[Federal Register Volume 64, Number 190 (Friday, October 1, 1999)]
[Rules and Regulations]
[Pages 53558-53565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25453]
[[Page 53557]]
_______________________________________________________________________
Part IV
Department of Transportation
Federal Aviation Administration
14 CFR Part 93
High Density Airports; Allocation of Slots; Final Rule
Federal Register / Vol. 64, No. 190 / Friday, October 1, 1999 / Rules
and Regulations
[[Page 53558]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 93
[Docket No. FAA-1999-4971, Amendment No. 93-78]
RIN 2120-AG50
High Density Airports; Allocation of Slots
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This action amends the regulations governing takeoff and
landing slots and slot allocation procedures at certain High Density
Traffic Airports. As a result of the ``Open Transborder'' Agreement
between the Government of the United States and Government of Canada,
this rule codifies the provisions of the bilateral agreement and
ensures consistency between FAA regulations governing slots and the
bilateral agreement.
DATES: Effective on October 31, 1999.
FOR FURTHER INFORMATION CONTACT: Lorelei D. Peter, Airspace and Air
Traffic Law Branch, Regulations Division, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone: (202) 267-3073.
SUPPLEMENTARY INFORMATION:
Availability of Final Rule
An electronic copy of this document may be downloaded using a modem
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Internet users may reach the FAA's web page at http://www.faa.gov/
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www.access.gpo.gov/nara for access to recently published rulemaking
documents.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by
calling (202) 267-9677. Communications must identify the amendment
number or docket number of this final rule.
Persons interested in being placed on a mailing list for future FAA
rulemaking documents should request from the above office a copy of
Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution
System, which describes application procedures.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996, requires the FAA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within its jurisdiction. Therefore, any small entity that has a
question regarding this document may contact their local FAA official.
Internet users can find additional information on SBREFA in the ``Quick
Jump'' section of the FAA's web page at http://www.faa.gov and may send
electronic inquiries to the following Internet address: 9-AWA-
[email protected].
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 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 National Airport, and
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, 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.
The FAA allocates slots designated for international use by U.S.
and foreign-flag carriers under procedures different from those that
apply to the allocation of slots designated as domestic. Under 14 CFR
section 93.217, international slots are allocated at Kennedy and O'Hare
twice a year for the summer and winter scheduling seasons.
In promulgating the ``buy/sell'' rule, the Department determined
that, as a matter of international aviation policy, the allocation of
new slots to international carriers at Kennedy and O'Hare Airports
would be made by the FAA based on requests from foreign and U.S.
operators conducting international operations (50 FR 52187; December
20, 1985).
O'Hare is unique in that domestic slots are withdrawn to
accommodate requests for international operations during each summer
and winter season. 14 CFR section 93.217(a)(6) specifically provides
that the FAA must allocate a slot for an international operation at
O'Hare upon request. If there is not an available slot within 60
minutes of the requested time, a slot would be withdrawn from a
domestic carrier to fill that request. At LaGuardia, section
93.217(a)(7) provides that additional slots will be allocated for
international operation if required by bilateral agreement. At Kennedy,
section 93.217(a)(8) provides that domestic slots will be withdrawn for
international operations only if required by international obligations.
At the time of the ``buy/sell'' rule, the Department concluded that
since certain slots used for international operations are specially
treated within Subpart S, it is important that the Department be aware
of which slots are being used for those operations. Therefore, U.S.
carriers were required to submit to the FAA in writing, the slots that
were used for international operations as of December 16, 1985. These
slots were then designated by the FAA as international slots.
International slots may not be bought, sold, leased, or otherwise
transferred, except such slots may be traded to
[[Page 53559]]
another slot holder on a one-for-one basis at the same airport.
Furthermore, if a carrier does not use an international slot for more
than a two-week period, the slot must be returned to the FAA.
International slots may only be used for international service.
However, FAA regulations permit the use of domestic slots for
either international or domestic service. Regardless of the type of
service, i.e., domestic or international, the minimum slot usage
requirement and withdrawal procedures apply to a slot designated as
domestic. FAA regulations governing slots provide for lotteries of
domestic slots in certain circumstances. These regulations also permit
only U.S. carriers to participate in lotteries for domestic slots.
International slots are not allocated by the lottery mechanism.
U.S.-Canada Bilateral Agreement
On February 24, 1995, the Government of the United States and the
Government of Canada entered into a bilateral agreement (Agreement)
phasing in an ``Open Transborder'' regime between the two countries.
Annex II of the Agreement specifically addresses slots and access to
O'Hare, LaGuardia and Ronald Reagan National Airports. The Agreement
provides that: (1) the Canadian carriers will be able to obtain slots
at the High Density Traffic Airports under the same prevailing
allocation system as U.S. carriers; (2) the base level of slots
established for Canada will consist of 42 slots at LaGuardia, and 36
slots for the summer season at O'Hare and 32 slots for the Winter
season at O'Hare; (3) Canadian carriers' slot base at LaGuardia and
O'Hare (which currently is comprised of international slots),
effectively will ``convert'' to domestic slots; (4) all slots acquired
by the Canadian carriers, including the determined slot base, as
described in (2) above, at LaGuardia and O'Hare, will be subject to the
minimum slot usage requirement set forth in section 93.227 and may be
withdrawn for failure to meet that requirement; (5) the provisions of
bilateral agreement do not permit the determined slot base at LaGuardia
and O'Hare to be withdrawn for the purpose of providing a U.S. or
foreign air carrier with slots for international operations or to
provide slots for new entrant operators; (6) any slots acquired after
the transition date that do not form part of the determined slot base
may be withdrawn at any time to fulfill operational needs; (7) neither
the Government of Canada nor any Canadian carrier may modify the
determined slot base at LaGuardia or O'Hare and then have claim to any
other time slot to restore the base; and (8) slots that are acquired
above the determined slot base level and then subsequently disposed of
shall not modify the base.
