[Federal Register: February 14, 2008 (Volume 73, Number 31)]
[Notices]
[Page 8737-8740]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14fe08-111]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2007-29320]
Operating Limitations at John F. Kennedy International Airport;
Notice of Order
AGENCY: Department of Transportation, Federal Aviation Administration
(FAA).
ACTION: Notice of Order.
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SUMMARY: The Federal Aviation Administration (FAA) is amending the
Order Limiting Scheduled Operations at John F. Kennedy International
Airport that published in the Federal Register on January 18, 2008.
This amendment corrects technical errors in the Order. Specifically,
this amendment clarifies that the use-or-lose provisions of the Order
will mirror the IATA Worldwide Scheduling Guidelines; changes the
office within the FAA responsible for handling appeals from the Air
Traffic Organization to the Office of the Chief Counsel; and provides
for a five-day notification period in the event a carrier transfers an
operation within a marketing code for irregular operations. This
document also clarifies several aspects of the Order without
substantively changing the applicable requirements.
FOR FURTHER INFORMATION CONTACT: Rebecca MacPherson, Assistant Chief
Counsel for Regulations, Office of the Chief Counsel, AGC-200, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone (202) 267-3073.
SUPPLEMENTARY INFORMATION: On January 18, 2008 the FAA published the
Order Limiting Scheduled Operations at John F. Kennedy International
Airport (JFK) (Order) in the Federal Register (73 FR 3510). The Order
establishes a temporary limitation on the number of scheduled
operations at JFK. The Acting Administrator of the FAA issued the order
as a result of a persistent number of flights above capacity at JFK
during the peak operating hours. The FAA intends the Order, as amended
today, to relieve the substantial inconvenience to the traveling public
caused by excessive congestion-related flight delays at the airport,
which magnify as they spread through the National Airspace System.
Among other things, the order will reduce the average length of delays
and provide for a more efficient use of the nation's airspace. The
order takes effect at 6 a.m., Eastern Time, on March 30, 2008, and will
expire at 11:59 p.m., Eastern Time, on October 24, 2009. The limits
apply to all air carrier and foreign air carrier scheduled operations,
excluding helicopters, from 6 a.m., Eastern Time, through 10:59 p.m.,
Eastern Time.
This amendment corrects technical errors in the Order.
Specifically, this amendment clarifies that the use-or-lose provisions
of the Order will mirror the IATA Worldwide Scheduling Guidelines
(WSG); changes the office within the FAA responsible for handling
appeals from the Air Traffic Organization to the Office of the Chief
Counsel; and provides for a five-day notification period in the event a
carrier transfers an operation within a marketing code for irregular
operations. This document also clarifies several aspects of the Order
without substantively changing the applicable requirements.
Changes to the Order
Use-or-Lose Provisions
As noted in the preamble to the Order published in January 2008,
the FAA will calculate use-or-lose based on the WSG. The use-or-lose
provision articulated in the Order largely mirrored the approach we
have historically taken under the High Density Rule (HDR) \1\ and the
orders limiting operations at Chicago O'Hare International Airport
(ORD) and LaGuardia Airport (LGA). The requirement articulated in the
Order was in error, and the language in paragraph nine of the Order has
been amended to reflect the agency's intent.
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\1\ 14 CFR part 93, subpart K.
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Under a strict seasonal use-or-lose provision, an operation that
did not commence until June, or ended in September, would be returned
to the slot coordinator for reallocation for the following summer
season because the slot would not be used at least 80% of the time. The
WSG protects seasonal or newly initiated service by allowing the
carrier to declare in advance the stop and start dates of service.
Under the WSG, carriers are required to inform the coordinator of
their intended summer and winter operations by January 31 and August
31, respectively. Any operations not declared by these dates are
surrendered and are not given historical status for the subsequent
applicable scheduling season. However, they also are not counted
against a carrier's slot holdings when determining use-or-lose. Thus,
if a carrier were to advise the FAA that it would commence operations
on June 1, 2008 and cease those operations on August 31, the only
timeframe for determining use-or-lose would be June 1 through August
31, even though the summer scheduling season runs from March 30 to
October 25. Assuming the carrier conducted enough flights under an
Operating Authorization (OA) in the June through August timeframe to
receive historical recognition, it would be given the OA for summer
2009 from June 1 through August 31.
