[Federal Register: December 27, 2006 (Volume 71, Number 248)]
[Notices]
[Page 77854-77861]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de06-126]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2006-25755]
Operating Limitations at New York LaGuardia Airport; Notice of
Order
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of order.
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SUMMARY: On September 11, 2006, the FAA issued a proposed order, which
requested written views on the FAA's tentative determination to place
temporary limitations on flight operations at New York's LaGuardia
Airport (LaGuardia). The temporary limits are intended to prevent the
congestion-related delays that would otherwise occur during the
interval between the expiration of the High Density Rule and the
effective date of a long-term regulation. In response to comments, the
FAA is issuing a final order (the Order) that adopts the proposed
limitations with some modifications. The limitations will permit 75
scheduled and six unscheduled operations per hour between 6 a.m.
through 9:59 p.m., Eastern time, Monday through Friday and from 12 noon
through 9:59 p.m., Eastern Time, on Sundays.
FOR FURTHER INFORMATION CONTACT: Komal K. Jain, Office of the Chief
Counsel, Regulations Division, AGC-240, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591;
telephone (202) 267-3073.
SUPPLEMENTARY INFORMATION: LaGuardia's runway capacity cannot
accommodate the number of flight operations that carriers would like to
operate without the development of significant congestion. Rules
adopted by the FAA have long limited the number of LaGuardia operations
during peak demand periods. By statute enacted six years ago, those
rules will terminate as of January 1, 2007. The FAA has proposed a
long-term rule in a separate docket that would limit the number of
scheduled and unscheduled operations at LaGuardia.\1\ We are currently
soliciting comments on that notice of proposed rulemaking. Because the
FAA will be unable to complete that rulemaking by January 1, carrier
operations at LaGuardia would be unrestricted unless the FAA adopts
temporary limits that will remain in place until the rulemaking's
completion. Without such operational limitations, the FAA expects that
severe congestion-related delays will occur, both at LaGuardia and at
other airports throughout the National Airspace System (NAS) as a
result of capacity constraints at LaGuardia. The FAA therefore has
proposed to adopt short-term limitations on LaGuardia flights while
that rulemaking is completed, and, after considering the comments, is
issuing this final Order limiting LaGuardia operations.
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\1\ Docket FAA-2006-25709.
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The FAA's authority to limit the number of flight operations at
LaGuardia is an essential component of the FAA's statutory
responsibilities.\2\ The FAA holds broad authority under 49 U.S.C.
40103(b) to regulate the use of the navigable airspace of the United
States. This provision authorizes the FAA to develop plans and policy
for the use of navigable airspace and, by order or rule, to regulate
the use of the airspace as necessary to ensure its efficient use.
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\2\ No one commented on the FAA's statutory authority to adopt
an Order limiting flights at LaGuardia.
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I. Background
LaGuardia's runway capacity cannot accommodate the number of flight
operations that carriers would like to operate without the development
of significant congestion. Rules adopted by the FAA have long limited
the number of LaGuardia operations during peak demand periods. By
statute enacted six years ago, those rules will terminate as of January
1, 2007. The FAA has proposed a long-term rule in a separate docket
that would limit the number of scheduled and unscheduled operations at
LaGuardia.\3\ We are currently soliciting comments on that notice of
proposed rulemaking. Because the FAA will be unable to complete that
rulemaking by January 1, carrier operations at LaGuardia would be
unrestricted unless the FAA adopts temporary limits that will remain in
place until the rulemaking's completion. Without such operational
limitations, the FAA expects that severe congestion-related delays will
occur, both at LaGuardia and at other airports throughout the National
Airspace System (NAS) as a result of capacity constraints at LaGuardia.
The FAA therefore has proposed to adopt short-term limitations on
LaGuardia flights while that rulemaking is completed, and, after
considering the comments, is issuing this final Order limiting
LaGuardia operations.
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\3\ Docket FAA-2006-25709.
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The FAA's authority to limit the number of flight operations at
LaGuardia is an essential component of the FAA's statutory
responsibilities.\4\ The FAA holds broad authority under 49 U.S.C.
40103(b) to regulate the use of the navigable airspace of the United
States. This provision authorizes the FAA to develop plans and policy
for the use of navigable airspace and, by order or rule, to regulate
the use of the airspace as necessary to ensure its efficient use.
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\4\ No one commented on the FAA's statutory authority to adopt
an Order limiting flights at LaGuardia.
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As a result of LaGuardia's history of congestion-related delays,
the FAA, over the course of nearly forty years, applied increasingly
detailed rules to govern the allocation and use of the limited capacity
at the airport.\5\ These regulations, collectively known as the High
Density Rule (HDR) and the Buy-Sell Rule (or slot rules), effectively
controlled congestion at LaGuardia. In 2000, however, out of concern
with the collateral effects of the slot rules at LaGuardia on airport
access and competition, Congress included a provision in the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (AIR-21)
that terminates the LaGuardia slot rules as of January 1, 2007.\6\
Congress simultaneously directed the U.S. Department of Transportation,
effective immediately, to grant exemptions from the HDR for flights
that would serve small hub and non-hub airports with aircraft with less
than 71 seats and to grant a limited number of applications for slot
exemptions from new entrant and limited incumbent carriers.\7\
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\5\ See 33 FR 17896 (Dec. 3, 1968); 34 FR 2603 (Feb. 26, 1969);
cf. 14 CFR 93.121-93.133, 93.211-93.227 (2006).
