60424 Federal Register / Vol. 71, No. 198 / Friday, October 13, 2006 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

14 CFR Part 93 

[Docket No. FAA 2005–20704; Amendment 

No. 93–86] 

RIN 2120–AI87 

Amending the Congestion and Delay 

Reduction at Chicago O’Hare 

International Airport 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final Rule with Request for 

Comment. 

SUMMARY: The FAA published a final 

rule on August 29, 2006, (71 FR 51382), 

to address persistent flight delays from 

overscheduling at O’Hare International 

Airport (O’Hare). This amendment 

revises section 93.25, ‘‘Initial 

assignment of Arrival Authorizations to 

U.S. and Canadian air carriers for 

domestic and U.S./Canada transborder 

service,’’ to direct the FAA to assign 

each U.S. and Canadian conducting 

scheduled service at O’Hare by January 

27, 2007, Arrival Authorizations based 

on their permanent holdings as of the 7- 

day period of October 22 through 

October 28, 2006, as evidenced by the 

FAA’s records. While the FAA is 

making this rule effective without notice 

and comment, the FAA invites the 

public to comment on the amendment. 

The FAA will consider the comments to 

see whether the rule should be further 

modified. 

DATES: Effective October 29, 2006. 

Comment Date: Comments must be 

received on or before December 12, 

2006. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The FAA is adopting this final rule 

without prior notice and prior public 

comment. The Regulatory Policies and 

Procedures of the Department of 

Transportation (DOT) (44 FR 1134; 

February 26, 1979), provide that to the 

maximum extent possible, operating 

administrations for the DOT should 

provide an opportunity for public 

comment on regulations issued without 

prior notice. Accordingly, we invite 

interested persons to participate in this 

rulemaking by submitting such written 

data, views, or arguments, as they may 

desire. We also invite comments relating 

to environmental, energy, federalism, or 

international trade impacts that might 

result from this amendment. Please 

include the regulatory docket or 

amendment number and send two 

copies to the address above. We will file 

all comments received, as well as a 

report summarizing each substantive 

public contact with FAA personnel on 

this rulemaking, in the public docket. 

The docket is available for public 

inspection before and after the comment 

closing date. 

Anyone is able to search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or signing the comment, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78) or you 

may visit http://dms.dot.gov. 

The FAA will consider all comments 

received on or before the closing date 

for comments. We will consider late 

comments to the extent practicable. We 

may amend this final rule in light of the 

comments received. 

Commenters who want the FAA to 

acknowledge receipt of their comments 

submitted in response to this final rule 

must include a preaddressed, stamped 

postcard with those comments on which 

the following statement is made: 

‘‘Comments to Docket No. FAA–2005– 

20704.’’ The postcard will be datestamped by the FAA and mailed to the 

commenter. 

Availability of Final Rule 

You can get an electronic copy using 

the Internet by: 

(1) Searching the Department of 

Transportation’s electronic Docket 

Management System (DMS) Web page 

(http://dms.dot.gov/search); 

(2) Visiting the 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. 

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 

advice about compliance with statutes 

and regulations within its jurisdiction. 

Therefore, any small entity that has a 

question regarding this document may 

contact their local FAA official, or the 

person listed under FOR FURTHER

INFORMATION CONTACT. You can find out 

more about SBRFA on the Internet at 

our site, http://www.faa.gov/

regulations_policies/rulemaking/ 

sbre_act/. 

Justification for Final Rule Without 

Prior Notice 

Based on the circumstances described 

herein, the FAA believes immediate 

regulatory action is warranted. Section 

553 of the Administrative Procedures 

Act (APA) permits an agency to forego 

notice and comment rulemaking when 

‘‘the agency for good cause finds * * * 

that notice and public procedures 

thereon are impracticable, unnecessary 

or contrary to the public interest.’’ The 

FAA finds that the use of notice and 

public procedures for this rule is 

impracticable and contrary to the public 

interest. 

The FAA determined that it was to 

the public interest to modify the August 

18, 2004 Order (the Order) that 

regulated scheduled arrivals at O’Hare 

International Airport in order for 

carriers to modify their schedules for 

competitive or operational reasons 

through various market mechanisms 

prior to the effective date of the August 

29, 2006, final rule. The FAA modified 

the Order after issuing a show-cause 

order that gave the public an 

opportunity to comment on its proposed 

modification, 71 FR 56213 (September 

26, 2006), and considered the responses 

to its show-cause order when it 

determined to adopt the proposed 

modification. Modification of the Order 

requires us to also amend the final rule 

in order to recognize changes in holder 

and operator status of scheduled arrivals 

that may occur during the duration of 

the Order, which affect the assignment 

of Arrival Authorizations on October 29, 

2006, the effective date of the rule. The 

changes in the rule are necessary to 

make the Order’s modification effective. 

