[Federal Register Volume 69, Number 192 (Tuesday, October 5, 2004)]
[Rules and Regulations]
[Pages 59752-59753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22375]



[[Page 59751]]

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Part V





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 91



Flight Limitation in the Proximity of Space Flight Operations; Final 
Rule

  Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / 
Rules and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No. FAA-2004-19246; Amendment Nos. 91-284]
RIN 2120-AI40


Flight Limitation in the Proximity of Space Flight Operations

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action makes editorial changes to current FAA regulations 
regarding temporary flight restrictions near space flight operations. 
Specifically, this action removes references to the ``Department of 
Defense (DOD) Manager for Space Transportation System Contingency 
Support Operations.'' This action does not change the intent of the 
existing rule.

DATES: This action is effective on November 4, 2004.

FOR FURTHER INFORMATION CONTACT: Sheri Edgett-Baron, Airspace and 
Rules, Office of Systems Operations and Safety, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
telephone (202) 267-9354.

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search
    (2) Visiting the Office of Rulemaking's Web page at http://www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing 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 docket number, notice number, or amendment number 
of this rulemaking.

Justification for Proceeding Without a Notice

    The FAA is issuing this action without notice and opportunity to 
comment under the authority of Section 4(a) of the Administrative 
Procedure Act, 5 United States Code (U.S.C.) 553(b). Section 553(b) 
allows the FAA to issue a final rule without notice and comment when 
the agency, for good cause, finds that notice and public procedure are 
``impracticable, unnecessary or contrary to the public interest.'' In 
this instance, public comment and notice are unnecessary. The change in 
this final rule merely removes a reference to a department now out of 
existence. This change will not have a negative effect on safety and 
does not change the original intent of the rule. Because this is an 
editorial change, the FAA believes the public will not have a 
substantial interest in this rulemaking.

Background and Discussion of the Rule

    Currently, regulations prohibit aircraft from operating within 
certain areas except when authorized by Air Traffic Control (ATC) or 
the DOD Manager for Space Transportation System Contingency Support 
Operations. These temporary flight restricted areas are designated 
according to 14 CFR 91.143 and the information made available through 
the Notice to Airmen (NOTAM) system. Site launch operators and launch 
licensees are required through the conditions of their license, or 
their regulations, to comply with all FAA rules and NOTAMs. During the 
times that a Space Flight Operation NOTAM is in effect, ATC may 
authorize aircraft to fly in the designated space flight area. Any such 
authorization could result in a hold for a launch operator. The ATC, as 
a matter of practice, will coordinate with the entity managing the 
space flight operation. Entities conducting the space flight operation 
may be private or federal.
    This action is an administrative update and merely removes a 
reference to the Department of Defense (DOD) manager for space 
transportation system contingency support operations. We have been 
informed by the DOD that this office no longer exists.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advise 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 at 9-AWA-SBREFA#@faa.gov.

Paperwork Reduction Act

    There are no new requirements for information collection associated 
with this amendment. An agency may not conduct or sponsor and a person 
is not required to respond to a collection of information unless it 
displays a currently valid Office of Management and Budget (OMB) 
control number.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practical. We have 
determined there are no ICAO Standards and Recommended Practices that 
correspond to these this rule.

Economic Assessment, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    Executive Order 12866 directs each Federal agency to propose or 
adopt a regulation only upon a reasoned determination 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. 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 also 
requires agencies to consider international standards and, where 
appropriate, use them as the basis of U.S. standards. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) 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 annually (adjusted for inflation.)
    We determined this rule (1) has benefits which do justify its 
costs, 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; (2) will not have a significant 
impact on a substantial number of small entities; (3) will reduce 
barriers to international trade; and (4) does not impose an unfunded 
mandate on state, local, or

[[Page 59753]]

tribal governments, or on the private sector.
    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 rule does not warrant a full 
evaluation, a statement to that effect and the basis for it is included 
in the rule. Since this rule is strictly administrative in nature 
involving editorial changes that do not change the intent of the 
existing rule, the expected outcome is to have a minimal impact.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980, establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the 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 RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rational for their actions. The RFA 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 agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
in not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    This rule is an administrative change only involving editorial 
changes that do not change the intent of existing rules. It deletes a 
reference to the ``Department of Defense (DOD) Manager for Space 
Transportation System Contingency Support Operations'' which no longer 
exists. Consequently, the FAA certifies that the 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 the basis for U.S. 
standards. The FAA has assessed the potential effect of this rulemaking 
and has determined that it will have only a domestic impact and 
therefore no effect on any trade-sensitive activity.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 (the Act), is intended, 
among other things, to curb the practice of imposing unfunded Federal 
mandates on State, 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.'' The FAA currently 
uses an inflation-adjusted value of $120.7 million in lieu of $100 
million.
    This final rule does not contain such a mandate. The requirements 
of Title II do not apply.

Executive Order 13132, Federalism

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

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this final rule qualifies for the categorical exclusion 
identified in paragraph 4(j) and involves no extraordinary 
circumstances.

Energy Impact

    The energy impact has been assessed in accordance with the Energy 
Policy and Conservation Act (EPCA Pub. L. 94-163, as amended (42 U.S.C. 
6362) and FAA Order 1053.1). It has been determined that this final 
rule is not a major regulatory action under the provision of the EPCA.

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Airports, Aviation safety.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Part 91 of Title 14 Code of Federal Regulations as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

0
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, 44712, 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).


0
2. Section 91.143 is revised to read as follows:


Sec.  91.143  Flight limitation in the proximity of space flight 
operations.

    When a Notice to Airmen (NOTAM) is issued in accordance with this 
section, no person may operate any aircraft of U.S. registry, or pilot 
any aircraft under the authority of an airman certificate issued by the 
Federal Aviation Administration, within areas designated in a NOTAM for 
space flight operation except when authorized by ATC.

    Issued in Washington, DC, on September 29, 2004.
Marion Blakely,
Administrator.
[FR Doc. 04-22375 Filed 10-4-04; 8:45 am]
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