Reduced Vertical Separation Minimum in Domestic United States Airspace

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Supplemental notice of proposed rulemaking (SNPRM).

SUMMARY:

The FAA is supplementing the Notice of Proposed Rulemaking (NPRM) on Reduced Vertical Separation Minimum in Domestic United States Airspace (DRVSM) that was published in the Federal Register on May 10, 2002 (67 FR 31920). The FAA is adding a proposal to implement Reduced Vertical Separation Minimum (RVSM) between flight levels (FL) 290-410 in Atlantic High and Gulf of Mexico High Offshore airspace and in the San Juan Flight Information Region (FIR). This addition to the proposal better defines RVSM airspace off the eastern and southern coasts of the United States (U.S.) and harmonizes RVSM operations off the east coast of the U.S. between adjoining airspaces in the domestic U.S., Atlantic High Offshore, and the New York Oceanic FIR. The FAA also proposes to remove the proposed option that would have permitted part 91 turbo-propeller aircraft to operate in DRVSM airspace with a single RVSM compliant altimeter.

DATES:

Comments must be submitted on or before April 14, 2003.

ADDRESSES:

Address your comments to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2002-12261 at the beginning of your comments, and you should submit two copies of your comments. If you wish to receive confirmation that the FAA (we) received your comments, include a self-addressed, stamped postcard.

You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to these proposed regulations in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Dockets Office is on the plaza level of the NASSIF Building at the Department of Transportation at the above address. Also, you may review public dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Robert Swain, Flight Technologies and Procedures Division, Flight Standards Service, AFS-400, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591, telephone (202) 385-4576.

SUPPLEMENTARY INFORMATION:

Comments Invited

We invite interested persons to participate in this proposed rulemaking by submitting written comments, data, or views. We also invite 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. We ask that you send us two copies of written comments.

We 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.

Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

If you want us to acknowledge receipt of your comments on this proposal, please include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.

Availability of Rulemaking Documents

You can get an electronic copy of documents related to this or any rulemaking through the Internet by taking the following steps:

(1) Go to the search function of the Department of Transportation's electronic Docket Management System (DMS) Web page ( http://dms.dot.gov/search ).

(2) On the search page type in the last four digits of the Docket number shown at the beginning of this notice. Click on “search.”

(3) On the next page, which contains the Docket summary information for the Docket you selected, click on the document number of the item you wish to view. Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 5, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

You can also get an electronic copy using the Internet through the Office of Rulemaking's web page at http://www.faa.gov/avr/armhome.htm or the Federal Register'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. Make sure to identify the docket number, notice number, or amendment number of this rulemaking.

Summary of the NPRM Published on May 10, 2002

The NPRM published on May 10, 2002, proposed to implement Reduced Vertical Separation Minimum (RVSM) between flight levels 290-410 over the contiguous U.S. and Alaska and the portion of the Gulf of Mexico where the FAA provides air traffic services. RVSM allows 1,000 feet of vertical separation between aircraft operating between FL 290-410. The FAA would only apply reduced vertical separation minimum between aircraft that meet stringent altimeter and auto-pilot performance requirements. We proposed the action to assist aircraft operators to save fuel and time, to enhance air traffic control flexibility and to provide the potential for enhanced airspace capacity.

Summary of Proposed Changes to the NPRM

We are proposing some changes to the NPRM. First, we propose to add Gulf of Mexico High and Atlantic High Offshore Airspace to the list of potential RVSM airspace published in part 91, Appendix G, section 8 (Airspace Designation). Second, in response to a comment made by the Air Transport Association, in the same timeframe as domestic U.S. implementation, we propose to implement RVSM between FL 290-410 in the San Juan FIR and in the airspace corridor between Florida and the San Juan FIR. Third, we propose to remove the proposal that would have allowed part 91 turbo-propeller aircraft to operate in RVSM airspace with a single RVSM compliant altimeter. The part 91 proposal received opposition from pilot organizations and civil aviation authorities of other countries, including countries with airspace adjoining the U.S.

Proposal To List Atlantic High and Gulf of Mexico High Offshore Airspace

Listing these airspaces would better define the offshore and oceanic airspaces off the eastern and southern coasts of the U.S. where we propose to implement RVSM. Certain airspace beyond 12 miles of the eastern and southern coasts of the U.S. is designated in FAA Order 7400.9 (Airspace Designations and Reporting Points) as Atlantic High and Gulf of Mexico High Offshore Airspace. This area includes airspace between Florida and the San Juan FIR. FAA Order 7400.9 contains a complete description of the horizontal boundaries of this airspace. We have published a chart showing the boundaries of Offshore and Oceanic airspace off the eastern and southern coasts of the U.S. in the docket at http://dms.dot.gov,, docket number FAA-2002-12261.

