[Federal Register Volume 71, Number 62 (Friday, March 31, 2006)]
[Notices]
[Pages 16405-16407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3113]


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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 March 13, 2006, the Federal Aviation Administration (FAA) 
issued an order to show cause, soliciting written views on extending 
through October 28, 2006, the August 2004 order limiting scheduled 
operations at O'Hare International Airport (O'Hare). The August 2004 
order made effective a series of schedule adjustments that air carriers 
individually agreed to during a scheduling reduction meeting convened 
under 49 U.S.C. 41722. The FAA previously extended the order twice, 
most recently through April 1, 2006. After careful reflection on the 
written

[[Page 16406]]

views submitted in this matter, the FAA is now extending the August 
2004 order through October 28, 2006, but reserves the right to 
terminate the August 2004 order before that date if a final rule on 
congestion and delay reduction at O'Hare earlier takes effect.

FOR FURTHER INFORMATION CONTACT: Gerry Shakley, System Operations 
Services, Air Traffic Organization; Telephone: (202) 267-9424; E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Order to Show Cause

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

    On March 13, 2006, the Federal Aviation Administration (FAA) issued 
an order to show cause, soliciting written views on extending through 
October 28, 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 
individually agreed to during a scheduling reduction meeting convened 
under 49 U.S.C. 41722. The FAA previously extended the order twice, 
most recently through April 1, 2006. After careful reflection on the 
written views submitted in this matter, the FAA is now extending the 
August 2004 order through October 28, 2006, but reserves the right to 
terminate the August 2004 order before that date if a final rule on 
congestion and delay reduction at O'Hare earlier takes effect.
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    \1\ 71 FR 13668 (Mar. 16, 2006).
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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 summer 
scheduling season while the agency finalizes a more detailed rule that 
will likewise reduce congestion and delay at O'Hare. The FAA has 
separately received written comments on a proposed rule that would 
limit scheduled arrivals at O'Hare and establish allocation, transfer, 
and other procedures not included in the August 2004 order.\2\ The FAA 
intends to publish a final rule in that proceeding as promptly as 
possible; however, it is not possible to make such a rule effective 
before the August 2004 order's previously scheduled expiration.
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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. 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. 41722 authorizes the FAA to conduct scheduling reduction 
meetings. The FAA's authority under section 41722 to negotiate and 
implement schedule reductions would be unworkable if the FAA lacked the 
related authority to capture and to administer voluntary schedule 
reductions in FAA orders.
Discussion of the Written Submissions
    A total of eight respondents filed written views on the FAA's 
proposed extension of the August 2004 order. The respondents included 
two air carriers (American Airlines and United Airlines), one airport 
organization (Airports Council International--North America), the City 
of Chicago (City), and four private individuals. Neither of the air 
carrier respondents opposed the extension of the August 2004 order 
through October 28, 2006.
    As the operator of O'Hare, the City registers its preference that 
the FAA allow the August 2004 order to expire. Echoing the views that 
the City expressed before the FAA's prior extension of the August 2004 
order, the City repeats that technological and procedural developments 
have rendered obsolete the limitations in the August 2004 order. 
According to the City, the air carriers serving O'Hare have learned 
from past overscheduling experience and are unlikely to repeat it in 
the absence of scheduling limits; nevertheless, if debilitating 
congestion and delay return to O'Hare, the City asserts that it might 
create market-based incentives to discourage overscheduling or that the 
FAA may convene another scheduling reduction meeting where the FAA may 
negotiate and impose a new order.\3\
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    \3\ The City also repeats an assertion that the FAA lacks the 
statutory authority to extend the August 2004 order. We addressed 
the City's argument in the context of previously extending the 
August 2004 order, and the rationale expressed there continues to 
apply. Oct. 2, 2005, Order at 4-5.
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    As the FAA found when it last extended the August 2004 order, the 
recent 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 FAA allowed 
the August 2004 order to expire as now scheduled. In the absence of the 
negotiated schedules set forth in the August 2004 order, experience 
leaves little doubt that O'Hare would return to the peak-hour 
congestion and intolerable delay that prevailed before the August 2004 
order took effect. The performance at O'Hare historically declines in 
the late afternoon and evening hours, when demand at the airport and in 
the National Airspace System is at its highest and the impact of 
convective and other weather adverse to aviation is greatest. The 
addition of even a few new flights or the shifting of existing flights 
into the peak period could increase O'Hare's delays exponentially. 
Because the FAA currently approves a number of exchanges among air 
carriers in order to maintain the status quo, we have a clear sense of 
the air carriers' inclinations if the August 2004 order were to expire 
before a rule took effect, and our experience reflects a strong 
likelihood that schedule peaking would return absent the August 2004 
order's scheduling limits. Accordingly, as expressed in the written 
views of United Airlines, the single biggest user of O'Hare's capacity, 
the risk of resumed overscheduling and congestion-related delay at 
O'Hare if the August 2004 order were to expire on April 1, 2006, is 
``very real.''
    The FAA agrees with the City that capacity increases, not schedule 
reductions or other restrictions on demand, are the preferred means of 
curtailing congestion-related delay. Toward this end, the City has 
embarked on an O'Hare Modernization Program that would significantly 
increase O'Hare's capacity. However, the City does not expect to 
realize capacity increases from that project while the August 2004 
order is in effect, even as extended through October 28, 2006. Rather 
than impose on air carriers and passengers the harmful instability of 
successive expiration and reinstitution of voluntary schedule 
reductions at O'Hare, the FAA will extend the August 2004 order beyond 
April 1, 2006, as specified in this order.
    Anticipating that the FAA would extend the August 2004 order, the 
City alternatively asks the FAA to increase from eighty-eight to 
ninety-two per hour the number of peak-hour arrival authorizations that 
the August 2004 order permits and to reallocate via lottery the ten 
arrival authorizations assigned to Independence Air before it ceased 
operations on January 6, 2006. The Airports Council International--
North America echoes these views of the City.
    With respect to the City's request to increase the number of peak-
hour arrival authorizations, the FAA notes that the City previously 
raised a similar request and that the FAA previously

