[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Notices]
[Pages 69126-69129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29356]


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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2000-8278]


High Density Airports; Notice of Lottery of Slot Exemptions at 
LaGuardia Airport

AGENCY: Federal Aviation Administration.

ACTION: Notice of intent to conduct a lottery of takeoff and landing 
times at LaGuardia Airport.

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

SUMMARY: This notice announces the Federal Aviation Administration's 
(FAA) intention to hold a lottery, with the Port Authority of New York 
and New Jersey, in late November or early December to reallocate 
exemption slots at LaGuardia Airport as authorized under the Wendell H. 
Ford Aviation Investment and Reform Act of the 21st Century. The FAA 
finds that this action is necessary to address the level of delays that 
are currently experienced as a result of the significant increase in 
operations authorized by that legislation, and to prevent an increase 
in delays from additional flights scheduled to begin in the near 
future.

DATES: Comments must be received on or before November 20, 2000.

ADDRESSES: Comments on this notice should be mailed or delivered in 
duplicate, to: U.S. Department of Transportation Dockets, Docket No. 
FAA-2000-8278, 400 Seventh Street, SW., Room Plaza 401, Washington, DC 
20590. Comments may also be sent electronically to the following 
Internet address: DMS.dot.gov. Comments may be filed and/or examined in 
Room Plaza 401 between 10 a.m. and 5 p.m. weekdays except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: David L. Bennett, Office of Airport 
Safety and Standards, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591; telephone number 202-267-3053.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to comment on this process by 
submitting such written data, views, or arguments as they may desire. 
Comments that provide the factual basis supporting the views and 
suggestions presented are particularly helpful in developing reasoned 
decisions. Communications should identify the docket number and be 
submitted in triplicate to the above specified address. All 
communications and a report summarizing any substantive public contact 
with FAA personnel on this notice will be filed in the docket. The 
docket is available for public inspection both before and after the 
closing date for receiving comments.
    Before taking any final action on this proposal, the Administrator 
will consider all comments made on or before the closing date for 
comments and the proposal may be changed in light of the comments 
received.
    The FAA will acknowledge receipt of a comment if the commenter 
includes a self-addressed, stamped postcard with the comment. The post 
card should be marked ``Comments to Docket No. FAA-2000-8278.'' When 
the comment is received by the FAA, the postcard will be dated, time 
stamped, and returned to the commenter.

Authority

    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 the 
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

[[Page 69127]]

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 takeoff during a specific 30- or 60-minute period. The 
restrictions were lifted at Newark in the early 1970s.

``AIR-21''

