[Federal Register: October 30, 2008 (Volume 73, Number 211)]
[Notices]
[Page 64658-64660]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc08-88]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[Docket No. FAA-2008-0629]
Operating Limitations for Unscheduled Operations at John F.
Kennedy International Airport and Newark Liberty International Airport
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Disposition of Comments to Proposed Order.
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SUMMARY: On July 17, 2008, the FAA issued a proposed order requesting
written views on the FAA's tentative determination to temporarily limit
unscheduled aircraft operations at John F. Kennedy International
Airport (JFK) and Newark Liberty International Airport (EWR). The
temporary limit was intended to supplement previously issued FAA orders
limiting scheduled operations at both airports by addressing congestion
related delays that would otherwise occur pending the ongoing
rulemaking action for JFK and EWR. This disposition of comments
explains the FAA's rationale for not presently adopting the proposed
order and discusses the comments received in response to the proposed
order.
ADDRESSES: To read background documents or comments received, go to
http://www.regulations.gov and follow the online instructions for
accessing the docket. Alternatively, 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 disposition of comments contact: Gerry Shakley, System Operations
Services, Air Traffic Organization; telephone: (202) 267-9424;
facsimile: (202) 267-7277; e-mail: gerry.shakley@faa.gov. For legal
questions concerning this disposition of comments contact: Rebecca B.
MacPherson, Office of the Chief Counsel, Federal Aviation
Administration; telephone: (202) 267-7240; facsimile: (202) 267-7971;
e-mail: rebecca.macpherson@faa.gov.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Documents
You may obtain an electronic copy using 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.gpoaccess.gov/fr/index.html.
You also may obtain a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make
sure to identify the amendment number or docket number of this
rulemaking.
Discussion of Written Submissions and the Final Order
The FAA published the Notice of Proposed Order, ``Operating
Limitations for Unscheduled Operations at John F. Kennedy International
Airport and Newark Liberty International Airport,'' on July 17, 2008.
The FAA concludes that it is unnecessary to issue a final order because
the limits proposed are imposed by a final rule, ``Congestion
Management Rule for John F. Kennedy International Airport and Newark
Liberty International Airport,'' (``Final Rule'') issued on October 10,
2008.\1\ However, if the Final Rule is rendered ineffective for any
reason, the FAA may adopt the proposed order as final without an
opportunity for further comment. Accordingly, the comments to the
proposed order are discussed below.
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\1\ 73 FR 60544.
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The Notice requested comments on several aspects of the proposed
order, as well as any general comments. The comment period closed on
July 28, 2008. The FAA received one comment during the comment period
and eleven additional comments after the closing date. These comments
are from interested parties including airlines, all-cargo air carriers,
a public charter operator, and industry organizations. Several
commenters generally support the FAA's goal of reducing congestion at
the New York area airports, and three commenters support the proposal
in its entirety. Commenters opposing the
[[Page 64659]]
proposed order contend that it fails to address the nature of charter,
business, and general aviation operations and the effect of the
proposed order on those segments of the aviation industry. Comments to
the Notice are addressed below by topic. The FAA also received seven
comments in response to ``Congestion Management Rule for John F.
Kennedy International Airport and Newark Liberty International
Airport'' \2\ regarding unscheduled operations that raised
substantially the same issues and are discussed below.
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\2\ Docket No. FAA-2008-0517.
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All-Cargo Operations
The comments submitted by the Cargo Airline Association (CAA) best
summarize the concerns of all-cargo air carriers. CAA contends that the
proposed order will have a serious, adverse impact on all-cargo
carriers, arguing that, although most operations are conducted during
nighttime hours, these carriers cannot always plan in advance to meet
service demands during congested hours. All-cargo carriers frequently
conduct unscheduled operations on short notice, and many guarantee
service by a time certain. Because of these combined circumstances, a
failure to obtain a required reservation may result in liability to the
shipper. CAA believes that reservations will not be available for last
minute operations, which it argues constitutes an unfair and unlawful
discrimination against all-cargo carriers and other unscheduled
operations. Additionally, CAA contends that because of the nature of
the all-cargo industry segment, it is not practical to use other area
airports for unscheduled operations. One all-cargo carrier claims that
the proposed order will preclude it from competing as an ``ad-hoc
charter operator'' because its operations often are planned two hours
in advance.