[[Page 16407]]

explained why it is ill-advised to increase the number of peak-hour 
arrival authorizations in the context of extending the voluntary 
scheduling reduction order.\4\ The City cites several recent 
operational changes at O'Hare to support an upward change in the 
prescribed hourly limits. In the order in which the City raises them: 
(1) The implementation of runway usage Hybrid Plan B; (2) 
implementation of Domestic Reduced Vertical Separation Minima (DRVSM) 
between Flight Levels 290 and 410; (3) reclassification of certain MD-
80-series aircraft that would enable their use of land and hold short 
operations (LAHSO) procedures at O'Hare under additional runway 
configurations; and (4) new Category II/III approaches to Runways 27 
Left and 27 Right.
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    \4\ Mar. 21, 2005, Order at 5-8.
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    Our analysis indicates that the average airport acceptance rate has 
not materially changed since the FAA addressed the City's similar 
arguments to increase the hourly limits in March 2005. In the case of 
the MD-80 LAHSO-related changes, which are also integral to Hybrid Plan 
B, there has not been any significant increase in the use of the 
permitted LAHSO procedures by air carriers to date, so potential 
capacity gains have not materialized. Although we are optimistic that 
those gains will materialize in the future, it is premature at this 
time to base an operational increase on those projections. DVRSM has 
increased high altitude flight options and the operational flexibility 
of the system, as the City notes. While en route capacity is important, 
the constraints at O'Hare are primarily driven by terminal airspace and 
runway limits. The ability to conduct Category II/III approaches on 
Runways 27 Left and 27 Right reduces overall aircraft delay and the 
number of flight cancellations experienced at O'Hare during inclement 
or poor weather conditions. At present, however, the FAA must continue 
to monitor the effect of these operational initiatives to assess their 
practical effect on scheduling limits.
    With regard to the ten arrival authorizations previously operated 
by Independence Air, the FAA explained in the March 13 show cause order 
why those arrival authorizations are not excess capacity. Independence 
Air ceased all operations on January 6, and because arrival 
authorizations cannot be sold, leased, or transferred except on a one-
for-one basis under the August 2004 order,\5\ they have been dormant 
since that date. The FAA does not consider the Independence Air arrival 
authorizations to be excess capacity, because when negotiating schedule 
reductions in anticipation of the August 2004 order, the FAA had to 
allocate arrival authorizations in some peak afternoon and evening 
hours at levels that exceed the peak-hour target of eighty-eight 
scheduled arrivals per hour. The Independence Air arrival 
authorizations, particularly in the peak afternoon and evening hours, 
if unused, would help to offset these periods of continued scheduling 
over the operational target.
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    \5\ Aug. 18, 2004, Order at 43-44 (ordering paragraph six).
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    Despite the fact that some peak afternoon and evening hours 
continue to exceed our preferred scheduling limits, the City and the 
Airports Council International--North America assert that the FAA 
should reallocate Independence Air's arrival authorizations to other 
air carriers. However, the August 2004 order does not contain a usage 
requirement that would require Independence Air or any other air 
carrier to surrender any arrival authorization after a period of non-
use.\6\ In addition, the August 2004 order lacks an agreed upon 
reallocation mechanism for any arrival authorization that might be 
voluntarily surrendered. By contrast, the pending rulemaking to reduce 
congestion and delay at O'Hare includes proposed use-or-lose standards 
and allocation procedures that, if adopted, could permit the allocation 
of unused and underutilized arrivals.
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    \6\ Aug. 18, 2004, Order at 35-36.
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    Therefore, in order to permit the FAA the flexibility to recover 
unused arrival authorizations and to reallocate them if appropriate, 
the FAA reserves the right to terminate the August 2004 order before 
October 28, 2006, to coincide with an earlier date on which the final 
rule might take effect. At the same time, the FAA is cognizant of the 
scheduling practicalities and seasonal scheduling changes that are 
endemic to air carrier operations, and in considering whether to 
terminate early the August 2004 order, the FAA will primarily consider 
the potential operational burden such a decision might have.
    The City also asks the FAA to modify the August 2004 order to forgo 
all limitations on international operations at O'Hare. The City 
previously raised this issue at several junctures in this docket, and 
the FAA addressed the matter in detail when extending the August 2004 
order in March 2005.\7\ The City also filed similar comments in the 
public docket associated with the related rulemaking proceeding, which 
is a forum more suited to addressing the policy questions that the City 
raises. Because the present proceeding is limited to the contemplated 
short-term extension of the August 2004 order, and because the FAA will 
address the merits of the City's comments in the rulemaking process, 
the FAA declines to alter the August 2004 order as the City requests at 
this time.
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    \7\ Mar. 21, 2005, Order at 9-10.
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Conclusion
    The FAA proposed to extend the August 2004 order through October 
28, 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 October 28, 2006, reserving the 
right to terminate the August 2004 order earlier if a final rule on 
congestion and delay reduction at O'Hare takes effect before October 
28, 2006.
    Accordingly, with respect to scheduled flight operations at O'Hare, 
it is ordered that:
    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 October 28, 
2006, unless earlier terminated by the Administrator.

    Issued in Washington, DC, on March 27, 2006.
Joseph A. Conte,
Acting Assistant Chief Counsel, Regulations Division.
[FR Doc. 06-3113 Filed 3-28-06; 11:20 am]
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