[Federal Register Volume 61, Number 162 (Tuesday, August 20, 1996)]
[Notices]
[Pages 43113-43115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20834]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. 28661]
Procedures for Processing Petitions for Interim Compliance
Waivers
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice.
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SUMMARY: This document presents a review of the procedures and
information necessary for an operator of a Stage 2 noise level airplane
subject to the phaseout regulations, resulting from the Airport Noise
and Capacity Act of 1990, to submit a request for a compliance waiver.
As a result of its experience preceding the first interim Stage 2
phaseout compliance date, December 31, 1994, the Federal Aviation
Administration (FAA) reminds all affected operators of the procedures
for applying for interim compliance waivers. This document also serves
as a reminder to operators that as of March 14, 1995, new compliance
arrangements that rely on sharing Stage 3 airplanes for noise
compliance purposes by placing them on the operators specifications of
more than one operator are prohibited, and that existing share
arrangements may not be used for compliance with the December 31, 1996,
requirements.
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
Sections 91.865 and 91.867 of 14 CFR each require that as of
December 31, 1996, an operator of Stage 2 airplanes either reduce the
number of Stage 2 airplanes it operates by 50% from its base level,
achieve a fleet mix of airplanes that is 65% Stage 3 airplanes, or in
the case of a new entrant, achieve a fleet mix that is 50% Stage 3
airplanes. Section 91.871 allows operators to request waivers from
interim compliance dates in limited circumstances. In order to
facilitate compliance with the December 31, 1996, requirement, the FAA
is summarizing the regulatory requirements for waiver requests from the
Stage 3 transition regulations.
Filing Requests
As stated in Sec. 91.871, applications for waivers must be filed at
least 120 days prior to the compliance date from which the waiver is
requested. This means that applications must be filed no later than
Tuesday, September 3, 1996, to ensure that they will be considered
before the December 31, 1996, compliance date.
Each petition for an interim compliance waiver will be reviewed to
determine whether it meets the basic criteria listed 14 CFR 91.871. If
the criteria are not met, the petitioner will receive a letter
indicating that all of the required information has not been submitted.
Petitioners will have an opportunity to submit missing information
before any disposition is final.
Criteria (14 CFR 91.871)
All applications for a waiver must contain all of the following:
1. The operator's plan to achieve interim and final compliance;
2. An explanation of the operator's efforts to date to achieve
compliance; and
3. Evidence or other information showing that a grant of the
requested waiver is in the public interest.
In addition to the three criteria listed above, each petitioner
must also explain why compliance with the December 31, 1996,
requirement would be at least one of the following:
1. Financially onerous;
2. Physically impossible;
3. Technologically infeasible; or
4. Have an adverse effect either on competition or service to small
communities.
Scope of Request
Each waiver will be considered only for the airplanes operated by
he petitioner on the date the petition was submitted to the FAA.
Operators are expected to have submitted viable compliance plans and
abided by them. The FAA's analysis of any petition will take into
account the total circumstances of the operator, including all actions
taken up to the date of the petition.
Publication
Upon completion of the review and determination that the petition
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 Office of Environment
and Energy (AEE) will analyze each request and draft a response that
contains a narrative analysis of each required element. If the results
of the analysis show that the petitioner has met the criteria, AEE will
prepare documentation to grant the petition for waiver. If the analysis
shows that the petitioner has failed to meet the criteria, AEE will
prepare documentation to deny the petition. Part of a request may also
be granted at the agency's discretion, depending on the circumstances.
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 petitioner and the
findings of the FAA. If the petitioner cannot achieve compliance within
the time frame provided in a waiver, the petitioner must submit a new
petition that will be evaluated under the same criteria as the original
petition. New petitions that fail to provide more information than the
original will be denied.
Summary of 1994 Interim Waiver Denials
Ten operators petitioned the FAA for interim compliance waivers in
1994; seven petitions were denied and three were withdrawn. For
operators that may
[[Page 43114]]
be contemplating applying for a waiver from the 1996 compliance date,
the following summaries of the 1994 denials are provided to illustrate
the FAA's analysis of such requests for compliance with the Stage 3
transition regulations.
No. 1 petitioner: By petition dated August 29, 1994, Docket No.
27894, the petitioner petitioned the FAA for a waiver that would allow
it 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. At the time of the waiver
petition, it did not own or operate any airplanes.
Denial of Waiver: 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 did not have any
airplanes in operation. It is also FAA policy that no prospective
relief be granted. Since the petitioner had not yet achieved FAA
certification to operate, it was not yet operating under the provisions
of Sec. 91.867 to be considered a new entrant or to ask relief from
that regulation.
No. 2 petitioner: By petition dated September 1, 1994, Docket No.
27899, the petitioner petitioned the FAA for a waiver that would allow
it to operate an all-Stage 2 fleet until June 30, 1995.
The petitioner began service in June 1994 flying passenger
charters; it began scheduled passenger service in early October 1994.
At the time it petitioned, the petitioner was operating two leased
Stage 2 Boeing 737-200 airplanes. It planned 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 resulting total of four airplanes in its fleet to be
a Stage 3 airplane after December 31, 1994. The petitioner's plans to
acquire the described Stage 2 airplanes led to its waiver request.
