Procedures for Processing Petitions for Final Compliance Waivers

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

[[Page 10124]]

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]

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