52132 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

The FAA has determined that this 

regulation only involves an established 

body of technical regulations for which 

frequent and routine amendments are 

necessary to keep them operationally 

current. Therefore, this regulation: (1) Is 

not a ‘‘significant regulatory action’’ 

under Executive Order 12866; (2) is not 

a ‘‘significant rule’’ under DOT 

Regulatory Policies and Procedures (44 

FR 11034; February 26, 1979); and (3) 

does not warrant preparation of a 

regulatory evaluation as the anticipated 

impact is so minimal. Since this is a 

routine matter that will only affect air 

traffic procedures and air navigation, it 

is certified that this rule, when 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities under the 

criteria of the Regulatory Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the U.S. Code. Subtitle 1, 

Section 106 discusses 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 I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it establishes 

additional controlled airspace at Pueblo 

Memorial Airport, CO. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

Adoption of the Amendment 

■ In consideration of the foregoing, the 

Federal Aviation Administration 

amends14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40113, 

40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– 

1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of the Federal Aviation 

Administration Order 7400.9T, Airspace 

Designations and Reporting Points, 

signed August 27, 2009, and effective 

September 15, 2009 is amended as 

follows: 

Paragraph 6005 Class E airspace areas 

extending upward from 700 feet or more 

above the surface of the earth. 

* * * * * 

ANM CO E5 Pueblo, CO [Modified] 

Pueblo Memorial Airport, CO 

(Lat. 38°17′21′′ N., long. 104°29′48′′ W.) 

That airspace extending upward from 700 

feet above the surface within 21.8-mile radius 

of the Pueblo Memorial Airport, and within 

the 28.8-mile radius of Pueblo Memorial 

Airport clockwise between the 070° and 133° 

bearing from the airport; that airspace 

extending upward from 1,200 feet above the 

surface bounded on the north by lat. 

38°30′00′′ N., on the east by V–169, on the 

south by V–210, on the west by a line from 

lat. 37°38′00′′ N., long. 105°00′02′′ W.; to lat. 

38°09′25′′ N., long. 105°08′06′′ W.; to lat. 

38°05′51′′ N., long. 105°30′49′′ W.; to lat. 

38°10′00′′ N., long. 105°33′02′′ W.; to lat. 

38°30′00′′ N., long. 105°33′02′′ W.; that 

airspace extending upward from 13,700 feet 

MSL bounded by a line beginning at lat. 

38°09′25′′ N., long. 105°08′06′′ W.; to lat. 

37°38′00′′ N., long. 105°00′02′′ W.; to lat. 

37°34′00′′ N., long. 105°12′02′′ W.; to lat. 

38°05′51′′ N., long. 105°30′49′′ W.; thence to 

point of beginning, excluding that airspace 

within Federal airways and the Colorado 

Springs, CO, Class E airspace area. 

* * * * * 

Issued in Seattle, Washington, on 

September 25, 2009. 

Robert E. Henry, 

Acting Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. E9–24168 Filed 10–8–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 93 

[Docket No. FAA–2006–25709; Amendment 

No. 93–92] 

RIN 2120–AJ49 

Congestion Management Rule for 

LaGuardia Airport 

AGENCY: Federal Aviation 

Administration (FAA). 

ACTION: Final rule; rescission. 

SUMMARY: The FAA is rescinding the 

final rule Congestion Management Rule 

for LaGuardia Airport. The final rule 

established procedures to address 

congestion in the New York City area by 

assigning slots at LaGuardia Airport 

(LaGuardia), assigning to existing 

operators the majority of slots at the 

airports, and creating a market by 

annually auctioning off a limited 

number of slots in each of the first five 

years of the rule. The final rule also 

contained provisions for minimum 

usage, requiring reservations for 

unscheduled operations, and 

withdrawal for operational need. The 

rule was scheduled to sunset in ten 

years. 

