Reservation System for Unscheduled Arrivals at Chicago's O'Hare International Airport, 39610-39622 [05-13363]

Agencies

• Federal Aviation Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 130 (Friday, July 8, 2005)]
[Rules and Regulations]
[Pages 39610-39622]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13363]



[[Page 39609]]

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Part III





Department of Transportation





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14 CFR Part 93



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

Federal Register / Vol. 70, No. 130 / Friday, July 8, 2005 / Rules 
and Regulations

[[Page 39610]]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No.: FAA-2004-19411; SFAR No. 105]
RIN 2120-AI47


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

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The FAA is adopting a reservation system to limit the number 
of unscheduled aircraft arrivals at Chicago's O'Hare International 
Airport (O'Hare) during the peak hours of 7 a.m. through 8:59 p.m., 
central time, Monday through Friday, and 12 p.m. through 8:59 p.m. 
central time on Sunday. This Special Federal Aviation Regulation (SFAR) 
is effective through October 28, 2005. This action is consistent with 
other FAA actions regarding scheduled arrivals at O'Hare, which 
combined together effectively reduce congestion and delays at the 
airport.

DATES: This SFAR becomes effective August 8, 2005.

FOR FURTHER INFORMATION CONTACT: Gerry Shakley, System Operations 
Services, Air Traffic Organization; telephone (202) 267-9424; facsimile 
(202) 267-7277; e-mail gerry.shakley@faa.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You can get an electronic copy using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (https://dms.dot.gov/search);
    (2) Visiting the Office of Rulemaking's Web page at https://
www.faa.gov/avr/arm/index.cfm; or
    (3) Accessing the Government Printing Office's Web page at https://
www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy by submitting 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.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
https://dms.dot.gov.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. If you are a small entity and you have a question 
regarding this document, you may contact a local FAA official or the 
person listed under FOR FURTHER INFORMATION CONTACT. You can find out 
more about SBREFA on the Internet at https://www.faa.gov/avr/arm/
sbrefa.cfm.

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 of the sort experienced at 
O'Hare in late 2003 and much of 2004 can have a crippling effect on 
other parts of the system, causing significant losses in time and money 
for individuals and businesses, as well as the air carriers and other 
operators at O'Hare and beyond.
    In 1968, under this statutory authority, the FAA designated O'Hare 
as a High Density Traffic Airport and through the High Density Rule 
(HDR) limited the number of takeoffs and landings at O'Hare.\3\ Under 
14 CFR 93.125, operators at each HDR airport including O'Hare must 
obtain a reservation or slot for each instrument flight rules (IFR) 
takeoff or landing. The HDR remained in effect at O'Hare for over three 
decades. At the time of the rule's sunset at O'Hare, scheduled peak-
hour air carrier and commuter operations (including both arrivals and 
departures) were limited to 145 per hour, with ten additional 
reservations available for the ``other'' category of unscheduled 
operations.\4\
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    \3\ 33 Fed. Reg. 17896 (1968). The FAA codified the rules for 
operating at high density traffic airports in 14 CFR part 93, 
subpart K. The regulatory limits of subpart K were lifted at O'Hare 
after July 1, 2002.
    \4\ 14 CFR 93.123(a)(2004). The ``Other'' class of users 
includes general aviation, charter, military, public aircraft, and 
other unscheduled operations by air carriers and foreign air 
carriers.
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    Each reservation for an unscheduled operation at an HDR airport is 
for a single arrival or departure flight on a specific day within a 
specific 30 or 60-minute timeframe. FAA Advisory Circular No. 93-1, 
``Reservations for Unscheduled Operations at High Density Traffic 
Airports,'' describes the procedures for obtaining a reservation 
beginning 72 hours in advance of the proposed arrival or departure. The 
FAA uses similar procedures during Special Traffic Management Programs 
that are initiated during special events such as major conventions or 
sporting events that cause temporary increases in airport demand.

Background

    Since November 2003, O'Hare has suffered an inordinate and 
unacceptable number of delays as the result of over-scheduling at the 
airport, which was also having a crippling effect on the entire 
National Airspace System. In August 2004, the FAA intervened by 
ordering a limit on the number of scheduled arrivals at the airport 
during the peak operating hours of 7 a.m. through 8:59 p.m. effective 
November 1, 2004, so that the system could return to a reasonably 
balanced level of operations and delay.\5\ 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, the same date the 
restrictions on scheduled arrivals took effect, the FAA implemented a 
corresponding voluntary reservation program for unscheduled arrivals 
using the general procedures followed during Special Traffic Management 
Programs and the HDR. Consequently, many aircraft operators are 
familiar with the procedures the FAA is adopting in this rule.
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    \5\ Operating Limitations at Chicago Internaitonal Airport. 
Docket No. FAA-2004-16944.
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    In the NPRM, we discussed the background events that led the agency 
to conclude that changes to the arrival system at O'Hare were necessary 
and

[[Page 39611]]

provided a basis for the proposed SFAR. We specifically recognized that 
the primary reason for the unacceptable congestion and delays at O'Hare 
was due to increased arrivals of scheduled flights. We also recognized 
that the overall number of unscheduled arrivals at O'Hare has been 
stable. As each operation at the airport was disadvantaged and impacted 
by the recent congestion, each operation correspondingly contributes to 
the cumulative demand. The NPRM proposed retaining the historic average 
number of weekday arrivals at O'Hare during peak hours for unscheduled 
operations, which is four per hour. We did not propose an increase for 
unscheduled arrivals beyond this average, except for the ability to 
respond to favourable operating conditions by adding reservations when 
permissible; but we also did not propose reductions similar to those 
made by scheduled air carriers in March, June, and November of 2004.
    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. This rule will maintain the 
historical level of unscheduled operations at O'Hare and support other 
agency actions at O'Hare that address congestion and delay until 
additional capacity exists at the airport.

