[Federal Register: October 13, 2006 (Volume 71, Number 198)]
[Rules and Regulations]
[Page 60424-60426]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13oc06-5]
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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://
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/[fxsp0
]regulations--policies[fxsp0]/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
[[Page 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, 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
[[Page 60426]]
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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