[Federal Register Volume 73, Number 31 (Thursday, February 14, 2008)]
[Notices]
[Pages 8737-8740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-661]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2007-29320]


Operating Limitations at John F. Kennedy International Airport; 
Notice of Order

AGENCY: Department of Transportation, Federal Aviation Administration 
(FAA).

ACTION: Notice of Order.

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SUMMARY: The Federal Aviation Administration (FAA) is amending the 
Order Limiting Scheduled Operations at John F. Kennedy International 
Airport that published in the Federal Register on January 18, 2008. 
This amendment corrects technical errors in the Order. Specifically, 
this amendment clarifies that the use-or-lose provisions of the Order 
will mirror the IATA Worldwide Scheduling Guidelines; changes the 
office within the FAA responsible for handling appeals from the Air 
Traffic Organization to the Office of the Chief Counsel; and provides 
for a five-day notification period in the event a carrier transfers an 
operation within a marketing code for irregular operations. This 
document also clarifies several aspects of the Order without 
substantively changing the applicable requirements.

FOR FURTHER INFORMATION CONTACT: Rebecca MacPherson, Assistant Chief 
Counsel for Regulations, Office of the Chief Counsel, AGC-200, Federal 
Aviation Administration, 800 Independence Avenue, SW., Washington, DC 
20591; telephone (202) 267-3073.

SUPPLEMENTARY INFORMATION: On January 18, 2008 the FAA published the 
Order Limiting Scheduled Operations at John F. Kennedy International 
Airport (JFK) (Order) in the Federal Register (73 FR 3510). The Order 
establishes a temporary limitation on the number of scheduled 
operations at JFK. The Acting Administrator of the FAA issued the order 
as a result of a persistent number of flights above capacity at JFK 
during the peak operating hours. The FAA intends the Order, as amended 
today, to relieve the substantial inconvenience to the traveling public 
caused by excessive congestion-related flight delays at the airport, 
which magnify as they spread through the National Airspace System. 
Among other things, the order will reduce the average length of delays 
and provide for a more efficient use of the nation's airspace. The 
order takes effect at 6 a.m., Eastern Time, on March 30, 2008, and will 
expire at 11:59 p.m., Eastern Time, on October 24, 2009. The limits 
apply to all air carrier and foreign air carrier scheduled operations, 
excluding helicopters, from 6 a.m., Eastern Time, through 10:59 p.m., 
Eastern Time.
    This amendment corrects technical errors in the Order. 
Specifically, this amendment clarifies that the use-or-lose provisions 
of the Order will mirror the IATA Worldwide Scheduling Guidelines 
(WSG); changes the office within the FAA responsible for handling 
appeals from the Air Traffic Organization to the Office of the Chief 
Counsel; and provides for a five-day notification period in the event a 
carrier transfers an operation within a marketing code for irregular 
operations. This document also clarifies several aspects of the Order 
without substantively changing the applicable requirements.

