[Federal Register: May 14, 2009 (Volume 74, Number 92)]
[Proposed Rules]
[Page 22714-22717]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my09-17]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 93
[Docket No. FAA-2008-0517; Notice No. 09-03]
RIN 2120-AJ48
Congestion Management Rule for John F. Kennedy International
Airport and Newark Liberty International Airport
AGENCY: Federal Aviation Administration (FAA).
ACTION: Notice of proposed rescission.
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SUMMARY: The FAA proposes to rescind the final rule Congestion
Management Rule for John F. Kennedy International Airport and Newark
Liberty International Airport. The final rule established procedures to
address congestion in the New York City area by assigning slots at John
F. Kennedy (JFK) and Newark Liberty (Newark) International Airports,
assigning to existing operators the majority of slots at the airports,
and creating a market by annually auctioning off a limited number of
slots in each of the first five years of the rule. The final rule also
contained provisions for minimum usage, capping unscheduled operations,
and withdrawal for operational need. The rule was scheduled to sunset
in ten years.
DATES: Send your comments on or before June 15, 2009.
ADDRESSES: You may send comments identified by Docket Number FAA-2008-
0517 using any of the following methods:
Federal eRulemaking Portal: Go to http://
www.regulations.gov and follow the online instructions for sending your
comments electronically.
Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
Hand Delivery or Courier: Bring comments 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.
Fax: Fax comments to Docket Operations at 202-493-2251.
For more information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information you
provide. Using the search function of our docket Web site, anyone can
find and read the electronic form of all comments received into any of
our dockets, including the name of the individual sending the comment
(or signing the comment for an association, business, labor union,
etc.). You may review the Department of Transportation's complete
Privacy Act Statement in the Federal Register published on April 11,
2000 (65 FR 19477-78) or you may visit http://DocketsInfo.dot.gov.
Docket: To read background documents or comments received, go to
http://www.regulations.gov at any time and follow the online
instructions for accessing the docket. Or, 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 questions concerning this
rulemaking, contact: Molly W. Smith, Office of Aviation Policy and
Plans, APO-200, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591; telephone (202) 267-3275; e-mail
molly.w.smith@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: Later in this preamble, under the Additional
Information section, we discuss how you can comment on this proposal
and how we will handle your comments. Included in this discussion is
related information about the docket and the handling of proprietary or
confidential business information. We also discuss how you can get a
copy of this proposal and related rulemaking documents.
Authority for This Rulemaking
The FAA has broad authority under 49 U.S.C. 40103 to regulate the
use of the navigable airspace of the United States. This section
authorizes the FAA to develop plans and policy for the use of navigable
airspace and to assign the use that the FAA deems necessary for its
safe and efficient utilization. It further
[[Page 22715]]
directs the FAA to prescribe air traffic rules and regulations
governing the efficient utilization of the navigable airspace.
I. Background
The final rule Congestion Management Rule for John F. Kennedy
International Airport and Newark Liberty International Airport was
published in the Federal Register on October 10, 2008 (73 FR 60544).
The final rule established procedures to address congestion in the New
York City area by assigning slots at John F. Kennedy (JFK) and Newark
Liberty (Newark) International Airports, assigning to existing
operators the majority of slots at the airports, and creating a market
by annually auctioning off a limited number of slots in each of the
first five years of the rule. The final rule also contained provisions
for minimum usage, capping unscheduled operations, and withdrawal for
operational need. The rule was scheduled to sunset in ten years and was
to become effective December 9, 2008.
The rulemaking was highly controversial. Thirty-eight interested
parties filed comments to the docket addressing the NPRM. The majority
of comments were consistent in rejecting the proposal. Many commenters
said that the FAA had failed to demonstrate how the proposal would
achieve any significant relief from congestion. Rather, according to
the commenters, a final rule would impose an untested and unproven
auction process on airlines that would not address the fundamental
airspace congestion issues in the New York metro area.
The final rule was challenged by several parties before it could
take effect. Petitioners included the Port Authority of New York and
New Jersey, the Air Transport Association of America, Inc. (ATA), the
International Air Transport Association (IATA), Continental, and U.S.
Airways. The petitioners sought a stay of the final rule pending
judicial review, arguing that they would likely succeed on the merits
of the underlying litigation, they would suffer irreparable harm, a
stay would not harm other parties, and a stay was in the public
interest. On December 8, 2008, the United States Court of Appeals for
the District of Columbia Circuit determined that the petitioners had
satisfied the standards for a stay and issued an order staying the
rule. Accordingly, the rule has never been implemented. On January 22,
2009, the ATA requested that the Secretary of Transportation, Ray
LaHood, withdraw the final rule in light of the court's stay.
