[Federal Register Volume 67, Number 135 (Monday, July 15, 2002)]
[Rules and Regulations]
[Pages 46568-46572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17744]



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Part II





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 91



Transition to an All Stage 3 Fleet Operating in the Contiguous United 
States and the District of Columbia; Final Rule

  Federal Register / Vol. 67, No. 135 / Monday, July 15, 2002 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2002-12771; Amendment No. 91-276]
RIN 2120-AH41


Transition to an All Stage 3 Fleet Operating in the 48 Contiguous 
United States and the District of Columbia

AGENCY: Federal Aviation Administration, DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This final rule removes outdated language, revises several 
sections, and adds one new section to the noise operating regulations. 
Some revisions are a result of statutory changes to the Airport Noise 
and Capacity Act. New requirements define specific filing procedures 
and criteria for special flight authorizations. These revisions will 
make the noise operating regulations consistent with statutory 
provisions.

DATES: This final rule is effective July 15, 2002. Comments must be 
received on or before August 14, 2002.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify the docket number FAA-
2002-12771 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that FAA 
received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
these proposed regulations in person in the Dockets Office between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Laurette Fisher, AEE-100, Office of 
Environment and Energy, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591, telephone (202) 267-
3561; facsimile (202) 267-5594.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Although this final rule is being adopted without prior notice and 
prior public comment, the Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; February 26, 1979) 
provide that, to the maximum extent possible, operating administrations 
within the DOT should provide an opportunity for public comment on 
regulations issued without prior notice. Accordingly, interested 
persons are invited to participate in this rulemaking by submitting 
such written data, views, or arguments, as they may desire. Comments 
relating to environmental, energy, federalism, or international trade 
impacts that might result from this amendment also are invited. 
Comments must include the regulatory docket or amendment number and 
must be submitted in duplicate to the address above. All comments 
received, as well as a report summarizing each substantive public 
contact with FAA personnel on this rulemaking, will be filed in the 
public docket. The docket is available for public inspection before and 
after the comment closing date.
    The FAA will consider all comments received on or before the 
closing date for comments. Late filed comments will be considered to 
the extent practicable. This final rule may be amended in light of the 
comments received.
    Commenters who want the FAA to acknowledge receipt of their 
comments submitted in response to this final rule must include a pre-
addressed, stamped postcard with those comments on which the following 
statement is made: ``Comments to Docket No. FAA-2002.'' The postcard 
will be date-stamped by the FAA and mailed to the commenter.

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last five digits of the Docket 
number how at the beginning of this document. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through the 
Office of Rulemaking's Web page at http://www.faa.gov/avr/armhome.htm 
or the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this final 
rule.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact their local FAA official, 
or the person listed under FOR FURTHER INFORMATION CONTACT. You can 
find out more about SBREFA on the Internet at our site, http://www.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us [email protected].

Background

    The Airport Noise and Capacity Act of 1990 (49 U.S.C. 47528 et 
seq.) (ANCA), prohibits the operation of Stage 2 civil subsonic 
turbojet airplanes with a maximum weight of more than 75,000 pounds in 
the contiguous United States after December 31, 1999. The ANCA also 
required the Federal Aviation Administration (FAA) to establish by 
regulation a schedule of phased compliance that would eliminate Stage 2 
operations by the final compliance date.
    Those regulations were promulgated in 1991, and codified at 14 CFR 
91.851-91.877. In general, the regulations required each operator of 
Stage 2 airplanes to progressively reduce the number of Stage 2 
airplanes it operates incrementally by 25% by the end of 1994, 1996, 
and 1998, respectively. In the alternative, operators could choose to 
operate a fleet of airplanes that was increasingly Stage 3: 55% after 
1994, 65% after 1996, and 75% after 1998. Under either option, except 
as provided in the ANCA, no Stage 2 airplane has been allowed to 
operate in the contiguous United States after December 31, 1999.
    On November 29, 1999, ANCA was amended. The prohibition on revenue 
operation of Stage 2 airplanes after December 31, 1999, remains in 
effect. The amended law permits certain nonrevenue Stage 2 operations 
to occur after December 31, 1999. Specifically, any operator of a Stage 
2 airplane over

