Federal RegisterVol. 74_ No. 250Thursday_ December 31_ 2009

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					                                          69272            Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations

                                            Issued in College Park, Georgia, on                    Authority for This Rulemaking                         number of NMACs between Luke F–16s
                                          December 9, 2009.                                                                                              and VFR aircraft indicates VFR pilots
                                                                                                     The FAA’s authority to issue rules
                                          Barry A. Knight,                                                                                               are not avoiding this area of
                                                                                                   regarding aviation safety is found in
                                          Acting Manager, Operations Support Group,                Title 49 of the United States Code.                   concentrated student jet transition
                                          Eastern Service Center, Air Traffic
                                                                                                   Subtitle I, section 106, describes the                training.
                                          Organization.                                                                                                     Operational problems affecting safety
                                                                                                   authority of the FAA Administrator,
                                          [FR Doc. E9–30288 Filed 12–30–09; 8:45 am]                                                                     in the Luke terminal airspace area are
                                                                                                   including the authority to issue, rescind,
                                          BILLING CODE 4910–13–P                                                                                         acute and include complex and
                                                                                                   and revise regulations. Subtitle VII,
                                                                                                                                                         voluminous traffic, aircraft congestion,
                                                                                                   Aviation Programs, describes, in more
                                                                                                                                                         terrain that constrains aircraft
                                                                                                   detail, the scope of the agency’s                     operations, and the uncontrolled mix of
                                          DEPARTMENT OF TRANSPORTATION
                                                                                                   authority.                                            instrument flight rules (IFR) and VFR
                                          Federal Aviation Administration                            This rulemaking is promulgated                      traffic. Luke RAPCON traffic counts
                                                                                                   under the authority described in subtitle             show a mix of military F–16 aircraft
                                          14 CFR Part 93                                           VII, part A, subpart I, chapter 401,                  operations, GA traffic operations, and
                                                                                                   section 40103(b), which allows the                    some civil air carrier operations. F–16
                                          [Docket No.: FAA–2008–1087; Amendment                    Administrator to regulate the use of the              aircraft operate at significantly higher
                                          No. 93–95]                                               navigable airspace necessary to ensure                airspeeds than civil GA traffic, normally
                                                                                                   the safety of aircraft and the efficient              200+ knots faster on arrival and 250+
                                          RIN 2120–AJ29                                            use of airspace. Moreover, subtitle VII,              knots faster on departure. This
                                                                                                   part A, subpart III, chapter 447, section             difference in airspeed creates extreme
                                          Establishment of a Special Air Traffic                   44701(c) authorizes the Administrator to
                                          Rule in the Vicinity of Luke Air Force                                                                         closure rates between converging F–16
                                                                                                   regulate air commerce in a way that                   and GA aircraft. In addition, complexity
                                          Base (AFB), AZ                                           helps to reduce or eliminate the                      is increased because GA pilots often do
                                          AGENCY: Federal Aviation                                 possibility or recurrence of accidents in             not detect all the aircraft in a military
                                          Administration (FAA), DOT.                               air transportation. This change is within             flight formation. Student pilot training
                                                                                                   the scope of our authority and is a                   in the F–16 aircraft, combined with
                                          ACTION: Final rule.
                                                                                                   reasonable and necessary exercise of our              student flight training in GA aircraft,
                                          SUMMARY: This rule establishes a Special                 statutory obligations.                                also increases the potential for a near
                                          Air Traffic Rule (SATR) in the vicinity                  Background                                            midair collision.
                                          of Luke Air Force Base (Luke) which                                                                               The average number of conflicts
                                          requires aircraft operating under visual                    Luke Air Force Base (Luke) is home                 between controlled and uncontrolled
                                          flight rules (VFR) to establish two-way                  to the 56th Fighter Wing, the United                  aircraft has increased since 2000. In the
                                          radio communication with the Luke                        States Air Force’s (USAF’s) largest                   five year period from 2000 to 2005,
                                          Radar Approach Control (RAPCON)                          fighter wing. Since 1941, Luke has                    there were 76 NMACs reported. In the
                                          prior to entering the SATR area and                      trained pilots and other aircrew                      two year period from 2006 to 2008, 58
                                          maintain communication while                             members for America’s frontline fighter               NMACs were reported. Aircraft track
                                          operating in the area. The SATR is                       aircraft. Today, over 200 F–16s conduct               data modeling tools indicate a
                                          active during official daylight hours                    more than 201,000 annual operations,                  significant volume of GA traffic crossing
                                          Monday through Friday while Luke                         and most of these operations are for                  Luke’s primary instrument final
                                          pilot flight training is underway, as                    student training.                                     approach course. This data indicates a
                                          broadcast on the local Automatic                            Situated beneath the Phoenix Class B               direct correlation between NMAC
                                          Terminal Information Service (ATIS),                     Airspace Area, the Luke terminal area                 events and the proximity/flight patterns
                                          and other times by Notice to Airmen                      consists of Class D airspace. The                     of GA traffic operating out of DVT. Data
                                          (NOTAM). This action is necessary to                     Phoenix Deer Valley Airport (DVT), (the               track analysis also shows GA traffic
                                          address reported near midair collisions                  nation’s third busiest general aviation               from Goodyear Airport (GYR) and
                                          (NMACs) in the area around Luke and                      (GA) airport in 2004 and second busiest               Glendale Airport (GEU) crossing the
                                          will help reduce the potential for midair                in 2008), is within 5 nautical miles of               final approach course and departure
                                          collisions in the vicinity of Luke.                      the Luke terminal airspace. There are                 path for Runway 21 at Luke. For
                                                                                                   two flight schools and two fixed base                 additional information regarding the
                                          DATES: This amendment is effective May
                                                                                                   operators located at DVT, and the flight              Luke data track analysis go to: http://
                                          6, 2010.                                                 schools conduct training in the vicinity    
                                          FOR FURTHER INFORMATION CONTACT: Ken                     of Luke.                                              headquarters_offices/ato/service_units/
                                          McElroy, Airspace and Rules Group,                          Alert Area A–231 is located adjacent               systemops/aaim/organizations/
                                          Office of System Operations Airspace                     to, and west of, Luke. Pilots conduct a               airspace_rules/.
                                          and AIM, AJR–33 Federal Aviation                         large volume of jet training operations                  There are a number of prominent
                                          Administration, 800 Independence                         in Alert Area A–231. The USAF requires                landmarks the GA community uses
                                          Avenue, SW., Washington, DC 20591;                       military pilots to establish                          when operating VFR. Two of these
                                          telephone: (202) 267–8783. E-mail:                       communication with the Luke Radar                     landmarks are the Glendale Arrowhead
                                 For legal                       Approach Control (RAPCON) and to be                   Mall and the Peoria Power Plant/
                                          questions concerning this final rule                     alert when flying in Alert Area A–231.                Substation, which are close to the Luke
                                          contact the Office of Chief Counsel,                     Pilots of civil aircraft are not required to          Runway 21 final approach course. Luke
                                          Regulations Division, Air Traffic &                      establish communication with the Luke                 F–16s use the Peoria Power plant as a
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                                          Certification of Airman Law Branch,                      RAPCON during transit. The USAF                       visual aid for turning to the final
                                          AGC–240 Federal Aviation                                 Flight Safety Office at Luke points out               approach course when conducting
                                          Administration, 800 Independence                         that reported NMACs are approximately                 formation landings. Also, many of the
                                          Avenue, SW., Washington, DC 20591;                       3 per quarter of a year, and each                     flight schools use the Proving Grounds,
                                          telephone: (202) 267–3073.                               occurrence affects multiple aircraft in               located approximately 5 miles north of
                                          SUPPLEMENTARY INFORMATION:                               the same formation. The significant                   the Luke Auxiliary Field, for conducting