Changes to the Order

Use-or-Lose Provisions

    As noted in the preamble to the Order published in January 2008, 
the FAA will calculate use-or-lose based on the WSG. The use-or-lose 
provision articulated in the Order largely mirrored the approach we 
have historically taken under the High Density Rule (HDR) \1\ and the 
orders limiting operations at Chicago O'Hare International Airport 
(ORD) and LaGuardia Airport (LGA). The requirement articulated in the 
Order was in error, and the language in paragraph nine of the Order has 
been amended to reflect the agency's intent.
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    \1\ 14 CFR part 93, subpart K.
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    Under a strict seasonal use-or-lose provision, an operation that 
did not commence until June, or ended in September, would be returned 
to the slot coordinator for reallocation for the following summer 
season because the slot would not be used at least 80% of the time. The 
WSG protects seasonal or newly initiated service by allowing the 
carrier to declare in advance the stop and start dates of service.
    Under the WSG, carriers are required to inform the coordinator of 
their intended summer and winter operations by January 31 and August 
31, respectively. Any operations not declared by these dates are 
surrendered and are not given historical status for the subsequent 
applicable scheduling season. However, they also are not counted 
against a carrier's slot holdings when determining use-or-lose. Thus, 
if a carrier were to advise the FAA that it would commence operations 
on June 1, 2008 and cease those operations on August 31, the only 
timeframe for determining use-or-lose would be June 1 through August 
31, even though the summer scheduling season runs from March 30 to 
October 25. Assuming the carrier conducted enough flights under an 
Operating Authorization (OA) in the June through August timeframe to 
receive historical recognition, it would be given the OA for summer 
2009 from June 1 through August 31.
    The FAA believes this approach has merit. A strict seasonal use-or-
lose policy would require carriers to operate flights on the shoulders 
of a scheduling season just to assure they would not lose the related 
OA. This unnecessary service would have the effect of increasing 
congestion during the spring and fall.
    Accordingly, we are amending the Order to specify that for purposes 
of use-or-lose and historical allocation for subsequent seasons, 
carriers must tell the FAA when a particular operation will start and 
stop. Because it is too late to meet the submission date specified in 
the WSG for summer 2008, carriers who wish to have less than the entire 
summer season subject to the use-or-lose provision must report usage 
for this upcoming summer by February 29, 2008. Carriers are encouraged 
to submit information on all service scheduled for summer 2009 by 
February 29, to assist the FAA in finalizing schedules as soon as 
possible. Notification to the FAA for winter 2008/2009 and summer 2009 
schedules will follow the WSG. For purposes of the winter 2008/2009 
scheduling season, historic usage rights will be determined by the 
appendix to the Order since there were no capacity restraints at JFK in 
the 2007 winter scheduling season. The FAA will receive initial 
schedule requests for the winter 2008/2009 scheduling season by the May 
15 deadline and coordinate with carriers at the June 2008 IATA 
Schedules Conference.
    Paragraph nine of the Order also requires carriers to report on 
usage within 14 days for every two-month reporting period. Since the 
WSG use-or-lose requirement applies to an entire scheduling season, 
there is no need for carriers to report to the FAA every two months. 
That requirement has been changed. First, the FAA does not believe it 
needs reports every two months. One

[[Page 8738]]

option would be for the FAA to merely require a report be filed at the 
end of the scheduling season. However, the coordination process for 
allocating OAs for the following season begins approximately six weeks 
before the end of the season. The beginning of this coordination 
process requires the coordinator to notify carriers of tentative 
historical allocations. The FAA needs to know a carrier's usage rate 
before it can provide even a tentative historical allocation. 
Accordingly, the FAA has decided to replace the bimonthly reporting 
requirement with a requirement that carriers provide an interim report 
approximately two months before the end of the scheduling season, and a 
final report at the end of the season.
    Some carriers have requested that they be allowed 30 days to submit 
their reports rather than 14. As discussed in the preamble to the Order 
published in January 2008, OAs are allocated on a daily basis, and the 
use-or-lose requirements apply separately to each day in the week that 
a carrier conducts a specific operation. Under the HDR, the use-or-lose 
provisions applied to a specific operation for which a slot had been 
allocated regardless of how many days a week the slot was used.
    While the FAA does not believe a seasonal reporting requirement is 
significantly more burdensome than a bi-monthly requirement, we 
acknowledge that the determination of use-or-lose based on a daily OA 
allowance, rather than the weekly allowance contemplated under past 
use-or-lose regimes, means that a carrier could have to account for up 
to seven times as many OAs as it would under the requirements in the 
HDR and the ORD and LGA orders. Accordingly, we believe it is 
reasonable to extend the period for submitting a final usage report 
from 14 days to 30.
    Because carriers may choose to initiate operations after the 
commencement of a scheduling season, or cease operations prior to the 
end of the season, there may be some available capacity in the shoulder 
periods of both the summer and winter scheduling seasons. In general, 
the FAA believes not reallocating this capacity is beneficial because 
it should result in further delay reductions. However, the FAA also 
recognizes that some of this capacity could be reintroduced into the 
system without significantly impacting delay. The agency also realizes 
that a carrier may have a short-term need to conduct operations during 
these time periods. Accordingly, a carrier may request that the FAA 
allow it to temporarily operate a flight at a time period where there 
is some newly available capacity. Paragraph 10 has been amended to 
reflect this possibility. The FAA retains full discretion to determine 
whether to allow these additional operations. in addition, these 
operations will not be afforded historical status when determining OAs 
for the next applicable season. Any longer-term capacity returned by 
virtue of the Order's use-or-lose provisions would be reallocated for 
the next applicable season via an auction procedure.
    The Appendix to the Order shows allocations based on a peak week in 
August 2007. Many carriers, especially foreign flag carriers, have 
provided the FAA with information on dates of operation either with the 
initial schedule submission at the IATA Schedules Conference or in 
subsequent schedule requests. The FAA has previously acted on that 
information and the Appendix is not meant to supersede any prior 
confirmations that carriers may have received. Most domestic operators 
have not specified seasonal adjustments in their requests. Once 
carriers have told us when they expect to operate flights for purposes 
of use-or-lose and historical allocation, the FAA will update the 
allocation records to reflect actual anticipated operations. Carriers 
seeking confirmation of their allocation may contact the slot office 
directly. However, schedules previously confirmed by the FAA do not 
require reconfirmation.