[[Page 46569]]

75,000 pounds may operate that airplane in the contiguous United States 
only for the following purposes:
     Sell, lease, or scrap the airplane.
     Obtain modifications to meet Stage 3 noise levels.
     Obtain scheduled heavy maintenance or significant 
modifications.
     Deliver the airplane to a lessee or return it to a lessor.
     Park or store the airplane.
     Prepare the airplane for any of these events.
    On December 17, 1999 (64 FR 70571), the FAA published a notice of 
these statutory changes. As part of that notice, the FAA instructed 
operators how to apply for special flight authorizations.

Further Amendments to ANCA

    The original language of ANCA did not allow foreign air carriers to 
apply for a waiver from the Stage 2 final compliance requirement. On 
April 5, 2000, ANCA was again amended by the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (commonly known as AIR 
21). Section 721(d) of AIR 21, ``Waivers For Aircraft Not Complying 
With Stage 3 Noise Levels,'' allowed foreign air carriers, for a 
limited time, to apply for a waiver from the Stage 3 aircraft 
requirement of 49 U.S.C. 47528(a). The amended statutory provision 
stated that a foreign air carrier had until the 15th day following the 
date of enactment of AIR 21 to file an application for a waiver; the 
deadline was April 20, 2000.

Section-by-Section Analysis

    The FAA is amending its regulations consistent with Public Law 106-
113 and Sec. 721(d) of AIR 21. The following is an explanation of the 
changes to each affected section of the regulations.

PART 91 SUBPART I--OPERATING NOISE LIMITS

Section 91.801(c)  Applicability: Relation to Part 36

    This section applies to any civil subsonic turbojet airplane with a 
maximum certificated weight of more than 75,000 pounds. The amendment 
to ANCA inserted the phrase ``(for which an airworthiness certificate 
other than an experimental certificate has been issued by the 
Administrator)'' after ``civil subsonic turbojet.'' The effect of the 
amendment and the changes to paragraph (c) of Sec. 91.801 is to limit 
applicability of these regulations to U.S.-registered civil subsonic 
turbojet for which the Administrator has issued an airworthiness 
certificate other than an experimental certificate. This change makes 
the current regulation consistent with the amended ANCA.
    The original text of ANCA places limits on the operation of 
airplanes ``with a maximum weight of more than 75,000 pounds'' That 
language is not specific given the number of aircraft weights that may 
be recorded for an individual airplane. Since the regulations were 
adopted in 1991, the FAA has considered this weight to be the maximum 
takeoff weight of the airplane, which is recognized throughout the 
industry. Accordingly, the FAA is adding the term ``takeoff'' to 
section 91.801(c) to codify which weight is to be used in referring to 
the noise operating regulations. No operational changes or changes in 
aircraft status will result from this addition because the FAA has 
always used maximum takeoff weight in determining whether an airplane 
was subject to the law and these regulations. The change is intended to 
eliminate any future questions or remaining confusion about which 
airplane weight will be used.

Section 91.803(b)  Part 125 Operators: Designation of Applicable 
Regulations

    This paragraph is amended to remove references to other sections 
that are removed.

Section 91.807  Phased Compliance Under Parts 121, 125, and 135: 
Subsonic Airplanes

    This section sets out the compliance schedule for the elimination 
of Stage 1 airplanes. The text is removed since the requirements no 
longer apply to any operator. The section number is reserved.

Section 91.809  Replacement Airplanes

    This section sets out the planes for replacing Stage 1 airplanes. 
The text is removed since the requirements no longer apply any 
operator. The section number is reserved.

Section 91.811  Service to Small Communities Exemption: Two-Engine, 
Subsonic Airplanes

    This section provided a basis for exemption for the operation of 
certain Stage 1 airplanes. The text is removed since the requirements 
no longer apply to any operator. The section number is reserved.

