[Federal Register Volume 79, Number 140 (Tuesday, July 22, 2014)]
[Proposed Rules]
[Pages 42475-42483]
[FR Doc No: 2014-16954]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 400 and 401

[Docket No.: FAA-2012-0045; Notice No. 12-05A]
RIN 2120-AJ90

Exclusion of Tethered Launches From Licensing Requirements

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM).

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SUMMARY: On August 23, 2012, the FAA published a notice of proposed
rulemaking (NPRM) to exclude certain tethered launches from the FAA's
licensing and permitting requirements. The FAA is issuing this SNPRM
because a commenter raised an issue regarding toxic propellants that
was not discussed in the NPRM, but should be addressed. Therefore, the
FAA is issuing this action, which proposes to amend the NPRM so that
tethered launches using propellants that cause serious injury to the
public would not be eligible for exclusion. This SNPRM also includes
clarifications based on recommendations commenters made to the NPRM.
These proposed changes are intended to enhance the safety of tethered
launches and improve regulatory effectiveness.

DATES: Send comments on or before September 22, 2014.

ADDRESSES: Send comments identified by docket number FAA-2012-0045
using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building

Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov, including any personal
information the commenter provides. Using the search function of the
docket Web site, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.
    Docket: Background documents or comments received may be read at
http://www.regulations.gov at any time. Follow the online instructions
for accessing the docket or go to the Docket Operations in Room W12-140
of the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning
this proposed rule, contact Stewart Jackson, AST-300, Office of
Commercial Space Transportation, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591; telephone (202) 267-
7903; email<EMAIL_ADDRESS>For legal questions concerning
this proposed rule, contact Sabrina Jawed, AGC-250, Office of the Chief
Counsel, Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone<PHONE_NUMBER>; email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The Commercial Space Launch Act of 1984, as amended and re-codified
at 51 U.S.C. 50901-50923 (the Act), authorizes the Department of
Transportation and thus the FAA, through delegations, to oversee,
license, and regulate commercial launch and reentry activities, and the
operation of launch and reentry sites as carried out by U.S. citizens
or within the United States. 51 U.S.C. 50904, 50905. The Act directs
the FAA to exercise this responsibility consistent with public health
and safety, safety of property, and the national security and foreign
policy interests of the United States. 51 U.S.C. 50905. Section
50901(a)(7) directs the FAA to regulate only to the extent necessary,
in relevant part, to protect the public health and safety and safety of
property. The FAA is also responsible for encouraging, facilitating,
and promoting commercial space launches by the private sector. 51
U.S.C. 50903.

I. Overview of SNPRM

    In its August 23, 2012 NPRM (77 FR 50956), the FAA proposed to
exclude certain tethered launches from chapter III requirements if the
tethered launches met specified safety criteria. The proposed criteria
did not address the use of toxic propellants onboard a launch vehicle.
During the NPRM comment period, the FAA received a comment stating the
agency should revise the proposed rule to protect the public from the
potential harm exposure to a toxic propellant could cause. The FAA
agrees that it should address toxic propellants. Therefore, this SNPRM
proposes that if an operator chooses to use any of the toxic
propellants identified in Tables I417-2 and I417-3 in Appendix I of
part 417, that launch must meet chapter III requirements.
    Also, this SNPRM includes two clarifications to the NPRM. First,
the agency would remove the term ``established strength properties''
from proposed Sec.  400.2(c)(2)(i) to better clarify the proposed
requirement and preserve the original intent, which is to ensure that
the tether system can withstand the maximum dynamic load placed on it.
Second, the FAA would revise proposed Sec.  400.2(c)(2)(iii) to clarify
that the maximum flight limit of 75 feet for a tethered launch vehicle
would be measured from the ground to a fully-extended tether's
attachment point to a vertically-oriented vehicle.

II. Background

A. Summary of NPRM

    In August 2012, the FAA issued an NPRM proposing to exclude
tethered launches that met specified requirements for a safe launch
from chapter III licensing, permitting, and waiver requirements. The
NPRM proposed defining a tether system as a device that contains launch
vehicle hazards by physically constraining a launch vehicle in flight
to a specified range from its launch point. It would include all
components, from the point where the tether attaches to the vehicle to
a solid base, that experience load during a tethered launch. The NPRM
proposed that the tether system had to:
     Have established strength properties that would not yield
or fail under the maximum dynamic load on the system or two times the
maximum potential engine thrust;
     have a minimum safety factor of 3.0 for yield stress and
5.0 for ultimate stress;
     constrain the launch vehicle within 75 feet above ground
level;
     display no damage prior to the launch; and
     be insulated or located such that it would not experience
thermal damage from the launch vehicle exhaust.
    The NPRM additionally proposed separation distances for the
tethered operation based on the amount of propellant onboard a launch
vehicle. Those distances are listed in proposed Table A of the NPRM.
Lastly, the NPRM proposed requiring that the launch vehicle be
unmanned, have a liquid or hybrid motor, and carry no more than 5,000
pounds of propellant.

B. Summary of Comments

    The comment period for the NPRM closed on October 22, 2012. The FAA
received comments from three commercial space companies: Masten Space
Systems, Inc. (Masten); Unreasonable Rocket; and, SpeedUp, LLC. In
addition, the agency received comments from four individuals, making a
total of seven commenters. Two of the seven commenters, SpeedUp, LLC
and Mr. W. Andrew Shrader, supported the proposal. The other commenters
raised issues that are summarized and discussed below.
Toxic Propellants
    The FAA did not address toxic propellants in the NPRM. One
commenter, Mr. Chad W. Thrasher, suggested that the FAA consider the
harmful characteristics of some liquid propellants. He pointed out that
many liquid rocket propulsion systems use liquids that are animal
carcinogens, corrosive, and potentially explosive when mixed in
specific ratios. He also pointed out that exposure to certain
propellants may result in damage to the lungs, liver, kidneys, the
central nervous system, and may also result in coma or death by
asphyxiation. Mr. Thrasher suggested that the FAA revise proposed Sec.
400.2(c)(3) to ensure that operators and the public are upwind of the
test location or at least twice the distance defined in proposed Table
A if downwind.
    Mr. Thrasher proposed protecting the operators themselves. The
Commercial Space Launch Act of 1984, as amended and re-codified at 51
U.S.C. 50901-50923, authorizes the agency through delegation to
regulate launch and reentry activities to ensure the public

