[Federal Register Volume 71, Number 178 (Thursday, September 14, 2006)]
[Notices]
[Pages 54331-54334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15221]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2006-25755]


Operating Limitations at New York LaGuardia Airport

ACTION: Proposed Order and request for comments.

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SUMMARY: The Federal Aviation Administration (FAA) has tentatively 
determined that it will be necessary to place temporary limitations on 
flight operations at New York's LaGuardia Airport (LaGuardia), as 
described in this proposed order. The period during which the FAA 
anticipates that these limitations will remain in effect is January 2, 
2007, through September 30, 2007.

FOR FURTHER INFORMATION CONTACT: Komal Jain, Regulations Division, 
Office of the Chief Counsel; Telephone: (202) 267-3073; E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Proposed Order and Request for Comments

    The Federal Aviation Administration (FAA) has tentatively 
determined that it will be necessary to place temporary limitations on 
flight operations at New York's LaGuardia Airport (LaGuardia), as 
described in this proposed order. The period during which the FAA 
anticipates that these limitations will remain in effect is January 2, 
2007, through September 30, 2007. The FAA invites air carriers and 
other interested persons to submit written comments on this proposal in 
Docket FAA-2006-25755. After reviewing and evaluating the comments, the 
FAA expects to issue a final order on this proposal.
    In the absence of the operational limitations proposed in this 
order, the FAA anticipates a return of the congestion-related delays 
that the traveling public experienced in 2000. These delays were not 
limited to LaGuardia, but spread to other airports throughout the 
National Airspace System (NAS). In a separate docket, the FAA is 
soliciting public comments on a proposed rule that would limit the 
number of scheduled and unscheduled operations at LaGuardia (2006 
LaGuardia NPRM).\1\ The FAA expects that the expiration of the 
operational limitations under this proposed order would coincide with 
the effective date of any final rule that the FAA adopts in the related 
rulemaking proceeding.
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    \1\ Docket FAA-2006-25709; 71 FR 51360.
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    The FAA's authority to limit the number of flight operations at 
LaGuardia is an essential component of the FAA's statutory 
responsibilities. The FAA holds broad authority under 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.

I. Background

    As a result of LaGuardia's history of congestion-related delays, 
the FAA, over the course of nearly forty years, applied increasingly 
detailed rules to govern the allocation and use of limited capacity at 
the airport.\2\ These regulations, collectively known as the High 
Density Rule and the Buy-Sell Rule (slot rules), were effective at 
controlling congestion at LaGuardia. In 2000, however, out of concern 
with the collateral effects of the slot rules at LaGuardia on airport 
access and competition, Congress elected to phase out the slot 
regulations at the airport under the Wendell H. Ford Aviation 
Investment and Reform Act for the 21st Century (AIR-21).\3\ Congress 
simultaneously directed the U.S. Department of Transportation, 
effective immediately, to grant all applications for exemptions from 
the slot rules for specific types of flight, i.e., flights operated by 
new entrant carriers and flights that would serve small hub and non-hub 
airports with aircraft with less than 71 seats operations.\4\ By 
statute, the slot rules will expire at LaGuardia after January 1, 
2007.\5\
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    \2\ See 33 FR 17,896, 17,898 (Dec. 3, 1968); 34 FR 2603 (Feb. 
26, 1969); cf. 14 CFR 93.121-93.133, 93.211-93.227 (2006)
    \3\ Public Law No. 106-181, Sec.  231, 114 Stat. 61, 106-10 
(2000) (codified at 49 U.S.C. 41714-16).
    \4\ 49 U.S.C. 41716.
    \5\ 49 U.S.C. 41715(a)(2).
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    As carriers began using the slot exemptions permitted under AIR-21, 
the number of scheduled flight operations at LaGuardia began to far 
exceed the airport's capacity even under optimal operating 
conditions.\6\ With no new airport infrastructure or air traffic 
control procedures, overall airport capacity remained the same while 
the

