Special Flight Authorizations for Supersonic Aircraft, 30961-30968 [2019-13079]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 84, Number 125 (Friday, June 28, 2019)]
[Proposed Rules]
[Pages 30961-30968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13079]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2019-0451; Notice No. 19-08]
RIN 2120-AL30


Special Flight Authorizations for Supersonic Aircraft

AGENCY: Federal Aviation Administration (FAA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: Current regulations prohibit overland supersonic civil flights 
in the United States, but include a procedure to request authorization 
for these flights for the purposes of test and development of new 
aircraft. The criteria for such authorizations were developed in the 
1970s and placed in an appendix to the operating regulations. With 
renewed interest in supersonic aircraft development, the FAA is 
proposing to modernize the procedure for requesting these special 
flight authorizations.

DATES: Send comments on or before August 27, 2019.

ADDRESSES: Send comments identified by docket number FAA-2019-0451 
using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room 
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments 
from the public to better inform its rulemaking process. DOT posts 
these comments, without edit, including any personal information the 
commenter provides, to https://www.regulations.gov, as described in the 
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
https://www.dot.gov/privacy.
    Docket: Background documents or comments received may be read at 
https://www.regulations.gov at any time. Follow the online instructions 
for accessing the docket or go to the Docket Operations in Room W12-140 
of the West Building Ground Floor at 1200 New Jersey Avenue SE, 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mehmet Marsan, Office of Environment 
and Energy, AEE-100, Federal Aviation Administration, 800 Independence 
Avenue SW, Washington, DC 20591; telephone (202) 267-7703; email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

    Civil aircraft may not operate in the United States in excess of 
Mach 1 except in accordance with an authorization issued by the FAA. 
Currently, the application requirements for an authorization are found 
in appendix B to 14 CFR part 91, Authorizations to exceed Mach 1 (Sec.  
91.817). The FAA is proposing to streamline the application procedure 
for these special flight authorizations by clarifying the information 
that needs to be submitted and specifying the contact office within the 
FAA. This proposed rule sets forth those application criteria in a more 
user-friendly format.
    In this proposed rule, the FAA has identified three areas to 
improve provisions that are currently appendix B. The first designates 
to which office in the agency applicants should send applications and 
direct questions. The second gathers the scattered application 
requirements into a list, and presents them in current regulatory 
format. As part of this effort, the FAA is correcting the language to 
be consistent throughout the new section. Third, the agency is 
proposing the addition of a new reason for flight testing to 
accommodate future noise certification actions.
    This proposal removes the application criteria and procedure from 
an appendix and places it in regulatory text \1\ in accordance with 
current regulatory format. This modernization of the authorization 
process for certain civil supersonic flights is intended to simplify 
and clarify the process for applicants interested in the authorization 
process.
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    \1\ The material in appendix B was originally proposed as part 
of Sec.  91.55 (now Sec.  91.817) but was moved to an appendix at 
the suggestion of a commenter.
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    Finally, while not proposed as a change, the FAA is requesting 
comment on whether a regulatory provision that has yet to be used 
should be removed.

[[Page 30962]]

II. Legal Authority for This Rule

    The FAA's authority to issue rules on aviation safety is found in 
Title 49 of the United States Code. Subtitle I, Section 106 describes 
the authority of the FAA 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, Subpart III, Section 44715 Controlling aircraft 
noise and sonic boom. Under that section, the FAA is charged with 
prescribing regulations to measure and abate aircraft noise. This 
regulation is within the scope of that authority since it provides for 
certain operations of new supersonic aircraft in approved areas where 
the environmental impact of the operations has been assessed.

