[Federal Register Volume 62, Number 54 (Thursday, March 20, 1997)]
[Rules and Regulations]
[Pages 13496-13503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6980]
[[Page 13495]]
_______________________________________________________________________
Part VI
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 187
_______________________________________________________________________
Fees for Air Traffic Services for Certain Flights Through U.S.-
Controlled Airspace; Final Rule
Federal Register / Vol. 62, No. 54 / Thursday, March 20, 1997 / Rules
and Regulations
[[Page 13496]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 187
[Docket No. 28860; Amendment No. 187-7]
RIN 2120-AG17
Fees for Air Traffic Services for Certain Flights Through U.S.-
Controlled Airspace
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Interim final rule; notice of public meeting.
-----------------------------------------------------------------------
SUMMARY: This document establishes fees for FAA air traffic and related
services for certain aircraft that transit U.S.-controlled airspace but
neither take off from, nor land in, the United States. This document
allows the FAA to reasonably recover the costs it incurs in performing
these services. The document also requests comments concerning the fee
schedule and the fee collection process. In addition, the FAA is
announcing a public meeting on the interim final rule to provide an
additional opportunity for public to comment.
DATES: Effective date May 19, 1997. Comments must be received by July
18, 1997.
The public meeting will be held on May 1, 1997; Registration: 8:30
a.m.; Meeting: 9:00 a.m.-5:00 p.m.
ADDRESSES: The public meeting will be held at the Federal Aviation
Administration, 800 Independence Ave., SW., Washington, DC, in the main
auditorium on the 3rd Floor. Comments on this interim final rule should
be mailed or delivered in triplicate to: Federal Aviation
Administration, Office of the Chief Counsel, Attention: Rules Docket
(AGC-200), Docket No. 28860, 800 Independence Avenue, SW., Washington,
DC 20591. Comments may also be submitted to the Rules Docket by using
the following Internet address: [email protected]. Comments must
be marked Docket No. 28860. Comments may be examined in the Rules
Docket, Room 915-G on weekdays between 8:30 a.m. and 5:00 p.m., except
on Federal holidays. Written comments to the docket will receive the
same consideration as statements made at the public meeting.
FOR FURTHER INFORMATION CONTACT: Jeffrey Wharff, Office of Aviation
Policy and Plans, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-7035.
Requests to present a statement at the public meeting on the Fees
for Air Traffic Services for Certain Flights Through U.S.-Controlled
Airspace interim final rule and questions regarding the logistics of
the meeting should be directed to Regina L. Jones, Federal Aviation
Administration, Office of Rulemaking (ARM-104), 800 Independence
Avenue, SW., Washington, DC 20591, telephone (202) 267-9822; fax (202)
267-5075.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments, and by commenting on the
possible environmental, economic, and federalism-or energy-related
impact of the adoption of this interim final rule. Comments concerning
the implementation and effective date of the rule are also specifically
requested.
Comments should identify the regulatory docket and should be
submitted in triplicate to the Rules Docket address specified above.
All comments received and a report summarizing any substantive public
contact with FAA personnel on this rulemaking will be filed in the
docket. The docket is available for public inspection both before and
after the closing date for receiving comments.
The closing date for comments on the proposal [Insert date 120
after the date of publication]. This 120 day comment period is intended
to allow the international commenters sufficient time to submit
comments. In order to give the public an additional opportunity to
comment on the interim final rule, the FAA is planning a public
meeting. Because of this additional opportunity to comment on the
interim final rule, the FAA will not intend to extend the closing date
for comments.
Requests from persons who wish to present oral statements at the
public meeting on the Fees for Air Traffic Services for Certain Flight
Through U.S.-Controlled Airspace interim final rule should be received
by the FAA no later than April 25, 1997. Such requests should be
submitted to Regina L. Jones as listed in the section titled FOR
FURTHER INFORMATION CONTACT. Requests received after April 25 will be
scheduled if time is available during the meeting; however, the name of
those individuals may not appear on the written agenda. The FAA will
prepare an agenda of speakers that will be available at the meeting. To
accommodate as many speakers as possible, the amount of time allocated
to each speaker may be less than the amount of time requested. Those
persons desiring to have available audiovisual equipment should notify
the FAA when requesting to be placed on the agenda.
Before taking any final action on this interim final rule, the
Administrator will consider the comments made on or before the closing
date for comments, and the interim final rule may be changed in light
of the comments received.
The FAA will acknowledge receipt of a comment if the commenter
includes a self-addressed, stamped postcard with the comment. The
postcard should be marked ``Comments to Docket No. 28860.'' When the
comment is received by the FAA, the postcard will be dated, time
stamped, and returned to the commenter.
Public Meeting Procedures
The public meeting will be held on May 1, 1997, at the Federal
Aviation Administration, 800 Independence, Ave. S.W., Washington, D.C.,
in the main auditorium on the 3rd Floor; Registration: 8:30 a.m.;
Meeting: 9:00 a.m.--5:00 p.m.
The following procedures are established to facilitate the public
meeting on the interim final rule:
1. There will be no admission fee or other charge to attend or to
participate in the public meeting. The meeting will be open to all
persons who have requested in advance to present statements or who
register on the day of the meeting (between 8:30 a.m. and 9:00 a.m.)
subject to availability of space in the meeting room.
2. The public meeting may adjourn early if scheduled speakers
complete their statements in less time than currently is scheduled for
the meeting.
3. The FAA will try to accommodate all speakers; therefore, it may
be necessary to limit the time available for an individual or group.
4. Participants should address their comments to the panel. No
individual will be subject to cross-examination by any other
participant.
5. Sign and oral interpretation can be made available at the
meeting, as well as an assistive listening device, if requested 10
calendar days before the meeting.