[[Page 54332]]

number of aircraft operations and delays soared. The average minutes of 
delay for all arriving flights at LaGuardia increased 144% from 15.52 
minutes in March 2000 (the months before AIR-21 was enacted) to 37.86 
minutes in September 2000.\7\ The increase in delay was not limited to 
delays at LaGuardia. Flights that arrived and departed late at 
LaGuardia affected flights at other airports and in adjacent airspace 
as well; by September 2000, flight delays at LaGuardia accounted for 25 
percent of the nation's delays, compared to 10 percent for the previous 
year.\8\
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    \6\ The increase in scheduled operations at LaGuardia is 
described more fully at 66 FR 31,731, 31,732-34 (June 12, 2001).
    \7\ Source: FAA's Aviation System Performance Metrics (ASPM).
    \8\ Calculated from FAA's Air Traffic Operations Network 
Database (OPSNET).
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    In order to quell the growing congestion at LaGuardia, the FAA 
intervened in November 2000. The FAA reduced the number of daily 
exemptions from the High Density Rule at LaGuardia to 159 during peak 
operating hours and distributed the exemptions via lottery.\9\ The 159 
daily operations reflected an increase of almost eleven hourly 
operations above the limits in place before the statutory amendments. 
Despite the FAA's partial rollback of the number of exemption flights, 
LaGuardia is now operating at its peak, optimal weather capacity during 
weekday daytime and evening hours and during Sunday afternoon and 
evening hours, and LaGuardia continues to have a relatively serious 
delay problem.
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    \9\ 65 FR 69,126, 69,127-28 (Nov. 15, 2000). This was extended 
through December 31, 2006. 70 FR 36998 (June 27, 2005).
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    Although LaGuardia lacks the capacity to handle additional flight 
operations beyond the current peak hour limits, the legislative 
expiration of the High Density Rule at LaGuardia after January 1, 2007, 
will eliminate the scheduling and reservation mechanisms that currently 
sustain the airport's operational balance.\10\ Accordingly, the FAA has 
proposed a new rule to maintain the number of operations at LaGuardia's 
current hourly limits. The 2006 LaGuardia NPRM has only recently been 
published for public comment, and a final rule cannot be issued before 
the expiration of the High Density Rule. An order that temporarily 
maintains LaGuardia's current operational limits during the interval 
between the High Density Rule's expiration and the effective date of 
the proposed replacement rule appears necessary, because we need to 
avoid any increase in the number of operations or a significant 
rescheduling of existing flights at LaGuardia.
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    \10\ The FAA maintains safe operations through the use of air 
traffic control procedures. Traffic management initiatives would be 
applied as needed but would result in significant aircraft and 
passenger delays.
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    Based on past experience, the FAA expects that the termination of 
the slot rules at LaGuardia will lead to a significant increase in 
flights, seriously worsening delays at LaGuardia and elsewhere in the 
NAS. The FAA believes that airline demand for flights into and out of 
LaGuardia substantially exceeds the number of flights currently 
permitted at the airport. Six years ago the statutory change that 
required the Department to grant all slot exemption applications for 
specified types of service created an unacceptable level of delay at 
LaGuardia even though established carriers could not obtain slot 
exemptions for service to larger communities or for flights operated 
with larger aircraft. If the FAA does not adopt temporary limits on 
LaGuardia flights, the termination of the slot rules would eliminate 
all legal restrictions on the airlines' addition of flights to larger 
communities and flights operated with larger aircraft.\11\
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    \11\ Several years after Congress' decision in 2000 to abolish 