\6\ 49 U.S.C. 41715(a)(2), enacted by Pub. L. No. 106-181, Sec.
231, 114 Stat. 61, 106-10 (2000).
\7\ 49 U.S.C. 41716.
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As carriers began using the slot exemptions permitted under AIR-21,
the number of scheduled flight
[[Page 77855]]
operations at LaGuardia began to far exceed the airport's capacity even
under optimal operating conditions.\8\ By the fall of 2000, carriers
had already added over 300 scheduled flights at LaGuardia and planned
to add even more.\9\ With no new airport infrastructure or air traffic
control procedures, overall airport capacity remained the same while
the number of aircraft operations and delays soared. The average
minutes of delay for all arriving flights at LaGuardia increased 144%
from 15.52 minutes in March 2000 (the month before AIR-21 was enacted)
to 37.86 minutes in September 2000.\10\ The increase in delays at
LaGuardia also affected flights at other airports and in adjacent
airspace. By September 2000, flight delays at LaGuardia accounted for
25 percent of the nation's delays, compared to 10 percent for the
previous year.\11\
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\8\ The increase in scheduled operations at LaGuardia is
described more fully at 66 FR 31731 (June 12, 2001).
\9\ 71 FR 51361.
\10\ Source: FAA's Aviation System Performance Metrics (ASPM).
\11\ Calculated from FAA's Air Traffic Operations Network
Database (OPSNET).
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In order to address the growing congestion at LaGuardia, the FAA
intervened in November 2000. The FAA reduced the number of daily
exemptions from the HDR at LaGuardia to 159 during peak operating hours
and distributed the exemptions via lottery.\12\ The 159 daily
operations reflected an increase of almost eleven hourly operations
above the limits in place before the statutory amendments. Even with
the FAA's partial rollback of the number of exemption flights,
LaGuardia is now operating at capacity during most hours, and continues
to have a relatively serious delay problem.
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\12\ 65 FR 69126 (Nov. 15, 2000). This was extended through
December 31, 2006. 70 FR 36998 (June 27, 2005).
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Although LaGuardia lacks the capacity to handle additional flight
operations beyond the current peak hour limits, the expiration of the
HDR at LaGuardia as of January 1, 2007, will eliminate the scheduling
and reservation mechanisms that currently sustain the airport's
operational balance.\13\ Accordingly, on August 29, 2006, the FAA
proposed a new rule to maintain the number of operations at LaGuardia's
current hourly limits.\14\ An order that temporarily maintains
LaGuardia's current operational limits during the interval between the
High Density Rule's expiration and the effective date of the proposed
replacement rule is necessary to avoid any increase in the number of
operations or a significant rescheduling of existing flights that would
cause unacceptable delay levels, as explained below in our discussion
of the comments.
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\13\ The FAA maintains safe operations through the use of air
traffic control procedures. Traffic management initiatives would be
applied as needed but would result in significant aircraft and
passenger delays.
\14\ 71 FR 51360.
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After considering the comments received on the proposed Order, the
FAA has determined to adopt this Order. Under this Order, the FAA (1)
Maintains the current hourly limits on scheduled (75) and unscheduled
(six) operations at LaGuardia during peak periods; (2) imposes an 80
percent minimum usage requirement for Operating Authorizations; (3)
provides for a lottery to reallocate withdrawn, surrendered or
unallocated Operating Authorizations; and (4) allows for trades and
leases of Operating Authorizations for consideration for the duration
of the Order. The FAA is not allowing carriers to buy and sell
Operating Authorizations during the term of this Order. The FAA also is
not restricting the use of any Operating Authorizations for flights to
certain destinations or flights with aircraft of a particular size.
II. Discussion of Written Submissions and the Final Order
In response to our request for written comments, 18 respondents
expressed views on the FAA's proposed Order. The respondents included
10 air carriers (American Airlines, U.S. Airways, Delta Air Lines,
Northwest Airlines, Colgan Air, United Airlines, Republic Airways Group
(Republic Airline, Chautauqua Airlines, Shuttle America Corp.), and
AirTran Airways), three air carrier organizations (Regional Airline
Association (RAA), Air Carrier Association of America (ACAA) and Air
Transport Association of America (ATA)), two airports (Akron-Canton
Airport and Newport News/Williamsburg International Airport), the Port
Authority of New York and New Jersey (Port Authority), City of Canton,
the Medina County Ohio Economic Development Corporation, the Stark
Development Board, Inc, and Indiana Senator Richard G. Lugar and
Congresswoman Julia M. Carson.
Need for Limits on LaGuardia Flight Operations
As explained in the proposed Order, the FAA continues to believe
that carrier demand for LaGuardia substantially exceeds the number of
flights that can be operated at the airport without creating
unacceptable delays. Commenters generally agreed that LaGuardia flights
should be limited, and no commenter disputed the FAA's tentative
conclusion under the proposed Order that the existing hourly limits
should be maintained. The Port Authority, for example, stated, ``There
is a lesson to be learned from the extreme congestion, bordering on
gridlock, that took place after the enactment of AIR-21 `` LaGuardia
most certainly would once again face crippling delays and congestion,
if no form of operational limitation (or other demand management tool)
is in place when the HDR expires at the end of the year.'' Port
Authority Comments at 4. This Order accordingly adopts the proposed
hourly limits on scheduled operations at LaGuardia.