Section 91.813  Compliance Plans and Status: U.S. Operations of 
Subsonic Airplanes

    This section sets out the requirements for compliance plans for the 
elimination of Stage 1 airplanes. The text is removed since the 
requirements no longer apply to any operator. The section number is 
reserved.

Section 91.857  Stage 2 Operations Outside of the 48 Contiguous United 
States, and Authorization for Maintenance

    Section 91.857(b) allowed operators of Stage 2 airplanes that 
legally operated their airplanes outside the contiguous United States 
to obtain a special flight authorization to bring those airplanes into 
the contiguous United States for maintenance. The FAA's authority to 
allow these flights expired as of December 31, 1999. The reference to 
authorization for maintenance is removed from the section title, and 
the text of Sec. 91.857(b) is deleted since the authorizations are no 
longer available. The paragraph (a) designation is also removed because 
the remaining text is a single paragraph.

New Section 91.858  Special Flight Authorization for Non-Revenue Stage 
2 Operations

    This is a new section on special flight authorizations for non-
revenue Stage 2 operations. These authorizations were provided for by 
the amendment to ANCA in November 1999, described earlier in this 
document. The information specified in this section was published in 
the Federal Register on December 17, 1999. Adoption of this information 
into the current regulations makes them consistent with the amended 
ANCA.

Section 91.859  Modification To Meet Stage 3 Noise Levels

    The text of this section is removed because the November 1999 
change to ANCA included Stage 3 modification as one of the bases for a 
special flight authorization.

Section 91.873  Waivers From Final Compliance

    The FAA is making two changes to Sec. 91.873 in this final rule. 
One change revises Sec. 91.873(a) by adding the words ``or a foreign 
air carrier'' after the words ``U.S. air carrier.'' The other change 
revises Sec. 91.873(b) by adding the date of application for a foreign 
air carrier. In the case of a foreign air carrier, AIR 21 required that 
the application be filed by the 15th day following the date of 
enactment of the law; that date was April 20, 2000. To avoid confusion, 
the FAA decided to incorporate these two changes to make the 
regulations consistent with the statutory provisions of AIR 21 passed 
on April 5, 2000.

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Paperwork Reduction Act

    Information collection requirements contained in 14 CFR part 91 
have been approved by the Office of Management and Budget (OMB) under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), and have been assigned OMB control number 2120-0652. There 
are no new requirements for information collection associated with this 
amendment.

Good Cause for Immediate Adoption

    When Congress amended ANCA in November 1999, it stated that the 
regulations were considered to be modified where they conflicted with 
any new statutory provision (Public Law 106-113). In an effort to 
distribute this information to the affected public, the FAA published a 
notice of these changes on December 17, 1999, as described earlier, and 
stated that this change to the current regulations would be made.
    Similarly, the April 2000 changes to ANCA by AIR 21 effectively 
changed the affected regulations at that time.
    In addition to the statutory changes described, the FAA is removing 
outdated portions of text in the noise operating regulations. Since 
none of these changes has any effect on current operators, the FAA 
finds that prior notice and public comments are unnecessary.
    Although this final rule is being adopted without prior notice and 
public comment, interested persons may submit comments in duplicate to 
the address listed under the ADDRESSES caption above. This final rule 
may be amended in response to such comments.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, Regulatory Planning and Review, directs the 
FAA to assess both the costs and benefits of a regulatory change. We 
are not allowed to propose or adopt a regulation unless we make a 
reasoned determination that the benefits of the intended regulation 
justify its costs. Our assessment of this final rule indicates that its 
economic impact is negligible. Since its costs and benefits do not make 
it a ``significant regulatory action'' as defined in the Order, we have 
not prepared a ``regulatory impact analysis.'' Similarly, we have not 
prepared a ``regulatory evaluation,'' which is the written cost/benefit 
analysis ordinarily required for all rulemaking proposals under the DOT 
Regulatory and Policies and Procedures. We do not need to do the latter 
analysis where the economic impact of a proposal is negligible.