Discussion of Comments
The comment period closed on February 11, 1999, with 8 comments
filed. Two additional reply comments were subsequently received and
considered. Seven comments were submitted by airlines and one comment
was submitted by an association. American Airlines and Northwest
Airlines generally supported the proposal, with Air Canada and United
Airlines supporting the proposal with certain modifications and
clarifications. Filing in opposition, the Air Carrier Association of
America commented that the rulemaking should be suspended until such
time as the Department makes additional slots available to new entrant
carriers. Canadian Airlines commented that the proposed rules are
insufficient to accomplish the goals of the Agreement and, if adopted,
should be accompanied by proposals to increase access at the high
density airports. Certain comments, discussed more fully below, raised
issues that are beyond the scope of this rulemaking and beyond the
scope of the ``Open Transborder'' Agreement between the Government of
the United States and the Government of Canada. Additionally, changes
to or interpretation of existing statutory language concerning slot
exemption authority given to the Secretary of Transportation under 49
U.S.C. 41714 are also beyond the scope of this rulemaking.
The comments are divided into the following categories: (1)
conversion of certain international slots to domestic slots; (2)
establishment of regulatory base of slots for the Canadian carriers;
(3) international slot allocation; (4) domestic slot allocation; and
(5) slot withdrawal provision.
Conversion of International Slots of Domestic Slots
Notice No. 99-1 proposed reclassifying to domestic slots 35
international slots at Chicago O'Hare and 17 international slots at
LaGuardia Airport held by U.S. carriers. In addition, the Canadian slot
base of 36 slots in the summer season, 32 slots in the winter season at
Chicago O'Hare, and 42 slots as LaGuardia Airport would also be
classified as domestic. As discussed in the proposal, the
reclassification only applies to the international slots that were held
by U.S. carriers on December 16, 1985, provided that an equivalent
number of international slots were held as of February 24, 1998, (the
phase-in of the Agreement). The slots comprising the Canadian carrier
base effectively were granted domestic slot attributes by the terms of
the Agreement. These attributes include the ability of Canadian
carriers to ``monetize'' slot holdings, which permits the transfer of
slots for any consideration. Since FAA regulations do not permit the
sale of international slots, this reclassification of international
slots to domestic slots is in accordance with the terms of the
Agreement.
The proposal was generally supported by Air Canada, American
Airlines, Northwest Airlines, and United Airlines. The Air Carrier
Association of America commented that the proposal would enable large
carriers to increase their slot holdings while new entrant airlines are
``frozen out of the airports.'' Canadian Airlines commented that
reclassifying certain international slots [of U.S. carriers] would
disadvantage Canadian carriers because Canadian carrier slots could be
used only transborder service between the U.S. and Canada. Canadian
Airlines argued that since U.S. carriers could use the slots for
transborder service, for domestic U.S. service, or for other
international service, the net effect would make the slots more
valuable to U.S. carriers, and therefore, more expensive for Canadian
carriers to acquire.
FAA Response. After reviewing the comments, the FAA is adopting the
rule as proposed. FAA recognizes that designating the slots as domestic
is expected to provide additional economic benefits and increased
flexibility for use of the slots. These economic benefits were
contemplated for Canadian carriers as part of the negotiated Agreement,
and the rule, as adopted, provides similar treatment for U.S. carriers
with long-term use of these international slots. Approximately 90% of
the reclassified slots were used in transborder U.S./Canada service and
were operated by the carriers for many years both before and after the
Department's slot allocation rules were issued on December 16, 1985.
Reclassifying these international slots as domestic does not increase
the number of slots that may be operated by the carriers. Furthermore,
maintaining an international designation on these slots used by U.S.
carriers would not result in additional slot availability for new
entrant airlines. If certain international slots held by U.S. carriers
were not reclassified as domestic, the FAA would be required to
allocated international slots for transborder services to U.S. carriers
while treating identical services
[[Page 53560]]
by Canadian carriers as domestic under the terms of the Agreement. FAA
believes the reclassification for slots for U.S. carriers is not only
equitable but, combined with adopted changes in allocation procedures
for transborder operations herein, provides equivalent treatment for
U.S. and Canadian carriers.
Contrary to comments by the Air Carrier Association of America, the
FAA does not find that adoption of the proposal would preclude, or
affect in any way, the Department's use of the exemption authority
codified at 49 U.S.C. 41714 to increase access to the high density
airports.
This final rule also adopts the proposal to reduce the
international base allocation for carriers subject to the provisions of
14 CFR section 93.217(a)(10). Canadian Airlines commented that the
reclassification would provide the largest U.S. carriers with an
opportunity to increase their international allocation since the
reclassification of slots would bring them below their international
slot allocation limit.
