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###### Department of Transportation

###### Federal Aviation Administration 

          - 14 CFR Part 93 
          - [Docket No. FAA-2005-19411; SFAR No. 105] 
          - RIN 2120-AI47 

# AGENCY:

Federal Aviation Administration (FAA), DOT. 

# ACTION:

Final rule; extension of expiration date. 

# SUMMARY:

This action extends the expiration date of Special Federal Aviation Regulation (SFAR) No. 105 through October 31, 2008. This action is necessary to maintain the reservation system established for unscheduled arrivals at O'Hare International Airport consistent with the newly adopted limitations imposed on scheduled operations at the airport. 

# DATES:

This final rule is effective on October 28, 2006, and SFAR No. 105 published at 70 FR 39610 (July 8, 2005), as amended at 70 FR 66255 (November 2, 2005), 71 FR 16219 (March 31, 2006), and in this rule, shall remain in effect until October 31, 2008. 

# FOR FURTHER INFORMATION CONTACT:

                        Gerry Shakley, System Operations Services, Air Traffic Organization; Telephone: (202) 267-9424; E-mail:                         *gerry.shakley@faa.gov.*

# SUPPLEMENTARY INFORMATION:

## Availability of Rulemaking Documents 

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 amendment number or docket 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 SBREFA on the Internet at our site,                     *http://www.faa.gov/​regulations_​policies/​rulemaking/​sbre_​act/​.*

## Authority for This Rulemaking 

                    The U.S. Government has exclusive sovereignty over the airspace of the United States.[1]                                          Under this broad authority, Congress has delegated to the Administrator extensive and plenary authority to ensure the safety of aircraft and the efficient use of the Nation's navigable airspace. In this regard, the Administrator is required to assign by regulation or order use of the airspace to ensure its efficient use.[2] 

The FAA's broad statutory authority to manage the efficient use of airspace encompasses management of the nationwide system of air commerce and air traffic control. To ensure the efficient use of the airspace, the FAA must take steps to prevent congestion at an airport from disrupting or adversely affecting the air traffic system for which the FAA is responsible. Inordinate delays of the sort experienced at O'Hare in late 2003 and much of 2004 can have a crippling effect on other parts of the system, causing significant losses in time and money for individuals and businesses, as well as the air carriers and other operators at O'Hare and beyond. This rule facilitates the Agency's exercise of its authority to manage the safe and efficient use of the navigable airspace. 

## Background 

                    Since November 2003, O'Hare has suffered an inordinate and unacceptable number of delays as the result of over-scheduling at the airport, which was also having a crippling effect on the entire National Airspace System. In August 2004, the FAA intervened by ordering a limit on the number of scheduled arrivals at the airport during the peak operating hours of 7 a.m. through 8:59 p.m., Central Time, effective November 1, 2004, so that the system could return to a reasonably balanced level of operations and delay.[3] 

On October 20, 2004, we published a notice of proposed rulemaking (NPRM) seeking public comments on a proposed reservation system for unscheduled arrivals at O'Hare (69 FR 61708). Effective November 1, 2004, and while this rulemaking was pending, we implemented a corresponding voluntary reservation program for unscheduled arrivals using the general procedures followed during Special Traffic Management  Programs and the High Density Rule. 

On July 8, 2005, the FAA published SFAR No. 105, “Reservation System for Unscheduled Arrivals at Chicago's O'Hare International Airport” (70 FR 39610). As stated in SFAR No. 105, the benefits achieved by the FAA's August 18 Order would dissipate if certain operations at the airport remained capped but other operations were permitted to grow. SFAR No. 105 maintained the historical level of unscheduled operations at O'Hare and supported other agency actions at O'Hare that address congestion and delay until additional capacity exists at the airport. 

                    In SFAR No. 105, we discussed that it may be necessary to extend this rule limiting unscheduled arrivals at O'Hare to coincide with a final rule addressing scheduled arrivals, if adopted, or with an extension of the August 2004 Order. The NPRM addressing scheduled arrivals at O'Hare was published on March 25, 2005 (70 FR 15520).                           ( print page 64112)    

                    On November 2, 2005, we extended the expiration date on SFAR No. 105 until March 31, 2006. On March 31, 2006, we extended the expiration date on No. 105 through October 28, 2006,[4]                                          to maintain the current operating environment at the airport while we considered comments to the proposed rule for scheduled arrivals.                 

