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Revision of Incorporation by Reference Provisions
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 5, 2004 (Volume 69, Number 192)]
[Proposed Rules]
[Page 59755-59758]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05oc04-23]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 71 and 97
[Docket No. FAA-2004-19247; Notice No. 04-12]
RIN 2120-AI39
Revision of Incorporation by Reference Provisions
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA is proposing to remove the incorporation by reference
of certain FAA Orders and terminal aeronautical charts from the
provisions of 14 CFR part 97 and incorporate by reference instead
instrument procedures that are documented on FAA forms. The FAA also
proposes a conforming amendment in 14 CFR part 71. This change would
ensure that the appropriate material is incorporated in the FAA's
regulations.
DATES: Send your comments on or before November 4, 2004.
ADDRESSES: You may send comments identified by docket number FAA-200X-
XXXXX using any of the following methods:
? DOT Docket Web Site: Go to http://dms.dot.gov 
and
follow the instructions for sending your comments electronically.
? Government-wide Rulemaking Web Site: Go to
http://www.regulations.gov and follow the instructions for
sending your comments electronically.
? Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-001.
? Fax: 1-202-493-2251.
? Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
For more information on the rulemaking process, see the
SUPPLEMENTARY INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
http://dms.dot.gov , including any personal information you
provide. For more information, see the Privacy Act discussion in the
SUPPLEMENTARY INFORMATION section of this document.
Docket: To read background documents or comments received, go to
http://dms.dot.gov at any time or to Room PL-401 on the plaza
level of the Nassif Building, 400 Seventh Street, SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Thomas E. Schneider, AFS-420, Federal
Aviation Administration, P.O. Box 25082, Oklahoma City, OK 73125;
telephone (405) 954-5852; facsimile (405) 954-2528; e-mail
Thomas.Schneider@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The FAA also
invites comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. The FAA asks that you send two copies of
written comments.
The FAA will file in the docket all comments we receive, as well as
a report summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. The docket is available for public
inspection before and after the comment closing date. If you wish to
review the docket in person, go to the address in the ADDRESSES section
of this preamble between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. You may also review the docket using the
Internet at the Web address in the ADDRESSES section.
Privacy Act: Using the search function of our docket Web site,
anyone can find and read the comments received into any of our dockets,
including the name of the individual sending the comment (or signing
the comment on behalf of an association, business, labor union, etc.).
You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477-78) or you may visit
http://dms.dot.gov.
Before acting on this proposal, the FAA will consider all comments
it receives on or before the closing date for comments. The FAA will
consider comments filed late if it is possible to do so without
incurring expense or delay. The FAA may change this proposal in light
of the comments it receives.
If you want the FAA to acknowledge receipt of your comments on this
proposal, include with your comments a pre-addressed, stamped postcard
on which the docket number appears. The FAA will stamp the date on the
postcard and mail it to you.
Availability of Rulemaking Documents
You can get an electronic copy using the Internet by:
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search) ;
(2) Visiting the Office of Rulemaking's Web page at
http://www.faa.gov/avr/arm/index.cfm ; or
(3) Accessing the Government Printing Office's Web page at
http://www.access.gpo.gov/su_docs/aces/aces140.html.
You can also get a copy by submitting a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Be sure
to identify the docket number, notice number, or amendment number of
this rulemaking.
Background
On December 17, 2002, the FAA published a Notice of Proposed
Rulemaking (NPRM) titled ``Area Navigation (RNAV) and Miscellaneous
Amendments'' (67 FR 77326; Dec. 17, 2002). In that NPRM, the FAA
proposed to revise Sec. 97.20 to remove the incorporation by reference
(IBR) of standard instrument approach procedures as described on FAA
Forms 8260-3, 8260-4 and 8260-5. The FAA instead proposed to
incorporate by reference into Sec. 97.20 FAA Orders 8260.3B, United
States Standard for Terminal Instrument Procedures (TERPS) and
8260.19C, Flight Procedures and Airspace, and terminal aeronautical
charts. Incorporating a publication by reference into the Code of
Federal Regulations means that the information contained in that
publication in fact becomes regulatory. Any subsequent modification is
a rule change and is accomplished by rulemaking under the
Administrative Procedures Act.