the High Density and Buy-Sell Rules at O'Hare, the increasing 
congestion and delay problems at O'Hare forced the FAA to limit 
flights at that airport. See 70 FR 15521 (March 25, 2005).
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    The FAA has tentatively determined not to propose several aspects 
of the current slot and slot exemption rules in this proposed order. In 
addition to reducing the days and hours covered by the slot rules, the 
FAA is not proposing limitations based on the number of passenger seats 
on the aircraft or the community served. While there may be legitimate 
policy objectives for such limits, such as those under consideration in 
the 2006 LaGuardia NPRM, they are not essential to control congestion 
in the interim.
    In order to promote the use of scarce resources, carriers would be 
permitted to temporarily transfer operating authorizations to other 
carriers.
    The FAA proposes to include a minimum usage requirement for the 
flight operations assigned under the order. These flight operations are 
a scarce resource and we desire that they are efficiently utilized 
during the effective period of the order. Our experience with the 
August 2004 Scheduling Reduction Order at Chicago's O'Hare 
International Airport, which capped scheduled arrivals during peak 
hours and allocated arrival authorizations without a minimum usage 
requirement, was that some carriers did not utilize their authorities 
and thereby the airport, the traveling public at O'Hare and the 
aviation system in general suffered unused capacity. We propose a 
minimum usage requirement for the operating authorizations, as we have 
adopted in the final rule reducing congestion and delay at O'Hare. 14 
CFR part 93, subpart B (71 FR 51382-51404, August 29, 2006.). Carriers 
would be required to use their authorizations at least 80 percent of 
the time over any two month reporting period in order to retain the 
authorization. The Administrator could decide to waive the 80 percent 
usage requirement under highly unusual conditions that are beyond the 
carrier's control and that last for at least 5 consecutive days.
    In addition, this proposed order contains a lottery provision to 
reallocate withdrawn, surrendered, or unallocated operating 
authorizations. We propose to follow the lottery procedures set forth 
in 14 CFR 93.225. The reallocation of operating authorizations by 
lottery under this proposed order would be temporary. The limits on 
flights and the allocation of any operations created by the FAA's final 
decision in the rulemaking proceeding will control LaGuardia operations 
after any new rule takes effect.
    After reviewing the comments received on the following proposed 
measures, the FAA expects to issue a final order that temporarily 
governs flight operations at LaGuardia. Because the airport has unused 
capacity in the terminal facilities, a final decision limiting the 
number of flights presumably would not discourage airlines from using 
their rights in a way that increased passenger traffic at LaGuardia.
    The FAA has determined that it has the statutory authority to adopt 
this proposal. The FAA has broad authority under 49 U.S.C. 40103 to 
regulate the use of the navigable airspace of the United States. 
Section 40103 authorizes the FAA to develop plans and policy for the 
use of navigable airspace and to assign the use that the FAA deems 
necessary for its safe and efficient utilization. It further directs 
the FAA to prescribe air traffic rules and regulations governing the 
efficient utilization of the navigable airspace. The FAA interprets its 
broad statutory authority to ensure the efficient use of the navigable 
airspace to encompass management of the nationwide system of air 
commerce and air traffic control. While Congress determined to phase 
out the long-standing slot rules at LaGuardia, Congress did not strip 
the FAA of its authority to place operating limitations on air carriers 
or other operators to preserve the efficient utilization of the 
national airspace. Indeed, the FAA has used that authority to restrict 
the number of slot exemptions since 2001,

