[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Rules and Regulations]
[Pages 3782-3792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00113]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2019-0451; Amdt. No. 91-362]
RIN 2120-AL30


Special Flight Authorizations for Supersonic Aircraft

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

ACTION: Final rule.

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SUMMARY: In consideration of the continuing development of a new 
generation of supersonic aircraft, FAA is modernizing the procedure for 
requesting a special flight authorization to operate in excess of Mach 
1 over land in the United States. The renewed interest in development 
of supersonic airplanes caused FAA to review its application procedures 
that allow for flight tests of these aircraft. This final rule modifies 
the criteria for applying for these authorizations and moves the 
material from an appendix to a regulation to make it easier to find and 
understand. Outside the context of special flight authorizations under 
this final rule, the FAA continues generally to prohibit civil 
supersonic flight over land in the United States.

DATES: Effective February 16, 2021.

ADDRESSES: For information on where to obtain copies of rulemaking 
documents and other information related to this final rule, see ``How 
To Obtain Additional Information'' in the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: For questions concerning this action, 
contact: Sandy Liu, Office of Environment and Energy, AEE-100, Federal 
Aviation Administration, 800 Independence Avenue SW, Washington, DC 
20591; telephone (240) 267-4748; email sandy.liu@faa.gov.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    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, 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.

I. Overview of Final Rule

    This rulemaking amends the administrative requirements for a 
special flight authorization originally published as appendix B to part 
91, Authorizations to exceed Mach 1 (Sec.  91.817), of title 14 of the 
Code of Federal Regulations (14 CFR). This rulemaking is intended to 
streamline the application procedure for these special flight 
authorizations by clarifying the information that is needed for 
submission and specifying the program office within FAA that processes 
the applications. This rule sets forth the application criteria in a 
more user-friendly format. FAA is adopting the rule largely as it was 
proposed, with some minor changes to the regulatory text, as discussed 
in Section IV and the accompanying preamble discussion.

II. Background

    In a notice of proposed rulemaking (NPRM) titled Special Flight 
Authorizations for Supersonic Aircraft (84 FR 30961, June 28, 2019), 
FAA proposed to modernize the procedures for requesting special flight 
authorizations that are needed to accomplish testing and development of 
new supersonic aircraft. The NPRM provided a brief history of FAA's 
regulation of civil supersonic aircraft beginning in the 1970s with the 
introduction of the Concorde, including the history of the application 
procedure for special flight authorizations that is the subject of this 
rulemaking.
    FAA is clarifying the application procedure for requesting a 
special flight authorization to fly faster than Mach 1 following 
increased interest by industry to develop such aircraft. The revisions 
adopted here do not change the general prohibition against overland 
supersonic flight in the United States that has been in place since 
1973 (14 CFR 91.817). This rule replaces the procedure described in 
part 91, appendix B, with regulatory text that clearly describes the

[[Page 3783]]

application process and criteria. The new regulation provides clarity, 
includes noise testing as another reason for which an authorization may 
be issued, and requires one additional piece of information to be 
provided in an application, which is discussed below. This rule does 
not introduce any new FAA policy or change the intent of the original 
application process.
    Recognizing the renewed interest of the aviation industry in 
developing supersonic aircraft, Congress instructed FAA in Section 181 
of the FAA Reauthorization Act of 2018 (Pub. L. 115-254, Oct. 5, 2018) 
to assume a leadership role in the development of international 
policies, regulations, and standards that facilitate the safe and 
efficient operation of such aircraft. Section 181 further directed FAA 
to undertake reforms of its regulations regarding civil supersonic 
aircraft.
    FAA's first step in response to Section 181 was to propose changes 
to the special flight authorization application process. The second 
step was FAA's publication of an NPRM that proposes landing and takeoff 
noise limits under 14 CFR part 36 for the first group of supersonic 
aircraft expected to be presented for certification (85 FR 20431, Apr. 
13, 2020). The relationship between the two rulemakings is minimal. An 
aircraft developer would eventually use the final rule adopted here to 
test aircraft under development at supersonic speed. Eventually, a 
developer might further use the authorization procedure adopted here 
for flight tests to demonstrate compliance with certain supersonic 
noise criteria when those criteria are eventually adopted. The part 36 
NPRM, by contrast, included only subsonic standards for new supersonic 
aircraft and addressed the noise limits for landing and takeoff. 
Because landing and takeoff do not occur at supersonic speeds, a 
special flight authorization under this final rule would be unnecessary 
to test for landing and takeoff noise levels of supersonic aircraft, 
just as subsonic aircraft do not require such special permission to 
accomplish part 36 testing.
    Neither this final rule nor the part 36 noise limit NPRM alters the 
general prohibition on supersonic flight over land in the United States 
found in Sec.  91.817.

Summary of the NPRM

    This modernization of the authorization process for certain civil 
supersonic flights is intended to simplify and clarify the process for 
applicants interested in obtaining an authorization to perform 
supersonic aircraft development testing.
    In the proposed rule, FAA identified three areas intended to 
improve provisions that comprised appendix B. The first designated the 
proposed office in FAA to which applicants are to send applications and 
direct questions. The second proposed to gather the scattered 
application requirements into a list, and present them according to 
modern regulatory formatting standards. As part of this effort, FAA 
proposed also to correct the regulatory text for consistency throughout 
the new section. Third, FAA proposed the addition of a new reason for 
flight testing to accommodate future noise certification actions.
    The NPRM invited interested persons to participate in the 
rulemaking by submitting written comments, data, or views. It also 
invited comments relating to the economic, environmental, energy, or 
federalism impacts that might result from adopting the proposal.

III. Discussion of Public Comments

    FAA received a total of 206 comments on the NPRM: 43 comments 
generally supported the NPRM, 45 generally opposed the NPRM, and 118 
are considered outside the scope of the rule. The majority of comments 
from the public focused on the current routing of aircraft under the 
NextGen program, or expressed general annoyance regarding aircraft 
noise, and did not include any comments specific to the proposal 
updating the application procedure.