On April 8, 2003, the FAA adopted the final rule titled
``Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic
Service Routes; and Reporting Points'' (68 FR 16943; April 8, 2003),
which adopted the proposed amendments to 14 CFR 97.20. Upon staff
review, the FAA concluded that the incorporation by reference of FAA
Orders 8260.3B and 8260.19C and the terminal aeronautical charts was in
error and resulted in the inappropriate designation of certain material
as regulatory.
[[Page 59757]]
Section 97.20
Specifically, FAA Order 8260.3 provides agency policy and
standardized methods for designing instrument flight procedures. The
FAA follows this policy for the preparation, approval, and promulgation
of terminal instrument procedures. FAA Order 8260.19, provides guidance
for administering the Flight Procedure and Airspace Program. It also
defines responsibilities, establishes criteria and provides standards
to assure effective and orderly processing of all types of procedure
actions.
Section 91.175(a) requires a pilot to use an instrument procedure
prescribed in part 97, unless otherwise authorized by the FAA, when it
is necessary to conduct an instrument letdown to a civil airport.
Consistent with this requirement, the FAA, via rulemaking, adopts
instrument procedures by amending Sec. 97.20. While the adopted
instrument procedures become part of Sec. 97.20, the agency policy and
criteria for designing, preparing and approving the procedure should
not become part of Sec. 97.20, as they are not regulatory actions and
should not be incorporated by reference into part 97. Similarly, it is
not appropriate to incorporate by reference terminal aeronautical
charts, as those charts merely depict the instrument procedures for use
by the pilot.
The FAA is proposing to revise Sec. 97.20 by removing the IBR of
FAA Orders 8260.3 and 8260.19. Additionally, the IBR of terminal
aeronautical charts would be removed. The FAA instead would incorporate
by reference the instrument procedures detailed on FAA Forms 8260-3,
8260-4, 8260-5 and 8260-15A into Sec. 97.20.
The proposed text for Sec. 97.20 would set forth the FAA Forms
that contain the instrument procedures that would be IBR, and provide
information to the public as to where the procedures may be examined.
It also provides information on the availability of aeronautical charts
depicting standard instrument procedures.
The FAA currently coordinates all new and revised TERPS criteria
and procedures in Orders 8260.3 and 8260.19 with those organizations
affected, both public and private, in accordance with the coordination
process contained in FAA Order 1320.1, FAA Directives Systems. In
addition, the agency coordination process for these two orders includes
any person requesting the opportunity to comment.
Section 71.11
The FAA proposes to delete paragraph (b), and the existing
paragraph (c) would be redesignated as paragraph (b). This section
would conform to Sec. 97.20, which would remove the IBR of FAA Orders
8260.3 and 8260.19.
The Director of the Federal Register must approve all rules that
incorporate by reference material into the Code of Federal Regulations.
If this rule is adopted as proposed, the FAA will submit a final rule
to the Director of the Federal Register seeking approval to incorporate
by reference into Sec. 97.20 the instrument procedures on FAA forms.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there is no new information collection requirement associated with this
proposed rule.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA has
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
Economic Assessment, Regulatory Flexibility Determination, Trade Impact
Assessment, and Unfunded Mandates Assessment
Executive Order 12866 directs each Federal agency to propose or
adopt a regulation only upon a reasoned determination the benefits of
the intended regulation justify its costs. Second, the Regulatory
Flexibility Act of 1980 requires agencies to analyze the economic
impact of regulatory changes on small entities. Third, the Trade
Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting
standards that create unnecessary obstacles to the foreign commerce of
the United States. In developing U.S. standards, this Trade Act also
requires agencies to consider international standards and, where
appropriate, use them as the basis of U.S. standards. Fourth, the
Unfunded Mandates Reform Act of 1995 (Public Law 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by private sector, of $100 million or
more annually (adjusted for inflation).
We determined this proposed rule (1) has benefits that justify its
costs, is not a ``significant regulatory action'' as defined in section
3(f) of Executive Order 12866, and is not ``significant'' as defined in
DOT's Regulatory Policies and Procedures; (2) will not have a
significant economic impact on a substantial number of small entities;
(3) will not have any effect on barriers to international trade; and
(4) does not impose an unfunded mandate on state, local, or tribal
governments, or on the private sector.