Term of the Order
By statute, the HDR expires as of January 1, 2007. Therefore, the
FAA proposed the Order take effect on January 2, 2007. Multiple air
carrier slot and slot exemption transactions expire on December 31,
2006, as do the FAA limits on AIR-21 slot exemptions. If the effective
date of January 2, 2007, were adopted, as proposed, carriers would have
to enter into one-day slot transfers to bridge the break in dates or
adjust their schedules to meet their slot holdings. In order to provide
the most seamless transition between the HDR and AIR-21 slot exemption
rules and this Order and to avoid additional administrative burdens for
a one-day period, the Order will take effect on January 1, 2007.
The FAA also is modifying the Order's termination date. Based on
the original rulemaking schedule established for the Congestion
Management Rule for LaGuardia, the FAA proposed that the Order
terminate on September 30, 2007. Several air carriers, as well as ATA
and RAA, commented on the proposed expiration date of the Order. They
assert that the airlines would benefit if the duration of the Order
were tied directly to the effective date of the final rule replacing
the Order rather than the FAA establishing a fixed date, which could be
subject to extension if the rule is not published as planned.
Commenters also emphasized that the air carriers will need time to
transition from one regulatory regime to another, and any transition
should occur when the carriers make their seasonal schedule changes.
The FAA recognizes that carriers require sufficient notice to plan
schedules, market and sell tickets, and allocate aircraft, crew and
airport resources. The FAA seeks to ensure that carriers are afforded
adequate time to
[[Page 77856]]
minimize disruptions caused by implementation of a new rule at
LaGuardia, and we recognize that adjusting to a new rule will be more
difficult for carriers if the adjustment must occur in the middle of a
scheduling season. Thus, as specifically requested by United, American,
Northwest, and ATA, the Order will expire at the first change of
scheduling season, as defined in 14 CFR, part 93, subpart B, occurring
no less than 90 days after the issuance of a final rule.
While the FAA is extending the term of this Order, the FAA
recognizes the need to complete the rulemaking, because the final
decision in that proceeding should establish a more rational basis for
the regulation of flight operations at LaGuardia. The rulemaking
process will give the FAA and the commenters a better opportunity to
consider and develop a better long-term policy on LaGuardia operations.
Hours of the Cap and Hourly Limits
The FAA proposed a limit of 75 scheduled operations per hour, the
current cap on scheduled operations in effect under the slot rules.
This limit is based on the optimal airport runway capacity of 81
operations per hour, including unscheduled flights. The FAA is adopting
this limit under the final Order, and as discussed later, will assign
Operating Authorizations for arrival and departures on a 30-minute
basis consistent with current practices. The FAA's Air Traffic
Organization may adjust the half-hour arrival and departure totals
within the hourly limit based on operating conditions.
The FAA made a preliminary determination to apply the operational
limits at LaGuardia beginning at 6:30 a.m. on weekdays rather than at
the historic 6 a.m. start under the HDR. American and U.S. Airways
requested the Order's limitations begin earlier, at 6 a.m., expressing
concern that additional operations in the 6 to 6:29 a.m. half-hour, if
unrestricted, might cause unacceptable delays. The FAA reviewed the
potential delay scenarios with unconstrained operations before 6:30
a.m. and agrees that starting the limitations at 6:30 a.m. each weekday
would create a risk of serious delays. Although overnight aircraft
parking positions are a constraint, there is the potential that greater
utilization of existing overnight positions or the establishment of new
ones might facilitate additional morning departures. Therefore, the FAA
concludes that beginning the limits at 6 a.m. hour is warranted.\15\
For conformity, the FAA also will begin the limits for unscheduled
operations at 6 a.m.
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\15\ We recognize that the FAA's proposed rule for LaGuardia
would begin limits at 6:30 a.m. on weekdays. The FAA expects to
complete a similar review of capacity and possible delay
implications in the context of that proceeding.
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The FAA also considered the Port Authority's comment that the
limits should apply on Saturday mornings before noon. We recognize that
traffic levels have increased on Saturday mornings, but our review
indicates that airport demand remains within the airport's capacity.
The FAA will continue to monitor operations and congestion during the
non-controlled hours at LaGuardia. Should a problem begin to
materialize, the FAA believes that there will be sufficient time to
adopt an amendment to this Order that would prevent undue congestion.
Assignment of Operating Authorizations \16\
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\16\ Proposed Ordering Paragraph 4 stated that FAA would assign
identification numbers to each Operating Authorization. These
numbers would be used for administrative purposes such as
identifying Operating Authorizations for trades and transfers and
for usage monitoring. Under the HDR and the Chicago O'Hare final
rule, the FAA also used randomly assigned identification numbers for
potential withdrawal if capacity reduction is required to meet FAA's
operational needs. While the FAA is not specifically adopting a
similar withdrawal priority mechanism for the purposes of this
Order, Operating Authorizations remain subject to FAA control and
may be withdrawn to meet FAA's operational needs. Should capacity be
reduced on an on-going basis, the FAA will adopt procedures to
withdraw Operating Authorizations.
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Under ordering paragraph 3 of the proposed Order, an Operating
Authorization would be assigned to the air carrier that holds the
equivalent slot or slot exemption authority, or if a non-air carrier
holds such authority to the air carrier assigned the operational
authority by the non-air carrier. The FAA will use the records of
allocations under the High Density Rule or FAA slot exemptions rules as
of January 1, 2007.
The FAA has determined to adopt its proposal to assign Operating
Authorizations only to carriers. The FAA believes that it can more
easily and effectively administer the Operating Authorization regime if
the operating rights are held only by carriers. Because this provision
raised several questions of applicability, the FAA provides the
following clarification.