6. Representatives of the FAA will conduct the public meeting. A
panel of FAA personnel involved in this issue will be present.
7. The meeting will be recorded by a court reporter. A transcript
of the meeting and any material accepted by the panel during the
meeting will be included in the public docket (Docket
[[Page 13497]]
No. 28860). Any person who is interested in purchasing a copy of the
transcript should contact the court reporter directly. This information
will be available at the meeting.
8. The FAA will review and consider all material presented by
participants at the public meeting. Position papers or material
presenting views or information related to the interim final rule may
be accepted at the discretion of the presiding officer and subsequently
placed in the public docket. The FAA requests that persons
participating in the meeting provide 10 copies of all materials to be
presented for distribution to the panel members; other copies may be
provided to the audience at the discretion of the participant.
9. Statements made by members of the public meeting panel are
intended to facilitate discussion of the issues or to clarify issues.
Because the meeting concerning the Fees for Air Traffic Services for
Certain Flights Through U.S.-Controlled Airspace is being held during
the comment period, final decisions concerning issues that the public
may raise cannot be made at the meeting. The FAA may, however, ask
questions to clarify statements made by the public and to ensure a
complete and accurate record. Comments made at this public meeting will
be considered by the FAA.
10. The meeting is designed to solicit public views on the interim
final rule. Therefore, the meeting will be conducted in an informal and
nonadversarial manner.
Availability of the Interim Final Rule
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Federal Register's electronic bulletin board service
(telephone: 202-512-1661).
Internet users may reach the FAA's webpage at http://www.faa.gov or
the Federal Register's webpage at http://www.access.gpo.gov/su__docs
for access to recently published rulemaking documents.
Any person may obtain a copy of this document by mail by submitting
a request to the Federal Aviation Administration, Office of Rulemaking,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-9677. Communications must identify the docket number of the
document.
Background
Authority to Establish Fees
The Federal Aviation Authorization Act of 1996 (the Act) directs
the Federal Aviation Administration to establish by interim final rule
a fee schedule and collection process for air traffic control and
related services provided to aircraft other than military and civilian
aircraft to the United States government or of a foreign government
that neither take off from, nor land in, the United States (49 U.S.C.
45301, as amended by Pub. L. 104-264), The Act states that the FAA may
recover up to $100,000,000 in FY 1997. Also, the Act directs the FAA to
ensure that the fees allowed by the Act are directly related to the
FAA's costs of providing the service rendered. Services for which costs
may be recovered include the costs of air traffic control, navigation,
weather services, training and emergency services that are available to
facilitate safe transportation over the United States, and other
services provided by the Administrator or by programs financed by the
Administrator to flights that neither take off nor land in the United
States.
In addition, under Title V of the Independent Offices Appropriation
Act of 1952 (31 U.S.C. 9701), the FAA has the authority to establish a
fair and equitable system for recovering full costs expended for any
service that provides a special benefit to an individual beyond those
that accrue to the general public. The Independent Offices
Appropriation Act (IOAA) provides, in pertinent part:
(a) It is the sense of Congress that each service or thing of value
provided by an agency * * * to a person * * * is to be self sustaining
to the extent possible.
(b) The head of each agency * * * may prescribe regulations
establishing the charge for a service or thing of value provided by the
agency. * * * Each charge shall be--
(1) fair; and
(2) based on--
(A) the costs to the Government;
(B) the value of the service or thing to the recipient;
(C) public policy or interest served; and
(D) other relevant facts.
This statute has been reviewed several times by the Supreme Court
and what is permissible under it is well defined. This statute must be
followed in establishing fees unless another statute specifically
authorizes fees in lieu of what is generally authorized under 31 U.S.C.
9701. The fees in this interim final rule are established under 49
U.S.C. 45301 in conjunction with 31 U.S.C. 9701.
Office of Management and Budget (OMB) Guidance
Office of Management and Budget (OMB) Circular No. A-25, User
Charges, revised July 8, 1993, establishes guidelines for Federal
agencies to establish fees for Government services. The Circular covers
all Federal activities that convey special benefits to recipients
beyond those accruing to the general public. The objectives of OMB
Circular A-25 are to ensure that the Government provision of special
goods or services to specific recipients be self-sustaining. The FAA
has followed the OMB guidelines in developing this interim final rule
as it applies to these fees.
The Interim Final Rule
Beginning sixty days after the publication of the interim final
rule, the FAA will assess a fee for air traffic and related services
provided to users of aircraft (both commercial and general aviation)
that transit U.S.-controlled airspace but do not take off or land in
the United States. The rule does not apply to military and civil
aircraft operated by the United States government or by a foreign
government.
For the purpose of this rulemaking the U.S.-controlled airspace
includes both U.S. sovereign airspace (hereafter ``domestic airspace'')
and airspace allocated to the United States by the International Civil
Aviation Organization (hereafter ``oceanic airspace''). Canada-to-
Canada overflight operations are defined (hereafter ``Canada-to-
Canada'') as flights, conducted by aircraft, that take off and land in
Canada without intermediate stops outside Canada that operate in U.S.-
controlled airspace. Commercial users are defined as those operators
whose primary purpose is to provide passenger and/or cargo air
transportation for compensation or hire. General aviation users are
defined as those operators who do not provide passenger and/or cargo
transportation for compensation or hire. Furthermore, in this rule
general aviation users are divided into two groups: General aviation
users operating piston-powered aircraft and general aviation users
operating turbine-powered aircraft. General aviation turbine-powered
aircraft include both turboprop and turbojet aircraft.
Operators of aircraft that transit U.S.-controlled airspace but do
not land in or depart from the United States currently contribute
nothing financially to the provision of air traffic services (ATS).