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                                                           Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations                                        69273

                                          practice aircraft operations. Aircraft                   notations about avoiding the Luke area                not equipped with an operational radio
                                          operations in the vicinity of the Proving                during its peak operational hours.                    may make advance transit arrangements
                                          Grounds can conflict with the radar                        After analyzing the petition and the                with the air traffic control (ATC) facility
                                          pattern for the Luke Auxiliary Field.                    initial response of the aviation                      at Luke AFB, which is consistent with
                                          Use of these prominent VFR landmarks                     community it generated, the FAA                       the NPRM. When discussing the ATIS,
                                          by GA traffic and others results in                      determined that proposing a SATR in                   and in section 93.176 of this final rule,
                                          conflicts with the IFR and VFR patterns                  the area had the potential to                         the FAA has substituted the word
                                          of Luke F–16s.                                           significantly reduce safety problems in               ‘‘broadcast’’ for ‘‘advertised.’’ When the
                                             Over the years, the USAF has been                     the vicinity of Luke. However, instead                Luke NPRM was published (73 FR
                                          educating the local aviation community                   of requiring an air traffic clearance to              55792, September 26, 2008) the FAA
                                          about serious operational problems,                      operate in the area, the FAA assessed                 proposed to codify it as subpart N to
                                          including air traffic congestion, and the                that a simple two-way radio                           part 93. Subsequently, another final rule
                                          uncontrolled mix of IFR and VFR traffic,                 communication requirement for pilots                  was published (73 FR 60544, October
                                          which impact safety around Luke. At                      operating around Luke would reduce                    10, 2008) that used Subpart N.
                                          first, the USAF addressed these                          the NMAC risk.                                        Therefore, the Luke subpart is now
                                          problems by making pilots at local                                                                             designated as Subpart O to part 93.
                                                                                                   Summary of the NPRM
                                          airports and flight schools aware of the
                                          issue and urging aircraft operators to use                  On September 26, 2008, a notice of                 Discussion of the Final Rule
                                          various traffic services that could make                 proposed rulemaking (NPRM) was                           The FAA is amending Title 14 Code
                                          operations in the area safer. Although                   published (73 FR 55788) which                         of Federal Regulations (14 CFR) part 93
                                          the ongoing educational efforts had a                    proposed establishment of a Special Air               to establish a SATR in the vicinity of
                                          temporary impact on the number of                        Traffic Rule, in the vicinity of Luke Air             Luke that requires aircraft operating
                                          NMACs and led to a slight reduction of                   Force Base (AFB), AZ. A technical                     under VFR to establish two-way radio
                                          near misses, there continues to be an                    correction was issued (73 FR 60996)                   communication with the Luke RAPCON
                                          average of one reported NMAC per                         October 15, 2008, to correct the docket               prior to entering the SATR area and
                                          month. The USAF finally concluded                        number and extend the comment                         maintain communication while
                                          that safety problems at Luke were so                     period. The FAA proposed that                         operating in the area.
                                          acute they sought a rulemaking solution.                 operators conducting VFR operations                      A direct communication requirement
                                             Prior to filing a petition with the FAA,              establish two-way radio communication                 is a cost-effective solution and does not
                                          the USAF provided its rulemaking                         with the Luke RAPCON prior to                         impose a significant burden on aircraft
                                          petition to interested airspace user                     entering the Luke SATR area, and                      operating in, or transiting, the airspace
                                          groups, elected officials, and others. The               maintain communication while                          around Luke. It allows the GA
                                          USAF submitted its petition for                          operating in the area, at certain times,              community unrestricted access to the
                                          rulemaking to the FAA on July 21, 2006,                  and otherwise by NOTAM. The FAA                       area for student pilots enrolled at GA
                                          along with the comments it received                      sought to address reported NMACs in                   flight schools in the vicinity of Luke.
                                          and USAF responses. The USAF                             the area around Luke and to reduce the                The alternative is to continue to rely on
                                          petitioned the FAA to establish a SATR                   potential for NMACs. Interested parties               the Air Force’s educational and
                                          in the vicinity of Luke which would                      were invited to participate in the                    awareness program, which has not
                                          require pilots, among other things, to                   rulemaking effort by submitting written               resulted in a significant reduction in the
                                          obtain an air traffic clearance to operate               comments on the proposal, and the                     number of conflicts and NMACs.
                                          in the area (FAA–2006–25459–1). The                      comment period closed December 15,                       Currently the Luke RAPCON provides
                                          USAF believed the growing amount of                      2008. An analysis of the comments and                 radar advisory services to GA aircraft on
                                          VFR traffic combined with a high                         the FAA’s response are in the                         request, but safety can be significantly
                                          volume of military air traffic, as well as               ‘‘Discussion of the Final Rule’’ section.             heightened with the full participation of
                                          the number of NMACs occurring in the                                                                           all aircraft operating within the vicinity
                                                                                                   Summary of the Final Rule                             of the Luke terminal area in a
                                          Phoenix West Valley, fully justified
                                          such an action. Local mayors, Members                      This action establishes a Special Air               communication requirement. A
                                          of Congress, and U.S. Senators, as well                  Traffic Rule in the vicinity of Luke                  communication requirement provides
                                          as many aviation organizations, such as                  mandating a two-way communication                     an additional safety margin and
                                          Pan Am International Flight Academy,                     requirement for VFR operators effective               increases the protection of both military
                                          Westwind School of Aeronautics,                          upon publication of the Phoenix (PHX)                 and GA operations by providing Luke
                                          Oxford Airline Training Center, Airline                  Terminal Area Chart and the PHX VFR                   controllers advance notice of VFR
                                          Training Center Arizona, Inc., and                       Sectional Aeronautical Charts                         aircraft transiting or operating within
                                          WESTMARC (a regional coalition of                        scheduled for May 6, 2010. The FAA                    the designated area. When pilots
                                          business, government, education and                      has determined that additional                        operating VFR take advantage of the
                                          community organizations), endorsed the                   safeguards for flight operations are                  available advisory services, they are
                                          petition and strongly supported the                      necessary in the vicinity of Luke and                 issued timely traffic advisories and
                                          action.                                                  this rule is necessary to reduce the                  assistance while in the area.
                                             The Aircraft Owners and Pilots                        potential for midair collisions between                  Luke will provide continuous
                                          Association (AOPA) and local pilot                       military and civilian pilots operating                information on the status of the SATR
                                          associations, including the Deer Valley                  under VFR.                                            for flight crews both in flight and on the
                                          Pilots Association (DVPA) and the                          The final rule and the proposed rule                ground via landline and ATIS. This rule
                                          Arizona Pilots Association (APA),                        are similar except the FAA will move                  allows pilots flying VFR to access the
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                                          responded to the USAF by opposing any                    the east boundary of the Luke Terminal                active SATR area once communication
                                          action that would require air traffic                    area approximately one mile to the west               is established with Luke RAPCON. A
                                          clearances to operate in the area. The                   in the vicinity of the Arrowhead Mall to              clearance is not required. The
                                          associations maintained the near midair                  accommodate straight in arrivals for                  acceptance of flight following services
                                          problem could be solved through more                     runway 19 at GEU. The FAA is                          by VFR aircraft is recommended, but not
                                          education and more robust charting                       clarifying that only operators of aircraft            required. Aircraft not equipped with an

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                                          69274            Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations

                                          operational radio can make alternate                     user comments in developing the SATR,                 two-way radio contact with ATC prior
                                          arrangements by contacting the ATC                       better serving the requirements and                   to entering the area and to maintain
                                          facility at Luke AFB in advance of the                   safety needs of all airspace users.                   contact while in the area. The SATR
                                          proposed operation.                                        The FAA does not agree. The FAA                     offers flight following services to pilots
                                             The FAA received 95 comments in                       reviewed and considered all comments                  on a strictly voluntary basis. Conversely,
                                          response to the NPRM. Of the 95                          and recommendations in the                            Class C services include among other
                                          comments received, 78 did not identify                   preparation of the NPRM and this final                things, separation, traffic advisories and
                                          any specific issue, but were critical of                 rule. While developing the proposal, the              safety alerts between IFR and VFR
                                          the NPRM in general. Some commenters                     FAA specifically considered input from                aircraft, and mandatory traffic
                                          had concerns regarding additional                        AOPA, and other local pilot                           advisories and safety alerts between
                                          airspace complexity, while others felt                   associations, such as the DVPA and the                VFR aircraft. Class C services are
                                          the SATR created proficiency-training                    APA. These organizations stressed pilot               required for all aircraft operating within
                                          issues and added frequency change                        education, and more robust charting,                  Class C airspace. The NPRM did not
                                          requirements. Seventeen commenters,                      with no clearance or flight plan                      propose to establish, and this final rule
                                          including Members of Congress and                        requirements. The FAA agreed that a                   does not establish, Class C airspace at
                                          local mayors support the proposal as a                   clearance requirement was too                         Luke or within the SATR area.
                                          necessary tool to reduce the potential                   restrictive, and determined that a                       The SATR does not define a new
                                          for NMACs. Below is a more detailed                      communication requirement would                       category of airspace, it is a procedural
                                          discussion of the rule broken down into                  provide the adequate level of additional              requirement for the management of
                                          issue areas addressed by commenters. It                  safety to increase protection of both                 aircraft by ATC. The Luke SATR
                                          reflects the comments we received and                    military and GA aircraft.                             requires direct communication with
                                          the FAA’s response.                                        The FAA determined that reliance on                 Luke RAPCON before entry and while
                                                                                                   nonrulemaking alternatives to provide
                                          Data and Nonrulemaking Solutions                                                                               operating in the designated area. The
                                                                                                   an acceptable level of safety is no longer
                                             The Aircraft Owners and Pilot’s                                                                             designated area and procedures will be
                                                                                                   appropriate. The FAA does not agree
                                          Association (AOPA) questioned the                                                                              contained in 14 CFR part 93 which
                                                                                                   that additional education, outreach,
                                          currency of the USAF NMAC                                                                                      prescribes special air traffic rules
                                                                                                   working groups and more robust
                                          information. AOPA asserted that the                                                                            necessary for the safe and efficient
                                                                                                   charting would provide an adequate
                                          ‘‘USAF data was obsolete and stale, and                                                                        management of air traffic. The SATR
                                                                                                   level of additional safety. As discussed
                                          was measured before industry efforts to                                                                        area is in no way similar to restricted
                                                                                                   in the NPRM and the background
                                          alleviate the problem.’’                                                                                       airspace as defined in 14 CFR part 73.
                                                                                                   section of this final rule, the USAF has
                                             The FAA does not agree. Between                                                                             Restricted airspace is established to
                                                                                                   conducted education and outreach
                                          2000 and 2005 the aviation community                     activities with the affected aviation                 confine or segregate activities
                                          and the USAF were working to alleviate                   users over the years. In the last three               considered hazardous to
                                          the NMAC problems in the vicinity of                     years, the USAF has held numerous                     nonparticipating aircraft, and within
                                          Luke and there were 76 reported                          meetings in the Phoenix Valley                        which flight is not prohibited, but is
                                          NMACs. Of these NMACs, 84% of the                        informing the public of its growing                   subject to restriction. The SATR is not
                                          documented occurrences were between                      safety concerns. These concerns center                sterile nor does it prohibit or limit
                                          F–16 and GA aircraft and none of the                     around potential conflicts between                    aircraft access, so long as the aircraft
                                          GA aircraft were in communication with                   military and GA VFR traffic transiting                operator complies with simple
                                          the Luke RAPCON. In December 2008,                       the Luke area and conflicts between                   communications requirements of this
                                          the FAA and the USAF initiated a                         aircraft turning on final approach to                 rule. It was developed to enhance safety
                                          review of 58 NMAC reports on file at the                 Runway 21. As discussed previously,                   and awareness within an area where
                                          Luke safety office which occurred                        the FAA assessed that a rulemaking                    high volumes of military and GA air
                                          during 2006 to 2008. The review                          solution was required to address the                  traffic exist. Both the NPRM and the
                                          disclosed 10 NMACs in 2006, 25 in                        number of NMACs, the high volume of                   final rule continue to allow GA access
                                          2007, and 23 in 2008; 90%, 76% and                       military and GA activity in the area, and             to the SATR area and the FAA neither
                                          86% respectively were between F–16                       to reduce the NMAC risk.                              proposed, nor implemented, restricted
                                          and GA aircraft. Because of the                                                                                or sterile airspace.
                                          significant number of NMACs and the                      Size, Boundaries and Classification                      AOPA, the APA, and other
                                          high concentration of mixed high                            The FAA received comments                          commenters stated the proposed SATR
                                          performance military and GA aircraft in                  addressing the Luke SATR area. AOPA                   would derogate rather than improve
                                          the same area, the FAA continues to                      and the Aviation Safety Advisory Group                safety. Specific concerns were pilots
                                          have a safety concern.                                   of Arizona stated that the Luke SATR                  concentrating on their instruments and
                                             AOPA, pilots associations, and others                 closely resembles Class C airspace                    placing too much reliance upon ATC
                                          continue to oppose a rulemaking                          communication requirements for VFR                    rather than ‘‘see and avoid,’’ and the
                                          solution and maintain that education,                    aircraft entry, but may not meet the                  compression of air traffic into narrow
                                          more working groups and additional                       established criteria to create Class C                corridors. Commenters claimed that
                                          study should be used. Commenters                         airspace. Others stated that the airspace             compression may increase the impact of
                                          suggested the FAA form working groups                    is nonstandard or a new category of                   aircraft noise on underlying
                                          comprised of representatives from                        airspace. One commenter stated that the               communities and noise sensitive areas.
                                          government as well as aviation                           FAA was creating, in effect, sterile or               Commenters stated that the SATR area
                                          communities, to study problems that the                  restricted airspace.                                  design is too ‘‘chopped up’’ with the
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                                          proposed SATR is expected to solve.                         The FAA does not agree. Luke does                  floor varying in altitudes across
                                          Most of these commenters believe this                    not meet the enplaned or instrument                   different sub-areas, and at times,
                                          group should be actively involved in the                 approach requirements for Class C                     increased ‘‘funneling’’ of aircraft into
                                          development of workable solutions. One                   airspace. The only similarity between                 small vertical corridors at lower, and
                                          aviation organization thought the user                   the SATR and Class C airspace is the                  less safe, altitudes over populated areas
                                          forums would pay specific attention to                   requirement for operators to establish                and terrain.