    On April 5, 2000, the ``Wendell H. Ford Aviation Investment and 
Reform Act of the 21st Century'' (``AIR-21'') was enacted. Section 231 
of AIR-21 significantly amended 49 U.S.C. 41714 and included new 
provisions codified at 49 U.S.C. 41716, 41717, and 41718. These 
provisions enable air carriers meeting specified criteria to obtain new 
slot exemptions at New York's LaGuardia Airport (LaGuardia) and John F. 
Kennedy International Airport (JFK), Chicago's O'Hare International 
Airport (O'Hare) and Washington DC's Ronald Reagan Washington National 
Airport (National). As a result of this legislation, the Department of 
Transportation (Department) issued eight orders establishing procedures 
for the processing of various applications.
    Specifically, Order 2000-4-11 implements 49 U.S.C. 41716(a), which 
provides in pertinent part that an exemption must be granted to any 
airline using Stage 3 aircraft with less than 71 seats that proposes to 
provide nonstop service between LaGuardia and an airport that was 
designated as a small hub or nonhub in 1997, under certain conditions. 
The exemption must be granted if: (1) The airline was not providing 
such nonstop service between the small hub or nonhub and LaGuardia 
Airport during the week of November 1, 1999; or (2) the proposed 
service between the small hub or nonhub and LaGuardia, exceeds the 
number of flights provided between such airports during the week of 
November 1, 1999; or (3) if the air transportation pursuant to the 
exemption would be provided with a regional jet as replacement of 
turboprop service that was being provided during the week of November 
1, 1999.
    According to AIR-21 and the Department's Orders, air carriers 
meeting the statutory tests delineated above automatically receive 
blanket approval for slot exemptions, provided that they certify in 
accordance with 14 CFR 302.4(b) that they meet each and every one of 
the statutory criteria. The certification should state the communities 
and airport to be served, that the community was designated a small hub 
or nonhub as of 1997, that the aircraft used to provide the service 
have fewer than 71 seats, that the aircraft are Stage 3 compliant, and 
the planned effective dates. Carriers must also certify that the 
proposed service represents new service, additional frequencies, or 
regional jet service that has been upgraded from turboprop service when 
compared to service of the week of November 1, 1999. In addition, 
carriers must state the number of slot exemptions and the times needed 
to provide the service.
    Order 2000-4-10 implements the provisions of 49 U.S.C. 41716(b), 
which states in pertinent part, that exemptions must be granted to any 
new entrant or limited incumbent airline using Stage 3 aircraft that 
proposes ``* * * to provide air transportation to or from LaGuardia or 
John F. Kennedy International Airport if the number of slot exemptions 
granted under this subsection to such air carrier with respect to such 
airport when added to the slots and slot exemptions held by such air 
carrier with respect to such airport does not exceed 20.'' Applications 
submitted under this provision must identify the airports to be served 
and the time requested.
    Section 231 of AIR-21, 49 U.S.C. 41715(b)(1) expressly provides 
that the provisions for slot exemptions are not to affect the FAA's 
authority for safety and the movement of air traffic. The actions 
proposed in this notice are taken under that FAA authority, and do not 
rescind the exemptions issued by the Department of Transportation under 
Orders 2000-4-10 and 2000-4-11. As provided in those orders, carriers 
that have filed the exemption certifications also need to obtain slot 
exemption times from the FAA. This notice proposes to limit and 
allocate those times, in recognition that it is not possible to add an 
unlimited number of new operations at LaGuardia Airport even if those 
operations would otherwise qualify for exemptions under AIR-21.
    Lastly, Sec. 93.225 of Title 14 of the Code of Federal Regulations 
sets forth the process for slot lotteries under the High Density Rule. 
The process described in the regulations is similar to the process 
described herein and allows for special conditions to be included when 
circumstances warrant special consideration.

Actions of the Port Authority of New York and New Jersey

    In response to a significant increase in exemption operations under 
AIR-21 beginning in late summer (from 53 operations in August 2000 to 
192 operations at the end of September), the Port Authority of New York 
and New Jersey (Port Authority) issued a letter on August 2 to all 
carriers filing for AIR-21 exemptions requiring 45 days advance notice 
of new operations at the airport under AIR-21. On August 21, the Port 
Authority issued a second letter to carriers planning to initiate 
service under AIR-21 exemptions requesting that the carriers schedule 
their flights outside of the most congested hours in order to mitigate 
the delays generated by additional flights. On September 19, the Port 
Authority announced a temporary moratorium on new flights. In that 
letter, the Port Authority stated its intent to replace this moratorium 
as soon as possible with a measure that will prevent an unlimited 
increase in operations at LaGuardia, and at the same time fairly 
accommodate Federal interests in competition and in service to small 
hub or nonhub airports as provided in AIR-21. To that end, the Port 
Authority has proposed to the FAA the imposition of a limit on the 
number of AIR-21 exemption flights at LaGuardia, and the allocation of 
those flights to eligible carriers through a lottery procedure to 
address, in the short-term, the current situation at the airport.
    The following factors describe the current operating conditions 
experienced at LaGuardia:
     There were more than 9,000 flight delays at LaGuardia in 
September 2000, up from 3,108 in September 1999. In September 2000, 25% 
of the flight delays in the U.S. were at LaGuardia. In September 1999, 
the figure was 12%.
     Average delays for many afternoon flights at LaGuardia in 
September 2000 exceeded 48 minutes. The average delay for all flights 
that month was 43 minutes.
     LaGuardia has recently experienced as many as 600 delayed 
flights on a day when there is good weather and no other significant 
problems in the air traffic control system.
     Some flights at LaGuardia have experienced average ground 
delay time that exceeds scheduled flight time.
     Air carriers routinely cancel scheduled flights, 
especially in afternoon and evening hours, due to aircraft positioning 
and other operational issues related to excessive delays.
    Since AIR-21 was enacted on April 5, 2000:

