[Federal Register Volume 69, Number 192 (Tuesday, October 5, 2004)]
[Proposed Rules]
[Pages 59756-59758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22376]



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Part VI





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 71 and 97



Revision of Incorporation by Reference Provisions; Proposed Rule

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

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 71 and 97

[Docket No. FAA-2004-19247; Notice No. 04-12]
RIN 2120-AI39


Revision of Incorporation by Reference Provisions

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA is proposing to remove the incorporation by reference 
of certain FAA Orders and terminal aeronautical charts from the 
provisions of 14 CFR part 97 and incorporate by reference instead 
instrument procedures that are documented on FAA forms. The FAA also 
proposes a conforming amendment in 14 CFR part 71. This change would 
ensure that the appropriate material is incorporated in the FAA's 
regulations.

DATES: Send your comments on or before November 4, 2004.

ADDRESSES: You may send comments identified by docket number FAA-200X-
XXXXX using any of the following methods:
     DOT Docket Web Site: Go to http://dms.dot.gov and follow 
the instructions for sending your comments electronically.
     Government-wide Rulemaking Web Site: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001.
     Fax: 1-202-493-2251.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For more information on the rulemaking process, see the 
SUPPLEMENTARY INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://dms.dot.gov, including any personal information you provide. For 
more information, see the Privacy Act discussion in the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: To read background documents or comments received, go to 
http://dms.dot.gov at any time or to Room PL-401 on the plaza level of 
the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Thomas E. Schneider, AFS-420, Federal 
Aviation Administration, P.O. Box 25082, Oklahoma City, OK 73125; 
telephone (405) 954-5852; facsimile (405) 954-2528; e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The FAA also 
invites comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. The FAA asks that you send two copies of 
written comments.
    The FAA will file in the docket all comments we receive, as well as 
a report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. The docket is available for public 
inspection before and after the comment closing date. If you wish to 
review the docket in person, go to the address in the ADDRESSES section 
of this preamble between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays. You may also review the docket using the 
Internet at the Web address in the ADDRESSES section.
    Privacy Act: Using the search function of our docket Web site, 
anyone can find and read the comments received into any of our dockets, 
including the name of the individual sending the comment (or signing 
the comment on behalf of an association, business, labor union, etc.). 
You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
http://dms.dot.gov.
    Before acting on this proposal, the FAA will consider all comments 
it receives on or before the closing date for comments. The FAA will 
consider comments filed late if it is possible to do so without 
incurring expense or delay. The FAA may change this proposal in light 
of the comments it receives.
    If you want the FAA to acknowledge receipt of your comments on this 
proposal, include with your comments a pre-addressed, stamped postcard 
on which the docket number appears. The FAA will stamp the date on the 
postcard and mail it to you.

Availability of Rulemaking Documents

    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. Be sure 
to identify the docket number, notice number, or amendment number of 
this rulemaking.

Background

    On December 17, 2002, the FAA published a Notice of Proposed 
Rulemaking (NPRM) titled ``Area Navigation (RNAV) and Miscellaneous 
Amendments'' (67 FR 77326; Dec. 17, 2002). In that NPRM, the FAA 
proposed to revise Sec.  97.20 to remove the incorporation by reference 
(IBR) of standard instrument approach procedures as described on FAA 
Forms 8260-3, 8260-4 and 8260-5. The FAA instead proposed to 
incorporate by reference into Sec.  97.20 FAA Orders 8260.3B, United 
States Standard for Terminal Instrument Procedures (TERPS) and 
8260.19C, Flight Procedures and Airspace, and terminal aeronautical 
charts. Incorporating a publication by reference into the Code of 
Federal Regulations means that the information contained in that 
publication in fact becomes regulatory. Any subsequent modification is 
a rule change and is accomplished by rulemaking under the 
Administrative Procedures Act.
    On April 8, 2003, the FAA adopted the final rule titled 
``Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic 
Service Routes; and Reporting Points'' (68 FR 16943; April 8, 2003), 
which adopted the proposed amendments to 14 CFR 97.20. Upon staff 
review, the FAA concluded that the incorporation by reference of FAA 
Orders 8260.3B and 8260.19C and the terminal aeronautical charts was in 
error and resulted in the inappropriate designation of certain material 
as regulatory.

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Section 97.20

    Specifically, FAA Order 8260.3 provides agency policy and 
standardized methods for designing instrument flight procedures. The 
FAA follows this policy for the preparation, approval, and promulgation 
of terminal instrument procedures. FAA Order 8260.19, provides guidance 
for administering the Flight Procedure and Airspace Program. It also 
defines responsibilities, establishes criteria and provides standards 
to assure effective and orderly processing of all types of procedure 
actions.
    Section 91.175(a) requires a pilot to use an instrument procedure 
prescribed in part 97, unless otherwise authorized by the FAA, when it 
is necessary to conduct an instrument letdown to a civil airport. 
Consistent with this requirement, the FAA, via rulemaking, adopts 
instrument procedures by amending Sec.  97.20. While the adopted 
instrument procedures become part of Sec.  97.20, the agency policy and 
criteria for designing, preparing and approving the procedure should 
not become part of Sec.  97.20, as they are not regulatory actions and 
should not be incorporated by reference into part 97. Similarly, it is 
not appropriate to incorporate by reference terminal aeronautical 
charts, as those charts merely depict the instrument procedures for use 
by the pilot.
    The FAA is proposing to revise Sec.  97.20 by removing the IBR of 
FAA Orders 8260.3 and 8260.19. Additionally, the IBR of terminal 
aeronautical charts would be removed. The FAA instead would incorporate 
by reference the instrument procedures detailed on FAA Forms 8260-3, 
8260-4, 8260-5 and 8260-15A into Sec.  97.20.
    The proposed text for Sec.  97.20 would set forth the FAA Forms 
that contain the instrument procedures that would be IBR, and provide 
information to the public as to where the procedures may be examined. 
It also provides information on the availability of aeronautical charts 
depicting standard instrument procedures.
    The FAA currently coordinates all new and revised TERPS criteria 
and procedures in Orders 8260.3 and 8260.19 with those organizations 
affected, both public and private, in accordance with the coordination 
process contained in FAA Order 1320.1, FAA Directives Systems. In 
addition, the agency coordination process for these two orders includes 
any person requesting the opportunity to comment.

