Dispositions of Noise Waiver Petitions

DEPARTMENT OF TRANSPORTATION

14 CFR Part 91

[Docket Nos. 27869; 27894; 27899]

Dispositions of Noise Waiver Petitions

AGENCY: Federal Aviation Administration, DOT.

ACTION: Disposition of Noise Waiver Petitions.

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SUMMARY: This document contains the dispositions of three petitions for

waiver from the first compliance date under the Stage 3 transition

regulations. Because of significant public interest in the filing of

these petitions and the FAA's analysis of the arguments presented

therein, the FAA is publishing these dispositions to disseminate its

policy as established in these dispositions.

EFFECTIVE DATE: These determinations are effective November 17, 1994.

FOR FURTHER INFORMATION CONTACT:

Laurette Fisher (AEE-300), Office of Environment and Energy, Federal

Aviation Administration, 800 Independence Ave., SW., Washington, DC

20591; phone (202) 267-3553.

SUPPLEMENTARY INFORMATION: When the FAA promulgated the regulations

requiring a transition to an all Stage 3 fleet, it established a series

of three dates by which a certain level of compliance must be

established; the first compliance date is December 31, 1994.

The regulations also include, in Sec. 91.871, a provision allowing

an operator to apply for a waiver from any interim compliance

requirement. Section 91.871 sets out the information that must be filed

by a petitioner, including a showing that a grant of a waiver would be

in the public interest, the operator's plan for compliance, the

petitioning operator's current financial position and fleet

composition, and a showing that compliance would be financially

onerous, physically impossible, technologically infeasible, or that it

would have an adverse impact on competition or service to small

communities.

This document sets out the FAA's dispositions of three of the first

petitions for waiver received pursuant to Sec. 91.871. Because of

significant public interest in the filing of these petitions and the

FAA's analysis of the arguments presented therein, the FAA is

publishing these dispositions to disseminate its policy on waivers from

the transition rules. Subsequent dispositions by the FAA will be

published in summary form only.

Each determination was made on the basis of the filings of the

individual petitioner, and thus no combined summary of these

dispositions is appropriate. These dispositions and the supporting

petitions, public comments, and other documentation are available for

review in the FAA Rules Docket, 800 Independence Ave., SW., Washington,

DC. Dockets may be inspected in Room 915G weekdays from 9:00 a.m. to

5:00 p.m., except federal holidays.

Issued in Washington, DC on November 17, 1994.

Louise E. Maillett,

Director of Environment and Energy.

Regulatory Docket No. 27869

In the Matter of the petition of Millon Air, Inc. for a waiver from

14 CFR 91.865.

Denial of Waiver

By petition dated August 3, 1994, Suzette Matthews, Berstein &

Matthews, 5649 John Barton Payne Road, Marshall, VA 22115, petitioned

the Federal Aviation Administration (FAA) on behalf of Millon Air, Inc.

(Millon Air), pursuant to 14 CFR 91.871 for a waiver from 14 CFR

91.865. A grant of the requested waiver would allow Millon Air to

operate all of its Stage 2 airplanes beyond the interim compliance date

of December 31, 1994.

The petitioner requests relief from the following regulation:

Section 91.865 requires that after December 31, 1994, each operator

of Stage 2 airplanes (other than new entrant air carriers) must either

reduce the number of Stage 2 airplanes it operates by 25% (to 75% of

its base level) or achieve a fleet mix of airplanes that is 55% Stage

3.

The petitioner applied for relief pursuant to 14 CFR 91.871, which

provides that any operator subject to Sec. 91.865 may apply for a

waiver from any interim compliance requirement, and must submit the

information described in that section including the applicant's

financial position, the status of its fleet and operations, the reason

the waiver is necessary, and the public interest to be served in

granting a waiver.

The petitioner submitted the following arguments and information in

support of its request for a waiver:

Millon Air operates an all-cargo service on a charter basis

worldwide and by scheduled service between the United States and

Central and South America. Millon Air operates a fleet of four Stage 2

airplanes, three Boeing 707's and one McDonnell Douglas DC-8. To comply

with the December 31, 1994, interim compliance date in Sec. 91.865(b),

Millon Air would need to retrofit or ground one of its airplanes. If

Millon Air chooses to comply with the 55% Stage 3 fleet mix requirement

of Sec. 91.867(d), it would need to add four Stage 3 airplanes to its

fleet of four Stage 2 airplanes.