The allocation of international slots to carriers with 100 or more
permanent slots at Chicago O'Hare is limited, by regulation, to
international slots held as of February 23, 1990. Carriers with 100 or
more permanent slots at Chicago O'Hare may add additional international
flights as long as they may be accommodated without withdrawal of
domestic slots. This rule as adopted provides for a permanent reduction
to the February 23, 1999, international slot base for affected carriers
that corresponds to the number of slots reclassified as domestic under
the adopted provisions of new section 92.218. American Airlines and
United Airlines are the only carriers subject to this provision and
both currently operate international flights in excess of the number of
international slots allocated to them by using slots from their
domestic slot base. As stated in the proposal, after the permanent
reduction for the number of slots reclassified under section 93.218,
American Airlines' international slot base under section 93.217(a)(10)
is reduced from 35 to 17 international slots and United Airlines'
international slot base is reduced from 17 to 2. Therefore, contrary to
Canadian's comment, American and United's international slot allocation
will continue to be capped, but at a lower number, which compensates
for the conversion of international slots to domestic.
Establishment of Regulatory Base of Slots for Canadian Carriers
The Agreement provides for a base level of slots for Canadian
carriers at Chicago O'Hare and LaGuardia Airport that includes an
increase over the number of slots operated by Canadian carriers at the
time the Agreement was signed. Since summer 1995, the Canadian carriers
have operated 10 additional slots at Chicago O'Hare and 14 slots at
LaGuardia Airport per the Agreement. The Canadian carriers base at
Chicago O'Hare includes the growth of operations by Canadian carriers
since the international slot allocation rules were adopted in December
1985. At O'Hare, this growth has resulted in 14 slots in the summer
season and 10 slots in the winter. These slots are not allocated
permanently to the Canadian carriers but are international slots that
are allocated seasonally in time periods for which domestic slots
generally have been withdrawn from U.S. carriers. Under the terms of
the Agreement, these international slots are included as part of the
base level of slots for Canadian carriers. FAA regulations governing
slot allocation do not provide for the permanent withdrawal of domestic
slots at Chicago O'Hare for the Canadian slot base. Air Canada
commented that the slots constituting the base level should be within
the slot-controlled hours at the high density traffic airports. Both
Air Canada and Canadian Airlines commented that their slot base was
significantly less than the major U.S. carriers at the high density
airports, which makes it more difficult for them to make competitive
schedule changes within their own slot base. Furthermore, Air Canada
cited difficulties with trading of slots. Thus, Air Canada commented
that slots constituting the base should be ``grandfathered at the times
required for competitively viable operations.''
FAA Response: The FAA is adopting, as proposed, an amendment to
increase the quota under 14 CFR section 93.123 by adding a footnote
that specifically allocates to the Canadian carriers 24 slots at
Chicago O'Hare International Airport and 14 slots at LaGuardia Airport.
The FAA will consider historical records of slot holdings to the
extent practical and recognizes that Canadian carriers previously have
been allocated international slots under the provisions of 14 CFR
section 93.217. The allocation of international slots under this
section has provided the Canadian carriers the opportunity to request
and receive slot timing adjustments for several scheduling seasons
since the Agreement was signed in 1995. It is unclear from the
comments, therefore, what Air Canada would identify as its requested
``grandfathered'' slot times.
The FAA will consult with the affected individual affected carriers
to determine the exact timing of the slots comprising the Canadian slot
base. All the slots included in the Canadian slot base will be with the
slot controlled hours. FAA records indicate that the summer base of 36
slots at Chicago O'Hare has already been allocated for summer 1999
within the slot controlled hours of 6:45 a.m. through 9:14 p.m. FAA
records also indicate that the Canadian carriers are allocated the base
level of 42 slots at LaGuardia Airport during the peak slot-controlled
hours of 7:00 a.m. through 9:59 p.m. The FAA will use historic records,
to the extent practical, when determining the times of the slots
comprising the base established under the new section 93.218. The Chief
Counsel of the FAA will be the final decisionmaker for these
determinations. Canadian carriers may subsequently transfer and trade
slots under the current slot regulations that apply to U.S. carriers
and domestic slots.
International Slot Allocation
The Notice proposed amending 14 CFR section 93.217 to exclude
transborder service solely between a high density traffic airport and
Canada. Canadian Airlines commented that non-Canadian foreign carriers
will gain an unfair advantage since they would continue to have access
to international slots for transborder service while U.S. and Canadian
carriers would not be eligible to receive international slots.
FAA Response. The FAA is adopting the rule as proposed. The
Agreement clearly states that Canadian carriers are to be subject to
the same slot allocation system as U.S. airlines for domestic services.
In order to ensure that Canadian and U.S. carriers are allocated slots
for transborder services in the same fashion, this rule treats
transborder flights between high density traffic airports and Canada as
domestic flights for slot allocation purposes. Flights by non-Canadian
foreign carriers were not addressed in the slot provisions of the U.S./
Canada bilateral aviation agreement and are not affected by this
change.
