[Federal Register Volume 69, Number 147 (Monday, August 2, 2004)]
[Notices]
[Pages 46201-46204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17525]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration (FAA)

[Docket No. FAA-2004-16944]


Operating Limitations at Chicago O'Hare International Airport

ACTION: Notice of scheduling reduction meeting and request for 
information.

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SUMMARY: The FAA will conduct a meeting to discuss flight reductions at 
Chicago's O'Hare International Airport (O'Hare) to reduce 
overscheduling and flight delays during peak hours of operation at that 
airport. This meeting is open to all scheduled carriers, regardless of 
whether they currently provide scheduled service to O'Hare, and to the 
airport operator of O'Hare. Registration in advance of the meeting is 
requested. In addition, the FAA invites interested persons to submit 
written information on such schedule reductions. The FAA plans to issue 
its decision on delay reductions in a final order.

DATES: Scheduling reduction meeting. The FAA will hold the scheduling 
reduction meeting on August 4, 2004, beginning at 9:30 a.m., and the 
meeting will continue on August 5, 2004, if necessary.
    Written information. Any written information on the subject of 
schedule reductions at O'Hare, including data and views, must be 
submitted by August 11, 2004. To the extent possible, the FAA will 
consider late-filed submissions in making its determination in its 
final order.

ADDRESSES: Scheduling reduction meeting. The meeting will be held in 
the Bessie Coleman Conference Center, Federal Aviation Administration; 
Orville Wright Building, Second Floor; 800 Independence Avenue, SW.; 
Washington, DC.
    Written information. You may submit written information, identified 
by docket number FAA-2004-16944, by any of the following methods:
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting information on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management System, U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-001. If sent by mail, information is to be 
submitted in two copies. Persons wishing to receive confirmation of 
receipt of their written submission should include a self-addressed 
stamped postcard.
     Hand Delivery: Docket Management System, Room PL-401, on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: You must include the agency name and docket number 
FAA-2004-16944 for this notice at the beginning of the information that 
you submit. Note that the information received will be posted without 
change to http://dms.dot.gov, including any personal information 
provided. Submissions to the docket that include trade secrets, 
confidential, commercial, or financial information, or sensitive 
security information will not be posted in the public docket. Such 
information will be placed in a separate file to which the public does 
not have access, and a note will be placed in the public docket to 
state that the agency has received such materials from the submitter.

FOR FURTHER INFORMATION CONTACT: Gerry Shakley, System Operations, Air 
Traffic Organization; telephone--(202) 267-9424; facsimile--(202) 267-
7277; [email protected]. Registration must occur on or 
before Monday, August 2, 2004.

SUPPLEMENTARY INFORMATION: The Federal Aviation Act (the Act) at 49 
U.S.C. 41722, authorizes the Secretary of Transportation to request air 
carriers to attend a meeting with the FAA Administrator to discuss 
flight schedule reductions at any severely congested airport during 
peak operating hours. On January 8, 2004, following several months in 
which delays at O'Hare and emanating from the airport through the 
national airspace system had reached unacceptable levels, the 
Administrator determined that such a meeting regarding severe 
congestion at O'Hare was necessary. On January 16, 2004, the Secretary 
then made a similar determination that a meeting was needed to meet a 
serious transportation need or important public benefit.
    Before the scheduling reduction meeting was to occur, the FAA 
separately obtained the agreement of the two largest operators at 
O'Hare, American Airlines and United Airlines, to reduce their 
scheduled operations, and the FAA thereafter issued an order 
implementing the reductions in their scheduled service during peak 
hours. See FAA Orders issued in this Docket on January 21, 2004, and 
amended on April 21, 2004. In these Orders, we made clear our intention 
to conduct a scheduling reduction meeting if the consensual reductions 
did not achieve their desired effect.
    The Orders limiting scheduled operations during certain hours at 
O'Hare by American Airlines and United Airlines will expire as of 
October 30, 2004. Moreover, even with the reductions by those carriers, 
the statistics for air traffic at O'Hare continue to show 
overscheduling and excessive delays. Daily scheduled operations 
published for August remain approximately 170 flights above the daily 
August 2003 scheduled flights. Several of the busiest traffic days ever 
recorded at O'Hare occurred since late June. On July 1, there were 
2,968 operations, just 8 fewer than the previous record on August 31, 
2001. In May 2004, a NAS monthly record of 14,495 total delays was also 
established. Although the level of delays has fluctuated from month to 
month, and weather has played a major factor, the overall trend of 
delays remains unacceptably high when recent periods are compared to 
the period before November 2003. The cumulative number of delays for 
this calendar year