However, for regulations with an expected minimal impact the above-
specified analyses are not required. The Department of Transportation
Order DOT 2100.5 prescribes policies and procedures for simplification,
analysis, and review of regulations. If it is determined that the
expected impact is so minimal that the proposal does not warrant a full
evaluation, a statement to that effect and the basis for it is included
in proposed regulation. Since this NPRM is administrative in nature
removing inappropriate interpretation by reference material from FAA
regulations and adding appropriate incorporation by reference material,
these changes will not impact the integrity of existing rules. As a
result, this proposed rule will have a minimal economic impact. The FAA
requests comments with supporting justification regarding the FAA
determination of minimal impact.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and explain the
rationale for their actions. The RFA covers a wide-range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the RFA.
However, if an agency determines that a proposed or final rule is
not expected
[[Page 59758]]
to have a significant economic impact on a substantial number of small
entities, section 605(b) of the RFA provides that the head of the
agency may so certify and a regulatory flexibility analysis is not
required. The certification must include a statement providing the
factual basis for this determination, and the reasoning should be
clear.
This proposed rule is administrative in nature correcting an
earlier action that resulted in an inappropriate designation of certain
material as regulatory. Consequently, the FAA certifies the proposed
rule will not have a significant economic impact on a substantial
number of small entities.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. The FAA has assessed the
potential effect of this rulemaking and has determined that it will
impose the same costs on domestic and international entities and thus
have a neutral trade impact.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation adjusted value of $120.7 million in lieu of $100
million.
This NPRM does not contain such a mandate. The requirements of
Title II of the Act do not apply.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA has determined
that this action would not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and therefore would not have federalism
implications.
Environmental Analysis
FAA Order 1050.1D defines FAA actions that may be categorically
excluded from preparation of a National Environmental Policy Act (NEPA)
environmental impact statement. In accordance with FAA Order 1050.1D,
appendix 4, paragraph 4(j), this proposed rulemaking action qualifies
for a categorical exclusion.
Regulations That Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this NPRM under Executive Order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The FAA has determined that it is
not a significant energy action under the executive order because it is
not a significant regulatory action under Executive Order 12866, and it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
List of Subjects
14 CFR Part 71
Airspace, Navigation (air).
14 CFR Part 97
Air traffic control, Airports, Navigation (air), Weather.
The Proposed Amendments
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter I of title 14, Code of Federal
Regulations, as follows:
PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS
1. The authority citation for part 71 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR 1959-1963 Comp., p 389.
Sec. 71.11 [Amended]
2. Amend Sec. 71.11 by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b).
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
3. The authority citation for part 97 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120,
44502, 44514, 44701, 44719, and 44721-44722.
4. Revise Sec. 97.20 to read as follows:
Sec. 97.20 General.
(a) This subpart prescribes standard instrument procedures based on
the criteria contained in FAA Order 8260.3, U.S. Standard for Terminal
Instrument Procedures (TERPs), and other related Orders in the 8260
series that also address instrument procedure design criteria.
(b) Standard instrument procedures and associated supporting data
adopted by the FAA are documented on FAA Forms 8260-3, 8260-4, 8260-5,
and 8260-15A, and were approved for incorporation by reference by the
Director of the Federal Register pursuant to 5 U.S.C. 552(a) and 1 CFR
Part 51. The standard instrument procedures are available for
examination at the Rules Docket (AGC-200) and at the National Flight
Data Center, 800 Independence Avenue, SW., Washington, DC 20590, and at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
(c) Standard instrument procedures are depicted on aeronautical
charts published by the FAA National Aeronautical Charting Office and
these charts are available for purchase from the FAA's National
Aeronautical Charting Office, Distribution Division, 6303 Ivy Lane,
Suite 400, Greenbelt, MD 20770.
Issued in Washington, DC, on September 29, 2004.
John M. Allen,
Acting Director, Flight Standards Service.
[FR Doc. 04-22376 Filed 10-4-04; 8:45 am]
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