The FAA believes this approach has merit. A strict seasonal use-or-
lose policy would require carriers to operate flights on the shoulders
of a scheduling season just to assure they would not lose the related
OA. This unnecessary service would have the effect of increasing
congestion during the spring and fall.
Accordingly, we are amending the Order to specify that for purposes
of use-or-lose and historical allocation for subsequent seasons,
carriers must tell the FAA when a particular operation will start and
stop. Because it is too late to meet the submission date specified in
the WSG for summer 2008, carriers who wish to have less than the entire
summer season subject to the use-or-lose provision must report usage
for this upcoming summer by February 29, 2008. Carriers are encouraged
to submit information on all service scheduled for summer 2009 by
February 29, to assist the FAA in finalizing schedules as soon as
possible. Notification to the FAA for winter 2008/2009 and summer 2009
schedules will follow the WSG. For purposes of the winter 2008/2009
scheduling season, historic usage rights will be determined by the
appendix to the Order since there were no capacity restraints at JFK in
the 2007 winter scheduling season. The FAA will receive initial
schedule requests for the winter 2008/2009 scheduling season by the May
15 deadline and coordinate with carriers at the June 2008 IATA
Schedules Conference.
Paragraph nine of the Order also requires carriers to report on
usage within 14 days for every two-month reporting period. Since the
WSG use-or-lose requirement applies to an entire scheduling season,
there is no need for carriers to report to the FAA every two months.
That requirement has been changed. First, the FAA does not believe it
needs reports every two months. One
[[Page 8738]]
option would be for the FAA to merely require a report be filed at the
end of the scheduling season. However, the coordination process for
allocating OAs for the following season begins approximately six weeks
before the end of the season. The beginning of this coordination
process requires the coordinator to notify carriers of tentative
historical allocations. The FAA needs to know a carrier's usage rate
before it can provide even a tentative historical allocation.
Accordingly, the FAA has decided to replace the bimonthly reporting
requirement with a requirement that carriers provide an interim report
approximately two months before the end of the scheduling season, and a
final report at the end of the season.
Some carriers have requested that they be allowed 30 days to submit
their reports rather than 14. As discussed in the preamble to the Order
published in January 2008, OAs are allocated on a daily basis, and the
use-or-lose requirements apply separately to each day in the week that
a carrier conducts a specific operation. Under the HDR, the use-or-lose
provisions applied to a specific operation for which a slot had been
allocated regardless of how many days a week the slot was used.
While the FAA does not believe a seasonal reporting requirement is
significantly more burdensome than a bi-monthly requirement, we
acknowledge that the determination of use-or-lose based on a daily OA
allowance, rather than the weekly allowance contemplated under past
use-or-lose regimes, means that a carrier could have to account for up
to seven times as many OAs as it would under the requirements in the
HDR and the ORD and LGA orders. Accordingly, we believe it is
reasonable to extend the period for submitting a final usage report
from 14 days to 30.
Because carriers may choose to initiate operations after the
commencement of a scheduling season, or cease operations prior to the
end of the season, there may be some available capacity in the shoulder
periods of both the summer and winter scheduling seasons. In general,
the FAA believes not reallocating this capacity is beneficial because
it should result in further delay reductions. However, the FAA also
recognizes that some of this capacity could be reintroduced into the
system without significantly impacting delay. The agency also realizes
that a carrier may have a short-term need to conduct operations during
these time periods. Accordingly, a carrier may request that the FAA
allow it to temporarily operate a flight at a time period where there
is some newly available capacity. Paragraph 10 has been amended to
reflect this possibility. The FAA retains full discretion to determine
whether to allow these additional operations. in addition, these
operations will not be afforded historical status when determining OAs
for the next applicable season. Any longer-term capacity returned by
virtue of the Order's use-or-lose provisions would be reallocated for
the next applicable season via an auction procedure.
The Appendix to the Order shows allocations based on a peak week in
August 2007. Many carriers, especially foreign flag carriers, have
provided the FAA with information on dates of operation either with the
initial schedule submission at the IATA Schedules Conference or in
subsequent schedule requests. The FAA has previously acted on that
information and the Appendix is not meant to supersede any prior
confirmations that carriers may have received. Most domestic operators
have not specified seasonal adjustments in their requests. Once
carriers have told us when they expect to operate flights for purposes
of use-or-lose and historical allocation, the FAA will update the
allocation records to reflect actual anticipated operations. Carriers
seeking confirmation of their allocation may contact the slot office
directly. However, schedules previously confirmed by the FAA do not
require reconfirmation.