Economic Evaluation

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs that each 
Federal agency must propose or adopt a regulation only upon a 
reasonable determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 
requires agencies to analyze the economic impact of regulatory changes 
on small entities. Third, the Trade Agreements Act (19 U.S.C. section 
2531-2533) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, this Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. And fourth, the Unfunded Mandates Reform Act of 1995 
requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more, in any one year (adjusted for inflation).
    However, for regulations with an expected minimal impact the above-
specified analyses are not required. The Department of Transportation 
Order DOT 2100.5 prescribes policies and procedures for simplification, 
analysis, and review of regulations. If it is determined that the 
expected impact is so minimal that the proposal does not warrant a full 
evaluation, a statement to that effect and the basis for it is included 
in proposed regulation.
    Since this final rule will remove and reserve sections concerning 
outdated Stage 1 requirements and revise other sections of the noise 
regulations, the expected cost impact will be negligible. The new 
section 91.858 on special flight authorizations allows operators to fly 
Stage 2 airplanes into the contiguous United States for specific 
purposes that would otherwise be prohibited. Since an operator may 
choose to apply for a special flight authorization if needed, the FAA 
has determined that his rule allows some cost savings to certain 
foreign operators while imposing only negligible costs on society at 
large. This rule is not a ``significant regulatory action'' as defined 
in the Executive Order and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures; will not have a significant impact 
on a substantial number of small entities; reduces barriers to 
international trade; and does not impose an unfunded mandate on State, 
local, or tribal governments, or on the private sector.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Act) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the final rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the business, organizations, and governmental jurisdictions subject 
to regulation.'' To achieve that principle, the Act requires agencies 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions. The Act covers a wide-range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the act.
    However, if an agency determines that the final rule is not 
expected to have a significant economic impact on a substantial number 
of small entities, section 605(b) of the 1980 Act provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    In view of the negligible cost impact of the rule, the FAA has 
determined that this final rule will have no significant economic 
impact on a substantial number of small entities. Consequently, the FAA 
certifies that the final rule will not have a significant economic 
impact on a substantial number of small entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be used as the basis for 
U.S. standards. In addition, consistent with this Administration's 
belief in the general superiority and desirability of free trade, it is 
the policy

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of this Administration to remove or diminish to the extent feasible, 
barriers to international trade, including both barriers affecting the 
export of American goods and services to foreign countries and barriers 
affecting the import of foreign goods and services into the United 
States.
    In accordance with the above statute and policy, the FAA has 
assessed the potential effect of this final rule and has determined 
that it will reduce costs for some international entities.

Unfunded Mandated Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995, is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on States, local, 
and tribal governments. Title II of the Act requires each Federal 
agency to prepare a written statement assessing the effects of any 
Federal mandate in a proposed or final agency rule that may result in a 
$100 million or more expenditure (adjusted annually for inflation) in 
any one year by State, local, and tribal governments, in the aggregate, 
or by the private sector; such a mandate is deemed to be a 
``significant regulatory action.''
    This final rule does not contain a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. The FAA has determined 
that this action would not have a substantial direct effects on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, the FAA has determined that 
this final rule would not have federalism implications.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of the notice has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, 
amended (42 U.S.C. 6362) and FAA Order 1050.1. It has been determined 
that the final rule is not a major regulatory action under the 
provisions of the EPCA.

List of Subjects in 14 CFR Part 91

    Aircraft, Noise control, Reporting and record keeping requirements.

The Amendments

    In consideration of the foregoing the Federal Aviation 
Administration amends part 91 of Chapter I of Title 14 Code of Federal 
Regulations as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

    1. The authority citation for part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 
44111, 44701, 44709, 44711, 447121, 44715, 44716, 44717, 44722, 
46306, 46315, 46316, 46504, 46506, 46507, 47122, 47508, 47528-47531, 
articles 12 and 29 of the Convention on International Civil Aviation 
(61 stat 1180).


