[Federal Register Volume 73, Number 211 (Thursday, October 30, 2008)]
[Rules and Regulations]
[Pages 64515-64517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25904]



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 Rules and Regulations
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  Federal Register / Vol. 73, No. 211 / Thursday, October 30, 2008 / 
Rules and Regulations  

[[Page 64515]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2005-19411; Amdt. No. 93-89]
RIN 2120-AI47


Reservation System for Unscheduled Arrivals at Chicago's O'Hare 
International Airport

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; Extension of expiration date.

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SUMMARY: This action extends the expiration date of Special Federal 
Aviation Regulation (SFAR) No. 105 through October 31, 2010. This 
action maintains the reservation system established for unscheduled 
arrivals at Chicago O'Hare International Airport (O'Hare) following the 
expiration of limitations imposed on scheduled operations at the 
airport. This action is necessary to reduce congestion and delays at 
the airport and is consistent with O'Hare's status as a Schedules 
Facilitated Airport (Level 2) under the International Air Transport 
Association (IATA) Worldwide Scheduling Guidelines (WSG).

DATES: This final rule is effective on October 31, 2008, and SFAR No. 
105 published at 70 FR 39610 (July 8, 2005), as amended in this rule, 
shall remain in effect until October 31, 2010.

FOR FURTHER INFORMATION CONTACT: Gerry Shakley, System Operations 
Services, Air Traffic Organization; telephone: (202) 267-9424; e-mail: 
[email protected]. For legal questions concerning this rule, 
contact: Robert Hawks, Regulations Division, Office of the Chief 
Counsel; telephone: (202) 267-7143; fax: (202) 267-7971; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You may obtain an electronic copy using the Internet by:
    (1) Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You also may obtain a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact its local FAA official, or 
the person listed under FOR FURTHER INFORMATION CONTACT. You can find 
out more about SBREFA on the Internet at http://www/faa/gov/
regulations--policies/rulemaking/sbre--act.

Authority

    The U.S. Government has exclusive sovereignty over the airspace of 
the United States.\1\ Under this broad authority, Congress has 
delegated to the Administrator extensive and plenary authority to 
ensure the safety of aircraft and the efficient use of the nation's 
navigable airspace. In this regard, the Administrator is required to 
assign by regulation or order use of the airspace to ensure its 
efficient use.\2\
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    \1\ 49 U.S.C. 40103(a).
    \2\ 49 U.S.C. 40103(b)(1).
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    The FAA's broad statutory authority to manage the efficient use of 
airspace encompasses management of the nationwide system of air 
commerce and air traffic control. To ensure the efficient use of the 
airspace, the FAA must take steps to prevent congestion at an airport 
from disrupting or adversely affecting the air traffic system for which 
the FAA is responsible. Inordinate delays can have a crippling effect 
on other parts of the system, causing significant losses in time and 
money for individuals and businesses, including the air carriers and 
other operators at O'Hare and beyond. This rule facilitates the 
Agency's exercise of its authority to manage the safe and efficient use 
of the navigable airspace.

Background

    Since November 2003, O'Hare has suffered an inordinate and 
unacceptable number of delays resulting from over-scheduling at the 
airport, which also has had a crippling effect on the entire National 
Airspace System. In August 2004, the FAA intervened by ordering a limit 
on the number of scheduled arrivals at the airport during the peak 
operating hours of 7 a.m. through 8:59 p.m., Central Time, effective 
November 1, 2004, so that the system could return to a reasonably 
balanced level of operations and delay.\3\
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    \3\ Operating Limitations at Chicago International Airport, 
Docket No. FAA-2004-16944.
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    On October 20, 2004, the FAA published a notice of proposed 
rulemaking (NPRM) seeking public comments on a proposed reservation 
system for unscheduled arrivals at O'Hare (69 FR 61708), effective 
November 1, 2004. While this rulemaking was pending, the FAA 
implemented a corresponding voluntary reservation program for 
unscheduled arrivals using the general procedures followed during the 
Special Traffic Management Programs and the High Density Rule.
    On July 8, 2005, the FAA published SFAR No. 105, ``Reservation 
System for Unscheduled Arrivals at Chicago's O'Hare International 
Airport.'' \4\ As stated in SFAR No. 105, the benefits achieved by the 
FAA's August 18 Order would dissipate if certain operations at the 
airport remained capped but other operations were permitted to grow. 
SFAR No. 105 maintained the historical level of unscheduled operations 
at O'Hare and supported other agency actions at O'Hare that address 
congestion and delay until additional capacity exists at the airport.
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    \4\ 70 FR 39610.
---------------------------------------------------------------------------