We are inviting comments on this rule 

and may modify the rule in response to 

those comments. 

Justification for an Effective Date Less 

Than 30 Days 

Likewise, the FAA has determined 

that the effective date for this final rule 

should coincide with the effective date 

of the August 29, 2006 final rule. 

Ordinarily agencies are required to 

provide an effective date of at lest 30 

days after publication of a rule in the 

Federal Register. An agency need not 

adhere to this requirement if it 

demonstrates that a shorter time frame 

is in the public interest. Since this final 

rule has a direct impact on allocations 

that will be made on the first day of the 


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Federal Register / Vol. 71, No. 198 / Friday, October 13, 2006 / Rules and Regulations 60425 

August 29, 2006 final rule, the FAA has 

determined that it is in the public 

interest for the effective dates of both 

rules to be the same. 

Background 

The FAA issued an order limiting 

capacity at Chicago O’Hare International 

Airport on August 18, 2004. That Order 

resulted from the August 4, 2004, 

scheduling reduction meeting. The 

Order limited arrivals by domestic 

carriers to 88 during most hours of the 

day. The Order was set originally set to 

expire in April 2005 but was extended 

three times to ensure that 

overscheduling would not occur 

between the original expiration of the 

order and the effective date of the rule. 

The Order will expire on October 28, 

2006, and the August 29, 2006 final rule 

will take effect on October 29, 2006 (71 

FR 51382). 

Previously, under the Order, carriers 

were not allowed to make any 

permanent transfers or trades of their 

scheduled arrivals. The FAA, however, 

recently reconsidered this position and 

issued a modification to the Order and 

eliminated the prohibition on trading or 

transferring (buying, selling, or leasing) 

scheduled arrivals for consideration for 

the remaining duration of the Order. 

Because the Order allows permanent 

trades and transfers of arrivals, § 93.25 

must be amended so that when the FAA 

assigns Arrival Authorizations under 

the rule, we recognize changes in 

scheduled arrival holdings that may 

have been made through October 28, 

2006. 

Under § 93.25, Arrival Authorizations 

for O’Hare are assigned (1) based on 

published scheduled service during the 

7-day period of November 1 through 7, 

2004 or (2) if the carrier did not publish 

a scheduled service during the 7-day 

period of November 1 through 7, 2004, 

the scheduled service the carrier is 

entitled to publish under the August 

2004 Order, as long as the carrier is 

conducting scheduled service at O’Hare 

on the effective date of the final rule. 

The following is an example of how this 

initial allocation provision does not 

clearly accommodate transfers that 

could be made during the remaining 

duration of the Order: A carrier sells a 

scheduled arrival in October 2006 

pursuant to modified paragraph 6 of the 

Order. While it is the seller that 

published the scheduled arrival during 

the 7-day period of November 1 through 

7, 2004, it is the purchaser of the 

scheduled arrival who holds the 

authorizations during the final period of 

the Order and at the effective date of the 

Final Rule. Applying § 93.25 as it 

currently exists could lead us to assign 

the Arrival Authorization to the seller in 

accordance with paragraph (a), and to 

the purchaser in accordance with 

paragraph (b). 

Another, more pointed example of 

how the language in § 93.25 could 

impede transactions of the Order, as 

amended, is that of a new entrant carrier 

that receives, purchases or leases 

Arrival Authorizations under the Order, 

but does not actually commence 

scheduled service at O’Hare prior to the 

effective date of the final rule. The 

current initial assignment provision 

under § 93.25(b) requires a carrier to 

conduct scheduled service at O’Hare on 

the effective date of the rule (i.e., 

October 29) in order to receive its 

assignment of Arrival Authorizations. It, 

however, is not reasonable to expect a 

new entrant carrier who could obtain 

scheduled arrivals under the Order as 

late as October 28 to be prepared to 

conduct operations by October 29. The 

FAA has determined that January 27, 

2007, is an appropriate date, because it 

recognized in the August 29, 2006 Final 

Rule that it could reasonably take up to 

90 days to actually conduct operations 

after acquiring an Arrival Authorization. 