Appeal of Decisions
Paragraph 1c of the Order originally specified that the FAA Vice
President, System Operations Services, is the final decision-maker for
determinations regarding the assignment of an OA to conduct an arrival
or departure at JFK during the affected hours. This provision was
designed to address clerical errors or other adjustments to the
Appendix to the order. However, the FAA realizes that there would be
other decisions that a carrier may wish to appeal to the FAA. Because
these issues would likely relate to a legal interpretation by the
Office of the Chief Counsel rather than a purely operational issue, the
FAA has decided the Chief Counsel should be the final decision-maker
for all appeals to the agency under the Order. In addition, since the
Office of the Chief Counsel handled all appeals under the HDR, it has
the greatest experience in this area. Obviously, the operational arms
of the FAA would be consulted on all matters under appeal. Paragraph 1c
of the Order has been amended accordingly.
Transaction Paperwork for Irregular Operations
Paragraph seven of the Order addresses the transfer of OAs,
including day-of-transfers among carriers under the same marketing
control to address irregular operations. The Order originally specified
that the FAA must be informed of these transactions within three days
(72 hours). This provision was intended to mirror the comparable
provision in the LGA Order. That order was amended to extend the
reporting requirement to five days (72 FR 63224, November 8, 2007). As
the FAA intended to mirror the existing requirement at LGA, paragraph
seven has been changed to specify that the FAA must be notified of same
day transfers within five days.
Clarification of the Order
OA Management
The FAA has received questions regarding the management of OAs in
15 or 30-minute increments. The appendix to the Order allocates OAs in
15-minute increments. However, the FAA will track arrivals and
departures in 30-minute intervals.
Codeshare Partners
Some carriers have indicated that the requirement under the Order
that OAs be held by the operating carrier rather than the marketing
carrier is inconsistent with common practice internationally. The FAA
continues to believe that the OAs should actually be held by the
operator actually conducting the flight. This position is consistent
with how we have handled slots under the HDR and arrival and operations
authorizations at ORD and LGA.
The Amended Order
Because this amendment merely corrects technical errors and
provides further clarification, the FAA is not seeking public comment
on the changes. For the convenience of the affected parties, the Order
is recited below in its entirety.
With respect to scheduled flight operations at JFK, it is ordered
that:
1. This Order assigns operating authority to conduct an arrival or
a departure at JFK during the affected hours to the U.S. air carrier or
foreign air carrier identified in the appendix to this Order. The FAA
will not assign operating authority under this Order to any person or
entity other than a certificated U.S. or foreign air carrier with
appropriate economic authority and FAA operating authority under 14 CFR
part 121, 129, or 135. This Order applies to the following:
[[Page 8739]]
a. All U.S. air carriers and foreign air carriers conducting
scheduled operations at JFK as of the date of this Order, any U.S. air
carrier or foreign air carrier that operates under the same designator
code as such carrier, and any air carrier or foreign-flag carrier that
has or enters into a codeshare agreement with such carrier.
b. All U.S. air carriers or foreign air carriers initiating
scheduled or regularly conducted commercial service to JFK while this
Order is in effect.
c. The Chief Counsel of the FAA, in consultation with the Vice
President, System Operations Services, is the final decision-maker for
determinations under this Order.
2. This Order governs scheduled arrivals and departures at JFK from
6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
3. This Order takes effect on March 30, 2008, and expires at 11:59
p.m., Eastern Time, on October 24, 2009.
4. Under the authority provided to the Secretary of Transportation
and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we
hereby order that:
a. No U.S. air carriers or foreign air carriers initiating or
conducting scheduled or regularly conducted commercial service to JFK
may conduct such operations without an Operating Authorization assigned
by the FAA.
b. Except as provided in the appendix to this Order, scheduled U.S.
air carrier and foreign air carrier arrivals and departures will not
exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.
c. The Administrator may change the limits if he determines that
capacity exists to accommodate additional operations without a
significant increase in delays.
5. For administrative tracking purposes only, the FAA will assign
an identification number to each Operating Authorization.
6. A carrier holding an Operating Authorization may request the
Administrator's approval to move any arrival or departure scheduled
from 6 a.m. through 10:59 p.m. to another half hour within that period.