Listing Atlantic and Gulf of Mexico High Offshore Airspace in part 91, Appendix G, with oceanic airspace completes the list of airspace off the eastern and southern coasts of the U.S. where we may implement RVSM.

Proposal To Add the Airspace Between Florida and Puerto Rico and the San Juan FIR to the Implementation Plan

The NPRM that we published on May 10, 2002, proposed to implement RVSM in Miami Oceanic FIR airspace over the Gulf of Mexico. In comments on the NPRM, the Air Transport Association (ATA) suggested including “* * *the San Juan and Miami FIR's in their entirety * * *” in the list of airspace where RVSM is proposed to be implemented. We believe that this proposal has merit and can be accomplished by listing Atlantic High Offshore Airspace and the San Juan FIR in part 91, Appendix G, section 8 (Airspace Designation). As noted previously, Atlantic High Offshore Airspace includes a corridor of airspace between Florida and the San Juan FIR. This corridor is bounded in the north by RVSM airspace in the New York Oceanic FIR and in the south by the Havana, Santa Domingo and Port-au-Prince FIR's.

A primary objective of this action is to implement RVSM in the airspaces discussed above at the same time that we implemented it in the domestic U.S. We believe that this will have the following benefits:

(1) It harmonizes RVSM operations between RVSM airspace implemented in 2001 in the New York Oceanic FIR and RVSM airspace proposed over the State of Florida as part of the domestic U.S. RVSM proposal.

(2) It harmonizes RVSM operations for traffic operating north and south between the San Juan and New York Oceanic FIR.

(3) It reduces the complexity of operations and improves safety by providing a common vertical separation standard and flight level orientation scheme for the New York Oceanic FIR, Atlantic High Offshore Airspace, the San Juan FIR and the domestic U.S.

(4) It improves the flow of traffic between Florida and the San Juan FIR by making six more flight levels available.

(5) It provides the potential for harmonizing RVSM operations with the Air Traffic Service Providers in the Caribbean when RVSM is implemented in that area.

(6) It makes all the benefits of RVSM cited in the NPRM available in these airspaces. This benefit includes increased controller flexibility, reduction of controller workload, and enhanced flexibility to enable aircraft to cross intersecting routes.

Effect on Operators

We do not believe that this proposal would require a significant number of operators that had not already obtained or planned to obtain RVSM authority to do so. We have examined the aircraft types and operators that fly in the San Juan FIR and in the airspace between Puerto Rico and Miami. We have found that all of the flights operating between FL 290-410 in the airspace are flown to or from destinations in the U.S., Canada and Europe.

To operate on the routes to or from airports in the U.S. northeast, mid-Atlantic and Canada, operators have already been required to obtain RVSM approval to fly through RVSM airspace in the New York Oceanic FIR. To operate to or from airports in Europe, operators have already been required to obtain RVSM approval to operate in RVSM airspace in the North Atlantic and Europe. In addition, the NPRM proposed to implement RVSM in domestic U.S. airspace. Aircraft operating to or from destinations in the domestic U.S. would be required by that proposal to comply with RVSM standards.

We believe this proposal has a minimal financial impact on U.S. operators, as it would not affect any beyond those identified in the NPRM. We request your comments regarding financial impact on any operators not identified in the NPRM.

Withdrawal of the Proposal To Permit a Single RVSM-Compliant Altimeter

The RVSM standards for aircraft approval are published in 14 CFR part 91, Appendix G, section 2. Section 2 calls for the aircraft to be equipped with two independent altitude measurement systems. In the NPRM, we proposed that turbo-propeller aircraft operated under part 91 that were equipped with a single RVSM-compliant altitude measurement system and all other RVSM required aircraft systems could be considered eligible to conduct RVSM operations within the U.S. airspace and the airspace of foreign countries that authorize such a provision.

In making the proposal, we recognized that the precedence in the first five years of RVSM operations was for RVSM-compliant aircraft to be equipped with two altimetry systems. Both FAA regulations and other civil aviation authorities worldwide followed this precedence. We noted, however, that the 1992 Edition 1 of the International Civil Aviation Authority (ICAO) Manual on RVSM (ICAO Document 9574) contained provision for small aircraft to be equipped with a single RVSM-compliant altimetry system and elected to make the NPRM proposal.

We propose to withdraw the proposal to allow turbo-propeller aircraft operated under part 91 and equipped with a single RVSM-compliant altimeter to conduct RVSM operations within the U.S. and foreign countries adopting that provision. We now conclude that the benefit is not significant enough to warrant changing the RVSM aircraft equipage standard that the FAA and other world authorities have applied for the past five years. We considered the following factors:

First, turbo-propeller aircraft represent a very low percentage of the traffic that operates at FLs where RVSM would be applied, that is, between FLs 290 and 410. Turbo-propeller aircraft operated under part 91 represent an even less significant percentage of traffic at those flight levels. Turbo-propeller aircraft were found to conduct only 0.4 percent of operations between FLS 290 and 410. Turbo-propeller aircraft operated under part 91 are estimated to conduct only 0.3 percent of operations in the airspace where RVSM will be applied.