Discussion of Comments

    We received 12 comments during the comment period and six 
additional comments after the closing date. Fifteen commenters opposed 
the proposed rule, including the National Air Carrier Association 
(NACA), Gannett, Alticor Aviation, Dow Chemical, National Air 
Transportation Association (NATA), National Business Aviation 
Association (NBAA), General Aviation Manufacturers Association (GAMA), 
Illinois Department of Transportation, City of Chicago, Thomas Cook 
Airlines, Blue Cross/Blue Shield of Tennessee, Mark Travel Corp., Apple 
Vacations, and two citizens. The Air Transport Association (ATA) 
supported the proposal. Two of the comments appear to be college 
writing assignments and do not provide any new information or 
suggestions.
    Most of the objecting commenters support the need to require 
scheduling changes by those carriers conducting scheduled service. They 
argue that it is the increases in scheduled flights that caused the 
congestion and the proposed solution here is unfair to those conducting 
unscheduled operations. They contend that the proposal fails to address 
the nature of charter, business, and general aviation operations. They 
also argue that a significant number of passengers on unscheduled 
flights connect to scheduled flights at O'Hare and that it is not 
practical to operate at other Chicago area airports. Some commented 
that there should be exceptions for flights supporting aircraft 
maintenance and that small corporate aviation departments may be at a 
disadvantage getting reservations in comparison to the greater 
resources of larger aircraft operators. Furthermore, it is also argued 
that the proposal unfairly impacts the fixed base operator at the 
airport.

Public Charters

    Four commenters (Thomas Cook Airlines, NACA, Mark Travel Corp., and 
Apple Vacations) requested that we redefine the term ``unscheduled 
operator'' and clarify that public charters are included in this 
term.\6\ These commenters contend that although they are technically 
``unscheduled operators,'' they typically plan their flight and other 
tour arrangements anywhere from between 6 months and 1 year in advance 
in order to obtain gates, customs approval and secure ground handling 
agreements. Under Department of Transportation (DOT) regulations (14 
CFR part 380), a public charter operator must file a prospectus with 
the DOT that includes the flight schedule, a listing of the origin/
destination cities, dates, type of aircraft, number of seats and 
charter price for each flight. These four commenters also state that 
since these public charter flights may be scheduled up to one year in 
advance, it is extremely difficult to assume responsibility for 
arrangements such as gate handling, customs, hotel, and to only be able 
to obtain a flight reservation at a key airport such as O'Hare 72 hours 
in advance of the actual flight. For example, Apple Vacations provided 
an example of a pending prospectus that it filed for flights between 
December 2004 and December 2005, which covers 495 roundtrip operations 
(including weekends and off-peak hours) between O'Hare and Cancun, and 
O'Hare and various Caribbean and Mexican points. Moreover, DOT rules 
prohibit a charter operator from cancelling a public charter for any 
reason, except for circumstances that make it physically impossible to 
perform the charter trip, less than 10 days before the scheduled date 
of the departure of the outbound flight. (See 14 CFR 380.12.) 
Consequently, these commenters propose that public charter operators be 
permitted to obtain the arrival reservation six months prior to the 
planned flight or at the same time that the public charter operator 
files its prospectus at DOT.
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    \6\ In the NPRM, we proposed that the term, unscheduled operator 
include irregular charter, hired aircraft service, ferry flights and 
other non-passenger flights.
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    We agree that public charters should be included in the unscheduled 
operation category at O'Hare, but find that these operations differ in 
certain respects from other unscheduled operations and thus require 
limited accommodations in this rule. In order to accurately define the 
type of operations included in the category of unscheduled operations, 
we have revised the definition of the term ``unscheduled arrival'' and 
have included the terms public charter and public charter operator. 
Both terms are defined in 14 CFR part 380, which sets forth DOT 
regulations governing public charters. Section 380.2 defines a public 
charter as a one-way or round-trip charter flight to be performed by 
one or more direct air carriers that is arranged and sponsored by a 
charter operator. This section also defines a public charter operator 
as a U.S. or foreign public charter operator. We are adopting these two 
terms as defined in 14 CFR part 380. In addition, we are removing from 
the definition of unscheduled operation, ``irregular,'' as that term 
does not accurately reflect public or on-demand charters, and we are 
withdrawing the term ``unscheduled operator'' since it is unnecessary.
    We also agree that the advance planning necessary for public 
charter operations and compliance with 14 CFR part 380 justifies 
certain relief from the proposed 72-hour window for obtaining an 
arrival reservation.
    We have reviewed operational data for the three carriers that 
historically and regularly have conducted public charter operations at 
O'Hare (USA3000 Airlines, Ryan International Airlines, and 
TransMeridian Airlines). Recent data since October 2004 indicates that 
these carriers average approximately four peak day (Thursday) arrivals 
during the peak hours, mostly in the late afternoon and early evening 
hours. The majority of these flights operate on less than a daily basis 
and some operate to certain destinations on a seasonal basis. Mark 
Travel indicates it did not increase operations in the January to July 
2004 period over the level it conducted in the same period in 2003 and 
NACA estimates there typically would be no more than six to eight peak 
period public charter flights on a given day.
    In determining that four arrivals per hour accommodates the 
historic hourly

[[Page 39612]]

(weekday) level of unscheduled arrivals at O'Hare, we included public 
charter operations, other charter and unscheduled flights that did not 
appear in the Official Airline Guide. Under this rule, a minimum of 54 
arrival reservations during the 14 controlled hours will be available 
for general aviation and other unscheduled arrivals. This is expected 
to be sufficient to meet the historic needs of general aviation, public 
charter, and other unscheduled operators.
    Based on this, we have included a limited exception to the 72-hour 
period to accommodate the specific needs of public charter operations. 
This rule provides that public charter operators may obtain up to one 
reservation per hour up to six months in advance of the planned 
arrival. This limitation appears to be sufficient to accommodate the 
expected public charter demand, as described above. This provides 
public charter operators with opportunity to obtain a daily total of 14 
reservations well in advance and the flexibility to schedule their 
arrivals throughout the peak period. Due to the DOT regulatory limits 
on cancellation of public charter flights within 10 days of the flight, 
cancellations of any advance public charter arrival reservations would 
be available for inclusion in the regular 72-hour reservation pool.
    The Airport Reservation Office (ARO) process was developed to 
accept requests and issue reservations for a short window of time. For 
public charter operations that seek a reservation between the dates of 
6 months prior to the scheduled operation and 72 hours prior to the 
scheduled operation, the FAA's Slot Administration Office is able to 
accept and process these requests. Carriers seeking reservations for 
public charter operations may follow the process proposed for any 
entity seeking a reservation 72 hours in advance, or they may contact 
the Slot Administration Office and provide the necessary information to 
receive a reservation up to 6 months in advance, if available.
    Public charter operators must provide the Slot Administration 
Office with a certification that its prospectus has been accepted by 
the DOT in accordance with 14 CFR part 380 for the flight requiring a 
reservation; the call sign/flight number to be used for ATC 
communication by the direct air carrier conducting the operation; the 
date and time of the proposed arrival(s); origin airport immediately 
prior to O'Hare and aircraft type. A public charter operator must 
notify the Slot Administration Office of any changes to the above 
information once a reservation has been allocated. If each of the 
arrival reservations reserved for public charters has been allocated, a 
public charter operator may request a reservation through the ARO 
beginning 72 hours in advance.

