[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Proposed Rules]
[Pages 35963-35965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16807]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. 29624]


High Density Rule

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed interpretation; request for comments.

-----------------------------------------------------------------------

SUMMARY: This action requests comments on a proposed interpretation of 
the term ``operator'' as used to interpret the extra section provision 
of the FAA's High Density Rule. This proposed interpretation would 
permit one airline code-share partner to operate an extra section of a 
regularly scheduled flight of another code-share partner. It is 
intended to recognize the development of code-share arrangements in the 
aviation industry.

DATES: Comments must be submitted on or before July 12, 1999.

ADDRESSES: Comments regarding this action should be mailed, in 
triplicate, to Federal Aviation Administration, Office of the Chief 
Counsel, Attention: Rules Docket (AGC-10), Docket No. 29624, 800 
Independence Avenue, SW., Washington, DC 20591. Comments must be marked 
Docket No. 29624. Comments may be examined in Room 915G weekdays 
between 8:30 a.m. and 5 p.m., except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lorelei Peter, Air Traffic and 
Airspace Law Branch, Office of the Chief Counsel, AGC-230, Federal 
Aviation Administration 800 Independence Avenue, SW., Washington, DC 
20591, (202) 267-3073.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to comment on this action by 
submitting such written data, views, or arguments, as they may desire. 
Comments should identify the regulatory docket and should be submitted 
in triplicate to the Rules Docket address specified above. All comments 
received will be available, both before and after the closing date for 
comments, in the Rules Docket for examination by interested persons. 
Commenters wishing the FAA to acknowledge receipt of their comments 
submitted in response to this action must include a preaddressed, 
stampted postcard marked ``Comments to Docket 29624.'' The postcard 
will be date stamped and mailed to the commenter.

Background

    The FAA has broad authority under Title 49 of the United States 
Code (U.S.C.), Subtitle VII, to regulate and control the use of 
navigable airspace of the United States. Under 49 U.S.C. 40103, the 
agency is authorized to develop plans for and to formulate policy with 
respect to the use of navigable airspace and to assign by rule, 
regulation, or order the use of navigable airspace under such terms, 
conditions, and limitations as may be deemed

[[Page 35964]]

necessary in order to ensure the safety of aircraft and the efficient 
utilization of the navigable airspace. Also, under section 40103, the 
agency is further authorized and directed to prescribe air traffic 
rules and regulations governing the efficient utilization of the 
navigable airspace.
    The High Density Traffic Airports Rule, or ``High Density Rule,'' 
14 CFR part 93, subpart K, was promulgated in 1968 to reduce delays at 
five congested airports: JFK International Airport, LaGuardia Airport, 
O'Hare International Airport, Ronald Reagan Washington National 
(National) Airport, Newark International Airport (33 FR 17896; December 
3, 1968). The regulation limits the number of instrument flight rule 
(IFR) operations at each airport, by hour or half-hour, during certain 
hours of the day. It provides for the allocation to carriers of 
operational authority, in the form of a ``slot'' for each IFR landing 
or takeoff during a specific 30- or 60-minute period. The restrictions 
were lifted at Newark in the early 1970's.
    On December 16, 1985, the Department of Transportation (Department) 
promulgated the ``buy/sell'' rule (14 CFR part 93, subpart S), a 
comprehensive set of regulations that provide for the allocation and 
transfer of air carrier and commuter slots (50 FR 52180; December 20, 
1985). The two primary features of this rule were, first, that initial 
allocation would be accomplished by ``grandfathering'' existing slots 
to the carriers that currently held them, and second, that a relatively 
unrestricted aftermarket in slots would be permitted. As a result, 
effective April 1, 1986, slots used for domestic operations could be 
bought and sold by any party.

Current Requirements

    14 CFR 93.123(b)(4) permits air carriers at LaGuardia, Newark, 
O'Hare and National Airports to conduct ``extra section'' operations of 
scheduled flights. Additionally, commuters are permitted to conduct 
extra section operations of scheduled flights at National Airport. An 
extra section is when an operator conducting a scheduled operation with 
a slot finds it necessary to use an additional aircraft to service 
passengers that cannot be accommodated on the original scheduled 
flight. Under these circumstances, the operator may conduct that 
additional flight or ``extra section'' without another slot.
    The purpose of the extra section provision was to accommodate 
operations that an operator cannot precisely predict. Extra section 
operations are not scheduled operations and it would be impractical to 
obtain permanent slots for such operations. Regular scheduled 
operations do not have the same uncertainty and, these require slots. 
The extra section authority is available to any air carrier, or 
commuter operator at Washington National, with a slot for regularly 
scheduled operations. The extra section must: (1) Be non-scheduled; (2) 
serve passengers that cannot be accommodated on the original scheduled 
flight for which the operator has obtained an arrival or departure 
slot; and (3) depart no more than a few minutes before, on, or after 
the time at which the original flight was scheduled (46 FR 58306; 
November 27, 1981).
    Historically, the FAA has interpreted the extra section provision 
as limited to aircraft operated by the operator who had the slot and 
conducted the scheduled operation. At the time this provision was 
promulgated, code-share agreements were not widely used. The FAA finds 
that the increasing use of code-share agreements in the aviation 
industry warrants a reexamination of this interpretation.