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                                                           Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations                                        69275

                                             The FAA does not agree. Direct and                    FAA determined that relocating the                    increasing the concentration of traffic in
                                          continuous communication                                 boundary would not impact the final                   this area. He suggested raising the floor
                                          requirements for aircraft operating in                   approach path to runway 21 at Luke. In                to 4,000′ and the ceiling to 5,000′ to
                                          the vicinity of the Luke terminal                        this final rule the FAA has moved the                 allow aircraft to avoid the SATR area by
                                          airspace area would reduce the number                    SATR boundary approximately 1 mile                    operating at 3,500′ and 4,500′ below it.
                                          of conflicts and the NMAC potential.                     west of the Arrowhead Mall to protect                    The FAA does not agree. First, very
                                          Continuous communication provides                        the straight-in approach to runway 19 at              few aircraft currently circumnavigate
                                          controllers with the ability to exchange                 GEU. The FAA will not move the                        the airspace around Luke and a large
                                          timely and accurate aircraft position                    boundary 2 miles to the west, as                      percentage contact Luke and take part in
                                          information for both military and civil                  suggested by the comment, because the                 the flight following services offered by
                                          pilots operating in the area thus                        airspace is necessary to protect the final            Luke RAPCON. Although there may be
                                          enhancing the pilots’ see and avoid                      approach path to runway 21.                           an increase in the number of aircraft
                                          capability.                                                 Another commenter suggested                        that would circumnavigate the SATR,
                                             The SATR area uses prominent                          eliminating the proposed SATR area                    the FAA does not expect the increase to
                                          geographical landmarks to define the                     and expanding the airport traffic area                be significant or burdensome. Second,
                                          separate sub-areas that comprise the                     and control zone to the northwest by 5                aircraft operators can establish
                                          whole configuration. These sub-area                      miles. The FAA does not agree. In 1993,               communication and operate within the
                                          boundaries are depicted on both the                      the FAA reclassified the regulatory                   SATR rather than navigate out of their
                                          PHX Terminal Area Chart and the VFR                      structure of the National Airspace                    way to avoid it. The SATR area was
                                          Sectional Aeronautical Chart to assist                   System (NAS). This was done primarily                 designed to protect aircraft on an
                                          the pilot with basic navigation. A                       to more closely align the airspace in the             instrument approach to Runway 21L/R.
                                          uniform floor was considered and                         United States along International Civil               The floor of this area was designated at
                                          rejected because it would have required                  Aviation Organization (ICAO)                          3,000′ which provides a 500′ buffer
                                          a larger area than was needed to protect                 guidelines. The airspace previously                   between the lowest altitude in use on
                                          aircraft arriving and departing Luke.                    identified as Airport Traffic Areas and               the instrument approach and any
                                             Regarding perceived issues of                         Control Zones were reclassified at that               aircraft transiting or operating just
                                          compression or ‘‘funneling’’ of air                      time to Class D Airspace Areas. FAA                   beneath the SATR.
                                          traffic, pilots have two alternatives.                   Order 7400.2G, Procedures for Handling                   Another commenter suggested
                                          First, pilots may participate in SATR                    Airspace Matters, provides guidance on                modifying or eliminating the segment of
                                          services and thus not be limited to                      the design of Class D airspace                        the proposed SATR labeled West Sector
                                          flying below the base of each area.                      nationally. It states that vertical and               North which has a floor of 3,000′ and a
                                          Second, a pilot may deviate 2,000 feet                   lateral limits should be standardized                 ceiling of 6,000′. He stated that this area
                                          horizontally from the obstacle or                        and shall be designed to contain IFR                  intrudes into rising terrain in the
                                          populated area. FAA Advisory Circular                    arrival operations. The current Luke                  northwest and would force aircraft into
                                          (AC) 91–36D, Visual Flight Rules (VFR)                   Class D airspace area varies from 4.4                 the foothills if pilots are trying to under
                                          Flight Near Noise-Sensitive Areas,                       miles to a 5.6 mile radius of Luke and                fly this area. The FAA does not agree.
                                          recommends flights remain above 2,000                    is configured in accordance with the                  This area was designed to protect the
                                          feet MSL, but the AC provisions do not                   above mentioned guidelines. Adding an                 Luke auxiliary field traffic pattern for
                                          apply when they conflict with                            additional 5 miles to the existing Class              aircraft conducting touch and go
                                          regulations, ATC instructions, or when                   D airspace area is not supported by                   landings. The northwest point of this
                                          a pilot believes operating below 2,000                   current design criteria, and has no                   area is the junction of Carefree Highway
                                          feet is necessary for the safety of the                  bearing on the scope of issues addressed              and US60. The area is remote and there
                                          flight. The SATR area does not require                   by the SATR area.                                     were not many landmarks that could be
                                          a clearance and was not conceived or                        Another commenter stated that the                  used as visual references. A small
                                          designed to force aircraft into                          FAA should establish VFR corridors                    portion of this area on the northern side
                                          circumnavigating the area but pilots can                 through the SATR area and allow pilots                intrudes into rising terrain. Pilots may
                                          circumnavigate the area if necessary.                    in the VFR corridors to operate without               avoid the rising terrain by establishing
                                          The area is not restrictive or prohibitive               establishing and maintaining two-way                  contact with Luke RAPCON and
                                          and does not force aircraft into an                      radio communication with the Luke                     transiting the SATR or circumnavigating
                                          unsafe operating mode. Pilots who                        RAPCON. The FAA does not agree. The                   the area.
                                          choose not to contact the Luke RAPCON                    USAF sought an improvement in air                        Another commenter stated that the
                                          and avoid the SATR area do so                            safety when it petitioned the FAA to                  2,100′ floor of the SATR area just west
                                          voluntarily.                                             address the problem of NMACs in the                   of GYR does not allow transition for
                                             The FAA received comments                             proposed SATR area. The suggestion                    aircraft wishing to overfly GYR Class D
                                          suggesting changes to the boundaries,                    that pilots should be allowed to                      or aircraft departing/arriving GYR
                                          floors and ceilings of the Luke SATR.                    continue their current practice of not                wishing to avoid the SATR area. The
                                          One commenter stated that the northeast                  contacting the Luke RAPCON and not                    FAA is establishing the 2,100′ floor to
                                          corner of the proposed SATR area is                      exchanging position information would                 protect Luke aircraft departing/arriving
                                          likely to cause unintentional incursions                 negate the basic purpose of the SATR,                 runway 03 L/R. Aircraft that do not
                                          by aircraft executing a straight-in                      which is to require two-way                           wish to contact Luke RAPCON for use
                                          approach to Runway 19 at GEU. These                      communication with Luke RAPCON to                     of the SATR area will have to
                                          approaches typically start over the                      improve safety.                                       circumnavigate this area. Letters of
                                          Arrowhead Mall which is very close to                       Another commenter believed that the                Agreement (LOA) will be entered into
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                                          the northeast corner of the proposed                     segment of the proposed SATR area                     among Luke RAPCON and GYR, DVT
                                          SATR area.                                               west of DVT and north of Luke that has                and GEU Towers. The LOA will outline
                                             The FAA shares this concern and                       a floor of 3,000′ and a ceiling of 4,000′,            special operating procedures to create a
                                          asked the USAF to reevaluate the                         will encourage pilots of aircraft                     seamless environment for GA
                                          proposed boundary in the vicinity of the                 departing or arriving GEU and/or DVT                  operations. Departure and arrival
                                          Arrowhead Mall. The USAF and the                         to under fly or circumnavigate                        procedures to and from the SATR

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                                          69276            Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations

                                          boundaries and the airports, will be                     ATC for entry into the SATR area will                    Commenters had concerns about the
                                          referenced in the LOA. These                             be handled on a first-come, first-serve               Luke SATR’s hours of operation. One
                                          procedures will allow GA operators to                    basis and as quickly as the controller                stated that the proposed hours of
                                          proceed on course while movement                         can safely provide the service. Currently             operation were not clear. Another
                                          information is passed between ATC                        a large percentage of VFR operators                   observed that the Luke RAPCON could
                                          facilities. This will negate abrupt                      contact Luke and exchange position                    open and close for just one flight and
                                          frequency changes and not having                         information. Though there may be an                   asked whether the SATR would be
                                          enough time to establish two-way                         increase in the number of aircraft                    activated for that situation. Another
                                          communication with the RAPCON prior                      establishing communication, the FAA                   noticed that the SATR was not active at
                                          to entering the SATR.                                    does not expect the increase to be                    night. Others were concerned about
                                             One of the commenters was                             significant.                                          access to the SATR area when the Luke
                                          concerned that the SATR area would                          FAA’s ATC experience has been that                 RAPCON is not open.
                                          infringe on, or virtually eliminate,                     frequency congestion does occur at peak                  The NPRM and the final rule both
                                          airspace used today for GA pilot                         demand periods at most major airports.                state the Luke SATR is designated
                                          training. That is not the case. The SATR                 When such congestion occurs, resource                 during official daylight hours Monday
                                          area does not replace, eliminate, or                     adjustments are made on-site. Such                    through Friday, during flight training
                                          change any of the existing airspace                      adjustments include resectoring and                   operations. The area may be activated at
                                          structure or operating rules; it only adds               assigning selected personnel. The USAF                other times by NOTAM when necessary
                                          a requirement for two-way radio                          recognizes the potential exists for a need            to support Luke flight training. Status of
                                          communication with Luke RAPCON                           to establish additional controller                    Luke flight training activities will be
                                          prior to entry and while in the area. The                positions if delays during peak demand                broadcast on Luke, DVT, GYR, and GEU
                                          SATR does not prohibit or restrict                       become a problem, and will respond                    local ATIS frequencies. The Luke ATIS
                                          aircraft access for any purpose including                accordingly.                                          also can be contacted via a local
                                          transit and/or training.                                    Luke’s existing radio coverage is                  telephone call. Luke does occasionally
                                                                                                   sufficient to cover the area defined in               open outside of normal hours to handle
                                          RAPCON Staffing and SATR Area                            the SATR including the ATIS. The                      VIP or other transient aircraft
                                          Hours of Operation                                       USAF has installed additional                         movement, but the SATR area will not
                                             Several commenters addressed                          transceivers on the White Tank                        be activated routinely for those limited
                                          RAPCON staffing, communication                           Mountains radio relay site that enhance               situations.
                                          coverage and access to the area. The                     the current radio coverage on the                        The SATR area is not necessary
                                          APA and others do not believe that Luke                  existing frequencies due to the height                during nighttime operations primarily
                                          RAPCON can maintain adequate staffing                    and placement of the new transceivers.                for three reasons. First, Luke’s primary
                                          to provide communication coverage                           Some commenters stated that the                    auxiliary airfield is closed at night
                                          and, as a result, GA aircraft will be                    operating rules for the SATR were not                 which significantly reduces the number
                                          denied access to the area. AOPA, APA                     clearly defined in the NPRM. They                     of F–16 aircraft transitioning between
                                          and other commenters were concerned                      requested clarification about whether a               the auxiliary field and Luke. Second,
                                          about frequency congestions and one                      clearance from Luke was required, and                 aircraft are more easily visible at greater
                                          commenter stated that during periods of                  if separation services, including                     distances at night, thereby allowing
                                          peak traffic, Luke RAPCON may not be                     assigned headings, would be provided                  pilots more reasonable reaction time for
                                          able to immediately respond to aircraft                  to GA aircraft. Further, they asked if                conflict avoidance with high
                                          wishing to establish two-way radio                       routine traffic advisories would be                   performance aircraft. Third, the SATR
                                          contact for entry into the SATR area,                    given, and if a transponder was                       area would be extremely difficult to
                                          thereby denying aircraft access to the                   required.                                             navigate at night when visual landmarks
                                          area. Another commenter said that Luke                      As stated in the NPRM and final rule,              are either not visible or not easily
                                          radio coverage may not be sufficient for                 an air traffic clearance is not required to           distinguishable. Therefore, when
                                          all the airspace encompassed by the                      operate in the SATR area. The final rule              limited Luke flight training activities are
                                          SATR area; especially the Luke ATIS.                     requires pilots to establish two-way                  conducted at night the SATR will not be
                                             The FAA does not agree. Staffing and                  radio communication with Luke                         active and GA pilots will have access to
                                          equipment resources are already in                       RAPCON prior to entering the SATR                     the area without a requirement to
                                          place to support the Luke SATR area.                     area, and to maintain communication                   communicate with the Luke RAPCON.
                                          Staffing and equipment levels are                        while operating in the area. Once two-
                                          adequate to provide all services without                 way communication is established,                     Gliders
                                          impacting safety or efficiency and the                   flight following service is available                    Pilots from the glider community
                                          USAF and the FAA do not expect                           upon request from Luke RAPCON.                        expressed concern that their operations
                                          staffing to be an issue for Luke. LOAs                   Pilots of those aircraft not equipped                 would be unfairly impacted. They stated
                                          and procedures will be developed to                      with radios, or with inoperable radios,               that it was not clear that sailplanes
                                          operate the Luke SATR efficiently.                       can make advance arrangements with                    without transponders would be able to
                                          However, should circumstances arise                      the Luke RAPCON to coordinate transit                 operate within the SATR area.
                                          that indicate a need for additional                      through the area. The USAF requires                      The FAA agrees that clarification
                                          resources, action will be taken to obtain                use of flight following service for                   about glider operations is needed. In
                                          them.                                                    military aircraft. The FAA recommends                 that regard, the USAF has worked with
                                             The ability to provide any ATC                        use of flight following services by GA.               the glider community to address their
                                          service is limited by many factors, such                 Those aircraft participating in flight                operational concerns. The USAF met
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                                          as the volume of traffic, frequency of                   following services are provided traffic               with the Pleasant Valley Sailplane
                                          congestion, controller workload, or                      advisory service as they transition the               Association (PVSA) personnel to
                                          other higher priority duties that may not                area. Separation services and headings                discuss the glider community concerns.
                                          be apparent to a pilot requesting access                 will not be provided, and this rule does              The USAF and the PVSA agreed to enter
                                          to the SATR area. Aircraft attempting to                 not change the current transponder                    into an LOA covering glider operation to
                                          establish two-way radio contact with                     requirements in 14 CFR 91.215.                        allow glider operations to continue. The

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                                                           Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations                                         69277