As proposed, the final rule amends the submission deadline for
slots allocated under 14 CFR section 93.217 by establishing a seasonal
deadline through notice in the Federal Register. The current submission
deadline is articulated in the regulations as May 15 for the following
winter scheduling
[[Page 53561]]
season and October 15 for the following summer season. The deadline
typically is within a few days of the submission deadline established
for the International Air Transport Association Schedule Coordination
Conferences. Coordination of the FAA submission deadline with the
standard international deadline will reduce administrative workload for
the airlines requesting slots since they will no longer need to track
two separate submission deadlines. No comments were filed opposing this
provision.
Domestic Slot Allocation
The Notice also proposed to include eligible foreign air carriers
in slot lotteries under 14 CFR section 93.225(e), were provided for by
bilateral agreement. Canadian Airlines commented that the proposed
amendment does not guarantee access to lotteries since the U.S./
Canadian Bilateral Agreement does not specifically address lotteries.
Both Air Canada and Canadian Airlines commented on statutory and other
legislative proposals related to access by air carriers to the high
density traffic airports that may limit eligibility for non-U.S.
carriers. The Air Carrier Association of America indicated the
rulemaking should be suspended since the Department has not increased
permanent slots for new entrant airlines.
FAA Response: The FAA does not agree with these comments. The
Agreement explicitly states that any slot needs of Canadian carriers
above the base levels shall be acquired through the prevailing system
for slot allocation applicable to U.S. domestic operations. As stated
in the Notice, slot lotteries are one of the regulatory methods by
which available domestic slots are allocated to U.S. carriers.
Consequently, it is necessary to amend the regulations so that Canadian
carriers are eligible to participate in any slot lotteries. Thus, in
accordance with the terms of the Agreement, the rule as adopted permits
eligible Canadian carriers to participate in slot lotteries. Canadian
carriers will also be subject to the same provisions governing lottery
slots as U.S. carriers, such as use-or-lose and limitations on
transfers, as are U.S. carriers.
In addition, the FAA reiterates that the primary purpose of this
rulemaking is to amend the FAA slot regulations so that they are not in
conflict with the Agreement. Other issues related to slot allocation
procedures or slot exemption policies are beyond the scope of this
rulemaking.
Slot Withdrawal Provisions
The FAA is adopting the proposal to amend section 93.223 by adding
a new paragraph that would prevent the withdrawal of slots comprising
the established Canadian slot base, as specified in the Agreement and
defined in the new section 93.218, to fulfill requests for
international operations or for new entrants.
United Airlines requested that the FAA amend the proposed rules to
extend the slot withdrawal protection, provided to the Canadian
carriers under the Agreement, to the domestic slot of U.S. carriers now
reclassified under the new section 93.218(a). United Airlines also
proposed that FAA confirm, by rule, that for the purposes of
determining the total number of domestic slots withdrawn for
international slot allocation under section 93.217, the FAA exclude
slots that were withdrawn as of October 31, 1993, specifically used for
transborder services. In addition, United Airlines contends that the
FAA is limited to withdrawing domestic slots for international service
only to the extent that the requesting carrier provided international
service as of October 31, 1993.
FAA Response: The FAA is not adopting United's request to exclude
the reclassified slots from the pool of domestic slots that are
eligible for withdrawal under the regulations. Adopting this requested
modification would provide greater protection to these ``reclassified''
slots held by U.S. carriers that is beyond the limits that apply to all
other designated domestic slots. In addition, this modification would
have given the slots greater protection than they would have had in
1985 had these slots been used for domestic service and not used for
international service and thus designated as international slots. The
Agreement is silent on treatment of U.S. carriers while it is specific
on the limitations on slot withdrawal for the Canadian slot base. The
FAA is reclassifying certain international slots of U.S. carriers as
domestic primarily to treat U.S. and Canadian carriers in a similar
fashion for slot allocation purposes. The FAA does not believe that
identical treatment is required in all cases.
The rule as adopted increases the quota under section 93.123 to
accommodate a growth of 14 operations by Canadian carriers since 1985
at Chicago O'Hare, which were largely accommodated by the withdrawal of
domestic slots. United Airlines commented that the FAA no longer needs
to withdraw domestic slots to fund Canadian carrier operations and
furthermore, that any carrier wishing to increase international
operations at the airport should apply to the Secretary of
Transportation for an exemption to provide the service. United argued
that the FAA should, as a matter of policy, administratively reduce the
legislative cap on the number of slots that it withdraws for
international allocation.
The FAA does not agree with and finds no basis for United Airlines'
interpretation of 49 U.S.C. 41714(b). This provision specifically
prohibits the withdrawal of slots to exceed the total number of slots
withdrawn from an air carrier as of October 31, 1993. The FAA is
limited, by statute, to allocating an international slot only if the
allocation can be accommodated by available slots combined with the
number of slots available through the withdrawal of domestic slots.
Neither the statutory language nor the legislative history indicate any
Congressional intent to further limit the withdrawal process to apply
to carriers conducting service as of October 31, 1993.
Lastly, the FAA and the Department decline to issue any policy
determination on further limiting the number of domestic slots
withdrawn beyond the legislative cap set forth in 49 U.S.C.
Sec. 41714(b) as this issue is outside the scope of this rulemaking.
Any action of this nature would be addressed in a separate forum.