Denial of Waiver: 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 had not yet leased
the airplanes for which it requested a waiver. Also, the petitioner
submitted no information as to why its current business plan did not
take into account the upcoming compliance date without needing a
waiver. An operator must plan to achieve compliance without reliance on
a waiver in order for FAA to consider that a viable plan was made but
could not be adhered to.
No. 3 petitioner: By letter dated August 30, 1994, Docket No.
27888, the petitioner petitioned the FAA for a waiver that would allow
it to operate a fleet of six Stage 2 airplanes until December 31, 1996.
The petitioner is a foreign operator of the Stage 2 AN-124
airplane, and at the same time the waiver was submitted, the petitioner
was operating a fleet of six of these airplanes on its U.S. operations
specifications, conducting 25 to 50 charter flights per year to the
U.S. The petitioner is a new entrant that received its authority to
operate in the U.S. on May 28, 1993. The petitioner would have been
eligible to operate three AN-124 airplanes past the December 31, 1994,
compliance date without a waiver. If the petitioner wanted to continue
operating all six of its AN-124 airplanes past the December 31, 1994,
compliance date, it needed to add one Stage 3 airplane to its U.S.
operations specifications to obtain the proper fleet mix for a new
entrant under Sec. 91.867. The petitioner otherwise had to remove three
of the Stage 2 AN-124 airplanes from its U.S. operations
specifications.
Denial of Waiver: The petitioner stated that a waiver was in the
public interest because of the unique cargo capability of the AN-124
airplane and its operation as an ad hoc charter rather than regularly
scheduled service. The FAA determined that a grant of the petitioner's
request for a waiver would not be in the public interest. The FAA found
that since the petitioner did not show that, given its record of use,
specialized shipping needs could not be met with three rather than six
airplanes, and since they had the ability to change the individual
airplanes that appeared on the operations specifications at any given
time, there was no public benefit to be gained by granting a waiver to
an operator for the purpose of making its operations scheduling easier.
Further, the petitioner did not show that it ever had a plan to meet
the December 1994 compliance date, or that it made any effort to do so.
Evidence of a viable compliance plan and a good faith effort to achieve
compliance are considered critical elements of any request for a
waiver, as indicated by the presence of these criteria in
Sec. 91.871(c), the criteria that all applicants must meet. Since the
FAA had no compliance plan information on file and the petitioner did
not submit any with its application for waiver, the FAA concluded that
the petitioner had never developed any plan to comply with the December
1994 compliance date.
No. 4 petitioner: By petition dated September 1, 1994, Docket No.
27898, counsel for the petitioner petitioned the FAA on behalf of the
petitioner for a waiver that would allow the petitioner to operate an
all-Stage 2 fleet until it obtained an installed hushkits that were
under development at the time of the petition.
The petitioner operates scheduled and charter interstate and
foreign air cargo operations. It began operating on November 11, 1992,
under a temporary DOT certificate and obtained permanent DOT authority
in April 1994. As of July 22, 1994, the petitioner's fleet consisted of
10 DC-8 series airplanes, all of which were Stage 2. To comply with the
December 31, 1994, interim compliance requirement, the petitioner
needed to retrofit or ground seven of its airplanes, or to add three
Stage 3 airplanes to continue operating all 10 of its Stage 2 DC-8's.
Denial of Waiver: In its first required filing, the petitioner
reported that, as a new entrant, it would comply with Sec. 91.967. In a
subsequent report (for 1993), the petitioner stated that it ``intends
to apply for an exemption or waiver from the requirements for
compliance for the December 31, 1994, compliance date.'' At the time of
its petition, the petitioner reported a fleet of 10 Stage 2 DC-8's with
a plan to add two more before the end of 1994, and that it had no plans
to acquire any other type of airplane. 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. Further, the FAA could not find
to be viable a plan that relied solely on the grant of a waiver. The
petitioner also stated that its principles had contracted for hushkit
development and that ``the expected date of certification for this
Stage 3 project is early 1995.'' While the FAA found a public benefit
in the development of a hushkit for the subject DC-8 airplanes, that
benefit had no logical connection to the waiver requested by an
individual operator that knew the hushkit would not be available before
the compliance date but chose to take no other action.
No. 5 operator: By petition dated September 1, 1994, Docket No.
27906, the petitioner petitioned the FAA for a waiver that would allow
it to operate a fleet of five Stage 2 airplanes until December 31,
1995.
The petitioner began scheduled service in July 1994. From August to
October 1994, the petitioner expanded its service. The petitioner began
operating with three Stage 2 Boeing 737-200 airplanes. The petitioner
took delivery of two more airplanes of the same model in September and
October 1994. Under Sec. 91.867, the fourth airplane in the
petitioner's fleet would be required to be Stage 3 after December 31,
1994; the planned acquisition of the
[[Page 43115]]
fourth and fifth airplanes led to this request for a waiver.