The petitioner states that neither option is considered possible.

First, Millon Air states that because no retrofit equipment is

currently available or under development to upgrade its current

airplanes to Stage 3, retrofit of one airplane is technically and

physically impossible. Further, even if Stage 3 retrofit equipment were

available, the cost of such equipment would, based on the cost of

comparable equipment, exceed the value of the airplanes.

The petitioner also states that purchasing a replacement Stage 3

airplane would be prohibitively expensive for a carrier its size, and

that such airplanes would be too costly to operate in the competitive

markets in which Millon Air operates. Millon Air also states that it

has been unable to locate any used aircraft that have been upgraded to

Stage 3 for lease or purchase.

Millon Air states that because it operates out of Miami, Florida,

taking off over water, the environmental impact of its one additional

airplane would be negligible. Millon Air states that removing one

aircraft from service, however, would have a significant negative

impact on competition in the markets it serves. Millon Air states that

it believes that the FAA should grant waivers to all operators of 707's

and DC-8's for which no noise retrofit equipment is available.

Millon Air also states that a waiver would be in the public

interest because there are no safety implications in continuing Stage 2

operation, and because those wishing to ship items between the United

States and Central and South America have ``no real alternatives to the

reasonably priced air transportation provided by small operators such

as Millon Air.''

On September 7, 1994, the FAA sent a letter to the petitioner

indicating that the agency considered the petition to be lacking

certain information. Specifically, the FAA requested that the

petitioner submit additional information concerning how the grant of a

waiver would benefit the public as a whole, and more information on the

petitioner's compliance plan and its good faith efforts to comply with

Sec. 91.865.

On September 19, 1994, the petitioner responded by reiterating the

arguments presented in its original petition concerning public

interest. The petitioner also stated that its compliance plans were

submitted pursuant to Sec. 91.875 as required.

On October 6, 1994, a summary of the petitioner's request was

published in the Federal Register for public comment. Eight commenters

responded to the notice, including four operators, two air carrier

associations, and two airport associations. All of the commenters

opposed a grant of the requested waiver.

The FAA's analysis is as follows:

The FAA has determined that the petitioner has not met the criteria

outlined in 14 CFR Sec. 91.871, and the grant of the petitioner's

request for a waiver would not be in the public interest.

First, Millon Air states that it needs the requested waiver because

no equipment is available to retrofit either of the airplane types it

operates, Boeing 707's and a McDonnell Douglas DC-8. Accordingly,

Millon Air concludes that retrofit is technically and physically

impossible.

The FAA cannot accept the nonexistence of retrofit equipment as the

basis for a waiver. If it did, the agency would be obligated to grant a

waiver to every operator of such equipment, ostensibly for the entire

interim compliance period. The FAA is confident that this was not the

intent of Congress in directing a phased reduction in noise in the

Airport Noise and Capacity Act of 1990; in fact, these older airplanes

with no ability to be upgraded are precisely the airplanes that must be

eliminated from the fleet to meet the goals established by Congress for

a quieter overall aircraft operating environment. Further, by ordering

a phased reduction, Congress sought to soften the economic blow of a

sudden operational prohibition. To protect these airplanes until the

final compliance date would not only negate the goal of the

Congressional mandate, but would eliminate the expected interim noise

benefits and unduly reward the actions of those operators of the oldest

airplanes that chose not to invest in the newer technology that their

competitors have.

To the FAA, technologically infeasible means a viable retrofit

program is under active development for a particular aircraft model,

and that the petitioner has committed to taking advantage of that

technology as soon as it is available. The FAA would evaluate such

requests in light of whether a reasonable expectation exists for

certification, manufacture, delivery, and installation of that

technology as put forth by the petitioner, including an evaluation of

when the development program began.

To the FAA, physically impossible means while appropriate noise

abatement technology exists, the petitioner is unable to achieve

delivery and installation of that technology in time to meet the

interim compliance date. In evaluating such a petition, the FAA would

consider the amount of notice the individual petitioner had of its need

for the technology, as well as the petitioner's other actions toward

compliance. The FAA would not, for example, accept the argument of an

established operator that, when it sought to purchase such technology

in late 1994, discovered that delivery positions were not available in

time to meet the December 31, 1994, compliance date.