On August 29, 2006, the FAA published the “Congestion and Delay Reduction at Chicago O'Hare International Airport” final rule. That final rule codifies the limit on scheduled arrivals initially imposed under the FAA's August 2004 Order and will expire on October 31, 2006. The rationale supporting SFAR 105 remains valid, in that the benefits achieved under the August 2004 Order and now expected to continue under the Congestion and Delay Reduction final rule would dissipate if other operations at the airport were permitted to grow. Consequently, it is imperative to maintain the limits imposed by this SFAR, during the same timeframe as the Congestion and Delay Reduction final rule, until additional capacity is available at the airport. 

Therefore, we find that notice and comment procedures under 5 U.S.C. section 553(b) are impracticable and contrary to the public interest. We further find that good cause exists to make this rule effective in less than 30 days. 

## 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. 

## Paperwork Reduction Act 

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted a copy of the new information collection requirements(s) in this final rule to the Office of Management and Budget (OMB) for its review. OMB approved the collection of this information and assigned OMB Control Number 2120-0694. 

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 OMB control number. The OMB Control Number for this information collection is 2120-0694. 

## Executive Order 12866 and DOT Regulatory Policies and Procedures 

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. 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 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). This portion of the preamble summarizes the FAA's analysis of the economic impact of this SFAR extension. 

The Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a rule does not warrant a full evaluation, this order permits a statement to that effect. The basis for the minimal impact must be included in the preamble, if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for that determination follows: 

In the preamble of SFAR No. 105, the FAA stated that we might consider extending SFAR 105 for a time period that would coincide with a final rule limiting scheduled operations. The FAA is extending this SFAR through October 31, 2008, to maintain the current level of operations at O'Hare consistent with the final rule published on August 29, 2006, that addresses scheduled operations at the airport. In the final economic assessment of SFAR No. 105, the FAA found that the rule provided system delay benefits at a minimal cost. The FAA finds that this extension is cost beneficial and will continue to provide system delay benefits at minimal cost. 

## Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies consider flexible regulatory proposals, to explain the rationale for their actions, and to solicit comments. 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 proposed or final 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 proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 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. 

This final rule extends the expiration date of SFAR No. 105, which provides for fewer airport delays at a minimum cost. Just as in the initial and final regulatory flexibility analyses, the FAA expects there will be a substantial number of small entities affected by the extension of this final SFAR, however, the economic effect will continue to be insignificant. Therefore, as the FAA Administrator, I certify that this action will not have a significant economic impact on a substantial number of small entities. 

## Trade Impact Assessment 

                    The Trade Agreements 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                           ( print page 64113)                        appropriate, that they be the basis for U.S. standards.                 

The FAA has assessed the potential effect of the extension of this final rule and determined that it will not have an effect on foreign commerce. 

## Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. L. 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 $120.7 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 have 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. 

## Regulations That Significantly Affect Energy Supply, Distribution, or Use 

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 

## The Amendment 

For the reasons set forth above, the Federal Aviation Administration is amending chapter I 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), 40103, 40106, 40109, 40113, 44502, 44514, 44701, 44719, 46301. 

2. Section 9 of Special Federal Aviation Regulation (SFAR) No. 105 is revised to read as follows: 

## Special Federal Aviation Regulation No. 105—Operating Limitations for Unscheduled Operations at Chicago's O'Hare International Airport 

* * * * *

                        Section 9.                         *Expiration.*                         This Special Federal Aviation Regulation expires at 9 p.m., Central Time, on October 31, 2008, unless sooner terminated.                     

Issued in Washington, DC on October 26, 2006. 

Marion C. Blakey, 

Administrator. 

# Footnotes

1.                             49 U.S.C. 40103(a).                    
        Back to Citation      

2.                             49 U.S.C. 40103(b)(1).                    
        Back to Citation      

3.                             Operating Limitations at Chicago International Airport. Docket No. FAA-2004-16944.                    
        Back to Citation      

4.                             The limits on unscheduled arrivals do not apply on Saturdays.                    
        Back to Citation      

[FR Doc. 06-9000 Filed 10-27-06; 12:36 pm] 

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