This is despite the fact that they use ATS and other services that
impose
[[Page 13498]]
costs on the U.S. air traffic control (ATC) system. Congress has
determined that these users should bear a portion of the cost of those
services.
The air transportation environment has changed over the past
decades with the advent of increasing numbers of long range aircraft
that fly at high altitudes far above areas of high density air traffic.
The use of these aircraft and the routes they are able to fly have
greatly increased the efficiency of air transportation. Although these
overflight operations do not generally enter areas of high density air
traffic, they do use FAA air traffic and related services.
Operators of overflight aircraft benefit from the FAA's provision
of ATS in several ways. First, and most importantly, FAA's ATS enhance
safety through air traffic control, navigation, and communications
services. Second, flight through U.S.-controlled airspace provides
optimized routing for long distance aircraft that is of great value to
the users of these aircraft.
The level of ATS and other services that is actually provided to
operators of overflights depends, in part, on the portions of U.S.-
controlled airspace such flights transit. These services can include
communications, navigation, radar surveillance, emergency services, and
flight information services (flight plan filing, weather briefing, and
others). For aircraft transiting U.S.-domestic airspace, Air Route
Traffic Control Centers (ARTCCs) provide separation by means of radar
surveillance (if they are operating under instrument flight rules or in
airspace above 18,000 feet). Also, these flights generally use
navigational aids and radio communication with ARTCCs.
For aircraft transiting oceanic airspace, where radar surveillance
and navigational aids are not available, navigation is generally
conducted by on-board systems. Aircraft separation, however, is
provided under procedural control, under which flights report their
position to an air traffic controller each time they fly over a
specified reporting point.
The FAA estimates that approximately 213,000 non-public flights
transit U.S.-controlled airspace without landing or taking off annually
(See the Analysis of Overflights Costs and Pricing that has been placed
in the public docket). Air carriers comprise over 210,000 of these
flights and general aviation about 3,000.
The total cost to the FAA associated with all overflights is
projected to be approximately $97 million for FY 1997, including the
cost of collecting the fees. This amount represents the sum of the
separate costs for providing air traffic control services to aircraft
flying through domestic and oceanic airspace.
Charging overflights for ATS is accepted in the international
arena. The International Civil Aviation Organization (ICAO) states that
``where air navigation services are provided for international use, the
providers may require the users to pay their share of the costs. * * *
(Statements by the Council to Contracting States on Charges for
Airports and Air Navigation Services, Paragraph 32 (Doc. 9082/4)).
Further, paragraph 42 of Doc. 9082/4 notes that ``providers * * * may
require all users to pay their share of the costs regardless of whether
or not utilization takes place over the territory of the provider
state.'' (Document 9082/4 has been placed in the docket.)
An important factor to consider when constructing an overflight fee
is the extent that it will alter user behavior. The FAA believes an
inappropriately constructed fee could encourage some users to reroute
or otherwise avoid ATS. Excessive avoidance of air traffic control
services could potentially reduce air traffic safety. ATS reduces
hazards associated with adverse weather conditions and mid-air
collisions and enhances the ability to rapidly provide search and
rescue services. The FAA believes that some users are more likely to
change their behavior in a manner that diminishes safety. Commercial
users arguably are less likely to cease use of ATS and other services
than general aviation users. Most commercial aircraft are designed to
operate more efficiently at altitudes in excess of 18,000 feet. All
operations at altitudes at or above 18,000 feet within the United
States and its territories must be under air traffic control. Also, to
some extent, commercial users are able to pass the overflight fee on to
their passengers or cargo customers. Many general aviation users, on
the other hands usually operate at altitudes less than 18,000 feet and
bear the entire burden of the fee. Consequently, general aviation users
are more likely to avoid ATS and other related services if the cost of
these services are high relative to the aircraft's operating costs.
This may be particularly true for general aviation aircraft users that
transit domestic airspace or are involved in inter-island flights in
the Caribbean or Pacific airspace. These user may elect to avoid using
ATS.
In fact, using U.S. estimates of hourly variable operating costs
for general aviation piston-powered and turbine-powered aircraft and
assuming average cruising speeds of 130 kts and 300 kts, a fee
consistent with full-cost recovery (as derived below) could represent a
significant cost to these users. (Estimates of U.S. variable operating
costs were derived from the ``all other category'' reported in Tables
23 and 25-B of the ``Economic Values for Evaluation of Federal Aviation
Administration Investment and Regulatory Program'', which can be found
in the docket. Cost figures were adjusted to reflect 1997 dollars.) On
a per-mile base, the full-cost overflight fee is approximately 144% of
the variable operating cost for piston-powered aircraft and
approximately 48% of the variable operating cost for turbine-powered
aircraft.
In addition, an examination of the cost elasticity estimates for
air traffic services suggests that general aviation users are much more
responsive than commercial users to a change in the cost of receiving
ATS. The ATS cost elasticities are discussed as part of the Analysis of
Overflights Costs and Pricing, which can be found in the docket. These
elasticity estimates measure the demand responsiveness (i.e., the
propensity to change the amount consumed of ATS) of the user to a
change in the cost of receiving ATS. In particular, the general
aviation piston-powered aircraft cost elasticity is approximately 18
times larger than the cost elasticity estimate for commercial aircraft.
Similarly, the general aviation turbine-powered aircraft cost
elasticity is approximately 5 times larger than the cost elasticity
estimate for commercial aircraft.
Because of the concern that users may change their behavior in a
manner inconsistent with safety, the FAA has established fees for
certain users of ATS services based on the statutory requirements of
cost recovery balanced against its primary responsibility of promoting
air traffic safety.