The majority of turbo-prop aircraft do not normally operate at or above FL 290, due to performance or design limitations. Operators would most likely avoid RVSM upgrade costs and continue to operate below FL 290. Costs and benefits to turbo-prop operators, therefore were not a factor in the benefit/cost analysis. The vast majority of turbo-propeller aircraft already operate below the floor of RVSM airspace, FL 290, and would retain the option to do so if we implement domestic RVSM.

Second, neither Canada nor Mexico has elected to pursue this proposal for their airspace. U.S. operators are required by 14 CFR part 91, § 91.703 to comply with the regulations in force in foreign countries related to aircraft flight. U.S. operators, therefore, would not be allowed to file a flight plan or accept ATC vectors that would place them in Canadian or Mexican airspace. This would add unnecessary complications to air traffic control in the airspace that borders neighboring countries.

Third, during the comment period, we received comments from other civil aviation authorities and pilot associations advocating that we retain a single standard for RVSM aircraft equipage. They noted that the FAA and world standard for aircraft equipage for the past five years has been for RVSM aircraft to be equipped with two compliant altimeters. They also noted that the Edition 2 (2002) of ICAO Doc 9574 distributed in spring 2002 does not retain the single RVSM compliant altimeter provision provided in Edition 1.

We believe that in the interest of harmonization and standardization of policy and procedures with neighboring states and civil aviation authorities worldwide, we should withdraw the proposal to allow single RVSM compliant altimeter equipped aircraft to conduct RVSM operations within the United States. We have concluded that the potential benefit is not significant enough to warrant revising a standard that has been applied worldwide for the past five years.

Economic Summary

We expect domestic RVSM to produce efficiency benefits for aircraft operators who fly at altitudes from FL 290 through 400. The NPRM for domestic RVSM proposed to require dual altimeters for all aircraft except turbo-propeller aircraft. Canada and Mexico do not permit an exemption from the dual altimeter requirement for turbo-propeller aircraft. Some civil aviation authorities have expressed concern that the proposal in the NPRM is incompatible with Canadian, Mexican, and international standards for RVSM. We have agreed to withdraw the proposal to exempt turbo-propeller aircraft from the dual altimeter requirement. Though this would affect a relatively small number of operators, our decision to require dual altimeters for all aircraft is necessary to achieve the overall benefits attributed to domestic RVSM. U.S. aircraft flying in domestic U.S. RVSM airspace without dual altimeters would not be able to continue at RVSM flight levels on entering Canada or Mexico and would therefore lose the benefits of flying at more efficient altitudes.

We have examined the potential aircraft upgrade costs associated with a dual altimeter requirement for turbo-propeller aircraft to fly in RVSM airspace under part 91 and find the cost to average $140,000 per turbo-propeller aircraft. Flights by turboprop aircraft at (FL) 290-410 and above account for only 0.4 percent of all flights, only 0.1 percent of which are other than part 91 flight. This suggests that, though there may be a large number of turbo-propeller aircraft subject to this rule, few of those aircraft fly at FL 290-410 regularly. We also believe that only a small percentage of those affected operators will find it economical to upgrade their aircraft for RVSM. Those that choose to upgrade would do so because the fuel savings that they would receive regularly from flying at their optimal altitude would pay for the cost of these upgrades. In the economic analysis for the final rule for DRVSM, we have calculated, for the industry as a whole, the cost savings exceeded the upgrade cost by a factor of 6. You can find the analysis for the final rule to Domestic RVSM in the docket on the Internet at http://dms.dot.gov , docket number FAA-2002-12261. We believe that those operators that would upgrade their aircraft are not small entities and would not be significantly impacted in an adverse way should they elect to upgrade their aircraft for this requirement.

The FAA recognizes that these upgrade costs could have a significant impact on small operators, but the FAA believes that most small operators would choose not to upgrade. For small operators, the fuel savings associated with flying in FL 290-410 would not exceed the cost of the equipment upgrade. The operational penalties associated with not upgrading or delaying aircraft upgrade plans would not prevent the operators from continuing to operate. Small operators that elect not to upgrade or delay their aircraft upgrade plans would incur on average a 6 percent fuel penalty from conducting operations beneath FL290. We do not believe these operators would fly in RVSM airspace often enough or long enough to incur a significant fuel penalty cost if they choose to fly below RVSM airspace. We request comments on this determination.