Each slot currently has a ``holder'' status and an ``operator''
status. The same air carrier might be both holder and operator of a
slot (or Operating Authorization). In many cases, however, the air
carrier holder transfers the operator status to another carrier on a
one-for-one basis for a slot at another time, on a lease, or for
operation by a regional/commuter affiliate air carrier. Under the HDR,
some slots also are held by non-air carrier entities who arrange for a
carrier to operate the slots. Historically, transfer of ``operator''
status from a non-air carrier holder to an air carrier has been for a
multi-year period.
If a carrier is using a slot ``held'' by another carrier, the
Operating Authorization will be assigned to the carrier who actually
holds the slot, i.e., the air carrier that has operational authority,
assigned by the FAA, to conduct scheduled operations at LaGuardia on a
particular day of the week, during a specific time of the day. In other
words, carriers that currently ``hold'' slots or slot exemptions will
continue to ``hold'' the equivalent Operating Authorizations under the
Order even if those authorizations are currently leased or licensed to
other airlines for scheduled flight operations at LaGuardia. If a non-
air carrier holds the slot, the FAA will assign the Operating
Authorization to the carrier that was directly authorized by the non-
air carrier to operate the slot even if that carrier subsequently
transferred the slot temporarily to another carrier under the HDR. As
discussed under the following ``Secondary Market'' section, the FAA is
prohibiting the buying and selling of Operating Authorizations;
therefore, the ``holder'' status remains with the initially assigned
carrier under this Order unless an Operating Authorization is returned
or withdrawn by FAA for nonuse.
In the case of AIR-21 slot exemptions allocated for service between
LaGuardia and small hub and non-hub airports, the initial allocations
were made to marketing air carrier groups including American/American
Eagle, Delta/Delta Connection, Northwest/Northwest Airlink, and U.S.
Airways/US Airways Express. The particular air carrier providing the
service within those groups may have changed from time to time but the
marketing carrier has remained the same. Therefore, in these cases, the
FAA will assign Operating Authorizations to the primary marketing air
carrier, i.e., American Airlines, Delta Air Lines, Northwest Airlines,
and U.S. Airways.
ATA asked whether the FAA would interpret an air carrier holder as
including subsidiaries or affiliates of certificated air carriers that
now hold slots. ATA provided the following example: Calair L.L.C., a
wholly-owned subsidiary of Continental Airlines, currently holds the
slots under the HDR that are operated by Continental. Calair
[[Page 77857]]
is not a certificated air carrier. As indicated in the proposed
LaGuardia Order and similar rulemaking proceedings for Chicago O'Hare,
the FAA believes that the assignment of operational authority under FAA
adopted capacity limitations should be restricted to air carriers. In
fact, the FAA did not assign slots to non-air carriers under the
HDR'that was accomplished solely through carrier transactions in the
secondary market. However, the FAA will look at the chain of ownership
and see if there is a direct relationship between the affiliate or
subsidiary to a certificated air carrier. Thus, in this example and
under the provisions of this Order, Calair cannot receive the initial
assignment of Operating Authorizations because it is not a certificated
air carrier; rather the Operating Authorizations would be given to
Continental because it would be the air carrier with the most direct
relationship with Calair. In instances where the affiliate or
subsidiary organization is owned by more than one air carrier, the air
carriers will have to notify the FAA prior to the assignment of
Operating Authorizations whom they want designated as the ``holder''.
Alternatively, if a carrier is operating a slot that is held by an
entity that is not a certificated carrier, and the holder has no direct
relationship with a parent airline company, the Operating Authorization
will be assigned to the carrier designated as the operator by the non-
air carrier holder under the HDR. This recognizes that a non-air
carrier slot holder cannot operate the slots because actual flight
operations must be by an air carrier. The FAA does not agree with
certain commenters'claims that this allocation of Operating
Authorizations will interfere with on-going business relationships.
Carriers and other persons have long known that any rights held under
the slot rules would end on December 31, 2006. The statutory
termination date for the slot rules has meant that all financial and
security interests in slots will inevitably end on that date, so no one
could have reasonably expected that existing business and financial
arrangements based on the slot rules could continue after this year. In
any event, this Order is not intended to prohibit an air carrier from
contractually arranging to pledge an interest in an Operating
Authorization to a person, for use as collateral or otherwise, for the
duration of the Order.
The Republic Group asked that trusts be recognized under the Order.
Specifically, we were asked to allow for Operating Authorizations to be
held by trust so long as the beneficial ownership of the Operating
Authorizations is held by an air carrier. The FAA is unsure how these
types of trust operate in the market place, how they would differ from
other arrangements whereby non-air carriers might seek to hold
Operating Authorizations, what documentation might be required in order
to meet any standards adopted by the FAA, and whether alternative
agreements could readily be crafted to replace a trust. The Republic
Group did not provide sufficient background information in order for us
to make an educated decision distinguishing the requested beneficial
trust scenario from other potential non-air carrier holders.
Secondary Market
The slot rules have a buy-sell provision that allows carriers to
buy and sell slots for consideration. The recently-adopted rules
limiting operations at O'Hare permit buying and selling of operating
rights (``arrival authorizations''), but only under a blind-auction
procedure overseen by the FAA.\17\ Our proposal on long-term rules for
LaGuardia proposed a similar blind-auction requirement but also asked
for comment on whether carriers should be able to buy and sell
operating rights directly, as they have been able to do under the slot
rules. Our order, however, proposed to allow carriers only to engage in
one-for-one trades of Operating Authorizations and to lease Operating
Authorizations, but stated that any such trade or lease would terminate
when the Order terminated.
