[Federal Register: May 3, 2005 (Volume 70, Number 84)]
[Rules and Regulations]
[Page 23001-23004]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03my05-15]
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Part II
Department of Transportation
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Federal Aviation Administration
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14 CFR Parts 71 and 97
Revision of Incorporation by Reference Provisions; Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 71 and 97
[Docket No. FAA-2004-19247; Amdt. Nos. 71-33, 97-1335]
RIN 2120-AI39
Revision of Incorporation by Reference Provisions
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule removes the incorporation by reference of
certain FAA orders and terminal aeronautical charts from the Code of
Federal Regulations. The previous IBR of these materials
inappropriately designated them as regulatory. Instead, the FAA is
incorporating by reference the instrument procedures and weather
takeoff minimums that are documented on FAA forms. This change ensures
that the appropriate material is incorporated by reference into the
FAA's regulations.
DATES: This rule is effective June 2, 2005. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of June 2, 2005.
FOR FURTHER INFORMATION CONTACT: Thomas E. Schneider, AFS-420, Federal
Aviation Administration, P.O. Box 25082, Oklahoma City, OK 73125;
telephone (405) 954-5852; facsimile (405) 954-2528; e-mail
thomas.e.schneider@faa.gov.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); (2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm
; or
(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html
.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Be sure
to identify the docket number, notice number, or amendment number of
this rulemaking.
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-19478) or you may visit http://dms.dot.gov.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. If you are a small entity and you have a
question regarding this document, you may contact your local FAA
official, or the person listed under FOR FURTHER INFORMATION CONTACT.
You can find out more about SBREFA on the Internet at http://www.faa.gov/avr/arm/sbrefa/cfm
.
Statutory Authority for This Rulemaking
The FAA's authority to issue this final rule is derived, in part,
from 49 U.S.C. 40103, which requires the FAA to prescribe air traffic
regulations on the flight of aircraft for navigating, protecting, and
identifying aircraft; protecting individuals and property on the
ground; using the navigable airspace efficiently; and preventing the
collision of aircraft. Furthermore, under 49 U.S.C. 44701(a), the FAA
promotes safe flight by prescribing regulations and minimum standards
for other practices, methods, and procedures necessary for safety in
air commerce.
Background
On April 8, 2003, the FAA adopted the final rule titled
``Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic
Service Routes; and Reporting Points'' (68 FR 16943; April 8, 2003),
which incorporated by reference into 14 CFR 97.20 FAA Orders 8260.3B
and 8260.19C, and the terminal aeronautical charts.
Upon staff review, the FAA concluded the incorporation by reference
(IBR) of these orders and terminal aeronautical charts was in error and
resulted in the inappropriate designation of certain material as
regulatory. The two orders originally incorporated by reference set
forth the criteria used by the FAA to develop instrument approach
procedures (IAPs) and instrument flight rules (IFR) takeoff minimums.
The components that must be regulatory are the actual procedures and
the takeoff minimums, not the developing criteria. Thus, only IAPs and
takeoff minimums, which are delineated on FAA Forms, should be
incorporated by reference. Similarly, it is not appropriate to
incorporate by reference terminal aeronautical charts, as these charts
merely depict IAPs and takeoff minimums.
On October 5, 2004, therefore, the FAA published a Notice of
Proposed Rulemaking (NPRM) (69 FR 59755, Oct. 5, 2004) proposing to
correct the IBR of the material referenced above. The FAA proposed to
incorporate by reference the standard instrument procedures documented
on FAA Forms 8260-3, 8260-4, 8260-5 and the takeoff minimums on 8260-
15A.
Discussion of Comments
Three entities commented on this rule: Airbus, the Aircraft Owners
and Pilots Association (AOPA) and the Air Line Pilots Association,
International (ALPA). All commenters generally supported the proposal.