Because of modifications to the Order 

and the ability of carriers to change the 

holder and operator status of scheduled 

arrivals prior to the effective date of the 

rule, the FAA also must clarify that in 

applying the definitions of ‘‘new 

entrant,’’ ‘‘limited incumbent’’ and 

‘‘incumbent,’’ the FAA will look to any 

authorizations held or operated by an 

air carrier during the duration of the 

Order. Thus, for example, if a carrier 

were to hold ten scheduled arrivals on 

October 1, 2006 but then sold or 

transferred 4 of those arrivals to another 

carrier on October 15, 2006, the FAA 

will view that carrier has an incumbent 

because, at one time, the carrier held 

more than 8 authorizations to arrive at 

O’Hare. 

Paperwork Reduction Act 

There are no new requirements for 

information collection associated with 

this amendment. 

International Compatibility 

In keeping with U.S. obligations 

under the Convention on International 

Civil Aviation, it is FAA policy to 

comply with International Civil 

Aviation Organization (ICAO) Standards 

and Recommended Practices to the 

maximum extent practicable. The FAA 

determined that there are no ICAO 

Standards and Recommended Practices 

that correspond to these proposed 

regulations. 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

Executive Order 12866, Regulatory 

Planning and Review, directs the FAA 

to assess both he costs and benefits of 

a regulatory change. We are not allowed 

to propose or adopt a regulation unless 

we make a reasoned determination that 

the benefits of the intended regulation 

justify its costs. Our assessment of this 

proposal indicates that its economic 

impact is minimal. Since its costs and 

benefits do not make it a ‘‘significant 

regulatory action’’ as defined in the 

Order, we have not prepared a 

‘‘regulatory impact analysis.’’ Similarly, 

we have not prepared a ‘‘regulatory 

evaluation,’’ which is the written cost/ 

benefit analysis ordinarily required for 

all rulemaking proposals under the DOT 

Regulatory and Policies and Procedures. 

We do not need to do the latter analysis 

where the economic impact of a 

proposal is minimal. 

Economic Evaluation, Regulatory 

Flexibility Determination, Trade Impact 

Assessment, and Unfunded Mandates 

Assessment 

Proposed changes to Federal 

regulations must undergo several 

economic analyses. First, Executive 

Order 12866 directs each Federal agency 

to 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. section 2531–2533) prohibits 

agencies from setting standards that 

create unnecessary obstacles to the 

foreign commerce of the United States. 

In developing U.S. standards, this Trade 

Act also requires agencies to consider 

international standards and, where 

appropriate, use them as the basis of 

U.S. standards. And fourth, the 

Unfunded Mandates Reform Act of 1995 

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.) 

In conducting these analyses, FAA 

has determined this rule (1) has benefits 

which do justify its costs, is not a 

‘‘significant regulatory action’’ as 

defined in the Executive Order and is 

not ‘‘significant’’ as defined in DOT’s 

Regulatory Policies and Procedures; (2) 

will not have a significant impact on a 


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60426 Federal Register / Vol. 71, No. 198 / Friday, October 13, 2006 / Rules and Regulations 

substantial number of small entities; (3) 

reduces barriers to international trade; 

and (4) does not impose an unfunded 

mandate on State, local, or tribal 

governments, or on the private sector. 

These analyses, available in the docket, 

are summarized below. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

of 1980, 5 U.S.C. 601–612, directs the 

FAA to fit regulatory requirements to 

the scale of the business, organizations, 

and governmental jurisdictions subject 

to the regulation. We are required to 

determine whether a proposed or final 

action will have a ‘‘significant economic 

impact on a substantial number of small 

entities’’ as defined in the Act. If we 

find that the action will have a 

significant impact, we must do a 

‘‘regulatory flexibility analysis.’’ 

This final rule directs the FAA to 

assign each U.S. and Canadian 

conducting scheduled service at O’Hare 

by January 27, 2007, Arrival 

Authorizations based on their 

permanent holdings as of the 7-day 

period of October 22 through October 

28, 2006, as evidenced by the FAA’s 

records. Its economic impact is 

minimal. Therefore, we certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. 

Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. The FAA has assessed 

the potential effect of this rulemaking 

and has determined that it will have 

only a domestic impact and therefore no 

effect on any trade-sensitive activity. 