III. Background

    Technological advances and renewed industry interest in developing 
new civil supersonic aircraft have prompted the FAA to consider policy 
and regulatory changes to enable the domestic certification and 
operation of these aircraft.
    The introduction of the Concorde aircraft in the 1970s spurred both 
the prohibition on supersonic flight over land in the United States and 
the realization that the new industry would need to operate supersonic 
aircraft for testing as part of regular development. The regulations 
that adopted the prohibition on supersonic flight and the 
authorizations that allowed certain flights were promulgated in the 
1970s when the concept of supersonic flight was new. The preambles to 
those rules indicate that more robust development was expected, 
including the possibility that permanent supersonic flight corridors 
might be established for routine testing.\2\
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    \2\ NPRM proposing supersonic operating prohibition and appendix 
B, 35 FR 6189 (April 16, 1970). Final rule adopting supersonic 
operating prohibition and appendix B, 38 FR 8051 (March 28, 1973).
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    When the FAA promulgated the operating prohibition in Sec.  91.817, 
the authorization procedure was added to appendix B to part 91. The 
appendix was intended to be used primarily to authorize supersonic 
flights needed to test the airworthiness of a new aircraft, determine 
the ``sonic boom characteristics'' of an aircraft, or to show the 
conditions and limitations under which a supersonic flight did not 
allow a measurable sound pressure wave to reach the ground as a 
condition for other operation. The procedures in appendix B require an 
applicant to propose a test area, and to submit sufficient 
environmental information about the proposed test area to allow the 
Administrator to fulfill his duties under the National Environmental 
Policy Act of 1969 (NEPA) and to consider the protection of the 
environment in allowing a requested operation. The appendix includes a 
provision to request flights outside a test area, but requires a 
significant showing of no noise impact before applications will be 
considered.
    While the intent of the appendix can be distilled to these few 
provisions, neither its language nor its organization are particularly 
user friendly. The provisions are placed in three awkwardly organized 
sections that reference each other as well as the requirements that are 
scattered among those sections. The terms describing the locations for 
flight, for example, are inconsistent and range from ``designation of a 
particular test area'' in paragraph b, to ``test area proposed by the 
applicant'' in paragraph (c)(2), to ``designated test area'' in 
paragraph (c)(3) and later provisions. Assessment of these terms, by 
the FAA and potential applicants, have veered off into questions as to 
the nature of the Administrator's determination under NEPA versus the 
actual finding of environmental impact, and has caused interested 
parties to ask where the previously designated test areas are located. 
Another example of poor organization is the requirement for an 
applicant to show why over ocean testing is not sufficient for its 
purposes. Its placement in the text of the appendix causes it to be 
overlooked, and when noted, thought to only apply in certain 
circumstances, a conclusion not supported by any rule text.
    When appendix B was promulgated in 1973, the concept of civil 
supersonic flight was new, and the FAA estimated (for purposes of the 
Paperwork Reduction Act) that it would receive 20 applications for such 
flights per year. To date, the FAA has only received a handful of 
inquiries since 1973, and has only granted three authorizations--two 
for flights testing an experimental space vehicle attached to an 
airplane, and one for a domestic manufacturer whose subsonic airplane 
needed to exceed Mach 1 during required airworthiness testing. However, 
the FAA expects that renewed interest in the development of supersonic 
aircraft will lead to increased requests to authorize flights in excess 
of Mach 1. This proposed update to the application procedures are 
intended to support the growth of the civil supersonic industry.

IV. The Proposed Rule

A. Special Flight Authorizations for Supersonic Operations

1. Format of the Rule Text
    The Office of the Federal Register advised the FAA that the 
material contained in appendix B is not appropriate for an appendix in 
the Code of Federal Regulations (CFR). Accordingly, the FAA is 
proposing to codify the material in Sec.  91.818 and to make non-
substantive changes for organization and clarity. No change to the 
authority or requirements may be inferred from the change in format. 
Changes from the current appendix language are described in this 
preamble.
2. Form and Submission of Application Materials
    The description that an application is to be submitted ``in a form 
and manner prescribed by the Administrator'' has not been helpful to 
applicants or the FAA. The material that must be provided at 
application is scattered throughout the current appendix and is not 
sufficiently described, causing requested information to often be 
overlooked. Prospective applicants have interpreted this to mean that 
there is a form they must fill out. This is a misreading of the 
regulatory text; there is no form. The proposed reorganization would 
remedy this problem by removing the phrase `form and manner' and 
providing the requirements in a list in Sec.  91.818(a).
    The current appendix does not specify the office to which 
application materials are to be submitted, resulting in misdirected 
documents, delays and confusion. The proposed rule directs applicants 
to send their materials to the FAA's Office of Environment and Energy 
(AEE) for consideration by the Administrator.
3. Time of Day
    The FAA is proposing to require applicants to include the time of 
day they intend to conduct flights in the initial application. For 
flights that are to be conducted at night, further explanation of the 
necessity of these flights may be required because of their potential 
for increased noise impact on the human environment.\3\ Justification 
for night flights is information the FAA would have requested at some 
point during the current application process. The FAA proposes to 
include that information in the initial application to