The FAA has inserted language in the regulatory text of
Sec. 93.225, Lottery of available slots, to further clarify that the
lottery procedures apply not only to U.S. carriers but also to foreign
air carriers where provided for by bilateral agreement.
Effective Date
This rule is effective October 31, 1999, which coincides with the
beginning of the Winter 1999 scheduling season. International slots for
the upcoming winter season at O'Hare were allocated and confirmed
during the June 1999 IATA meeting held in Miami, Florida. This rule
does not affect any carrier's allocation of international slots at
O'Hare, nor the slots withdrawn for the Winter 1999 scheduling season.
The Rule
As a result of the U.S.-Canada bilateral agreement, which phased in
an ``Open Transborder'' regime between the two countries, the FAA
amends Subparts K and S to: (1) codify, in a footnote to the hourly
slot totals in subpart K, the 14 slots at LaGuardia and 24 slots at
O'Hare that were allocated to
[[Page 53562]]
the Canadian carriers in June 1995; (2) exclude from the allocation of
international slots at HDR airports transborder service operations
solely between the airport and Canada; (3) set forth the provisions
that apply to slots used for transborder service between the U.S. and
Canada and codify the established base level of slots allocated to
Canadian carriers; (4) reclassify certain international slots as
domestic slots; (5) reduce the international allocation for air
carriers that hold and operate more than 100 permanent slots at O'Hare
by the number of international slots reclassified as domestic slots;
(6) permit Canadian carriers to participate in any lotteries of
domestic slots; and (7) amend the regulatory deadline for submitting
requests for international allocation to coincide with the published
IATA deadline.
Environmental Review
The primary purpose of the regulation is to amend the slot rule to
conform to the U.S.-Canadian Bilateral Agreement. FAA has concluded
that the provisions of the regulation that implement the Agreement do
not involve proposed federal agency action within the meaning of the
National Environmental Policy Act (NEPA), 42 U.S.C. 4321, or other
environmental laws. As explained below, that Agreement specifically
mandates the reclassification of Canadian international slots as
domestic slots and the allocation of base level slots for Canadian
carriers at LaGuardia and O'Hare. These base level allocations reflect
current slot holdings by Canadian carriers except at O'Hare, where
additional allocation was required. The FAA had no discretion in this
regard. In allocating the additional slots required at O'Hare, the FAA
could not maintain the same total number of slots. There is a
legislative cap on the number of domestic slots withdrawn for
international operations and the FAA lacks a regulatory mechanism to
permanently withdraw slots from one carrier to redirect them to another
for purposes of maintaining international obligations.
To assure fairness to the U.S. domestic carriers, the regulation
will also reclassify certain international slots held by U.S. carriers
as domestic slots. To reflect the reclassification, it will also reduce
the international base allocation for carriers subject to 14 CFR
93.217(a)(10). FAA's exercise of discretion to exceed the requirements
of the Agreement in this manner would not increase the overall number
of slots or operations. This portion of the rule accordingly qualifies
for categorical exclusion under the National Environmental Policy Act
as administrative and operating actions pursuant to FAA Order 1050.1D,
Policies and Procedures for Considering Environmental Impacts,
paragraph 31(a)(1). As these provisions are procedural in nature and
lack the potential to impact the environment, similarly no further
analysis is required under other environmental laws or regulations.
Reclassification and Allocation of Slots for Canadian Carriers
In accordance with the Agreement, part one of this regulation
reclassifies slots held by Canadian carriers at LaGuardia and O'Hare
airports. The Canadian carriers' slots will be converted from
international to a modified form of domestic slots. Under the
arrangement mandated by the Agreement and codified in this regulation,
the slots held by the Canadian carriers would resemble domestic slots
in that (1) they can be bought, sold, or traded on the open market, and
(2) they are subject to the bi-monthly use or lose requirement. Unlike
other domestic slots, however, the slots held by Canadian carriers are
not subject to seasonal withdrawal for international use pursuant to 14
C.F.R. section 93.217 or for new entrants.
Part two of this regulation establishes base levels of permanent
slots for the Canadian carriers at LaGuardia and O'Hare. The Agreement
directs that the Canadian carriers receive 42 permanent slots at
LaGuardia. Currently, the Canadian carriers are using 42 slots at
LaGuardia so no additional allocation of slots is necessary. This
Agreement also directs that the Canadian carriers receive 36 Summer
slots and 32 Winter slots at O'Hare. Currently, the Canadian carriers
hold 22 permanent slots at O'Hare. The Canadian carriers also are
currently allocated 14 seasonal slots for the summer and 10 seasonal
slots for the winter under 14 C.F.R. 93.217 in the time periods for
which domestic slots are withdrawn. To complete the base level of slots
at O'Hare, the regulation provides that an additional 14 new slots in
the summer and 10 new slots in the winter be allocated permanently to
the Canadian carriers. Because the Canadian carriers are receiving
these allocations as permanent per the Agreement, the regulation also
provides that they are no longer eligible to receive international
slots under 14 C.F.R. 93.217.