Unfunded Mandates Assessment 

The Unfunded Mandates Reform Act 

of 1995 (the Act), enacted as Public Law 

104–4 on March 22, 1995, is intended, 

among other things, to curb the practice 

of imposing unfunded Federal mandates 

on State, local, and tribal governments. 

Title II of the Act requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed or final agency 

rule that may result in a $100 million or 

more expenditure (adjusted annually for 

inflation) in any one year by State, local, 

and tribal governments, in the aggregate, 

or by the private sector; such a mandate 

is deemed to be a ‘‘significant regulatory 

action.’’ The FAA currently uses an 

inflation-adjusted value of $128.1 

million in lieu of $100 million. 

This final rule does not contain such 

a mandate. Therefore, the requirements 

of Title II of the Unfunded Mandates 

Reform Act of 1995 do not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this final rule 

under the principles and criteria of 

Executive Order 13132, Federalism. We 

determined that this action will not 

have a substantial direct effect on the 

States, or the relationship between the 

national Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Therefore, we 

determined that this final rule does not 

have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E identifies FAA 

actions that are categorically excluded 

from preparation of an environmental 

assessment or environmental impact 

statement under the National 

Environmental Policy Act in the 

absence of extraordinary circumstances. 

The FAA has determined this proposed 

rulemaking action qualifies for the 

categorical exclusion identified in 

paragraph 312f and involves no 

extraordinary circumstances. 

Energy Impact 

The energy impact of the notice has 

been assessed in accordance with the 

Energy Policy and Conservation Act 

(EPCA Pub. L. 94–163), as amended (42 

U.S.C. 6362) and FAA Order 1053.1. It 

has been determined that the final rule 

is not a major regulatory action under 

the provisions of the EPCA. 

List of Subjects in 14 CFR Part 93 

Air traffic control, Airports, Alaska, 

Navigation (air), Reporting and 

recordkeeping requirements. 

The Amendment 

■ In consideration of the above, the 

Federal Aviation Administration 

amends chapter l of Title 14, Code of 

Federal Regulations as follows: 

PART 93—SPECIAL AIR TRAFFIC 

RULES AND AIRPORT TRAFFIC 

■ 1. The authority citation for part 93 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40101, 40103, 

40106, 40109, 40113, 44502, 44514, 44701, 

44719, and 46301. 

■ 2. Amend § 93.25 to revise the last 

sentence in paragraph (a) and by 

revising paragraph (b) to read as follows: 

§ 93.25 Initial assignment of Arrival 

Authorizations to U.S. and Canadian air 

carriers for domestic and U.S./Canada 

transborder service 

(a) * * * A carrier’s total assignment 

under this paragraph shall be reduced 

accordingly by (i) any international 

Arrival Authorizations assigned under 

§ 93.29 (a), and (ii) if the carrier 

transferred or traded for consideration 

any arrival authorizations to another 

carrier under the October 2006 order 

amending the August 18, 2004 order 

and the transferee carrier meets the 

conditions of paragraph (b) of this 

section, the number of such traded or 

transferred authorizations. 

(b) The FAA shall assign an Arrival 

Authorization to each U.S. and 

Canadian air carrier that did not publish 

a scheduled domestic or U.S./Canada 

transborder arrival during the period of 

time referenced in paragraph (a) of this 

section for arrivals for which the carrier: 

(1) Was entitled to under the August 

18, 2004, ‘‘Order Limiting Scheduled 

Operations at O’Hare International 

Airport,’’ as amended, and is 

conducting scheduled service at O’Hare 

as of the effective date of this rule; or 

(2) Has initiated scheduled service or 

received FAA approval of a trade or 

transfer under the August 18, 2004, 

‘‘Order Limiting Scheduled Operations 

at O’Hare International Airport,’’ as 

amended, as long as operations 

conducted under the Arrival 

Authorization begin no later than 

January 27, 2007. 

* * * * * 

Issued in Washington, DC, on October 6, 

2006. 

Marion C. Blakey, 

Administrator. 

[FR Doc. 06–8651 Filed 10–10–06; 11:49 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

21 CFR Part 1300 

[Docket No. DEA–288F] 

RIN 1117–AB02 

Technical Correction of Two Anabolic 

Steroid Names 

AGENCY: Drug Enforcement 

Administration (DEA), U.S. Department 

of Justice. 

ACTION: Final rule. 


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