[Federal Register Volume 70, Number 84 (Tuesday, May 3, 2005)]
[Rules and Regulations]
[Pages 23002-23004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8728]



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Part II





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; Final Rule

  Federal Register / Vol. 70, No. 84 / Tuesday, May 3, 2005 / Rules and 
Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 71 and 97

[Docket No. FAA-2004-19247; Amdt. Nos. 71-33, 97-1335]
RIN 2120-AI39


Revision of Incorporation by Reference Provisions

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule removes the incorporation by reference of 
certain FAA orders and terminal aeronautical charts from the Code of 
Federal Regulations. The previous IBR of these materials 
inappropriately designated them as regulatory. Instead, the FAA is 
incorporating by reference the instrument procedures and weather 
takeoff minimums that are documented on FAA forms. This change ensures 
that the appropriate material is incorporated by reference into the 
FAA's regulations.

DATES: This rule is effective June 2, 2005. The incorporation by 
reference of certain publications listed in the rule is approved by the 
Director of the Federal Register as of June 2, 2005.

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:

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.gpoaccess.gov/fr/index.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.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted 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 19477-19478) or you may visit http://dms.dot.gov.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. If you are a small entity and you have a 
question regarding this document, you may contact your local FAA 
official, or the person listed under FOR FURTHER INFORMATION CONTACT. 
You can find out more about SBREFA on the Internet at http://www.faa.gov/avr/arm/sbrefa/cfm.

Statutory Authority for This Rulemaking

    The FAA's authority to issue this final rule is derived, in part, 
from 49 U.S.C. 40103, which requires the FAA to prescribe air traffic 
regulations on the flight of aircraft for navigating, protecting, and 
identifying aircraft; protecting individuals and property on the 
ground; using the navigable airspace efficiently; and preventing the 
collision of aircraft. Furthermore, under 49 U.S.C. 44701(a), the FAA 
promotes safe flight by prescribing regulations and minimum standards 
for other practices, methods, and procedures necessary for safety in 
air commerce.

Background

    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 incorporated by reference into 14 CFR 97.20 FAA Orders 8260.3B 
and 8260.19C, and the terminal aeronautical charts.
    Upon staff review, the FAA concluded the incorporation by reference 
(IBR) of these orders and terminal aeronautical charts was in error and 
resulted in the inappropriate designation of certain material as 
regulatory. The two orders originally incorporated by reference set 
forth the criteria used by the FAA to develop instrument approach 
procedures (IAPs) and instrument flight rules (IFR) takeoff minimums. 
The components that must be regulatory are the actual procedures and 
the takeoff minimums, not the developing criteria. Thus, only IAPs and 
takeoff minimums, which are delineated on FAA Forms, should be 
incorporated by reference. Similarly, it is not appropriate to 
incorporate by reference terminal aeronautical charts, as these charts 
merely depict IAPs and takeoff minimums.
    On October 5, 2004, therefore, the FAA published a Notice of 
Proposed Rulemaking (NPRM) (69 FR 59755, Oct. 5, 2004) proposing to 
correct the IBR of the material referenced above. The FAA proposed to 
incorporate by reference the standard instrument procedures documented 
on FAA Forms 8260-3, 8260-4, 8260-5 and the takeoff minimums on 8260-
15A.

Discussion of Comments

    Three entities commented on this rule: Airbus, the Aircraft Owners 
and Pilots Association (AOPA) and the Air Line Pilots Association, 
International (ALPA). All commenters generally supported the proposal.
    AOPA commented that the FAA should support Localizer Performance 
with Vertical Guidance (LPV) approaches for IFR access to general 
aviation airports. AOPA also commented that while the incorporation by 
reference of departure procedures on FAA Form 8260-15A may establish 
obstacle departure procedures on every departure conducted under IFR, 
the FAA should not require pilots to follow these procedures on every 
flight. AOPA argues that air traffic control (ATC) may require pilots 
to deviate from the procedures, which would cause a conflict with the 
departure procedures. Moreover, AOPA objects to the use of forms to 
impose new operational requirements upon the general aviation community 
without a specific operating requirement in 14 CFR part 91. Airbus also 
seeks clarification of the purpose for incorporating FAA Form 8260-15A.
    LPV procedures are not part of this rulemaking and this comment is 
outside the scope of this rulemaking. Form 8260-15A provides weather 
takeoff minimums and textual departure procedures. At the outset, we 
regret that the NPRM did not identify specifically that only the 
weather takeoff minimums articulated on form 8260-15A were proposed for 
incorporation. Consequently, this may have resulted in confusion as to 
whether associated departure procedures were also proposed for 
incorporation. This amendment distinguishes that the instrument 
approach procedures on FAA forms 8260-3, -4, and -5 and the weather 
takeoff minimums articulated on FAA form 8260-15A are IBR. Editorial 
changes reflecting the above clarification are in the regulatory text.