Private Charter and Business Aviation

    NATA claims that the proposed reservation system will have a 
serious, adverse impact on charter and business aviation, arguing the 
FAA has failed to consider the ``on-demand'' nature of these 
operations. NATA further argues that simply arranging the planned time 
for a particular flight should a reservation not be available is not a 
practical solution since travellers rely on general aviation to make a 
connecting flight out of ORD. The ability to easily connect to a flight 
out of Chicago is particularly problematic for travellers coming from 
remote communities.
    The FAA finds NATA's comments in this regard unpersuasive. The 
agency believes that the vast majority of charter and business aviation 
can be easily accommodated under the reservation system implemented 
today. A brief review of the voluntary reservation system in effect 
since last November indicates that requests for reservations are fairly 
evenly distributed throughout the 72-hour period provided, with 
approximately one third of the reservations filled on each day. Thus, 
reservations are likely available for on-demand operations. 
Additionally, the FAA believes NATA has overstated the need to obtain a 
reservation at a moment's notice. Most travellers connecting to a 
scheduled flight out of ORD will have purchased a ticket for that 
flight well in excess of 72 hours before its departure. Likewise, most 
business meetings are scheduled sufficiently in advance that calling 
for an arrival reservation up 72 hours in advance of anticipated 
arrival should not pose a problem.

Military and Public Aircraft Operations

    The Illinois Department of Transportation commented that flights 
operated by and for the State of Illinois should be accommodated 
notwithstanding the reservation limit, and that State business often 
requires a tight time schedule utilizing the most efficient and 
advantageous airport and ground transportation system. The City of 
Chicago requests that since O'Hare handles very few military and public 
use aircraft flights, these operations should be exempted from the 
limits due to the critical nature of their schedules.
    Historically under the HDR, military operations and public use 
aircraft operations were subject to the reservation requirement. As 
stated previously, this rule does not limit the airport to fewer than 
the average number of unscheduled operations, including military and 
public aircraft operations, that are currently conducted or have been 
conducted since the HDR limits were eliminated in July 2002. This rule 
does, however, spread these operations over several hours.
    Military and public aircraft are subject to this final rule and are 
expected to obtain reservations for most flights through the adopted 
procedures using e-CVRS or the ARO. As provided for in proposed section 
6.c. (now codified as section 7.c.), the FAA will accommodate non-
emergency flights in support of national security, law enforcement, or 
similar requirements above the administrative limit with prior approval 
by the FAA. We intended to include military operations and public use 
aircraft operations in paragraph 7.c. However, we are clarifying the 
regulatory text by specifically listing these operations. We anticipate 
these exceptions to be limited. Since the operations must be approved 
in advance by the ARO, changes to proposed arrival times may be 
necessary to minimize impacts at the airport if needed. We do not 
support a blanket exception for flights of this nature. The incremental 
addition of just a few flights during peak hours cumulatively affects 
the airport. Carriers conducting scheduled operations have had to 
either reduce operations or limit growth to reach the manageable level 
that exists today and most of the unscheduled arrivals at O'Hare will 
be covered by this rule. While the FAA does not expect or intend for 
unscheduled operators at the airport to be unfairly burdened, it 
certainly is not fair to categorically exclude all military and public 
aircraft flights while limiting general aviation and others with 
similar time or operational constraints. The public interest is served 
by permitting access for these flights but they still remain subject to 
the rule.

Number of Arrival Reservations, Applicable Hours, and Other Operational 
Issues

    Several commenters indicated the number of arrivals should be 
increased to six per hour (Apple Vacations, NACA and Thomas Cook 
Airlines) based on the relative percentage of scheduled and unscheduled 
reservations available under the HDR. As indicated earlier, we based 
the average of four arrivals per hour on recent, historic average 
unscheduled arrivals. While comments were submitted regarding the 
impact that the closure of Meigs Field has had

[[Page 39613]]