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\17\ 71 FR 51382 (August 29, 2006).
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All air carriers and carrier associations, except for AirTran and
ACAA, requested that the FAA permit the transfer and trading of
Operating Authorizations without restriction. Commenters pointed to the
FAA rules permitting such exchanges under the HDR and a recent
amendment to the FAA Order on scheduling limitations at Chicago
O'Hare.\18\ AirTran and ACAA, on the other hand, supported limits on
the buying/selling and leasing of Operating Authorizations because they
believe it would increase competition. At a minimum, they argued that
any sales of Operating Authorizations must be made through a blind-
auction process similar to the procedures required under the secondary
market for arrival authorization at Chicago O'Hare and the proposed
rule for LaGuardia.
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\18\ 71 FR 60600 (October 13, 2006).
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The FAA has considered a secondary market that permitted the
purchase and sale of Operating Authorizations. We have assessed whether
we should allow leases, trades, and transfers to extend beyond the
duration of the Order. We also have considered whether a blind transfer
mechanism similar to the one adopted for Chicago O'Hare would address
the concerns raised by ACAA and AirTran even if Operating
Authorizations were not subject to expiring lives under the Order.
The FAA has decided to permit leases and trades of Operating
Authorizations provided that all Operating Authorizations revert no
later than the expiration of this Order.\19\ Permanent sales,
purchases, or transfers of Operating Authorizations will not be
permitted. We also are clarifying that carriers may offer any form of
consideration in the lease and trade transactions negotiated under this
Order.
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\19\ Because the FAA is adopting this Order without a fixed
expiration date, the latest reversion date of any approved leases,
trades, or other transfers will coincide with the Order's
expiration.
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This Order is not intended to create a long-term solution for
LaGuardia congestion. Because the Operating Authorizations established
under this Order should not create long-term rights at LaGuardia, the
FAA does not wish to allow or encourage carriers to engage in
transactions that assume that a carrier purchasing Operating
Authorizations, or leasing them under a long-term lease, will acquire
potential rights to continue operating flights after this Order is
replaced by a new rule. The FAA determined that only through a limited
secondary market permitting temporary transfers of Operating
Authorizations could we protect various aspects of the proposed rule
for LaGuardia, including the various proposals regarding small
community access and the initial assignment of Operating
Authorizations. The FAA is aware there is potential for changes to
small community service levels during the life of the Order. Although
the FAA proposed in the NPRM a category of Operating Authorizations
reserved for use to small communities based on October 2006 services,
we believe the likelihood of small community service change increases
if we were to permit the permanent buying and selling of Operating
Authorizations. While prohibiting the permanent or long-term transfer
of Operating Authorizations under the Order does not prevent small
community impacts, it does reduce the likelihood.
Minimum Use Requirements
The FAA proposed that Operating Authorizations be subject to a
minimum use requirement of 80 percent over a consecutive two-month
reporting
[[Page 77858]]
period. Operating Authorizations not meeting this minimum would be
withdrawn by the FAA and would be reallocated using a lottery. Most
commenters supported an 80 percent use or lose requirement in order to
ensure the use of the airport's capacity. No one opposed having a
minimum-use requirement. The Port Authority, however, supported
increasing the minimum usage to 90 percent. Otherwise the FAA would be
allowing a carrier to keep an afternoon Operating Authorization that it
used for only 4.8 flights per week when the slot rules now require that
the equivalent slot be used for 5.6 flights per week.
The FAA has decided to adopt the proposed 80 percent minimum usage
requirement. Our experience in applying the HDR, as well as information
on cancellations presented by the Port Authority, is that carriers
typically operate slots well in excess of 80 percent. In particular,
weekday slots under the HDR have historically been used more than
weekend ones. We have no reason to believe carrier usage patterns will
not continue for the duration of this Order. Therefore, absent any
demonstrated changes in service patterns, we are reluctant to increase
the usage requirement beyond the proposed 80 percent for the duration
of this Order. We note that the FAA's minimum-use requirement in its
O'Hare rules adopted the 80 percent level and that level is prescribed
at slot-controlled airports throughout much of the world.
United Airlines requested clarification on whether a carrier
holding an Operating Authorization for scheduled service could use it
for unscheduled service, and if so, report it on use or lose reports.
The FAA clarifies that an air carrier may do as United seeks'operate
charters and other unscheduled services and have it count toward
minimum usage.
The FAA also proposed that any Operating Authorizations withdrawn
for failing to meet the minimum usage requirements would be reallocated
by lottery using the procedures in 14 CFR 93.225. The FAA is adopting
this procedure with one change to provide that any Operating
Authorizations assigned by lottery to new entrants and limited
incumbents under the Order would not automatically revert to the FAA at
the expiration of this Order.\20\ A new entrant/limited incumbent
carrier might choose not to initiate service under the Order if it
could not continue that service after a final rule. This would be
contrary to past FAA actions to promote new entry and competition.
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\20\ The FAA recognizes this conflicts with the proposed rule
for LaGuardia which uses slot holdings and operations during October
1-6, 2006, as the base for initial assignment of Operating
Authorizations at the effective date of the rule. Similarly, the FAA
recognizes that a carrier that has an Operating Authorization
withdrawn for nonuse during the duration of the Order should not be
assigned an equivalent Operating Authorization at the effective date
of the rule. The FAA will resolve these issues during our rulemaking
proceedings.