health and safety, safety of property, and the national security and
foreign policy interests of the United States. Public safety as defined
in Sec.  401.5 refers to the safety of people and property that are not
involved in supporting the launch. Therefore, the proposal is not
intended to protect the launch operator or the launch operator's
personnel who are involved in carrying out the launch.
    As this proposal pertains to the public, the FAA agrees with Mr.
Thrasher that the NPRM should have addressed the harmful
characteristics of certain propellants. However, the agency believes
the best solution to keeping the public safe and retaining the burden-
relieving components of the proposal would be to exclude from chapter
III requirements only those eligible tethered launches that do not use
propellants that cause serious injury. Mr. Thrasher suggested changing
the proposed rule by stating that Table A would apply only if one is
upwind of the test location. He suggested that if one is downwind of
the test location, one should be at least one and a half times the
separation distances stated in Table A. Basing the separation distances
on wind direction, and increasing the separation distances for anyone
standing downwind of the test location would add a level of complexity
to the proposal that the FAA does not intend. Thus, the agency would
amend proposed Sec.  400.2(c)(1)(iii) \1\ to clarify that chapter III
continues to apply to a tethered launch using toxic propellants listed
in Table I417-2 and Table I417-3 in Appendix I of part 417. If launch
operators wish to use a toxic propellant, they would still be required
to conduct their launch under chapter III.
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    \1\ In the NPRM, Sec.  400.2(c)(1)(iii) proposed to limit the
amount of fuel the launch vehicle could carry to 5,000 pounds. For
the SNPRM, this proposed requirement would be moved to new paragraph
(c)(1)(iv) of Sec.  400.2.
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Established Strength Properties
    The FAA would withdraw the proposed requirement that a tether
system eligible for exclusion from chapter III requirements possess
``established strength properties.'' Section 400.2(c)(2)(i) of the NPRM
proposed that an eligible tether system have established strength
properties that would not yield or fail under the conditions listed in
Sec. Sec.  400.2(c)(2)(i)(A) and 400.2 (c)(2)(i)(B). One commenter, Mr.
Alexander Salvato, suggested that the phrase ``established strength
properties'' was too vague, and it was not clear how the strength
properties of the tether system would be established, or by whom. He
suggested clarifying the phrase with substitute language or integrating
the alternate test for tether strength provided in the NPRM.
    The FAA agrees that the phrase ``established strength properties''
is too vague for the reasons Mr. Salvato provided, and no longer
proposes it because the remainder of the provision would address the
FAA's concerns with sufficient specificity. New proposed Sec.  400.2
(c)(2)(i) would require that an eligible tether system not yield or
fail under (1) the maximum dynamic load exerted on the system, or (2) a
load equivalent to two times the maximum potential engine thrust.
Factors of Safety
    For the tether system, the FAA proposes a minimum factor of safety
of 3.0 for yield stress and 5.0 for ultimate stress. Three commenters,
Masten, Mr. Thrasher, and Mr. Salvato, expressed concern about the
FAA's proposed factors of safety.
    Masten commented that while the proposed factors of safety may be
appropriate for military development applications, they place
unnecessary financial and schedule burdens on commercial reusable
launch vehicle (RLV) developers without materially increasing public
safety. Masten also stated the performance characteristics of
commercial RLVs are driven by market rather than military requirements.
As a result, the robust attachment hardware that may be required for a
tether system with a yield stress safety factor of 3.0 and an ultimate
stress safety factor of 5.0 may prove heavier than can reasonably be
flown by a commercial RLV under tether test conditions. Masten
suggested the proposed factors of safety may be appropriate for
military development purposes, where ordnance or weapons systems
requirements may drive a need for reliance on high yield and ultimate
stress safety factors; however, commercially competitive RLV developers
do not face the same military-based performance, maintainability, and
interoperability requirements that U.S. Air Force developers address.
Commercial RLV developers do face financing and price competition
challenges that are not present in military system development. Masten
suggested that based on its extensive experience designing and
operating RLVs and tether systems, a safety factor of 2.0 for yield
stress and 4.0 for ultimate stress would be consistent with commercial
RLV operator practices and would ensure the tether system design was
sufficiently safe but not so robust as to inhibit meaningful tether
test activity.
    The FAA acknowledges that its proposed factors of safety are also
used for military applications. However, the FAA does not agree that
the proposed factors of safety should be revised because they are too
stringent for commercial operations. In addition to the U.S. Air Force,
academia, and NASA have also recommended or used the proposed factors
of safety. In 1948, Joseph P. Vidosic established guidelines that
recommended when to apply a factor of safety ranging from 1.25 to 4.0
based on yield strength.\2\ Since then, various industries have
accepted these guidelines as basic guidance that can be used when
experience and empirical data are otherwise not available. For brittle
material, these guidelines recommend doubling the factor of safety for
yield strength. With better known materials that are to be used in
uncertain environments or subjected to uncertain stresses, the
guidelines recommend using a factor of safety of 3 to 4. NASA used a
factor of safety of 3 for yield and 5 for ultimate stress for its
lifting slings.\3\ Similarly, the U.S. Air Force uses a minimum factor
of safety of 3 for yield stress and 5 for ultimate stress for design of
ground-based systems, including tether systems.\4\ Furthermore, several
engineering textbooks contain the same factor of safety guidelines.\5\
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    \2\ Joseph P. Vidosic, ``Design Stress Factors,'' Proceedings of
the American Society for Engineering Education, Vol. 55, 1947-48, pp
653-658.
    \3\ NASA STD 8719.9, ``Standard for Lifting Devices and
Equipment,'' May 2, 2002.
    \4\ Air Force Space Command Manual 91-710, Air Force Space
Command, Range Safety User Requirement Manual, Vol. 3 (July 1,
2004).
    \5\ C.S. Sharma and Kamlesh Purohit, Design of Machine Elements
(2005); Rajendra Karwa, A Testbook of Machine Design (2005); Richard
M. Phelan, Fundamentals of Mechanical Design (1957).
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    As noted previously, the goal of this rulemaking is to maintain
public safety while relieving the industry and the FAA from chapter III
licensing, permitting, and waiver requirements for tethered launches.
Because the FAA would not be overseeing the tethered launches covered
under the proposed rule, and because of the inherent uncertainties of
the test environment, the agency believes it is reasonable to impose
conservative design requirements to ensure the public is protected from
a potential accident or incident. The factors of safety the FAA
proposed (3.0 for yield stress, which is the elastic limit; and, 5.0
for ultimate stress, which is where breakage occurs) are based on
guidance from academia, from successful usage by NASA, and proven
results as documented by the U.S. Air Force's application to its
operations at the Eastern and Western Ranges involving tethered and
ground-

based systems. Thus, the proposed factors of safety would render FAA
oversight unnecessary.
    The FAA does not agree with Masten that it will be too costly for
commercial companies to comply with these factors of safety. To the
contrary, selecting conservative factors allows an operator to avoid
the cost of analysis associated with FAA oversight. The selection of an
appropriate factor of safety is based on the level of uncertainties
regarding loading conditions, material properties, and environmental
factors. The criteria used to select the factor of safety is based on
accumulated knowledge associated with the design of the system,
historical empirical knowledge, engineering judgment, judgment based on
experience, and best practices that ensure safety. The factors of
safety applied in industries such as aviation and aerospace reflect
years of experience and the accumulation of empirical test data that
provide an in-depth understanding of how loading conditions affect the
system. Since 1948, engineers in various industries, including the
aircraft and spacecraft industries, have achieved a better
understanding of how to obtain factors of safety values for various
loading conditions by implementing expensive, high fidelity validation
and verification testing.
    Typically, aircraft and spacecraft industries perform high fidelity
verification and validation testing of vehicle structures to ascertain
how these structures will perform under actual load conditions and to
address how to reduce uncertainties. These test results provide an
understanding of the actual loading characteristics associated with the
system. With a significant reduction in uncertainties, an operator
could reduce the factors of safety values. To achieve these lower
factors of safety values, an operator would have to conduct a thorough
structure analysis and high cost test programs. For example, if a
vehicle attached to a tether started flying erratically and became
uncontrollable, an operator would need to conduct costly testing to
determine the worst loading condition. However, an operator could use
closed-loop analyses and the proposed factors of safety to address
uncertainties at lower cost without compromising public safety. With
higher factors of safety, it is possible to reduce the need for high
fidelity testing and analysis with a resulting reduction in costs. The
FAA is not proposing a high fidelity analysis, and is instead focused
on factors that protect public safety while making FAA oversight
unnecessary.
    Mr. Thrasher commented that the NPRM incorrectly interprets the
intended minimum safety factor of the tether system by selecting the
case requiring the highest, most conservative safety factors. He
pointed out that the Martino report \6\ the FAA cited in the NPRM
references three case studies. The first case addresses the expected or
nominal loads based on the expected thrust levels in the desired
direction with the proper dispersions. For this case, Mr. Thrasher
suggested that the safety factors of 3.0 for yield stress and 5.0 for
ultimate stress should be used for the expected nominal loads. He
stated that in most cases this would be 100 percent of the thrust level
of the system. The second case addresses structures designed to
restrain a system during testing. He stated the second case provides
safety factors if the structure is actually tested to designated loads,
and another set of safety factors if it is just analyzed but not
tested. He stated the second set of safety factors is more conservative
to allow for minor errors in the structural analysis. He suggested that
the third case, using safety factors of 2.0 for yield stress and 3.0
for ultimate stress, should be used in off-nominal cases. The proposed
method to calculate the maximum dynamic load by multiplying the maximum
potential engine thrust by a factor of two is consistent with an off-
nominal event such as an explosion. Mr. Thrasher stated the tether
system must satisfy all three load cases--nominal, ground structures,
and off-nominal--and, systems must be designed to meet the case with
the highest design loads. Mr. Thrasher further commented that to
determine the highest design loads of a system, one must calculate each
case, and then use the highest loads for both yield and ultimate
stress. Based on his calculations, he stated that the proposed rule
would require the tether system to withstand a 33 percent greater yield
load and a 40 percent greater ultimate stress load to those recommended
in the Martino report. He recommended that the FAA revise proposed
Sec.  400.2(c)(2) as follows:
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    \6\ Nicholas E. Martino, Design and Analysis Guidelines for
Launch Vehicle Tether Systems, Aerospace Report No. ATR-2008 (5377)-
1, The Aerospace Corporation (Sept. 30, 2007). This report is
available in the docket for this rulemaking (Docket No. FAA-2012-
0045).
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    (2) Tether system. The tether system must--
    (i) Have established strength properties that will not yield or
fail under--
    (A) The maximum dynamic load of the system; and
    (B) The nominal maximum dynamic load on the system with a safety
factor of 3.0 for yield stress and 5.0 for ultimate stress; and
    (C) The off-nominal dynamic load cases, calculated as the
equivalent to two times the maximum potential engine thrust, shall have
a minimum safety factor of 2.0 for yield stress and 3.0 for ultimate
stress.
    In the NPRM, the FAA used the Martino Report to show that a factor
of safety of 3 for yield stress and 5 for ultimate stress are accepted
industry standards for the design of ground-based systems, including a
tether and its attachments to launch facilities or ground equipment.
The FAA did not intend to adopt all the load cases discussed in the
Martino Report. Instead, the FAA strives to achieve simplicity and
clarity in its proposed rule without compromising safety. Because the
FAA would not provide oversight for eligible tethered launches, the FAA
selected robust and industry-acceptable factors of safety that would
not necessitate FAA scrutiny.
    Mr. Salvato stated the term ``safety factor'' is too vague. He said
although the FAA discusses in the NPRM what the terms ``yield stress''
and ``ultimate stress'' mean, the agency only references factor of
safety in its supplementary materials. He recommended including an
abbreviated definition in the regulation of safety factor based on the
more lengthy definition contained in the supplemental material, or
referencing the attached supplemental material in the preamble to the
rule.
    The FAA does not believe it is necessary to define the term
``safety factor'' in the rule because it is a widely recognized
industry term. However, the agency offers the following brief
explanation to clarify the term as it is used in the preamble
discussion: The factor of safety (FoS), also called safety factor (SF),
is the ratio of the maximum load that a system is expected to withstand
against the allowable design load applied or the ratio of absolute
strength (structural capacity) to actual applied design load.
Yield Stress
    In the preamble to the NPRM, the FAA stated that yield stress is
the point of the elastic limit. Unreasonable Rocket generally supported
the rule, but was unclear as to why the FAA described the tether yield
point as the point of elastic limit instead of the point of plastic
limit for a system that is meant to be stretchy. It stated that all of
Unreasonable Rocket's testing used climbing rope designed to yield
(i.e., to arrest a climber's fall without snapping