DATES: Effective Date: October 9, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

questions concerning this rulemaking, 

contact: Molly W. Smith, Office of 

Aviation Policy and Plans, APO–200, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone (202) 

267–3275; e-mail 

molly.w.smith@faa.gov. For legal 

questions concerning this rulemaking, 

contact: Rebecca MacPherson, FAA 

Office of the Chief Counsel, 800 

Independence Ave., SW., Washington, 

DC 20591; telephone (202) 267–3073; 

e-mail rebecca.macpherson@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking 

The FAA has broad authority under 

49 U.S.C. 40103 to regulate the use of 

the navigable airspace of the United 

States. This section authorizes the FAA 

to develop plans and policy for the use 

of navigable airspace and to assign the 

use that the FAA deems necessary for its 

safe and efficient utilization. It further 

directs the FAA to prescribe air traffic 

rules and regulations governing the 

efficient utilization of the navigable 

airspace. 

I. Background 

The final rule Congestion 

Management Rule for LaGuardia Airport 

was published in the Federal Register 

on October 10, 2008 (73 FR 60574) 

(2008 final rule). The final rule 

established procedures to address 

congestion in the New York City area by 

assigning slots for scheduled services at 

LaGuardia Airport (LaGuardia), 

assigning to existing operators the 

majority of slots at the airports, and 

creating a market by annually 

auctioning off a limited number of slots 

in each of the first five years of the rule. 

The final rule also contained provisions 

for minimum slot usage, withdrawal of 

slots for operational need, and requiring 

reservations for unscheduled 

operations. The rule was scheduled to 

sunset in ten years and added to the 

Code of Federal Regulations December 

9, 2008. The rulemaking was highly 

controversial. The final rule was 

challenged by several parties before it 

could take effect. On December 8, 2008, 

the United States Court of Appeals for 

the District of Columbia Circuit stayed 

the rule. On January 22, 2009, the ATA 

requested the Secretary of 

Transportation, Ray LaHood, withdraw 


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Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52133 

1Operating Limitations at New York LaGuardia 

Airport (LaGuardia Order), December 27, 2006 (71 

FR 77854), as amended November 8, 2007 (72 FR 

63224), August 19, 2008 (73 FR 48248), January 8, 

2009 (74 FR 845), and January 15, 2009 (74 FR 

2646). 

the final rule in light of the court’s stay. 

While the regulations were incorporated 

into the Code of Federal Regulations, 

due to the courts ruling, they had no 

force and effect. 

On March 11, 2009, the President 

signed Public Law 111–8, Omnibus 

Appropriations Act, 2009. That 

legislation provides several departments 

within the executive branch, including 

the Department of Transportation, with 

the funds to operate until the end of this 

fiscal year. That legislation also contains 

a provision in Division I, section 115 

that prohibits the Secretary of 

Transportation from promulgating 

regulations or taking any action 

regarding the scheduling of airline 

operations that involve auctioning rights 

or permission to conduct airline 

operations at such an airport or 

withdrawing a right or permission to 

conduct operations at such an airport 

(except when the withdrawal is for 

operational reasons or pursuant to the 

terms or conditions of such operating 

right or permission). The prohibition is 

limited to this fiscal year. 

At present, operations at LaGuardia 

remain limited by order at 71 scheduled 

operations and three unscheduled 

operations per hour until October 2009.1

The FAA published a proposal on June 

17, 2009 to extend this order until 

October 2010 while the agency 

considers its options with regard to 

managing congestion at the airport on a 

longer-term basis (74 FR 28772). 

Options under consideration would 

provide a means for carriers to either 

commence or expand operations at the 

airport, thereby introducing more 

competition and service options to 

benefit the traveling public. 

On May 14, 2009 the FAA published 

a notice proposing to rescind the 2008 

final rule citing the impact of the 

Omnibus Appropriations Act on the 

rule and the state of the economy in 

general. The comment period closed 

June 15, 2009. The FAA received five 

sets of comments, all of which 

supported rescission of the rule. 

For the reasons stated in the NPRM, 

the FAA has decided to rescind the 

2008 final rule effective immediately. 

The FAA has determined that good 

cause exists for implementing this rule 

immediately. As discussed above, the 

rule has been stayed by court action and 

has not been implemented. Accordingly, 

no further action is required by the 

regulated parties and delaying the 

effective date serves no useful purpose. 

The agency will consider its options 

with regard to managing congestion at 

the airport in ways that provide a means 

for carriers either to commence or 

expand operations at the airport in 

future rulemaking. 