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Finally, the proposed Order provided that the Administrator could
waive the 80 percent usage requirement in the event of a highly unusual
and unpredictable condition beyond the control of the carrier and which
exists for a period of 5 consecutive days or more. We adopt the
proposal to permit usage waivers based on unusual circumstances.
Provisions for New Entrants and Limited Incumbents
AirTran and ACAA requested several modifications to the proposed
Order that would give limited incumbent air carriers and new entrants a
better opportunity to obtain Operating Authorizations. As discussed
elsewhere in this Order, they also urged the FAA to adopt other
provisions, such as a blind-auction procedure for any sales of
Operating Authorizations that would give airlines with a smaller
presence at LaGuardia a better chance to compete with the airport's
dominant carriers. Insofar as awarding additional Operating
Authorizations to smaller carriers is concerned, ACAA asked that the
FAA:
Withdraw ten percent of all slots held by carriers holding
more than forty (40) slots and distribute those slots to limited
incumbents operating aircraft with at least 110 seats;
Allow limited incumbent carriers that operated slots held
by other carriers during the October 1-6, 2006, period for full-size
aircraft service to small communities to continue using those slots
until a final rule is issued.
ACAA argued that its reallocation proposal was reasonable, because,
among other things, the Order proposed to end the requirements that the
major carriers use their slot exemptions only for flights operated to
smaller communities with smaller aircraft.
AirTran further asks that the FAA provide at least ten additional
Operating Authorizations to each limited incumbent carrier to operate
full-size jets. AirTran did not indicate how the FAA would create these
authorizations while maintaining our cap on operations. Alternatively,
they asked that we withdraw Operating Authorizations from other larger
carriers. Senator Richard G. Lugar and Congresswoman Julia M. Carson
supported an allocation of additional operating authority to permit
AirTran to serve the LaGuardia/Indianapolis market.
The reallocations proposed for by ACAA and AirTran incorporate
elements of the NPRM that are currently subject to comment. The
rulemaking, not this Order, is intended to establish flight
restrictions for the long term at LaGuardia. In the rulemaking the FAA
has proposed that Operating Authorizations expire in a periodic fashion
and be subject to reallocation. The pending rulemaking will give
interested persons a better opportunity to present their economic and
policy views on potential reallocation and withdrawal issues, and
enable the FAA to consider such matters more fully on the basis of a
better record. The FAA accordingly prefers to consider in that
proceeding whether LaGuardia operating rights should be reallocated.
Small Community Service
The Order did not propose to designate Operating Authorizations
that would be restricted to small community service or limited to
smaller aircraft. The HDR air carrier and commuter slot categories
would be merged into a single category of Operating Authorizations.
Likewise, AIR-21 restrictions granting certain slot exemptions for
services to small hub and non-hub airports using smaller aircraft would
expire along with the HDR. Therefore, carriers could choose to adjust
existing schedules and markets during the duration of this Order
without regard to the market and aircraft restrictions that existed
under the HDR. In addition to several proposals that urge the FAA to
grant Operating Authorizations for service to specific communities, as
discussed below, several commenters--AirTran, Colgan Air, ACAA, and the
Port Authority--argued that the FAA should adopt provisions that would
protect service to small community airports while the Order is in
effect. Their comments included suggestions such as retaining the
restrictions requiring AIR-21 slot exemptions to be used for flights to
small hub and non-hub airports.
The FAA shares the concerns about continuing LaGuardia service to
smaller communities. The commuter slot pool under the HDR was
established, in part, to recognize historic service to small
communities and provide a level of protection for that service by
restricting the use of the slots with larger turbojet aircraft
typically used for larger communities. The AIR-21 slot exemption
authority reflected congressional interest for increased
[[Page 77859]]
service opportunities to small communities seeking access to LaGuardia,
and the FAA's lottery system for allocating those exemptions provided
for an equitable distribution of exemptions between carriers serving
small communities and new entrants.
The pending rulemaking includes three options for ensuring that
small communities will continue to have service to LaGuardia. The
number and timing of operations conducted by air carriers to the
various small hub and non-hub airports during October 1-6, 2006, would
be the base period for establishing the small community pool under the
final rule. We expect to receive comments under that proceeding as to
the appropriate level of protection for small communities served from
LaGuardia Airport. Therefore, the FAA did not propose a specific set-
aside for small communities under the Order since the appropriateness
and make-up of such a designation was already the subject of a
rulemaking that is intended to be more comprehensive and long-term.
Some of the comments on the proposed Order suggest the FAA should
continue the AIR-21 limits on small hub and non-hub airport slot
exemptions while the comments on the NPRM are considered. Absent those
restrictions, carriers would be free to use larger aircraft to serve
larger size airports and might discontinue the small community services
gained under AIR-21. While the FAA understands there is a potential for
this to occur, the final rule, in all probability, would use for its
initial assignment of Operating Authorizations a base period when
various protections existed for small community service. Thus, carriers
might alter service plans to small hub and non-hub airports during the
Order only to face a final rule designating certain Operating
Authorizations for historic small community service levels. Carriers
may consider the benefits of schedule stability at smaller airports
during the duration of this Order. Furthermore, the FAA agrees with the
Port Authority's suggestion that it should monitor changes in small
community service during the term of this Order. The FAA intends to do
so.