[[Page 69128]]

     Carriers have filed exemption requests for more than 600 
new flights a day at LaGuardia.
     As of November 1, almost 300 new flights are operating 
under AIR-21 exemptions.
     Carriers have published schedules for 28 new flights in 
December and 23 more new flights in January 2001.
     In April 2000, the number of scheduled operations at 
LaGuardia was 1064. As of November 1, that number is 1344.
     If the flights published for December and January began 
operation, there would be approximately 1395 scheduled operations each 
day at the airport, an increase of 30% in less than a year at an 
airport that was already one of the top two delay airports in the U.S.
    There is no question that the exemption provisions of AIR-21 have 
significant benefits for competition, by providing new entrant carriers 
access to slot-controlled airports, and permitting new service to small 
hub and non-hub airports. The FAA fully supports these goals, and 
intends to accommodate those goals to the maximum extent practical in 
measures to manage congestion and delay at LaGuardia Airport.
    At the same time, the FAA understands that the capacity of the 
airport to accommodate additional flights is not unlimited. At some 
point, the increase in operations at the airport will result in 
hundreds of operating delays each day, with increasing average delay 
times for each flight. Market forces alone have not limited the 
scheduling of additional operations or the scheduling of these 
operations in peak hours at the airport. This increasing level of 
congestion and delay makes carrier schedules impossible to meet, 
frustrates passenger travel plans, and places an unnecessary strain on 
carrier ground operations and on air traffic control services. The 
goals of the AIR-21 exemptions are not served by an unlimited increase 
in operations, because the flights operating under those exemptions 
experience the same disruption and delay as existing flights. 
Ultimately, unlimited growth is not just a service issue; increasing 
ground congestion increases the possibility of aircraft collisions 
during taxi and ramp operations, and could increase the possibility of 
a runway incursion at the airport.
    The agency does believe that some action is appropriate and 
necessary to prevent the scheduling of more flights at LaGuardia than 
can possibly be operated on any published schedule, and to address the 
substantial delays experienced even in ideal conditions. After 
consideration of a number of options for short-term management of 
congestion, the Port Authority presented a preferred option to the FAA 
on November 2, which included: (1) The establishment of a certain 
number of total daily operations at the airport (the Port Authority 
proposed a limit of 75 total scheduled operations per hour); (2) the 
total would include a fixed number of AIR-21 exemption operations, 
determined by the difference between 75 and existing HDR and exemption 
slots that preceded the AIR-21 exemptions; and (3) allocation by 
lottery of slot exemptions to conduct that number of AIR-21 operations. 
(A copy of the Port Authority's letter is placed in the docket.) On 
November 8, 2000, the Port Authority and the FAA convened a meeting and 
invited all affected carriers to discuss the situation at LaGuardia and 
presented the lottery concept. This notice supplements and clarifies 
the information made available by the FAA at that meeting. (A copy of 
the agency's November 7 letter to the Port Authority is located on the 
FAA's website FAA.gov. and has been placed in the docket.)
    In consideration of the urgency of the delay situation at 
LaGuardia, described above, and the fact that even more flights are 
planned and will commence operations if some action is not taken, the 
number of AIR-21 slot exemption flights should be limited to recognize 
practical constraints of the airport environment and provisions of air 
traffic services. Since other categories of flights at LaGuardia are 
already limited, a limit on AIR-21 exemption flights serves to achieve 
a general limit on airport operations that will prevent increasingly 
disruptive congestion and longer delays in the future. The limit would 
not be permanent and would remain in effect until September 15, 2000, 
when a permanent demand management policy for the airport would be 
developed with the participation of all interested parties.
    The FAA's Air Traffic Service has independently reviewed the Port 
Authority's proposal for scheduled operations. The limit of 75 
scheduled operations per hour would limit daily and hourly demand on 
airport facilities and the air traffic control system to a number of 
flights that can be accommodated, at least in good weather conditions 
and, at the same time, provides access for AIR-21 exemption flights. 
The number does not include extra sections of scheduled air carrier 
flights or the 6 slots per hour reserved for ``Other'' nonscheduled 
operations including general aviation, charters and military flights.

