[Federal Register: October 31, 2008 (Volume 73, Number 212)]
[Rules and Regulations]
[Page 64883-64884]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc08-9]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 93
[Docket No. FAA-2006-25709]
RIN 2120-A170
Congestion Management Rule for LaGuardia Airport
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice; clarification of final rule.
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SUMMARY: On October 10, 2008, the FAA issued a final rule to address
congestion at New York's LaGuardia Airport (LaGuardia). That final rule
is scheduled to take effect December 9, 2008. As part of the final
rule, the FAA explained how it would initially allocate slots to
incumbent carriers on the rule's effective date. The preamble to the
final rule noted that it would not allocate slots to a carrier that was
no longer operating at the airport. However, it did not address how
those slots would be allocated under the rule. Today's notice provides
that explanation.
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 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 clarification notice contact: Nan Shellabarger, Office of Aviation
Policy and Plans, APO-1, Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3275; e-mail
[[Page 64884]]
nan.shellabarger@faa.gov. For legal questions concerning this
rulemaking, contact: Rebecca MacPherson, FAA Office of the Chief
Counsel, 800 Independence Ave., SW., Washington, DC 20591; telephone
(202) 267-3073; e-mail rebecca.macpherson@faa.gov.
SUPPLEMENTARY INFORMATION: On October 10, 2008, the FAA issued a final
rule to address congestion at LaGuardia. 73 FR 60574. That final rule
is scheduled to take effect December 9, 2008. As part of the final
rule, the FAA explained how it would initially allocate slots to
incumbent carriers no later than the rule's effective date. Under the
rule, initial allocation is based on Operating Authorizations allocated
under the Order Limiting Operations at LaGuardia Airport (LaGuardia
Order) to carriers for the week of September 28, 2008. The preamble to
the final rule noted that it would not allocate slots to a carrier that
was no longer operating at the airport. However, it did not address how
those slots would be allocated under the rule. Specifically, the
preamble to the final rule stated:
One carrier that held Operating Authorizations in January 2007 is
no longer in business, although it continues to hold an air carrier
certificate. While those Operating Authorizations are currently being
operated by another carrier solely within its marketing control, the
FAA believes it is simply cleaner to allocate the slots to the holder
of the Operating Authorization only if the carrier is still operating
at the airport. (73 FR 60585)
Section 93.39(b) of the final rule's regulatory text states:
If a carrier was allocated operating rights under the Order
Limiting Operations at LaGuardia Airport during the week of September
28-October 4, 2008, but the operating rights were held by another
carrier regularly conducting operations at the airport as of that week,
then the corresponding slots will be assigned to the carrier that held
the operating rights for that period, as evidenced by the FAA's
records.
Under the LaGuardia Order, ATA Airlines was allocated 14 slots at
the airport. These slots have been operated under lease agreements by
AirTran and Delta Air Lines. However, the allocation has remained with
ATA Airlines. That carrier ceased operations at LaGuardia on January 7,
2008, and ceased operations entirely on April 3, 2008. Thus, section
93.39(b) does not apply. Likewise, these slots would not be considered
new or returned capacity that can be reallocated only via auction under
93.40 and then designated as unrestricted slots. Since no provision of
the final rule specifically directs how these types of slots will be
allocated, the FAA believes it is appropriate to provide clarification.
On October 17, 2008, in the bankruptcy proceeding of In re: ATA
Airlines, Inc., U.S. Bankruptcy Court for the Southern District of
Indiana, Indianapolis Division, case no. 08-03675-BHL-1 1, the court
issued an Order Granting Expedited Motion under Bankruptcy Code
Sections 105 and 363 to Establish Solicitation and Bid Procedures for
the Sale of the Debtor 's Business (Bankruptcy Order). The Bankruptcy
Order establishes rules and procedures that will govern the
solicitation and submission of proposals for the acquisition of ATA
Airlines. At present, initial bids are due to the ATA Airlines by
November 3, 2008. ATA Airlines will determine which Bid Proposal (as
defined in the Bankruptcy Order) is the highest and best offer for the
sale of the business. Each Bid Proposal shall be subject to bankruptcy
court approval.
In proceeding before the court, the FAA has reiterated that the
Operating Authorizations allocated under the LaGuardia Order cannot be
sold. However, the Bankruptcy Order addresses the sale of the business
as a whole. Accordingly, for the purpose of the LaGuardia Order and the
Final Rule, the FAA would consider the acquiring entity to stand in the
shoes of ATA Airlines. If the acquiring entity is an air carrier,\1\
the FAA will allocate the 14 LaGuardia slots to that entity. The
acquiring carrier need not currently have a presence at the airport.
The provision in the preamble that the air carrier must operate at
LaGuardia was directed to the holder of the Operating Authorization
under the LaGuardia Order. The FAA simply did not contemplate a
circumstance whereby ATA Airlines could be acquired by another carrier
under bankruptcy proceedings.
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\1\ Only air carriers can hold either Operating Authorizations
under the LaGuardia Order or slots under the final rule.
Accordingly, the FAA assumes that only an existing air carrier would
be likely to bid on ATA Airlines if its primary interest is
acquiring the LaGuardia slots. Any entity that does not currently
possess an air carrier certificate should contact the FAA's
Indianapolis Flight Standards District Office (FSDO) to discuss
concerns regarding ATA Airlines' operating certificate. Operating
certificates cannot be sold, and the FAA requires certain criteria
be met before it will issue a certificate. Questions to the
Indianapolis FSDO should be directed to Ron Myers at (317) 837-4419
or Bruce Montigney at (317) 837-4410.
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The FAA understands that several aspects of the final rule need to
be addressed given the possibility of these slots being allocated
outside of the context of the LaGuardia Order.
As is the case with all slots allocated in a manner other
than under the provisions of section 93.40, these slots will be
designated as common slots and, except as discussed below, will be
subject to the rule's usage requirements and may be withdrawn for
operational need.
Should the acquisition transaction not be completed until
after the rule's effective date, the FAA will hold the slots in
abeyance until the transaction is complete, at which point it will
allocate the slots.
The slots will be included in the total number of common
slots initially allocated to the carrier under the rule. Should the
total number of common slots exceed 20, the carrier may lose a
percentage of the slots in accordance with the final rule. However,
depending on when the slots are allocated, reversion of the additional
slots may not occur before March, 2010.
Since the bankruptcy court order includes unexpired
leases, the FAA anticipates the acquiring carrier will comply with the
requirements of all leases related to the slots, including any time
frames provided for termination of the lease agreement.
The FAA will waive the usage requirements for a period of
no more than six months following allocation so that the acquiring
carrier has the opportunity to establish new routes or services.
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/regulationspolicies/; 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 docket number of this rulemaking.
Issued in Washington, DC on October 27, 2008.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations, Federal Aviation
Administration.
[FR Doc. E8-26039 Filed 10-30-08; 8:45 am]
BILLING CODE 4910-13-M