Amendment to O Hare Final Rule by FAA

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

                                       DEPARTMENT OF TRANSPORTATION                            report summarizing each substantive                   person listed under FOR FURTHER
                                                                                               public contact with FAA personnel on                  INFORMATION CONTACT. You can find out
                                       14 CFR Part 93                                          this rulemaking, in the public docket.                more about SBRFA on the Internet at
                                       [Docket No. FAA 2005–20704; Amendment                   The docket is available for public                    our site, http://www.faa.gov/
                                       No. 93–86]                                              inspection before and after the comment               regulations_policies/rulemaking/
                                                                                               closing date.                                         sbre_act/.
                                       RIN 2120–AI87                                              Anyone is able to search the
                                                                                                                                                     Justification for Final Rule Without
                                                                                               electronic form of all comments
                                       Amending the Congestion and Delay                                                                             Prior Notice
                                                                                               received into any of our dockets by the
                                       Reduction at Chicago O’Hare                             name of the individual submitting the                    Based on the circumstances described
                                       International Airport                                   comment (or signing the comment, if                   herein, the FAA believes immediate
                                       AGENCY: Federal Aviation                                submitted on behalf of an association,                regulatory action is warranted. Section
                                       Administration (FAA), DOT.                              business, labor union, etc.). You may                 553 of the Administrative Procedures
                                                                                               review DOT’s complete Privacy Act                     Act (APA) permits an agency to forego
                                       ACTION: Final Rule with Request for
                                                                                               statement in the Federal Register                     notice and comment rulemaking when
                                       Comment.
                                                                                               published on April 11, 2000 (Volume                   ‘‘the agency for good cause finds * * *
                                       SUMMARY: The FAA published a final                      65, Number 70; Pages 19477–78) or you                 that notice and public procedures
                                       rule on August 29, 2006, (71 FR 51382),                 may visit http://dms.dot.gov.                         thereon are impracticable, unnecessary
                                       to address persistent flight delays from                   The FAA will consider all comments                 or contrary to the public interest.’’ The
                                       overscheduling at O’Hare International                  received on or before the closing date                FAA finds that the use of notice and
                                       Airport (O’Hare). This amendment                        for comments. We will consider late                   public procedures for this rule is
                                       revises section 93.25, ‘‘Initial                        comments to the extent practicable. We                impracticable and contrary to the public
                                       assignment of Arrival Authorizations to                 may amend this final rule in light of the             interest.
                                       U.S. and Canadian air carriers for                      comments received.                                       The FAA determined that it was to
                                       domestic and U.S./Canada transborder                       Commenters who want the FAA to                     the public interest to modify the August
                                       service,’’ to direct the FAA to assign                  acknowledge receipt of their comments                 18, 2004 Order (the Order) that
                                       each U.S. and Canadian conducting                       submitted in response to this final rule              regulated scheduled arrivals at O’Hare
                                       scheduled service at O’Hare by January                  must include a preaddressed, stamped                  International Airport in order for
                                       27, 2007, Arrival Authorizations based                  postcard with those comments on which                 carriers to modify their schedules for
                                       on their permanent holdings as of the 7-                the following statement is made:                      competitive or operational reasons
                                       day period of October 22 through                        ‘‘Comments to Docket No. FAA–2005–                    through various market mechanisms
                                       October 28, 2006, as evidenced by the                   20704.’’ The postcard will be date-                   prior to the effective date of the August
                                       FAA’s records. While the FAA is                         stamped by the FAA and mailed to the                  29, 2006, final rule. The FAA modified
                                       making this rule effective without notice               commenter.                                            the Order after issuing a show-cause
                                       and comment, the FAA invites the                                                                              order that gave the public an
                                                                                               Availability of Final Rule                            opportunity to comment on its proposed
                                       public to comment on the amendment.
                                       The FAA will consider the comments to                     You can get an electronic copy using                modification, 71 FR 56213 (September
                                       see whether the rule should be further                  the Internet by:                                      26, 2006), and considered the responses
                                       modified.                                                 (1) Searching the Department of                     to its show-cause order when it
                                                                                               Transportation’s electronic Docket                    determined to adopt the proposed
                                       DATES: Effective October 29, 2006.