[[Page 30963]]

be more efficient and make the process more transparent.
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    \3\ Night means ``the time between the end of evening civil 
twilight and the beginning of morning civil twilight, as published 
in the Air Almanac, converted to local time'' as defined in 14 CFR 
1.1.
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4. Reasons for Authorization
    Paragraph (a)(8) of the proposed rule includes the reasons for 
which a supersonic flight may be authorized; these are included in the 
current appendix. The FAA is also proposing an additional reason for 
flight in paragraph (a)(8)(v). This provision would allow for flights 
in excess of Mach 1 when measuring the noise characteristics of an 
aircraft for compliance with noise certification requirements, 
including conducting noise testing during supersonic flight. This 
provision is forward-looking. The language in current appendix B 
addresses only flights necessary to comply with airworthiness 
certification testing. While the current noise certification 
regulations of part 36 do not apply to supersonic aircraft, and there 
are no established noise limits or flight profiles for aircraft 
operating at supersonic speeds, current industry development suggests 
that a provision to allow supersonic speeds for noise testing will be 
needed in the future. The provision proposed here would allow an 
applicant to seek approval to conduct testing for noise certification 
following the adoption of regulations that would be promulgated 
separately under the FAA's statutory authority over aircraft noise.
    Interested persons are invited to submit other valid flight test 
conditions that may not be described here in a comment addressing 
paragraph (a)(8) of this proposed rule.
5. Flight Tests Over the Ocean
    In section 1.(c)(1) of the current appendix, there is a requirement 
for applicants to show why the purpose of their tests cannot be 
accomplished by ``overocean testing.'' The preambles to the rule 
adopting this provision were clear: ``This amendment requires 
applicants for such authorizations to show why the flight test cannot 
be safely or properly conducted over the ocean.'' \4\ However, the 
organization of the appendix often causes the applicability of this 
provision to be overlooked. In this proposed rule, that requirement is 
placed in Sec.  91.818(a)(9).
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    \4\ Preamble to final rule adopting appendix B, 38 FR 8054 
(March 28, 1973).
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    The FAA has had to bring this provision to the attention of 
prospective applicants who seek help understanding the regulation as 
written. If an application fails to include this information, the FAA 
would request it before consideration of an application would continue. 
Clarifying the provision in the regulatory language is expected to 
increase the visibility of the requirement and reduce the transaction 
time between the FAA and an applicant.
    Rather than the nonspecific term ``overocean,'' the text is revised 
to state ``over the ocean at a distance ensuring that no sonic boom 
overpressure reaches any land surface in the United States.'' This is 
intended to ensure that proposed testing over land is justified, and 
that when overocean testing is used, the distance required to protect 
the U.S. shoreline (as required under Sec.  91.817(b)) is not 
overlooked.
6. Environmental Analyses
    The current appendix states that an applicant must provide all the 
information necessary for the Administrator to make a determination 
under the NEPA. However, the appendix gives no indication what the FAA 
considers sufficient to make this determination. FAA Order 1050.1, 
Environmental Impacts: Policies and Procedures, contains information 
regarding the FAA's requirements and responsibilities as they relate to 
making NEPA determinations.\5\
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    \5\ See FAA Order 1050.1F.
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    Although there is limited history in approval of these 
authorizations, the presumption has been that an applicant would submit 
an Environmental Assessment (EA), or other documentation that provides 
sufficient information for the Administrator to make a NEPA 
determination.\6\ These options are now described in Sec.  
91.818(c)(2).
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    \6\ To date, each of the operators that have received appendix B 
authorizations has submitted the type of environmental findings 
described here.
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    For all such applications, the FAA would accept previous 
environmental reviews of the proposed flight area that are appropriate 
for the assessment of flight operations as long as the material remains 
current and relevant, or has been updated by the applicant to meet 
those requirements. Applications would not be considered complete until 
the environmental impact information has been submitted, reviewed, and 
determined sufficient by the FAA. Applications would remain open until 
sufficient information is submitted or until the applicant requests 
that its application be withdrawn.
7. Duration of Authorizations
    The current appendix does not specify a maximum time period for 
allowable flight-testing. The FAA does not grant open-ended 
authorizations for flight operations, however, since needs and 
conditions change over time. The agency would consider any reasonable 
time proposed by an applicant to accomplish the task for which the 
authorization is requested; this is contained in proposed Sec.  
91.818(e)(1), which states that a special flight authorization will be 
granted for the time determined to be necessary to conduct the 
activities in the request. Neither the current rule nor the proposed 
rule limits the number of applications for supersonic flight testing 
over the life of an aircraft development project. The FAA encourages 
applicants to submit separate applications when different phases of a 
project requiring supersonic flight are separated by significant time 
gaps. The FAA anticipates that most environmental reviews submitted for 
a first application would be sufficient for subsequent applications for 
the same flight area, but are not expected to be effective 
indefinitely.\7\ Applicants are free to request amendments to a special 
flight authorization, but such amendments may not be presumed until 
they are reviewed and approved, and a new special flight authorization 
is granted.
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    \7\ FAA Order 1050.1 describes time limits for the effectiveness 
of environmental reviews.
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8. Test Area Descriptions
    Finally, the term ``designated test area'' in the current appendix 
has caused prospective applicants to ask where such test areas have 
been established, when no such areas exist. The history of the rule 
suggests that areas were expected to be designated as the industry 
developed but that did not happen. To support the current development 
efforts of the industry, the FAA seeks to provide supersonic flight 
test applicants with the broadest opportunity to request an appropriate 
flight test area, consistent with applicable regulations. Whether an 
applicant chooses to request an area already used for non-civil 
supersonic flights or an area in another location would be up to the 
applicant. The ability to request a flight test area appropriate for an 
applicant's needs would allow the applicant to control the costs and 
benefits of various options, and to develop its business plan 
accordingly. The requirement to submit the environmental impact 
information remains, which allows the FAA to determine the 
acceptability of the location and the effect on the environment of the 
proposed flights as well as its duty to determine the level of federal 
review required under NEPA.
    Accordingly, the proposed rule text does not contain the historical 
term ``designated test areas,'' but allows the