Defer Charging Canada-to-Canada Overflight Operations
Currently, it is cost effective for many Canada-to-Canada
operations to transit U.S.-controlled airspace. Routing through U.S.-
controlled airspace occurs because it is either the shortest route or
it offers the most favorable flight conditions; both reduce operator
costs. Canada currently has an overflight charge for aircraft that
transit Canadian-controlled airspace. With the exception by flights of
aircraft that weigh more than 200 tons and that land or take off in
Alaska, domestic U.S. aircraft operations have been temporarily
exempted from this charge in order to allow time for U.S. and Canadian
consultation. NAV CANADA, a non-share capital corporation which owns,
[[Page 13499]]
manages, and operates Canada's civil air navigation system, is expected
to implement a Canadian enroute charge by November 1, 1997.
If the FAA were to impose the overflight charge on these Canada-to-
Canada operations, it is likely that a significant number of Canada
overflights would divert to movement through Canadian-controlled
airspace. NAV CANADA through informal, high-level, correspondence and
meetings with the FAA regarding general principles of overflight
charges and cross-border ATC operational issues, has expressed concern
that charging Canada-to-Canada overflights prior to the implementation
of the Canadian enroute charge would temporarily increase the workload
at Canadian air control centers and could adversely impact existing
bilateral agreements regarding U.S. air traffic control of certain
Canadian airspace. Meeting records and correspondence have been placed
in the docket.
Contined maintenance of U.S. control of this airspace is important
for the optimized routing for a significant number of U.S. domestic
aircraft operations. To allow time for U.S. Canadian consultation, the
FAA has chosen to offer charging Canada-to-Canada overflights until
October 1, 1997.
The Overflight Fee
As noted above, the Federal Aviation Authorization Act of 1996
directs the Federal Aviation Administration to establish a fee schedule
and collection process for air traffic control and related services
provided to aircraft other than military and civil aircraft operated by
the United States government or by a foreign government that neither
take off from, nor land in, the United States. The Act further directs
the FAA to issue the initial fee schedule and associated collection
process as an interim final rule, to ask for public comment, and to
issue a subsequent final rule.
The Act requires that fees be directly related to the FAA's cost of
providing the services rendered. Furthermore, the Conference Report for
the Act states ``* * * assuming similar costs of serving different
carrier and aircraft types, the fee may not vary based on factors such
as aircraft seating capacity or revenue derived from passenger fares''
(Congressional Record, September 26, 1996, H11316). Consistent with
statutory direction, the sense of Congress as documented in the
Conference Report, and FAA's aviation safety mission, the FAA has
adopted a tiered charging system.
Commercial users will be charged fees consistent with the principle
of full cost recovery; general aviation users will be charged fees less
than the recovery of full cost in order to minimize any potential
safety risks. This method of charging will not result in the cross-
subsidization of one user group by another. This charging system is
also consistent with ICAO principles. ICAO notes that in determining
the costs to be recovered from users ``Governments may choose to
recover less than full costs in recognition of local, regional, or
national benefits'' (Doc. 9082/4, paragraph 35). The FAA believes that
the fees for general aviation should be set so that general aviation
users will continue to use air traffic control services when such
services enhance safe and efficient travel. Consequently, the fee for
general aviation piston-powered aircraft users is 1/18th that of the
full cost of service; and the fee for general aviation turbine-powered
aircraft is 1/5th that of the full cost of service.
The overflight fee is computed based on distance flown through
U.S.-controlled airspace. Separate computations are made for services
provided in domestic airspace and in oceanic airspace in order to
reflect the different costs of providing services in each of these
environments. For any city-pair route, the distance within domestic
airspace and within oceanic airspace is used, based on calculation of
the great circle route (GCR) between the actual point of entry and the
actual point of exit from each category of airspace. The use of this
procedure for computing distance protects users within U.S.-controlled
airspace from routing patterns created by unusual events, such as
traffic congestion, weather situations, and other circumstances. Total
fees assessed for using each type of airspace (domestic and oceanic) do
not exceed the costs of providing services within that type of
airspace.
To calculate the fee in a manner consistent with full-cost recovery
two factors are taken into account: (1) the cost of providing air
traffic control services for overflights in oceanic and domestic
airspace, and (2) the distances flown in U.S.- controlled airspace.
Cost pools were estimated for oceanic and domestic airspace as
described and documented in the Analysis of Overflights Costs and
Pricing, which has been placed in the docket. Each cost pool consists
of incremental ATS and allocated fixed and common costs associated with
providing air traffic control services in each airspace.
Incremental ATS costs, which include, but are not limited to,
controller staffing requirements and training, were determined by
multiplying the number of aircraft flying through a particular airspace
by the incremental rate. The allocated fixed and common costs were
assigned to each cost pool based on the pool's proportion of
incremental cost. The allocated fixed and common costs associated with
ATS and applied to overflights represent the ``Ramsey allocation'' of
FAA's total fixed and common costs to the ATS line of business. Radio
navigation is an example of a fixed cost. Program support,
administration, and capital costs are examples of common costs. A
detailed discussion of the cost allocation procedure is outlined in the
Analysis of Overflights Costs and Pricing. For FY 1995 the estimated
cost pools for overflights of U.S.-controlled oceanic and domestic
airspace were $42.2 million and $47.5 million, respectively.
