[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]]

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Part VI





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Part 187



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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