Section 71.11

    The FAA proposes to delete paragraph (b), and the existing 
paragraph (c) would be redesignated as paragraph (b). This section 
would conform to Sec.  97.20, which would remove the IBR of FAA Orders 
8260.3 and 8260.19.
    The Director of the Federal Register must approve all rules that 
incorporate by reference material into the Code of Federal Regulations. 
If this rule is adopted as proposed, the FAA will submit a final rule 
to the Director of the Federal Register seeking approval to incorporate 
by reference into Sec.  97.20 the instrument procedures on FAA forms.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the FAA consider the impact of paperwork and other information 
collection burdens imposed on the public. The FAA has determined that 
there is no new information collection requirement associated with this 
proposed rule.

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 practicable. The FAA has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these proposed regulations.

Economic Assessment, Regulatory Flexibility Determination, 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 private sector, of $100 million or 
more annually (adjusted for inflation).
    We determined this proposed rule (1) has benefits that justify its 
costs, is not a ``significant regulatory action'' as defined in section 
3(f) of Executive Order 12866, and is not ``significant'' as defined in 
DOT's Regulatory Policies and Procedures; (2) will not have a 
significant economic impact on a substantial number of small entities; 
(3) will not have any effect on barriers to international trade; and 
(4) does not impose an unfunded mandate on state, local, or 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 proposal does not warrant a full 
evaluation, a statement to that effect and the basis for it is included 
in proposed regulation. Since this NPRM is administrative in nature 
removing inappropriate interpretation by reference material from FAA 
regulations and adding appropriate incorporation by reference material, 
these changes will not impact the integrity of existing rules. As a 
result, this proposed rule will have a minimal economic impact. The FAA 
requests comments with supporting justification regarding the FAA 
determination of minimal impact.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) 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 explain the 
rationale 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

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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 is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    This proposed rule is administrative in nature correcting an 
earlier action that resulted in an inappropriate designation of certain 
material as regulatory. Consequently, the FAA certifies the proposed 
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 
establishing any standards or engaging in 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 
impose the same costs on domestic and international entities and thus 
have a neutral trade impact.

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 an expenditure of $100 million or more (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 NPRM does not contain such a mandate. The requirements of 
Title II of the Act do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The FAA has determined 
that this action would not have a substantial direct effect 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, and therefore 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 proposed rulemaking action qualifies 
for a categorical exclusion.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this NPRM under Executive Order 13211, Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The FAA has determined that it is 
not a significant energy action under the executive order because it is 
not a significant regulatory action under Executive Order 12866, and it 
is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

List of Subjects

14 CFR Part 71

    Airspace, Navigation (air).

14 CFR Part 97

    Air traffic control, Airports, Navigation (air), Weather.

The Proposed Amendments

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend chapter I of title 14, Code of Federal 
Regulations, as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR 
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 
FR 9565, 3 CFR 1959-1963 Comp., p 389.


Sec.  71.11  [Amended]

    2. Amend Sec.  71.11 by removing paragraph (b) and redesignating 
paragraph (c) as paragraph (b).

PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES

    3. The authority citation for part 97 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 
44502, 44514, 44701, 44719, and 44721-44722.

    4. Revise Sec.  97.20 to read as follows:


Sec.  97.20  General.

    (a) This subpart prescribes standard instrument procedures based on 
the criteria contained in FAA Order 8260.3, U.S. Standard for Terminal 
Instrument Procedures (TERPs), and other related Orders in the 8260 
series that also address instrument procedure design criteria.
    (b) Standard instrument procedures and associated supporting data 
adopted by the FAA are documented on FAA Forms 8260-3, 8260-4, 8260-5, 
and 8260-15A, and were approved for incorporation by reference by the 
Director of the Federal Register pursuant to 5 U.S.C. 552(a) and 1 CFR 
Part 51. The standard instrument procedures are available for 
examination at the Rules Docket (AGC-200) and at the National Flight 
Data Center, 800 Independence Avenue, SW., Washington, DC 20590, and at 
the Office of the Federal Register, 800 North Capitol Street, NW., 
suite 700, Washington, DC.
    (c) Standard instrument procedures are depicted on aeronautical 
charts published by the FAA National Aeronautical Charting Office and 
these charts are available for purchase from the FAA's National 
Aeronautical Charting Office, Distribution Division, 6303 Ivy Lane, 
Suite 400, Greenbelt, MD 20770.

    Issued in Washington, DC, on September 29, 2004.
John M. Allen,
Acting Director, Flight Standards Service.
[FR Doc. 04-22376 Filed 10-4-04; 8:45 am]
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