                                                                                               Management System (DMS) Web page                      modification. Modification of the Order
                                         Comment Date: Comments must be
                                                                                               (http://dms.dot.gov/search);                          requires us to also amend the final rule
                                       received on or before December 12,
                                                                                                 (2) Visiting the FAA’s Regulations and              in order to recognize changes in holder
                                       2006.
                                                                                               Policies Web page at http://                          and operator status of scheduled arrivals
                                       SUPPLEMENTARY INFORMATION:                              www.faa.gov/regulations_policies/; or                 that may occur during the duration of
                                       Comments Invited                                          (3) Accessing the Government                        the Order, which affect the assignment
                                                                                               Printing Office’s Web page at http://                 of Arrival Authorizations on October 29,
                                          The FAA is adopting this final rule                  www.gpoaccess.gov/fr/index.html.                      2006, the effective date of the rule. The
                                       without prior notice and prior public                     You can also get a copy by sending a                changes in the rule are necessary to
                                       comment. The Regulatory Policies and                    request to the Federal Aviation                       make the Order’s modification effective.
                                       Procedures of the Department of                         Administration, Office of Rulemaking,                    We are inviting comments on this rule
                                       Transportation (DOT) (44 FR 1134;                       ARM–1, 800 Independence Avenue,                       and may modify the rule in response to
                                       February 26, 1979), provide that to the                 SW., Washington, DC 20591, or by                      those comments.
                                       maximum extent possible, operating                      calling (202) 267–9680. Make sure to
                                       administrations for the DOT should                                                                            Justification for an Effective Date Less
                                                                                               identify the docket number, notice
                                       provide an opportunity for public                                                                             Than 30 Days
                                                                                               number, or amendment number of this
                                       comment on regulations issued without                   rulemaking.                                              Likewise, the FAA has determined
                                       prior notice. Accordingly, we invite                                                                          that the effective date for this final rule
                                       interested persons to participate in this               Small Business Regulatory Enforcement                 should coincide with the effective date
                                       rulemaking by submitting such written                   Fairness Act                                          of the August 29, 2006 final rule.
                                       data, views, or arguments, as they may                    The Small Business Regulatory                       Ordinarily agencies are required to
                                       desire. We also invite comments relating                Enforcement Fairness Act (SBREFA) of                  provide an effective date of at lest 30
                                       to environmental, energy, federalism, or                1996 requires FAA to comply with                      days after publication of a rule in the
                                       international trade impacts that might                  small entity requests for information or              Federal Register. An agency need not
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                                       result from this amendment. Please                      advice about compliance with statutes                 adhere to this requirement if it
                                       include the regulatory docket or                        and regulations within its jurisdiction.              demonstrates that a shorter time frame
                                       amendment number and send two                           Therefore, any small entity that has a                is in the public interest. Since this final
                                       copies to the address above. We will file               question regarding this document may                  rule has a direct impact on allocations
                                       all comments received, as well as a                     contact their local FAA official, or the              that will be made on the first day of the


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

                                       August 29, 2006 final rule, the FAA has                 the Arrival Authorization to the seller in            Executive Order 12866 and DOT
                                       determined that it is in the public                     accordance with paragraph (a), and to                 Regulatory Policies and Procedures
                                       interest for the effective dates of both                the purchaser in accordance with                         Executive Order 12866, Regulatory
                                       rules to be the same.                                   paragraph (b).                                        Planning and Review, directs the FAA
                                       Background                                                 Another, more pointed example of                   to assess both he costs and benefits of
                                                                                               how the language in § 93.25 could                     a regulatory change. We are not allowed
                                          The FAA issued an order limiting
                                       capacity at Chicago O’Hare International                impede transactions of the Order, as                  to propose or adopt a regulation unless
                                       Airport on August 18, 2004. That Order                  amended, is that of a new entrant carrier             we make a reasoned determination that
                                       resulted from the August 4, 2004,                       that receives, purchases or leases                    the benefits of the intended regulation
                                       scheduling reduction meeting. The                       Arrival Authorizations under the Order,               justify its costs. Our assessment of this
                                       Order limited arrivals by domestic                      but does not actually commence                        proposal indicates that its economic
                                       carriers to 88 during most hours of the                 scheduled service at O’Hare prior to the              impact is minimal. Since its costs and
                                       day. The Order was set originally set to                effective date of the final rule. The                 benefits do not make it a ‘‘significant
                                       expire in April 2005 but was extended                   current initial assignment provision                  regulatory action’’ as defined in the
                                       three times to ensure that                              under § 93.25(b) requires a carrier to                Order, we have not prepared a
                                       overscheduling would not occur                          conduct scheduled service at O’Hare on                ‘‘regulatory impact analysis.’’ Similarly,
                                       between the original expiration of the                  the effective date of the rule (i.e.,                 we have not prepared a ‘‘regulatory
                                       order and the effective date of the rule.               October 29) in order to receive its                   evaluation,’’ which is the written cost/
                                       The Order will expire on October 28,                    assignment of Arrival Authorizations. It,             benefit analysis ordinarily required for
                                       2006, and the August 29, 2006 final rule                however, is not reasonable to expect a                all rulemaking proposals under the DOT
                                       will take effect on October 29, 2006 (71                new entrant carrier who could obtain                  Regulatory and Policies and Procedures.