II. Regulatory Notices and Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (19 U.S.C. 4 2531–2533) 

prohibits agencies from setting 

standards that create unnecessary 

obstacles to the foreign commerce of the 

United States. In developing U.S. 

standards, this Trade Act requires 

agencies to consider international 

standards and, where appropriate, to be 

the basis of U.S. standards. Fourth, the 

Unfunded Mandate 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). The 

FAA currently uses an inflationadjusted value of $136.1 million in lieu 

of $100 million. 

The FAA conducted all of these 

analyses when it originally issued the 

2008 final rule. The agency has 

determined the rescission does not 

require any further economic analysis. 

Practically speaking, due to the 

rescission, the status quo remains in 

effect, and neither costs nor benefits 

anticipated by the final rule will accrue. 

Likewise, the paperwork burden 

anticipated under the 2008 final rule 

will not be imposed on any parties. The 

FAA has already determined that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act. Rescission of 

the 2008 final rule likewise imposes no 

such burden. As the rescission of the 

rule does not impose any standard on 

any party, the FAA has assessed the 

potential effect of this rescission and 

determined that it will impose no costs 

on international entities and thus have 

a no trade impact. Nor will the 

rescission impose a Federal mandate 

that may result in an expenditure of 

$100 million or more (adjusted annually 

for inflation) in any one year by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, and 

the requirements of Title II of the 

Unfunded Mandate Reform Act of 1995 

do not apply. 

The rescission of the 2008 final rule 

is a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is 

‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures. 

Accordingly, it has been reviewed by 

DOT and OMB. 

Executive Order 13132, Federalism 

The FAA has analyzed this rescission 

under the principles and criteria of 

Executive Order 13132, Federalism. We 

have determined that this action will 

not have a substantial direct effect on 

the States, on the relationship between 

the national Government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

does not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E, ‘‘Environmental 

Impacts: Policies and Procedures’’ 

identifies FAA actions that are normally 

categorically excluded from preparation 

of an environmental assessment or 

environmental impact statement under 

the National Environmental Policy Act 

(NEPA) in the absence of extraordinary 

circumstances The FAA previously 

determined that the final rule qualified 

for the categorical exclusions identified 

in paragraph 312d ‘‘Issuance of 

regulatory documents (e.g., Notices of 

Proposed Rulemaking and issuance of 

Final Rules) covering administration or 

procedural requirements (does not 

include Air Traffic procedures; specific 

Air traffic procedures that are 

categorically excluded are identified 

under paragraph 311 of this Order)’’ and 

paragraph 312f, ‘‘Regulations, standards, 

and exemptions (excluding those which 

if implemented may cause a significant 

impact on the human environment.’’ It 

has further been determined that no 

extraordinary circumstances exist that 

may cause a significant impact and 

therefore no further environmental 

review is required. The FAA 

documented this categorical exclusion 

determination. A copy of the 

determination and underlying 

documents has been included in the 

Docket for the rule. The FAA has 

determined that the rescission of the 

2008 final rule also qualifies for a 

categorical exclusion since it will have 

no impact on the environment. 


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52134 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this rescission 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

agency has determined that it is not a 

‘‘significant energy action’’ under the 

executive order because while a 

‘‘significant regulatory action’’ under 

Executive Order 12866, it is not likely 

to have a significant adverse effect on 

the supply, distribution, or use of 

energy. 

Availability of Rulemaking Documents 

You can get an electronic copy of 

rulemaking documents using the 

Internet by— 

1. Searching the Federal eRulemaking 

Portal (http://www.regulations.gov); 

2. Visiting the FAA’s Regulations and 

Policies web page at http:// 

www.faa.gov/regulations_policies/; or 

3. Accessing the Government Printing 

Office’s Web page at http:// 

www.gpoaccess.gov/fr/index.html. 

You can also get a copy by sending a 

request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. Make sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

You may access all documents the 

FAA considered in developing this 

rescission from the internet through the 

Federal eRulemaking Portal referenced 

in paragraph (1). 

List of Subjects in 14 CFR Part 93 

Air traffic control, Airports, 

Navigation (air), 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 93—SPECIAL AIR TRAFFIC 

RULES 

■ 1. The authority citation for part 93 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40106, 

40109, 40113, 44502, 44514, 44701, 44719, 

46301. 

