[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Notices]
[Pages 59798-59800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20464]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2004-16944]


Operating Limitations at Chicago O'Hare International Airport

ACTION: Notice of order.

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SUMMARY: On July 18, 2005, the Federal Aviation Administration (FAA) 
issued an order to show cause, which solicited written views on 
extending for a second time the FAA's August 18, 2004, order limiting 
scheduled operations at O'Hare International Airport (O'Hare). The 
August 2004 order made effective a series of schedule adjustments that 
the air carriers individually agreed to during a scheduling reduction 
meeting. These agreements, in general, resulted in a voluntary peak-
hour arrival rate at O'Hare of eighty-eight scheduled flights, with the 
exception of the 8 p.m. hour--the final peak hour of the day--when the 
rate would not exceed ninety-eight scheduled arrivals.
    The FAA previously extended the effectiveness of the August 2004 
order through October 29, 2005. This notice announces that the FAA 
Administrator has signed an order that further extends the August 2004 
order through April 1, 2006. The text of the extension order is 
published below as supplementary information to this notice.

FOR FURTHER INFORMATION CONTACT: Gerry Shakley, System Operations, Air 
Traffic Organization: telephone (202) 267-9424; facsimile (202) 267-
7277; e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Second Order Extending the August 2004 Limitation of Scheduled 
Operations at O'Hare International Airport

    On July 18, 2005, the Federal Aviation Administration (FAA) issued 
an order to show cause, soliciting written views on extending through 
April 1, 2006, the August 2004 order limiting scheduled operations at 
O'Hare International Airport (O'Hare).\1\ The August 2004 order made 
effective a series of schedule adjustments that air carriers

[[Page 59799]]