A. General Environmental Concerns Regarding Civil Supersonic Flight

    Approximately 77 commenters included some combination of general 
concerns about the possible environmental effects of supersonic 
airplanes--whether they were about the noise anticipated from new 
supersonic airplanes, the effect of supersonic operations on the 
atmosphere, or both. Some commenters generally cited the Concorde model 
airplanes as an example. Those opposing the rule, including two 
municipalities, stated their opposition to the addition of supersonic 
airplanes, citing detrimental environmental effects, but did not 
comment on the changes proposed for the application procedure.
    In response, FAA emphasizes that the proposed rule would not have 
allowed supersonic flights to occur on a regular basis in the United 
States. The regulation that generally prohibits civil airplanes from 
operating at speeds in excess of Mach 1 over land in the United States 
(14 CFR 91.817) has been in effect since 1973, and no change to that 
regulation was proposed.
    Rather, the proposed rule focused on the administrative application 
process for special flight authorizations to exceed Mach 1 for certain 
reasons, and for flight in limited areas that would be determined in 
advance. The rule does not in and of itself authorize the operation of 
any specific airplane over any particular area; rather, any flights 
authorized under the rule could only occur upon receiving FAA 
authorization after completion of the application process and 
considerable regulatory prerequisites, including analyses of the 
environmental impacts on the area over which an applicant proposes to 
operate, as required by law. Neither these regulatory prerequisites nor 
the assessments of environmental impacts were the subject of FAA's 
proposed changes. Comments that suggested changes to the required 
assessments were beyond the scope of this rulemaking.
    The special flight authorizations that are the subject of this 
rulemaking have been available since the FAA adopted the supersonic 
prohibition in 1973. This rulemaking only presents an update of the 
administrative application process, without affecting FAA's underlying 
duty to assess the environmental impact of any flight it authorizes, 
whether under the National Environmental Policy Act (NEPA) or the 
requirements imposed by the regulation itself.

B. The National Environmental Policy Act (NEPA)

    Paragraph (b) of appendix B to part 91 directed applicants 
generally to submit ``all information requested by the Administrator'' 
necessary for the Administrator to make a determination under the 
National Environmental Policy Act (NEPA).\1\ In the proposed rule, FAA 
tried to provide applicants with better clarity by adding the text in 
proposed Sec.  91.818(c)(2)(i)-(iii) to suggest the form that such 
information might take to support FAA's NEPA determination. 
Specifically, the proposed language gave as examples an Environmental 
Impact Statement (EIS) for the proposed flight area, an EIS previously 
prepared for the proposed flight area, or another statement or finding 
of environmental impact for the proposed flight test area, such as an 
Environmental Assessment (EA).
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    \1\ The National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.)
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    In the final rule, FAA revises Sec.  91.818(c)(2) to remove these 
suggestions, because they proved to be a source of confusion among

[[Page 3784]]

commenters, as discussed below. The proposed language providing more 
detail about what an applicant could submit was not intended to imply 
that FAA would forego independently evaluating the information or 
closely examining the environmental impacts on a proposed test area in 
determining whether to grant a particular special flight authorization. 
The language was also not intended to imply shifting the burden of 
complying with NEPA to the applicant rather than FAA.
    NEPA requires Federal agencies to consider the environmental 
impacts of their actions in their decision-making processes. 
Specifically, an agency must determine whether the action it is 
considering (in this case, whether to issue a special flight 
authorization allowing one or more supersonic flights) constitutes a 
``major Federal action significantly affecting the quality of the human 
environment'' (i.e., whether a proposed action would have significant 
environmental impact). FAA makes this determination in accordance with 
Council on Environmental Quality (CEQ) regulations,\2\ which provide 
the procedural requirements for Federal agency compliance with NEPA.
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    \2\ 40 CFR parts 1500 through 1508 (2020).
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    CEQ regulations include, at 40 CFR 1506.5, the option for agencies 
to seek necessary information from applicants to support the agency's 
required environmental review of proposed Federal actions under 
NEPA.\3\ That analysis may require varying amounts and types of data to 
make the determination whether approval of the underlying request would 
result in significant environmental impacts.
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    \3\ The CEQ regulations were updated in July 2020, while this 
final rule was in process. See 85 FR 43304 (July 16, 2020). The 
revised CEQ regulations became effective on September 14, 2020.
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    In order to complete that analysis in a timely fashion, FAA 
benefits from applicants' providing as much of the information as they 
can, in accordance with 40 CFR 1506.5.\4\ That information may be 
incorporated into an EA or EIS that is developed subject to FAA 
supervision, or it may provide the basis for FAA to apply a categorical 
exclusion of the action from further NEPA review.\5\
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    \4\ The regulation states that ``an agency may require an 
applicant to submit environmental information for possible use by 
the agency in preparing an environmental document.'' The regulation 
does not allow the agency to use such information without 
considerable additional analysis and verification.
    \5\ FAA's NEPA procedures, as set forth in FAA Order 1050.1F, 
Environmental Impacts: Policies and Procedures (July, 2015), do not 
currently have a categorical exclusion that would be applicable to 
applications for special flight authorizations. Accordingly, current 
FAA policy would not allow application of a categorical exclusion. 
However, as discussed further below, FAA might be able to establish 
an applicable categorical exclusion, but only after following 
appropriate procedures.
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    Nothing in the special flight authorization regulation, however, 
either requires or permits applicants for special flight authorizations 
to determine what level of NEPA review is required or whether issuance 
of a special flight authorization would have significant environmental 
impacts. Those determinations are FAA's alone.
    Further, FAA's finding under NEPA regarding the significance of 
environmental effects is not dispositive of the application under 
consideration. The NEPA analysis informs FAA's decision on whether to 
grant a special flight authorization for supersonic flight over a 
certain area, and the NEPA analysis must be completed before a decision 
to grant a special flight authorization. However, the NEPA 
determination (regarding significance of the environmental effects of 
granting the authorization) is distinct from the Administrator's 
findings on the application as a whole. The circumstances behind each 
application will be unique. Under Sec.  91.818(c)(1) of the final rule, 
the application is denied if the Administrator finds that such action 
is necessary to protect or enhance the environment.
    Because both the NEPA determination referenced in Sec.  
91.818(c)(2) and the substantive finding that can be made under Sec.  
91.818(c)(1) are environmental in nature, the final rule is revised to 
guard against the risk of the two being conflated. Specifically, Sec.  
91.818(c)(2) as adopted focuses more expressly on supporting the NEPA 
significance determination, which better distinguishes the purpose of 
paragraph (c)(2) from the purpose of an Administrator finding made 
under paragraph (c)(1) of that section.
    Boom Technology (Boom) submitted a comment regarding streamlining 
the NEPA process in the context of special flight authorizations. Boom 
initially presents two factual conclusions. Boom's first conclusion is 
that FAA would be unlikely to identify any significant sonic boom noise 
impacts for individual supersonic flight test programs under the FAA's 
threshold of significance for noise impacts in its NEPA procedures (FAA 
Order 1050.1). Boom's second conclusion is that the FAA 
programmatically could examine all supersonic test flight campaigns 
covering all applicants in a single year without the impacts triggering 
the FAA's threshold of significance for noise. Boom supports these 
conclusions with metrics from previous flights of the SpaceX Falcon 
Heavy landings and operations of the Concorde. Based on its conclusion 
that impacts of special flight authorizations would never reach FAA's 
threshold of significance for noise impacts, either individually or 
cumulatively on an annual basis, Boom proposes a series of qualifying 
criteria that, if met, should lead FAA to presume no significant 
impacts exist.
    FAA finds that this proposal fails for two reasons. First, as Boom 
acknowledged, FAA may use supplemental metrics when evaluating noise, 
and gives special consideration to certain types of noise-sensitive 
areas where the standard significance threshold may not adequately 
capture environmental effects. Although FAA uses all available methods 
to increase efficiency in its environmental review process, and in 
appropriate individual circumstances could make a finding of no 
significant impact for some or even most special flight authorizations, 
it cannot prejudge the outcome of individual applications submitted 
under this regulation, or their effects if considered cumulatively on 
an annual basis.
    Second, Boom's proposal to create criteria that, if satisfied, 
create a presumption that no significant effects will occur appears to 
be consistent with establishing a categorical exclusion under 40 CFR 
1501.4. Categorical exclusions are categories of actions that in 
ordinary circumstances do not have significant individual or cumulative 
impacts on the quality of the human environment. However, although Boom 
suggested that the Administrator could use this rulemaking to establish 
that the collective level of noise generated by all foreseeable test 
activities is not environmentally significant if conducted pursuant to 
these particular conditions, categorical exclusions must be identified 
in agency NEPA procedures and are subject to the requirements for 
public review and review by CEQ as specified in 40 CFR 1507.3. 
Moreover, the anecdotal evidence offered by Boom related to flights of 
other aircraft that were not subject to Sec.  91.817 would not be 
sufficient to establish a categorical exclusion under NEPA with respect 
to supersonic flights requested in a special flight authorization. The 
establishment of ``parameters'' relating to the NEPA review of 
supersonic flight tests would require an analysis of part 91 operations 
in order to justify a categorical exclusion, and the supporting 
documentation would need to go through the public process required for 
all changes to FAA's NEPA procedures

