Operation of Civil Aircraft of U.S. Registry Outside of the United States, 10140-10143 [E8-3583]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 38 (Tuesday, February 26, 2008)]
[Rules and Regulations]
[Pages 10140-10143]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-3583]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2007-0020; Amdt. No. 91-299]
RIN 2120-AJ14


Operation of Civil Aircraft of U.S. Registry Outside of the 
United States

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This action amends certain regulations governing U.S. 
registered aircraft operating beyond the territorial airspace of the 
United States. This action is necessary to correct an error in the 
recodification of the regulations concerning general operating and 
flight rules. The intended effect of this action is to correct an 
inadvertent error in the regulations.

DATES: This action is effective February 26, 2008.

FOR FURTHER INFORMATION CONTACT: Nancy Lauck Claussen, Flight Standards 
Service, Federal Aviation Administration, 800 Independence Avenue, SW., 
Washington, DC 20591; telephone: (202) 267-8166; facsimile (202) 267-
5229, e-mail nancy.l.claussen@faa.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Federal eRulemaking portal at https://
www.regulations.gov;
    (2) Visiting the FAA's Regulations and Policies Web page at https://
www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at https://
www.gpoaccess.gov/fr/.
    You can also get a copy by sending a request to the Federal 
Aviation

[[Page 10141]]

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 rulemaking.

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. Subtitle I, Section 106 
describes the authority of the FAA Acting Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency's 
authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Section 44701(a)(5), General Requirements. Under 
that section, the FAA is charged with prescribing regulations and 
minimum standards for other practices, methods, and procedure the 
Acting Administrator finds necessary for safety in air commerce and 
national security. This regulation is within the scope of that 
authority because it addresses operational requirements that support 
aviation safety.

Background

    In August 1966, the FAA amended 14 CFR part 91 to prescribe rules 
that apply to civil aircraft of U.S. registry operating outside of the 
United States. This final rule made the general operating rules of 
Subpart A and the maintenance rules of Subpart C of Part 91 applicable 
to U.S. registered civil aircraft operations outside of, as well as 
within, the United States. (See 31 FR 8354; June 15, 1966.) Section 
91.1, Applicability, was amended by adding paragraph (b)(3), which 
provided that ``Each person operating a civil aircraft of U.S. registry 
outside of the United States shall * * * Except for Sec. Sec.  
91.15(b), 91.17, 91.38, and 91.43, comply with Subparts A and C of this 
part so far as they are not inconsistent with applicable regulations of 
the foreign country where the aircraft is operated or Annex 2 to the 
Convention on International Civil Aviation.''
    On August 18, 1989, the FAA issued a final rule that recodified 
Part 91 (54 FR 34284). The purpose of this action was to reorganize and 
clarify existing rules.\1\ The FAA designated new Sec.  91.703--
Operations of civil aircraft of U.S. registry outside of the United 
States, and moved several paragraphs from Sec.  91.1 relating to the 
operation of U.S. registered aircraft outside the U.S. to the newly 
established Sec.  91.703. Specifically, paragraph (b)(3) of Sec.  91.1 
was moved to Sec.  91.703(a)(3). The FAA did not intend any substantive 
change to this paragraph.
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    \1\ The FAA also made four substantive changes to the 
regulations during this rulemaking that are not at issue in this 
rule.
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    As recodified, Sec.  91.703 provides that ``Each person operating a 
civil aircraft of U.S. registry outside of the United States shall * * 
* (3) Except for Sec. Sec.  91.307(b), 91.309, 91.323, and 91.711, 
comply with this part so far as it is not inconsistent with applicable 
regulations of the foreign country where the aircraft is operated or 
annex 2 of the Convention of International Civil Aviation.'' Referring 
to ``this part'' instead of referring specifically to subparts A and C 
in part 91 substantively affects the regulatory requirements. Under the 
current language, except for the four noted exceptions, all the 
provisions of part 91 apply to U.S. registered aircraft operating 
outside of the United States.
    The FAA has reviewed this matter, as it applies to the speed 
restrictions articulated in Sec.  91.117(a).\2\ The current regulatory 
text of Sec.  91.703(a)(3) makes the speed restrictions of Sec.  
91.117(a) applicable to U.S registered civil aircraft when operating 
outside the United States (and not within a foreign country). We 
conclude that the final rule in 1989 erroneously changed the 
requirements and that this result was unintended. This rule corrects 
that error. The FAA will further review Part 91 to determine whether 
there are similar issues that need to be addressed.
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    \2\ Section 91.117(a) provides that unless otherwise authorized 
by the Administrator, no person may operate an aircraft below 10,000 
feet mean sea level (MSL) at an indicated airspeed of more than 250 
knots (288 m.p.h.).
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Good Cause for Immediate Adoption of This Final Rule