Millon Air's circumstances do not meet either the situations

outlined above, but the petition does state that Millon Air seeks only

temporary relief ``so it can continue to operate its aircraft until

suitable retrofit or comparable replacement equipment becomes

available.'' Millon Air also argues that there are no comparable

replacements for these airplanes that can be operated as cheaply. Taken

together, one conclusion would be that there will never be a suitable

replacement since it is unlikely that a newer, quieter airplane would

ever be cheaper to acquire and operate than those in Millon Air's

current fleet; a waiver on such grounds would apparently continue

indefinitely. Further, Sec. 91.871(e) states that no waiver will be

granted for a period any longer than the date of the next compliance

period. Millon Air's petition does not show any expectation that the

circumstances or its approach to compliance will change in that time.

As indicated previously, the FAA examines closely each petitioner's

plans and actual actions toward compliance in determining whether a

waiver request is reasonable and was made in good faith. In its

required filings, Millon Air initially reported that it planned to meet

the compliance requirements by ``retirement of Stage II or addition of

Stage III aircraft.'' In two subsequent reports, Millon Air indicated

that it planned to comply in 1994 by phasing out 25% of its Stage 2

airplanes without further detail. Millon Air's petition does not

contain any information as to changed circumstances or why the

retirement of one airplane is no longer feasible. While Millon Air has

looked into the lease or purchase of Stage 3 airplanes as an

alternative, it concluded that purchase of a new airplane is

financially impossible and that no used aircraft are available for

purchase or lease. Accordingly, the petitioner has chosen to re-lease

the same airplanes with full knowledge that the composition of its

fleet would not meet the first compliance deadline.

The FAA has determined that these actions do not constitute a good

faith effort to comply with the interim compliance requirements. In

general, a good faith effort to comply is one in which the operator

established a timely, achievable plan for compliance and made

reasonable efforts to keep that plan current and follow it. Waivers

will be considered for operators with such a plan that, for the reasons

presented, became unable to follow that plan in time to meet the

compliance date. Good faith would generally not be found when, for

example, an operator's plan depends on its hope that new technology

will be developed, where an operator's actions reflect no effort to

investigate available options, or when an operator makes only eleventh-

hour efforts that it reasonably should have known would not be

successful before the compliance date at hand. In this case, the FAA

has determined that no good faith effort has been demonstrated, since

Millon Air has not shown a willingness even to adhere to its own

compliance plan, but appears to be relying on the existence of the

waiver provision to continue its current operations after the December

31, 1994, compliance date.

Finally, the FAA considers full compliance with the interim

compliance requirements to be in the public interest, and any waiver

granted from an interim requirement must reflect a net public benefit

when weighed against noncompliance with the rule. Contrary to the

statements of the petitioner, the FAA considers this balance to be more

than a lack of safety impact or a negligible impact on overall noise in

the petitioner's operating environment. The petitioner argues that the

public would be harmed if the one airplane involved in this waiver is

removed from service in the United States-South America cargo operation

it offers. In presenting such an argument in a petition for waiver, the

FAA would expect to see some assessment of the actual impact of

diminished service that could reasonably be anticipated by the removal

of the petitioner's airplane from the market. Millon Air offers no such

assessment, only stating without supporting evidence that the

prohibition of operation of one of its aircraft will have a

``significant negative impact on competition.''

The petitioner also states that cargo shippers have ``no real

alternatives to the reasonably priced air transportation provided by

operators such as Millon Air.'' Again, the petitioner's statement was

not accompanied by any evidence to support this assertion of current or

anticipated market conditions. The statement is contradicted, however,

by submissions of the commenters, including air cargo associations and

other cargo carriers. In fact, by noting the existence of other similar

operators, the petitioner's statement appears to contradict its own

argument that removal of its single airplane will have the proffered

significant effect on competition.

Finally, many of the petitioner's arguments have at their base the

petitioner's choice to continue operating with the same equipment and

desire not to adhere to its own compliance plan. The only reasons put

forth are that no noise abatement technology has been developed by

anyone else for the old airplanes it operates, and that new technology

is expensive. These same factors face every operator of 707's and DC-

8's, and each of these factors has been known at least since the phased

compliance regulations were promulgated in 1991. The petitioner's

choice to continue operating this same equipment is a business decision

made with full knowledge of the regulatory requirements, and there is

no public interest to be served in allowing a waiver on this basis.