on O'Hare, traffic previously conducted at Meigs has already been 
accommodated at O'Hare and other airports in the area, and is already 
included in the determination of the four arrivals per hour. However, 
historic usage after the slot controls were eliminated does not support 
establishing a pool of six unscheduled arrivals per hour simply because 
scheduled arrivals have increased during the same time. Thus, we do not 
find a basis to increase the hourly allotment of four reservations to 
six.
    The City of Chicago requested we include some flexibility in the 
rule for the unscheduled operations arrival rate when unique local 
events are taking place in the Chicago area. The City further requested 
that the reservation program commence at 8 a.m. rather than 7 a.m., as 
proposed in the notice. The City contends that moving the restrictions 
an hour later will allow business executives to schedule a morning 
meeting in the 8:30 a.m. or 9:30 a.m. time periods and not be in doubt 
about their ability to make the meeting because they would not need to 
get a reservation. The City argues that air traffic tends to be lower 
in the 7-7:59 a.m. timeframe in comparison to the rest of the day.
    We have reviewed the proposed hours of limitations and are 
eliminating the proposed restrictions on Saturdays and until noon on 
Sundays since total demand during those periods is typically within 
average airport capacity. We are concerned that eliminating all 
restrictions in the 7 a.m. hour for unscheduled arrivals, and possibly 
a corresponding elimination for scheduled arrivals, would lead to 
demand immediately before the 8 a.m. hour, which could place the 
airport in an early morning delay situation. While we have decided to 
retain the reservation requirement for weekdays beginning at 7 a.m., 
the rule does provide that the FAA may make additional reservations 
available should capacity exist and significant delays not be expected. 
The FAA intends to use that authority to provide opportunities for 
reservations for unscheduled operations when arrivals set aside for 
scheduled operations are not expected to be used; when capacity exists 
in the system; and when events or other local circumstances warrant 
special consideration. We believe the flexibility to add reservations 
in positive operating conditions could allow greater access by general 
aviation and other unscheduled operations without the risks of having 
to implement restrictions later in the day.
    The General Aviation Manufacturers Association (GAMA) commented 
that visual flight rules (VFR) flights should be accommodated as space 
is available in real-time, and should not require an advance 
reservation. The FAA's review indicates the number of unscheduled VFR 
arrivals at O'Hare is minimal, and since they occur when operating 
conditions are favorable, typically there is capacity to accommodate 
additional operations. FAA air traffic control procedures also provide 
that these VFR flights will be accommodated as traffic and workload 
permits. Therefore, the limits on unscheduled VFR arrivals will not be 
necessary and the final rule excludes these flights. GAMA further 
comments that arrival reservations should not apply to any runway less 
than 5,000 feet in length that does not intersect with another runway 
greater than 5,000 feet in length. The FAA established historic levels 
of arrivals at O'Hare based on experience with the airport acceptance 
rates, different runway configurations, and operating conditions. We do 
not find it feasible to exempt unscheduled arrivals utilizing specific 
runways since an operator could not be certain it would be cleared to 
land on a qualifying runway until shortly before arrival.
    NACA also requested that the FAA accommodate flights that want to 
arrive at O'Hare as a result of designating O'Hare as an alternate 
airport for flight planning purposes. There are various types of 
restrictions that may be applicable to a particular airport. Due to 
runway configuration, certain aircraft may not be able to operate at an 
airport. There may be noise restrictions, departure procedures, and 
other operational procedures that must be factored into flight planning 
purposes and the selection process of an alternate. This reservation 
system at O'Hare must be considered as such a restriction. It is a 
traffic management tool and if an unscheduled IFR operation intends to 
use O'Hare as an alternate, that operator must be prepared to meet all 
the requirements necessary to operate at the airport, including a 
reservation. While O'Hare may be the preferable choice as an alternate 
from the operator's view, it is not feasible to exacerbate the 
cumulative impacts of demand by both scheduled and unscheduled service. 
The reservation requirement unquestionably does not apply in the case 
of an emergency. However, while not prepared to categorically permit 
the regular use of O'Hare as an alternate airport and not have the 
required reservation, we recognize there may be circumstances when 
safety or other considerations lead an operator to arrive at O'Hare 
without a reservation and current regulations provide for those cases.

Foreign Air Carriers

    NACA opposes exclusion of unscheduled flights by foreign air 
carriers from the requirement to obtain a reservation to arrive at 
O'Hare and comments that excluding foreign fifth freedom charter 
operators to abide by the reservation system will give foreign charter 
air carriers and enormous competitive advantage over U.S. charter 
carriers.
    Given our decision on public charter operations, which is the main 
focus of NACA's concern, we do not find that the exclusion of foreign 
air carriers from the provisions of this rule will result in any 
competitive advantage over U.S. carriers conducting charter operations. 
Under the adopted provisions for public charter operations, the 
reservation is requested by and allocated to the public charter 
operator, regardless of whether the charter is operated by a U.S. or 
foreign air carrier. The public charter operator retains the discretion 
to select the direct air carrier. Thus, this rule does not provide any 
advantage to a public charter operator to select a U.S. certificated 
carrier or a foreign air carrier.
    With respect to non-public charter operations by foreign air 
carriers, which also will not require a reservation, these operations 
account for a de minimus level of activity at O'Hare and are either 
covered by bilateral agreement between the foreign carrier's homeland 
and the United States (to which NACA does not object) or are authorized 
by the Department of Transportation subject to public interest finding. 
Therefore, we do not believe that excluding these operations from the 
reservation requirement will have an adverse impact on U.S. charter 
carriers.

Effective Date

    On March 21, 2005, the FAA extended the August 18, 2004 Order on 
scheduled arrivals at O'Hare through Saturday, October 29, 2005 (70 FR 
15540; March 25, 2005). This SFAR is effective through Friday, October 
28, 2005, since the adopted limits for unscheduled arrivals do not 
apply on Saturdays. The FAA also issued an NPRM on March 18, 2005, 
inviting comment on alternatives to address congestion at O'Hare, 
ranging from letting the current limits on scheduled and unscheduled 
arrivals expire, to adopting limitations on operations through April 5, 
2008, which is when additional capacity might become available or 
market-based approaches are implemented. (70 FR 15520; March

[[Page 39614]]

25, 2005). The FAA expects that similar actions on limitations and the 
potential duration would be taken for both scheduled and unscheduled 
operations. If a rule is adopted to limit scheduled arrivals at O'Hare, 
the FAA would consider extending this SFAR for a similar duration. 
Several commenters, including NATA, NBAA, and some of the corporate 
aircraft operators, raised concerns that the reservation system was a 
reimposition of the expired HDR. NBAA notes that the HDR began as a 
temporary measure but remained in place for many years. NBAA comments 
that the rule should only apply for 6 months. GAMA recommends that the 
FAA establish a formal review process, perhaps on a two-year basis, to 
determine if limits are still needed.
    We agree that a sunset provision is appropriate and this rule will 
expire on October 28, 2005. The NPRM on alternatives to address 
congestion at O'Hare after that date will consider issues such as the 
duration of any proposed limits and periodic reviews such as GAMA 
suggested. The agency will consider whether this SFAR should be 
extended if necessary.