Appeal of Decisions

    Paragraph 1c of the Order originally specified that the FAA Vice 
President, System Operations Services, is the final decision-maker for 
determinations regarding the assignment of an OA to conduct an arrival 
or departure at JFK during the affected hours. This provision was 
designed to address clerical errors or other adjustments to the 
Appendix to the order. However, the FAA realizes that there would be 
other decisions that a carrier may wish to appeal to the FAA. Because 
these issues would likely relate to a legal interpretation by the 
Office of the Chief Counsel rather than a purely operational issue, the 
FAA has decided the Chief Counsel should be the final decision-maker 
for all appeals to the agency under the Order. In addition, since the 
Office of the Chief Counsel handled all appeals under the HDR, it has 
the greatest experience in this area. Obviously, the operational arms 
of the FAA would be consulted on all matters under appeal. Paragraph 1c 
of the Order has been amended accordingly.

Transaction Paperwork for Irregular Operations

    Paragraph seven of the Order addresses the transfer of OAs, 
including day-of-transfers among carriers under the same marketing 
control to address irregular operations. The Order originally specified 
that the FAA must be informed of these transactions within three days 
(72 hours). This provision was intended to mirror the comparable 
provision in the LGA Order. That order was amended to extend the 
reporting requirement to five days (72 FR 63224, November 8, 2007). As 
the FAA intended to mirror the existing requirement at LGA, paragraph 
seven has been changed to specify that the FAA must be notified of same 
day transfers within five days.

Clarification of the Order

OA Management

    The FAA has received questions regarding the management of OAs in 
15 or 30-minute increments. The appendix to the Order allocates OAs in 
15-minute increments. However, the FAA will track arrivals and 
departures in 30-minute intervals.

Codeshare Partners

    Some carriers have indicated that the requirement under the Order 
that OAs be held by the operating carrier rather than the marketing 
carrier is inconsistent with common practice internationally. The FAA 
continues to believe that the OAs should actually be held by the 
operator actually conducting the flight. This position is consistent 
with how we have handled slots under the HDR and arrival and operations 
authorizations at ORD and LGA.

