[Federal Register Volume 71, Number 198 (Friday, October 13, 2006)]
[Rules and Regulations]
[Pages 60424-60426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8651]



[[Page 60424]]

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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.

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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 date-stamped 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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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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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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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

0
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

0
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.


0
2. Amend Sec.  93.25 to revise the last sentence in paragraph (a) and 
by revising paragraph (b) to read as follows:


Sec.  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 Sec.  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]
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