[[Page 3785]]

as set forth in Order 1050.1F. Although at some point in the future FAA 
might undertake the necessary analysis and public review process to 
establish such a categorical exclusion, absent a change to Order 
1050.1F, FAA currently must individually consider the potential 
environmental impacts of requested special flight authorizations.
    Boom also commented on an aspect of the proposed standard for 
special flight authorization operations outside the test area--in 
particular, that the operation does not cause a measurable sonic boom 
overpressure outside the test area. While that topic is discussed 
below, Boom's characterization of it in the context of NEPA is relevant 
here. Boom indicated that the standard (unchanged from appendix B) 
``goes far beyond what is required under the National Environmental 
Policy Act, as allowance of measurable overpressure is not necessarily 
a major Federal action `significantly affecting the quality of the 
human environment' as interpreted under agency guidance under Order 
1050.1F . . .'' Boom inaccurately combined the scope of the regulation 
governing the consideration and approval of special flight 
authorizations itself with the process tool of NEPA and FAA Order 
1050.1F, which describes FAA's NEPA policy and procedures. Further, 
Boom does not accurately reflect the definition of a major Federal 
action as defined by the CEQ regulations and FAA, relying on concepts 
actually related to significance of effects of a Federal action. The 
overpressure measurement standard is a specific factor set forth in the 
regulation that considers the effect of the proposed flights and is 
relevant for substantive approval purposes under the regulation. While 
this information may also be considered in NEPA analysis, it does not 
dictate that analysis, nor does it affect the process that FAA follows 
to reach a finding regarding significance of impacts under NEPA.
    The Center for Biological Diversity (CBD) made several arguments 
with regard to NEPA requirements in its comment. In part, the CBD read 
the proposed rule to ``suggest that preparation of an EA will fulfill 
FAA's duties'' under NEPA. The CBD also commented that the list of 
examples in proposed Sec.  91.818(c)(2) suggesting the form of 
information an applicant could provide ``oversimplifies the NEPA review 
process'' for FAA. As stated at the beginning of this discussion, FAA 
agrees that the submission of information by an applicant (whether to 
support an EIS, EA, categorical exclusion, or other materials) does not 
itself satisfy NEPA requirements, which remains FAA's duty. Further, 
FAA did not intend for the applicant's submission, whatever form it may 
take, to represent the completion of the NEPA process. That process 
involves, where appropriate, public outreach, FAA's objective 
evaluation of any information prepared by the applicant, as well as the 
exercise of independent judgment as to whether the NEPA process can be 
concluded with a finding of no significant impact, or whether it 
requires preparation of an environmental impact statement.
    The CBD concluded that, ``Because Special Flight Authorizations for 
Supersonic Aircraft are major federal actions, an application for such 
authorization would trigger the need to prepare an EIS.'' This 
conclusion is based on CBD's reading of the 1970 preamble that 
accompanied the adoption of the supersonic prohibition. FAA disagrees 
that the 1970 rule presumed that all supersonic flights were likely to 
create significant environmental impacts under NEPA and therefore 
require FAA to produce an EIS. While an application for a special 
flight authorization is a major Federal action subject to NEPA review, 
the specific facts associated with such an application determine what 
level of NEPA review is required. CBD presupposes a universal outcome 
regarding the proper level of NEPA review, disregarding the fact-
specific nature of this determination.
    The proposed addition of the form of information to be submitted by 
applicants caused some commenters to misunderstand the FAA's intent, 
and is an indication that the proposed regulatory changes were not 
helpful. Accordingly, FAA has removed proposed Sec.  91.818(c)(2)(i) 
through (iii) from the final rule. This final rule revises the language 
in Sec.  91.818(c)(2) to modernize it consistent with the recently 
revised CEQ regulations and the NEPA practice as it has developed since 
appendix B was first promulgated. The revised language clarifies that 
the information needed to support any particular application will be 
considered by FAA in its determination of whether the environmental 
impacts of the special flight authorization are significant. The 
provision of this information and the subsequent development of the 
appropriate level of environmental documentation will be carried out in 
accordance with the CEQ regulations and FAA procedures in the most 
recent version of FAA Order 1050.1.