                                       FR 51382).                                              scheduled arrivals under the Order as                 We do not need to do the latter analysis
                                          Previously, under the Order, carriers                late as October 28 to be prepared to                  where the economic impact of a
                                       were not allowed to make any                            conduct operations by October 29. The                 proposal is minimal.
                                       permanent transfers or trades of their                  FAA has determined that January 27,
                                                                                                                                                     Economic Evaluation, Regulatory
                                       scheduled arrivals. The FAA, however,                   2007, is an appropriate date, because it
                                                                                                                                                     Flexibility Determination, Trade Impact
                                       recently reconsidered this position and                 recognized in the August 29, 2006 Final
                                                                                                                                                     Assessment, and Unfunded Mandates
                                       issued a modification to the Order and                  Rule that it could reasonably take up to
                                                                                                                                                     Assessment
                                       eliminated the prohibition on trading or                90 days to actually conduct operations
                                       transferring (buying, selling, or leasing)              after acquiring an Arrival Authorization.                Proposed changes to Federal
                                       scheduled arrivals for consideration for                   Because of modifications to the Order              regulations must undergo several
                                       the remaining duration of the Order.                    and the ability of carriers to change the             economic analyses. First, Executive
                                       Because the Order allows permanent                      holder and operator status of scheduled               Order 12866 directs each Federal agency
                                       trades and transfers of arrivals, § 93.25               arrivals prior to the effective date of the           to propose or adopt a regulation only
                                       must be amended so that when the FAA                    rule, the FAA also must clarify that in               upon a reasoned determination that the
                                       assigns Arrival Authorizations under                    applying the definitions of ‘‘new                     benefits of the intended regulation
                                       the rule, we recognize changes in                       entrant,’’ ‘‘limited incumbent’’ and                  justify its costs. Second, the Regulatory
                                       scheduled arrival holdings that may                     ‘‘incumbent,’’ the FAA will look to any               Flexibility Act of 1980 requires agencies
                                       have been made through October 28,                      authorizations held or operated by an                 to analyze the economic impact of
                                       2006.                                                   air carrier during the duration of the                regulatory changes on small entities.
                                          Under § 93.25, Arrival Authorizations                Order. Thus, for example, if a carrier                Third, the Trade Agreements Act (19
                                       for O’Hare are assigned (1) based on                    were to hold ten scheduled arrivals on                U.S.C. section 2531–2533) prohibits
                                       published scheduled service during the                  October 1, 2006 but then sold or                      agencies from setting standards that
                                       7-day period of November 1 through 7,                   transferred 4 of those arrivals to another            create unnecessary obstacles to the
                                       2004 or (2) if the carrier did not publish              carrier on October 15, 2006, the FAA                  foreign commerce of the United States.
                                       a scheduled service during the 7-day                    will view that carrier has an incumbent               In developing U.S. standards, this Trade
                                       period of November 1 through 7, 2004,                   because, at one time, the carrier held                Act also requires agencies to consider
                                       the scheduled service the carrier is                    more than 8 authorizations to arrive at               international standards and, where
                                       entitled to publish under the August                    O’Hare.                                               appropriate, use them as the basis of
                                       2004 Order, as long as the carrier is                                                                         U.S. standards. And fourth, the
                                       conducting scheduled service at O’Hare                  Paperwork Reduction Act                               Unfunded Mandates Reform Act of 1995
                                       on the effective date of the final rule.                                                                      requires agencies to prepare a written
                                       The following is an example of how this                   There are no new requirements for                   assessment of the costs, benefits and
                                       initial allocation provision does not                   information collection associated with                other effects of proposed or final rules
                                       clearly accommodate transfers that                      this amendment.                                       that include a Federal mandate likely to
                                       could be made during the remaining                      International Compatibility                           result in the expenditure by State, local
                                       duration of the Order: A carrier sells a                                                                      or tribal governments, in the aggregate,
                                       scheduled arrival in October 2006                         In keeping with U.S. obligations                    or by the private sector, of $100 million
                                       pursuant to modified paragraph 6 of the                 under the Convention on International                 or more annually (adjusted for
                                       Order. While it is the seller that                      Civil Aviation, it is FAA policy to                   inflation.)
