[Federal Register Volume 59, Number 225 (Wednesday, November 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28916]


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[Federal Register: November 23, 1994]


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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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