Accordingly, the FAA has determined that the totality of the

circumstances and arguments presented by the petitioner for a waiver

from Sec. 14 CFR 91.865 are not in the public interest.

In consideration of the foregoing, I find that the request for a

waiver is not in the public interest. Therefore, by the authority

delegated to me by the Administrator, the petition for a waiver by

Millon Air, Inc., to Sec. 91.865, pursuant to Sec. 91.871, is hereby

denied.

Issued in Washington, DC on November 17, 1994.

Louise E. Maillett,

Director of Environment and Energy.

Regulatory Docket No. 27899

In the Matter of the petition of AirTran Airways, Inc. for a waiver

from 14 CFR 91.867.

Denial of Waiver

By petition dated September 1, 1994, AirTran Airways, Inc.

(AirTran) petitioned the Federal Aviation Administration (FAA) pursuant

to 14 CFR 91.871 for a waiver from 14 CFR 91.865. On September 13,

1994, in response to questions from the FAA, the petitioner submitted a

supplement to its request. The requested waiver would allow AirTran to

operate an all Stage 2 fleet until June 30, 1995.

The petitioner requests relief from the following regulation:

Section 91.867 requires that after December 31, 1994, each new

entrant air carrier must operate a fleet that is at least 25% Stage 3.

The petitioner applied for relief pursuant to 14 CFR 91.871, which

provides that any new entrant operator subject to Sec. 91.867 may apply

for a waiver from any interim compliance requirement, and must submit

the information described in that section including the applicant's

financial position, the status of its fleet and operations, the reason

the waiver is necessary, and the public interest to be served in

granting a waiver.

The petitioner submitted the following arguments and information in

support of its request for a waiver:

AirTran is a subsidiary of AirTran Corporation (the Corporation).

AirTran began service in June 1994 as Conquest Sun Airlines, flying

passenger charters. AirTran began scheduled passenger Service in early

October 1994. AirTran serves the ``low fare leisure market'' from the

East Coast to Florida. AirTran currently operates two leased Stage 2

Boeing 737-200 airplanes. The leases for these airplanes were in place

when the Corporation acquired the business in June 1994. AirTran plans

to acquire two more Stage 2 737-200 airplanes in late 1994, and one

more in the spring of 1995. Under Sec. 91.867, the addition of the two

airplanes in late 1994 would require one of the four airplanes in

AirTran's fleet to be a Stage 3 airplane after December 31, 1994.

AirTran's plans to acquire those aircraft lead to his request for a

waiver.

AirTran indicates that the leases of the airplanes it currently

operates do not contain provisions to hushkit those airplanes to meet

Stage 3 noise levels. AirTran intends to incorporate hushkit provisions

in the lease for the two additional airplanes it seeks. The petitioner

notes, however, that even if the lease negotiations were already

complete, no hushkit would be available until spring 1995. Although

there is more than one hushkit available for the petitioner's airplane,

AirTran indicates that only one of them meets its range and payloads

needs, the other ``creates too large an impact on fuel efficiency to be

economically viable for AirTran operations.'' AirTran submitted a

memorandum of understanding with the hushkit manufacturer that would

guarantee a January 1995 delivery position, with the airplane being

ready for service in the spring. The petitioner states that its

research into using other aircraft models showed that they are both

expensive and do not meet its business plans.

AirTran states that timing is critical in its request for this

waiver. AirTran states that a waiver is critical if it is to be able to

conduct its planned service, ``since the winter months are the prime

travel season'' for the East Coast-Florida leisure market. AirTran

indicates that initiation of this service in the summer months would

``not be prudent'' and a failure to obtain a waiver could prevent a

service expansion for as long as nine months.

AirTran states that grant of a waiver would enable it to

``negotiate economically viable leases on hush-kitted aircraft with

proven efficiency while still providing increasing service and

competition'' in the market it serves. The petitioner also states that

its planned transition to Stage 3 airplanes will allow it ``to be in

compliance with the fifty percent Stage 3 deadlines of December 31,

1996.'' For these reasons, the petitioner states, a grant would be in

the public interest.

On October 6, 1994, a summary of the petitioner's request was

published in the Federal Register for public comment. Seven commenters

responded to the notice, including two airport associations, four

operators, and one national environmental organization. All of the

commenters opposed a grant of the requested relief.

The FAA's analysis is as follows:

The FAA has determined that a grant of the petitioner's request for

a waiver would not be in the public interest.