    On the basis of the above information, the FAA finds that immediate 
action is necessary to correct the regulations to accurately depict the 
agency's intentions. As a practical matter, the FAA is aware that most 
of the affected industry was unaware of the literal effect of the 
recodification with respect to the speed restrictions contained in 
Sec.  91.117(a). Until recently, the FAA was not aware of the error, 
and has proceeded from an operational perspective that the speed 
restrictions of Sec.  91.117(a) do not apply to U.S. registered 
aircraft, via Sec.  91.703(a)(3), when operating outside the U.S. (and 
not within another country's territorial airspace).\3\
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    \3\ The FAA's Office of the Chief Counsel realized this issue in 
issuing an interpretation dated October 12, 2005 to Mr. Michael Di 
Marco, which concludes appropriately that the speed restriction of 
Sec.  91.117(a) does in fact apply to U.S. registered civil aircraft 
when operating over the high seas under the current regulations. 
This interpretation was reaffirmed on April 10, 2007, in the 
agency's response to Mr. David Shacknai. Concurrent with the 
adoption of this final rule, the FAA will rescind the interpretation 
as it is no longer valid.
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    Because the circumstances described in this notice warrant 
immediate action by the FAA to correct and accurately depict the 
regulatory requirements, I find that notice and public comment under 5 
U.S.C. 553(b) are impracticable and contrary to the public interest. 
Further, I find that good cause exists for making this rule effective 
immediately upon publication.

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 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 the FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBREFA on the Internet at our site, https://www.faa.gov/
regulations_policies/rulemaking/sbre_act/.

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. We have determined that there 
is no new information collection requirement associated with this 
direct final rule.
    An agency may not collect or sponsor the collection of information, 
nor may it impose an information collection requirement 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 ICAO 
Standards and Recommended Practices to the maximum extent practicable. 
The FAA has reviewed the corresponding ICAO Standards and Recommended 
Practices and has identified no differences with these regulations.

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

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that

[[Page 10142]]

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 of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) 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. 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 the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995).
    In conducting these analyses, FAA has 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) reduces barriers to international trade; and (4) does not 
impose an unfunded mandate on state, local, or tribal governments, or 
on the private sector. These analyses, available in the docket, are 
summarized below.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    Since this final rule merely corrects an inadvertent error in the 
regulations, the expected outcome will be a minimal impact with 
positive net benefits, and a regulatory evaluation was not prepared. 
FAA has, therefore, determined that this final rule 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.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' 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 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 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 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 corrects an inadvertent error in the regulations. 
Its economic impact is minimal. Therefore, we certify that this action 
will not have a significant economic impact on a substantial number of 
small entities.
    Therefore, as the FAA Acting Administrator, I certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) 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 final rule and has determined that it will 
impose no costs on domestic and international entities and thus has a 
neutral trade impact.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) 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 with the base year 1995) 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 $128.1 million in lieu of $100 million.
    This final rule does not contain such a mandate.

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 the 
distribution of 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 proposed rulemaking action qualifies for the 
categorical exclusion identified in paragraph 312f 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). We have 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.

[[Page 10143]]

List of Subjects in 14 CFR Part 91

    Air traffic control, Aircraft, Airmen, Aviation safety, Reporting 
and recordkeeping requirements.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Chapter I 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, 44704, 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. Amend Sec.  91.703 by revising paragraph (a)(3) to read as follows:


Sec.  91.703  Operations of civil aircraft of U.S. registry outside of 
the United States.

    (a) * * *
    (3) Except for Sec. Sec.  91.117(a), 91.307(b), 91.309, 91.323, and 
91.711, comply with this part so far as it is not inconsistent with 
applicable regulations of the foreign country where the aircraft is 
operated or annex 2 of the Convention on International Civil Aviation; 
and
* * * * *

    Issued in Washington, DC on February 15, 2008.
Robert A. Sturgell,
Acting Administrator.
[FR Doc. E8-3583 Filed 2-25-08; 8:45 am]
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