A charge is assessed for each 100 nautical miles flown in oceanic
and domestic airspace. The oceanic and domestic charges per one hundred
nautical miles are $69.50 and $78.90, respectively (expressed in 1997
dollars). These figures were derived in two steps. First, each FY 1995
cost pool was divided by the total number of overflight miles
associated with the pool as calculated according to the origination/
destination great circle route (OD-GCR). Currently, the OD-GCR mileage
represents the best available flight data associated with these cost
pools. Reliable GCR entry and exit data will become available; at which
time, the unit charges will be adjusted to reflect historical GCR entry
and exit data. OD-GCR and GCR entry and exit mileage are not expected
to differ significantly in total for the year. Second, each fee was
adjusted to capture the cost of collection and to reflect projected
cost increases between 1995 and 1997. Unit charges derived in this
manner are free from cross-subsidization. The collection assumes a one-
time development cost of $2.1 million amortized over a two year period
and an annual operating cost of $1.0 million. Projected cost increases
are based on the ``all other'' deflation estimates published in the
1997 Budget of the United States Government (page 160, Table 10.1).
The fee for users of a commercial aircraft overflight is calculated
as follows:
Rij=$69.50*DOij+$78.90*DDij,
where
Rij=the fee charged to commercial aircraft flying between city i
and city j,
[[Page 13500]]
DOij=distance traveled in U.S.-controlled oceanic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j,
DDij=distance traveled in domestic U.S. airspace expressed in
hundreds of nautical miles for aircraft flying between city i and city
j.
The fee for users of a general aviation turbine-powered aircraft
overflight is calculated as
GATRij=($69.50/5)*DOij+($78.90/5)*DDij
or
GATRij=$13.90*DOij+$15.78*DDij,
where
GATRij=the fee charged to general aviation turbine-powered
aircraft flying between city i and city j,
DOij=distance traveled in U.S.-controlled oceanic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j,
DDij=distance traveled in domestic U.S. airspace expressed in
hundreds of nautical miles for aircraft flying between city i and city
j.
The fee for users of a general aviation piston-powered aircraft
overflight is calculated as
GAPRij = ($69.50/18) *DOij + ($78.90/18)*DDij
or
GAPRij=$3.86*DOij+$4.38*DDij,
where
GAPRij=the fee charged to general aviation piston-powered aircraft
flying between city i and city j,
DOij=distance traveled in U.S.-controlled oceanic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j,
DDij=distance traveled in domestic U.S. airspace expressed in
hundreds of nautical miles for aircraft flying between city i and city
j.
These formulas assume that actual entry and exit data are available for
individual flights in U.S.-controlled airspace. If not, best available
flight data will be used.
All fees are designed to charge both direct and indirect costs to
users in a logical and fair manner as required by IOAA. Because users
of general aviation piston-powered aircraft are likely to be extremely
price sensitive with potential impacts on the consumption of safety
related services, and because their use of ATS appears minimal, general
aviation users are charged a discounted fee (less than full-cost
recovery). Also, general aviation piston-powered aircraft users
transiting less than 250 nautical miles of U.S.-controlled airspace
will not be charged a fee. The distance based exemption reflects a
concern for administrative efficiency. The cost of collecting from this
user group for distances less than 250 miles is likely to exceed any
fee incurred.
The fees in this interim final rule will be reviewed at least once
every 2 years, in accordance with OMB Circular A-25, and adjusted to
reflect changes in costs. The first review is scheduled one year after
the date of publication of the interim final rule. Fees will be
adjusted to reflect historical GCR entry and exit mileage within U.S.-
controlled airspace.
Based on the OD-GCR, the following table illustrates the tiered fee
schedule.
Representative Fee Schedule for International Overflights
--------------------------------------------------------------------------------------------------------------------------------------------------------
Domestic airspace Oceanic airspace
Origination Destination Aircraft type ------------------------------------------------------------ Total Total
Rate Miles Charge Rate Miles Charge miles fee \3\
-----------------------------------------------------------------------------\1\-------\2\-------\3\-------\1\-------\2\-------\3\--------\2\-----------
Canada: Canada:
YUL Dorval Int'l. Airport, YHZ Halifax, Commercial......... $78.90 149 $118 $69.50 ........ ......... 149 $118
Montreal. Nova Scotia.
YYZ Pearson Airport, YYC Calgary, Commercial......... 78.90 644 508 69.50 ........ ......... 644 508
Toronto, Ontario. Alberta.
Canada: Canada:
YUL Dorval Int'l. Airport, YHZ Halifax, GA Piston.......... 4.38 149 7 3.86 ........ ......... 149 None
Montreal. Nova Scotia.
YYZ Pearson Airport Toronto, YYC Calgary, GA Piston.......... 4.38 644 28 3.86 ........ ......... 644 28
Ontario. Alberta.
Canada: Canada:
YUL Dorval Int'l. Airport, YHZ Halifax, GA Turbine......... 15.78 149 24 13.90 ........ ......... 149 24
Montreal. Nova Scotia.
YYZ Pearson Airport Toronto, YYC Calgary, GA Turbine......... 15.78 644 102 13.90 ........ ......... 644 102
Ontario. Alberta.
Canada: Mexico:
YVR International Airport, SJD San Jose Commercial......... 78.90 1,084 855 69.50 ........ ......... 1,084 855
Vancouver. Del Cabo.
Asia: Canada:
NRT Narita Airport, Tokyo, YYC Calgary, Commercial......... 78.90 1,938 1,590 69.50 470 $327 2,408 1,917
Japan. Alberta.
Europe: Caribbean:
AMS Amsterdam, Netherlands.. MBJ Montego Commercial......... 78.90 ........ ......... 69.50 2,118 1,472 2,118 1,472
Bay, Jamaica.
Europe: Mexico:
LHR Heathrow Airport London, Mexico City.... Commercial......... 78.90 1,515 1,195 69.50 256 178 1,771 1,373
Eng.
Asia: Pacific:
SEL Seoul, South Korea...... Sydney, Commercial......... 78.90 ........ ......... 69.50 1,111 772 1,111 772
Australia.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Rates are expressed per 100 nautical miles.
\2\ Miles are nautical miles.
\3\ Charges and total fee are rounded to the nearest dollar.