C. Application Approval Process

    In proposed paragraph (a) of Sec.  91.818, the FAA sought to locate 
into a more-user friendly format the application requirements 
previously scattered throughout appendix B to part 91. Specifically, 
proposed Sec.  91.818(a)(6) would require a ``description of the flight 
area requested by the applicant, including any environment analysis 
required under paragraph (c) of this section.'' This requirement was 
unchanged from appendix B.
    GE Aviation and Boom suggested that FAA adopt an expedited 
application approval process under certain circumstances. As a means to 
this expedited approval, both commenters suggested that a pre-approved 
set of parameters could form the basis for these approvals. GE Aviation 
suggested automatic approval when an applicant can show ``that there 
have been no meaningful changes in the expected environmental 
impacts.'' Noting what it considered a recognized lack of significant 
environmental impact (discussed above), Boom stated that a predefined 
set of parameters would provide certainty and reduce costs for 
manufacturers as well as reduce the burden on the FAA.
    FAA is not adopting the suggested expedited application approval 
process. First, the FAA does not find that pre-approved circumstances 
can be determined, because there are several factors FAA considers for 
each application for supersonic testing, including performance of the 
particular aircraft. Second, the time-sensitive nature of environmental 
considerations can make prior determinations unreliable without 
reassessment at the time of each application, and could cause the FAA 
to fail in its environmental responsibilities. Under FAA policy, 
environmental assessments or EISs are not presumed valid indefinitely; 
after three years, a written reevaluation must be prepared. (See FAA 
Order 1050.1F.) However, FAA would accept previous environmental 
analyses of a proposed flight area as long as the material remains 
current and relevant, or has been updated by an applicant to meet those 
requirements. Third, FAA intends with this rulemaking to consider all 
applications uniformly. While the actual number of applications for 
authorization has been limited, FAA experience is that incomplete 
information submitted by an applicant has caused delays in the 
authorization approval process.
    While FAA is not changing the requirement in Sec.  98.818(a)(6), 
FAA has revised it slightly from the proposed

[[Page 3786]]

rule to clarify that the requirement calls for information that 
supports analyses rather than the analyses themselves.

D. Test Area Selections

    The term ``designated test area'' in appendix B created confusion 
for prospective applicants that interpreted the phrase to mean that 
designated test areas already exist, when they in fact do not. Rather, 
the term was used to refer to the proposed test area described 
(designated) in an application. FAA proposed eliminating this phrase 
and replacing it with Sec.  91.818(a)(6) requiring an applicant to 
describe its requested test area in its application. Description of the 
proposed test area is one consideration in determining the 
acceptability of the application overall.
    Several commenters stated that the final rule should provide more 
flexibility for test area selections to allow more than one operator to 
use a test area, and to support the development of test areas outside 
of military operation areas (MOAs). GE Aviation, Aerospace Industries 
Association (AIA), General Aviation Manufacturer's Association (GAMA), 
Supersonic Flight Alliance (SSFA), AeroTEC, and Boom suggested that FAA 
allow multiple manufacturers to use the same flight test area, as 
opposed to limiting areas to a single flight test campaign. Generally, 
the commenters stated that doing so would provide safer and more 
effective testing, and cost-saving benefits to industry and FAA. 
Lockheed Martin Corporation (Lockheed) suggested establishing dedicated 
supersonic flight test areas. Additionally, Boom, SSFA, and AeroTEC 
expressed the general need for supersonic test areas outside of MOAs, 
citing concerns such as crowded airspace within MOAs and lack of 
available MOAs for civil flight testing. The Town of Milton, 
Massachusetts, stated that test sites should not be determined by 
industry applicants and urged FAA to limit test sites to MOAs.
    To support current industry development efforts, FAA provides 
supersonic flight test applicants with the broadest opportunity to 
request an appropriate flight test area, consistent with the applicable 
regulations and environmental impacts. FAA emphasizes that the 
regulation does not limit a flight test area to use by one applicant. 
As stated in the NPRM, nothing about the application process should be 
read 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 (85 FR 30961, at 30964). FAA does expect, 
however, that each operator intending to share the use of, or the costs 
associated with requesting, a test area will need to submit its own 
application with all of the information required for the processing of 
the application. In the case of a test area that has been previously 
approved under another application, the next applicant will need to 
submit information that includes a description of the (same) requested 
test area and the required environmental information.
    The final rule does not include suggestions from commenters for the 
FAA to establish ``dedicated'' test areas or a ``civilian supersonic 
corridor'' without proposed users or without a specific application. 
The regulation requires an applicant to show the probable impact of the 
applicant's requested operations over a proposed test area. There can 
be no proper determination of any environmental impact on a test area 
without a proposal from an operator that includes the timing, duration, 
and expected noise impacts of the operator's planned flights. A change 
in this fundamental nature of the process would require additional 
rulemaking and analysis.
    Moreover, the final rule, as is the case under the existing 
regulation, does not limit proposed test areas to MOAs. Several 
commenters disagreed with what they perceived to be FAA's assumption 
that applicants will only test within existing MOAs. The commenters 
note that MOAs may not be suitable for civil supersonic testing and 
that applicants may develop their own supersonic test areas. The 
commenters' concern might reflect a misunderstanding stemming from the 
Paperwork Reduction Act (PRA) statement that was published as part of 
the NPRM (see 84 FR 30965-66). FAA is required to estimate the 
information collection burden involved in complying with a regulation. 
FAA's only historical data for special flight authorization came from 
applications proposing to use MOAs as test areas. FAA was thus unable 
to estimate any reliable information collection impact on future 
applicants for anything other than using a MOA that has underlying 
environmental data already available. But the use of MOAs as part of 
the required PRA statements supporting this rulemaking was not an 
indication that the rule prevents an applicant from choosing other 
areas. The choice of test area remains with each applicant after 
assessing its financial considerations and business needs.
    Finally, nothing in the regulation prevents a group of operators 
from sharing the costs of establishing a test area. As a matter of 
implementation, there must be a ``first'' applicant that submits all of 
the required information for FAA to make the first determination about 
an area based on the proposed flights. Subsequent applicants could use 
the same information, and include any differences that apply to the 
subsequent applicant, such as duration of the authorization, number of 
flights, or probable impact. The need for each operator individually to 
apply for and receive an authorization remains unchanged from the 
current requirements. No changes are being made to the requirement to 
describe the test areas based on these comments.