Except as provided in paragraph seven, the carrier must receive the
written approval of the Administrator, or his delegate, prior to
conducting any scheduled arrival or departure that is not listed in the
appendix to this Order. All requests to move an allocated Operating
Authorization must be submitted 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 the carrier. If the FAA cannot
approve a carrier's request to move a scheduled arrival or departure,
the carrier may then apply for a trade in accordance with paragraph
seven.
7. A carrier may lease or trade an Operating Authorization to
another carrier for any consideration, not to exceed the duration of
this Order. Notice of a trade or lease under this paragraph must be
submitted in writing to the FAA Slot Administration Office, facsimile
(202) 26707277 or e-mail 7-AWA-Slotadmin@faa.gov, and must come from a
designated representative of each carrier. The FAA must confirm and
approve these transactions in writing prior to the effective date of
the transaction. The FAA will approve transfers between carriers under
the same marketing control up to five business days after the actual
operation, but only to accommodate operational disruptions that occur
on the same day of the scheduled operation.
8. A carrier may not buy, sell, trade, or transfer an operating
authorization, except as described in paragraph seven.
9. Historical rights to Operating Authorizations and withdrawal of
those rights due to insufficient usage will be determined on a seasonal
basis and in accordance with the schedule approved by the FAA prior to
the commencement of the applicable season.
a. For each day of the week that the FAA has approved an operating
schedule, any Operating Authorization not used at least 80% of the time
over the time-frame authorized by the FAA under this paragraph will be
withdrawn by the FAA for the next applicable season except:
i. The FAA will treat as used any Operating Authorization held by a
carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and
the period from December 24 through the first Saturday in January.
ii. The Administrator of the FAA may waive the 80% usage
requirement in the event of a highly unusual and unpredictable
condition which is beyond the control of the carrier and which affects
carrier operations for a period of five consecutive days or more.
b. Each 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 and:
i. The dates within each applicable season it intends to commence
and complete operations.
A. For the summer 2008 scheduling season, the report must be
received by the FAA no later than February 29, 2008, unless the carrier
intends to utilize its Operating Authorizations for the entire
scheduling season.
B. For the winter 2008/2009 scheduling season, the report must be
received by the FAA no later than August 31, 2008.
C. For the summer 2009 scheduling season, the report must be
received by the FAA no later than January 31, 2009.
ii. The completed operations for each day of the applicable
scheduling season:
A. No later than September 1 for the summer scheduling season:
B. No later than January 15 for the winter scheduling season.
iii. The completed operations for each day of the scheduling season
within 30 days after the last day of the applicable scheduling season.
10. In the event that a carrier surrenders to the FAA any Operating
Authorization assigned to it under this Order or if there are
unallocated Operating Authorizations, the FAA will determine whether
the unallocated Operating Authorizations should be reallocated. The FAA
may temporarily allocate an Operating Authorization at its discretion.
Such temporary allocations will not be entitled to historical status
for the next applicable scheduling season under paragraph 9.
11. If the FAA determines that a reduction in the number of
allocated Operating Authorizations is required to meting operational
needs, such as reduced airport capacity, the FAA will conduct a
weighted lottery to withdraw Operating Authorizations to meet a reduced
hourly or half-hourly limit for scheduled operations. The FAA will
provide at least 45 days' notice unless otherwise required by
operational needs. Any Operating Authorization that is withdrawn or
temporarily suspended will, if reallocated, be reallocated to the
carrier from which it was taken, provided that the carrier continues to
operate scheduled service at JFK.
12. The FAA will enforce this Order through an enforcement action
seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not
a small business as defined in the Small Business Act, 15 U.S.C. 632,
will be liable for a civil penalty of up to $25,000 for every day that
it violates the limits set forth in this Order. A carrier that is a
small business as defined in the Small Business Act will be liable for
a civil penalty of up to $10,000 for every day that it violates the
limits set forth in this 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 this Order.
13. The FAA may modify or withdraw any provision in this Order on
its own
[[Page 8740]]
or on application by any carrier for good cause shown.
Issued in Washington, DC, on February 8, 2008.
Kerry B. Long,
Chief Counsel, Federal Aviation Administration.
[FR Doc. 08-661 Filed 2-8-08; 3:55 pm]
BILLING CODE 4910-13-M