No NEPA or other environmental analysis is required because these
portions of the regulation are ministerial in nature. The FAA has no
choice about how to accomplish the international mandate, which
reclassifies international slots held by Canadian carriers as domestic
slots and provides additional slots at O'Hare. While the FAA retains
complete authority to withdraw slots for operational needs in
accordance with 14 C.F.R. 93.223, the existing allocating mechanisms do
not provide a means for the FAA to allocate the slots to the Canadian
carriers. Title 14 C.F.R. section 93.225 provides that if slots are
available, the slots will be distributed by random lottery with new
entrant and limited incumbent carriers receiving priority. In addition,
fulfilling the Agreement obligation by allocating slots under 14 C.F.R.
section 93.217 is not feasible since these slots are allocated
seasonally. Furthermore, even if allocating slots under 14 C.F.R.
93.217 were feasible, slot withdrawals by the FAA are legislatively
capped at the level of slots withdrawn as of October 31, 1993. 49
U.S.C. 41714(b)(2). As a practical matter, given the legislative cap,
scheduling requirements, and regulations regarding priorities for
reallocating slots, the withdrawal of slots will not provide for the 14
additional slots needed at O'Hare pursuant to the Bilateral Agreement.
Thus, lacking a mechanism for withdrawing the slots from the existing
slot holders and re-directing them to the Canadian carriers, the FAA
has no choice but to comply with the Bilateral Agreement by creating 14
additional slots at O'Hare. NEPA requires agencies to take
environmental concerns into consideration when making decisions where a
range of alternatives is available. However, under these circumstances,
where no choice is involved, an action is ministerial and no NEPA
analysis is required.
The FAA's position that this portion of the regulation is
ministerial finds support in the NEPA-implementing regulations
promulgating by the Department of State, 22 C.F.R. part 161. Among the
actions which the State Department exempts from NEPA analysis are:
Mandatory actions required under any treaty or international
agreement to which the United States Government is a party, or required
by the decisions of international organizations or authorities in which
the United States is a member or participant, except when the United
States has substantial discretion over implementation of such
requirements.
By comparison, the allocation of slots of the Canadian carriers is
an example of an action that would likely be exempt under the State
Department regulations. The FAA is required by the Agreement to allot
permanent slots to the Canadian carriers, and the agency has no
[[Page 53563]]
discretion but to create additional slots. Given the international
agreement, the FAA adopts the position espoused by the State Department
and concludes that the allocation of slots and establishment of a base
level for the Canadian carriers, as required by the Agreement, does not
involve proposed federal action within the meaning of NEPA and other
environmental laws.
Reclassification of Slots Held by U.S. Carriers and Reduction of
International Base Allocation of Carriers Subject to Regulatory Cap
To prevent disparate treatment between U.S. carriers and Canadian
carriers, part one of the regulations also reclassifies certain
identified international slots held by U.S. carriers as domestic slots.
The FAA is also adopting the proposal to reduce the international slot
base allocation for carriers subject to 14 C.F.R. 93.217(a)(10). While
FAA is exercising discretional authority in these areas, none of these
aspects of the regulation have the potential to increase total slots or
operations. Accordingly, they qualify for categorical exclusion under
the National Environmental Policy Act as administrative and operating
actions pursuant to FAA Order 1050.1D, Policies and Procedures for
Considering Environmental Impacts, paragraph 31(a)(1). No extraordinary
circumstances exist that would warrant preparation of an environmental
assessment, such as likelihood of controversy on environmental grounds.
Similarly, as there are no potential environmental impacts, analysis is
not required under other environmental laws and regulations.
Compatibility with ICAO Standards
In keeping with U.S. obligations under the convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. The FAA
determined that there are no ICAO Standards and Recommended Practices
that correspond to these proposed regulations.
Regulatory Evaluation Summary
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 effect of regulatory changes on small entities. Third, OMB
directs agencies to assess the effect of regulatory changes on
international trade. In conducting these analyses, the FAA has
determined that this rule is ``a significant regulatory action'' under
section 3(f) of Executive Order 12866 and is considered significant
under the regulatory policies and procedures of the Department of
Transportation (44 FR 11034, February 26, 1979). This rule will not
have a significant impact on a substantial number of small entities and
will not constitute a barrier to international trade.
Although the total number of slots (international plus domestic)
will not increase for any of the U.S. carriers, the number of domestic
slots for affected carriers will increase. The rule will generate
benefits for those air carriers holding slots historically identified
for international use under 14 CFR 93.215(d) because those
international slots will be converted to domestic slots. Operators
benefit because of the enhanced flexibility they receive to manage
their scheduling at High Density Requirement airports. The slots that
have been converted from international slots to domestic slots can be
scheduled in Canada--U.S. transborder service, they can be scheduled in
other domestic service, or they can be scheduled for international
service. Operators also receive an expanded economic value because the
market has placed a value on domestic slots if the operator decides to
buy, sell, lease, barter, or collateralize slots. Therefore, the FAA
believes that the rule will benefit operators not only because domestic
slots present a greater measure of potential earning power than do
international slots, but also because domestic slots offer operators a
better opportunity to manage their assets in such a way as not to lose
them due to the minimum usage requirements; international slots do not
provide this benefit.
This rule only affects Canadian carriers conducting transborder
service into and out of the HDR airports and U.S. carriers using
certain designated international slots in 1985 and the equivalent
number held as of February 24, 1998. The rule will not impose any
additional equipment, training, administrative, or other cost to the
carriers involved. Therefore, there is no compliance cost associated
with the rule.