[[Page 30964]]

applicant to request a test area that suits its purposes. The requested 
test area would be described in the application and considered to be 
one factor in determining the acceptability of the application overall. 
Nothing about the proposed application process is meant to impede more 
than one prospective supersonic operator from seeking to use the same 
area or sharing the costs of the environmental studies that may be 
required.

B. Supersonic Operations Outside a Test Area

    Appendix B contains a provision (section 2.(b)) that allows an 
applicant to request supersonic non-test flights outside of a test 
area. The prerequisites for this supersonic operation are considerable. 
An applicant must first show--as part of a test conducted under a 
previous authorization inside a test area--``the conditions and 
limitations under which speeds greater than a true flight Mach number 
of 1 will not cause a measurable sonic boom overpressure to reach the 
surface.'' (Section 2.(a)(3)). Once an applicant demonstrates within a 
test area that no described sonic overpressure occurs, and 
``conservatively'' demonstrates the sufficient conditions and 
limitations that represent all foreseeable operating conditions that 
would maintain that status, an applicant may apply for a flight to be 
conducted outside a test area. As evidenced by the discussion in the 
preamble to the rule that proposed the appendix, this task is arduous, 
and one that was defined by strict limits:

    Thus, protection of the environment from sonic boom, not 
prohibition of supersonic speeds per se, is the FAA's objective. 
This being the case, reasonable rulemaking should reflect the fact 
that it is possible to increase aircraft speed beyond Mach 1 (the 
speed of sound), under specific atmospheric conditions, and still 
not cause a sonic boom to reach the underlying terrain. Therefore, 
under the proposed rule, if the operator of a particular aircraft 
demonstrates in a designated flight test area, that a specific Mach 
number greater than Mach 1 will not cause a sonic boom to reach the 
surface of the United States, except the territorial waters 
thereof,\8\ he would be able to obtain an authorization to exceed 
Mach 1 in operations conducted outside the designated flight test 
area.
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    \8\ The language regarding territorial waters was dropped from 
the final rule in response to a comment, and would have been 
incompatible with the later adoption of Sec.  91.817(b) to protect 
the U.S. shoreline.

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(35 FR 6190, April 16, 1970)