At present, operations at both airports remain capped by order at
81 scheduled operations per hour until October 2009. Order Limiting
Scheduled Operations at John F. Kennedy International Airport (73 FR
3519 (Jan. 18, 2008), as amended 73 FR 8737 (Feb. 14, 2008)); Order
Limiting Scheduled Operations at Newark Liberty International Airport
(73 FR 29550 (May 21, 2008)). The FAA is in the process of considering
its options with regard to managing congestion at the airport in ways
that provide a means for carriers to either commence or expand
operations at the airport, thereby introducing more competition and
service options to benefit the traveling public.
On March 11, 2009, the President signed Public Law 111-8, Omnibus
Appropriations Act, 2009. That legislation provides several departments
within the executive branch, including the Department of
Transportation, with the funds to operate until the end of this fiscal
year. That legislation also contains a provision in Division I, section
115 that states in pertinent part:
No funds provided in this Act may be used by the Secretary of
Transportation to promulgate regulations or take any action
regarding the scheduling of airline operations at any commercial
airport in the United States if such regulation or action involves:
(1) the auctioning by the Secretary or the FAA Administrator of
rights or permission to conduct airline operations at such an
airport, * * *
(3) either:
(A) withdrawal by the Secretary or Administrator of a right or
permission to conduct operations at such an airport (except when the
withdrawal is for operational reasons or pursuant to the terms or
conditions of such operating right or permission), * * *
At the same time, the nation's economy has continued to suffer
under the current recession, which is both deeper and longer than was
first assumed. In recognition of the extent of the economic emergency,
President Obama recently signed the American Recovery and Reinvestment
Act of 2009 \1\ (ARRA), which provides an extraordinary amount of
emergency funds to address the unprecedented global recession and to
promote economic recovery.
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\1\ Public Law 111-5, 123 Stat. 115 (Feb. 17, 2009).
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The Omnibus Appropriations Act prevents the FAA from implementing
the slot auction rule or conducting slot auctions. However, we
recognize that the restriction in section 115 of the Act applies only
until the end of this fiscal year, or September 30, 2009. The
restriction in section 115 means the rule adopted last year can no
longer operate in the way that the agency had planned. The halt in
funding for this fiscal year makes it impossible for the rule to have
the 10-year life originally contemplated, even without considering the
challenging and widespread change in current economic conditions that
led to the adoption of ARRA.
Because of the complexity of the issues, the uncertainty caused by
the Omnibus Appropriations Act, and the possible impact of the
significantly changed economic circumstances on the slot auction
program, the FAA believes it would be better to rescind the rule rather
than propose to extend it. Rescission would also eliminate the
potential for wasting resources of all parties in the pending
litigation. We specifically request comments and data from affected
interests on whether and how the changed circumstances bear on this
proposed rescission.
The current orders for JFK and Newark airports presently address
congestion and delay associated with scheduled operations. However, the
orders do not address all issues associated with market access at
capped airports. Accordingly, the FAA believes it may need further work
to address these concerns and limit operations at the two airports.
The FAA seeks comment on this proposal. DOT's Regulatory Policies
and Procedures contemplate at least a 60-day comment period for a
significant rulemaking, unless otherwise justified. The final rule was
subject to notice and comment less than 12 months ago, and those
comments were fully considered by the agency in issuing that rule.
Since comments should be limited to any change in circumstances,
including the statutory restriction discussed above, the FAA believes
that a 30-day comment period is sufficient in this instance.
II. Regulatory Notices and Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866 directs that each Federal agency
shall propose or adopt a regulation only upon a reasoned determination
that the benefits of the intended regulation justify its costs. Second,
the Regulatory Flexibility Act of 1980 requires agencies to analyze the
economic impact of regulatory changes on small entities. Third, the
Trade Agreements Act (19 U.S.C. 4 2531-2533) prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. In developing U.S. standards, this Trade
Act requires agencies to consider international standards and, where
appropriate, to be the basis of U.S. standards. Fourth, the
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Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4) requires agencies
to prepare a written assessment of the costs, benefits, and other
effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation). The FAA currently
uses an inflation-adjusted value of $136.1 million in lieu of $100
million.
The FAA conducted all of these analyses when it originally issued
the final rule. This proposed rescission is not economically
significant under Executive Order 12866.