Paperwork Reduction Act

    Information collection requirements associated with this final rule 
have been approved previously by the Office of Management and Budget 
(OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), and have been assigned OMB Control Number 2120-0694.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA submitted a copy of the new information collection 
requirements(s) in this final rule to the Office of Management and 
Budget (OMB) for its review. OMB approved the collection of this 
information and assigned OMB Control Number 2120-0694.
    This final rule establishes a reservation system to limit the 
number of unscheduled aircraft arrivals at Chicago's O'Hare 
International Airport (O'Hare) during the peak hours of 7 a.m. through 
8:59 p.m., central time, Monday through Friday, and 12 p.m. through 
8:59 p.m. central time on Sunday. We received no comments from the 
public that specifically discussed information collection.
    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.

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 has 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to these regulations.

Economic Assessment, Regulatory Flexibility Determination, 
International Trade Impact Assessment, and Unfunded Mandates Assessment

    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 
the benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from 
setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. In developing U.S. standards, this Trade 
Act requires agencies to consider international standards and, where 
appropriate, that they be the basis for 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).
    The Department of Transportation Order DOT 2100.5 prescribes 
policies and procedures for simplification, analysis, and review of 
regulations. If it is determined that the expected cost impact is so 
minimal that a proposal does not warrant a full evaluation, this order 
permits a statement to that effect and the basis for it be included in 
the preamble and a full regulatory evaluation cost benefit evaluation 
need not be prepared. The FAA did make such a determination for this 
final rule.
    This final rule will apply to unscheduled instrument flight rule 
(IFR) arrival operations at O'Hare. For purposes of this rule, 
unscheduled arrivals are those conducted as public, on-demand and other 
charter flights, hired aircraft service, ferry flights, general 
aviation, and other non-passenger flights. In this economic evaluation, 
we have considered the effects on operators of on-demand charters, and 
public charters both domestic and foreign, general aviation, military, 
and public use flights.
    The FAA used the Air Traffic Control System Command Center's 
(ATCSCC) Enhanced Traffic Management System (ETMS) data to determine 
the historical count of unscheduled arrivals at O'Hare. The ETMS 
database records all flights with flight plans conducted at the 
airport. The unscheduled flights are defined to include all flights not 
listed in the Official Airline Guide (OAG) reported in FAA Flight 
Schedule Data System (FSDS) database. Since this system is updated 
daily to reflect any changes, it gives an accurate list of scheduled 
operators and the number of scheduled arrivals planned for O'Hare. 
Therefore, O'Hare's unscheduled demand is determined by subtracting all 
OAG scheduled flights from the total flights reported in the ETMS 
database.
    The FAA analyzed both annual and monthly arrivals at O'Hare over 
the 2000-2005 periods. We found that unscheduled arrivals are a small 
and stable share of all flights conducted at O'Hare. As there is little 
variation in the flight arrival distribution by major passenger group 
across the monthly arrivals from January 2004 through March, 2005, we 
used the most current month, March, 2005, for the detailed discussion 
that follows. Table 1 shows O'Hare's monthly and average daily arrival 
count for scheduled and unscheduled arrivals by major passenger group 
during March 2005.\7\ These unscheduled flights were conducted by on-
demand air taxis, public charters, general aviation, military, and 
public use operators. Daily, there were 1,352 arrivals, with 1,322 
scheduled arrivals by domestic and foreign operators, accounting for 
97.8 percent of the total arrival flights at O'Hare. There were 30 
daily unscheduled arrivals, which includes 4 unscheduled cargo 
arrivals, accounting for 2.2 percent of the total O'Hare arrivals.
---------------------------------------------------------------------------

    \7\ The FAA considered monthly data from January 2000 through 
March 2005. The comparison with other months indicates the results 
are similar to the March 2005 data.

[[Page 39615]]



                     Table 1.--Distribution of O'Hare Monthly and Daily Arrivals: March 2005
----------------------------------------------------------------------------------------------------------------
                                                                                      Hourly
                                     Number of        Actual       Average daily   arrivals for       Percent
                                     operators       arrivals        arrivals       14-hour day
----------------------------------------------------------------------------------------------------------------
Domestic Scheduled Arrivals.....              39          39,520           1,275           91.06            94.3
    Scheduled Passenger/Cargo...              29          39,001           1,258           89.86            93.1
    Scheduled Cargo Only........              10             519              17            1.20             1.2
Domestic Unscheduled Arrivals...              45             932              30            2.15             2.2
    Unscheduled Passenger/Cargo.              39             820              26            1.89             1.9
    Unscheduled Carrier Cargo                  6             112               4            0.26              .3
     Only.......................
Foreign Scheduled Arrivals......              43           1,451              47            3.34             3.5
    Scheduled Passenger/Cargo...              39           1,342              43            3.09             3.2
    Scheduled Cargo Only........               4             109               4            0.25              .3
        Total O'Hare Arrivals...             127          41,903           1,352           96.55           100.0
----------------------------------------------------------------------------------------------------------------

    To estimate the compliance cost of this rule, we first identify who 
would incur the potential costs. In particular, we wanted to identify 
operators flying for commercial reasons where arrival constraints could 
be burdensome. Private, noncommercial operators have substantially more 
arrival flexibility than a public charter or air taxi operator. To 
identify the operators that may be affected by this rule, we looked at 
individual flights in the ETMS database for March 2005. We identified 
about 45 operators conducting unscheduled arrivals at O'Hare.\8\ 
General aviation operations are the largest share of the 932 arrival 
flights during March 2005. The general aviation operators conducted 431 
unscheduled arrivals, or nearly 46 percent of the total unscheduled 
arrivals. Analysis of monthly data suggest the number of general 
aviation flights at O'Hare have remained stable. Besides the general 
aviation operators, we identified three public charter operators 
conducting 228 unscheduled arrivals, three military or public use 
operators conducting 9 unscheduled arrivals, and about 36 on-demand air 
taxis providing passenger or cargo flights, which accounted for 264 
unscheduled arrivals.
---------------------------------------------------------------------------

    \8\ The general aviation flights were aggregated and not 
identified by individual operator in the ETMS database, which is 
used in this regulatory evaluation to identify scheduled and 
unscheduled operations.
---------------------------------------------------------------------------