[[Page 46202]]

as of June 30 is 58,578; that figure is more than the respective full-
year totals for each of 2000, 2001, and 2002.
    Based on these and other factors, the Administrator has again 
determined, pursuant to the Act, that O'Hare is a severely congested 
airport and that a scheduling reduction meeting is necessary in order 
to discuss flight reductions in an effort to reduce overscheduling and 
flight delays at O'Hare during peak operating hours. The Secretary of 
Transportation has also determined, pursuant to the Act, that a 
scheduling reduction meeting regarding flight reductions at O'Hare is 
necessary to meet a serious transportation need or to achieve an 
important public benefit. In light of these determinations, the FAA 
will conduct a scheduling reduction meeting pursuant to the Act.
    The FAA will hold the scheduling reduction meeting on August 4, 
2004, beginning at 9:30 a.m. at the location indicated above. The 
meeting will continue on August 5, 2004, if necessary. As provided in 
the Act, no later than forty-eight hours before convening the meeting, 
the FAA will identify on the FAA's Web site, http://www.faa.gov, the 
peak periods of operation O'Hare and the FAA's targets for flight 
operations during the peak periods of operation.
    The FAA will transcribe the scheduling reduction meeting including 
those sessions in which air carriers offer flight reductions to the 
FAA, as provided for by the procedures outlined below. The transcript 
and other documents related to the meeting will be available for 
inspection in Department of Transportation Docket FAA-2004-16944. In 
addition, any interested person may submit written information to the 
public docket no later than August 11, 2004. The docket is accessible 
through the Department of Transportation's Docket Management system and 
may be accessed via the Internet at http://dms.dot.gov.
    After conducting the scheduling reduction meeting and considering 
all submitted information, the FAA will publish its final order on 
delay reductions at O'Hare in the Federal Register. The order is 
expected to be effective for no more than six months and may restrict 
service during peak hours by all air carriers, including air carriers 
that are not currently operating at O'Hare.
    To ensure that proper accommodations are afforded to the meeting, 
all scheduled carriers that wish to attend the scheduling reduction 
meeting should register for the meeting on or before August 2, 2004. 
Registration may be accomplished by contacting Gerry Shakley, System 
Operations, Air Traffic Organization; telephone--(202) 267-9424; 
facsimile--(202) 267-7277; [email protected], identifying 
the air carrier and its intention to attend the meeting, and 
identifying who will represent the air carrier at the meeting.
    Because the scheduling reduction meeting and all preparations for 
it are subject to the antitrust laws, the FAA has worked closely with 
the Department of Justice, Antitrust Division on procedures for the 
conduct of the meeting that should help ensure legal compliance. Copies 
of the FAA letter to the Antitrust Division and their response are 
incorporated below. As noted in this correspondence, communications 
among carriers regarding competitively sensitive information could 
result in a violation of the antitrust laws and lead to civil or 
criminal liability. Thus, the procedures outlined in the notice provide 
for a series of scheduling reduction sessions to be conducted 
separately by FAA staff with each air carrier attending the meeting. We 
will also meet with representatives of the airport operator. During 
those sessions any scheduled air carrier or the airport operator, if in 
attendance, may provide other supplemental information to the FAA 
regarding the targeted schedule reductions at O'Hare. The FAA requests 
the cooperation of all participants at the meeting in adhering to the 
procedures outlined in the notice.
    The text of the FAA letter describing the planned procedures and 
the text of the Department of Justice letter assessing those procedures 
are as follows:

July 14, 2004, R. Hewitt Pate, Assistant Attorney General, Antitrust 
Division, Room 3109, U.S. Department of Justice, 950 Pennsylvania 
Avenue, NW., Washington, DC 20530-0001.