individually agreed to during a scheduling reduction meeting convened 
under 49 U.S.C. Sec.  41722. The FAA previously extended the order 
through October 29, 2005. After careful reflection on the written views 
submitted, the FAA is now extending the August 2004 order through April 
1, 2006.
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    \1\ 70 FR 42135 (July 21, 2005).
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    The FAA is taking this action to ensure that congestion and delay 
at O'Hare remain at manageable levels through the upcoming winter 
scheduling season while the agency considers the need for additional 
measures. The FAA has separately issued a notice of proposed rulemaking 
that would limit scheduled arrivals at O'Hare and establish allocation, 
transfer, and other procedures not included in the August 2004 
order.\2\ The comment period for the proposed rule closed on May 24, 
and the FAA and the Office of the Secretary of Transportation are 
evaluating the comments filed in that proceeding. The FAA intends to 
make a final decision in that proceeding as promptly as possible. The 
FAA expects that this extension of the August 2004 order will permit 
the order's expiration to coincide with the effective date of a final 
rule, if a rule is adopted.
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    \2\ 70 FR 15520 (Mar. 25, 2005).
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    The FAA's authority to extend the August 2004 order is the same 
authority cited in that order. The FAA proposed to extend the August 
2004 order under the agency's broad authority in 49 U.S.C. Sec.  
40103(b) to regulate the use of the navigable airspace of the United 
States. This provision authorizes the FAA to develop plans and policy 
for the use of navigable airspace and, by order or rule, to regulate 
the use of the airspace as necessary to ensure its efficient use. In 
addition, 49 U.S.C. Sec.  41722 authorizes the FAA to conduct 
scheduling reduction meetings. The FAA's authority under section 41722 
would be unenforceable if the FAA lacked the related authority to 
capture voluntary schedule reductions in FAA orders.
    Discussion of the Written Submissions: A total of six respondents 
filed written views on the FAA's proposed extension of the August 2004 
order. The respondents included four air carriers (American Airlines, 
Independence Air, Northwest Airlines, and United Airlines), one air 
carrier organization (the Air Carrier Association of America), and the 
City of Chicago (City). None of the respondents representing air 
carrier interests opposed the extension of the August 2004 order 
through April 1, 2006.
    As the operator of O'Hare, the City registers a concern that the 
restrictions contained in the August 2004 order will be effective 
indefinitely. We reiterate that the agreements reached during the 
August 2004 scheduling reduction meeting are temporary. In the August 
2004 order, the FAA emphasized that capacity increases--not negotiated 
schedule reductions or other restrictions on demand--are the preferred 
means of curtailing delays like those the O'Hare experienced prior to 
the order. In addition, as the July 18 Order to Show Cause reflects, 
the FAA has issued a notice of proposed rulemaking on the subject of 
flight limitations at O'Hare, and the FAA and Office of the Secretary 
of Transportation are evaluating the comments received in that matter. 
Our decision to extend the August 2004 order through April 1, 2006, 
will permit adequate time to consider the comments on the proposed 
rulemaking and, if a rule is adopted, to implement a final rule. Again, 
we continue to anticipate that the August 2004 order will endure for 
the shortest practical duration.
    The City asks the FAA to let the order expire to determine whether 
over scheduling at O'Hare will recur. The City reasons that a capacity 
constraint can be imposed again if it proves necessary. In the August 
2004 order, the FAA recounted in detail the impact of over scheduling 
at O'Hare. The nationwide and debilitating nature of the resulting 
delays caused the FAA to convene the scheduling reduction meeting. The 
recent and expected air traffic procedural improvements and equipment 
upgrades that the City identifies will not increase O'Hare's capacity 
so significantly that intolerable delay will not recur if the August 
2004 order were to expire as now scheduled. the FAA's overall approach 
seeks to avoid the instability that successive expiration and 
reinstitution of voluntary schedule reductions at O'Hare would inflict 
on air carriers and the public. Moreover, while the FAA recognizes the 
City's view that the O'Hare Modernization Program, if approved and 
implemented, could significantly increase the airport capacity, the 
program could not be completed before the August 2004 order is 
currently scheduled to expire.
    The City also asserts that the hourly scheduled arrival rate of 
eighty-eight during most peak hours, as set forth in the August 2004 
order, is too low. The City would prefer an hourly scheduled arrival 
rate of ninety-two. In addition, the City repeats that, in its view, 
the FAA should amend the August 2004 order to exempt all international 
operations from the order's limitations.
    The City previously raised identical concerns over the FAA's first 
extension of the August 2004 order, and the FAA therefore addressed the 
City's views in detail when it extended the order in March 2005.\3\ In 
the context of extending the voluntary scheduling limits, the FAA's 
prior assessment of the City's views has not materially changed. In 
addition, the City has filed similar comments in the public docket for 
the related rulemaking proceeding. The FAA and the Office of the 
Secretary of Transportation are affording the City's comments most 
careful consideration in that proceeding. Because the only matter at 
issue in this order is the contemplated short-term extension of the 
August 2004 order through April 1, 2006, it is unwise to address here 
issues that are now the subject of an open rulemaking before the 
agency. The FAA will address the merit of these comments in the 
rulemaking process.
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    \3\ Mar. 21, 2005, Order at 5-10.
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    Finally, we reject the City's suggestion that the agency lacks the 
authority to limit arrivals at O'Hare by extending the August 2004 
order. As an initial matter, the August 2004 order was the product of 
voluntary schedule limitations negotiated during a scheduling reduction 
meeting that Congress specifically authorized in 49 U.S.C. 41722. An 
FAA-issued order is the only practical means by which we can enforce 
the voluntary agreements that a scheduling reduction meeting produces. 
Accordingly, in authorizing the FAA to conduct such meetings, Congress 
presumably perceived that the FAA would issue and maintain orders, like 
the August 2004 order, as extended, that comport with the air carriers' 
agreements.
    Furthermore, in phasing out the High Density Rule at O'Hare in July 
2002, Congress simultaneously emphasized that it did not disturb the 
FAA's authority over safety and the movement of air traffic. 49 U.S.C. 
41715(b). Our continuing authority in these areas is more than adequate 
to permit the extension of the August 2004 order that we specify here.
    Conclusion: The FAA proposed to extend the August 2004 order 
through April 1, 2006, on the basis of its tentative finding that such 
an extension is necessary to prevent a recurrence of overscheduling at 
O'Hare. After considering the responses, the FAA has determined to make 
this finding final and to extend the order through April 1, 2006.
    Accordingly, with respect to scheduled flight operations at O'Hare, 
it is ordered that:

[[Page 59800]]

    1. Ordering paragraph seven of the FAA's August 18, 2004, order 
limiting scheduled operations at O'Hare International Airport is 
amended to state that the order shall expire at 9 p.m. on April 1, 
2006.

    Issued in Washington, DC, on October 5, 2005.
Rebecca MacPherson,
Assistant Chief Counsel for Regulation.
[FR Doc. 05-20464 Filed 10-12-05; 8:45 am]
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