First, it is FAA policy to consider for the possibility of waiver

only those airplanes in operation by an operator on the date of the

petition. In this instance, the operator has not yet leased the

airplanes for which it requests a waiver.

When the Corporation acquired the former Conquest Sun Airlines in

June 1994, it was, or should have been, well aware of the requirements

for new entrants in Sec. 91.867 and the status of the leased airplanes

it acquired in the transaction. The basis for its request, then, is not

that its circumstances somehow changed from its planned means of

compliance, but appears to be its own business plan to acquire two more

Stage 2 airplanes by the end of the year.

In the Airport Noise and Capacity Act of 1990, which gave rise to

the compliance schedule in Sec. 91.867, Congress mandated that there be

an analysis of the impact of any compliance schedule ``on new entry

into the airline industry.'' As a result of this mandate, the FAA

promulgated a rule that gave new entrants a less stringent compliance

schedule that was based on the perceived need to be adding new

airplanes to their fleets. The FAA does not interpret this mandate as

requiring the FAA to accept the business plans of new entrants that

call for operation of Stage 2 airplanes past any compliance date,

especially when the new entrant makes those plans and begins service

just a few months before a compliance date. In this case, the

petitioner would be free to add a third Stage 2 airplane to its fleet

without any further action. It is the fourth airplane, not yet leased,

that the petitioner would need to make Stage 3 before it operates.

Although the petitioner has not yet leased this airplane, it is

apparantly unwilling to adapt its business plans to use only that level

of service it can achieve in compliance with a regulation that predates

the existence of the airline.

Since the petitioner is a new entrant, it does not yet have a

compliance plan on file. The petition gives little information as to

the petitioner's planned compliance, other than to say it can afford

the necessary hushkit and is in the early stages of contracting for it,

to be installed on an airplane that is not yet leased. The petitioner

has submitted no information why its current business plan does not

take into account the upcoming compliance date without asking for a

waiver. As part of its annual compliance report, if any operator were

to submit as its compliance plan that it planned to ask for a waiver,

the FAA could not find that the operator's plan was made in good faith;

the petitioner exhibits the same lack of good faith by sticking to its

business plan for an airline acquired in June 1994.

The FAA has determined that, taken together, these circumstances do

not exhibit a good faith attempt to comply with the regulation, as

required in Sec. 91.871.

Moreover, the petitioner fails to state any reasonable public

interest that would be served by granting the requested relief, if it

were available. The FAA considers full compliance with the interim

compliance requirements to be in the public interest, and any waiver

granted from an interim requirement must reflect a net public benefit

when weighed against noncompliance with the rule. The petition states

only that the waiver would enable the petitioner to negotiate better

leases on hushkitted airplanes ``while still providing increasing

service and competition East Coast markets to Florida,'' and that it

will assist the petitioner in achieving ``compliance with the fifty

percent Stage 3 deadline'' in 1996.

The waiver provision was not promulgated to assist any operator in

achieving better business deals, nor is it clear how a denial of this

waiver could affect the petitioner's compliance in 1996. Further, the

FAA will consider waivers based on reduced competition when a

petitioner presents an assessment of the affected market if a waiver

were not granted. In this case, the market will not change from its

current status if the waiver is not granted. The waiver provision does

not exist for the purpose of increasing competition. The FAA does not

accept the argument that every airplane in a particular market

represents competition, and therefore it is in the public interest to

maximize that number at all costs. To allow such reasoning would be

unfair to the competing operators in the market that have already

complied with the same requirements the petitioner seeks to avoid.

Increased competition does not outweigh the public's interest in

compliance with the regulations or the accompanying reduction in noise

levels anticipated by the Congress and the public when the regulations

were adopted in 1991. These arguments are reiterated by the commenters

to this petition, one of which is a new entrant in a similar market

that is already in compliance with the rule.

Accordingly, the FAA has determined that the arguments presented by

the petitioner reflect neither a good faith attempt to comply with the

regulations nor any convincing statement of public interest in a grant

of the requested waiver.

In consideration of the foregoing, I find that the request for a

waiver is not in the public interest. Therefore, under the authority

delegated to me by the Administrator, the petition for a waiver by

AirTran Airways, Inc., to Sec. 91.865, pursuant to Sec. 91.871, is

hereby denied.

Issued in Washington, DC on November 17, 1994.