Sec. 91.801  [Amended]

    2. Amend Sec. 91.801 by revising paragraph (c) to read as follows:


Sec. 91.801  Applicability: Relation to part 36.

* * * * *
    (c) Sections 91.851 through 91.877 of this subpart prescribe 
operating noise limits and related requirements that apply to any civil 
subsonic turbojet airplane (for which an airworthiness certificate 
other than an experimental certificate has been issued by the 
Administrator) with a maximum certificated takeoff weight of more than 
75,000 pounds operating to or from an airport in the 48 contiguous 
United States and the District of Columbia under this part, parts 121, 
125, 129, or 135 of this chapter on and after September 25, 1991.


Sec. 91.803  [Amended]

    3. Amend Sec. 91.803 by removing the phrase ``91.809, 91.811 and 
91.813'' in paragraph (b).


Sec. 91.807  [Removed and Reserved]

    4. Section 91.807 is removed and reserved.


Sec. 91.809  [Removed and Reserved]

    5. Section 91.809 is removed and reserved.


Sec. 91.811  [Removed and Reserved]

    6. 91.811 removed and reserved.


Sec. 91.813  [Removed and Reserved]

    7. 91.813 is removed and reserved.


Sec. 91.857  [Revised]

    8. Revise Sec. 91.857 to read as follows:


Sec. 91.857  Stage 2 operations outside of the 48 contiguous United 
States.

    An operator of a Stage 2 airplane that is operating only between 
points outside the contiguous United States on or after November 5, 
1990, must include in its operations specifications a statement that 
such airplane may not be used to provide air transportation to or from 
any airport in the contiguous United States.

    9. Add Sec. 91.858 to read as follows:


Sec. 91.858  Special flight authorizations for non-revenue Stage 2 
operations.

    (a) After December 31, 1999, any operator of a Stage 2 airplane 
over 75,000 pounds may operate that airplane in nonrevenue service in 
the contiguous United States only for the following purposes:
    (1) Sell, lease, or scrap the airplane;
    (2) Obtain modifications to meet Stage 3 noise levels;
    (3) Obtain scheduled heavy maintenance or significant 
modifications;
    (4) Deliver the airplane to a lessee or return it to a lessor;
    (5) Park or store the airplane; and
    (6) Prepare the airplane for any of the purposes listed in 
paragraph (a)(1) thru (a)(5) of this section.
    (b) An operator of a Stage 2 airplane that needs to operate in the 
contiguous United States for any of the purposes listed above may apply 
to FAA's Office of Environment and Energy for a special flight 
authorization. The applicant must file in advance. Applications are due 
30 days in advance of the planned flight and must provide the 
information necessary for the FAA to determine that the planned flight 
is within the limits prescribed in the law.


Sec. 91.859  [Removed and Reserved]

    10. Section 91.859 is removed and reserved.


Sec. 91.873  [Amended]

    11. Amend Sec. 91.873 by revising paragraphs (a) and (b) to read as 
follows:


Sec. 91.873  Waivers from final compliance.

    (a) A U.S. air carrier or a foreign air carrier may apply for a 
waiver from the prohibition contained in Sec. 91.853 of this part for 
its remaining Stage 2 airplanes, provided that, by July 1, 1999, at 
least 85 percent of the airplanes used by the carrier to provide 
service to or from an airport in the contiguous United States will 
comply with the Stage 3 noise levels.
    (b) An application for the waiver described in paragraph (a) of 
this section must be filed with the Secretary of Transportation no 
later than January 1, 1999, or, in the case of a foreign air

[[Page 46572]]

carrier, no later than April 20, 2000. Such application must include a 
plan with firm orders for replacing or modifying all airplanes to 
comply with Stage 3 noise levels at the earliest practicable time.
* * * * *

    Issued in Washington, DC on July 10, 2002.
Jane F. Garvey,
Administrator.
[FR Doc. 02-17744 Filed 7-12-02; 8:45 am]
BILLING CODE 4910-13-M