Dear Mr. Pate:
    We anticipate that the Secretary of Transportation will soon 
determine, pursuant to 49 U.S.C. 41722,\1\ that it is necessary to 
convene a meeting of air carriers with the Administrator of the 
Federal Aviation Administration (FAA) to discuss flight reductions 
at Chicago O'Hare International Airport (O'Hare) in an effort to 
reduce overscheduling and flight delays during peak hours of 
operation. Because of severe congestion at that airport and the 
resulting delays and inconvenience to the traveling public, the 
Administrator intends to convene such a meeting in the immediate 
future. The purpose of this letter is to describe the format and 
procedures for the meeting and to ensure that, provided the meeting 
is conducted in accordance with this memorandum, the Department of 
Justice would not seek to challenge as a violation of the U.S. 
antitrust laws any air carrier's attendance at or participation in 
the meeting or an air carrier's actions taken to comply with an 
Order of the Administrator issued as a result of the meeting.
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    \1\ [The text of a footnote quoting 49 U.S.C. 41722 is omitted 
here.]
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Meeting Procedures

1. Notice to Air Carriers and Other Interested Parties

    To assist the Administrator in formulating flight reduction 
targets, as contemplated by 49 U.S.C. 41722, and to identify the air 
carriers that will attend the meeting, the Administrator will send a 
letter notifying the O'Hare airport operator and each scheduled air 
carrier serving O'Hare of the meeting. The letter will describe the 
necessity for the meeting and will identify the periods during a 
representative business day that the Administrator considers 
severely congested. The letter will establish the date and time for 
the meeting and will designate Washington, DC, as the meeting's 
location. The letter will advise that the meeting and all 
preparations for it are subject to the antitrust laws and that 
communications among air carriers regarding competitively sensitive 
information, such as markets served, prices charged, and marketing 
plans, could result in a violation of the antitrust laws. Copies of 
the letter will be sent to the Antitrust Division, as well as to the 
Air Transport Association, Regional Airline Association, and Air 
Carrier Association of America.
    The FAA Air Traffic Organization will separately provide the 
O'Hare airport operator and each air carrier serving O'Hare with a 
summary showing the FAA's current information as to scheduled 
arrivals and departures at O'Hare (including code-share flights) for 
each air carrier during each 15 minute period from 6 a.m. to 11 p.m. 
on a representative business day. A letter enclosed with this 
summary will request that each air carrier confirm the FAA's current 
information as to that air carrier's scheduled operations at O'Hare, 
respond as to whether the air carrier will attend the schedule 
reduction meeting, and if the air carrier will attend, identify whom 
its representative will be.
    The FAA also will publish in the Federal Register a notice of 
the meeting that identifies the basis for the meeting, when and 
where the meeting will take place, and the manner in which the 
meeting will be conducted. The Federal Register notice will invite 
all scheduled air carriers to attend and will specify that a 
transcript of the meeting will be available for inspection in a 
public docket opened within three business days after the 
Administrator formally adjourns the flight reduction meeting.

2. Establishment and Notice of Flight Reduction Targets

    The Administrator shall establish flight reduction targets, 
based on the number of flight operations scheduled for a 
representative business day. As required by the statute, at least 48 
hours prior to the meeting, the Administrator will publish notice of 
these targets on the FAA's Web site. The notice will specify the 
total number of

[[Page 46203]]

reductions sought from the total number of flight operations 
conducted. The notice will not include carrier-specific limitations, 
targets, or suggested reductions.