E. Conducting Noise Testing During Supersonic Flight

    FAA proposed the measurement of noise characteristics in Sec.  
91.818(a)(8)(v) as an additional reason to conduct a supersonic flight. 
The new provision allows for the FAA to issue a special flight 
authorization for flights in excess of Mach 1 when measuring the noise 
characteristics of an aircraft for compliance with noise certification 
requirements, including conducting a noise test during supersonic 
flight. Appendix B addressed only flights necessary to comply with 
airworthiness certification testing, not noise tests. This change is 
forward-looking, as there are no standards for assessing noise at 
supersonic speed at this time. This limited expansion will facilitate 
noise certification testing for future supersonic aircraft when such 
noise standards are adopted. On April 13, 2020, FAA issued an NPRM 
proposing noise certification standards for a certain class of new 
supersonic airplanes under part 36 (85 FR 20431), but those proposed 
standards are only for subsonic landing and takeoff. No special flight 
authorization would be needed to conduct the tests for subsonic noise 
compliance (landing and takeoff), as that noise is proposed to be 
measured in the same manner as subsonic aircraft.
    GE Aviation commented that the rule should address the full set of 
circumstances for requesting a special flight authorization, including 
requirements for testing airworthiness and operational capabilities. 
FAA notes that the proposed change allows an additional reason to 
request testing. The rule has always required applicants to specify the 
reason particular tests need to be conducted from the list provided in 
the regulation. FAA has not proposed to remove any of the general 
reasons from appendix B that an operator may have to test an airplane, 
including airworthiness testing.

[[Page 3787]]

    Accordingly, the provision is adopted as proposed.

F. Overocean Testing

    FAA proposed maintaining the requirement for an applicant to show 
why its test cannot be accomplished by flight over the ocean. The 
placement of this application requirement in appendix B often caused it 
to be overlooked as a prerequisite. The proposed rule placed the same 
overocean requirement in new Sec.  91.818(a)(9) with minor modification 
to state that an ``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.'' The addition of the last phrase aligns the rule 
with the requirement in Sec.  91.817(b) that restricts supersonic 
operation of aircraft, including over the ocean, unless there are 
flight limitations to ensure that no sonic boom could impact the U.S. 
shoreline.
1. Alternatives to Overocean Testing
    Commenters who are not in favor of the overocean testing 
requirement suggested alternatives. GE Aviation stated that there 
should be a provision and process to allow supersonic flight testing to 
move from over the ocean to over land and should involve various stages 
of modeling, along with testing and validation through flights over the 
ocean. Lockheed expressed appreciation for clarifying the applicability 
of the overocean provision, but suggested that an applicant provide FAA 
with the results of prior test modeling activity, which would then be 
used to shape an overwater validation test activity as a precursor to 
overland test operations. The SSFA and AeroTEC suggested that the 
collection of noise data over ground terrain would provide better 
quality data than over water. An individual commenter suggested adding 
the word ``efficiently'' to the regulatory text of Sec.  91.818(a)(9), 
but did not provide any supporting explanation. An individual from 
Louisiana suggested that testing be done ``over the Pacific Ocean or 
large bodies of water around 70 miles off the coast,'' but provided no 
support for the specificity of this suggestion.
    FAA recognizes that there may be valid reasons why an applicant 
cannot conduct an overocean test properly. The provision in appendix B 
allowed for this possibility, as does the provision adopted in Sec.  
91.818(a)(9), which simply restates that an applicant needs to explain 
why overocean testing would not work. Furthermore, the rule does not 
restrict the submission of modeling data as support for an application 
if an applicant chooses to use it. FAA notes that if all supersonic 
operation is conducted over water outside U.S. airspace and at a 
distance that ensures no sonic boom effect on land, there is no need to 
even request a special flight authorization. It is only when supersonic 
flight over land is requested that an application need be submitted, in 
which case the applicant needs to explain why it cannot be accomplished 
over the ocean, in order to avoid unnecessary noise exposure on the 
ground.
2. Economic Reasonableness
    Boom raised economic concerns with the overocean provision. Boom 
stated that FAA's 1970s-era economic rationale for the prohibition on 
supersonic overland flight and application process for overland testing 
is not valid because it was based on a market assessment of supersonic 
aircraft that did not materialize. Boom also stated that the overocean 
requirement is not economically reasonable because testing supersonic 
aircraft over the ocean would require manufacturers located farther 
from the U.S. coastline to incur enormous expenses to set up additional 
test facilities with closer proximity to the ocean. Boom added that 
``for such an enormous expense, the public may be spared a few dozen 
half-second disturbances per year.''
    The FAA notes that the determination made in the 1970s that no 
level of sonic boom is acceptable over land still applies and is not 
based exclusively on economics. Furthermore, the FAA is not persuaded 
that a re-evaluation of the reasonableness of the overocean testing 
provisions is warranted simply because the anticipated size of the 
commercial fleet has not materialized. Neither Boom nor any other 
commenters provided any data or persuasive argument indicating that the 
overocean testing requirement has been a primary reason for, or even a 
contributing factor to, why the estimated commercial fleet of 
supersonic airplanes never materialized. Rather, Boom's comment 
suggests that the requirement could pose a financial obstacle to Boom's 
particular business plans, not that the regulation in general is 
economically unreasonable.
3. Miscellaneous Overocean Provision Comments
    In addition to its economic reasonableness position, Boom stated 
that it ``believes that a requirement to justify the safety benefits of 
conducting a supersonic operation over land could erode safety,'' for 
which Boom hypothesized situations of production flight tests and the 
availability of diversion airports. Boom requested that FAA ``remove 
the requirement to show that the test could not be safely accomplished 
over the ocean'' in part because the showing ``will never be decisive'' 
and that a ``rejection based on an inadequate safety justification 
could lead to a tragic loss of life.''
    FAA disagrees with Boom that there is no economic or other 
justifiable basis for the requirement. The provision for overocean 
testing reinforces the principal purpose underlying appendix B to part 
91, to protect humans and the environment in the United States from the 
effects of sonic booms. The appendix establishes as a ``default'' the 
position that supersonic flight testing be conducted over the ocean 
rather than on land where sonic booms would impact the surface 
environment. The appendix and this rule provide applicants with an 
avenue to conduct supersonic test flights over land if they are able to 
explain why testing cannot be safely or properly conducted over the 
ocean.
    Three other commenters submitted suggestions to clarify the 
overocean provision. AIA and GAMA suggested that FAA clarify that a 
special flight authorization is not required if a test can be performed 
over the ocean at a distance ensuring that no sonic boom overpressure 
reaches any land surface in the United States. GE Aviation made the 
same comment but used ``application'' rather than ``authorization.'' As 
stated previously, no special flight authorization is required if the 
supersonic portion of any flight is conducted over the ocean at a 
distance ensuring that no sonic boom will reach land in the United 
States. The Town of Milton suggested that FAA require overocean 
supersonic testing in such a manner that no sonic boom overpressure 
reaches land before any testing over land is authorized. However, FAA 
recognizes that there may be situations where testing may not be safely 
or properly accomplished over the ocean, such as there being no 
effective way to measure noise on flights over water, including any 
noise impact that might be discernable on land.
    For the reasons discussed, FAA adopts the overocean testing 
provision as proposed.