him in half). It then recommended the FAA define yield stress in the
rule as the point of plastic yield.
    The FAA does not agree. Elastic limit is the maximum stress that
may be developed such that there is no permanent or residual
deformation (the elements subjected to the loading; for example, the
tether dynamic rope) when the load is entirely removed. The FAA
proposed yield stress for the tether system as the elastic limit rather
than the plastic limit because once the plastic limit is reached, the
elastic capability of the material ends and permanent deformation
occurs. If the applied load continues to increase, the element will
weaken and ultimately breakage will occur.\7\
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    \7\ Stephen W. Attaway, Rope System Analysis (1996); William
Storage and John Ganter, Physics for Cavers: Loads, and Energy (1990
& 1998); Tendon, Dynamic and Static Ropes Manual.
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Flight Altitude Limit
    In the NPRM, the FAA proposed to confine an eligible launch to one
constrained within 75 feet above ground level (AGL). Two commenters
asked the FAA to increase the proposed flight limit, but the FAA does
not agree. As the agency discussed in the NPRM, to determine a safe
flight limit, the FAA calculated the average length of a tether (32
feet) and the average height of a crane/forklift (43 feet) and added
the two figures together. These averages are based on historical data
from past tethered launches. The FAA also used a random sampling of the
height of cranes/forklifts from various manufacturers to help determine
the average crane/forklift height.
    Two commenters, Masten and Mr. Thrasher, stated that the proposed
flight limit is too restrictive and should be increased. Masten
recommended increasing the flight limit by 275 feet to 350 feet AGL to
accommodate existing and contemplated commercial tether launch
activities, which would include larger, higher-performance RLVs. Mr.
Thrasher suggested increasing the maximum allowable tether length to 40
feet to avoid ground effects from the propulsion system, and increasing
the flight limit by 15 feet to 90 feet AGL to account for longer tether
lengths and slightly larger than average cranes.
    Masten pointed out that to comply with the proposed flight limit,
the combined length of the launch vehicle, the vehicle connection, the
tether and the fixed connection could not exceed a 37.5-foot radius
from the fixed connection to the end of the launch vehicle, and that
this threshold would severely limit the availability of the proposed
exclusion to larger and higher-performance RLVs.
    The FAA does not agree with this reasoning. First, the length of
the launch vehicle would not be included in the flight limit
calculation, as described in greater detail below. Second, regarding
Masten's concern that the proposed flight limit would not account for
larger, higher-performance RLVs, the FAA's intent is to provide design
and operational criteria for the safe tethered launch of small, liquid
or hybrid propulsion launch vehicles similar to those for which the
agency has issued past waivers. It is not the agency's intent to
exclude from FAA oversight the larger, higher-performance launch
vehicles Masten describes in its comment, specifically Morpheus,
Minuteman, and XEUS.
    In response to Mr. Thrasher's comment suggesting the FAA increase
the maximum allowable tether length, the FAA notes that the NPRM
explicitly states that launch operators are not required to use the
same measurements for tether length and crane/forklift height in their
tether system design that the agency used to calculate the proposed
flight limit. Even so, they would still be required to comply with the
maximum flight limit threshold in order to be excluded from chapter III
requirements. For example, an operator could use a 10-foot crane and a
30-foot tether, or a 50-foot crane and a 25-foot tether. In both
scenarios, the maximum flight limit would not exceed 75 feet AGL. If an
operator needed to adjust its tether length to avoid ground effects
from the propulsion system, as Mr. Thrasher suggested, it would be free
to do so as long as the vehicle did not exceed the flight limit for
exclusion from chapter III.
    Mr. Thrasher also suggested increasing the maximum flight limit 15
feet to account for longer tether lengths and slightly larger than
average cranes. The FAA does not agree that increasing the flight limit
15 feet is a necessary or beneficial change from the proposed rule. The
proposed 75-foot flight limit is adequate for vehicles that are
equivalent in height to the average size of those vehicles for which
the FAA granted a launch waiver to conduct tethered launches in the
past. Also, Mr. Thrasher did not provide any rationale that addresses
the FAA's safety concerns in support of his proposal. The FAA also
reiterates that its intention is not to exclude larger than the average
size of those vehicles that the FAA granted a launch waiver from
chapter III requirements.
    Additionally, the agency wishes to clarify the proposed threshold
for flight limit. In the NPRM, proposed Sec.  400.2(c)(2)(iii) stated
the tether system would ``constrain the launch vehicle within 75 feet
above ground level.'' The FAA now proposes to clarify that the
restriction would measure from the ground to the point where the tether
attaches to the vehicle. To calculate whether a launch vehicle exceeded
the proposed threshold, the operator would measure from the ground to
the tether's attachment point to a vertically oriented vehicle. In
other words, if the attachment point was to the launch vehicle's base,
the nose of the launch vehicle could be at an altitude greater than 75
feet. The maximum flight limit would not include the height of the
vehicle itself.
Slack Tether
    The FAA proposed that a tether system be able to withstand the
maximum dynamic load on the system or a load equivalent to two times
the maximum potential engine thrust. One commenter, Mr. Andrew Swallow,
suggested that ``rules are needed to permit slack tethers, such as
defining their breaking strength, as well as tethers under static
load.'' He also stated that a tethered vehicle starts and stops on the
ground so will need a few inches of slack. The FAA would permit a
tethered launch vehicle to be eligible to be excluded from chapter III.
A slack tether may, in some circumstances, allow loading in excess of
the proposed criteria. A slack tether, particularly a static rope,
could increase the magnitude of the applied load placed on the tether
system because the velocity of the vehicle would quickly eliminate the
slack, and the tether could rapidly decelerate the vehicle. This rapid
deceleration would cause the vehicle and the tether system to be
subjected to high dynamic loading called shock loading. Shock is
produced when an object (e.g., a launch vehicle) in motion suddenly
halts.\8\ Shock loading can produce as much as twice the load impact
compared to static loading.\9\ The force produced by the sudden
stoppage of motion could in some cases cause not just damage to the
tether or vehicle, but tether separation, because it would exceed the
maximum produced loads.
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    \8\ Stephen W. Attaway, Rope System Analysis (1996); William
Storage and John Ganter, Physics for Cavers: Loads, and Energy (1990
& 1998); Tendon, Dynamic and Static Ropes Manual.
    \9\ A. E. H. Love, Mathematical Theory of Elasticity, 2nd ed.,
Cambridge University Press (1906), pgs. 179-180.
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    If the tether system could not withstand the dynamic load exerted
on it and was damaged, and if tether separation occurred and the launch