    While some might view this language as a means to gain approval for 
unrestricted civil supersonic operation, the FAA noted that meeting the 
requirement would be difficult. The conditions and limitations 
described, for example, would have to include weather and atmospheric 
conditions as a ``fundamental variable affecting the propagation of 
sonic boom.'' \9\ The preamble to the final rule contains an extended 
discussion of why the term ``measurable sonic boom overpressure'' was 
adopted, and how it relates to perception and audibility. The FAA 
stated that boom propagation control and predictability were not yet a 
reality, and concluded that it was ``reasonable to require public 
protection from `measureable sonic boom overpressures' '' rather than 
any results based on human perception while research continued.\10\
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    \9\ 38 FR 8054, March 28, 1973.
    \10\ Id.
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    Forty-five years later, no operator has applied for an 
authorization to demonstrate a supersonic flight capable of producing 
no measurable sonic boom overpressure such as to qualify for this 
operating allowance. The FAA is requesting comment on whether this 
provision needs to be maintained in the rule, and what the impacts 
might be if it were removed. When the FAA promulgated this operating 
provision in 1973, supersonic flight was in its infancy and the agency 
was clear it would not prevent flights that could show no negative 
impact on humans or the environment. At present, the FAA knows of no 
aircraft that can meet the ``no overpressure'' provision. It is well 
known that such operating conditions would be difficult to forecast and 
maintain as a test matter, much less during routine flight in varying 
atmospheric conditions. Finally, speeds slightly above Mach 1 are often 
the least fuel-efficient and may have the most negative effects on an 
aircraft. The FAA has no data on which to conclude that the maintenance 
of this provision provides a realistic goal for current developers of 
supersonic aircraft, but neither does the agency have any data 
regarding any consequences of its removal on aircraft under 
development. While interested persons are encouraged to provide their 
views on this provision, it remains in this proposed rule as Sec.  
91.818(b). If the FAA receives sufficient data or arguments to indicate 
it no longer has any realistic value or incentive for the industry, the 
provision will be removed from the final rule.
    The FAA is not seeking to propose some alternative to this section 
as a means to approve routine civil supersonic flight, but simply seeks 
comments whether the provision as written retains any current value. 
The records of the adoption of this provision in 1973 contain no 
discussion of how these flights would be included in the overall 
operation of the national airspace system (NAS). The sheer volume of 
increased activity in the NAS since 1973 would demand a more 
comprehensive consideration of the impact of supersonic flights. 
Moreover, in the event that some level of sonic boom or other noise 
generated by supersonic flight is determined to be consistent with the 
FAA's statutory authority to protect the public health and welfare, the 
FAA would consider all available regulatory tools available to allow 
such flights, rather than rely on a 45-year-old standard that was 
included in a regulation designed primarily to approve test flights. 
Examples include operational exemptions or other regulatory changes to 
the prohibition in Sec.  91.817 that account for all of the current 
considerations.
    Other than the changes noted here, the material in proposed new 
Sec.  91.818 was taken directly from current appendix B to Part 91; no 
changes are to be inferred from reformatting

V. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that 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). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this NPRM.
    In conducting these analyses, FAA has determined that this NPRM: 
(1) Has

[[Page 30965]]

benefits that justify its costs, (2) is not an economically 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, (3) will not have a significant economic impact 
on a substantial number of small entities; (4) will not create 
unnecessary obstacles to the foreign commerce of the United States; and 
(5) will not impose an unfunded mandate on State, local, or tribal 
governments, or on the private sector by exceeding the threshold 
identified above. These analyses are summarized below.

A. Regulatory Evaluation

    As discussed in the preamble, Sec.  91.817 prohibits the operation 
of civil aircraft at speeds greater than Mach 1, except those allowed 
in accordance with appendix B to part 91, which allows limited 
supersonic flights. As also noted in the preamble, the requirements 
allowing authorizations under appendix B are poorly organized. This 
proposed rule would clarify and better inform applicants as to the 
requirements for special supersonic flight authorizations, and organize 
these requirements in a new, more easily accessible Sec.  91.818.
    As noted above, the FAA is proposing a new reason for part 91 
special flight authorizations--to measure the noise characteristics of 
an aircraft for compliance with noise certification requirements, 
including conducting noise testing during supersonic flight. This 
provision is beneficial as it anticipates the addition of future part 
36 noise certification requirements for supersonic aircraft, including 
the provision now will ensure the availability of testing as an option, 
and that it is not overlooked when the part 36 standards are 
established.
    Since there are no substantive changes to the requirements for 
these special flight authorizations, the proposed rule would not have 
additional costs. The FAA believes the proposed rule would be 
deregulatory because of the increased clarity, information, and 
accessibility it would provide to applicants and expects to reduce the 
number of follow-up requests for additional information between the FAA 
and applicants.

B. 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 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.
    As noted in the Regulatory Evaluation section, this proposed rule 
would not have additional costs. Therefore, this proposed rule would 
not have a significant economic impact on a substantial number of 
firms. Therefore, as provided in section 605(b), the head of the FAA 
certifies that this rulemaking would not result in a significant 
economic impact on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such as the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. 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 proposed rule and has determined 
that it would have a legitimate domestic objective, in that it would 
provide increased clarity and information to applicants as to the 
requirements for special flight authorizations to test supersonic 
aircraft. This proposed rule would not operate in a manner as to 
directly affect foreign trade and, therefore, would have little or no 
effect on foreign trade.