Finally, as indicated earlier, the FAA is not increasing the
proposed hourly limits on flight operations in order to ensure that
small communities would continue to have all of the service at
LaGuardia that they have had in the past. Such an accommodation would
increase delays and fail to meet the congestion management objectives
of this Order. The airport's capacity limitations prevent us from
authorizing additional flights, even when they would serve a worthy
purpose.
Flights to Specific Communities
Several commenters urged the FAA to adopt provisions that would
protect service to small community airports while the Order is in
effect. Newport News/Williamsburg Airport and Akron-Canton Airport each
filed comments requesting that the FAA allocate two Operating
Authorizations to each airport. They would allow AirTran to reinstate
roundtrip flights that it can no longer operate because it does not
hold or lease the necessary slots, and accordingly, will not be
assigned operating authorizations for such operations under this
Order.\21\
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\21\ The City of Canton, the Medina County Economic Development
Corporation, and the Stark Development Board, Inc. among others also
support the request.
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The FAA is unwilling in this Order to create additional Operating
Authorizations to ensure that specific communities obtain additional
service to LaGuardia. While the FAA understands the desire of the
Akron-Canton and Newport News/Williamsburg groups to maintain the
recent air service levels between LaGuardia and their respective
airports, the FAA has not used congestion management rules to provide
service to specific communities. Like a slot under the HDR, an
Operating Authorization under the Order is the operation authority
assigned by the FAA to a carrier to conduct a scheduled arrival or
departure operation and has no specific city-pair limitations. To honor
the request made by these airports would be tantamount to a radical
change in the congestion management program. Further, unlike the
situation at Ronald Reagan Washington National Airport, where the
Department of Transportation is directed to grant certain slot
exemptions for ``selected routes'' beyond the perimeter and to airports
within the perimeter,\22\ there is not such statutory basis for the FAA
to require that a carrier operate to a certain market from LaGuardia.
The FAA therefore declines to do adopt the suggestion of Akron-Canton
and Newport News/Williamsburg.
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\22\ 49 U.S.C. 41718 (a) and (b).
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Unscheduled Operations
In addition to limits on scheduled operations, the FAA proposed
adopting limits for unscheduled operations to ensure that demand is
spread reasonably throughout the day. The FAA proposed the same hourly
limits that applied under the HDR using similar reservation procedures
described in FAA Advisory Circular 93-1, ``Reservations for Unscheduled
Operations at High Density Traffic Airports.'' The FAA's Airport
Reservation Office at the David J. Hurley Air Traffic Control System
Command Center would manage the reservation process using the existing
e-CVRS system.
No comments were received opposing the establishment of the
reservation requirements and proposed procedures for allocating
reservations for unscheduled flights. United Airlines commented that
the number of hourly reservations established for unscheduled
operations conflicts with other stated agency objectives of ensuring
efficient utilization of limited airport resources and increasing
passenger throughput. We proposed the historic set aside of six
reservations for unscheduled operations and adopt this allocation under
this final Order, because it is consistent with the treatment of the
scheduled operations during the time this order will be temporarily in
place. As a result, the FAA is adopting the proposed allocation for
unscheduled flights.
United Airlines also requested clarification that it could conduct
charters and other unscheduled operations using its Operating
Authorizations for scheduled service. We agreed and addressed United's
comment in the section on Minimum Use.
The FAA is adopting the proposed limits and reservation procedures
with minor editorial changes. Information on procedures for obtaining
the appropriate reservations for unscheduled flights will be available
prior to the effective date of this Order via the Internet on the FAA's
Web site at http://www.fly.faa.gov/ecvrs.
III. Conclusion
On September 11, 2006, the FAA issued a proposed Order, which
solicited written views on the FAA's tentative determination to place
temporary limitations on flight operations at LaGuardia Airport. After
considering the responses, the FAA has determined to issue a final
Order adopting operating limitations at New York LaGuardia Airport.
A. Scheduled Operations
With respect to scheduled operations at LaGuardia:
1. The final Order governs scheduled arrivals and departures,
except helicopters, at LaGuardia from 6 a.m. through 9:59 p.m., Eastern
Time, Monday through Friday and from 12 noon through 9:59 p.m., Eastern
Time, Sunday. Seventy-five (75) Operating
[[Page 77860]]
Authorizations are available per hour and will be assigned by the FAA
on a 30-minute basis.
2. The final Order takes effect on January 1, 2007, and will expire
at the first change of scheduling season, as defined in 14 CFR, part
93, subpart B, occurring no less than 90 days after the issuance of a
final rule regulating congestion at LaGuardia.
3. The FAA will assign operating authority to conduct an arrival or
a departure at LaGuardia during the affected hours to the air carrier
that holds equivalent slot or slot exemption authority under the High
Density Rule or FAA slot exemption rules as of December 31, 2006; to
the primary marketing air carrier in the case of AIR-21 small hub/non-
hub airport slot exemptions; or to the air carrier operating the
flights as of December 31, 2006, in the case of a slot held by a non-
air carrier. If the slot is held by a subsidiary or affiliate of an air
carrier, the FAA will assign the operating authority to the carrier
that has the most direct relationship with that non-air carrier holder.
The FAA will not assign operating authority under the final Order to
any person or entity other than a certificated U.S. or foreign air
carrier with appropriate economic authority to conduct scheduled
passenger service and FAA operating authority under 14 CFR part 121,
129, or 135. The Chief Counsel of the FAA will be the final decision
maker regarding the initial assignment of Operating Authorizations.