Proposed Interpretation

    For purposes of the extra section provision codified in 14 CFR 
92.123(b)(4), the FAA proposes to interpret the term ``operator'' to 
include the partners to a code-share agreement/alliance. As a result of 
this proposed interpretation, one code-share partner may conduct an 
extra section operation to an original scheduled flight of another 
code-share partner without the need for an additional slot. This 
interpretation does not change the requirement for the operator 
conducting the original scheduled operation to have a slot allocated 
under 14 CFR 93.123. This interpretation also does not affect any 
aspect of the Department's policy and regulations addressing code-
share.
    The FAA does not anticipate that this proposed interpretation would 
result in any operational impact at the airports since the regulations 
permit use of extra sections. Lastly, the FAA emphasizes that this 
proposed interpretation does not affect or in anyway modify the 
provisions of 14 CFR 93.123(c), which establishes the type of aircraft 
that may operate in air carrier and commuter slots at the high density 
traffic airports. The regulations governing slots do not permit the use 
of air carrier category aircraft in commuter slots. Specifically, at 
National Airport, only commuter equipment may be used to conduct extra 
sections of commuter operations when using a commuter slot.
    The FAA requests comments on the above-proposed interpretation. The 
FAA finds that because there is an immediate need for this flexibility 
in extra section operations, the public interest supports a short 
comment period.

Regulatory Evaluation Summary

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall proposed or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act requires agencies to analyze the 
economic effect of regulatory changes on small business and other small 
entities. Third, the Office of Management and Budget directs agencies 
to assess the effect of regulatory changes on international trade. This 
proposed interpretation has been reviewed as an interpretive rule in 
accordance with Executive Order 12866 and the Regulatory Flexibility 
Act of 1980. It is not a ``significant regulatory action'' as defined 
in the Executive Order or the Department of Transportation Regulatory 
Policies and Procedures.
    The proposed interpretation would permit code share partners to 
operate extra sections at certain high density airports. Extra section 
operations are already permitted by the rule. This proposed 
interpretive rule would not impose any new or additional costs on code 
share partners.
    Moreover, since the expected impact is minimal, this proposal does 
not warrant a full evaluation. This proposed interpretative rule is not 
considered significant under the regulatory procedures of the 
Department of Transportation (44 FR 11034; February 26, 1979).

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, was 
enacted by U.S. Congress to ensure that small entities are not 
unnecessarily or disproportionately burdened by Government regulations. 
The RFA requires a regulatory flexibility analysis if a proposed rule 
has a significant economic impact on a substantial number of small 
business entities.
    The FAA is aware of only two air carriers regularly using extra 
sections in their daily operations (``shuttle operators''). These 
operators are not small entities. Moreover, while the resulting 
flexibility in the use of one partner's aircraft to support the 
operation of the other partner will result in some benefits to the 
affected air carriers and commuters, they are minimal when compare to 
the

[[Page 35965]]

overall revenues derived from their operations. Accordingly, pursuant 
to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal 
Aviation Adminsitration certifies that this rule would not have a 
significant economic impact on a substantial number of small entities. 
The FAA solicits comments from affected entities with respect to this 
finding and determination and requests that commenters provide 
supporting data or analyses.

International Trade Impact Analysis

    The provisions of this proposed interpretive rule would have little 
or no impact of trade for U.S. firms doing business in foreign 
countries and foreign firms doing business in the United States.

Federalism Implications

    The proposed interpretive rule 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. Therefore, in 
accordance with Executive Order 12612, it is determined that this rule 
would not have sufficient federalism implications to warrant the 
preparation of a federalism assessment.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
codified in 2 U.S.C. 1501-1571, requires each Federal agency, to the 
extent permitted by law, to prepare a written assessment of the effects 
of any Federal mandate in a proposed or final agency rule when such a 
mandate would be ``significant.'' A significant regulatory action under 
the Act is any provision in a Federal agency regulation that would 
result in an expenditure by State, local, and tribal governments, or by 
the private sector, in the aggregate of $100 million or more (adjusted 
annually for inflation) in any one year.
    Since this proposed interpretive rule does not impose any cost, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the FAA has determined that there are no requirements for 
information collection associated with this proposed rule.

    Issued in Washington, DC, on June 28, 1999.
Nicholas G. Garaufis,
Chief Counsel.
[FR Doc. 99-16807 Filed 7-1-99; 8:45 am]
BILLING CODE 4910-13-M