Fee Collection Process
The FAA has established and maintains data from several sources,
including but not limited to, flight plans and radar/radio data, that
identifies the point of entry and exit, aircraft registration number
and the type of aircraft for all aircraft entering U.S.-controlled
airspace. Information will be extracted from the database and used,
along with the fee formula, to compute each fee.
The FAA will bill users by sending a monthly invoice. Affected air
carrier users are requested to designate and submit to the FAA the name
and address of a U.S. agent for billing. All other users are requested
to submit a billing address to the FAA. Users not providing a billing
address will be billed at the address of record of the aircraft owner
as maintained in the country where the aircraft is registered.
As provided in Sec. 187.15(d), monthly remittance of fees of $1,000
or more are to be paid by electronic funds transfer. Monthly
remittances below $1,000 may be paid by electronic funds transfer,
check, money order, credit card, or draft. All payments must be in U.S.
currency.
Invoices that become delinquent will be processed according to 49
CFR part 89.
Comments Requested
As noted above, the FAA seeks comments on the interim final rule,
specifically, the fee schedule, formulas used to determine the cost per
unit, the associated collection process, and the scope of services for
which costs will be recovered. Commenters should be aware, however,
that the FAA does not have discretion to make changes to some aspects
of the fee that were specifically mandated by Congress.
[[Page 13501]]
The FAA is aware of several different approaches used throughout
the world by civil aviation authorities in constructing overflight
fees. ICAO identifies several parameters that, in principle, can be
used to construct an ATS fee. These parameters include distance flown,
aircraft weight, and time-in-system. (Doc. 9161/2, paragraphs 73, 74,
and 78). A fee system can be designed to recover some or all of the
costs of providing air traffic control services. For practical reasons,
such as billing efficiency, managing traffic patterns, equity, or
issues related to safety, a civil aviation authority may prefer one
changing method over another. A civil aviation authority may also
decide to recover only a portion of the total cost of providing ATS
from particular user groups. Below are two different approaches to the
fee system that the FAA has adopted in this interim final rule.
Alternative Approaches
One approach that was not adopted by the FAA is to base the fee on
distance flown and aircraft weight, though the use of weight when
viewed as a measure of value of the service to the user is not
consistent with the FAA's current authority. In general, the following
formula could be used to establish an ATS charge under this approach:
R=T*D*P,
where
R=fee,
T=unit rate,
D=great circle distance flown expressed in hundreds of nautical miles,
P=a proportional measure of aircraft weight (e.g., the square root of
weight).
As with the fee structure adopted by the FAA, two separate unit
rates could be developed to reflect the cost of providing ATS and other
services in both domestic and oceanic airspace. Given the appropriate
choice of unit rates, this approach is also consistent with full-cost
recovery. This approach not only reflects the cost of providing ATS but
also incorporates users' ability/willingness to pay. That is, civil
aviation authorities are able to charge for ATS based on the value of
service received. Heavier (lighter) aircraft users pay more (less) for
the use of ATS. Proponents of this approach suggest that a distance-
and weight-based fee will encourage the additional use of ATS and other
safety related services while permitting full cost recovery by the
provider. Consequently, the air transportation community will benefit,
as a whole, from a safer and more efficient use of airspace without the
provider subsidizing any user (in contrast, the fee described in the
interim final rule results in subsidization of general aviation users
by the provider).
Internationally, this option has had some acceptance. Eurocontrol
(The European Organization for the Safety of Air Navigation) uses this
formula to charge civil aircraft flying either for a part of or for the
whole flight under Instrument Flight Rules and to military aircraft
flying as General Air Traffic. The weight component is taken to be the
square root of the maximum take-off weight of an aircraft expressed in
metric tons divided by 50. This approach could not be adopted by the
FAA unless Congress specifically authorized its use.
Another approach which was not adopted by the FAA is to base the
fee on an aircraft's time-in-system. In principle, a time-in-system
approach would provide a highly accurate measure of the amount of ATC
services used. Higher speeds mean less time spent in a given airspace
and therefore a reduction in the service provided. A charging mechanism
based on this approach could take the following form:
R=T*Z,
where
R=fee,
T=unit rate,
Z=time in system.
A time-in-system approach, however, favors faster aircraft and may
impose a heavier fee burden on slower users. Although this approach
could be used to recover the full cost of ATS, it appears to have
several shortcomings that must first be resolved. First, it requires
actual flight data for an aircraft transiting controlled airspace or
some estimated time based on an aircraft's speed and distance flown in
controlled airspace. Second, it can be argued that ATC systems were
primarily developed to serve the faster commercial users and not slower
general aviation users. Slower aircraft should therefore not be
required to pay proportionally more for ATS. Third, rerouting due to
weather conditions or excessive air traffic can significantly impact a
time-in-system fee. To date, there is no universally accepted standard
for measuring time-in-system.
Commenters are welcome to address any different approaches that
they believe would be consistent with the purposes and limitations of
the Act and the IOAA.
Comments Concerning Emergency Services
Under the current fee formula, the only emergency service costs
recovered are those costs associated with enroute center coordination
of these services. Costs associated with the provision of alternative
landing sites, search and rescue services, and crash fire rescue are
not recovered. Such costs are borne by the FAA through the AIP program,
by the U.S. Coast Guard, by other military services, and by the
airports themselves. At the finalization of the rule, commenters should
be advised that the FAA is considering an adjustment to the fee formula
to include such costs. Commenters are encouraged to submit comment on
this adjustment and to provide suggestions regarding the means by which
the fee should be adjusted.
Comments From U.S. Entities
Additionally, the FAA is requesting comment from any small U.S.
entity who believes that this rule will create a significant economic
impact on their operations. As detailed below, the FAA does not believe
there will be any such impact.