3. Conduct of the Meeting

     The meeting will be conducted under the following procedures:
     a. The meeting will be chaired by the Administrator or by a 
delegate of the Administrator.
     b. The meeting will be open to attendance by the O'Hare airport 
operator and all scheduled air carriers, and the FAA will transcribe 
the meeting.
     c. Representatives of the Department of Justice will be invited 
to attend.
     d. At the beginning of the meeting, the FAA will announce that, 
pursuant to advice from the Department of Justice, no communications 
will be permitted by any air carrier representative in the presence 
of any representative of another air carrier regarding the subject 
of flight reductions at O'Hare or regarding any other competitively 
sensitive information, including but not limited to markets served, 
prices charged, and marketing plans.
     e. The Administrator will then distribute to the meeting's 
attendees a list of the number of flights, not specific as to air 
carrier, during each 15-minute period from 6 a.m. until 1 p.m. on a 
representative business day, and she will identify any periods that 
she considers severely congested, as well as general targets for 
flight reductions during those periods.
     f. Each air carrier serving O'Hare and attending the meeting 
will then be invited into a separate and confidential session with 
representatives of the FAA Air Traffic Organization, at which the 
air carrier will be asked to offer flight reductions or schedule 
modifications. Only representatives of that air carrier and the U.S. 
government will be permitted to attend the offer sessions; however, 
the sessions will be transcribed.
     g. Any offer of flight reductions should specify the precise 
number of arrivals and departures, if any, the submitting air 
carrier is willing to remove from each of the severely congested 
periods identified by the Administrator, indicating whether the 
flight operation(s) would be cancelled or moved to another time 
period. The offer may not be explicitly contingent on specific 
flight reductions by other air carriers but may be conditioned on 
the Administrator's implementation of an overall reduction of 
specified numbers of flight operations toward the target during the 
periods in question. The offer may not contain information from the 
air carrier on markets served, prices charged, marketing plans or 
other competitively sensitive matters.
     h. After the completion of all such sessions, the FAA Air 
Traffic Organization: will review the offers made; will revise, in 
light of the offers made, the list of the number flights, not 
specific as to air carrier, during each 15-minute period from 6 a.m. 
until 11 p.m. on a representative business day; and will consult 
with the Administrator. The Administrator will distribute to the 
meeting's attendees the carrier non-specific list of the number of 
flights on a representative business day, and she will identify any 
periods that she continues to consider severely congested and 
identify targets for flight reductions during those periods.
     i. At her discretion, the Administrator or her delegate may 
repeat steps (f) through (h), and she may continue the schedule 
reduction meeting as she deems necessary.
     j. If the Administrator determines that identifying carrier-
specific targets would facilitate voluntary flight reductions and 
schedule modifications, the Administrator may advise each air 
carrier separately and confidentially of flight reduction targets 
specific to that air carrier. No carrier-specific information will 
be provided to any air carrier other than information regarding that 
air carrier; however, the Administrator may make general assurances 
with respect to the overall proportionality of the flight reductions 
among the air carriers serving O'Hare.
     k. Following the Administrator's identification of further 
flight reduction targets, each air carrier attending the meeting 
that serves O'Hare will be invited to a separate and confidential 
session with representatives of the FAA Air Traffic Organization, at 
which the air carrier will be given the opportunity to submit a new 
or revised offer of flight reductions or schedule modifications.
     l. At her discretion, the Administrator or her delegate may 
repeat steps (j) and (k), and she may continue the schedule 
reduction meeting as she deems necessary.
     The Administrator may terminate the schedule reduction meeting 
at her discretion.

4. Order of the Administrator Concerning Delays at O'Hare

     The FAA Air Traffic Organization will review the final offers 
of each air carrier attendee of the meeting and recommend a proposed 
flight reduction plan to the Administrator. After the 
Administrator's review and approval of the plan, the resulting 
schedule reductions, including carrier-specific limitations, will be 
published in the Federal Register as a final order of the 
Administrator. The final order of the Administrator will be in 
effect for no more than twelve months and will specify a method by 
which air carriers adversely affected by the order may be relieved 
of its effect. The order will also be subject to modifications by 
the Administrator.
     Please inform me if these procedures are acceptable to you.
 Sincerely,

Andrew B. Steinberg,
Chief Counsel.

July 15, 2004, Andrew B. Steinberg, Esq., Chief Counsel, U.S. 
Department of Transportation, Federal Aviation Administration, 800 
Independence Ave., SW., Washington, DC 20591.