Reallocation of Slot Exemptions at LaGuardia Airport by Lottery

    The FAA intends to proceed with the development of new department 
policy on measures available to airport operators for management of 
congestion, with participation by all interested parties. The goal is 
to have that policy in final form in time to permit the Port Authority 
to adopt measures to replace the allocation of exemption slots under 
the lottery described in this notice. . However, in the short-term, the 
FAA believes that the number of AIR-21 exemption operations at 
LaGuardia should be limited and that an allocation of those flights by 
lottery to eligible carriers is preferable. The FAA believes that a 
reallocation of AIR-21 exemption flights at LaGuardia in accordance 
with the following conditions would meet the goals and requirements of 
AIR-21, and also would be consistent with the FAA's responsibility for 
the efficient use of the navigable airspace, under 49 U.S.C. 40103(b).
    On January 1, 2001, the number of scheduled operations at LaGuardia 
would be limited to approximately 75 per hour. As a result, the number 
of AIR-21 slot exemptions at LaGuardia would be limited to 
approximately 150 a day between the hours of 7:00 a.m. and 9:59 p.m. 
Also on January 1, 2001, the FAA would reissue AIR-21 slot exemptions 
to eligible carriers in accordance with the results of a lottery. The 
FAA seeks comments as to whether the January 1, 2001, date is feasible 
or whether alternative dates are suggested.
    In late November or early December, the FAA proposes, in 
conjunction with the Port Authority, to conduct a lottery at the Port 
Authority's facilities in New York. Details regarding this lottery 
would be provided under separate notice in the near future, following 
consideration of the comments received in response to this notice. The 
preliminary number of AIR-21 slot exemptions that would be issued in 
each hour, consistent with an hourly total of 75 scheduled operations 
is as follows (allocations will be made by 30 minute time periods):

------------------------------------------------------------------------
                                                              Number of
                       Hourly period                          exemptions
------------------------------------------------------------------------
0700.......................................................           18
0800.......................................................           11
0900.......................................................            9
1000.......................................................            8
1100.......................................................            8
1200.......................................................           13
1300.......................................................           15
1400.......................................................            8
1500.......................................................           13
1600.......................................................            7
1700.......................................................            2

[[Page 69129]]

 
1800.......................................................            7
1900.......................................................            8
2000.......................................................            6
2100.......................................................           26
------------------------------------------------------------------------

    The FAA proposes that carriers eligible for participation in the 
lottery would be those carriers that have applications on file with the 
Department, have fulfilled the certification requirements articulated 
in OST Orders 2000-4-10 and 2000-4-11 as of the date of this notice, 
and will have commenced operations by January 1, 2001. Definitions for 
the terms ``carrier,'' ``new entrant,'' and ``limited incumbent'' for 
purposes of participation in the lottery, are proposed as set forth in 
14 CFR 93.123, and amended by section 231 of AIR-21. The Port Authority 
proposed to consider all carriers operating under a single designator 
code to be considered a single carrier for the purposes of the lottery. 
We note that the language in AIR-21 addressing affiliated carriers 
applies only in determining new entrant status and does not include the 
provision addressing service for small hub or nonhub airports. Upon 
reconsideration, the FAA is proposing for comment that independently 
owned carriers that had obtained AIR-21 certification in their own name 
could participate in the lottery separately, regardless of code-share 
arrangements. The list of eligible carriers below is based on this 
reconsideration. However, comments are specifically requested on this 
distinction.
    The FAA further proposes that no carrier may select more exemption 
times than it operated between 0700-2159 on January 1, 2001. The slot 
exemptions reallocated by lottery would remain in effect until 
September 15, 2001. The FAA seeks comment as to whether another date in 
September is more feasible for carriers to make general schedule 
changes. Carriers that are reallocated exemption slots by lottery 
should re-certify to the Department of Transportation in accordance 
with the procedures articulated in OST Orders 2000-4-10 and 2000-4-11, 
and provide the Department and the FAA with the markets to be served, 
the number of exemption slots and the time of operation. While this 
temporary re-allocation process will be conducted jointly with the Port 
Authority, the FAA wants to make clear that this measure is taken in 
response to a serious and currently unique situation at LaGuardia 
Airport under the FAA's authority for the efficient management of the 
navigable airspace and provided for in AIR-21.