                                       published the scheduled arrival during                  comply with International Civil                          In conducting these analyses, FAA
                                       the 7-day period of November 1 through                  Aviation Organization (ICAO) Standards                has determined this rule (1) has benefits
                                       7, 2004, it is the purchaser of the                     and Recommended Practices to the                      which do justify its costs, is not a
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                                       scheduled arrival who holds the                         maximum extent practicable. The FAA                   ‘‘significant regulatory action’’ as
                                       authorizations during the final period of               determined that there are no ICAO                     defined in the Executive Order and is
                                       the Order and at the effective date of the              Standards and Recommended Practices                   not ‘‘significant’’ as defined in DOT’s
                                       Final Rule. Applying § 93.25 as it                      that correspond to these proposed                     Regulatory Policies and Procedures; (2)
                                       currently exists could lead us to assign                regulations.                                          will not have a significant impact on a


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

                                       substantial number of small entities; (3)               or by the private sector; such a mandate              ■ 2. Amend § 93.25 to revise the last
                                       reduces barriers to international trade;                is deemed to be a ‘‘significant regulatory            sentence in paragraph (a) and by
                                       and (4) does not impose an unfunded                     action.’’ The FAA currently uses an                   revising paragraph (b) to read as follows:
                                       mandate on State, local, or tribal                      inflation-adjusted value of $128.1
                                       governments, or on the private sector.                  million in lieu of $100 million.                      § 93.25 Initial assignment of Arrival
                                                                                                                                                     Authorizations to U.S. and Canadian air
                                       These analyses, available in the docket,                   This final rule does not contain such              carriers for domestic and U.S./Canada
                                       are summarized below.                                   a mandate. Therefore, the requirements                transborder service
                                       Regulatory Flexibility Act                              of Title II of the Unfunded Mandates                     (a) * * * A carrier’s total assignment
                                                                                               Reform Act of 1995 do not apply.                      under this paragraph shall be reduced
                                          The Regulatory Flexibility Act (RFA)
                                       of 1980, 5 U.S.C. 601–612, directs the                  Executive Order 13132, Federalism                     accordingly by (i) any international
                                       FAA to fit regulatory requirements to                                                                         Arrival Authorizations assigned under
                                       the scale of the business, organizations,                 The FAA has analyzed this final rule                § 93.29 (a), and (ii) if the carrier
                                       and governmental jurisdictions subject                  under the principles and criteria of                  transferred or traded for consideration
                                       to the regulation. We are required to                   Executive Order 13132, Federalism. We                 any arrival authorizations to another
                                       determine whether a proposed or final                   determined that this action will not                  carrier under the October 2006 order
                                       action will have a ‘‘significant economic               have a substantial direct effect on the               amending the August 18, 2004 order
                                       impact on a substantial number of small                 States, or the relationship between the               and the transferee carrier meets the
                                       entities’’ as defined in the Act. If we                 national Government and the States, or                conditions of paragraph (b) of this
                                       find that the action will have a                        on the distribution of power and                      section, the number of such traded or
                                       significant impact, we must do a                        responsibilities among the various                    transferred authorizations.