    On-demand Air Taxi and Public Charter Flights--These operators are 
typically, either on-demand air taxi flights that operate unscheduled 
air transport service for hire under 14 CFR part 135, or public charter 
flights governed by 14 CFR part 380. Most on-demand air taxi operators 
provide air transport services to serve customers who desire a flexible 
schedule.
    Public charters provide low-cost air transport service with fairly 
firm, future travel schedules. Public charter flights may include only 
the flights, or be sold as a package and include hotels, guided tours, 
and ground transport. The Department of Transportation (DOT) requires 
public charter operators to register with the Office of Aviation 
Analysis, Special Authorities Division and to file a prospectus before 
they operate, sell, or receive money from any prospective participant. 
The prospectus (14 CFR 380.25) must spell out all the terms of the 
contract with a prospective participant as well as all travel schedules 
and itineraries. While public charter flights and ground arrangements 
are subject to change, operators cannot cancel a public charter fewer 
than 10 days before departure, except under restrictive rules. Under 
this final rule, the FAA provides a limited waiver of the 72-hour 
advance reservation provision for public charters. Under this final 
rule, one arrival reservation per hour can be requested as early as 6 
months before the arrival date.
    General Aviation Flights--General aviation at O'Hare usually are 
private, corporate, or business flights. These general aviation flights 
account for a small share of all flights at O'Hare, but represent the 
largest share of unscheduled arrivals at O'Hare. General aviation 
operators have substantially more arrival-time flexibility than the 
for-hire operators.
    Of the total 932 unscheduled arrivals in March 2005, 431 arrivals 
were classified for the purposes of this analysis as general aviation. 
This is less than 1 flight per hour for the 14-peak hour periods 
applicable to this rule. Foreign Flights--The rule will not affect 
foreign carriers. Under this rule, foreign public charters will operate 
under Part 380 in the same manner and conditions as U.S. registered 
operators. The rule provides limited exception to the 72-hour advance 
reservation requirement for public charter operators. Given the special 
filing requirements for public charters, the FAA will allow operators 
to request one arrival reservation per hour and allocation up to 6 
months, rather than only 72 hours, before the flight.
    Military and Public Use Flights--No significant change is expected 
for military or public use operations. The arrival limit is consistent 
with the historical number of unscheduled arrivals, including those of 
military and public use aircraft. FAA intends to grant non-emergency 
flights in support of national security, law enforcement, or similar 
requirements above the arrival limit on a case-by-case basis with prior 
FAA approval. However, the FAA does not intend to provide a blanket 
exception for this category of user and it is expected that most of 
these flights will obtain reservations using the same procedures as 
other unscheduled operators.
    Visual Flight Rule Arrivals--The hourly limit for unscheduled 
arrivals applies to IFR arrivals, not to unscheduled VFR arrivals. The 
FAA Air Traffic Control procedures currently allow VFR flights under 
favorable weather and ATC conditions.

Economic Impacts on Unscheduled Operators

    The FAA evaluated the following three cost categories that may 
occur because of this final rule to assess the potential impact on 
unscheduled operators and their passengers:
     Unscheduled reservations requirements under the 72-hour 
advance reservation procedures
     Potential lost revenue because of restricted flights at 
O'Hare
     Use of alternative airports--ground transport and 
passenger's value of time costs
    The summary results of these potential costs suggest that this rule 
will have a minimum impact on the affected entities. The private 
reservation costs will be less than $2.00 per reservation, or only 
$14,611 for the 6-month period of this rule. The FAA also estimated the 
public reservation costs resulting from this rule will be $16,119 for 
the 6-month

[[Page 39616]]

period used in this analysis. The FAA will be able to grant arrivals 
for nearly all unscheduled operators with modest changes to arrival 
time. If the available reservations are not acceptable to the operator, 
they will still have the choice of using an alternative airport. For 
purposes of estimating the upper limit of potential costs of this rule, 
the FAA estimates the potential costs for ground transportation and 
passenger value of time for using an alternative airport such as Midway 
will be $9,600 or $160 per round-trip for the affected passengers. 
However, since the historical number of unscheduled arrivals at O'Hare 
has been 4 or less, FAA expects only a few flights may use an 
alternative airport. Further, unscheduled operators will not lose 
revenue because of this rule, since the total unscheduled flights to 
Chicago will not be reduced. Therefore, the FAA expects the potential 
costs incurred by unscheduled operators, their passengers, and the FAA 
because of this rule will be de minimus. A detailed discussion of each 
cost category is provided below.

Reservation Costs for Unscheduled Arrivals

    For this analysis, the FAA estimated the total private and public 
costs to place reservations for unscheduled arrivals would be $30,730. 
Historically under the high-density rule (HDR) at O'Hare, unscheduled 
operators could request reservations up to 48 hours before the arrival. 
It was extended to 72 hours in 2002. Under this final rule, unscheduled 
arrivals at O'Hare may request a reservation beginning 72 hours in 
advance, except for public charters, who may request reservations 
beginning 6 months before the arrival date.
    The reservations made 72 hours in advance or less must be made with 
the FAA's Airport Reservation Office (ARO) using the Enhanced Computer 
Voice Reservation System (e-CVRS), which is already in use at O'Hare 
and other designated airports. Reservations will be assigned on a 30-
minute basis, with not more than two arrivals in a half-hour period. 
Operators can request a reservation using touch-tone telephone, an 
Internet web interface using electronic information technology, 
automated telephone systems and calls direct to ARO. As these systems 
are already in place, the unscheduled reservations need no new capital 
or equipment. Reservations requested up to 6 months in advance are made 
through the Slot Administration Office.
    For the approximately 6-month period for which the proposal would 
be in effect, we estimate these operators will make more than 10,000 
reservations, requiring more than 20,000 minutes (340 hours), and 
costing $14,611. This private cost estimate for the reservation 
requirement equals the added labor costs to place reservations for 
unscheduled arrivals. The FAA expects pilots or flight engineers to 
make the unscheduled flight reservations. The pilots of unscheduled 
flights perform many non-flying duties including record keeping and 
scheduling. The fully burdened rate is $43.01 an hour for airline 
pilots, copilots, flight engineers, and those of commercial pilots for 
unscheduled air transport using the Bureau of Labor Statistics' 
Occupational Employment Statistics series. The FAA estimates each 
reservation will take two minutes. At the fully burdened labor rate of 
$43.01 an hour the reservation costs would be less than $2 per 
reservation for unscheduled flights. Therefore, the FAA expects the 
costs to unscheduled flight operators will be small.
    For the same two-minute reservation, we estimated public cost based 
on a GS 13-Step 5-level employee ($47.44 an hour) approving the 
reservation. At a fully burdened rate of $47.44 an hour, the total 
public costs will be $16,119.