Reallocation of Slot Exemption at LaGuardia by Lottery

    In late November or early December 2000, the FAA intends to hold a 
lottery with the Port Authority to allocate approximately 150 slot 
exemptions authorized under AIR-21. The FAA proposes the following 
lottery procedure for allocation of the AIR-21 slot exemptions at 
LaGuardia:
    1. All AIR-21 slot exemptions will be allocated in this lottery, 
and all carriers currently operating under AIR-21 exemption authority 
will be required to conform their schedules to the slots received in 
the lottery, effective on the effective date of the allocation (in 
January 2001).
    2. To be eligible to participate in this lottery, a carrier must 
have applied to the Department of Transportation under Orders OST 2000-
4-10 or 2000-4-11, received allocations by the FAA as of the date of 
this notice, and commenced operation by January 1, 2001. Carriers that 
meet this criteria under Order 2000-4-10 and would be eligible for a 
lottery of times between 0700-2159 are: Air Tran (11 operations), 
American Trans Air (8 operations), Legend, (7 operations), Midway (9 
operations), Midwest Express (8 operations), Spirit Airlines (14 
operations), Shuttle America (14 operations), Southeast Airlines (4) 
and Vanguard (4 operations). Carriers that meet the criteria of Order 
2000-4-11 for service for small hub and nonhub airports and would be 
eligible for a lottery are: American Eagle (26 operations), Atlantic 
Coast Jet (44 operations), Chautauqua Airlines (12 operations), Colgan 
Air (20 operations), Commutair (10 operations), Continental Express (22 
operations), Delta Connection (37 operations) and US Airways Express 
(50 operations).
    3. The slot exemption lottery will be conducted in accordance with 
the following procedures:
    a. Carriers will participate in a random drawing for selection 
order. Carriers will select in that order in each round.
    b. No carrier may select more exemption times than it operated 
between 0700-2159 on January 1, 2001.
    c. In the first round, only new entrants and limited incumbent 
carriers may participate. Each new entrant and limited incumbent 
carrier may select up to 4 slot exemption times, 2 arrivals and 2 
departures. No more than one slot exemption time may be selected in any 
hour. In this round each carrier may select one slot exemption time in 
each of 4 hours without regard to whether a slot is available in that 
hour.
    d. In the second and third rounds, only carriers providing service 
to small hub and nonhub airports may participate. Each carrier may 
select up to 2 slot exemption times, one arrival and one departure in 
each round.
    e. Beginning with the fourth round, all eligible carriers may 
participate. Each carrier may select up to 2 of the remaining slot 
exemption times, one arrival and one departure, in each round, until a 
total of 150 slot exemption times have been selected.
    f. If the last remaining slot exemption times available do not 
permit a reasonable arrival-departure turnaround, the FAA will take 
requests for trades among AIR-21 operators, or will make an adjustment 
to one of the times to assure that all slot exemption time pairs 
selected provide for a viable operation by the selecting carrier.
    g. The Chief Counsel will be the final decisionmaker concerning 
eligibility of carriers to participate in the lottery.

    Issued on November 9, 2000 in Washington, DC.
James W. Whitlow,
Deputy Chief Counsel.
[FR Doc. 00-29356 Filed 11-13-00; 8:45 am]
BILLING CODE 4910-13-P