vehicle exceeded the flight limit, the operator would have failed to
comply with two key proposed requirements: (1) Ensuring the tether
system could withstand the specified dynamic load placed on it; and (2)
constraining the launch vehicle to the maximum flight limit.
Additionally, the FAA does not agree that a vehicle starts and stops a
tethered launch on the ground. An operator could elect to suspend the
vehicle in the air. The FAA does not believe it is necessary to add
requirements for the use of slack tethers to the proposed rule because
the rule requires the tether design to sustain dynamic (or shock)
loading conditions.
Inspection of Tether System
    Proposed Sec.  400.2(c)(2)(B)(iv) \10\ would require that a tether
system not display damage prior to the launch. In the NPRM's preamble,
the FAA provided guidance on conducting a visual inspection of the
tether system to identify damage such as component fatigue, fracture,
and wear.
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    \10\ In the NPRM (77 FR 50959), in section heading (C)(4), the
FAA inadvertently cited the proposed rule paragraph as Sec.
400.2(c)(3). The correct proposed paragraph is Sec.  400.2(c)(2).
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    One commenter, Mr. Thrasher, suggested that the FAA require a
launch operator to inspect tether hardware because the FAA is relying
on visual inspections to ensure there is no component damage. Mr.
Thrasher also recommended that effective inspections of metal
components for pre-existing damage, fracture, corrosion, and wear
require all surfaces to be bare metal or have clear protective
coatings. Further, he noted that any paint or improperly bonded
covering used to prevent thermal damage could prevent detection of
damage. He proposed that any thermal protective coverings be installed
after inspection and any components that require thermal protection be
bonded, be visually inspected, and used only one time. He recommended
revising proposed Sec.  400.2(c)(2)(B)(iv) to add the following:
``Metal components must be inspected unpainted and free of any
coverings or coatings that would interfere with visual inspection. Any
metal using bonded protective thermal coatings shall be visually
inspected and used only one time.''
    Mr. Thrasher's comment implies the FAA intended the visual
inspection to be a primary means of ensuring the structural integrity
of the tether system. The FAA's intent for the visual inspection is to
provide an added measure of safety to reinforce the safety criteria the
agency is proposing. Primary among these safety requirements are the
proposed conservative factors of safety. The FAA does not intend for
the visual inspection to be a primary means of determining if the
tether system is safe. The expectation is the operator will conduct a
visual inspection on the eve of the launch, after full compliance with
all other required design and operational criteria. However, this does
not preclude launch operators from conducting a more substantive
inspection if they believe it is necessary to ensure compliance and a
safe tethered launch.

IV. Regulatory Notices and Analyses

A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 and Executive Order 13563 direct
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 proposed 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 rule does not
warrant a full evaluation, this order permits a statement to that
effect and the basis for it to 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 proposed rule. The reasoning for
this determination is discussed below.
    The FAA has licensing authority over tethered launches, which are
considered launches under chapter III unless they meet the definition
of an amateur rocket launch.\11\ To conduct such tethered non-amateur
rocket launches, operators must obtain a launch license, experimental
permit, or apply for a waiver from chapter III. Applying for waivers,
licenses, and permits impose a financial burden on vehicle operators
and the FAA because of time and resources required to create and
analyze these applications.
---------------------------------------------------------------------------

    \11\ Launches of amateur rockets are excluded from the
requirements of chapter III. See 14 CFR 400.2 (2011).
---------------------------------------------------------------------------

    The proposed rule would establish clear and simple criteria for an
effective tether system. In addition, it proposes vehicle and
operational criteria as added measures to protect the public in the
event of a tether system failure. Operators would not have to apply for
a launch license, permit, or waiver from chapter III to conduct
tethered launches of non-amateur rockets \12\ that met the proposed
criteria for an effective tether system and the vehicle and operational
criteria. Operators that met the proposed criteria would not have to
incur the costs of applying for a launch license, permit, or waiver and
would not have to sustain the costs associated with delay in the
processing of these applications. The FAA would not have to conduct
case-by-case analyses of tethered launches that met the proposed
criteria to verify public safety from a launch vehicle explosion or
confirm that the tether system would not fail. Furthermore, launch
operators that conducted tethered launches would not be compelled to
follow the criteria in this proposal as they would still have the
option of applying for a launch license, permit, or waiver under
chapter III. Therefore, the proposed rule would impose no additional
requirements on operators, but would provide an alternative to
conducting a tethered launch under chapter III. If the operator deemed
it more cost effective to apply for a license, permit, or waiver than
to follow the criteria proposed here, the operator would have that
option.
---------------------------------------------------------------------------

    \12\ Operators launching amateur rockets on a tether would still
be subject to part 101 of chapter I and would continue to be
excluded from chapter III.
---------------------------------------------------------------------------

    For the reasons discussed, the rule would be cost relieving to both
operators and the FAA. The FAA requested but received no comments on
its conclusion in the NPRM that the rule would be cost relieving to
operators and the FAA.
    This SNPRM revises the FAA's original proposal by not excluding
from

chapter III tethered launches that use specified toxic propellants from
chapter III requirements. Even with the change, the rule is still cost
relieving relative to the current regulations, even though tethered
launches using toxic fuel must comply with chapter III requirements as
they currently do. There would be no additional costs or cost savings
due to the change to the NPRM. Operators launching vehicles that are
eligible for the chapter III exclusion would still benefit from cost
savings relative to the current chapter III requirements. The FAA has
determined that this proposed 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.

B. 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 proposed rule is expected to provide an alternative to
conducting tethered launches under chapter III and therefore could
alleviate the financial burden of applying for a launch license,
permit, or waiver to chapter III if an operator met the proposed
criteria. The expected outcome would therefore have either a cost
saving impact or no impact on small entities affected by the proposed
rule. Under this SNPRM, launches that use toxic propellants would have
to comply with chapter III, which they have to do currently. Although
the changes introduced with the SNPRM might reduce the number of launch
vehicles that would be exempt from chapter III, the rule would still
have either a cost saving impact or no impact on small entities. The
FAA did not receive comments when it reached the same conclusion in the
NPRM.
    Therefore, as provided in section 605(b), the head of the FAA
certifies this rulemaking will not result in a significant economic
impact on a substantial number of small entities.

C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing standards or engaging in related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to these Acts, establishing standards is not
considered an unnecessary obstacle to the foreign commerce of the
United States, so long as the standard has a legitimate domestic
objective, such as the protection of safety, and does not operate in a
manner that excludes imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. If a foreign
launch operator were to conduct a tethered launch in the United States
that meets the requirements of this proposed rule, it would be eligible
for the proposed exclusion from chapter III. The FAA has assessed the
potential effect of this proposed rule and determined that it would
have the same impact on domestic and international entities and thus
have a neutral trade impact.

D. 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 $151.0 million in lieu of $100
million. This proposed rule does not contain such a mandate; therefore,
the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FAA consider the impact of paperwork and other information
collection burdens imposed on the public. The FAA has determined that
there would be no new requirement for information collection associated
with this proposed rule.
    Public comments: The FAA did not receive comments to the NPRM on
its determination that the proposed rule would not impose new paperwork
requirements.

F. International Compatibility

    In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to conform to
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. No ICAO
Standards and Recommended Practices correspond to these proposed
regulations.

G. 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. This rulemaking
action qualifies for the categorical exclusion identified in paragraph
312f and involves no extraordinary circumstances.

V. Executive Order Determinations

A. Executive Order 12866

    See the ``Regulatory Evaluation'' discussion in the ``Regulatory
Notices and Analyses'' section elsewhere in this preamble.

B. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The agency has
determined that this action would not have a substantial direct effect
on the States, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of government, and, therefore, would not have
Federalism implications.

