[Federal Register: March 2, 1998 (Volume 63, Number 40)]
[Rules and Regulations]               
[Page 10123-10124]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02mr98-1]






Rules and Regulations
                                                Federal Register
________________________________________________________________________

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. 29155]

 
Procedures for Processing Petitions for Final Compliance Waivers

AGENCY: Federal Aviation Administration, DOT.

ACTION: Policy statement.

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SUMMARY: This document presents a review of the procedures and 
information necessary for a U.S. air carrier operating Stage 2 noise 
level airplanes subject to the Stage 3 transition regulations, required 
by the Airport Noise and Capacity Act of 1990 (ANCA), to submit a 
request for a final compliance waiver. ANCA provides that U.S. air 
carriers may apply for a waiver from final compliance. This document 
outlines the requirements for a petition for waiver from the final 
compliance requirements of the Stage 3 transition regulations.

EFFECTIVE DATE: March 2, 1998.

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: 

Background

    The Airport Noise and Capacity Act of 1990 (ANCA) provides that 
after December 31, 1999, no person may operate a Stage 2 airplane over 
75,000 pounds in the contiguous United States. This statutory 
requirement is codified at 14 CFR 91.853. ANCA also provides that a 
U.S. air carrier may request a limited waiver under certain 
circumstances.
    In order to facilitate planning by affected U.S. air carriers, the 
Federal Aviation Administration (FAA) is summarizing the regulatory and 
statutory requirements for final waiver requests from the Stage 3 
transition regulations.

Filing Requests

    As stated in 49 U.S.C. 47528(b), a U.S. air carrier may apply for a 
waiver from final compliance if, by July 1, 1999, at least 85% of the 
air carrier's fleet meets Stage 3 noise standards. ANCA requires that 
waiver applications must be filed no later than Friday, January 1, 
1999. These statutory provisions are also codified in 14 CFR 91.873. 
Although the statute states that applications are to be filed with the 
Secretary of Transportation, authority for ANCA requirements has been 
delegated to the FAA (see CFR 1.47(s)).
    The statutory criteria for petitioning for a waiver from final 
compliance are codified at 14 CFR 91.873. Since ANCA was enacted in 
1990, the FAA had to determine how new entrants would be considered 
under this criteria. The FAA decided that to be eligible to apply for 
the waiver under this section, a new entrant U.S. air carrier must 
initiate service no later than January 1, 1999, and must comply fully 
with all provisions of Sec. 91.873, including having a fleet that would 
be 85% Stage 3 by July 1, 1999.
    Each request from a petitioning air carrier for a final compliance 
waiver will be reviewed to determine whether it meets the basic 
criteria listed in 14 CFR 91.873. If the criteria are not met, the 
petitioning air carrier will receive a letter indicating that all of 
the required information has not been submitted. Petitioning air 
carriers will have an opportunity to submit missing information before 
any disposition is final.
    When the FAA promulgated the Stage 3 transition regulations in 
1991, it stated in the preamble that ``[t]he FAA has not changed its 
basic position from the notice of proposed rulemaking that waivers from 
the final compliance date will not be automatic. The FAA agrees that 
operators should be cautioned to plan for the final compliance date; if 
the Congress did not intend the cessation of Stage 2 operations in the 
contiguous United States by December 31, 1999, that provision would not 
appear in the statute. The FAA intends the statutory waiver provision 
to be a relief valve against unforeseen economic and supply 
circumstances to be determined based on the circumstances of the 
individual operators at the time. ``Automatic'' waivers cannot provide 
for unique circumstances.''

Criteria (14 CFR 91.873)

    ANCA contains a provision that allows U.S. air carriers to apply 
for a waiver from final compliance. This statutory provision is 
implemented in 14 CFR 91.873. In order to apply for a waiver from final 
compliance, at least 85% of a U.S. air carrier's fleet must meet Stage 
3 noise standards by July 1, 1999. Applications must be filed with the 
FAA by January 1, 1999, and they must include a plan with firm orders 
for replacing or modifying all airplanes to ensure compliance with 
Stage 3 noise levels at the earliest practicable time. To avoid any 
misinterpretation, the FAA reminds each affected U.S. air carrier that 
its annual report for 1998, which is required under Sec. 91.875, must 
reflect the carrier's progress in meeting the 100% Stage 3 requirement 
fleet by December 31, 1999. Annual reports for 1998 may not use the 
final waiver as an expected means of compliance.
    The statute requires that a waiver from final compliance may be 
granted only if the granting of such a waiver is found to be in the 
public interest. No waivers may be granted beyond December 31, 2003. In 
determining whether the public interest criteria is met, the FAA will 
use elements similar to those used to consider interim compliance 
waivers under Sec. 91.871. The criteria used under Sec. 91.871 are as 
follows:
    Each application for a waiver must contain all of the following:
    1. The petitioning air carrier's plan to achieve interim and final 
compliance;
    2. An explanation of the petitioning air carrier's efforts to date 
to achieve compliance; and
    3. The petitioning air carrier has to show why its request would be 
in the public interest.
    In accordance with its previous interim compliance waiver 
requirements, the FAA will also consider whether compliance has been 
shown to be:
    1. financially onerous;
    2. physically impossible;
    3. technologically infeasible; or

