[Federal Register Volume 69, Number 128 (Tuesday, July 6, 2004)]
[Notices]
[Pages 40711-40713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15250]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2001-9852]


High Density Airports; Notice of Extension of the Lottery 
Allocation at LaGuardia Airport

AGENCY: Federal Aviation Administration, DOT.

ACTION:  Notice of extension of the lottery allocation for takeoff and 
landing times at LaGuardia Airport.

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SUMMARY: This notice announced a twelve month extension of the current 
slot exemption allocation at LaGuardia Airport (LaGuardia) through 
October 29, 2005. This action maintains the current operating 
environment at LaGuardia pending the adoption of a long-term solution 
for demand management, which the FAA and the Department of 
Transportation (Department) are undertaking in anticipation of the 
expiration of the High Density Rule at LaGuardia on January 1, 2007.

DATES: Effective upon July 6, 2004.

FOR FURTHER INFORMATION CONTACT: Lorelei Peter, Operations and Air 
Traffic Law Branch, Regulations Division, Office of the Chief Counsel, 
Federal Aviation Administration, 800 Independence Avenue SW., 
Washington, DC 20591; telephone number 202-267-3134.

SUPPLEMENTARY INFORMATION: 

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 the 
navigable airspace of the United States. In particular, 49 U.S.C. Sec.  
40103 authorizes the agency to develop plans and policies regarding the 
use of the navigable airspace and to assign by rule, regulation, or 
order the use of that airspace under such terms, conditions, and 
limitations as may be deemed necessary to ensure the safe and efficient 
use of the navigable airspace. Section 40103 also authorizes and 
directs the FAA to prescribe air traffic rules and regulations 
governing the efficient use of the navigable airspace.
    In 1968, the FAA promulgated the High Density Traffic Airports Rule 
(High Density Rule), 14 CFR part 93, subpart K, to reduce delays at 
five congested airports: John F. Kennedy International Airport (JFK), 
LaGuardia, O'Hare International Airport (O'Hare), Ronald Reagan 
Washington National Airport, and Newark International Airport (Newark) 
(33 FR 17896; December 3, 1968). The regulation limited the number of 
instrument flight rules (IFR) operations at each airport during certain 
hours of each day. It did so by allocating operational authority to air 
carriers in the form of a ``slot,'' for each IFR takeoff or landing 
during a specified 30- or 60-minute period. The FAA lifted the 
restrictions at Newark in the early 1970s.

``AIR-21''

    On April 5, 2000, the Wendell H. Ford Aviation Investment and 
Reform Act for the 21st Century (AIR-21) became law. Section 231 of 
AIR-21 significantly amended 49 U.S.C. 41714 and added a new section 
41715. 49 U.S.C. Sec.  41715 eliminated slots at O'Hare as of July 1, 
2002, and will eliminate slots at LaGuardia and JFK on January 1, 2007. 
AIR-21 also included new provisions 49 U.S.C. 41716, 41717, and 41718 
that enabled air carriers meeting specified criteria to obtain 
exemptions from the slot requirements of 14 CFR part 93, subparts K and 
S. As a result of this legislation, the Department issued eight orders 
implementing the slot exemptions authorized by the statute. DOT Order 
2000-4-11 implemented 49 U.S.C. 41716(a) by providing that, under 
specific conditions, a slot exemption must be granted to any air 
carrier using Stage 3 aircraft with fewer than 71 seats for nonstop 
service between LaGuardia and an airport that was designated as a small 
hub or nonhub airport in 1997. The exemption must be granted if: (1) 
The air carrier was not providing nonstop service between the small hub 
or nonhub airport and LaGuardia during the week of November 1, 1999; 
(2) the proposed service between the small hub or nonhub airports and 
LaGuardia exceeds the number of flights provided between the 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 in 
replacement of turboprop service that was provided during the week of 
November 1, 1999.
    Under AIR-21 and the related DOT Orders, an air carrier meeting one 
of the statutory criteria automatically received approval for a slot 
exemption, provided that the air carrier filed various certifications 
and a written request for authority to begin service. The air carrier 
was required to certify that the aircraft used to provide the proposed 
service would be Stage 3 compliant and would have fewer than 71 seats. 
The air carrier was further required to certify that the airport 
receiving service to or from LaGuardia was designated a small hub or 
nonhub airport in 1997. In addition, the air carrier was required to 
certify that the proposed service, when