C. Executive Order 13211, Regulations That Significantly Affect Energy
Supply, Distribution, or Use

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

VI. Additional Information

A. Comments Invited

    The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy,
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, commenters should send only one copy of written
comments, or if comments are filed electronically, commenters should
submit only one time.
    The FAA will file in the docket all comments it receives, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments it receives on or before
the closing date for comments. The FAA will consider comments filed
after the comment period has closed if it is possible to do so without
incurring expense or delay. The agency may change this proposal in
light of the comments it receives.
    Proprietary or Confidential Business Information: Do not file
proprietary or confidential business information in the docket. Such
information must be sent or delivered directly to the person identified
in the FOR FURTHER INFORMATION CONTACT section of this document, and
marked as proprietary or confidential. If submitting information on a
disk or CD ROM, mark the outside of the disk or CD ROM, and identify
electronically within the disk or CD ROM the specific information that
is proprietary or confidential.
    Under 14 CFR 11.35(b), if the FAA is aware of proprietary
information filed with a comment, the agency does not place it in the
docket. Proprietary information is held in a separate file to which the
public does not have access, and the FAA places a note in the docket
that it has received it. If the FAA receives a request to examine or
copy this information, it treats it as any other request under the
Freedom of Information Act (5 U.S.C. 552). The FAA processes such a
request under Department of Transportation procedures found in 49 CFR
part 7.

B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from 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.gpo.gov/fdsys/.
    Copies may also be obtained by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue SW., Washington, DC 20591, or by calling<PHONE_NUMBER>.
Commenters must identify the docket or notice number of this
rulemaking.
    All documents the FAA considered in developing this proposed rule,
including economic analyses and technical reports, may be accessed from
the Internet through the Federal eRulemaking Portal referenced in item
(1) above.

List of Subjects

14 CFR Part 400

    Space transportation and exploration, Licensing, Safety.

14 CFR Part 401

    Space transportation and exploration.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation
Administration proposes to amend chapter III of title 14, Code of
Federal Regulations as follows:

PART 400--BASIS AND SCOPE

0
1. The authority citation for part 400 continues to read as follows:

    Authority: 51 U.S.C. 50901-50923.

0
2. Revise Sec.  400.2 to read as follows:

Sec.  400.2  Scope.

    These regulations set forth the procedures and requirements
applicable to the authorization and supervision under 51 U.S.C.
subtitle V, chapter 509, of commercial space transportation activities
conducted in the United States or by a U.S. citizen. The regulations in
this chapter do not apply to--
    (a) Space activities carried out by the United States Government on
behalf of the United States government;
    (b) The launch of an amateur rocket as defined in Sec.  1.1 of this
title; or
    (c) A launch of a tethered launch vehicle that meets the following
criteria:
    (1) Launch vehicle. The launch vehicle must--
    (i) Be unmanned;
    (ii) Be powered by a liquid or hybrid rocket motor;
    (iii) Not use any of the toxic propellants of Table I417-2 and
Table I417-3 in Appendix I of part 417 of this chapter; and
    (iv) Carry no more than 5,000 pounds of propellant.
    (2) Tether system. The tether system must--
    (i) Not yield or fail under--
    (A) The maximum dynamic load on the system; or
    (B) A load equivalent to two times the maximum potential engine
thrust.
    (ii) Have a minimum safety factor of 3.0 for yield stress and 5.0
for ultimate stress.
    (iii) Constrain the launch vehicle within 75 feet above ground
level as measured from the ground to the attachment point of the
vehicle to the tether.
    (iv) Display no damage prior to the launch.
    (v) Be insulated or located such that it will not experience
thermal damage due to the launch vehicle's exhaust.
    (3) Separation distances. The launch operator must separate its
launch from the public and the property of the public by a distance no
less than that provided for each quantity of propellant listed in Table
A of this section.

           Table A--Separation Distances for Tethered Launches
------------------------------------------------------------------------
                                                         Distance (ft.)
              Propellant carried (lbs.)                 from the launch
                                                             point
------------------------------------------------------------------------
1-500................................................                900
501-1,000............................................              1,200
1001-1,500...........................................              1,350
1,501-2,000..........................................              1,450
2,001-2,500..........................................              1,550
2,501-3,000..........................................              1,600
3,001-3,500..........................................              1,650
3,501-4,000..........................................              1,700
4,001-4,500..........................................              1,750
4,501-5,000..........................................              1,800
------------------------------------------------------------------------

PART 401--ORGANIZATION AND DEFINITIONS

0
3. The authority citation for part 401continues to read as follows:

    Authority: 51 U.S.C. 50101-50923.

0
4. Amend Sec.  401.5 by adding the definition of Tether system in
alphabetical order to read as follows:

Sec.  401.5  Definitions.

* * * * *
    Tether system means a device that contains launch vehicle hazards
by physically constraining a launch vehicle in flight to a specified
range from its launch point. A tether system includes all components,
from the tether's point of attachment to the vehicle to a solid base,
that experience load during a tethered launch.
* * * * *

    Issued in Washington, DC, on July 9, 2014.
George C. Nield,
Associate Administrator, Commercial Space Transportation.
[FR Doc. 2014-16954 Filed 7-21-14; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 177 (Thursday, September 14, 2023)]
[Notices]
[Pages 63165-63169]
[FR Doc No: 2023-19842]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-98332; File No. SR-NYSEAMER-2023-43]

Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing and Immediate Effectiveness of Proposed Change To Modify the
NYSE American Options Fee Schedule

September 8, 2023.
    Pursuant to section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that, on August 29, 2023, NYSE American LLC (``NYSE American'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I and
II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to modify the NYSE American Options Fee
Schedule (``Fee Schedule'') to provide for certain temporary fee
changes in connection with the Exchange's migration to the Pillar
trading platform. The Exchange proposes to implement the fee changes
effective August 29, 2023. The proposed rule change is available on the
Exchange's website at www.nyse.com, at the principal office of the
Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of this filing to amend the Fee Schedule to provide for
certain temporary changes in connection with the Exchange's migration
to a new trading platform known as Pillar. Currently, the Exchange
conducts options trading on an electronic platform known as ``the
Exchange System,'' which refers to the Exchange's electronic order
delivery, execution, and reporting system for designated option issues
through which orders and quotes of users are consolidated for execution
and/or display.\4\ On or about October 23, 2023, the Exchange
anticipates beginning the migration of its options trading to the
Pillar technology platform.\5\
---------------------------------------------------------------------------

    \4\ See NYSE American Rule 900.2NY Definitions.
    \5\ The Exchange has announced that, pending regulatory
approval, it will begin migrating Exchange-listed options to Pillar
on October 23, 2023, available here: https://www.nyse.com/trader-update/history#110000530919. See also, e.g., Securities Exchange Act
Release Nos. 97297 (April 13, 2023), 88 FR 24225 (April 19, 2023)
(SR-NYSEAMER-2023-16) (Notice of Filing and Immediate Effectiveness
of Proposed Change to Modify Rule 900.2NY and to Adopt New Rules
964NYP, 964.1NYP, and 964.2NYP); 97739 (June 15, 2023), 88 FR 40893
(June 22, 2023) (SR-NYSEAMER-2023-17) (Notice of Filing of Amendment
No. 1 and Order Granting Accelerated Approval of a Proposed Rule
Change, as Modified by Amendment No. 1, to Adopt New Exchange Rule
980NYP and Amend Exchange Rule 935NY); 97869 (July 10, 2023), 88 FR
45730 (July 17, 2023) (SR-NYSEAMER-2023-34) (Notice of Filing and
Immediate Effectiveness of Proposed New Rules 900.3NYP, 925.1NYP,
928NYP, 928.1NYP, and 952NYP and Amendments to Rules 900.3NY, 925NY,
925.1NY, 928NY, 952NY, 953.1NY, 967NY, 967.1NY, and 985NY); 97938
(July 18, 2023), 88 FR 47536 (July 24, 2023) (NYSEAMER-2023-35)
(Notice of Filing and Immediate Effectiveness of Proposed Change for
New Rule 971.1NYP).