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    4. have an adverse effect either on competition or service to small 
communities.

Scope of Request

    Each waiver request will be considered only for the airplanes 
operated by the petitioning air carrier on the date the request was 
submitted to the FAA. The FAA's analysis will take into account the 
total circumstances of the petitioning air carrier, including all 
actions taken up to the date of the request.

Publication

    Upon completion of the review and determination that the petition 
of the air carrier is complete in accordance with the criteria 
described above, a summary of the petition will be published in the 
Federal Register for public comment for a minimum of 14 days. A docket 
will be opened that contains the petition, any other pertinent 
information, and any comments received.

Response

    After the close of the comment period, the FAA may grant a waiver 
after considering whether granting such waiver would be in the public 
interest and if granting such waiver fulfills the statutory intent of 
phasing out Stage 2 airplanes. In making such a finding, the statute 
requires the FAA to consider the effect of granting such waiver on 
competition in the air carrier industry, the effect on small community 
air service, and any other information submitted by the petitioning air 
carrier. Also, the FAA will not act upon a waiver request until the 
petitioning air carrier meets the 85% Stage 3 airplane fleet 
requirement, which must be met no later than July 1, 1999, to get a 
waiver. If the results of the analysis show that the petitioning air 
carrier has met the criteria, the FAA will prepare documentation to 
grant the request for waiver. If the analysis shows that the 
petitioning air carrier has failed to meet the criteria, the FAA will 
prepare documentation to deny the request. A copy of the approval or 
denial document will be placed in the docket, and it will be made 
available for public inspection.

Length of Waiver

    Any waiver granted will be for the shortest possible time as 
required by the circumstances presented by the petitioning air carrier, 
but in no case will the waiver permit the operation of any Stage 2 
airplane subject to Sec. 91.853 after December 31, 2003. If the 
petitioning air carrier cannot achieve compliance within the time frame 
granted in a waiver, the petitioning air carrier must submit a new 
request that will be evaluated under the same criteria as the original 
request. New requests that fail to provide more information than the 
original will be denied.

Dual-Certificated Airplanes

    The FAA is taking this opportunity to remind operators about the 
special procedures available for noise compliance by dual-certificated 
airplanes.
    Certain Boeing 747 airplanes received dual noise certification, and 
the appendices of the Airplane Flight Manuals (AFM) for these airplanes 
contain the weights and flap settings for both Stage 2 and Stage 3 
operations. The FAA considers all such airplanes to be Stage 2 
airplanes for compliance purposes unless and until one of three options 
is chosen by the operator. These options are:
    1. The aircraft is designated in the operations specifications, 
paragraph A26, as restricted to Stage 3 operation when operating to or 
from any airport in the contiguous 48 United States;
    2. The operator surrenders the dual certification to the FAA or 
Boeing through amendment of the AFM by supplemental type certificate. 
The AFM would then contain only the operating limits for Stage 3 
operation; or
    3. If an operator demonstrates to the FAA that the configurations 
listed in the AFM for Stage 2 and Stage 3 operations are identical at 
the maximum gross takeoff weight of the airplane, the airplane may be 
designated Stage 3.
    Only Boeing 747 airplanes that had previously received dual type 
certification are eligible to use these compliance options. These 
compliance options are available for use during the interim compliance 
period. After December 31, 1999, one of these options must be chosen 
for each dual-certificated Boeing 747 or the airplane will not be 
eligible for inclusion on the U.S. operations specifications of the 
operator.

    Issued in Washington, DC, on February 24, 1998.
James D. Erickson,
Director of Environment and Energy.
[FR Doc. 98-5295 Filed 2-27-98; 8:45 am]
BILLING CODE 4910-13-M