establish base 
level in the fleet of more than one operator by means of its presence 
on the operations specifications of the sharing operators during the 
appropriate period, the establishment of such base level is not 
affected. If the shared Stage 2 airplane is eliminated from one or all 
of the fleets of the operators participating in the sharing agreement, 
that removal may count for compliance purposes for all of the operators 
that remove it from their operations specifications.
    In the event that any operator participating in the sharing of a 
Stage 2 airplane restricts its operations specifications to preclude 
the operation of that airplane into the contiguous United States. To 
achieve compliance, all other participating operators are also 
precluded from operating that airplane in the contiguous United States.
    These policies concerning Stage 2 and Stage 3 airplanes apply to 
all operators of aircraft affected by the Stage 3 transition 
regulations, regardless of whether the operators are U.S. or non-U.S., 
and regardless of the level of formality of the agreement under which 
the subject airplanes are shared.
    Comments concerning the effect of this policy on individual 
operators and their compliance with the Stage 3 transition regulations 
should be submitted to the docket established for this policy 
statement; the FAA will consider all comments received and refine the 
policy if warranted. Operators that have individual questions 
concerning the effect of this policy on their operations and compliance 
may submit written inquiries to the individual listed in the FOR 
FURTHER INFORMATION CONTACT paragraph above.

    Issued in Washington, DC on March 9, 1995.
Paul R. Dykeman,
Acting Director of Environment and Energy.
[FR Doc. 95-6224 Filed 3-13-95; 8:45 am]
BILLING CODE 4910-13-M