G. Operation Outside a Test Area

    FAA proposed a new Sec.  91.818(b) to maintain the provisions in 
section 2(b) of appendix B that allow an applicant to request 
supersonic non-test flights outside of a test area. The prerequisites 
for this supersonic operation are considerable and are discussed below.

[[Page 3788]]

    1. Foreseeable Operating Conditions Outside of a Test Area
    Proposed Sec.  91.818(b)(3) would maintain the requirement of 
appendix B section 2(b) that a supersonic non-test flight applicant 
show--as part of a prior test conducted inside a test area--that 
``[t]he conditions and limitations determined by that test present all 
foreseeable operating conditions and are effective on all flights 
conducted under an authorization.''
    Aerion, GE Aviation, AIA, and GAMA stated that this requirement is 
unreasonable because it is not possible to predict all conditions under 
which an aircraft may operate. Aerion noted that the appendix B 
requirement originated before reliable sonic boom prediction 
technologies existed. All four commenters suggested replacing Sec.  
91.818(b)(3) with a standard based on currently available sonic boom 
prediction and control technology.
    In general, the phrases ``conditions and limitations'' and 
``operating conditions,'' as they are commonly applied to any flight 
authorization, do not require operators or FAA to predict every 
conceivable operating condition that may occur. FAA clarifies that 
``all foreseeable operating conditions'' refers to the reasonable 
expected conditions under which the aircraft would be operated, and is 
not meant to require a prediction of every possible condition.
2. Measurable Sonic Boom Overpressure Outside of a Test Area
    The application for operation outside a test area also includes a 
requirement that allows for such flights when it conservatively can be 
shown that ``no measurable sonic boom overpressure'' will reach the 
surface. FAA proposed to retain this provision as Sec.  91.818(b)(2). 
FAA stresses that the requirement to show ``no measureable sonic boom 
overpressure'' applies only to flights outside of a test area, and not 
as an application for operations in a requested test area under 
proposed Sec.  91.818(a)(8)(iv).
    Several commenters, including prospective supersonic airframe and 
engine manufacturers, stated that the provision should be eliminated 
because it is overly restrictive and outdated. Aerion stated that the 
provision ``was originally adopted in the 1970s out of an abundance of 
caution based on the relatively undeveloped state of sonic boom 
technology at that time.'' Aerion added that sonic boom prediction and 
control technology has advanced to the point where it is possible to 
make accurate predictions of the location and intensity of sonic booms. 
Aerion and GE Aviation noted that the provision does not recognize the 
possibility for a sonic boom to be produced that is barely noticeable 
on the ground, but can still be detected by scientific measurement, 
such as a small pressure disturbance. SSFA and AeroTEC referenced 
NASA's supersonic flight tests that show overpressure wave remnants at 
ground level that do not have the sharp-edged characteristic of a sonic 
boom. Boom indicated that the standard (unchanged from appendix B) 
``goes far beyond what is required under the National Environmental 
Policy Act, as allowance of measurable overpressure is not necessarily 
a major Federal action `significantly affecting the quality of the 
human environment' as interpreted under agency guidance under Order 
1050.1F.'' \6\
---------------------------------------------------------------------------

    \6\ The inclusion of NEPA language and FAA Order 1050.1F in 
Boom's comment on measurable sonic boom overpressure were addressed 
above in the NEPA comment disposition.
---------------------------------------------------------------------------

    Other commenters also supported the elimination of the provision. 
Both AIA and GAMA read the phrase ``no measurable sonic boom'' to be an 
absolute prohibition on supersonic operations, finding it overly 
restrictive and something ``that an applicant would be unable to 
guarantee during a test flight.'' The Town of Milton, Massachusetts, 
stated that FAA should remove Sec.  91.818(b) in its entirety because 
no aircraft can satisfy the ``no overpressure'' provision, adding that 
it should be replaced by a new regulation only after supersonic testing 
demonstrates no measurable sonic boom overpressure.
    New Frontier Aerospace is the only commenter that supported 
retaining the provision, stating that it foresees the need to apply for 
the Sec.  91.818(b) operating allowance in order to conduct extensive 
testing of an aircraft, and that the removal of this provision could 
have a serious impact on its aircraft that is still in development.
    In the NPRM, FAA stated that it is not seeking to propose 
alternatives to this provision as a means to approve routine civil 
supersonic flight, but simply seeks comment on whether the provision as 
written retains any current value. However, several commenters 
submitted alternatives. New Frontier Aerospace suggested that in place 
of ``no measureable sonic boom'' it would be beneficial to provide a 
specific numeric limitation for overpressure or noise levels. Aerion 
stated that the provision should be replaced with a standard based on 
currently available sonic boom prediction control technology. Other 
commenters (GE Aviation, AIA, and GAMA) suggested a more appropriate 
standard than ``no measurable sonic boom overpressure'' would be to 
ensure that no significant impacts on the environment or communities 
result from granting an authorization.
    The scope of the provision, both as it appears in the appendix and 
in the proposed rule, appears to be a continued source of confusion for 
some commenters. The section in the appendix that was proposed as Sec.  
91.818(b) sets the ``no measurable sonic boom overpressure'' criterion 
only for civil supersonic flights that would take place outside a test 
area. Several commenters seemed to presume inaccurately that this 
standard would be applied to all applications for special flight 
authorizations, even those that would be within a test area. The 
requirement to show conservatively that no measurable sonic boom 
overpressure reaches the surface does not apply to test flights that 
are authorized to be conducted in an approved test area. An operator 
with an authorization to flight test at supersonic speeds for one of 
the permissible purposes set forth in Sec.  91.818(a)(8) may 
potentially (subject to the conditions and limitations of its 
authorization) operate a flight that results in sonic boom 
overpressures reaching the surface inside the test area, as expected. 
Accordingly, FAA disagrees that the standard is overly restrictive. It 
restricts sonic boom overpressures from reaching the surface when 
flights are conducted outside of test areas, consistent with the 
overall intent of the regulations to prohibit routine or non-test 
supersonic flights over land. FAA emphasizes, though, that in 
accordance with Sec.  91.818(a)(7) no sonic boom overpressures are 
allowed to reach the surface outside of the test area. Moreover, as 
required by Sec.  91.818(a)(6) and (c), the operator must provide FAA 
with the information necessary for the agency to assess the 
environmental impacts resulting from such flights.
    Further, commenters' recommendations either to replace the ``no 
measurable sonic boom overpressure'' standard with a specific perceived 
decibel level or to remove it entirely go beyond the scope of what FAA 
proposed and the intent of this rulemaking, which is to modernize the 
administrative process for applying for the special flight 
authorization. The noise levels recommended by some commenters are 
relative to existing noise levels applicable to subsonic aircraft and 
would not be appropriate for measuring noise levels of aircraft flying 
at supersonic speeds. There are no accepted means of measuring 
supersonic noise, nor are there any