Subpart C—[Removed and Reserved] 

■ 2. Remove and reserve Subpart C of 

Part 93. 

Issued in Washington, DC, on October 1, 

2009. 

J. Randolph Babbitt, 

Administrator. 

[FR Doc. E9–24232 Filed 10–8–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 93 

[Docket No. FAA–2008–0517; Notice No. 93– 

93] 

RIN 2120–AJ48 

Congestion Management Rule for John 

F. Kennedy International Airport and 

Newark Liberty International Airport 

AGENCY: Federal Aviation 

Administration (FAA). 

ACTION: Final rule; rescission. 

SUMMARY: The FAA is rescinding the 

final rule Congestion Management Rule 

for John F. Kennedy International 

Airport and Newark Liberty 

International Airport. The final rule 

established procedures to address 

congestion in the New York City area by 

assigning slots for scheduled services at 

John F. Kennedy (JFK) and Newark 

Liberty (Newark) International Airports, 

assigning to existing operators the 

majority of slots at the airports, and 

creating a market by annually 

auctioning off a limited number of slots 

in each of the first five years of the rule. 

The final rule also contained provisions 

for minimum usage, requiring 

reservations for unscheduled 

operations, and withdrawal for 

operational need. The rule was 

scheduled to sunset in ten years. 

DATES: Effective Date: October 9, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

questions concerning this rulemaking, 

contact: Molly W. Smith, Office of 

Aviation Policy and Plans, APO–200, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone (202) 

267–3275; e-mail 

molly.w.smith@faa.gov. For legal 

questions concerning this rulemaking, 

contact: Rebecca MacPherson, FAA 

Office of the Chief Counsel, 800 

Independence Ave., SW., Washington, 

DC 20591; telephone (202) 267–3073; 

e-mail rebecca.macpherson@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking 

The FAA has broad authority under 

49 U.S.C. 40103 to regulate the use of 

the navigable airspace of the United 

States. This section authorizes the FAA 

to develop plans and policy for the use 

of navigable airspace and to assign the 

use that the FAA deems necessary for its 

safe and efficient utilization. It further 

directs the FAA to prescribe air traffic 

rules and regulations governing the 

efficient utilization of thenavigable 

airspace. 

I. Background 

The final rule Congestion 

Management Rule for John F. Kennedy 

International Airport and Newark 

Liberty International Airport was 

published in the Federal Register on 

October 10, 2008 (73 FR 60544) (2008 

final rule). The 2008 final rule 

established procedures to address 

congestion in the New York City area by 

assigning slots at John F. Kennedy (JFK) 

and Newark Liberty (Newark) 

International Airports, assigning to 

existing operators the majority of slots at 

the airports, and creating a market by 

annually auctioning off a limited 

number of slots in each of the first five 

years of the rule. The final rule also 

contained provisions for minimum slot 

usage, withdrawal of slots for 

operational need, and requiring 

reservations for unscheduled 

operations. The rule was scheduled to 

sunset in ten years and added to the 

Code of Federal Regulations December 

9, 2008. The rulemaking was highly 

controversial. The final rule was 

challenged by several parties before it 

could take effect. On December 8, 2008, 

the United States Court of Appeals for 

the District of Columbia Circuit stayed 

the rule. On January 22, 2009, the ATA 

requested the Secretary of 

Transportation, Ray LaHood, withdraw 

the final rule in light of the court’s stay. 

While the regulations were incorporated 

into the Code of Federal Regulations, 

due to the courts ruling, they had no 

force and effect. 

On March 11, 2009, the President 

signed Public Law 111–8, Omnibus 

Appropriations Act, 2009. That 

legislation provides several departments 

within the executive branch, including 

the Department of Transportation, with 

the funds to operate until the end of this 

fiscal year. That legislation also contains 

a provision in Division I, section 115 

that prohibits the Secretary of 

Transportation from promulgating 

regulations or taking any action 

regarding the scheduling of airline 

operations that involve auctioning rights 

or permission to conduct airline 

operations at such an airport or 

withdrawing a right or permission to 

conduct operations at such an airport 

(except when the withdrawal is for 

operational reasons or pursuant to the 


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