CAA suggests that all-cargo carriers be treated similarly to
military and public aircraft, and aircraft operating under contracts
with the Department of Defense or the United States Postal Service to
carry mail, because of the ``mission-critical all-cargo business
model.'' Under this treatment, all-cargo carriers would be subject to
the order and would need a reservation, but they would be given
preferential treatment. Another all-cargo carrier requests that a
number of reservations be allocated to allow all-cargo operations on an
as-needed basis.
The purpose of the reservation system is to allow for unscheduled
operations, and the number of reservations available should accommodate
operations in the desired hour of operation or in surrounding hours. It
is impractical to allocate a certain number of reservations for last
minute operations when the carriers themselves cannot identify when
these operations will be needed.
Unscheduled operations can be accommodated under the Final Rule if
operators are flexible in their arrival and departure times. Based on
data from FAA's Enhanced Traffic Management System (ETMS) for the year
ended May 31, 2008, most unscheduled flights can be accommodated in
visual meteorological conditions or through capacity in an adjacent
hour (one hour on either side of the actual hour of operation in the
data). The ETMS data shows that fewer than one flight per day on
average would be affected by the Final Rule at each airport, where
there is insufficient capacity in the adjacent two hours to handle
excess demand. Based on this data, with minor accommodations in flight
plans, unscheduled operators should be able to obtain reservations and
operate without incurring additional costs. However, if an operator
cannot obtain a reservation for its preferred time, its planned flight
times may need to be revised because of the limited available
reservations. This is similar to the burden borne by scheduled
operators that conduct flights during available reservation times.
Private Charter and Business Aviation
The National Air Carrier Association (NACA) contends that the
proposed order unfairly targets a segment of the industry, unscheduled
operations, that does not contribute significantly to the capacity
constraints at the airports. Additionally, because of the nature of
their business, these carriers cannot plan operations 72 hours in
advance, and reservations may be unavailable at the last minute when
they are needed to perform contractual obligations.
As discussed above, unscheduled operations can be accommodated
under the Final Rule if operators are flexible in their arrival and
departure times. Additionally, the FAA believes that general aviation
demand and a segment of flights conducted as business and private
charters can be accommodated within regional capacity.
Number of Reservations and Applicable Hours
NACA argues that the use of calendar year 2007 as a baseline is
inappropriate because only LaGuardia was operating under an
administrative order limiting the number of hourly operations. NACA
further argues that with all three major New York airports operating
under limitations, there is no alternative for unscheduled operations.
CAA contends that the FAA failed to disclose detailed information
related to its analysis of unscheduled operations, including what types
of operations comprise the baseline and at what time of day or night
those operations occurred. The CAA contends that meaningful comment to
the proposed order or analysis of possible alternatives cannot be made
without this detailed information.
The FAA understands CAA's and NACA's concerns. However, the
analysis of impact on JFK and EWR in the final regulatory evaluation
for the Final Rule (contained in docket number FAA-2008-0517) assumed
that the reservation restrictions were in place for the year ended May
31, 2008.\3\ (See ``Availability of Rulemaking Documents'' section for
information on how to access the docket.) Therefore, that analysis
should reflect the conditions at the three major New York airports
after the Final Rule becomes effective. Additionally, that analysis
considered all operations during the slot-controlled hours, as
indicated in the proposal. Unscheduled demand included operations that
were not allocated Operating Authorizations under the FAA's order for
scheduled flights. More detailed information regarding the exact times
or type of operation would not change the net effect of the reservation
system because the reservation system does not distinguish between the
various types of unscheduled operations.
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\3\ The FAA recently reduced the number of available hourly
reservations at LaGuardia to reflect historic usage and in
recognition that additional operations at LaGuardia would further
increase delays and congestion in the region. 73 FR 48428 (Aug. 19,
2008).
