[Federal Register: July 6, 2004 (Volume 69, Number 128)]
[Notices]
[Page 40711-40713]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy04-108]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2001-9852]
High Density Airports; Notice of Extension of the Lottery
Allocation at LaGuardia Airport
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of extension of the lottery allocation for takeoff and
landing times at LaGuardia Airport.
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SUMMARY: This notice announced a twelve month extension of the current
slot exemption allocation at LaGuardia Airport (LaGuardia) through
October 29, 2005. This action maintains the current operating
environment at LaGuardia pending the adoption of a long-term solution
for demand management, which the FAA and the Department of
Transportation (Department) are undertaking in anticipation of the
expiration of the High Density Rule at LaGuardia on January 1, 2007.
DATES: Effective upon July 6, 2004.
FOR FURTHER INFORMATION CONTACT: Lorelei Peter, Operations and Air
Traffic Law Branch, Regulations Division, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone number 202-267-3134.
SUPPLEMENTARY INFORMATION:
Background
The FAA has broad authority under Title 49 of the United States
Code (U.S.C.), Subtitle VII, to regulate and control the use of the
navigable airspace of the United States. In particular, 49 U.S.C. Sec.
40103 authorizes the agency to develop plans and policies regarding the
use of the navigable airspace and to assign by rule, regulation, or
order the use of that airspace under such terms, conditions, and
limitations as may be deemed necessary to ensure the safe and efficient
use of the navigable airspace. Section 40103 also authorizes and
directs the FAA to prescribe air traffic rules and regulations
governing the efficient use of the navigable airspace.
In 1968, the FAA promulgated the High Density Traffic Airports Rule
(High Density Rule), 14 CFR part 93, subpart K, to reduce delays at
five congested airports: John F. Kennedy International Airport (JFK),
LaGuardia, O'Hare International Airport (O'Hare), Ronald Reagan
Washington National Airport, and Newark International Airport (Newark)
(33 FR 17896; December 3, 1968). The regulation limited the number of
instrument flight rules (IFR) operations at each airport during certain
hours of each day. It did so by allocating operational authority to air
carriers in the form of a ``slot,'' for each IFR takeoff or landing
during a specified 30- or 60-minute period. The FAA lifted the
restrictions at Newark in the early 1970s.
``AIR-21''
On April 5, 2000, the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century (AIR-21) became law. Section 231 of
AIR-21 significantly amended 49 U.S.C. 41714 and added a new section
41715. 49 U.S.C. Sec. 41715 eliminated slots at O'Hare as of July 1,
2002, and will eliminate slots at LaGuardia and JFK on January 1, 2007.
AIR-21 also included new provisions 49 U.S.C. 41716, 41717, and 41718
that enabled air carriers meeting specified criteria to obtain
exemptions from the slot requirements of 14 CFR part 93, subparts K and
S. As a result of this legislation, the Department issued eight orders
implementing the slot exemptions authorized by the statute. DOT Order
2000-4-11 implemented 49 U.S.C. 41716(a) by providing that, under
specific conditions, a slot exemption must be granted to any air
carrier using Stage 3 aircraft with fewer than 71 seats for nonstop
service between LaGuardia and an airport that was designated as a small
hub or nonhub airport in 1997. The exemption must be granted if: (1)
The air carrier was not providing nonstop service between the small hub
or nonhub airport and LaGuardia during the week of November 1, 1999;
(2) the proposed service between the small hub or nonhub airports and
LaGuardia exceeds the number of flights provided between the airports
during the week of November 1, 1999; or (3) if the air transportation
pursuant to the exemption would be provided with a regional jet in
replacement of turboprop service that was provided during the week of
November 1, 1999.
Under AIR-21 and the related DOT Orders, an air carrier meeting one
of the statutory criteria automatically received approval for a slot
exemption, provided that the air carrier filed various certifications
and a written request for authority to begin service. The air carrier
was required to certify that the aircraft used to provide the proposed
service would be Stage 3 compliant and would have fewer than 71 seats.
The air carrier was further required to certify that the airport
receiving service to or from LaGuardia was designated a small hub or
nonhub airport in 1997. In addition, the air carrier was required to
certify that the proposed service, when
[[Page 40712]]
compared to service provided during the week of November 1, 1999, was
new service, was an additional frequency between the airports, or was
regional jet service that replaced a turboprop flight. The air carrier
was required to specify the number of slot exemptions needed, the slot
times needed to provide the proposed service, the frequency of service
and the effective date.