                                          Luke RAPCON plans to designate an                        This portion of the preamble                          the head of the agency may so certify
                                          assigned beacon code for the tow                         summarizes the FAA’s analysis of the                  and a regulatory flexibility analysis is
                                          planes. When the first tow plane of the                  economic impacts of this final rule. We               not required. The certification must
                                          morning goes up on the discrete code,                    suggest readers seeking greater detail                include a statement providing the
                                          the Luke RAPCON will show the glider                     read the full regulatory evaluation, a                factual basis for this determination, and
                                          area active and provide general traffic                  copy of which we have placed in the                   the reasoning should be clear.
                                          advisories throughout the course of the                  docket for this rulemaking.                              This final rule will impose only
                                          day while the area is in use. The glider                    In conducting these analyses, FAA                  negligible costs on individuals operating
                                          operators will call the Luke RAPCON at                   has determined that this final rule: (1)              GA aircraft in the Luke AFB vicinity
                                          the termination of the day’s glider                      Has benefits that justify its costs, (2) is           under VFR. Most operators of GA
                                          activity.                                                not an economically ‘‘significant                     aircraft are individuals, not small
                                                                                                   regulatory action’’ as defined in section             business entities, and are not included
                                          Paperwork Reduction Act                                  3(f) of Executive Order 12866, (3) is not             when performing a regulatory flexibility
                                            The Paperwork Reduction Act of 1995                    ‘‘significant’’ as defined in DOT’s                   analysis. However, flight schools, as
                                          (44 U.S.C. 3507(d)) requires the FAA                     Regulatory Policies and Procedures; (4)               well as GA operators flying for business
                                          consider the impact of paperwork and                     will not have a significant economic                  reasons, are considered small business
                                          other information collection burdens                     impact on a substantial number of small               entities. The FAA assumes affected
                                          imposed on the public. We have                           entities; (5) will not create unnecessary             instructors and operators use aircraft
                                          determined there is no current or new                    obstacles to the foreign commerce of the              equipped with two-way radios, and
                                          requirement for information collection                   United States; and (6) will not impose                therefore will not incur any extra costs.
                                          associated with this amendment.                          an unfunded mandate on state, local, or                  Therefore, as the FAA Administrator,
                                                                                                   tribal governments, or on the private                 I certify that this final rule will not have
                                          International Compatibility
                                                                                                   sector by exceeding the threshold                     a significant economic impact on a
                                            In keeping with U.S. obligations                       identified above. These analyses are                  substantial number of small entities.
                                          under the Convention on International                    summarized below.
                                          Civil Aviation, it is FAA policy to                                                                            International Trade Analysis
                                          comply with International Civil                          Costs and Benefits of the Rule                           The Trade Agreements Act of 1979
                                          Aviation Organization (ICAO) Standards                     The FAA believes that this rule will                (Pub. L. 96–39), as amended by the
                                          and Recommended Practices to the                         impose minimal costs on VFR pilots of                 Uruguay Round Agreements Act (Pub.
                                          maximum extent practicable. The FAA                      GA aircraft, Luke AFB RAPCON and                      L. 103–465), prohibits Federal agencies
                                          has determined that there are no ICAO                    negligible cost on the FAA. The rule                  from establishing standards or engaging
                                          Standards and Recommended Practices                      will enhance aviation safety by reducing              in related activities that create
                                          that correspond to these regulations.                    the risk of a midair collision in the                 unnecessary obstacles to the foreign
                                                                                                   SATR area. As a result, the FAA                       commerce of the United States.
                                          Regulatory Evaluation, Regulatory
                                                                                                   believes this rule is cost-beneficial.                Pursuant to these Acts, the
                                          Flexibility Determination, International
                                                                                                                                                         establishment of standards is not
                                          Trade Impact Assessment, and                             Regulatory Flexibility Determination                  considered an unnecessary obstacle to
                                          Unfunded Mandates Assessment
                                                                                                      The Regulatory Flexibility Act of 1980             the foreign commerce of the United
                                             Changes to Federal regulations must                   (Pub. L. 96–354) (RFA) establishes ‘‘as a             States, so long as the standard has a
                                          undergo several economic analyses.                       principle of regulatory issuance that                 legitimate domestic objective, such as
                                          First, Executive Order 12866 directs that                agencies shall endeavor, consistent with              the protection of safety, and does not
                                          each Federal agency shall propose or                     the objectives of the rule and of                     operate in a manner that excludes
                                          adopt a regulation only upon a reasoned                  applicable statutes, to fit regulatory and            imports that meet this objective. The
                                          determination that the benefits of the                   informational requirements to the scale               statute also requires consideration of
                                          intended regulation justify its costs.                   of the businesses, organizations, and                 international standards and, where
                                          Second, the Regulatory Flexibility Act                   governmental jurisdictions subject to                 appropriate, that they be the basis for
                                          of 1980 (Pub. L. 96–354) requires                        regulation. To achieve this principle,                U.S. standards. The FAA has assessed
                                          agencies to analyze the economic                         agencies are required to solicit and                  the potential effect of this final rule and
                                          impact of regulatory changes on small                    consider flexible regulatory proposals                determined that it will have only a
                                          entities. Third, the Trade Agreements                    and to explain the rationale for their                domestic impact and therefore will not
                                          Act (Pub. L. 96–39) prohibits agencies                   actions to ensure that such proposals are             create unnecessary obstacles to the
                                          from setting standards that create                       given serious consideration.’’ The RFA                foreign commerce of the United States.
                                          unnecessary obstacles to the foreign                     covers a wide range of small entities,
                                          commerce of the United States. In                                                                              Unfunded Mandates Assessment
                                                                                                   including small businesses, not-for-
                                          developing U.S. standards, this Trade                    profit organizations, and small                          Title II of the Unfunded Mandates
                                          Act requires agencies to consider                        governmental jurisdictions.                           Reform Act of 1995 (Pub. L. 104–4)
                                          international standards and, where                          Agencies must perform a review to                  requires each Federal agency to prepare
                                          appropriate, that they be the basis of                   determine whether a rule will have a                  a written statement assessing the effects
                                          U.S. standards. Fourth, the Unfunded                     significant economic impact on a                      of any Federal mandate in a proposed or
                                          Mandates Reform Act of 1995 (Pub. L.                     substantial number of small entities. If              final agency rule that may result in an
                                          104–4) requires agencies to prepare a                    the agency determines that it will, the               expenditure of $100 million or more
                                          written assessment of the costs, benefits,               agency must prepare a regulatory                      (adjusted annually for inflation with the
                                          and other effects of proposed or final                   flexibility analysis as described in the              base year 1995) in any one year by State,
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                                          rules that include a Federal mandate                     RFA.                                                  local, and tribal governments, in the
                                          likely to result in the expenditure by                      However, if an agency determines that              aggregate, or by the private sector; such
                                          State, local, or tribal governments, in the              a rule is not expected to have a                      a mandate is deemed to be a ‘‘significant
                                          aggregate, or by the private sector, of                  significant economic impact on a                      regulatory action.’’ The level equivalent
                                          $100 million or more annually (adjusted                  substantial number of small entities,                 of $100 million in CY 1995, adjusted for
                                          for inflation with base year of 1995).                   section 605(b) of the RFA provides that               inflation to CY 2007 levels by the

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                                          69278            Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations

                                          Consumer Price Index for all Urban                         Anyone is able to search the                        § 93.176   Description of area.
                                          Consumers (CPI–U) as published by the                    electronic form of all comments                          The Luke Air Force Base, Arizona
                                          Bureau of Labor Statistics, is $136.1                    received into any of our dockets by the               Terminal Area is designated during
                                          million. This final rule does not contain                name of the individual submitting the                 official daylight hours Monday through
                                          such a mandate. The requirements of                      comment (or signing the comment, if                   Friday while Luke pilot flight training is
                                          Title II do not apply.                                   submitted on behalf of an association,                underway, as broadcast on the local
                                                                                                   business, labor union, etc.). You may                 Automatic Terminal Information
                                          Executive Order 13132, Federalism
                                                                                                   review DOT’s complete Privacy Act                     Service (ATIS), and other times by
                                            The FAA has analyzed this final rule                   statement in the Federal Register                     Notice to Airmen (NOTAM), as follows:
                                          under the principles and criteria of                     published on April 11, 2000 (Volume                      (a) East Sector:
                                          Executive Order 13132, Federalism. We                    65, Number 70; Pages 19477–78) or you                    (1) South section includes airspace
                                          determined that this action will not                     may visit                 extending from 3,000 feet MSL to the
                                          have a substantial direct effect on the                                                                        base of the overlaying Phoenix Class B
                                          States, or the relationship between the                  Small Business Regulatory Enforcement                 airspace bounded by a line beginning at:
                                          Federal Government and the States, or                    Fairness Act                                          Lat. 33°23′56″ N; Long. 112°28′37″ W; to
                                          on the distribution of power and                            The Small Business Regulatory                      Lat. 33°22′32″ N; Long. 112°37′14″ W; to
                                          responsibilities among the various                       Enforcement Fairness Act (SBREFA) of                  Lat. 33°25′39″ N; Long. 112°37′29″ W; to
                                          levels of government, and, therefore,                    1996 requires FAA to comply with                      Lat. 33°31′55″ N; Long. 112°30′32″ W; to
                                          does not have federalism implications.                   small entity requests for information or              Lat. 33°28′00″ N; Long. 112°28′41″ W; to
                                                                                                   advice about compliance with statutes                 point of beginning.
                                          Environmental Analysis                                                                                            (2) South section lower includes
                                                                                                   and regulations within its jurisdiction. If
                                             FAA Order 1050.1E identifies FAA                      you are a small entity and you have a                 airspace extending from 2,100 feet MSL
                                          actions that are categorically excluded                  question regarding this document, you                 to the base of the overlaying Phoenix
                                          from preparation of an environmental                     may contact your local FAA official, or               Class B airspace, excluding the Luke
                                          assessment or environmental impact                       the person listed under the FOR FURTHER               Class D airspace area bounded by a line
                                          statement under the National                             INFORMATION CONTACT heading at the                    beginning at: Lat. 33°28′00″ N; Long.
                                          Environmental Policy Act (NEPA) in the                   beginning of the preamble. You can find               112°28′41″ W; to Lat. 33°23′56″ N; Long.
                                          absence of extraordinary circumstances.                  out more about SBREFA on the Internet                 112°28′37″ W; to Lat. 33°27′53″ N; Long.
                                          The FAA has determined this proposed                     at                                112°24′12″ W; to point of beginning.
                                          rulemaking action qualifies for the                      regulations_policies/rulemaking/                         (3) Center section includes airspace
                                          categorical exclusion identified in                      sbre_act/.                                            extending from surface to the base of the
                                          paragraph 312f and involves no                                                                                 overlaying Phoenix Class B airspace,
                                          extraordinary circumstances.                             List of Subjects in 14 CFR Part 93                    excluding the Luke Class D airspace
                                                                                                     Air Traffic Control, Airports, Alaska,              area bounded by a line beginning at: Lat.
                                          Regulations That Significantly Affect                                                                          33°42′22″ N; Long. 112°19′16″ W; to Lat.
                                          Energy Supply, Distribution, or Use                      Navigation, Reporting and
                                                                                                   recordkeeping requirements.                           33°38′40″ N; Long. 112°14′03″ W; to Lat.
                                             The FAA analyzed this final rule                                                                            33°27′53″ N; Long. 112°24′12″ W; to Lat.
                                          under Executive Order 13211, Actions                     The Amendment                                         33°28′00″ N; Long. 112°28′41″ W; to Lat.
                                          Concerning Regulations that                              ■ In consideration of the foregoing, the              33°31′55″ N; Long. 112°30′32″ W; to
                                          Significantly Affect Energy Supply,                      Federal Aviation Administration                       point of beginning.
                                          Distribution, or Use (May 18, 2001). We                  amends Chapter I of Title 14, Code of                    (4) The north section includes that
                                          have determined that it is not a                         Federal Regulations, as follows:                      airspace extending upward from 3,000
                                          ‘‘significant energy action’’ under the                                                                        feet MSL to 4,000 feet MSL, bounded by
                                          executive order because it is not a                      PART 93—SPECIAL AIR TRAFFIC                           a line beginning at: Lat. 33°42′22″ N;
                                          ‘‘significant regulatory action’’ and is                 RULES                                                 Long. 112°19′16″ W; to Lat. 33°46′58″ N;
                                          not likely to have a significant adverse                                                                       Long. 112°16′41″ W; to Lat. 33°44′48″ N;
                                          effect on the supply, distribution, or use               ■ 1. The authority citation for part 93               Long. 112°10′59″ W; to Lat. 33°38′40″ N;
                                          of energy.                                               continues to read as follows:                         Long. 112°14′03″ W; to point of
                                                                                                     Authority: 49 U.S.C. 106(g), 40103, 40106,          beginning.
                                          Availability of Rulemaking Documents                     40109, 40113, 44502, 44514, 44701, 44719,                (b) West Sector:
                                            You can get an electronic copy of                      46301.                                                   (1) The north section includes that
                                          rulemaking documents using the                           ■ 2. Add Subpart O to part 93 to read                 airspace extending upward from 3,000
                                          Internet by—                                             as follows:                                           feet MSL to 6,000 feet MSL, bounded by
                                            1. Searching the Federal eRulemaking                                                                         a line beginning at: Lat. 33°51′52″ N;
                                                                                                   Subpart O—Special Flight Rules in the                 Long. 112°37′54″ W; to Lat. 33°49′34″ N;
                                          Portal (;
                                                                                                   Vicinity of Luke AFB, AZ
                                            2. Visiting the FAA’s Regulations and                                                                        Long. 112°23′34″ W; to Lat. 33°46′58″ N;
                                          Policies Web page at http://                             Sec.                                                  Long. 112°16′41″ W; to Lat. 33°42′22″ N;
                                 or                     93.175 Applicability.                                 Long. 112°19′16″ W; to Lat. 33°39′27″ N;
                                                                                                   93.176 Description of area.
                                            3. Accessing the Government Printing                                                                         Long. 112°22′27″ W; to point of
                                                                                                   93.177 Operations in the Special Air Traffic
                                          Office’s Web page at http://                                  Rule Area.                                       beginning.
                                                                                                                  (2) The south section includes that
                                            You can also get a copy by sending a                   Subpart O—Special Flight Rules in the                 airspace extending upward from the
                                          request to the Federal Aviation                          Vicinity of Luke AFB, AZ                              surface to 6,000 feet MSL, bounded by
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                                          Administration, Office of Rulemaking,                                                                          a line beginning at: Lat. 33°39′27″ N;
                                          ARM–1, 800 Independence Avenue,                          § 93.175    Applicability.                            Long. 112°22′27″ W; to Lat. 33°38′06″ N;
                                          SW., Washington, DC 20591, or by                           This subpart prescribes a Special Air               Long. 112°23′51″ W; to Lat. 33°38′07″ N;
                                          calling (202) 267–9680. Make sure to                     Traffic Rule for aircraft conducting VFR              Long. 112°28′50″ W; to Lat. 33°39′34″ N;
                                          identify the amendment number or                         operations in the vicinity of Luke Air                Long. 112°31′39″ W; to Lat. 33°39′32″ N;
                                          docket number of this rulemaking.                        Force Base, AZ.                                       Long. 112°37′36″ W; to Lat. 33°51′52″ N;

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                                                           Federal Register / Vol. 74, No. 250 / Thursday, December 31, 2009 / Rules and Regulations                                               69279