    In SFAR No. 105, the FAA discussed that it may be necessary to 
extend this

[[Page 64516]]

rule limiting unscheduled arrivals at O'Hare to coincide with a final 
rule addressing scheduled arrivals, if adopted, or with an extension of 
the August 2004 Order. The NPRM addressing scheduled arrivals at O'Hare 
was published on March 25, 2005 (70 FR 15520).
    On November 2, 2005, the FAA extended the expiration date on SFAR 
No. 105 until March 31, 2006.\5\ On March 31, 2006, the FAA extended 
the expiration date on SFAR No. 105 through October 28, 2006,\6\ to 
maintain the current operating environment at the airport while 
considering comments to the proposed rule for scheduled arrivals.\7\
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    \5\ 70 FR 66253.
    \6\ The limits on unscheduled arrivals do not apply on 
Saturdays.
    \7\ 71 FR 16217.
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    On August 29, 2006, the FAA published the ``Congestion and Delay 
Reduction at Chicago O'Hare International Airport'' final rule.\8\ That 
final rule codified the limit on scheduled arrivals initially imposed 
under the FAA's August 2004 Order and expires on October 31, 2008. On 
November 1, 2006, the FAA extended the expiration date on SFAR No. 105 
through October 31, 2008, to coincide with the sunset date of the 
``Congestion and Delay Reduction at Chicago O'Hare International 
Airport'' final rule.\9\
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    \8\ 71 FR 51382.
    \9\ 71 FR 64111.
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    The ongoing implementation of the O'Hare Modernization Program 
should result in increased capacity at the airport. On October 31, 
2008, the ``Congestion and Delay Reduction at Chicago O'Hare 
International Airport'' final rule will sunset, and O'Hare will be 
designated a Schedules Facilitated Airport (Level 2) under the IATA 
WSG. Under the Level 2 guidelines, airlines conducting scheduled 
operations at O'Hare must submit their proposed schedules in advance on 
a semiannual basis and cooperate through schedule adjustments to reduce 
congestion and delays. Through this voluntary system of schedule 
adjustments, O'Hare should be able to utilize the increased capacity 
without restrictions on arrivals and departures.
    Under the Level 2 guidelines, scheduled operations are managed in 
advance to reduce the risks of congestion and delay. Because of the 
nature of unscheduled operations, it is impossible to effectively 
manage capacity significantly in advance of the operations. 
Consequently, to coincide with the Level 2 status of O'Hare, and to 
reduce the risks of congestion and delay, the FAA extends the limits 
imposed by SFAR No. 105 until October 31, 2010.
    Extending the limits imposed by SFAR No. 105 should not unduly 
burden unscheduled operations at O'Hare. The reservation system 
currently in place provides reservations in excess of the number of 
unscheduled flights arriving at O'Hare. From May 2002 to September 
2008, there were on average 25 daily general aviation unscheduled 
operations, which constitute the majority of unscheduled operations. 
This data reflects a decline from 2006 (33 operations in same period) 
and 2007 (29 operations in the same period). Under the current rule, 64 
daily arrival reservations are available for allocation. The data also 
reflects limited demand for public charter flights, which are permitted 
to obtain reservations up to six months in advance of operations. 
Although the demand for unscheduled operations does not exceed 
available capacity, the reservation system spreads the unscheduled 
operations throughout the day to allow the FAA to manage congestion and 
delay, and it provides some advance information about the anticipated 
number of unscheduled operations.
    Because of the current demand levels, the FAA does not believe that 
an increase in the number of hourly reservations exclusively set aside 
for unscheduled arrivals is justified. Additionally, the rule allows 
the approval of additional reservations that do not result in 
significant delay or congestion or when there is additional capacity 
temporarily available, which should provide added flexibility for 
unscheduled operations.
    Therefore, the FAA finds that notice and comment procedures under 5 
U.S.C. section 553(b) are impracticable and contrary to the public 
interest. The FAA further finds that good cause exists to make this 
rule effective in less than 30 days.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to this regulation.