DOT Order 2000-4-10 implemented the provisions of 49 U.S.C. Sec.
41716(b), which required that a slot exemption be granted to any new
entrant or limited incumbent air carrier using Stage 3 aircraft that
proposed to provide air transportation to or from LaGuardia if the
number of slot exemptions granted under this subsection to an air
carrier combined with the number of slots held at the airport by that
carrier does not exceed 20. The order further required applications
submitted under this provision to identify the airports to be served,
the slot exemption times requested, the frequency of service and the
effective date.
Despite the statute's exemption of certain flights from the FAA's
regulatory slot limits, 49 U.S.C. 41715(b)(1) expressly provides that
the slot exemption provisions are not to affect the FAA's authority
over safety and the movement of air traffic. The reallocation of slot
exemption times by the lottery procedures described in this Notice was
based on the FAA's statutory authority and did not rescind the
exemptions issued by the Department under orders 2000-4-10 and 2000-4-
11. As provided in those orders, air carriers that filed the necessary
certifications also needed to obtain an allocation of slot exemption
times from the FAA. The FAA's limitation and reallocation of these slot
exemptions recognized that it was not possible to add an unlimited
number of new operations at LaGuardia during peak hours, even if those
operations qualified for exemptions under AIR-21.
14 CFR 93.225 sets forth the process for lotteries under the High
Density Rule. The process described in the regulations is similar to
the lottery process followed for allocating AIR-21 slot exemptions and
allows for specific conditions to be included when circumstances
warrant special consideration.
Extension of Lottery Allocation
On June 12, 2001, the FAA published a Notice of Alternative Policy
Options for Managing Capacity at LaGuardia and Proposed Extension of
the Lottery Allocation in the Federal Register. Through the notice, the
FAA sought comment on both long-term policy options and a short-term
extension of the cap on slot exemptions at LaGuardia (66 FR 31731). The
notice proposed to continue a cap on scheduled flight operations that
the FAA implemented in January 2001, limiting scheduled operations to
75 per hour between the hours of 7 a.m. and 9:59 p.m., in addition to
the six reservations per hour for ``other'' nonscheduled operations,
which included general aviation, charter, and military operations. The
FAA achieved this operational cap by limiting the number of AIR-21 slot
exemptions that could operate at the airport to 159 operations per day
and allocated the slot exemptions via a lottery on December 4, 2000.
On August 2, 2001, the FAA extended the lottery allocation through
October 26, 2002, set the date of August 15, 2001 for a second lottery,
and established procedures for subsequent allocations of slot
exemptions in the event that slot exemptions were returned or withdrawn
by the FAA for non-use (66 FR 41294; August 7, 2001).
Following the terrorist attacks of September 11, 2001, and an
ensuing downturn in commercial air travel, the FAA extended the closing
date for the comment period regarding the Notice of Policy Alternatives
for Managing Capacity at LaGuardia Airport (66 FR 52170; October 12,
2001). On March 22, 2002, the FAA announced that the comment period on
the demand management alternatives for LaGuardia would close on June
20, 2002 (67 FR 13401). The FAA subsequently extended the limitation on
AIR-21 slot exemptions through October 30, 2004, and proposed
modifications to the allocation procedures (67 FR 45170; July 8, 2002).
The FAA adopted these modifications on October 28, 2002 (67 FR 65826).
Even with the operational cap in place, LaGuardia is operating at
its capacity. In April 2004, LaGuardia averaged 1,254 daily operations
on peak weekdays. Despite the improvement brought about by the
operational cap, delays at LaGuardia remain among the highest in the
country and, recently, only two U.S. airports have incurred a higher
percentage of delayed flights.
A long-term demand management solution cannot be implemented at
LaGuardia prior to the expiration of the current AIR-21 slot exemption
restrictions on October 30, 2004. As a result of the continuing flight
delays, however, maintaining the cap on total operations at LaGuardia
is imperative during the intervening period. If the cap on AIR-21 slot
exemptions was lifted, it is anticipated that air carriers would add
qualifying operations at the airport in such volume as to trigger a
repetition of the precipitous increase in exempted flight operations,
in the fall of 2000, leading to an unacceptable level of delay.