D. 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 
(in 1995 dollars) 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 $155.0 million in lieu of $100 
million.
    This rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Act do not apply.

E. 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. According to the 1995 
amendments to the Paperwork Reduction Act, (5 CFR 1320.8(b)(2)(vi)), 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. 
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), 
the FAA has submitted this proposed information collection amendment to 
OMB for its review.
    Information collection 2120-0005, General Operating and Flight 
Rules FAR 91, contains the information collection requirements related 
to appendix B to part 91, Authorizations to Exceed Mach 1 (Sec.  
91.817). The current filing estimates that the FAA receives 20 requests 
for authorization annually, and that each request takes an average of 
0.7 hours, for a total estimated burden of 14 hours annually.
    The FAA has determined that the original number of estimated annual 
responses is high. In practice, the FAA has only received three 
requests under appendix B to part 91 in the last 40 years. However, the 
FAA also acknowledges that the estimate of 0.7 hours per request is too 
low. The proposed changes to both the number of annual responses and 
the hours per request is not driven by any of the minor changes 
described in this

[[Page 30966]]

preamble, but reflects a change in the understanding of both the number 
of applicants expected, and the requirements for NEPA documents between 
the original collection request and now.
    Based on the information the FAA is proposing to collect under new 
Sec.  91.818, the FAA estimates that each request to exceed Mach 1 
submitted pursuant to Sec.  91.818 will take an applicant 40 hours to 
complete. This estimate is based on the assumption that an applicant 
will not need to develop a new environmental document for the 
Administrator's NEPA determination. In the three-year period following 
publication of this proposed rule, the FAA estimates that there will be 
a total of three applicants for special flight authorizations (or an 
average of one per year). The FAA assumes that each of the applicants 
would qualify to use airspace in the United States in a location where 
supersonic flights already occur and a NEPA document already exists. 
The three applicants for supersonic flight test that received 
authorizations under the current appendix each used military test 
ranges with previously approved Environmental Impact Statements that 
had been updated as necessary. Use of available military sites is more 
efficient and less costly than establishing a new test range and 
complying with the initial environmental requirements for one.
    Accordingly, whether an applicant seeks to establish a new area for 
testing, or proposes flights in an area where supersonic operations 
have occurred or are regularly conducted, this regulation requires that 
documentation of the environmental impact be submitted as part of an 
application. This regulation allows the use of previously established 
environmental impact materials for a test area when such materials are 
properly updated to reflect current conditions and changes since the 
original material was created.
    The following table shows the current approved burden and the 
proposed new burden for the revisions to information collection 2120-
0005.

                                       Table 1--Summary of Proposed Revisions to Information Collection 2120-0005
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                           Change due to                   Change due to
                                                            Anticipated       Current      Change due to      agency       Change due to     potential
                                                           applications    estimated use       this         discretion/    adjustment in   violation of
                                                                           of appendix B    rulemaking      experience       estimate         the PRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Number of Responses..............................               1              20               0             -19               0               0
Annual Time Burden (Hours)..............................              40              14               0              26               0               0
Annual Cost Burden......................................          $8,000          $2,800              $0          $5,200              $0              $0
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The revision to information collection 2120-0005 will remove the time attributed to appendix B and add the time attributed to proposed Sec.   91.818.

    The FAA estimates fully burdened labor cost to be about $200 per 
hour, making the total cost for three years 3 x $200 x 40 = $24,000, 
with a cost per year of $8,000.
    The agency is soliciting comments that will assist us in--
     Evaluating whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluating the accuracy of the agency's estimate of the 
burden;
     Enhancing the quality, utility, and clarity of the 
information to be collected; and
     Minimizing the burden of collecting information on those 
who are to respond, including using appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology.
    Comments on the information collection requirement may be submitted 
to the address listed at the beginning of this preamble by September 
26, 2019. Comments should also be submitted to the Office of Management 
and Budget, Office of Information and Regulatory Affairs, Attention: 
Desk Officer for FAA, New Executive Building, Room 10202, 725 17th 
Street NW, Washington, DC 20053.

F. International Compatibility and Cooperation

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to conform to 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices (SARPs) to the maximum extent practicable. The 
FAA has reviewed the corresponding ICAO SARPs and has identified no 
differences with these regulations.