                                       ‘‘regulatory flexibility analysis.’’                    levels of government. Therefore, we                      (b) The FAA shall assign an Arrival
                                          This final rule directs the FAA to                   determined that this final rule does not              Authorization to each U.S. and
                                       assign each U.S. and Canadian                           have federalism implications.                         Canadian air carrier that did not publish
                                       conducting scheduled service at O’Hare                                                                        a scheduled domestic or U.S./Canada
                                                                                               Environmental Analysis
                                       by January 27, 2007, Arrival                                                                                  transborder arrival during the period of
                                       Authorizations based on their                             FAA Order 1050.1E identifies FAA                    time referenced in paragraph (a) of this
                                       permanent holdings as of the 7-day                      actions that are categorically excluded               section for arrivals for which the carrier:
                                       period of October 22 through October                    from preparation of an environmental                     (1) Was entitled to under the August
                                       28, 2006, as evidenced by the FAA’s                     assessment or environmental impact                    18, 2004, ‘‘Order Limiting Scheduled
                                       records. Its economic impact is                         statement under the National                          Operations at O’Hare International
                                       minimal. Therefore, we certify that this                Environmental Policy Act in the                       Airport,’’ as amended, and is
                                       action will not have a significant                      absence of extraordinary circumstances.               conducting scheduled service at O’Hare
                                       economic impact on a substantial                        The FAA has determined this proposed                  as of the effective date of this rule; or
                                       number of small entities.                               rulemaking action qualifies for the                      (2) Has initiated scheduled service or
                                                                                               categorical exclusion identified in                   received FAA approval of a trade or
                                       Trade Impact Assessment                                                                                       transfer under the August 18, 2004,
                                                                                               paragraph 312f and involves no
                                          The Trade Agreement Act of 1979                      extraordinary circumstances.                          ‘‘Order Limiting Scheduled Operations
                                       prohibits Federal agencies from                                                                               at O’Hare International Airport,’’ as
                                       engaging in any standards or related                    Energy Impact                                         amended, as long as operations
                                       activities that create unnecessary                                                                            conducted under the Arrival
                                                                                                  The energy impact of the notice has
                                       obstacles to the foreign commerce of the                                                                      Authorization begin no later than
                                                                                               been assessed in accordance with the
                                       United States. Legitimate domestic                                                                            January 27, 2007.
                                                                                               Energy Policy and Conservation Act
                                       objectives, such as safety, are not                                                                           *      *    *      *      *
                                                                                               (EPCA Pub. L. 94–163), as amended (42
                                       considered unnecessary obstacles. The
                                                                                               U.S.C. 6362) and FAA Order 1053.1. It                   Issued in Washington, DC, on October 6,
                                       statute also requires consideration of
                                                                                               has been determined that the final rule               2006.
                                       international standards and where
                                                                                               is not a major regulatory action under                Marion C. Blakey,
                                       appropriate, that they be the basis for
                                                                                               the provisions of the EPCA.                           Administrator.
                                       U.S. standards. The FAA has assessed
                                       the potential effect of this rulemaking                 List of Subjects in 14 CFR Part 93                    [FR Doc. 06–8651 Filed 10–10–06; 11:49 am]
                                       and has determined that it will have                                                                          BILLING CODE 4910–13–P
                                       only a domestic impact and therefore no                   Air traffic control, Airports, Alaska,
                                       effect on any trade-sensitive activity.                 Navigation (air), Reporting and
                                                                                               recordkeeping requirements.                           DEPARTMENT OF JUSTICE
                                       Unfunded Mandates Assessment
                                                                                               The Amendment
                                         The Unfunded Mandates Reform Act                                                                            Drug Enforcement Administration
                                       of 1995 (the Act), enacted as Public Law                ■ In consideration of the above, the
                                       104–4 on March 22, 1995, is intended,                   Federal Aviation Administration                       21 CFR Part 1300
                                       among other things, to curb the practice                amends chapter l of Title 14, Code of                 [Docket No. DEA–288F]
                                       of imposing unfunded Federal mandates                   Federal Regulations as follows:
                                       on State, local, and tribal governments.                                                                      RIN 1117–AB02
                                       Title II of the Act requires each Federal               PART 93—SPECIAL AIR TRAFFIC
                                       agency to prepare a written statement                   RULES AND AIRPORT TRAFFIC                             Technical Correction of Two Anabolic
                                       assessing the effects of any Federal                                                                          Steroid Names
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                                       mandate in a proposed or final agency                   ■ 1. The authority citation for part 93               AGENCY: Drug Enforcement
                                       rule that may result in a $100 million or               continues to read as follows:                         Administration (DEA), U.S. Department
                                       more expenditure (adjusted annually for                   Authority: 49 U.S.C. 106(g), 40101, 40103,          of Justice.
                                       inflation) in any one year by State, local,             40106, 40109, 40113, 44502, 44514, 44701,             ACTION: Final rule.
                                       and tribal governments, in the aggregate,               44719, and 46301.



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