---------------------------------------------------------------------------

    Specifically, the Exchange proposes to (1) provide ATP Holders and
ATP Firms (collectively, ``ATP Holders'') with certainty regarding
their eligibility for certain tiers, incentives, and discounts during
the migration to Pillar; (2) waive Monthly Excessive Bandwidth
Utilization Fees (``EBUF'') during the migration to Pillar and for a
six-month period thereafter; and (3) cap certain port fees during the
migration to Pillar. The Exchange proposes to implement the rule
changes on August 29, 2023.
Tiers, Incentives, and Discounts
    The Exchange currently offers various volume- and performance-based
incentives and discounts to encourage ATP Holders to use the Exchange
as their primary venue for order routing and execution and for market
making activity. Many of these incentive and discount programs include
multiple tiers, which are intended to encourage greater participation
in the programs and to incent ATP Holders to continually grow their
business on the Exchange in order to qualify for the benefits offered
in a higher tier.
    In advance of the Exchange's migration to the Pillar platform, the
Exchange has noted concern among ATP Holders regarding their ability to
achieve various volume qualifications and thresholds during the
migration. Specifically, because ATP Holders may choose to moderate
their order flow and quotation sizes to reduce risk as they familiarize
themselves with the new trading platform, they may not achieve the
tier(s), incentive(s), and discount(s) they qualified for pre-
migration. Accordingly, the Exchange believes that providing ATP
Holders with certainty with respect to certain pricing they would
receive during the transition to Pillar would provide ATP Holders with
an opportunity to adjust to new functionality and new order handling
mechanisms without taking on an additional financial burden.
    To this end, the Exchange proposes to amend Section I of the Fee
Schedule to provide that, for the month during which the Exchange
commences its migration to the Pillar platform (the ``Migration
Month''), ATP Holders will receive the tier(s), incentive(s), and
discount(s) they achieved in the month prior to the Migration Month or
the tier(s), incentive(s), and discount(s) achieved during the
Migration Month, whichever are better. Specifically, the Exchange will
compare an ATP Holder's performance in each of the programs set forth
below during the Migration Month and during the month prior (currently
anticipated to be September 2023) and will bill the ATP Holder for the
Migration Month at the most favorable rates based on each qualification
level achieved.\6\
---------------------------------------------------------------------------

    \6\ The Exchange notes that its affiliated exchange NYSE Arca
Options implemented a similar fee change in connection with its
migration to the Pillar technology platform in 2022. See Securities
Exchange Act Release No. 94125 (February 1, 2022), 87 FR 6910
(February 7, 2022) (SR-NYSEArca-2022-05) (providing for continuity
of OTP Holders' eligibility for certain tiers, incentives, and
discounts in connection with NYSE Arca Options Pillar migration).
---------------------------------------------------------------------------

    The following tiers, incentives, and discount programs would be
covered by the proposed change: \7\
---------------------------------------------------------------------------

    \7\ See Fee Schedule, Sections I.C.; I.E. through I.H.; and I.M.

 NYSE American Options Market Maker Sliding Scale--Electronic
 American Customer Engagement (``ACE'') Program
 QCC Billable Bonus rebate
 CUBE Auction Fees and Credits
 Professional Step-Up Incentive
 BOLD Mechanism Fees & Credits

    The Exchange also proposes the same modification to Section III.E.
of the Fee Schedule,\8\ which would apply to the Manual Billable Rebate
Qualification, the QCC Billable Bonus Rebate Qualification, and the
Floor Broker Manual Billable Incentive Program for Floor Brokers.
---------------------------------------------------------------------------

    \8\ See Fee Schedule, Section III.E. ((Floor Broker Incentive
and Rebate Programs).
---------------------------------------------------------------------------

    The Exchange believes that, to the extent ATP Holders choose to
modify their trading activity during the Migration Month, the proposed
change would mitigate the impact of potential pricing disruption by
providing ATP Holders with certainty regarding the tier(s),
incentive(s), and discount(s) they would be eligible for in the
Migration Month, which would in turn encourage ATP Holders to continue
to send orders and quotes to the Exchange during the transition to
Pillar.
    In addition, by offering ATP Holders the better pricing of the
month before the Migration Month or the Migration Month, the Exchange
believes ATP Holders will be incented to take full advantage of new
Pillar functionality and possibly even increase their volume and
participation during the migration.
    The Exchange is not proposing any changes to the underlying tiers,
incentives, or discounts covered by the proposed change described
above.
Monthly Excessive Bandwidth Utilization Fees
    Section II of the Fee Schedule describes two alternative fees that
are charged for exceeding the ratio of orders or messages sent to the
Exchange compared to the number of executions or contracts traded and
are intended to deter ATP Holders from submitting an excessive number
of orders that are not executed.\9\
---------------------------------------------------------------------------

    \9\ See Fee Schedule, Section II. Monthly Excessive Bandwidth
Utilization Fees.
---------------------------------------------------------------------------

    The Exchange proposes to amend Section II of the Fee Schedule to
specify that the Monthly Excessive Bandwidth Utilization Fees
(``EBUF'') assessed to ATP Holders will be waived for the duration of
the migration and for six months after the completion of the
migration.\10\ Specifically, the Exchange proposes that the waiver of
the EBUF take effect for the month during which the migration begins
and remain in effect for six months following the month in which the
migration is completed (the ``Waiver Period''). The Exchange believes
that waiving EBUF during the Waiver Period will give both ATP Holders
and the Exchange an opportunity to adjust to new functionality and new
order handling mechanisms without imposing a financial burden on ATP
Holders based on their order to execution ratios or messages to
contracts traded ratios during the Pillar transition. In addition,
during the Waiver Period, the Exchange intends to work closely with ATP
Holders to monitor traffic rates and their order and message to
execution ratios as they adapt to trading on the Pillar platform.
---------------------------------------------------------------------------

    \10\ The Exchange notes that its affiliated exchange NYSE Arca
Options adopted a similar cap in connection with its migration to
the Pillar technology platform in 2022. See Securities Exchange Act
Release No. 94095 (January 28, 2022), 87 FR 6216 (February 3, 2022)
(SR-NYSEArca-2022-04) (providing for a temporary waiver of the Ratio
Threshold Fee in connection with the NYSE Arca Options Pillar
migration).
---------------------------------------------------------------------------

Cap on Port Fees
    The Exchange proposes to adopt a cap on the monthly fees assessed
for the use of certain ports connecting to the Exchange, which will go
into effect on the day the Exchange commences its migration to the
Pillar platform and remain in effect until the end of the month in
which the migration is completed (the ``Migration Period'').
    Specifically, the Exchange proposes to cap the monthly fees charged
to an ATP Holder for the use of Order/Quote Entry Ports, Quote Takedown
Ports, and Drop Copy Ports (collectively, the ``Port Fees'') during the
Migration Period (the ``Migration Cap''). The Migration Cap will be
based on the number of ports an ATP Holder is billed for in the month
preceding the beginning of the Exchange's migration to the Pillar
platform, except that if an ATP Holder reduces the number of ports used
during the Migration Period (i.e., incurs Port Fees below the Migration
Cap), the ATP

Holder would only be billed for the actual number of ports used.
    Without this proposed rule change, the Fee Schedule provides that
ATP Holders would be charged for the use of both legacy Exchange System
platform ports and new Pillar platform ports, which could significantly
increase costs to ATP Holders during the Migration Period. Thus, the
proposed Migration Cap is intended to encourage ATP Holders to maintain
the same levels of interaction with Exchange during the Migration
Period, as well as promptly migrate to the more efficient Pillar
technology platform, without incurring additional Port Fees as a result
of the transition.\11\
---------------------------------------------------------------------------

    \11\ The Exchange notes that its affiliated exchange NYSE Arca
Options adopted a similar fee cap in connection with its migration
to the Pillar technology platform in 2022. See Securities Exchange
Act Release No. 94017 (January 20, 2022), 87 FR 4095 (January 26,
2022) (SR-NYSEArca-2022-03) (providing for a temporary cap on
monthly fees for use of ports in connection with the NYSE Arca
Options Pillar migration).
---------------------------------------------------------------------------

2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with section 6(b) of the Act,\12\ in general, and furthers the
objectives of sections 6(b)(4) and (5) of the Act,\13\ in particular,
because it provides for the equitable allocation of reasonable dues,
fees, and other charges among its members, issuers and other persons
using its facilities and does not unfairly discriminate between
customers, issuers, brokers or dealers.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f(b).
    \13\ 15 U.S.C. 78f(b)(4) and (5).
---------------------------------------------------------------------------

The Proposed Rule Change Is Reasonable
    The Exchange operates in a highly competitive market. The
Commission has repeatedly expressed its preference for competition over
regulatory intervention in determining prices, products, and services
in the securities markets. In Regulation NMS, the Commission
highlighted the importance of market forces in determining prices and
SRO revenues and, also, recognized that current regulation of the
market system ``has been remarkably successful in promoting market
competition in its broader forms that are most important to investors
and listed companies.'' \14\
---------------------------------------------------------------------------

    \14\ See Securities Exchange Act Release No. 51808 (June 9,
2005), 70 FR 37496, 37499 (June 29, 2005) (S7-10-04) (``Reg NMS
Adopting Release'').
---------------------------------------------------------------------------