Louise E. Maillett,

Director of Environment and Energy.

Regulatory Docket No. 27894

In the Matter of the petition of AirTran Corporation for a waiver

from 14 CFR 91.867.

Denial of Waiver

By petition dated August 29, 1994, AirTran Corporation (AirTran)

petitioned the Federal Aviation Administration (FAA) pursuant to 14 CFR

91.871 for a waiver from 14 CFR 91.855 and 91.865. The requested waiver

would allow AirTran to import Stage 2 airplanes from foreign markets,

and begin and continue operation with an all Stage 2 fleet beyond the

interim compliance date of December 31, 1994.

The petitioner requests relief from the following regulations:

Section 91.855 prohibits the operation in the contiguous United

States of any Stage 2 airplane that was not U.S.-owned on November 5,

1990.

Section 91.867 requires that after December 31, 1994, each new

entrant must operate a fleet that is at least 25% Stage 3.

The petitioner applied for relief pursuant to 14 CFR 91.871, which

provides that any new entrant operator subject to Sec. 91.867 may apply

for a waiver from any interim compliance requirement, and must submit

the information described in that section including the applicant's

financial position, the status of its fleet and operations, the reason

the waiver is necessary, and the public interest to be served in

granting a waiver.

The petitioner submitted the following arguments and information in

support of its request for a waiver:

AirTrain does not currently own or operate any aircraft. Its

planned service includes daily passenger flights between Pittsburgh,

Philadelphia, and Detroit. On January 24, 1994, AirTrain was granted a

Certificate of Public Convenience and Necessity by the Department of

Transportation. That certificate is not yet effective, pending

AirTrain's receipt of an air carrier certificate, not yet issued by the

FAA.

AirTrain indicates that its strategic business plan calls for it to

provide the planned service using McDonnell Douglas DC-9 aircraft

exclusively. The petitioner's efforts to locate any suitable DC-9 30/40

series airplanes domestically has been unsuccessful, but it has located

several of them overseas that it can ``more realistically afford at

this stage as a new entrant.'' The petitioner is aware that Sec. 91.855

prohibits the operation of imported airplanes, and seeks relief from

that section. The petitioner also states that to have 25% of its

airplanes be Stage 3 after December 31 of this year ``would be

financially onerous to it as a new entrant, and in addition be

physically impossible to accomplish before December 31, 1994, even if

it were not financially onerous,'' and thus seeks a waiver from that

requirement as well.

The petitioner did not submit a current balance sheet and cash flow

statement as required by Sec. 91.871(c)(1), stating that the

information was not available.

The petitioner states that a grant of the requested relief would be

in the public interest because the public has an unfulfilled need for

the contemplated service, because the commencement of operations will

create jobs in the market cities, because the contemplated service will

be an economical alternative for travel between the market cities,

because failure to grant the requested relief would have an adverse

effect on competition since the public would be ``deprived of an

additional mode of transportation'' between the market cities, because

failure to provide the requested relief would have an adverse effect on

service to small communities surrounding the market cities, and because

failure to grant the requested relief would ``severely limit

competition and free market pricing of air fares'' in the market.

On August 31, 1994, the petitioner supplemented its original

request by submitting an updated copy of its Certificate of Public

Convenience and Necessity.

On October 6, 1994, a summary of the petitioner's request was

published in the Federal Register for public comment. Seven commenters

responded to the notice, including two airport associations, four

operators, and one national environmental organization. All of the

commenters opposed a grant of the requested relief.

The FAA's analysis is as follows:

The FAA has determined that the petitioner has not met the criteria

outlined in 14 CFR 91.871, and that grant of the petitioner's request

for a waiver and other relief is not within FAA's authority and would

not be in the public interest.

The request for relief from Sec. 91.855 is inappropriate. The

prohibition on the operation of foreign-owned aircraft purchased by a

U.S. person in the contiguous United States is contained in Sec. 9309

of the Airport Noise and Capacity Act of 1990 (ANCA) and is known as

the nonaddition rule. The only exemption allowed under ANCA is for an

imported Stage 2 airplane to be brought into the United States to

obtain modifications to meet Stage 3 noise levels. The principles of

that prohibition were incorporated into Sec. 91.855, but the FAA has no

authority to go beyond the single exemption found in the ANCA. Simply,

the FAA cannot grant the relief requested--to permit operation of an

imported Stage 2 airplane in the contiguous United States. The waiver

provision of Sec. 91.871 by its terms applies only to the interim

compliance requirements of Sec. Sec. 91.865 and 91.867.