Re: O'Hare Delay Reduction Meeting

Dear Mr. Steinberg:
     This letter is written in response to your July 14, 2004 letter 
describing the planned format of a meeting of air carriers with the 
Administrator of the Federal Aviation Administration (``FAA'') to 
discuss flight reductions at Chicago's O'Hare International Airport 
(``O'Hare''). The meeting is being called in light of a 
determination by the Secretary of Transportation, pursuant to 49 
U.S.C. 41722, that the meeting is necessary to reduce flight delays 
during peak hours of operation. You anticipate that such a meeting 
would be followed by an Order of the Administrator limiting flight 
operations at O'Hare. You seek assurances that, provided the meeting 
and related activities are conducted as described in your letter, 
the Department of Justice would not seek to challenge as a violation 
of the antitrust laws any air carrier's attendance at or 
participation in the meeting or any carrier's unilateral actions 
taken to comply with an Order of the Administrator issued as a 
result of the meeting.
    According to your letter, all carriers participating in the 
meeting will be advised that the meeting and all preparations for it 
are subject to the antitrust laws and that communications among 
carriers regarding competitively sensitive information, such as 
markets served, prices charged, and marketing plans, could result in 
a violation of the antitrust laws and lead to civil or criminal 
liability. At the beginning of the meeting, the Administrator (or 
her delegee) will announce that, pursuant to advice from the 
Department of Justice, no communication will be permitted by any air 
carrier representative in the presence of any representative of 
another air carrier regarding flight reductions at O'Hare or any 
other competitively sensitive subject, including but not limited to 
markets served, prices charged, and marketing plans.
    At the meeting, the Administrator will distribute a list of the 
number of flights, not specific as to air carrier, currently 
scheduled each 15-minute period from 6 a.m. to 11 p.m., indicate any 
periods that she considers to be severely congested, and provide 
general targets for flight reductions during those periods, which 
will not identify which carriers' flights are targeted to be moved 
or eliminated. Each carrier will then be invited into a separate, 
confidential discussion with the Administrator during which the 
carrier will be asked to offer specific flight reductions or 
schedule changes, which shall not be made explicitly contingent on 
specific reductions offered by another carrier or carriers. During 
such discussions the Administrator may provide general assurances 
with respect to the overall proportionality of the flight reductions 
being sought by the FAA from carriers serving O'Hare.
    After completion of the individual carrier sessions, the 
Administrator will revise the list of flights to reflect the 
individual discussions with the carriers. The carriers will again be 
given this list, which will not identify flights by carrier. If the 
Administrator believes that severely congested time periods still 
exist, she may set revised targets and repeat the individual 
sessions with carriers.
    If the Administrator determines that identifying carrier-
specific targets is necessary to facilitate voluntary flight 
reductions and schedule modifications, she may advise each carrier 
separately and

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confidentially or flight reduction targets specific to that carrier, 
which information will not be given to any other carrier or 
carriers.
    The Administrator will develop and approve a proposed flight 
reduction plan and schedule reduction, which will be published in 
the Federal Register as a final order. A transcript of the meeting 
will not be available until three business days after the 
Administrator formally adjourns the flight reduction meeting.
    Importantly, the procedures do not provide for any meetings 
among the carriers without the FAA present. The procedures will not 
allow any discussion or negotiation among carriers about flight 
reductions, prices charged, or markets served. During the course of 
the meetings, carriers will not be told schedule reductions or 
modifications other carriers are offering or being asked to offer.
    For these reasons, the Department has no current intention to 
initiate antitrust enforcement action against any carrier that 
participates in the FAA's flight reduction meeting and conducts 
itself in the manner described in your letter. This expresses the 
Department's current enforcement intention regarding the carriers' 
participation in the flight reduction meeting. The Department 
reserves the right to bring an enforcement action against any 
conduct that violates the antitrust laws.
 Yours sincerely,
R. Hewitt Pate>

    Issued in Washington, DC, on July 28, 2004.
Marion C. Blakey,
Administrator.
[FR Doc. 04-17525 Filed 7-28-04; 3:47 pm]
BILLING CODE 4910-13-M