Potential Lost Revenue Due to Limits on Unscheduled Arrivals

    The FAA does not expect operators of unscheduled arrivals at O'Hare 
to lose revenue because of the hourly limit during the restricted 
periods. The limit of four arrivals an hour during the restricted hours 
does not reduce the historic average number of unscheduled arrivals at 
O'Hare, but instead, requires operators to spread the arrivals more 
evenly throughout the service day. The FAA does not expect the 
unscheduled arrivals to be affected, since the limit set in this rule 
matches the long-term hourly average.
    Under the reservation procedures, the FAA will offer operators the 
closest available half hour, if the requested reservation is not 
available. Given the historical dispersion of arrival flights 
throughout the day at O'Hare, the FAA expects most reservation requests 
can be accepted.
    We initially computed the historical average hourly arrivals per 
day of week using the unscheduled arrival data from FAA's ETMS data 
system, for January 4-July 24, 2004, the 7-month period preceding FAA's 
August Order for scheduled operations. The average hourly arrivals 
ranged from 2.7 to 4.0 arrivals an hour, depending on the day of week. 
Using the March 2005 ETMS data shows the actual unscheduled arrivals at 
O'Hare are within the four hourly limit.\9\ While some past hourly 
arrivals exceeded the hourly limit set in this final rule, on average, 
arrivals at O'Hare have been within the 4 hourly limit. If future 
arrival reservation requests exceed the limit, these flights may shift 
to other times in the restricted period, when flights fall below the 
limit or use alternative airports close to O'Hare.
---------------------------------------------------------------------------

    \9\ March 2005 data is representative of the monthly flights in 
other periods from January 2004 through March 2005.
---------------------------------------------------------------------------

    The hourly distribution of unscheduled arrivals shows there are 
unused arrival slots throughout the service day. Unscheduled operators 
can shift the arrival time or day to use these available arrival slots, 
or arrive before 7 a.m. Therefore, the limit of four unscheduled 
arrivals an hour should not decrease the number of daily, unscheduled 
operations. Further, ATC may allow more flights when they decide 
weather and conditions are acceptable. The FAA concludes that this 
final rule will not reduce the number of daily, unscheduled arrivals at 
O'Hare.

Costs of Using Alternative Airports

    The FAA has also considered potential costs to operators and 
passengers if they cannot obtain arrival reservations at their desired 
time at O'Hare. Since the FAA will grant reservations based on a first-
come first-served basis, it is possible some desired arrival times at 
O'Hare will not be available. The costs of using alternative airports, 
if any, would most likely be incurred by the passenger as a pass 
through from the operator.
    To identify the likely occurrence of using an alternative airport, 
FAA used the results of g ATC's ETMS data analysis This analysis 
provided the average daily arrivals by hour and day of week for the 7-
month period from January 2004 through July 2004. During this period, 
the average unscheduled arrivals exceeded the 4-hour limit only 8 
times, or .7% of the periods covered. Further, given the 30 average 
daily unscheduled arrivals in March 2005, suggest there may be some 
unused reservations during several of the 14-hour peak periods. 
Therefore, FAA expects only a few flights will choose to land at an 
alternative airport. However, if the alternative arrival time is not 
acceptable, then the operator can choose to use another airport close 
to O'Hare, such as Chicago's Midway Airport. This may be the case if 
the passenger needs direct access to O'Hare for a connecting flight or 
other reasons. These passengers may incur the added costs of ground

[[Page 39617]]

transport and lost passenger time to travel to O'Hare.
    O'Hare is about 22 miles (about 40 minutes in travel time) from 
Midway. In this case, the passenger will incur the costs of ground 
transport and passenger time to travel by airport shuttle, local train, 
or limousine service from the alternative airport to O'Hare. Airport 
shuttles between Midway and O'Hare typically cost less than $20 per 
trip; the local train between Midway and O'Hare costs $2.50 per trip; 
and private limousine service cost is expected to be less than $100 per 
trip. The FAA estimates the passenger's value of time\10\ to be to 
$28.60 an hour. Therefore, for a 40-minute trip, the value of passenger 
time for the extra travel between Midway and O'Hare will be about $20. 
Our analysis indicates the average cost would be $160 per trip for each 
affected passenger. FAA estimates the total costs would be $9,600 for 
60 passengers over the 6-month period for 15 flights, each carrying an 
average of 4 passengers. FAA believes the use of an alternative airport 
will not be required very often, since the actual unscheduled arrivals 
at O'Hare have consistently remained at 4 or less arrivals per hour. In 
summary, the FAA expects this final rule will help reduce system delays 
and the associated costs, while the economic costs of arrival 
restrictions will be small. As the rule will restrict only those 
unscheduled arrivals under instrument flight rules, all visual flight 
rule flights can continue as before. As discussed above, we estimated 
the total private reservation costs of this final rule to be $14,611 
and so will be de minimis. The public reservation costs will be 
$16,911. After examining O'Hare's hourly operations, the FAA determined 
that all unscheduled arrivals at O'Hare can be accommodated and meet 
the constraint of four arrivals an hour. However, some planned arrival 
times may need to be shifted somewhat to available reservation times. 
Some may choose to arrive at an alternative airport close to O'Hare. 
While these costs, are unlikely, the FAA estimates that if they were 
applicable, they would be about $9,600 for the 6 month period, and so 
de minimis. Further, the FAA has made exceptions for the unique 
circumstances of public charters and plans to grant added reservations 
for unscheduled operations if the ATC weather, capacity, and delay 
conditions at O'Hare are favorable. Thus, this rule provides system 
delay benefits at a minimal cost.
---------------------------------------------------------------------------

    \10\ Values for passenger time are provided in ``Treatment of 
Values of Passenger Time in Air Travel'' in the FAA Report, Economic 
Values for FAA Investment and Regulatory Decisions: A Guide, June 
2004.
---------------------------------------------------------------------------

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The RFA covers a wide-range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the agency determines that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the RFA.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the RFA provides that the 
head of the agency may so certify and a regulatory flexibility analysis 
is not required. The certification must include a statement providing 
the factual basis for this determination, and the reasoning should be 
clear.
    Just as in the initial regulatory flexibility analysis the FAA 
expects there will be a substantial number of small entities affected 
by this final rule, however, the economic effect will be insignificant.