Qualitative benefits from the rule will come from converting
certain identified international slots to domestic slots, thereby
affording operators greater flexibility because the converted slots can
be used for transborder service, any other domestic service, or for
international service. Also, domestic slots have greater economic value
than international slots because domestic slots can be bought, sold,
leased, bartered, or used as collateral. Due to the advantages domestic
slots offer over international slots, operators have an enhanced
opportunity to manage their assets in such a way as to maximize their
income. Therefore, the FAA has determined that the rule is cost
beneficial.
Regulatory Flexibility Assessment
The Regulatory Flexibility Act of 1980 establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objective of the rule and of applicable statutes, to fit regulatory
and informational requirements to the scale of the business,
organizations, and governmental jurisdictions subject to regulation.''
To achieve that principal, the Act requires agencies to solicit and
consider flexible regulatory proposals and to explain the rational for
their actions. The Act covers a wide-range of small entities, including
small businesses, not-for-profit organizations and small governmental
jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis (RFA) as
described in the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 act provides that
the head of the agency may so certify and an RFA is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
This rule will impact entities regulated by part 93. The FAA has
determined that the amendments to part 93, Subparts K and S will affect
only two Canadian carriers and four major U.S. carriers and the
amendments will not have a significant impact on these major air
carriers' costs. Therefore, the FAA certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
International Trade Impact Statement
This rulemaking could positively effect the sale of Canadian
aviation services in the United States, but it would also positively
affect the sale of United States aviation services in Canada. However,
this rule is not
[[Page 53564]]
expected to impose a competitive advantage or disadvantage to either
U.S. air carriers doing business Canada or Canadian air carriers doing
business in the United States. This assessment is based on the fact
that this rule will not impose additional costs on either U.S. or
Canadian air carriers.
Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, 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 that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Act is any
provision in a Federal agency regulation that would impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals.
This rule does not contain any Federal intergovernmental or private
sector mandate. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
Paperwork Reduction Act
Information collection requirements in this amendment previously
have been approved by the Office of Management and Budget (OMB) under
the provisions of the Paperwork Reduction Act of 1995 (49 U.S.C.
3507(d)), and have been assigned OMB control number 2120-0639.
This collection covers Canadian carriers or commuter operators
needing to report to the FAA certain aspects of their operations at HDR
airports. Specifically, FAA regulation requires notification of (1)
requests for confirmation of transferred slots; (2) requests to be
included in a lottery for available slots; (3) usage for slots on a bi-
monthly basis; and (4) requests for short-term use of off peak hour
slots. The total reporting burden associated with this rule is 66
hours. The requirement would be mandatory.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information, unless it displays a current
valid OMB control number. The OMB control number associated with the
collection of this information is 2120-0639.
Federalism Implications
The regulations herein will not have substantial direct effects 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 will not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Energy Impact
The energy impact of this final rule has been assessed in
accordance with the Energy Policy and Conservation Act (EPCA) and
Public Law 94-163, as amended (42 U.S.C. 6362). It has been determined
that this proposed rule is not a major regulatory action under the
provisions of the EPCA.
List of Subjects in 14 CFR Part 93
Air traffic control, Airports, Alaska, Navigation (air), Reporting
and recordkeeping.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends part 93 of Title 14, Code of Federal Regulations
as follows:
PART 93--SPECIAL AIR TRAFFIC RULES AND AIRPORT TRAFFIC PATTERNS
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.
2. Section 93.123 is amended in the first chart in paragraph (a) by
adding a new footnote 5 in the headings in column 2 and 4 of the chart
and by revising the heading of the fifth column to read as follows:
Sec. 93.123 High density traffic airports.
(a) * * *
IFR Operations per Hour--Airport
----------------------------------------------------------------------------------------------------------------
Ronald
Class of user LaGuardia Newark O'Hare Reagan
4,5 2,3,5 National 1
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\1\ Washington National Airport operations are subject to modifications per section 93.124.
\2\ The hour period in effect at O'Hare begins at 6:45 a.m. and continues in 30-minute increments until 9:15
p.m.
\3\ Operations at O'Hare International Airport shall not--
(a) Except as provided in paragraph (c) of the note, exceed 62 for air carriers and 13 for commuters and 5 for
``other'' during any 30-minute period beginning at 6:45 a.m. and continuing every 30 minutes thereafter.
(b) Except as provided in paragraph (c) of the note, exceed more than 120 for air carriers, 25 for commuters,
and 10 for ``other'' in any two consecutive 30-minute periods.
(c) For the hours beginning as 6:45 a.m., 7:45 a.m., 11:45 a.m., 7:45 p.m. and 8:45 p.m., the hourly limitations
shall be 105 for air carriers, 40 for commuters and 10 for ``other,'' and the 30-minute limitations shall be
55 for air carriers, 20 for commuters and 5 for ``other.'' For the hour beginning at 3:45 p.m., the hourly
limitations shall be 115 for air carriers, 30 for commuters and 10 for ``others,'' and the 30-minute
limitations shall be 60 for air carriers, 15 for commuters and 5 for ``other.''
\4\ Operations at LaGuardia Airport shall not--
(a) Exceed 26 for air carriers, 7 for commuters and 3 for ``other'' during any 30-minute period.