Even if the petitioner were able to acquire airplanes domestically,

its petition would fail for other reasons. First, it is FAA policy to

consider for the possibility of waiver only those airplanes in

operation by an operator on the date of the petition. In this instance,

the petitioner does not have any airplanes in operation.

Second, it is also FAA policy that no prospective relief be

granted. Section 91.851 defines ``new entrant'' as an air carrier that

begins operating after November 5, 1990. Since the petitioner has not

yet achieved FAA certification to operate, it is not yet operating

under the provisions of Sec. 91.867 to be considered a new entrant or

to ask relief from that regulation.

Further, even if the petition were not inappropriate for these

reasons, it would still fail on it merits. The primary basis of the

petitioner's argument is its ``strategic business plan'' that calls for

the operation of one type of aircraft. The petitioner has noted that

such airplanes are not available domestically, but has chosen to remain

with that plan and seek exemption from a legislative prohibition. The

petition does not contain the required financial information or any

other data concerning acquisition costs to support its statement that

compliance would be financially onerous. Since the petitioner claims to

be a new entrant, it does not have a compliance plan on file, but

neither does the petition include the petitioner's plan for compliance

nor any evidence of how the petitioner would meet future interim

compliance requirements were the requested relief granted.

The FAA has determined that, taken together, these arguments

demonstrate neither reasonableness nor good faith in applying for a

waiver. Instead of changing its business plan to meet the requirements

of a regulation that has been in place since 1991, the petitioner has

requested that it be grandfathered into the compliance schedule as if

it had begun operation already, and then asks that that relief be

extended beyond what would be required if it had commenced operations.

Simply put, if the petitioner cannot affort to commence operation

according to the regulations, the FAA can have little expectation that

the petitioner will ever be able to comply, and the only good faith

action is for the petitioner to adjust its business plans accordingly,

a course of action that the petitioner has already expressed it is

unwilling to take.

Moreover, the petitioner fails to state any reasonable public

interest that would be served by granting the requested relief, if it

were available. The FAA considers full compliance with the interim

compliance requirements to be in the public interest, and any waiver

granted from an interim requirement must reflect a net public benefit

when weighed against noncompliance with the rule. The petitioner has

stated but not shown that there is an ``unfulfilled need'' for the

contemplated service between Philadelphia, Pittsburgh, and Detroit, but

the data it submitted regarding the current available service rebuts

this. While the petitioner states that its contemplated service will be

at much lower fares than currently available, the only evidence is the

petitioner's plan to charge less and its general statements that

dramatic fare reductions have been achievable by other carriers in

other markets.

Taken as a whole, these general statements are not convincing that

the waivers required to achieve this contemplated service in any manner

outweighs the public interest in a quieter environment as established

by Congress and in compliance with the regulations in general. The

petitioner has not presented any logical evidence how the failure to

grant relief could have a negative impact on competition or fares,

since the petitioner is not yet offering any competing service nor has

it presented evidence that it will be able to operate for lower fares;

as yet, there are no aircraft on which to even base cost estimates. The

petitioner's claim of adverse effect on service to small communities

surrounding the market cities is oxymoronic, since considerations of

service to small communities have historically had no relation to

service from the closest large cities. Finally, to allow the petitioner

to begin operation without being subject to the same rules under which

its competition operates would be markedly unfair to the operating

carriers in those markets who have met the requirements with the same

notice and market conditions affecting the petitioner.

Accordingly, the FAA has determined that the petitioner's requested

relief from Sec. 91.855 is outside the authority of the FAA to grant,

that its petition requesting relief under Sec. 91.867 is inappropriate

given its lack of certification and current operation, and that the

arguments presented in its petition do not reflect a good faith attempt

to comply with the regulations and are not in the public interest.

In consideration of the foregoing, I find that the request for a

waiver is not in the public interest. Therefore, by the authority

delegated to me by the Administrator, the petition for a waiver by

AirTran Corporation to Sec. 91.865, pursuant to Sec. 91.871, is hereby

denied.

Issued in Washington, DC on November 17, 1994.

Louise E. Maillett,

Director of Environment and Energy.

[FR Doc. 94-28916 Filed 11-18-94; 3:36 pm]

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