Adding Gulf of Mexico High and Atlantic High Offshore Airspace and airspace between Florida and Puerto Rico and the San Juan FIR benefits operators by implementing RVSM in all U.S. domestic airspace. This allows operators who are authorized to fly in RVSM airspace to achieve the full benefits of flying at efficient altitudes.

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and 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 Act requires agencies to solicit and consider flexible regulatory proposals and to explain the rational for their actions. The Act 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 significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis (RFA) as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 Act provides that the head of the agency may so certify and an RFA is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

As flights by turboprop aircraft at FL 290-410 and above account for only 0.3 percent of all flights, we believe that only a small percentage of those affected operators will upgrade their aircraft for RVSM. These upgrade costs are estimated to be $140,000 per aircraft. We believe that those operators that upgrade their aircraft are not small entities.

The FAA recognizes that these upgrade costs could have a significant impact on small operators, but the FAA believes that most small operators would choose not to upgrade. For small operators, the fuel savings associated with flying at FL 290-410 would not exceed the cost of the equipment upgrade. The operational penalties associated with not upgrading or delaying aircraft upgrade plans would not prevent the operators from continuing to operate. Small operators that elect not to upgrade or delay their aircraft upgrade plans would incur on average a 6% fuel penalty from conducting operations beneath FL290. We do not believe these operators would fly in RVSM airspace often enough or long enough to incur a significant fuel penalty cost if they choose to fly below RVSM airspace. We request comments on this determination.

We have determined that the proposed airspace expansion to implement RVSM between FL 290-410 in Atlantic High and Gulf of Mexico High Offshore airspace and in the San Juan Flight Information Region (FIR) would have no cost to U.S. operators beyond those identified in the NPRM.

We therefore conclude that a substantial number of small entity operators would not be significantly affected by the proposals contained in this SNPRM. We request comments on this Regulatory Flexibility Determination.

International Trade Impact Statement

We have assessed the potential effect of this rulemaking and have determined that it would impose the same costs on domestic and international entities and thus has a neutral trade impact.

Federalism Implications

The regulations proposed herein 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. Therefore, in accordance with Executive Order 12612, we have determined that this proposal would not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Paperwork Reduction Act of 1995

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. section 3507(d)), there are no requirements for information collection associated with this proposed rule.

Unfunded Mandates Reform Act of 1995 Assessment

The Unfunded Mandates Reform Act of 1995 (the Act), 2 U.S.C. 1501-1571, 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 a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments in the aggregate, or by the private sector; such as a mandate is deemed to be a “significant regulatory action.”

This proposed rule does not contain such a mandate. Therefore, the requirements of title II of the Unfunded Mandates Reform Act of 1995 do not apply.

International Civil Aviation Organization and Joint Aviation Regulations

In keeping with U.S. obligations under the Convention on ICAO, it is FAA policy to comply with ICAO Standards and Recommended Practices (SARPs) to maximum extent practicable. The FAA and the JAA jointly developed the operator and aircraft approval process under the auspices of the North Atlantic System Planning Group. We have determined that this amendment would not present any difference.

Environmental Analysis

FAA Order 1050.1D defines FAA actions that may be categorically excluded from preparation of a National Environmental Policy Act (NEPA) environmental assessment or environmental impact statement. In accordance with FAA Order 1050.1D, appendix 4, paragraph 4(j), regulations, standards, and exemptions (excluding those, which if implemented may cause a significant impact on the human environment) qualify for a categorical exclusion. We propose that this rule qualifies for a categorical exclusion because no significant impacts to the environment are expected to result from its finalization or implementation.

Energy Impact

The energy impact of this proposed rule has been assessed in accordance with the Energy Policy and Conservation Act (EPCA) and Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this proposed rule is not a major regulatory action under the provisions of the EPCA.

Plain Language

In response to the June 1, 1998, Presidential Memorandum regarding the use of plain language, the FAA re-examined the writing style currently used in the development of regulations. The memorandum requires federal agencies to communicate clearly with the public. We are interested in your comments on whether the style of this document is clear, and in any other suggestions you might have to improve the clarity of FAA communications that affect you. You can get more information about the Presidential memorandum and the plain language initiative at http://www.plainlanguage.gov.

For the convenience of the reader, the entire proposal (NPRM as modified by the SNPRM) has been published.

List of Subjects in 14 CFR Part 91

• Air-traffic control
• Aircraft
• Airmen
• Airports
• Aviation safety
• Reporting and recordkeeping requirements

The Proposed Amendment

For the reasons discussed in the preamble, the Federal Aviation Administration proposes to amend part 91 of title 14 of the Code of Federal Regulations (14 CFR part 91) as follows:

PART 91—GENERAL OPERATING AND FLIGHT RULES

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, 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).

Subpart B—Flight Rules

1. Amend section 91.159 by revising paragraph (b) to read as follows and by deleting paragraph (c):