AOPA commented that the FAA should support Localizer Performance
with Vertical Guidance (LPV) approaches for IFR access to general
aviation airports. AOPA also commented that while the incorporation by
reference of departure procedures on FAA Form 8260-15A may establish
obstacle departure procedures on every departure conducted under IFR,
the FAA should not require pilots to follow these procedures on every
flight. AOPA argues that air traffic control (ATC) may require pilots
to deviate from the procedures, which would cause a conflict with the
departure procedures. Moreover, AOPA objects to the use of forms to
impose new operational requirements upon the general aviation community
without a specific operating requirement in 14 CFR part 91. Airbus also
seeks clarification of the purpose for incorporating FAA Form 8260-15A.
LPV procedures are not part of this rulemaking and this comment is
outside the scope of this rulemaking. Form 8260-15A provides weather
takeoff minimums and textual departure procedures. At the outset, we
regret that the NPRM did not identify specifically that only the
weather takeoff minimums articulated on form 8260-15A were proposed for
incorporation. Consequently, this may have resulted in confusion as to
whether associated departure procedures were also proposed for
incorporation. This amendment distinguishes that the instrument
approach procedures on FAA forms 8260-3, -4, and -5 and the weather
takeoff minimums articulated on FAA form 8260-15A are IBR. Editorial
changes reflecting the above clarification are in the regulatory text.
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With respect to the IBR of FAA form 8260-15A, we believe that AOPA
misunderstands the applicability of this form and the relevant part 91
regulation. This amendment does not add any operational requirements
for part 91 operators. Under current 14 CFR 91.175(f), in pertinent
part, ``Unless otherwise authorized by the Administrator, no pilot
operating an aircraft under parts 121, 125, 129, or 135 of this chapter
may take off from a civil airport under IFR unless weather conditions
are at or above the weather minimums for IFR takeoff prescribed for
that airport under part 97 of this chapter. If takeoff minimums are not
prescribed under part 97 of this chapter for a particular airport, the
following minimums apply to takeoffs under IFR for aircraft operating
under those parts * * *.'' This section does not apply to operations
conducted under part 91. It currently requires operators (conducting
operations under part 121, 125, 129, or 135) to comply with the weather
takeoff minimums prescribed in part 97 for specified airports, and in
the alternative if no weather takeoff minimums are specified in part
97, then Sec. 91.175(f) specifies the required weather takeoff
minimums. This rule provides the vehicle to incorporate by reference
the weather takeoff minimums delineated on FAA form 8260-15A for
designated airports in part 97. The operational requirement to comply
with the takeoff minimums codified in part 97 already exists. Unless
the aircraft operator obtains an authorization in accordance with Sec.
91.175(f) to conduct its operations using weather takeoff minimums
different from those specified in part 97, the takeoff minimums in part
97 must be met. This amendment does not add any new operational
requirements for part 91 operators.
ALPA supports the proposal and specifically requests that special
instrument approach procedures described on FAA form 8260-7 also be
incorporated by reference into part 97 so that industry and the flying
public have the same opportunity to comment and participate in the
development of these procedures.
Special instrument procedures are designed to meet the unique needs
of particular operators and are approved by the FAA for limited use.
Often, specific equipment and training are required to use these
procedures. These procedures are authorized to specific users and are
not available for general use by the flying public. Comments addressing
the administrative process followed to authorize special procedures is
outside the scope of this rulemaking.
The FAA is adopting the amendments as proposed with the
clarification that only the weather takeoff minimums listed on form
8260-15A are incorporated by reference. Furthermore, the Office of the
Federal Register has changed the location at which materials that are
incorporated by reference may be examined. The materials are no longer
available for examination at the Office of the Federal Register.
Instead, the materials are now available for examination at the
National Archives and Records Administration. Section 97.20(b) is
updated accordingly.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new information collection requirement associated with this
final rule.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
Economic Assessment
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs each Federal agency to
propose or adopt a regulation only upon a reasoned determination the
benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act also requires agencies to consider international standards and,
where appropriate, use them as the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by private sector, of $100 million or
more annually (adjusted for inflation).
For regulations with an expected minimal impact the above-specified
analyses are not required. The Department of Transportation's Order DOT
2100.5, which prescribes policies and procedures for simplification,
analysis, and review of regulations, states that if it is determined
that the expected impact is so minimal that the action does not warrant
a full evaluation, a statement to that effect and the basis for it is
included in the regulation. Since this final rule is administrative in
nature removing inappropriate incorporation by reference of material
from FAA regulations and adding appropriate incorporation by reference
material, these changes will not impact the integrity of existing
rules. As a result, this final rule will have a minimal economic
impact.