G. Environmental Analysis

    FAA Order 1050.1F 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 rulemaking action qualifies for the categorical 
exclusion identified in paragraph 5-6.6f and involves no extraordinary 
circumstances.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. The agency has 
determined that this action would not have a substantial direct effect 
on the States, or the relationship between the Federal 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.

B. Executive Order 13211, Regulations That Significantly Affect Energy 
Supply, Distribution, or Use

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

C. Executive Order 13609, Promoting International Regulatory 
Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, (77 FR 26413, May 4, 2012) promotes international 
regulatory cooperation to meet shared challenges involving health, 
safety, labor, security, environmental, and other issues and to reduce, 
eliminate, or prevent unnecessary differences in regulatory 
requirements. The FAA has analyzed this action under the policies and 
agency responsibilities of Executive

[[Page 30967]]

Order 13609, and has determined that this action would have no effect 
on international regulatory cooperation since it is a wholly domestic 
operating rule.

D. Executive Order 13771

    This proposed rule is expected to be an E.O. 13771 deregulatory 
action. Details on the estimated cost savings of this proposed rule can 
be found in the regulatory evaluation.

VII. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
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. To ensure the docket does not contain 
duplicate comments, commenters should send only one copy of written 
comments, or if comments are filed electronically, commenters should 
submit only one time.
    The FAA will file, in the docket, all comments it receives, as well 
as a report summarizing each substantive public contact with FAA 
personnel concerning this proposed rulemaking. Before acting on this 
proposal, the FAA will consider all comments it receives on or before 
the closing date for comments. The agency may change this proposal in 
light of the comments it receives.
    Proprietary or Confidential Business Information: Commenters should 
not file proprietary or confidential business information in the 
docket. Such information must be sent or delivered directly to the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this document, and marked as proprietary or confidential. If submitting 
information on a disk or CD ROM, mark the outside of the disk or CD 
ROM, and identify electronically within the disk or CD ROM the specific 
information that is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary 
information filed with a comment, the agency does not place it in the 
docket. It is held in a separate file to which the public does not have 
access, and the FAA places a note in the docket that it has received 
it. If the FAA receives a request to examine or copy this information, 
it treats it as any other request under the Freedom of Information Act 
(5 U.S.C. 552). The FAA processes such a request under Department of 
Transportation procedures found in 49 CFR part 7.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the 
internet by--
     Searching the Federal eRulemaking Portal (https://www.regulations.gov);
     Visiting the FAA's Regulations and Policies web page at 
https://www.faa.gov/regulations_policies or
     Accessing the Government Publishing Office's web page at 
https://www.fdsys.gov.
    Copies may also be obtained by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. 
Commenters must identify the docket or notice number of this 
rulemaking.
    All documents the FAA considered in developing this proposed rule, 
including economic analyses and technical reports, may be accessed from 
the internet through the Federal eRulemaking Portal referenced above.

List of Subjects in 14 CFR Part 91

    Aircraft, Aviation safety, Noise control, Reporting and 
recordkeeping requirements.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend 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(f), 106(g), 1155, 40101, 40103, 40105, 
40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 
44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 
47122, 47508, 47528-47531, 47534, Pub. L. 114-190, 130 Stat. 615 (49 
U.S.C. 44703 note); articles 12 and 29 of the Convention on 
International Civil Aviation (61 Stat. 1180), (126 Stat. 11).


Sec.  91.817  [Amended]

0
2. In paragraphs (a) and (b)(2), remove the words ``under appendix B of 
this part'' and add in their place the words ``in accordance with Sec.  
91.818 of this part''.
0
3. Add Sec.  91.818 to read as follows:


Sec.  91.818   Special flight authorization to exceed Mach 1.