    There are currently 16 registered options exchanges competing for
order flow. Based on publicly-available information, and excluding
index-based options, no single exchange has more than 16% of the market
share of executed volume of multiply-listed equity and ETF options
trades.\15\ Therefore, currently no exchange possesses significant
pricing power in the execution of multiply-listed equity & ETF options
order flow. More specifically, in July 2023, the Exchange had less than
8% market share of executed volume of multiply-listed equity & ETF
options trades.\16\
---------------------------------------------------------------------------

    \15\ The OCC publishes options and futures volume in a variety
of formats, including daily and monthly volume by exchange,
available here: https://www.theocc.com/Market-Data/Market-Data-Reports/Volume-and-Open-Interest/Monthly-Weekly-Volume-Statistics.
    \16\ Based on a compilation of OCC data for monthly volume of
equity-based options and monthly volume of ETF-based options, see
id., the Exchange's market share in equity-based options decreased
from 7.26% for the month of July 2022 to 7.09% for the month of July
2023.
---------------------------------------------------------------------------

    The Exchange believes that the ever-shifting market share among the
exchanges from month to month demonstrates that market participants can
shift order flow or discontinue or reduce use of certain categories of
products, in response to fee changes. Accordingly, competitive forces
constrain options exchange transaction fees.
    The Exchange believes that the proposed change is reasonable
because it is intended to encourage ATP Holders to maintain active
participation on the Exchange during the Pillar migration by offering
ATP Holders pricing at each of the tier(s), incentive(s), and
discount(s) they qualify for during either the Migration Month or in
the month prior to the Migration Month, whichever is more favorable to
the ATP Holder, and to maintain sufficient active connections to the
Exchange during its migration to Pillar by providing for the Migration
Cap. Similarly, the Exchange believes that the proposed EBUF waiver is
reasonable because it is intended to encourage ATP Holders to maintain
active participation on the Exchange during and after its migration to
Pillar. The Exchange further believes that the proposed change would
lessen the impact of the migration on ATP Holders by enabling them to
adapt their trading activity as needed to transition to Pillar
functionality during the migration and ensure they have sufficient data
connections and would thus encourage ATP Holders to promptly transition
to the more efficient Pillar platform.
    To the extent the proposed rule change encourages ATP Holders to
migrate to the new platform while maintaining their level of trading
activity, the Exchange believes the proposed change would sustain the
Exchange's overall competitiveness and its market quality for all
market participants. In the backdrop of the competitive environment in
which the Exchange operates, the proposed rule change is a reasonable
attempt by the Exchange to mitigate the impact of the migration without
affecting its competitiveness.
The Proposed Rule Change Is an Equitable Allocation of Credits and Fees
    The Exchange believes the proposed rule change is an equitable
allocation of its fees and credits because the more favorable tier,
incentive, and discount eligibility, Migration Cap, and EBUF waiver
would be available to all ATP Holders. In addition, the proposed change
relating to tiers, incentives, and discounts is based on each ATP
Holder's activity levels before and during the Migration Month, just as
the Migration Cap is based on each ATP Holder's use of ports before and
during the Pillar migration. Accordingly, all ATP Holders would have
the opportunity to adapt their trading activity and moderate their
order flow and use of ports as needed to transition to Pillar
functionality. Thus, the Exchange believes the proposed rule change
would facilitate a smooth transition to the Pillar technology platform
for all market participants on the Exchange by encouraging ATP Holders
to continue to participate actively on the Exchange during the
transition period, thereby promoting continued market-wide quality.
The Proposed Rule Change Is not Unfairly Discriminatory
    The Exchange believes the proposed rule change is not unfairly
discriminatory because it would be available to all similarly-situated
market participants on an equal and non-discriminatory basis.
    All ATP Holders would be eligible for the more favorable tier(s),
incentive(s), and discount(s) they achieve in either the Migration
Month or the preceding month, the Migration Cap, and the EBUF waiver.
Moreover, the proposed change is based on each ATP Holder's achievement
of tiers, incentives, and discounts prior to and during the Migration
Month use of ports. The proposed change would thus allow ATP Holders to
adjust their interactions with Exchange systems during the migration as
needed and take advantage of the new functionality offered by Pillar by
mitigating the impact of potential pricing disruptions. To the extent
the proposal encourages ATP Holders to maintain or increase their
current level of activity on the Exchange, such activity would result
in trading opportunities for all market participants

and thus would promote just and equitable principles of trade, remove
impediments to and perfect the mechanism of a free and open market and
a national market system and, in general, protect investors and the
public interest.
    Finally, the Exchange believes that it is subject to significant
competitive forces, as described below in the Exchange's statement
regarding the burden on competition.

B. Self-Regulatory Organization's Statement on Burden on Competition

    In accordance with section 6(b)(8) of the Act, the Exchange does
not believe that the proposed rule change would impose any burden on
competition that is not necessary or appropriate in furtherance of the
purposes of the Act. Instead, as discussed above, the Exchange believes
that the proposed changes would encourage the submission of additional
liquidity to a public exchange, thereby promoting market depth, price
discovery and transparency and enhancing order execution opportunities
for all market participants. As a result, the Exchange believes that
the proposed change furthers the Commission's goal in adopting
Regulation NMS of fostering integrated competition among orders, which
promotes ``more efficient pricing of individual stocks for all types of
orders, large and small.'' \17\
---------------------------------------------------------------------------

    \17\ See Reg NMS Adopting Release, supra note 14, at 37499.
---------------------------------------------------------------------------

    Intramarket Competition. The Exchange does not believe the proposed
rule change would impose any burden on intramarket competition that is
not necessary or appropriate because it would apply equally to all ATP
Holders. All ATP Holders would be eligible to receive the rates under
each of the tier(s), incentive(s), and discount(s) they achieved in the
Migration Month or in the month prior to the Migration Month, whichever
are better, and all ATP Holders would be eligible for the Migration Cap
and EBUF waiver.
    Intermarket Competition. The Exchange operates in a highly
competitive market in which market participants can readily favor one
of the 16 competing option exchanges if they deem fee levels at a
particular venue to be excessive. In such an environment, the Exchange
must continually adjust its fees to remain competitive with other
exchanges and to attract order flow to the Exchange. Based on publicly-
available information, and excluding index-based options, no single
exchange has more than 16% of the market share of executed volume of
multiply-listed equity and ETF options trades.\18\ Therefore, no
exchange possesses significant pricing power in the execution of
multiply-listed equity and ETF options order flow. More specifically,
in July 2023, the Exchange had less than 8% market share of executed
volume of multiply-listed equity and ETF options trades.\19\
---------------------------------------------------------------------------

    \18\ See note 15, supra.
    \19\ See note 16, supra.
---------------------------------------------------------------------------

    The Exchange does not believe the proposed rule change would impose
any burden on intermarket competition that is not necessary or
appropriate because the Exchange operates in a highly competitive
market in which market participants can readily choose to send their
orders to other exchanges if they deem fee levels at those other venues
to be more favorable. The Exchange believes that its fees are
constrained by the robust competition for order flow among exchanges
and thus believes that the proposed change is reasonably designed to
encourage ATP Holders to transition to the Pillar platform while
mitigating the risk of a significant change to the fees they would be
subject to during the migration. Accordingly, the Exchange believes
that the proposed change would continue to make the Exchange a
competitive venue for order execution by enabling ATP Holders to
maintain their current levels of interaction with the Exchange (or make
adjustments as needed) during the migration, thus encouraging prompt
migration to the newer, more efficient Pillar technology platform and
sustained activity on the Exchange during the Pillar transition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The foregoing rule change is effective upon filing pursuant to
section 19(b)(3)(A) \20\ of the Act and subparagraph (f)(2) of Rule
19b-4 \21\ thereunder, because it establishes a due, fee, or other
charge imposed by the Exchange.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(3)(A).
    \21\ 17 CFR 240.19b-4(f)(2).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
section 19(b)(2)(B) \22\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
file number SR-NYSEAMER-2023-43 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to file number SR-NYSEAMER-2023-43. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (https://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for website viewing and
printing in the Commission's Public Reference Room, 100 F Street NE,
Washington, DC 20549 on official business days between the hours of 10
a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of the Exchange. Do not
include personal identifiable information in submissions; you should
submit only information that you wish to make available

publicly. We may redact in part or withhold entirely from publication
submitted material that is obscene or subject to copyright protection.
All submissions should refer to file number SR-NYSEAMER-2023-43 and
should be submitted on or before October 5, 2023.
---------------------------------------------------------------------------

    \23\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-19842 Filed 9-13-23; 8:45 am]
BILLING CODE 8011-01-P


UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, DC

Issued by the Department of Transportation on January 23, 2006

   NOTICE OF ACTION TAKEN -- DOCKET OST-2004-18851

________________________________________________________________________
_________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Application of US AIRWAYS, INC. (US Airways) filed 8/5/04 for:

XX Exemption for two years under 49 U.S.C. 40109 to provide the
following service:

Scheduled foreign air transportation of persons, property, and mail
between a point or points in the United States, on the one hand, via
intermediate points or directly, and Austria, the Czech Republic,
Denmark, Finland, Iceland, Luxembourg, Malta, Norway, Poland, Romania,
the Slovak Republic, and Sweden, on the other hand, and beyond, and for
route integration authority with its existing exemption and certificate
authority.