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The Aircraft Owners and Pilots Association (AOPA) argues that a
reservation system for visual flight rules (VFR) operations is not
justified because air traffic control permits these operations only
when weather and traffic conditions allow. AOPA also argues that the
proposed order ignores recent announcements by airlines to reduce
capacity and the effect of that reduced capacity on the congestion at
JFK and EWR. AOPA contends that the proposed order unfairly burdens
general aviation operators at JFK and EWR
The FAA appreciates AOPA's concerns, but the Final Rule permits
additional operations when capacity exists and significant delays are
not expected. A reservation system for additional VFR operations
maintains an equitable and orderly mechanism for allowing additional
traffic at JFK and
[[Page 64660]]
EWR and provides greater opportunity to plan for airport demand.
Additionally, although airlines may reduce capacity in the short term,
many of the temporary reductions are in less congested hours. Moreover,
it is important to have a comprehensive, long-term system in place to
manage congestion and future growth at these airports. The FAA intends
to use its authority under the Final Rule to provide reservations for
unscheduled operations when reservations set aside for scheduled
operations are not expected to be used, when capacity exists in the
system, and when events or other local circumstances warrant special
consideration. The FAA believes the flexibility to add reservations in
positive operating conditions could allow greater access by general
aviation and other unscheduled operations without the risks of having
to implement restrictions later in the day.
Use of Reservations for Alternate Diversion Flights
NACA argues that the entire reservation allocation process will
encourage individual carriers to hoard unscheduled reservations to
protect their operations and then fail to use those reservations,
especially for those awarded for alternate diversion scenarios. NACA
contends that the proposed order encourages this behavior because there
is no accountability for failure to use the reservation.
The FAA appreciates NACA's concerns regarding operators obtaining
reservations and failing to use them. There are limited reservations,
and operators should not hoard or fail to cancel unneeded ones because
of the impact on other operators. The FAA did not propose a penalty for
failing to use a reservation. However, the FAA will monitor
reservations and actual operations to determine if abuse occurs and
will work with individual operators to eliminate any abusive behavior.
The final rule for JFK and EWR does not contain a requirement to obtain
a reservation when filing flight plans listing those airports as
alternates because such a requirement would result in unnecessary
reservations that would remain unused in most cases. A reservation
requirement applies only to actual operations at the airports, except
in the case of a declared emergency. The FAA understands that there may
be other safety or operational justifications that could dictate the
use of an alternate airport. However, this is not expected to occur on
a regular basis, and the FAA would consider the individual
circumstances as part of any enforcement proceeding.
Delta and Continental suggest that the FAA eliminate all
unscheduled operations during the peak hours to maximize the efficiency
of the airports.
The FAA considered these comments but believes that the Final Rule
strikes the appropriate balance between the operational needs of the
various users of the airports.
Cost-Benefit Analysis of Limitations on Unscheduled Operations
NetJets contends that the economic analysis for limiting
unscheduled operations did not demonstrate any congestion reduction
benefit or properly quantify the costs to aircraft operators. Without
this analysis, NetJets contends there is no evidence that the proposed
limitations are justified, and the public has had no opportunity to
comment on this justification.
The economic analysis addressed the costs and benefits of
implementing the comprehensive congestion management plan and includes
limits on unscheduled operations. Because all operations contribute to
the congestion and delay problems at JFK and EWR, the solution must
incorporate limitations on all operations. Under the Final Rule,
scheduled operations bear the majority of the operational reduction.
Even though unscheduled operations, which are a small fraction of the
total operations at JFK and EWR, are not the root cause of the
congestion and delay, the current situation where demand outstrips
supply means that the addition of even one operation can have a
disproportionate effect on congestion and delay. Accordingly, these
limitations on unscheduled operations are part of the comprehensive
plan to reduce congestion and delay.
Periodic Review of Orders
NACA requests the FAA to review the necessity of limitations on
unscheduled operations on a semi-annual basis in conjunction with the
submission of summer and winter flight schedules to ensure that all
operators may share in any additional capacity.
The FAA agrees that available airport capacity could potentially be
used by unscheduled operators. The Final Rule provides for additional
reservations when weather and capacity conditions allow, which includes
decreased demand by scheduled operators. Additionally the Air Traffic
Organization, primarily through the Air Traffic Control System Command
Center, constantly reviews demand at JFK and EWR, and will respond
accordingly to changes in capacity by adding reservations that do not
result in significant delay.
Issued in Washington, DC on October 23, 2008.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. E8-25850 Filed 10-29-08; 8:45 am]
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