[[Page 40712]]

compared to service provided during the week of November 1, 1999, was 
new service, was an additional frequency between the airports, or was 
regional jet service that replaced a turboprop flight. The air carrier 
was required to specify the number of slot exemptions needed, the slot 
times needed to provide the proposed service, the frequency of service 
and the effective date.
    DOT Order 2000-4-10 implemented the provisions of 49 U.S.C. Sec.  
41716(b), which required that a slot exemption be granted to any new 
entrant or limited incumbent air carrier using Stage 3 aircraft that 
proposed to provide air transportation to or from LaGuardia if the 
number of slot exemptions granted under this subsection to an air 
carrier combined with the number of slots held at the airport by that 
carrier does not exceed 20. The order further required applications 
submitted under this provision to identify the airports to be served, 
the slot exemption times requested, the frequency of service and the 
effective date.
    Despite the statute's exemption of certain flights from the FAA's 
regulatory slot limits, 49 U.S.C. 41715(b)(1) expressly provides that 
the slot exemption provisions are not to affect the FAA's authority 
over safety and the movement of air traffic. The reallocation of slot 
exemption times by the lottery procedures described in this Notice was 
based on the FAA's statutory authority and did not rescind the 
exemptions issued by the Department under orders 2000-4-10 and 2000-4-
11. As provided in those orders, air carriers that filed the necessary 
certifications also needed to obtain an allocation of slot exemption 
times from the FAA. The FAA's limitation and reallocation of these slot 
exemptions recognized that it was not possible to add an unlimited 
number of new operations at LaGuardia during peak hours, even if those 
operations qualified for exemptions under AIR-21.
    14 CFR 93.225 sets forth the process for lotteries under the High 
Density Rule. The process described in the regulations is similar to 
the lottery process followed for allocating AIR-21 slot exemptions and 
allows for specific conditions to be included when circumstances 
warrant special consideration.

Extension of Lottery Allocation

    On June 12, 2001, the FAA published a Notice of Alternative Policy 
Options for Managing Capacity at LaGuardia and Proposed Extension of 
the Lottery Allocation in the Federal Register. Through the notice, the 
FAA sought comment on both long-term policy options and a short-term 
extension of the cap on slot exemptions at LaGuardia (66 FR 31731). The 
notice proposed to continue a cap on scheduled flight operations that 
the FAA implemented in January 2001, limiting scheduled operations to 
75 per hour between the hours of 7 a.m. and 9:59 p.m., in addition to 
the six reservations per hour for ``other'' nonscheduled operations, 
which included general aviation, charter, and military operations. The 
FAA achieved this operational cap by limiting the number of AIR-21 slot 
exemptions that could operate at the airport to 159 operations per day 
and allocated the slot exemptions via a lottery on December 4, 2000.
    On August 2, 2001, the FAA extended the lottery allocation through 
October 26, 2002, set the date of August 15, 2001 for a second lottery, 
and established procedures for subsequent allocations of slot 
exemptions in the event that slot exemptions were returned or withdrawn 
by the FAA for non-use (66 FR 41294; August 7, 2001).
    Following the terrorist attacks of September 11, 2001, and an 
ensuing downturn in commercial air travel, the FAA extended the closing 
date for the comment period regarding the Notice of Policy Alternatives 
for Managing Capacity at LaGuardia Airport (66 FR 52170; October 12, 
2001). On March 22, 2002, the FAA announced that the comment period on 
the demand management alternatives for LaGuardia would close on June 
20, 2002 (67 FR 13401). The FAA subsequently extended the limitation on 
AIR-21 slot exemptions through October 30, 2004, and proposed 
modifications to the allocation procedures (67 FR 45170; July 8, 2002). 
The FAA adopted these modifications on October 28, 2002 (67 FR 65826).
    Even with the operational cap in place, LaGuardia is operating at 
its capacity. In April 2004, LaGuardia averaged 1,254 daily operations 
on peak weekdays. Despite the improvement brought about by the 
operational cap, delays at LaGuardia remain among the highest in the 
country and, recently, only two U.S. airports have incurred a higher 
percentage of delayed flights.
    A long-term demand management solution cannot be implemented at 
LaGuardia prior to the expiration of the current AIR-21 slot exemption 
restrictions on October 30, 2004. As a result of the continuing flight 
delays, however, maintaining the cap on total operations at LaGuardia 
is imperative during the intervening period. If the cap on AIR-21 slot 
exemptions was lifted, it is anticipated that air carriers would add 
qualifying operations at the airport in such volume as to trigger a 
repetition of the precipitous increase in exempted flight operations, 
in the fall of 2000, leading to an unacceptable level of delay. 
Significant delays and operational disruptions at LaGuardia have a 
negative effect on the national air traffic control system and result 
in a ripple effect on delays and operations nationwide. The airport 
cannot accommodate, nor can the FAA permit, such unconstrained growth 
in operations at this time.
    The FAA and the Department have reviewed and analyzed all comments 
submitted by the public on the FAA's June 2001 notice of the policy 
options under consideration. Among the options under continuing review 
are long-term solutions that could introduce significant market-based 
elements into the allocation process. The development of such solutions 
requires further consideration of complex statutory, regulatory, and 
policy issues. Because some form of operational cap is necessary 
pending the FAA's implementation of a long-term solution to LaGuardia's 
congestion, the FAA is extending the current allocation and hourly 
limits an additional twelve months, through October 20, 2005.