Denial of Waiver: 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 was operating three
Boeing 737-200 airplanes, but it had already committed to leasing two
more that were scheduled for delivery in September and October 1994. As
early as March 1994, before its airplane leases began, the petitioner
was investigating bringing the airplanes it planned to operate into
compliance. However, since the petitioner elected to lease a Stage 2
airplane as its fourth airplane and take delivery of it in September,
as well as a fifth airplane in October, the FAA found that the
petitioner was apparently unwilling to adapt its business plans to
achieve compliance with a regulation that predates the existence of the
airline. During this time, the petitioner also began discussions
regarding the lease of a Stage 3 airplane, and indicated to the FAA
that even if such a lease were negotiated, it could not bring the
airplane into service in time to meet the compliance date. The FAA
found that commencing such complex actions so close to the compliance
date was not a viable compliance plan nor did it demonstrate a good
faith effort to comply. Also, the FAA was unable to conclude that the
public interest claimed by the petitioner in its providing service
outweighed the larger public interest in compliance and the integrity
of the phased transition to an all Stage 3 fleet by the year 2000.
No. 6 petitioner: By petition dated August 3, 1994, Docket No.
27869, counsel for the petitioner petitioned the FAA on behalf of the
petitioner for a waiver that would allow the petitioner to operate all
of its Stage 2 airplanes beyond the interim compliance date of December
31, 1994.
The petitioner operates an all-cargo service on a charter basis
worldwide and by scheduled service between the United States and
Central and South America. The petitioner operated 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, the petitioner needed to retrofit or ground one of its
four airplanes or replace it with a Stage 3 airplane.
Denial of Waiver: The petitioner initially reported to the FAA that
it planned to meet the compliance requirements by ``retirement of Stage
2 or addition of Stage 3 aircraft.'' In two subsequent reports, the
petitioner indicated that it planned to comply in 1994 by phasing out
25% of its Stage 2 airplanes without further detail. The petitioner's
petition did not contain any information as to changed circumstances or
why the retirement of one airplane was no longer feasible. 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. In this case, the FAA determined that no good faith
effort had been demonstrated, since the petitioner did not show a
willingness to adhere to its own compliance plan, but appeared to be
relying on the existence of the waiver provision to continue the same
level of operations after the December 31, 1994, compliance date.
No. 7 petitioner: By petition dated December 7, 1994, Docket No.
27994, the petitioner petitioned the FAA for a waiver that would allow
it to operate a fleet of four all Stage 2 airplanes until January 31,
1995.
The petitioner is a new entrant air carrier that began service on
December 4, 1994. At the time the petitioner petitioned for a waiver on
December 7, 1994, it operated a fleet of two Stage 2 airplanes. The
petitioner exercised an option to add two additional Stage 2 airplanes
to its fleet and was awaiting delivery of another airplane currently
undergoing installation of Stage 3 hushkits. Since this Stage 3
airplane was not to be delivered to the petitioner until January 16,
1995, to comply with the December 31, 1994, interim compliance date in
Sec. 91.867, the petitioner would have had to ground one of its four
Stage 2 airplanes.
Denial of Waiver: After the petitioner knew that there was a
possibility that its hushkitted airplane would be delayed until after
the compliance date, it chose to apply for a waiver for airplanes it
had not yet exercised its option to lease. The petitioner then
exercised the lease option, apparently doing so knowing that the
possibility of delay existed for the delivery of its Stage 3 airplane.
Accordingly, the FAA cannot accept the argument that the petitioner
made a good faith effort to comply or conclude that a waiver was even
necessary when the application was submitted. When the petitioner
exercised its option to lease the airplanes, it made a business
decision to possibly put itself out of compliance, and knew that on the
compliance date it might possibly possess a fleet of airplanes that
required a waiver to operate fully. If the petitioner had committed to
leasing the two additional Stage 2 airplanes and later been informed
that the delivery of its Stage 3 airplane would be delayed until after
the compliance date, the FAA might have been able to look at the
circumstances more favorably given the petitioner's efforts to secure
the timely delivery of a Stage 3 airplane. But the statement in the
petitioner's petition that it knew there might be a problem before it
exercised its lease option denies that this was the case. The FAA is
unable to conclude that the petitioner's statements reflect a net
public benefit in the grant of a waiver. The possibility that the
petitioner would have had to ground one of its airplanes for a short
time, partially because of its own actions taken after it was told of a
possible problem with the delivery of its Stage 3 airplane, does not
outweigh the significant public interest inherent in full compliance
with the rule.
Use of Interchange Agreements for Noise Compliance
The FAA reminds all operators of Stage 2 noise level airplanes
subject to the phaseout under Secs. 91.865 or 91.867 that, as of March
14, 1995, new compliance arrangements that rely on sharing Stage 3
airplanes by placing them on the operators specifications of more than
one operator are prohibited, and that existing arrangements cannot be
used to comply with December 31, 1996, and subsequent requirements.
This prohibition applies to U.S. and non-U.S. operators of Stage 2
airplanes covered by the Stage 3 transition rules. A full statement of
this policy and the reasons for its adoption were published in the
Federal Register on March 14, 1995, at 60 FR 13627.
Issued in Washington, DC on August 9, 1996.
James D. Erickson,
Director of Environment and Energy.
[FR Doc. 96-20834 Filed 8-19-96; 8:45 am]
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