(b) Exceed 48 for air carriers, 14 for commuters, and 6 for ``other'' in any two consecutive 30-minute period.
\5\ Pursuant to bilateral agreement, 14 slots at LaGuardia and 24 slots at O'Hare are allocated to the Canadian
carriers. These slots are excluded from the hourly quotas set forth in Sec. 93.123 above.
[[Page 53565]]
* * * * *
3. Section 93.217 is amended by revising paragraphs (a)
introductory text, (a)(5), (a)(6), (a)(8) and (a)(10)(i) to read as
follows:
Sec. 93.217 Allocation of slots for international operations and
applicable limitations.
(a) Any air carrier of commuter operator having the authority to
conduct international operations shall be provided slots for those
operations, excluding transborder service solely between HDR airports
and Canada, subject to the following conditions and the other
provisions of this section:
* * * * *
(5) Except as provided in paragraph (a)(10) of this section, at
Kennedy and O'Hare Airports, a slot shall be allocated, upon request,
for seasonal international operations, including charter operations, if
the Chief Counsel of the FAA determines that the slot had been
permanently allocated to and used by the requesting carrier in the same
hour and for the same time period during the corresponding season of
the preceding year. Requests for such slots must be submitted to the
office specified in Sec. 93.221(a)(1), by the deadline published in a
Federal Register notice for each season. For operations during the 1986
summer season, requests under this paragraph must have been submitted
to the FAA on or before February 1, 1986. Each carrier requesting a
slot under this paragraph must submit its entire international schedule
at the relevant airport for the particular season, noting which
requests are in addition to or changes from the previous year.
(6) Except as provided in paragraph (a)(10) of this section,
additional slots shall be allocated at O'Hare Airport for international
scheduled air carrier and commuter operations (beyond those slots
allocated under Secs. 93.215 and 93.217(a)(5) if a request is submitted
to the office specified in Sec. 93.221(a)(1) and filed by the deadline
published in a Federal Register notice for each season. These slots
will be allocated at the time requested unless a slot is available
within one hour of the requested time, in which case the unallocated
slots will be used to satisfy the request.
* * * * *
(8) To the extent vacant slots are available, additional slots
during the high density hours shall be allocated at Kennedy Airport for
new international scheduled air carrier and commuter operations (beyond
those operations for which slots have been allocated under Secs. 93.215
and 93.217(a)(5)), if a request is submitted to the office specified in
Sec. 93.221(a)(1) by the deadline published in a Federal Register
notice for each season. In addition, slots may be withdrawn from
domestic operations for operations at Kennedy Airport under this
paragraph if required by international obligations.
* * * * *
(10) * * *
(i) Allocation of the slot does not result in a total allocation to
that carrier under this section that exceeds the number of slots
allocated to and scheduled by that carrier under this section on
February 23, 1990, and as reduced by the number of slots reclassified
under Sec. 93.218, and does not exceed by more than 2 the number of
slots allocated to and scheduled by that carrier during any half hour
of that day, or
* * * * *
3. A new Sec. 93.218 is added to read as follows:
Sec. 93.218 Slots for transborder service to and from Canada.
(a) Except as otherwise provided in this subpart, international
slots identified by U.S. carriers for international operations in
December 1985 and the equivalent number of international slots held as
of February 24, 1998, will be domestic slots. The Chief Counsel of the
FAA shall be the final decisionmaker for these determinations.
(b) Canadian carriers shall have a guaranteed base level of slots
of 42 slots at LaGuardia, 36 slots at O'Hare for the Sumner season, and
32 slots at O'Hare in the Winter season.
(c) Any modification to the slot base by the Government of Canada
or the Canadian carriers that results in a decrease of the guaranteed
base in paragraph (b) of this section shall permanently modify the base
number of slots.
4. Section 93.223 is amended by adding a new paragraph (c)(4) to
read as follows:
Sec. 93.223 Slot withdrawal.
* * * * *
(c) * * *
(4) No slot comprising the guaranteed base of slots, as defined in
section 93.318(b), shall be withdrawn for use for international
operations or for new entrants.
* * * * *
5. Section 93.225 is amended by revising paragraph (e) to read a
follows:
Sec. 93.225 Lottery of available slots.
* * * * *
(e) Participation in a lottery is open to each U.S. air carrier or
commuter operator operating at the airport and providing scheduled
passenger service at the airport, as well as where provided for by
bilateral agreement. Any U.S. carrier, or foreign air carrier where
provided for by bilateral agreement, that is not operating scheduled
service at the airport and has not failed to operate slots obtained in
the previous lottery, or slots traded for those obtained by lottery,
but wishes to initiate scheduled passenger service at the airport,
shall be included in the lottery if that operator notifies, in writing,
the Slot Administration Office, AGC-230, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591. The notification must be received 15 days prior
to the lottery date and state whether there is any common ownership or
control of, by, or with any other air carrier or commuter operator as
defined in Sec. 93.213(c). New entrant and limited incumbent carriers
will be permitted to complete their selections before participation by
other incumbent carriers is initiated.
* * * * *
Issued in Washington, DC, on September 27, 1999.
Jane F. Garvey,
Administrator.
[FR Doc. 99-25453 Filed 9-30-99; 8:45 am]
BILLING CODE 4910-13-M