Final Rule Summary

    This rule will address the unacceptable number of delays Chicago 
O'Hare International Airport. Under this final rule (1) unscheduled 
operations are limited to four arrivals per hour during the period 7 
a.m. through 8:59 p.m. central time, Monday through Friday, and 12 
through 8:59 p.m. on Sunday; (2) unscheduled operators must request 
arrival reservations, beginning 72 hours in advance; and (3) one 
arrival reservation per hour is available to public charter operators 
beginning 6 months before their planned arrival times. This final rule 
will ensure the effectiveness of the flight limits placed on scheduled 
arrivals at O'Hare as set up in the Administrator's Order issued August 
18, 2004. This final rule will be in effect beginning 30 days after 
this final rule is published through October 28, 2005. The FAA's 
economic assessment covers a 6-month time period.

Public Comments

    There were two comments about the FAA small entities determination 
in the initial regulatory analysis. The U.S. Small Business 
Administration filed a comment about the methodology and findings in 
the preliminary Regulatory Flexibility Determination. The FAA responded 
directly to SBA and in the discussion below. In addition, the National 
Air Transportation Association raised similar concerns about how FAA 
addressed the requirements of the Regulatory Flexibility Act.
    FAA Response: The FAA has conducted a rigorous examination of the 
possible impacts of this final rule on small entities. The FAA has 
considered both the efficiency and equity of limiting flights of 
unscheduled operators while setting the arrival limits for scheduled 
operators under the August 2004 Order. In determining the effect of 
this final rule on small entities, we have estimated the historical 
number of unscheduled arrivals and reviewed the hourly distribution of 
these flights throughout the service day.
    The FAA conducted analysis first for the August Order, which placed 
a cap on scheduled operations at O'Hare. Then, we conducted another 
analysis for the Notice of Proposed Rule Making (NPRM: Congestion and 
Delay Reduction At Chicago's O'Hare International Airport, Federal 
Register, March 22, 2005 (70 FR 15520; March 25, 2005)). During the 
initial analysis in support of the August 2004 order, the FAA examined 
airport arrivals over the 140 weekdays from November 3, 2003 through 
May 14, 2004. We found that O'Hare had an average of 90 arrivals an 
hour in all weather. This included an average of 86 scheduled and four 
unscheduled flights during the peak periods from noon though 6:59 p.m., 
when the arrival demand at O'Hare is highest. Therefore, the limits set 
for unscheduled arrivals measure the maximum average capacity of the 
airport during various weather, runway, and operating conditions. The 
FAA reexamined the average number of unscheduled flights at O'Hare for 
the 7-month period, January 4-July 24, 2004. We found the average of 
four unscheduled arrivals continued to be an accurate and stable 
estimate of unscheduled operations at O'Hare. Based on the historical 
count of unscheduled arrivals and the hourly distribution throughout 
the service day, we expect the hourly arrival limit set in

[[Page 39618]]

this rule to allow nearly all the unscheduled arrivals. For a few 
arrivals, some operators may have to adjust their arrival times. More 
recently, in March 2005, FAA reviewed the unscheduled operations at 
O'Hare. Consistently, the number of unscheduled arrivals have been 
stable and within the four-hour limit established in this rule. This 
final rule does not apply to unscheduled flights that fly Visual Flight 
Rules (VFR) procedures. As discussed in the regulatory evaluation, VFR 
arrivals can continue to operate, as before. Many of these operators 
are likely to be small entities.

Number of Affected Entities

    The FAA estimated the number of entities affected by this proposed 
rule, as well as which of these entities may be small entities.
    The U.S. Bureau of Census, 2002 Economic Census for Air 
Transportation (issued July 2004) estimates there are nearly 2,173 
establishments providing unscheduled air transportation service in the 
United States. Of these establishments, there were 1,455 providing 
unscheduled chartered passenger air transportation; 240 providing 
unscheduled chartered freight air transportation, and the remaining 478 
providing other unscheduled air transportation services. Under the U.S. 
Small Business Administration's industry size standards by North 
American Industry Classification System (NAICS) codes, unscheduled 
chartered passenger air services (NAICS 481211) and unscheduled 
chartered freight air transportation services (NAICS 481212) with fewer 
than 1,500 employees (except offshore marine air transportation 
services with less than $23.5 million in annual revenue), and other 
unscheduled air transportation services with annual revenue of less 
than $6 million, are classified as small entities.\11\
---------------------------------------------------------------------------

    \11\ U.S. Small Business Administration Table of Small Business 
Size Standards matched to North American Industry Classification 
System (NAICS) Codes, January 28, 2004.
---------------------------------------------------------------------------

    In 2004, the FAA reported the results from a national survey of the 
air taxi industry, comprised mostly of establishments providing on-
demand flights.\12\ The survey results, which used 1997 Census data, 
identified more than 3,000 unscheduled operators and found that most of 
these operators were small entities. Over 50 percent of the passenger 
and cargo operators surveyed had five or fewer employees; and fewer 
than 50 unscheduled operators had more than 100 employees. Further, the 
largest number of operators had between 1-5 aircraft.
---------------------------------------------------------------------------

    \12\ The survey included all on demand operations with 
rotorcraft; all on-demand passenger operations with airplanes of 30 
passenger seats or less and a maximum payload capacity of 7,500 
pounds or less; scheduled passenger operations of less than five 
round trips per week on a least one route between two or more points 
according to the published flight schedule; and aircraft operations 
with nine passenger seats or less and a payload under 7,500 pounds 
used in scheduled passenger operations (i.e. five or more round 
trips between two or more