4. For administrative tracking purposes only, the FAA will assign
an identification number to each Operating Authorization.
5. An air carrier can lease or trade an Operating Authorization to
another carrier for any consideration, not to exceed the duration of
the final Order. Notice of a trade or lease under this paragraph would
be submitted in writing to the FAA Slot Administration Office,
facsimile (202) 267-7277 or e-mail 7-AWA-Slotadmin@faa.gov, and must
come from a designated representative of each air carrier. The air
carriers are required to receive written confirmation from the FAA
prior to operating under the traded operating authority.
6. Every air carrier holding an Operating Authorization must
forward in writing to the FAA Slot Administration Office a list of all
Operating Authorizations held by the carrier along with a listing of
the Operating Authorizations actually operated for each day of the 2-
month reporting period within 14 days after the last day of the 2-month
reporting period beginning January 1 and every 2 months thereafter. Any
Operating Authorization not used at least 80 percent of the time over a
two-month period will be withdrawn by the FAA. The FAA Administrator
can waive the 80 percent usage requirement in the event of a highly
unusual and unpredictable condition which is beyond the control of the
carrier and which exists for a period of 5 consecutive days or more.
7. In the event that Operating Authorizations are withdrawn for
non-use, surrendered to the FAA or are unassigned, the FAA will
determine whether any of the available Operating Authorizations should
be reallocated. If so, the FAA will conduct a lottery using the
provisions specified under 14 CFR 93.225. The FAA may retime an
Operating Authorization prior to reallocation in order to address
operational needs. When the final Order expires, any Operating
Authorizations reassigned under this paragraph, except those assigned
to new entrants or limited incumbents, will revert to the FAA for
reallocation according to the reallocation mechanism prescribed in the
final rule that succeeds the final Order.
8. The FAA will enforce the final Order through an enforcement
action seeking a civil penalty under 49 U.S.C. 46301(a). An air carrier
that is not a small business as defined in the Small Business Act, 15
U.S.C. 632, would be liable for a civil penalty of up to $25,000 for
every day that it violates the limits set forth in the final Order. An
air carrier that is a small business as defined in the Small Business
Act would be liable for a civil penalty of up to $10,000 for every day
that it violates the limits set forth in the final Order. The FAA also
could file a civil action in U.S. District Court, under 49 U.S.C.
46106, 46107, seeking to enjoin any air carrier from violating the
terms of the final Order.
B. Unscheduled Operations \23\
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\23\ Unscheduled operations are operations other than those
regularly conducted by an air carrier between LaGuardia and another
service point. Unscheduled operations include general aviation,
public aircraft, military, charter, ferry, and positioning flights.
Helicopter operations are excluded from the reservation requirement.
Reservations for unscheduled flights operating under visual flight
rules (VFR) are granted when the aircraft receives clearance from
air traffic control to land or depart LaGuardia. Reservations for
unscheduled VFR flights are not included in the limits for
unscheduled operators.
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With respect to unscheduled flight operations at LaGuardia:
1. The final Order applies to all operators of unscheduled flights,
except helicopter operations, at LaGuardia from 6 a.m. through 9:59
p.m., Eastern Time, Monday through Friday and from 12 noon through 9:59
p.m., Eastern Time, Sunday.
2. The final Order takes effect on January 1, 2007, and will expire
at the first change of scheduling season occurring no less than 90 days
after the issuance of a final rule regulating congestion at LaGuardia.
3. No person can operate an aircraft other than a helicopter to or
from LaGuardia unless the operator has received, for that unscheduled
operation, a reservation that is assigned by the David J. Hurley Air
Traffic Control System Command Center's Airport Reservation Office
(ARO). Additional information on procedures for obtaining a reservation
is available via the Internet at http://www.fly.faa.gov/ecvrs.
4. Six (6) reservations are available per hour for unscheduled
operations at LaGuardia. The ARO will assign reservations on a 30-
minute basis.
5. The ARO receives and processes all reservation requests.
Reservations are assigned on a ``first-come, first-served'' basis,
determined as of the time that the ARO receives the request. A
cancellation of any reservation that will not be used as assigned is
required.
6. Filing a request for a reservation does not constitute the
filing of an instrument flight rules (IFR) flight plan, as separately
required by regulation. After the reservation is obtained, an IFR
flight plan can be filed. The IFR flight plan must include the
reservation number in the ``remarks'' section.
7. Air Traffic Control will accommodate declared emergencies
without regard to reservations. Non-emergency flights in direct support
of national security, law enforcement, military aircraft operations, or
public-use aircraft operations will be accommodated above the
reservation limits with the prior approval of the Vice President,
System Operations Services, Air Traffic Organization. Procedures for
obtaining the appropriate reservation for such flights are available
via the Internet at http://www.fly.faa.gov/ecvrs.
8. Notwithstanding the limits in paragraph 4, if the Air Traffic
Organization determines that air traffic control, weather, and capacity
conditions are favorable and significant delay is not likely, the FAA
can accommodate additional reservations over a specific period. Unused
Operating Authorizations can also be temporarily made available for
unscheduled operations. Reservations for additional operations are
obtained through the ARO.
[[Page 77861]]
9. Reservations cannot be bought, sold, or leased.
Issued in Washington, DC, on December 13, 2006.
Rebecca Byers MacPherson,
Assistant Chief Counsel for Regulation.
[FR Doc. 06-9863 Filed 12-20-06; 3:29 pm]
BILLING CODE 4910-13-P