Applicant rep: Howard Kass<PHONE_NUMBER>   DOT Analyst:  Thuy H. Cooper
(202)366-5423

D I S P O S I T I O N

XX  Granted with respect to Austria, the Czech Republic, Denmark,
Finland, Iceland, Malta, Norway, Poland, and Sweden, including
corresponding route integration authority (subject to conditions, see
below)

XX  Deferred with respect to Luxembourg, Romania, and the Slovak
Republic, including corresponding route integration authority (see
remarks, below)

The above action granting exemption authority, including corresponding
route integration authority, was effective when taken: January 23, 2006,
through January 23, 2008.

The above action deferring on US Airways’ request for exemption
authority, including corresponding route integration authority, was
effective when taken: January 23, 2006.

Action taken by:   Paul L. Gretch, Director

		      Office of International Aviation

XX  The authority granted is consistent with the aviation agreement
between the United States and Austria,  the United States and the Czech
Republic, the United States and Denmark, the United States and Finland,
the United States and Iceland, the United States and Malta, the United
States and Norway, the United States and Poland, and the United States
and Sweden.

Except to the extent exempted or waived, this authority is subject to
the terms, conditions, and limitations indicated:

XX  Holder’s certificates of public convenience and necessity

	XX  Standard exemption conditions (attached)

________________________________________________________________________
____________________________________________

Conditions: The route integration authority granted is subject to the
condition that such operations are consistent with the applicable
bilateral aviation agreements.  Furthermore, (a) nothing in the award of
the route integration authority requested should be construed as
conferring upon US Airways rights (including fifth-freedom intermediate
and/or beyond rights) to serve markets where U.S. carrier entry is
limited unless US Airways first notifies the Department of its intent to
serve such a market and unless and until the Department has completed
any necessary carrier selection procedures to determine which carrier(s)
should be authorized to exercise such rights; and (b) should there be a
request by any carrier to use the limited-entry route rights that are
included in US Airways’ authority by virtue of the route integration
authority granted here, but that are not then being used by US Airways,
the holding of such authority by route integration will not be
considered as providing any preference for US Airways in a competitive
carrier selection proceeding to determine which carrier(s) should be
entitled to use the authority at issue.

The authority granted to serve intermediate and beyond points is limited
to countries with which the United States has signed open-skies
agreements and/or countries for which the carrier holds authority to
serve under certificates or exemptions issued by the Department, and for
which it holds route integration authority by virtue of either the
present action or other action of the Department.

Remarks: We are deferring action on the carrier’s request to serve
Luxembourg, Romania, and the Slovak Republic pending the necessary
security clearances.

________________________________________________________________________
____________

On the basis of data officially noticeable under Rule 24(g) of the
Department's regulations, we found the applicant qualified to provide
the services authorized.

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that

(1) our action was consistent with Department policy; (2) grant of the
exemption authority was consistent with the public interest; and (3)
grant of the authority would not constitute a major regulatory action
under the Energy Policy and Conservation Act of 1975.  To the extent not
granted or deferred, we denied all requests in the referenced Docket.
We may amend, modify, or revoke the authority granted in this Notice at
any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is available on the World Wide
Web at:

  HYPERLINK "http://dms.dot.gov//reports/reports_aviation.asp"
http://dms.dot.gov//reports/reports_aviation.asp

U.S. Carrier Exemption Conditions

In the conduct of the operations authorized, the U.S. carrier
applicant(s) shall:

(1)  Hold at all times effective operating authority from the government
of each country served;

(2)  Comply with applicable requirements concerning oversales contained
in 14 CFR 250 (for scheduled operations, if authorized);

(3)  Comply with the requirements for reporting data contained in 14 CFR
241;

(4)  Comply with requirements for minimum insurance coverage, and for
certifying that coverage to the Department, contained in 14 CFR 205;

(5)  Except as specifically exempted or otherwise provided for in a
Department Order, comply with the requirements of 14 CFR 203, concerning
waiver of Warsaw Convention liability limits and defenses;

(6)  Comply with all applicable requirements of the Federal Aviation
Administration and with all applicable U.S. Government requirements
concerning security, including, but not limited to, 49 CFR Part 1544.
To assure compliance with all applicable U.S. Government requirements
concerning security, the holder shall, before commencing any new service
(including charter flights) to or from a foreign airport, contact its
International Principal Security Inspector (IPSI) to advise the IPSI of
its plans and to find out whether the Transportation Security
Administration has determined that security is adequate to allow such
airport(s) to be served; and

(7)  Comply with such other reasonable terms, conditions, and
limitations required by the public interest as may be prescribed by the
Department of Transportation, with all applicable orders and regulations
of other U.S. agencies and courts, and with all applicable laws of the
United States.

The authority granted shall be effective only during the period when the
holder is in compliance with the conditions imposed above.

05/2004

 US Airways plan to operate such services using its own aircraft or
through codesharing, as conditions warrant, with its various airline
partners.

 PAGE

 PAGE   2


[Federal Register: September 8, 2008 (Volume 73, Number 174)]
[Notices]
[Page 52078-52079]
[DOCID:fr08se08-111]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Petition for Waiver of Compliance

    In accordance with Part 211 of Title 49 Code of Federal Regulations
(CFR), notice is hereby given that the Federal Railroad Administration
(FRA) has received a request for a waiver of compliance from certain
requirements of its safety standards. The individual petition is
described below, including the party seeking relief, the regulatory
provisions involved, the nature of the relief being requested, and the
petitioner's arguments in favor of relief.

Austin & Texas Central Railroad

[Waiver Petition Docket Number FRA-2008-0066]

    The Austin & Texas Central Railroad (ATCX) of Austin, Texas, has
petitioned for an extension of an existing safety glazing waiver (RSGM-
97-02) of compliance from Title 49 CFR Part 223 to increase running
track speed for four sleeper/lounge passenger cars operated by ATCX in
excursion service. These cars are two sleeper lounge passenger cars
NKP-151 and ATSF 1343, and two Pullman Coach Cars ATCX 107 and ATCX
325.
    ATCX intends to use the cars in passenger excursion service at
speeds not to exceed 25 miles per hour (mph) over 154 miles of track
owned by the city of Austin, Texas, between Cedar Park, TX, and
Burnette, TX. ATCX operates one train daily on weekends from March to
December, with occasional weekday trains. The original waiver specified
that the maximum track speed shall not exceed 20 mph under condition
7. The following are reasons for the request to increase the
track speed to 25 mph:
     The authority to occupy the main track is now in the form
of Track Warrant Control for the majority of the line and yard limits
in a few limited areas.
     Track warrants are issued by controllers in a centralized
dispatching center and apply to all rail line traffic including
passenger, commuter, freight, and Hyrail and Maintenance of Way
Operations.
     Maximum authorized speed is now 25 mph as per ATCX
Timetable 2.

    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested party
desires an opportunity for oral comment, they should notify FRA, in
writing, before the end of the comment period and specify the basis for
their request.
    All communications concerning these proceedings should identify the
appropriate docket number (e.g., Waiver Petition Docket Number FRA-
2008-0066) and may be submitted by any of the following methods:
     Web site: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue, SE., Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Communications received within 45 days of the date of this notice
will be considered by FRA before final action is taken. Comments
received after that date will be considered as far as practicable. All
written communications concerning these proceedings are available for
examination during regular business hours (9 a.m.-5 p.m.) at the above
facility. All documents in the public docket are also available for
inspection and copying on the Internet at the docket facility's Web
site at http://www.regulations.gov.
    Anyone is able to search the electronic form of any written
communications and 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).

    Issued in Washington, DC, on September 3, 2008.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program
Development.
[FR Doc. E8-20725 Filed 9-5-08; 8:45 am]

BILLING CODE 4910-06-P