[[Page 54333]]

with general support from the impacted operators.

II. Proposed Interim Measures

A. Scheduled Operations

    The FAA proposes to adopt the following measures with respect to 
scheduled operations at LaGuardia:
    1. The final order would govern scheduled arrivals and departures 
at LaGuardia from 6:30 a.m. through 9:59 p.m., Eastern Time, Monday 
through Friday and from 12 noon through 9:59 p.m., Eastern Time, 
Sunday.
    2. The final order would take effect on January 2, 2007, and would 
expire at 9:59 p.m., Eastern Time, on September 30, 2007.
    3. The final order would assign operating authority to conduct an 
arrival or a departure at LaGuardia during the affected hours to the 
air carrier that holds equivalent slot or slot exemption authority (or 
the air carrier that operates it if a non-air carrier holds such 
authority) under the High Density Rule or FAA slot exemption rules as 
of January 1, 2007. The FAA would not assign operating authority under 
the final order to any person or entity other than a certificated U.S. 
or foreign air carrier with appropriate economic authority to conduct 
scheduled passenger service and FAA operating authority under 14 CFR 
part 121, 129, or 135.
    4. For administrative tracking purposes only, the FAA would assign 
an identification number to each operating authorization.
    5. An air carrier could transfer an operating authorization to 
another carrier, not to exceed the duration of the final order. An air 
carrier also could trade an operating authorization to another air 
carrier on a one-for-one basis, not to exceed the duration of the final 
order. Notice of transfer or a trade under this paragraph would be 
submitted in writing to the FAA Slot Administration Office, facsimile 
(202) 267-7277 or e-mail [email protected], and must come from a 
designated representative of each air carrier. The air carriers would 
be required to receive written confirmation from the FAA prior to 
operating under the traded operating authority.
    6. An air carrier could not buy, sell, trade, or transfer an 
operating authorization, except as described in paragraph 5.
    7. Every air carrier holding an operating authorization would 
forward in writing to the FAA Slot Administration Office a list of all 
operating authorizations held by the carrier along with a listing of 
the operating authorizations actually operated for each day of the 2-
month reporting period within 14 days after the last day of the 2-month 
reporting period beginning January 2 and every 2 months thereafter. Any 
operating authorizations not used at least 80 percent of the time over 
a two-month period would be withdrawn by the FAA. The Administrator 
could waive the 80 percent usage requirement in the event of a highly 
unusual and unpredictable condition which is beyond the control of the 
carrier and which exists for a period of 5 consecutive days or more.
    8. In the event that operating authorizations are withdrawn for 
non-use, surrendered to the FAA or are unassigned, the FAA would 
determine whether any of the available operating authorizations should 
be reallocated. If so, the FAA would conduct a lottery using the 
provisions specified in 14 CFR 93.225. The FAA may retime an operating 
authorization prior to reallocation in order to address operational 
needs. When the final order expires, any operating authorizations 
reassigned under this paragraph would revert to the FAA for 
reallocation according to the reallocation mechanism prescribed in the 
final rule that succeeds the final order.
    9. The FAA would enforce the final order through an enforcement 
action seeking a civil penalty under 49 U.S.C. 46301(a). An air carrier 
that is not a small business as defined in the Small Business Act, 15 
U.S.C. 632, would be liable for a civil penalty of up to $25,000 for 
every day that it violates the limits set forth in the final order. An 
air carrier that is a small business as defined in the Small Business 
Act would be liable for a civil penalty of up to $10,000 for every day 
that it violates the limits set forth in the final order. The FAA also 
could file a civil action in U.S. District Court, under 49 U.S.C. 
46106, 46107, seeking to enjoin any air carrier from violating the 
terms of the final order.