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act requires agencies to analyze the
economic effect of regulatory changes on small entities. Third, the
Office of Management and Budget directs agencies to assess the effect
of regulatory changes on international trade.
This section summarizes the FAA's economic and trade analyses,
findings, and determinations in response to these requirements. The
complete economic and trade analyses are contained in the docket.
Analysis of Benefits
The fees would reimburse the FAA for the actual cost of services
provided to commercial users and a portion of the cost of services
provided to general aviation users in the manner authorized by
Congress, so that the beneficiaries of this service, rather than the
taxpayer, would pay for the service provided by the FAA. Moreover, the
fees being imposed by the FAA cover no more than the costs of providing
these service. The FAA believes that the fees are equitable.
A fee will establish a mechanism through which those who use a
service provide the majority of resources necessary to fund the service
that is provided. This will result in a more efficient allocation of
scarce societal and FAA resources. The efficient allocation
[[Page 13502]]
of resources will benefit society at large, because more resources will
become available for other service demanded by the public.
On an annualized basis for 1997, the overflight fee is expected to
generate approximately $60 million in fee revenue.
Cost of Collection of User Fees to the FAA
The FAA estimates a one-time development cost of $2.1 million
amortized over a two-year period and an annual operating cost of $1.0
million.
The costs of collection of the fee is relatively small compared to
the revenue that can be generated. The cost of collection along with
the fee charges will be reviewed at least once every 2 years and
adjusted either upward or downward in order to reflect the current
costs of performing the services covered. The first review is scheduled
one year after the date of publication of the interim final rule. Fees
will be adjusted to reflect historical GCR entry and exit mileage
within U.S.-controlled airspace.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA), as amended, was
enacted by Congress to ensure that small entities are not unnecessarily
and disproportionately burdened by Government regulations. The RFA
requires agencies to specifically review rules that may have a
``significant economic impact on a substantial number of small
entities.''
The FAA's criteria for ``a substantial number'' are a number which
is not less that 11 and which is more than one third of the small
entities subject to this rule. For all carriers, a small entity has
been defined as one which owns, but does not necessarily operate, nine
or fewer aircraft. The FAA's criteria for ``a significant impact'' are
as follows: At least $4,900 per year for an unscheduled air carrier,
$70,100 per year for a scheduled carrier having airplanes with only 60
or fewer seats, and $125,500 per year for a scheduled carrier having an
airplane with 61 or more seats.
Using these criteria and the data available at this time, the FAA
has determined that the interim final rule will not have a significant
economic impact on a substantial number of small U.S. entities.
However, since this is a rule issued without notice, the FAA is seeking
comment on this issue in the comment section of the preamble. If
comments are received that indicate a significant economic impact on a
substantial number of small U.S. entities, the final rule will be
revised.
International Trade Impact
The overflight provisions would primarily affect foreign airlines.
The rule may have a favorable competitive impact on U.S. air carriers.
Currently U.S. airlines are at a comparative disadvantage with foreign
airlines because all airlines (U.S. and foreign) must pay user fees to
transverse other countries' airspace while foreign airlines do not have
to pay a fee to transverse U.S. controlled airspace. The interim final
rule would enhance the competitiveness of domestic firms.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the Reform
Act), enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Reform Act, 2 U.S.C. 1534(a), requires the
Federal agency to develop an effective process to permit timely input
by elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Reform Act is any
provision in a Federal agency regulation that will impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the Reform Act, 2 U.S.C. 1533, which supplements
section 204(a), provides that before establishing any regulatory
requirements that might significantly or uniquely affect small
governments, the agency shall have developed a plan that, among other
things, provides for notice to potentially affected small governments,
if any, and for a meaningful and timely opportunity to provide input in
the development of regulatory proposals.
This rule does not contain any Federal intergovernmental mandates,
but does contain a private sector mandate. However, because
expenditures by the private sector will not exceed $100 million
annually, the requirements of Title II of the Unfunded Mandates Reform
Act of 1995 do not apply.
Federalism Implications
The regulations do not have substantial direct effects on the
states, on the relationship between national government and the states,
or on the distribution of power and responsibilities among various
levels of government. Thus, in accordance with Executive Order 12612,
it is determined that such a regulation does not have federalism
implications warranting the preparation of a Federalism Assessment.
International Civil Aviation Organization and Joint Aviation
Regulations
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with ICAO
Standards and Recommended Practices (SARP) to the maximum extent
practicable. For this document, the FAA has reviewed the SARP of Annex
6, Parts I and II, applicable to foreign commercial air transportation
operations and foreign general aviation operations respectively. The
FAA has determined that this interim final rule will not present any
differences with ICAO guidance.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), there are no requirements for information collection
associated with this rule.
Justification For No Public Notice and Comment
The Administrative Procedure's Act, 5 U.S.C. 553 et. seq., requires
that prior to the issuance of a final rule, an agency will give notice
to the public and seek comment on a proposed rule. This interim final
rule is issued without public notice and comment pursuant to subsequent
and specific authority. This authority is found at 49 U.S.C.
45301(b)(2), which requires that this interim final rule be issued
before public comment is sought. A final rule will be issued subsequent
to this public comment.
Conclusion
The FAA has determined that this regulation: (1) is a significant
rule under Executive Order 12866; and (2) is a significant rule under
Department of Transportation Regulatory Policies and Procedures (44 FR
11034; February 26, 1979). Also, for the reasons stated under the
headings ``Trade Impact Statement'' and ``Regulatory Flexibility
Determination,'' the FAA certifies that the interim final rule will not
have a significant economic impact on a substantial number of small
entities. A
[[Page 13503]]
copy of the full regulatory evaluation is filed in the docket and may
also be obtained by contacting the person listed in FOR FURTHER
INFORMATION CONTACT.