Paperwork Reduction Act

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA submitted a copy of the new information collection 
requirements(s) in this final rule to the Office of Management and 
Budget (OMB) for its review. An agency may not collect or sponsor the 
collection of information, nor may it impose an information collection 
requirement, unless it displays a currently valid OMB control number. 
OMB approved the collection of this information and assigned OMB 
Control Number 2120-0694.

Executive Order 12866 and DOT Regulatory Policies and Procedures

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires 
agencies to analyze the economic impact of regulatory changes on small 
entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits 
agencies from setting standards that create unnecessary obstacles to 
the foreign commerce of the United States. In developing U.S. 
standards, the Trade Act requires agencies to consider international 
standards and, where appropriate, that they be the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation with base year of 
1995). This portion of the preamble summarizes the FAA's analysis of 
the economic impacts of this final rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    In the preamble of SFAR No. 105, the FAA stated that it might 
consider extending SFAR 105 for a time period that would coincide with 
a final rule limiting scheduled operations. The FAA will continue to 
extend this SFAR

[[Page 64517]]

through October 31, 2010. The rule requires maintaining the current 
level of operations at Chicago O'Hare to ensure consistency with 
O'Hare's Level 2 status. In the final economic assessment of SFAR No. 
105, the FAA found that the rule provided system delay benefits at 
minimal cost. Similarly, the FAA finds that this extension is cost 
beneficial by continuing to provide system delay benefits at minimal 
cost.
    FAA has, therefore, determined that this final rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    This final rule extends the expiration date of SFAR No. 105, which 
provides for fewer airport delays at minimum cost. Just as in the 
initial and final regulatory flexibility analyses, the FAA expects 
there will be a substantial number of small entities affected by the 
extension of this SFAR, however, the economic impact continues to be 
insignificant.
    Therefore as the acting FAA administrator, I certify this rule will 
not have a significant economic impact on a substantial number of small 
entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal 
agencies from establishing any standards or engaging in related 
activities that create unnecessary obstacles to the foreign commerce of 
the United States. Legitimate domestic objectives, such as safety, are 
not considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. The FAA has assessed the 
potential effect of the extension of this final rule and has determined 
that it not have an effect on foreign commerce.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $136.1 million in lieu of $100 
million. This final rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

Executive Order 13132, Federalism

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. The FAA determined that 
this action will not have a substantial direct effect on the States, or 
the relationship between the national Government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the FAA determined that this final rule does 
not have federalism implications.

Environmental Analysis

    FAA Order 1050.1E identifies FAA actions that are categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act in the absence of extraordinary circumstances. The FAA has 
determined this proposed rulemaking action qualifies for the 
categorical exclusion identified in paragraph 312f, and involves no 
extraordinary circumstances.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

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

List of Subjects for Part 93

    Air traffic control, Airports, Navigation (air), Reporting and 
recordkeeping requirements.

The Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends chapter I of title 14 Code of Federal Regulations as follows:

PART 93--SPECIAL AIR TRAFFIC RULES AND AIRPORT TRAFFIC

0
1. The authority citation for part 93 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502, 
44514, 44514, 44701, 44719, 46301.


0
2. In part 93, Special Federal Aviation Regulation (SFAR) No. 105 is 
amended by revising Section 9 to read as follows:

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

* * * * *
0
Section 9. Expiration. This Special Federal Aviation Regulation expires 
at 9 p.m., Central Time, on October 31, 2010 unless sooner terminated.

    Issued in Washington, DC, on October 24, 2008.
Robert A. Sturgell,
Acting Administrator.
[FR Doc. E8-25904 Filed 10-29-08; 8:45 am]
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