B. Unscheduled Operations \12\
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    \12\ Unscheduled operations are operations other than those 
regularly conducted by an air carrier between LaGuardia and another 
service point. Unscheduled operations include general aviation, 
public aircraft, military, charter, ferry, and positioning flights. 
An air carrier can use an operating authorization for a ferry, 
positioning, or other non-revenue flight. An air carrier may choose 
to do so if a reservation is not available. Helicopter operations 
are excluded from the reservation requirement. Reservations for 
unscheduled flights operating under visual flight rules (VFR) are 
granted when the aircraft receives clearance from air traffic 
control to land or depart LaGuardia. Reservations for unscheduled 
VFR flights are not included in the limits for unscheduled 
operators.
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    Under the High Density Rule, the FAA requires all operators at 
LaGuardia to obtain a reservation for each takeoff or landing.\13\ Each 
reservation for an unscheduled operation at LaGuardia is an 
authorization for a one-time arrival or departure on a specific date 
within a specific 30-or 60-minute period. FAA Advisory Circular 93-1, 
``Reservations for Unscheduled Operations at High Density Traffic 
Airports,'' describes the procedures for obtaining a reservation. The 
FAA uses similar procedures for Special Traffic Management Programs 
implemented to respond to temporary increases in airport demand caused 
by special events such as major conventions or sporting events, and the 
FAA intends to use these procedures to allocate reservations for 
unscheduled operations at LaGuardia under the final order.
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    \13\ See, e.g., 14 CFR 93.125 (2006).
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    The FAA proposes to implement a reservation system for unscheduled 
operations to ensure that demand is spread reasonably throughout the 
day in support of the FAA's peak hour operational cap for scheduled and 
unscheduled flights. The FAA proposes to permit six (6) unscheduled 
operations per hour from 6:30 a.m. through 9:59 p.m., Eastern Time, 
Monday through Friday and 12 noon through 9:59 p.m., Eastern Time, on 
Sunday. This is consistent with the current number of peak hour 
reservations available for unscheduled operations at LaGuardia. The FAA 
believes that a half-hour allocation period is appropriate and proposes 
to limit reservations in each half-hour period to no more than three 
(3) operations (arrivals and departures) unless otherwise authorized by 
the Air Traffic Organization.
    Therefore, with respect to unscheduled flight operations at 
LaGuardia, the FAA proposes to adopt the following measures:
    1. The final order would apply to all operators of unscheduled 
flights, except helicopter operations, at LaGuardia from 6:30 a.m. 
through 9:59 p.m., Eastern Time, Monday through Friday and from 12 noon 
through 9:59 p.m., Eastern Time, Sunday.
    2. The final order would take effect on January 2, 2007, and would 
expire at 9:59 p.m., Eastern Time, on September 30, 2007.
    3. No person could operate an aircraft other than a helicopter to 
or from LaGuardia unless the operator has received, for that 
unscheduled operation, a reservation that is assigned by the David J. 
Hurley Air Traffic Control System Command Center's Airport Reservation 
Office (ARO). Additional information on procedures for obtaining a 
reservation will be

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available via the Internet at http://www.fly.faa.gov/ecvrs.
    4. Six (6) reservations would be available per hour for unscheduled 
operations at LaGuardia. The ARO would assign reservations on a 30-
minute basis.
    5. The ARO would receive and process all reservation requests. 
Reservations would be assigned on a ``first-come, first-served'' basis, 
determined as of the time that the ARO receives the request. A 
cancellation of any reservation that will not be used as assigned would 
be required.
    6. Filing a request for a reservation would not constitute the 
filing of an instrument flight rules (IFR) flight plan, as separately 
required by regulation. After the reservation is obtained, an IFR 
flight plan could be filed. The IFR flight plan would include the 
reservation number in the ``remarks'' section and would be filed in 
accordance with FAA regulations and procedures.
    7. Air Traffic Control would accommodate declared emergencies 
without regard to reservations. Non-emergency flights in direct support 
of national security, law enforcement, military aircraft operations, or 
public-use aircraft operations would be accommodated above the 
reservation limits with the prior approval of the Vice President, 
System Operations Services, Air Traffic Organization. Procedures for 
obtaining the appropriate reservation for such flights would be 
available via the Internet at http://www.fly.faa.gov/ecvrs.
    8. Notwithstanding the limits in paragraph 4, if the Air Traffic 
Organization determines that air traffic control, weather, and capacity 
conditions are favorable and significant delay is not likely, the FAA 
could accommodate additional reservations over a specific period. 
Unused operating authorizations could also be temporarily made 
available for unscheduled operations. Reservations for additional 
operations would be obtained through the ARO.
    9. Reservations could not be bought, sold, or leased.

III. Request for Comments

    The FAA invites all interested persons to submit written comments 
on the proposals described in this order by filing their written views 
in Docket FAA-2006-25755 on or before October 16, 2006. The FAA does 
not intend this proposal to address the longer-term issues that will be 
considered in the related proposed rulemaking. Therefore, any 
submissions to the current docket should focus on the issues specified 
in this proposed order.


    Issued in Washington, DC, on September 7, 2006.
Nan Shellabarger for Nancy LoBue,
Deputy Assistant Administrator for Aviation Policy, Planning, and 
Environment.
 [FR Doc. E6-15221 Filed 9-13-06; 8:45 am]
BILLING CODE 4910-13-P