Significant delays and operational disruptions at LaGuardia have a
negative effect on the national air traffic control system and result
in a ripple effect on delays and operations nationwide. The airport
cannot accommodate, nor can the FAA permit, such unconstrained growth
in operations at this time.
The FAA and the Department have reviewed and analyzed all comments
submitted by the public on the FAA's June 2001 notice of the policy
options under consideration. Among the options under continuing review
are long-term solutions that could introduce significant market-based
elements into the allocation process. The development of such solutions
requires further consideration of complex statutory, regulatory, and
policy issues. Because some form of operational cap is necessary
pending the FAA's implementation of a long-term solution to LaGuardia's
congestion, the FAA is extending the current allocation and hourly
limits an additional twelve months, through October 20, 2005.
Allocation Procedures
The reallocation procedures that the FAA previously adopted in the
Federal Register notice published on October 28, 2002 (67 FR 65926)
will be followed for the reallocation of returned or withdrawn slot
exemptions and are restated as follows with one minor modification. In
allocating AIR-21 slot exemptions in accordance with the provisions in
paragraph 3 below, we are formalizing the current practice followed by
the majority of the affected air carriers. New carriers eligible for
slot exemptions that are not conducting service at the airport will now
be required to file the certification with the Department in accordance
with Order 2000-4-10 and to have a written request on file with the
Slot Administration Office when seeking available slot exemptions.
While carriers typically have filed this documentation with the
Department and the FAA, these filings were not previously required for
air carrier eligibility to receive an available slot exemption. We are
now including this provision, and as it reflects current practice and
represents minimal change, we are adopting this policy without public
comment. We find that requiring this documentation is a minor
administrative change and will provide the FAA with necessary
information when slot exemptions become available for reallocation.
[[Page 40713]]
1. The cap on AIR-21 slot exemptions (7 a.m. through 9:59 p.m.)
will remain in effect through October 29, 2005.
2. The FAA may approve the transfer of slot exemption times between
carriers only on a temporary one-for-one basis for the purpose of
conducting the operation in a different time period. Carriers must
certify to the FAA that no other consideration is involved in the
transfer.
3. If any slot exemptions become available for reallocation and
there is an air carrier seeking slot exemptions that currently is not
conducting operations at the airport, has certified to the Department
in accordance with OST Order 2000-4-10 and has a written request on
file with the Slot Administration Office, then the available slot
exemptions would be offered to that carrier first, provided that the
total number of slot exemptions allocated to carriers providing small
hub/nonhub service is not fewer than 76. If an eligible new entrant air
carrier does not select the slot exemptions, then the FAA will offer
the slot exemptions to air carriers in the new entrant category or the
small hub/nonhub service category, whichever AIR-21 category is below
parity. Once parity is achieved, or the opportunity to achieve parity
has been afforded, any remaining available slot exemptions will be
offered to carriers in the same AIR-21 category from which the slot
exemptions came. The FAA will follow the rank orders for each category,
as established in the December 4, 2000, lottery for small hub/nonhub
service and the August 15, 2001, lottery for new entrants, as amended.
4. An air carrier will have three business days after an offer from
the Slot Administration Office to accept the offered slot exemption.
The air carrier's acceptance must be in writing to the Slot
Administration Office. If the Slot Administration Office does not
receive an acceptance to an offer within three business days, the air
carrier will be recorded as rejecting the offer and the FAA will offer
the available slot exemptions to the next eligible air carrier.
5. Any air carrier that selects slot exemptions must file with the
Department a current certification under Order 2400-4-10 or 2000-4-11,
as appropriate, and prior to conducting any flight operations under the
exemption. In addition, the FAA will not allocate a slot exemption time
to an air carrier until the air carrier first provides the Department
and the FAA with the markets to be served, the frequency of the
service, the number of slot exemptions to be use, the time when the
operations will occur and the effective date.
6. All operations authorized under AIR-21 must commence within 120
days of a carrier's acceptance of an available slot exemption.
7. The Chief Counsel will be the final decisionmaker concerning
eligibility of carriers to participate in the allocation process.
Issued on June 29, 2004, in Washington, DC.
James Whitlow,
Deputy Chief Counsel.
[FR Doc. 04-15250 Filed 7-2-04; 8:45 am]
BILLING CODE 4910-13-M