List of Subjects in 14 CFR Part 187
Administrative practice and procedure and Air transportation.
The Amendment
The Federal Aviation Administration amends part 187 of the Federal
Aviation Regulations [14 CFR part 187] as follows:
PART 187--FEES
1. The authority citation for part 187 continues to read as
follows:
Authority: 31 U.S.C. 9701; 49 U.S.C. 106(g), 40104-40105, 40109,
40113-40114, 44702, 45301-45303.
2. Section 187.1 is amended by adding the following sentences to
the end of the section to read as follows:
Sec. 187.1 Scope.
* * * Appendix A to this part prescribes the methodology for
computation of fees for certification services performed outside the
United States. Appendix B to this part prescribes the fees for certain
aircraft flights that transit U.S.-controlled airspace.
3. Section 187.15 is amended by adding new paragraph (d) to read as
follows:
Sec. 187.15 Payment of fees.
* * * * *
(d) The fees described in appendix B of this party are payable to
the Federal Aviation Administration in U.S. currency. Remittance of
fees of $1,000 or more are to be paid by electronic funds transfer.
Remittances below $1,000 may be paid by electronic funds transfer,
check, money order, credit card, or draft.
4. Part 187 is amended by adding new appendix B to read as follows:
Appendix B to Part 187--Fees for Air Traffic Services for Certain
Flights Through U.S-Controlled Airspace
(a) Applicability. Except as provided in paragraph (b) and (c)
of this appendix, this appendix applies to any person who conducts a
flight through U.S.-controlled airspace that does not include a
landing or takeoff in the United States. U.S.-controlled airspace
includes both U.S. sovereign airspace (hereafter ``domestic
airspace'') and airspace allocated to the United States by the
International Civil Aviation Organization (hereafter ``oceanic
airspace'').
(b) Government flights. This appendix does not apply to any
military or civil aircraft operated by the United States government
or by any foreign government.
(c) Deferral of Overflight Charges. This appendix will not apply
to aircraft that take off and land in Canada without intermediate
stops outside Canada that operate in U.S.-controlled airspace prior
to October 1, 1997.
(d) Services. Persons covered by paragraph (a) of this appendix
shall pay a fee for the use of air traffic control services and
associated services including but not limited to the following:
(1) Air traffic management.
(2) Communications.
(3) Navigation.
(4) Radar surveillance, including separation services.
(5) Flight information services, such as flight plan filing, and
weather briefings.
(6) Procedural control.
(7) Emergency services and training.
(e) Methodology for the Computation of fees.
(1) For the use of any of the services listed in paragraph (d)
of this appendix, the fee is computed based on user type and
distance flown. Distance flown is based on the great circle route
(GCR) for the actual point of entry and the actual point of exit of
U.S.-controlled airspace. Fees are assessed using the methodology
presented in paragraph (d) (2), (3), and (4) of this appendix. Where
actual entry and exit points are not available, the best available
flight data will be used.
(2) For commercial users a fee is assessed for each 100 nautical
miles flown in U.S-controlled airspace. Commercial users are defined
as those operators whose primary purpose is to provide passenger
and/or cargo air transportation for compensation or hire. Separate
calculations are made for transiting domestic and oceanic airspace.
The total fee charged for an overflight between any two cities is
equal to the sum of these two charges. Expressed in 1997 dollars,
this relationship is summarized as
Rij=$69.50*DOij+$78.90*DDij,
where
Rij=the fee charged to commercial aircraft flying between city
i and city j,
DOij=distance traveled in U.S.-controlled oceanic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j,
DDij=distance traveled in domestic U.S. airspace expressed in
hundreds of nautical miles for aircraft flying between city i and
city j.
(3) for a general aviation user of turbine-powered aircraft, the
total fee charged between any two cities (expressed in 1997 dollars)
is calculated as
GATRij=$13.90*DOij+$15.78*DDij,
where
GATRij=the fee charged to general aviation turbine-powered
aircraft flying between city i and city j,
DOij=distance traveled in U.S.-controlled oceanic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j,
DDij=distance traveled in U.S.-controlled domestic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j.
A general aviation user of turbine-powered aircraft is defined
as those operators who do not provide passenger and/or cargo
transportation for compensation or hire.
(4) For a general aviation user of piston-powered aircraft, the
total fee charged between any two cities (expressed in 1997 dollars)
is calculated as
GAPRij=$3.86*DOij+$4.38*DDij
where
GATRij=the fee charged to general aviation piston-powered
aircraft flying between city i and city j,
DOij=distance traveled in U.S.-controlled oceanic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j,
DDij=distance traveled in U.S.-controlled domestic airspace
expressed in hundreds of nautical miles for aircraft flying between
city i and city j.
A general aviation user of piston-powered aircraft is defined as
those operators who do not provide passenger and/or cargo
transportation for compensation or hire.
(5) General aviation users of piston-powered aircraft traversing
less than 250 nautical miles of U.S.-controlled airspace will not be
charged a fee under this appendix.
(f) Billing and payment procedures.
(1) Billing. The FAA will send an invoice to each user that is
covered by this appendix. Users will be billed at the address of
record in the country where the aircraft its registered, unless a
billing address is otherwise provided.
(2) Payment. Payment shall be made by one of the methods
described in Sec. 187.15.
(g) Review of fees. The fees prescribed in this appendix will be
reviewed at least once every 2 years, at the beginning of the fiscal
year, and adjusted either upward or downward in order to reflect the
current costs of performing the services covered by this appendix.
Issued in Washington, DC, on March 14, 1997.
Barry L. Valentine,
Acting Administrator.
[FR Doc. 97-6980 Filed 3-17-97; 11:23 am]
BILLING CODE 4910-13-M