The paperwork burden anticipated under the rule would not be
imposed on any parties. The FAA determined that the original final rule
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act. Rescission of the
rule would likewise impose no such burden. The FAA has assessed the
potential effect of this proposal and determined that it would impose
no costs on international entities and thus would have no trade impact.
Nor would the rescission impose a Federal mandate that may result in an
expenditure of $100 million or more (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector, and the requirements of Title II
of the Unfunded Mandate Reform Act of 1995 do not apply.
The proposed rescission of the final rule is not an economically
``significant regulatory action'' under Executive Order 12866; however,
it is ``significant'' as defined in DOT's Regulatory Policies and
Procedures. Accordingly, it has been reviewed by OST and OMB.
Executive Order 13132, Federalism
The FAA has analyzed this proposed rescission under the principles
and criteria of Executive Order 13132, Federalism. We have determined
that this action would not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government, and, therefore, would not have federalism
implications.
Environmental Analysis
FAA Order 1050.1E, ``Environmental Impacts: Policies and
Procedures'' identifies FAA actions that are normally categorically
excluded from preparation of an environmental assessment or
environmental impact statement under the National Environmental Policy
Act (NEPA) in the absence of extraordinary circumstances. The FAA
previously determined that the final rule qualified for the categorical
exclusions identified in paragraph 312d ``Issuance of regulatory
documents (e.g., Notices of Proposed Rulemaking and issuance of Final
Rules) covering administration or procedural requirements (does not
include Air Traffic procedures; specific Air traffic procedures that
are categorically excluded are identified under paragraph 311 of this
Order)'' and paragraph 312f, ``Regulations, standards, and exemptions
(excluding those which if implemented may cause a significant impact on
the human environment.'' It has further been determined that no
extraordinary circumstances exist that may cause a significant impact
and therefore no further environmental review is required. The FAA
documented this categorical exclusion determination. A copy of the
determination and underlying documents has been included in the Docket
for the rule. The FAA has determined that the rescission of the final
rule would also qualify for a categorical exclusion since it would have
no impact on the environment.
Regulations that Significantly Affect Energy Supply, Distribution, or
Use
The FAA has analyzed this notice under Executive Order 13211,
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). The agency has determined that it
is not a ``significant energy action'' under executive order 12866
because it is not likely to have a significant adverse effect on the
supply, distribution, or use of energy.
Additional Information
Comments Invited
The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The agency
also invites comments relating to the economic, environmental, energy
or federalism impacts that might result from adopting the proposals in
this document. The most helpful comments reference a specific portion
of the proposal, explain the reason for any recommended change, and
include supporting data. To ensure the docket does not contain
duplicate comments, please send only one copy of written comments, or
if you are filing comments electronically, please submit your comments
only one time.
The FAA will file in the docket all comments we receive, as well as
a report summarizing each substantive public contact with FAA personnel
concerning this proposed rulemaking. Before acting on this proposal,
the agency will consider all comments received on or before the closing
date for comments. The FAA will consider comments filed after the
comment period has closed if it is possible to do so without incurring
expense or delay.
Proprietary or Confidential Business Information
Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD-ROM, mark the outside of the disk or
CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
Under 14 CFR 11.35(b), when the FAA is aware of proprietary
information filed with a comment, it does not place it in the docket.
The agency holds it in a separate file to which the public does not
have access, and places a note in the docket that it has received it.
If the FAA receives a request to examine or copy this information, it
is treated as any other request under the Freedom of Information Act (5
U.S.C. 552) and such requests are processed under the DOT procedures
found in 49 CFR part 7.
Availability of Rulemaking Documents
You can get an electronic copy of rulemaking documents 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 can also get 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, notice number, or amendment number
of this rulemaking.
You may access all documents the FAA considered in developing this
proposed rule, including economic analyses and technical reports, from
the
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internet through the Federal eRulemaking Portal referenced in paragraph
(1).
List of Subjects in 14 CFR Part 93
Air traffic control, Airports, Navigation (air), Recordkeeping and
reporting requirements.
The Proposed Amendment
In consideration of the foregoing, the Federal Aviation
Administration proposes to amend Chapter I of Title 14, Code of Federal
Regulations, as follows:
PART 93--SPECIAL AIR TRAFFIC RULES
1. The authority citation for part 93 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44719, 46301.
Subpart N--[Removed and Reserved]
2. Remove and reserve Subpart N.
Issued in Washington, DC, on May 7, 2009.
Nan Shellabarger,
Director of Aviation Policy and Plans.
[FR Doc. E9-11293 Filed 5-13-09; 8:45 am]
BILLING CODE 4910-13-P