Allocation Procedures

    The reallocation procedures that the FAA previously adopted in the 
Federal Register notice published on October 28, 2002 (67 FR 65926) 
will be followed for the reallocation of returned or withdrawn slot 
exemptions and are restated as follows with one minor modification. In 
allocating AIR-21 slot exemptions in accordance with the provisions in 
paragraph 3 below, we are formalizing the current practice followed by 
the majority of the affected air carriers. New carriers eligible for 
slot exemptions that are not conducting service at the airport will now 
be required to file the certification with the Department in accordance 
with Order 2000-4-10 and to have a written request on file with the 
Slot Administration Office when seeking available slot exemptions. 
While carriers typically have filed this documentation with the 
Department and the FAA, these filings were not previously required for 
air carrier eligibility to receive an available slot exemption. We are 
now including this provision, and as it reflects current practice and 
represents minimal change, we are adopting this policy without public 
comment. We find that requiring this documentation is a minor 
administrative change and will provide the FAA with necessary 
information when slot exemptions become available for reallocation.

[[Page 40713]]

    1. The cap on AIR-21 slot exemptions (7 a.m. through 9:59 p.m.) 
will remain in effect through October 29, 2005.
    2. The FAA may approve the transfer of slot exemption times between 
carriers only on a temporary one-for-one basis for the purpose of 
conducting the operation in a different time period. Carriers must 
certify to the FAA that no other consideration is involved in the 
transfer.
    3. If any slot exemptions become available for reallocation and 
there is an air carrier seeking slot exemptions that currently is not 
conducting operations at the airport, has certified to the Department 
in accordance with OST Order 2000-4-10 and has a written request on 
file with the Slot Administration Office, then the available slot 
exemptions would be offered to that carrier first, provided that the 
total number of slot exemptions allocated to carriers providing small 
hub/nonhub service is not fewer than 76. If an eligible new entrant air 
carrier does not select the slot exemptions, then the FAA will offer 
the slot exemptions to air carriers in the new entrant category or the 
small hub/nonhub service category, whichever AIR-21 category is below 
parity. Once parity is achieved, or the opportunity to achieve parity 
has been afforded, any remaining available slot exemptions will be 
offered to carriers in the same AIR-21 category from which the slot 
exemptions came. The FAA will follow the rank orders for each category, 
as established in the December 4, 2000, lottery for small hub/nonhub 
service and the August 15, 2001, lottery for new entrants, as amended.
    4. An air carrier will have three business days after an offer from 
the Slot Administration Office to accept the offered slot exemption. 
The air carrier's acceptance must be in writing to the Slot 
Administration Office. If the Slot Administration Office does not 
receive an acceptance to an offer within three business days, the air 
carrier will be recorded as rejecting the offer and the FAA will offer 
the available slot exemptions to the next eligible air carrier.
    5. Any air carrier that selects slot exemptions must file with the 
Department a current certification under Order 2400-4-10 or 2000-4-11, 
as appropriate, and prior to conducting any flight operations under the 
exemption. In addition, the FAA will not allocate a slot exemption time 
to an air carrier until the air carrier first provides the Department 
and the FAA with the markets to be served, the frequency of the 
service, the number of slot exemptions to be use, the time when the 
operations will occur and the effective date.
    6. All operations authorized under AIR-21 must commence within 120 
days of a carrier's acceptance of an available slot exemption.
    7. The Chief Counsel will be the final decisionmaker concerning 
eligibility of carriers to participate in the allocation process.

    Issued on June 29, 2004, in Washington, DC.
James Whitlow,
Deputy Chief Counsel.
[FR Doc. 04-15250 Filed 7-2-04; 8:45 am]
BILLING CODE 4910-13-M