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    With respect to the IBR of FAA form 8260-15A, we believe that AOPA 
misunderstands the applicability of this form and the relevant part 91 
regulation. This amendment does not add any operational requirements 
for part 91 operators. Under current 14 CFR 91.175(f), in pertinent 
part, ``Unless otherwise authorized by the Administrator, no pilot 
operating an aircraft under parts 121, 125, 129, or 135 of this chapter 
may take off from a civil airport under IFR unless weather conditions 
are at or above the weather minimums for IFR takeoff prescribed for 
that airport under part 97 of this chapter. If takeoff minimums are not 
prescribed under part 97 of this chapter for a particular airport, the 
following minimums apply to takeoffs under IFR for aircraft operating 
under those parts * * *.'' This section does not apply to operations 
conducted under part 91. It currently requires operators (conducting 
operations under part 121, 125, 129, or 135) to comply with the weather 
takeoff minimums prescribed in part 97 for specified airports, and in 
the alternative if no weather takeoff minimums are specified in part 
97, then Sec.  91.175(f) specifies the required weather takeoff 
minimums. This rule provides the vehicle to incorporate by reference 
the weather takeoff minimums delineated on FAA form 8260-15A for 
designated airports in part 97. The operational requirement to comply 
with the takeoff minimums codified in part 97 already exists. Unless 
the aircraft operator obtains an authorization in accordance with Sec.  
91.175(f) to conduct its operations using weather takeoff minimums 
different from those specified in part 97, the takeoff minimums in part 
97 must be met. This amendment does not add any new operational 
requirements for part 91 operators.
    ALPA supports the proposal and specifically requests that special 
instrument approach procedures described on FAA form 8260-7 also be 
incorporated by reference into part 97 so that industry and the flying 
public have the same opportunity to comment and participate in the 
development of these procedures.
    Special instrument procedures are designed to meet the unique needs 
of particular operators and are approved by the FAA for limited use. 
Often, specific equipment and training are required to use these 
procedures. These procedures are authorized to specific users and are 
not available for general use by the flying public. Comments addressing 
the administrative process followed to authorize special procedures is 
outside the scope of this rulemaking.
    The FAA is adopting the amendments as proposed with the 
clarification that only the weather takeoff minimums listed on form 
8260-15A are incorporated by reference. Furthermore, the Office of the 
Federal Register has changed the location at which materials that are 
incorporated by reference may be examined. The materials are no longer 
available for examination at the Office of the Federal Register. 
Instead, the materials are now available for examination at the 
National Archives and Records Administration. Section 97.20(b) is 
updated accordingly.

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 
final 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

    Changes to Federal regulations must undergo several economic 
analyses. First, 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 (Pub. L. 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).
    For regulations with an expected minimal impact the above-specified 
analyses are not required. The Department of Transportation's Order DOT 
2100.5, which prescribes policies and procedures for simplification, 
analysis, and review of regulations, states that if it is determined 
that the expected impact is so minimal that the action does not warrant 
a full evaluation, a statement to that effect and the basis for it is 
included in the regulation. Since this final rule is administrative in 
nature removing inappropriate incorporation by reference of 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 final rule will have a minimal economic 
impact.
    The FAA has determined that this 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.

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 to have a significant economic impact

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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 final 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 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 no economic impact on domestic and international entities.

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 rule does not contain such a mandate. The requirements of 
Title II of the Act, therefore, 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 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 1050.1E 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 that this rulemaking action qualifies for the categorical 
exclusion identified in paragraph 312(f) and involves no extraordinary 
circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this final rule 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), Incorporation by 
reference, Weather.

The Amendments

0
In consideration of the foregoing, the Federal Aviation Administration 
amends 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

0
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]

0
2. Amend Sec.  71.11 by removing paragraph (b) and redesignating 
paragraph (c) as paragraph (b).

PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES

0
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.

0
4. Revise Sec.  97.20 to read as follows:


Sec.  97.20  General.

    (a) This subpart prescribes standard instrument procedures and 
weather takeoff minimums 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. 
Weather takeoff minimums are documented on FAA Form 8260-15A. These 
forms are incorporated by reference. The Director of the Federal 
Register approved this incorporation by reference pursuant to 5 U.S.C. 
552(a) and 1 CFR part 51. The standard instrument procedures and 
weather takeoff minimums are available for examination at the FAA's 
Rules Docket (AGC-200) and at the National Flight Data Center, 800 
Independence Avenue, SW., Washington, DC 20590, or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (c) Standard instrument procedures and weather takeoff minimums are 
depicted on aeronautical charts published by the FAA National 
Aeronautical Charting Office. 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 April 21, 2005.
Marion C. Blakey,
Administrator.
[FR Doc. 05-8728 Filed 5-2-05; 8:45 am]
BILLING CODE 4910-13-P