[[Page 3789]]

noise limits that have been deemed acceptable as a community standard, 
whether expressed in decibels or as sonic overpressure. Establishing 
supersonic noise levels for operations outside a test area would need 
to be accomplished in a future rulemaking and supported by appropriate 
data.
    None of the commenters suggested anything more than a future 
expectation that non-test flights might need to occur. FAA fully 
expects that, at some point, flights outside a test area would need to 
occur. But FAA does not have a reasonable expectation of what might be 
needed, since there have been no application for flights within a test 
area designated by an applicant and approved by FAA (where prior 
measurements would have to occur), nor applications that describe a 
test area that may need to be exceeded. After more testing occurs, and 
development has progressed to require such flights, more modern 
standards for measuring supersonic noise events and their impacts may 
have developed as well. At that time, the industry and FAA will be 
better positioned to suggest supportable changes to the rule on flights 
outside a test area. For these reasons, the suggestions that compare 
computer simulations of unrealized aircraft to the noise of the current 
subsonic fleet are not considered a sufficient basis to change the 
standard for flights outside a test area at this time, and no such 
changes were proposed.
    Eliminating the ``no measurable sonic boom overpressure'' 
regulatory text is also not appropriate in this rulemaking. The 
provision was adopted in the 1970s as a kind of relief valve to the 
prohibition in Sec.  91.817, based on the principle that a supersonic 
flight with no measureable overpressure (shown during previous flights 
in a valid test area) should not summarily be prohibited. In that 
sense, the circumstances have not changed, and there is no current data 
to support either eliminating the rule or determining a level of 
acceptable measurable sonic boom overpressure other than zero, which 
would be necessary before flights outside a test area could be 
considered. FAA will continue to review advances in technology that 
affect noise values produced by supersonic airplanes and the evaluation 
of those noise events. Accordingly, as the provision represents a 
safeguard from unknown sonic boom effects that may be unrelated to 
aircraft testing, no change to the rule is supported by the comments, 
and Sec.  91.818(b) is adopted as proposed.

H. Necessary To Protect or Enhance the Environment

    FAA proposed Sec.  91.818(c)(1) to provide that an authorization 
will not be granted ``if the Administrator finds that such action is 
necessary to protect or enhance the environment.'' This provision 
maintains the requirement stated in section 1(d) of appendix B. 
Commenters (GE Aviation, GAMA, and AIA) generally opposed this 
provision and read it to suggest that the Administrator would be 
required or able to deny an authorization because approving such 
flights would not lead to an enhancement of the environment. GE 
Aviation suggested that Sec.  91.818(c)(1) instead state that an 
application would not be denied if an applicant demonstrates that the 
flights would not have a significant impact on the environment.
    FAA notes that this language has been in the regulation since its 
adoption in the 1970s. Under this provision, the Administrator may 
consider adverse environmental impacts that would come from granting 
any particular flight authorization. The provision does not create a 
presumption that any particular application and grant would have to 
demonstrate a positive impact on the environment, as suggested by 
commenters. Commenters provided no indication that the authorizations 
that have been approved thus far have included or required any such 
demonstration of environmental enhancement. Therefore, the provision is 
adopted as proposed.

I. Using Software for Predictive Analysis

    Commenters provided general suggestions that the rule should 
specifically allow applicants to use software programs for predictive 
analyses in applications for special flight authorizations. In 
response, FAA notes that nothing in the existing or proposed rule 
prohibits an applicant from using such prediction and control 
technologies to supplement its application for a special flight 
authorization. Further, FAA supports applicants using existing software 
tools to predict the location and intensity of sonic boom ground 
impacts as supporting data in their test flight authorization 
applications, as they are available and apply to an applicant's 
specific circumstances. No change in the rule is made based on these 
comments.

J. NAS Concerns

    AOPA expressed concerns with the safe integration of supersonic 
aircraft into the National Airspace System (NAS), particularly with 
``see and avoid.'' AOPA also commented that FAA should carefully review 
any applications for overland flight below 18,000 feet altitude, and 
conduct a safety risk assessment of how supersonic airplane design may 
impact speed restrictions below 10,000 feet and the effectiveness of 
sense and avoid systems.
    Most of AOPA's considerations center around anticipation of 
eventual routine operation of supersonic aircraft in the same airspace 
as smaller, slower airplanes. This rule does not grant authorizations 
to exceed Mach 1 in airspace where the flights would negatively impact 
the safety of the NAS or persons on the ground without notice. This 
rule is limited to the application for an authorization to exceed Mach 
1 during test flights over a specific area to be determined in each 
application. The impact on routine aviation operations would be a 
factor in analyzing the proposed flight area. Many of the 
considerations expressed by AOPA speak to characteristics of individual 
airplane designs that would not be available for evaluation before the 
aircraft actually fly or are presented for certification. No change to 
the proposed regulation was suggested in this comment.

K. Miscellaneous Comments

    The Information Technology and Innovation Foundation suggested that 
FAA lift the supersonic ban based on speed and replace it with a set of 
noise standards to provide clarity for manufacturers that are 
developing supersonic airplanes. FAA notes that the NPRM specifically 
mentioned that the proposed revisions did not affect the general 
prohibition on supersonic flight. As also noted, FAA took the first 
step in developing noise standards for new supersonic airplanes in its 
April 2020 NPRM proposing changes to 14 CFR part 36. The comment is 
considered beyond the scope of this rulemaking.

IV. Changes From the Proposed Rule

    In the final rule, FAA made the following changes from the proposed 
rule:
    1. Section 91.818(a)(6) was revised to say ``environmental 
information'' rather than ``environmental analysis'' to avoid confusion 
about the nature of the material being submitted.
    2. In Sec.  91.818(c)(2), the subordinate paragraphs describing the 
types of information that might be submitted by an applicant were 
removed to prevent confusion over what information and what format 
would be acceptable. Other language in the paragraph was added to

[[Page 3790]]

clarify FAA's responsibilities under NEPA, as noted above in the 
disposition of comments.

V. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Orders 12866 and 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. In addition, DOT rulemaking procedures in subpart B of 49 CFR 
part 5 instruct DOT agencies to issue a regulation upon a reasoned 
determination that benefits exceed 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 FAA's analysis of the 
economic impacts of this final rule.
    In conducting these analyses, FAA has determined that this final 
rule: (1) Has benefits that justify its costs, (2) is not an 
economically ``significant regulatory action'' as defined in section 
3(f) of Executive Order 12866, (3) is not ``significant'' as defined in 
DOT's Regulatory Policies and Procedures; (4) will not have a 
significant economic impact on a substantial number of small entities; 
(5) will not create unnecessary obstacles to the foreign commerce of 
the United States; and (6) 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

    This rule amends the administrative requirements for a special 
flight authorization originally published in appendix B to 14 CFR part 
91, Authorizations to exceed Mach 1 (Sec.  91.817). This rule supports 
innovation in the development of new civil supersonic aircraft by 
streamlining existing regulations. This rule streamlines the 
application procedure for special flight authorizations by clarifying 
the information needed for submission, and specifying the program 
office within FAA that processes the applications. This rule sets forth 
the application criteria in a more user-friendly format. FAA is 
adopting this rule largely as it was proposed, with some minor changes 
to the regulatory text, as discussed in Section IV and the accompanying 
preamble discussion.
    As noted above, FAA provides 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, this rule would not have 
additional costs. The rule provides increased clarity for applicants 
and may reduce the number of follow-up requests for additional 
information between 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 final rule will 
not have additional costs. Therefore, this final rule would not have a 
significant economic impact on a substantial number of firms. 
Therefore, as provided in section 605(b), the head of 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.
    FAA has assessed the potential effect of this final rule and has 
determined that it will have a legitimate domestic objective, in that 
it will provide increased clarity and information to applicants as to 
the requirements for special flight authorizations to test supersonic 
aircraft. This rule will not operate in a manner as to affect foreign 
trade directly and, therefore, will 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

[[Page 3791]]

a mandate is deemed to be a ``significant regulatory action.'' 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 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.
    This final rule contains the following amendments to the existing 
information collection requirements for OMB Control Number 2120-0005. 
As discussed in the NPRM, the original estimated annual number of 
responses (applications) was high, 20 annually, and the annual time 
burden (hours per response) was low, 14 hours. The changes to both the 
number of annual responses and the hours per request is not a result of 
any of the changes described in this rulemaking, but reflects a change 
in the understanding of both the number of applicants expected, and the 
requirements for environmental information between the original 
collection request and now. With limited PRA comment responses, FAA 
submits the following changes due to agency discretion/experience of 
this information collection to OMB for its review and approval.
    Summary: Authorization to exceed Mach 1 over land.
    Use: To authorize supersonic airplane test flights at approved 
sites.
    Respondents (including number of): Three producers of civil 
supersonic airplanes.
    Frequency: Three applications in a three-year period.
    Annual Burden Estimate: One application annually.
    FAA estimates fully burdened labor cost to be about $200 per hour, 
making the annual cost $200 x 40 = $8,000. 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. FAA 
assumes that applicants would qualify to use airspace in U.S. military 
test ranges where supersonic flights already occur and a NEPA document 
already exists.
    Individuals and organizations may send comments on the information 
collection requirement to the address listed in the ADDRESSES section 
at the beginning of this preamble by March 16, 2021. Comments also 
should 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 
20503.

F. International Compatibility

    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 to the maximum extent practicable. FAA has 
reviewed the corresponding ICAO Standards and Recommended Practices 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. FAA has determined 
that this rulemaking action updating the application process for 
special flight authorizations qualifies for the categorical exclusion 
identified in paragraph 5-6.6 and involves no extraordinary 
circumstances.

VI. Executive Order Determinations

A. Executive Order 13132, Federalism

    FAA has analyzed this final rule under the principles and criteria 
of Executive Order 13132, Federalism. The agency determined that this 
action will 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, does not have federalism implications.

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

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

C. Executive Order 13609, International Cooperation

    Executive Order 13609, Promoting International Regulatory 
Cooperation, 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. FAA has analyzed 
this action under the policies and agency responsibilities of Executive 
Order 13609, and has determined that this action will not have an 
effect on international regulatory cooperation.

D. Executive Order 13771, Reducing Regulation and Controlling 
Regulatory Costs

    This final rule is considered an E.O. 13771 deregulatory action. 
Details on the streamlining effects of this rule can be found in the 
rule's regulatory evaluation.

VII. How To Obtain Additional Information

A. Rulemaking Documents

    An electronic copy of a rulemaking document may be obtained by 
using the internet--
    1. Search the Federal eRulemaking Portal (http://www.regulations.gov);
    2. Visit FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/ or
    3. Access the Government Printing Office's web page at
    http://www.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request (identified by 
notice, amendment, or docket number of this rulemaking) to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

B. Comments Submitted to the Docket

    Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the 
docket number for this action. Anyone is able to search the electronic 
form of all comments received into any of FAA's 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.).

C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or

[[Page 3792]]

advice about compliance with statutes and regulations within its 
jurisdiction. A small entity with questions regarding this document, 
may contact its local FAA official, or the person listed under the FOR 
FURTHER INFORMATION CONTACT heading at the beginning of the preamble. 
To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects in 14 CFR Part 91

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

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends chapter I of title 14, Code of Federal 
Regulations as follows:

PART 91--GENERAL OPERATING AND FLIGHT RULES

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1. The authority citation for Part 91 continues to read as follows:

    Authority: 49 U.S.C. 106(f), 106(g), 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]

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2. In Sec.  91.817(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''.

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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 in accordance with 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 flight(s) would be conducted;
    (5) The time of day the flight(s) 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 information required to be submitted 
pursuant to paragraph (c) of this section;
    (7) All conditions and limitations on the flight(s) that will 
ensure that no measurable sonic boom overpressure will reach the 
surface outside of the proposed flight area; and
    (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).
    (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) Flight(s) within a test area have been conducted in accordance 
with an authorization issued for the purpose specified in paragraph 
(a)(8)(iv) of this section;
    (2) The results of the flight test(s) required by paragraph (b)(1) 
of this section 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 the test(s) 
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 consider the potential 
environmental impacts resulting from the issuance of an authorization 
for a particular flight area pursuant to the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C 4321 et seq.), all applicable 
regulations implementing NEPA, and related Executive orders and 
guidance. Accordingly, each applicant must provide information that 
sufficiently describes the potential 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, to enable the FAA to determine 
whether such impacts are significant within the meaning of NEPA.
    (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]

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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 January 4, 2021.
Steve Dickson,
Administrator.
[FR Doc. 2021-00113 Filed 1-14-21; 8:45 am]
BILLING CODE 4910-13-P