                                          Long. 112°37′54″ W; to point of                          clearing organizations (‘‘cleared OTC                 adjusted net capital in an amount that
                                          beginning.                                               derivative positions’’); specify capital              equals or exceeds the greatest of:
                                                                                                   deductions for FCM proprietary cleared                $30,000; the amount of adjusted net
                                          § 93.177 Operations in the Special Air                   OTC derivative positions based on the
                                          Traffic Rule Area.                                                                                             capital required by a registered futures
                                                                                                   deductions required by the                            association of which the IB is a member;
                                            (a) Unless otherwise authorized by                     Commission’s regulations for FCM                      or, if the FCM is also a securities broker
                                          Air Traffic Control (ATC), no person                     proprietary positions in exchange-                    and dealer registered with the U.S.
                                          may operate an aircraft in flight within                 traded futures contracts and options
                                          the Luke Terminal Area designated in                                                                           Securities and Exchange Commission
                                                                                                   contracts; and amend the FCM capital                  (‘‘SEC’’), the amount of net capital
                                          § 93.176 unless—                                         computation to increase the applicable
                                            (1) Before operating within the Luke                                                                         required by SEC Rule 15c3–1(a), 17 CFR
                                                                                                   percentage of the total margin-based                  § 240.15c3–1(a). Regulation 1.17(a)(1)(i)
                                          Terminal area, that person establishes                   requirement for futures, options and
                                          radio contact with the Luke RAPCON;                                                                            requires FCMs to maintain adjusted net
                                                                                                   cleared OTC derivative positions in
                                          and                                                                                                            capital equal to or in excess of the
                                                                                                   noncustomer accounts to eight percent.
                                            (2) That person maintains two-way                                                                            greatest of: $250,000; the FCM’s margin-
                                                                                                   DATES: Effective March 31, 2010.
                                          radio communication with the Luke                                                                              based or ‘‘risk-based’’ capital
                                                                                                   FOR FURTHER INFORMATION CONTACT:
                                          RAPCON or an appropriate ATC facility                                                                          requirement, which is determined by
                                                                                                   Thelma Diaz, Associate Director,                      adding together eight percent of the total
                                          while within the designated area.
                                                                                                   Division of Clearing and Intermediary
                                            (b) Requests for deviation from the                                                                          risk margin requirement for positions in
                                                                                                   Oversight, 1155 21st Street, NW.,
                                          provisions of this section apply only to                                                                       customer accounts, plus four percent of
                                                                                                   Washington, DC 20581. Telephone
                                          aircraft not equipped with an                                                                                  the total risk margin requirement for
                                                                                                   number: 202–418–5137; facsimile
                                          operational radio. The request must be                                                                         positions carried in noncustomer
                                                                                                   number: 202–418–5547; and electronic
                                          submitted at least 24 hours before the                                                                         accounts; the amount of adjusted net
                                                                                                   mail: or Mark Bretscher,
                                          proposed operation to Luke RAPCON.                                                                             capital required by a registered futures
                                                                                                   Attorney-Advisor, Division of Clearing
                                             Issued in Washington, DC, on December                 and Intermediary Oversight, Commodity                 association of which the FCM is a
                                          18, 2009.                                                Futures Trading Commission, 525 W.                    member; or, for an FCM also registered
                                          J. Randolph Babbitt,                                     Monroe, Suite 1100, Chicago, Illinois                 with the SEC as securities broker and
                                          Administrator.                                           60661. Telephone number: 312–596–                     dealer, the amount of net capital
                                          [FR Doc. E9–30938 Filed 12–30–09; 8:45 am]               0529; facsimile number: 312–596–0714;                 required by SEC Rule 15c3–1(a).
                                          BILLING CODE 4910–13–P                                   and electronic mail:                                     As described in the Proposing
                                                                                                                           Release, the Commission proposed
                                                                                                   SUPPLEMENTARY INFORMATION:                            several amendments to Regulation
                                          COMMODITY FUTURES TRADING                                                                                      1.17(a) that generally would increase the
                                                                                                   I. Background
                                          COMMISSION                                                                                                     adjusted net capital requirements of
                                                                                                      On May 7, 2009, the Commission                     FCMs and IBs. The comment period
                                          17 CFR Part 1                                            published in the Federal Register for                 closed 60 days after publication in the
                                                                                                   public comment proposed amendments                    Federal Register of the Proposing
                                          RIN 3038–AC66
                                                                                                   to the minimum financial requirements                 Release, during which nine comment
                                          Revised Adjusted Net Capital                             applicable to FCMs and IBs (‘‘Proposing               letters were received. Responses were
                                          Requirements for Futures Commission                      Release).1 As noted in the Proposing
                                                                                                                                                         submitted by Mindy Yost (‘‘Yost’’), an
                                          Merchants and Introducing Brokers                        Release, Section 4f(b) of the Commodity
                                                                                                                                                         individual non-registrant; Newedge
                                                                                                   Exchange Act (‘‘Act’’) provides that
                                          AGENCY: Commodity Futures Trading                        FCMs and IBs must meet such                           USA, LLC (‘‘Newedge’’), an FCM/
                                          Commission.                                              minimum financial requirements as the                 broker-dealer; MF Global, Inc. (‘‘MF
                                                                                                   Commission may prescribe to insure                    Global’’), an FCM; R.J. O’Brien &
                                          ACTION: Final rules.
                                                                                                   that FCMs and IBs meet their                          Associates, LLC (‘‘RJO’’), an FCM;
                                          SUMMARY: The Commodity Futures                           obligations as registrants.2 FCMs are                 FCStone, LLC (‘‘FC Stone’’), an FCM;
                                          Trading Commission (‘‘Commission’’) is                   subject to greater capital requirements               the Securities Industry and Financial
                                          amending its regulations that prescribe                  than IBs because the Act permits FCMs,                Markets Association (‘‘SIFMA’’); CME
                                          minimum adjusted net capital                             but not IBs, to hold funds of customers               Group, Inc. (‘‘CME’’); the Futures
                                          requirements for futures commission                      trading on designated contract markets                Industry Association (‘‘FIA’’); and the
                                          merchants (‘‘FCMs’’) and introducing                     and to clear such customer positions                  National Futures Association (‘‘NFA’’).
                                          brokers (‘‘IBs’’). The amendments:                       with a DCO. CFTC Regulation 1.17                      The concerns and suggestions of each of
                                          increase the required minimum dollar                     currently requires IBs and FCMs to                    the commenters are addressed below, in
                                          amount of adjusted net capital that an                   maintain adjusted net capital of $30,000              connection with the description of the
                                          IB must maintain from $30,000 to                         and $250,000 respectively, or to                      amendments being adopted by the
                                          $45,000; increase the required minimum                   maintain some greater amount as                       Commission.4
                                          dollar amount of adjusted net capital                    determined under other calculations
                                          that an FCM must maintain from                           required by the regulation.3
                                          $250,000 to $1,000,000; amend the                           Specifically, Commission Regulation                  4 The Proposing Release also included a query

                                          computation of an FCM’s margin-based                     1.17(a)(1)(iii) requires that IBs maintain            soliciting comment on a topic for which no
                                          minimum adjusted net capital                                                                                   amendments to Commission regulations have yet
erowe on DSK5CLS3C1PROD with RULES

                                          requirement to incorporate into the                        1 74 FR 21290 (May 7, 2009). Copies of the          been proposed. Specifically, the Commission asked
                                                                                                   Proposing Release and the comment letters received    for comment on the advisability of expanding ANC
                                          calculation customer and noncustomer
                                                                                                   by the Commission are also available on the           requirements for FCMs that are also securities
                                          positions in over-the-counter derivative                 Commission’s Web site at         brokers and dealers, by increasing their ANC by the
                                          instruments that are submitted for                         2 The Act is codified at 7 U.S.C. 1 et seq.         amount of net capital required by SEC Rule 15c3–
                                          clearing by the FCM to derivatives                         3 The Commission regulations cited herein may       1(a). No commenter supported this potential
                                          clearing organizations (‘‘DCOs’’) or other               be found at 17 CFR Ch. I (2009).                      revision of FCM/BD capital requirements.

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