The FAA has determined that this rule--(1) has benefits that
justify its costs, is not a ``significant regulatory action'' as
defined in section 3(f) of Executive Order 12866, and is not
``significant'' as defined in DOT's Regulatory Policies and Procedures;
(2) will not have a significant economic impact on a substantial number
of small entities; (3) will not have any effect on barriers to
international trade; and (4) does not impose an unfunded mandate on
state, local, or tribal governments, or on the private sector.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and explain the
rationale for their actions. The RFA covers a wide-range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact
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on a substantial number of small entities, section 605(b) of the RFA
provides that the head of the agency may so certify and a regulatory
flexibility analysis is not required. The certification must include a
statement providing the factual basis for this determination, and the
reasoning should be clear.
This final rule is administrative in nature correcting an earlier
action that resulted in an inappropriate designation of certain
material as regulatory. Consequently, the FAA certifies the rule will
not have a significant economic impact on a substantial number of small
entities.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. The FAA has assessed the
potential effect of this rulemaking and has determined that it will
impose no economic impact on domestic and international entities.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $120.7 million in lieu of $100
million.
This rule does not contain such a mandate. The requirements of
Title II of the Act, therefore, do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA has determined
that this action would not have a substantial direct effect 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, and therefore would not have federalism
implications.
Environmental Analysis
FAA Order 1050.1E identifies FAA actions that are categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act in the absence of extraordinary circumstances. The FAA has
determined that this rulemaking action qualifies for the categorical
exclusion identified in paragraph 312(f) and involves no extraordinary
circumstances.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this final rule under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it is
not a significant energy action under the executive order because it is
not a significant regulatory action under Executive Order 12866, and it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
List of Subjects
14 CFR Part 71
Airspace, Navigation (air).
14 CFR Part 97
Air traffic control, Airports, Navigation (air), Incorporation by
reference, Weather.
The Amendments
0
In consideration of the foregoing, the Federal Aviation Administration
amends chapter I of title 14, Code of Federal Regulations, as follows:
PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS
0
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR 1959-1963 Comp., p 389.
Sec. 71.11 [Amended]
0
2. Amend Sec. 71.11 by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b).
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
0
3. The authority citation for part 97 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120,
44502, 44514, 44701, 44719, and 44721-44722.
0
4. Revise Sec. 97.20 to read as follows:
Sec. 97.20 General.
(a) This subpart prescribes standard instrument procedures and
weather takeoff minimums based on the criteria contained in FAA Order
8260.3, U.S. Standard for Terminal Instrument Procedures (TERPs), and
other related Orders in the 8260 series that also address instrument
procedure design criteria.
(b) Standard instrument procedures and associated supporting data
adopted by the FAA are documented on FAA Forms 8260-3, 8260-4, 8260-5.
Weather takeoff minimums are documented on FAA Form 8260-15A. These
forms are incorporated by reference. The Director of the Federal
Register approved this incorporation by reference pursuant to 5 U.S.C.
552(a) and 1 CFR part 51. The standard instrument procedures and
weather takeoff minimums are available for examination at the FAA's
Rules Docket (AGC-200) and at the National Flight Data Center, 800
Independence Avenue, SW., Washington, DC 20590, or at the National
Archives and Records Administration (NARA). For information on the
availability of this material at NARA, call 202-741-6030, or go to
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html
.
(c) Standard instrument procedures and weather takeoff minimums are
depicted on aeronautical charts published by the FAA National
Aeronautical Charting Office. These charts are available for purchase
from the FAA's National Aeronautical Charting Office, Distribution
Division, 6303 Ivy Lane, Suite 400, Greenbelt, MD 20770.
Issued in Washington, DC, on April 21, 2005.
Marion C. Blakey,
Administrator.
[FR Doc. 05-8728 Filed 5-2-05; 8:45 am]
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