    For all civil aircraft, any operation that exceeds Mach 1 may be 
conducted only in accordance with a special flight authorization issued 
to an operator under the requirements of this section.
    (a) Application. Application for a special flight authorization to 
exceed Mach 1 must be made to the FAA Office of Environment and Energy 
for consideration by the Administrator. Each application must include:
    (1) The name of the operator;
    (2) The number and model(s) of the aircraft to be operated;
    (3) The number of proposed flights;
    (4) The date range during which the flights would be conducted;
    (5) The time of day the flights would be conducted. Proposed night 
operations may require further justification for their necessity;
    (6) A description of the flight area requested by the applicant, 
including any environmental analysis required under paragraph (c) of 
this section;
    (7) All conditions and limitations on the flights that will ensure 
that no measurable sonic boom overpressure will reach the surface 
outside of the proposed flight area;
    (8) The reason(s) that operation at a speed greater than Mach 1 is 
necessary. A special flight authorization to exceed Mach 1 may be 
granted only for operations that are intended to:
    (i) Show compliance with airworthiness requirements;
    (ii) Determine the sonic boom characteristics of an aircraft;
    (iii) Establish a means of reducing or eliminating the effects of 
sonic boom, including flight profiles and special features of an 
aircraft;
    (iv) Demonstrate the conditions and limitations under which speeds 
in excess of Mach 1 will not cause a measurable sonic boom overpressure 
to reach the surface; or
    (v) Measure the noise characteristics of an aircraft to demonstrate 
compliance with noise requirements imposed under this chapter, or to 
determine the limits for operation in accordance with Sec.  91.817(b) 
of this part.
    (9) For any purpose listed in paragraph (a)(8) of this section, 
each applicant must indicate why its intended operation cannot be 
safely or properly accomplished over the ocean at a distance ensuring 
that no sonic boom overpressure reaches any land surface in the United 
States.
    (b) Operation outside a test area. An applicant may apply for an 
authorization to conduct flights outside a test area under certain 
conditions and limitations upon a conservative showing that:
    (1) Flights within a test area have been conducted in accordance 
with an authorization granted under paragraph (a)(8)(iv) of this 
section;

[[Page 30968]]

    (2) The results of the flight tests demonstrate that a speed in 
excess of Mach 1 does not cause a measurable sonic boom overpressure to 
reach the surface; and
    (3) The conditions and limitations determined by that test 
represent all foreseeable operating conditions and are effective on all 
flights conducted under an authorization.
    (c) Environmental findings. (1) No special flight authorization 
will be granted if the Administrator finds that such action is 
necessary to protect or enhance the environment.
    (2) The Administrator is required to determine whether the issuance 
of an authorization for a particular flight area is a ``major Federal 
action significantly affecting the quality of the human environment'' 
pursuant to the National Environmental Policy Act of 1969 (NEPA), and 
related Executive Orders and guidance. Accordingly, each applicant must 
provide information that sufficiently describes the environmental 
impact of any flight in excess of Mach 1, including the effect of a 
sonic boom reaching the surface in the proposed flight area, as a means 
to inform a determination by the Administrator. Such information may 
take the form of:
    (i) An Environmental Impact Statement prepared for the proposed 
flight area for the purpose of this application;
    (ii) An Environmental Impact Statement previously prepared for the 
proposed flight area, when the FAA has reviewed it and determined the 
continued adequacy, accuracy, validity and timeliness of the findings 
it contains; or
    (iii) Another statement or finding of environmental impact for the 
proposed flight area, such as an Environmental Assessment, when the FAA 
has reviewed it and finds that such material is sufficient for the 
Administrator to make the required determinations for the proposed 
flight area.
    (d) Issuance. An authorization to operate a civil aircraft in 
excess of Mach 1 may be issued only after an applicant has submitted 
the information described in this section and the Administrator has 
taken the required action regarding the environmental findings 
described in paragraph (c) of this section.
    (e) Duration. (1) An authorization to exceed Mach 1 will be granted 
for the time the Administrator determines necessary to conduct the 
flights for the described purposes.
    (2) An authorization to exceed Mach 1 is effective until it expires 
or is surrendered.
    (3) An authorization to exceed Mach 1 may be terminated, suspended 
or amended by the Administrator at any time the Administrator finds 
that such action is necessary to protect the environment.
    (4) The holder of an authorization to exceed Mach 1 may request 
reconsideration of a termination, amendment or suspension issued under 
paragraph (e)(3) of this section within 30 days of notice of the 
action. Failure to request reconsideration and provide information why 
the Administrator's action is not appropriate will result in permanent 
termination of the authorization.
    (5) Findings made by and actions taken by the Administrator under 
this section do not affect any certificate issued under chapter 447 of 
title 49 of the United States Code.

Appendix B to Part 91 [Removed and Reserved]

0
4. Remove and reserve appendix B to part 91.

    Issued in Washington, DC, under the authority of 49 U.S.C. 
106(f), 44701(a)(5), and 44715, on June 14, 2019.
Kevin Welsh,
Executive Director for Environment and Energy.
[FR Doc. 2019-13079 Filed 6-27-19; 8:45 am]
 BILLING CODE 4910-13-P