The Amended Order

    Because this amendment merely corrects technical errors and 
provides further clarification, the FAA is not seeking public comment 
on the changes. For the convenience of the affected parties, the Order 
is recited below in its entirety.
    With respect to scheduled flight operations at JFK, it is ordered 
that:
    1. This Order assigns operating authority to conduct an arrival or 
a departure at JFK during the affected hours to the U.S. air carrier or 
foreign air carrier identified in the appendix to this Order. The FAA 
will not assign operating authority under this Order to any person or 
entity other than a certificated U.S. or foreign air carrier with 
appropriate economic authority and FAA operating authority under 14 CFR 
part 121, 129, or 135. This Order applies to the following:

[[Page 8739]]

    a. All U.S. air carriers and foreign air carriers conducting 
scheduled operations at JFK as of the date of this Order, any U.S. air 
carrier or foreign air carrier that operates under the same designator 
code as such carrier, and any air carrier or foreign-flag carrier that 
has or enters into a codeshare agreement with such carrier.
    b. All U.S. air carriers or foreign air carriers initiating 
scheduled or regularly conducted commercial service to JFK while this 
Order is in effect.
    c. The Chief Counsel of the FAA, in consultation with the Vice 
President, System Operations Services, is the final decision-maker for 
determinations under this Order.
    2. This Order governs scheduled arrivals and departures at JFK from 
6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
    3. This Order takes effect on March 30, 2008, and expires at 11:59 
p.m., Eastern Time, on October 24, 2009.
    4. Under the authority provided to the Secretary of Transportation 
and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we 
hereby order that:
    a. No U.S. air carriers or foreign air carriers initiating or 
conducting scheduled or regularly conducted commercial service to JFK 
may conduct such operations without an Operating Authorization assigned 
by the FAA.
    b. Except as provided in the appendix to this Order, scheduled U.S. 
air carrier and foreign air carrier arrivals and departures will not 
exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.
    c. The Administrator may change the limits if he determines that 
capacity exists to accommodate additional operations without a 
significant increase in delays.
    5. For administrative tracking purposes only, the FAA will assign 
an identification number to each Operating Authorization.
    6. A carrier holding an Operating Authorization may request the 
Administrator's approval to move any arrival or departure scheduled 
from 6 a.m. through 10:59 p.m. to another half hour within that period. 
Except as provided in paragraph seven, the carrier must receive the 
written approval of the Administrator, or his delegate, prior to 
conducting any scheduled arrival or departure that is not listed in the 
appendix to this Order. All requests to move an allocated Operating 
Authorization must be submitted to the FAA Slot Administration Office, 
facsimile (202) 267-7277 or e-mail [email protected], and must 
come from a designated representative of the carrier. If the FAA cannot 
approve a carrier's request to move a scheduled arrival or departure, 
the carrier may then apply for a trade in accordance with paragraph 
seven.
    7. A carrier may lease or trade an Operating Authorization to 
another carrier for any consideration, not to exceed the duration of 
this Order. Notice of a trade or lease under this paragraph must be 
submitted in writing to the FAA Slot Administration Office, facsimile 
(202) 26707277 or e-mail [email protected], and must come from a 
designated representative of each carrier. The FAA must confirm and 
approve these transactions in writing prior to the effective date of 
the transaction. The FAA will approve transfers between carriers under 
the same marketing control up to five business days after the actual 
operation, but only to accommodate operational disruptions that occur 
on the same day of the scheduled operation.
    8. A carrier may not buy, sell, trade, or transfer an operating 
authorization, except as described in paragraph seven.
    9. Historical rights to Operating Authorizations and withdrawal of 
those rights due to insufficient usage will be determined on a seasonal 
basis and in accordance with the schedule approved by the FAA prior to 
the commencement of the applicable season.
    a. For each day of the week that the FAA has approved an operating 
schedule, any Operating Authorization not used at least 80% of the time 
over the time-frame authorized by the FAA under this paragraph will be 
withdrawn by the FAA for the next applicable season except:
    i. The FAA will treat as used any Operating Authorization held by a 
carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and 
the period from December 24 through the first Saturday in January.
    ii. The Administrator of the FAA may waive the 80% usage 
requirement in the event of a highly unusual and unpredictable 
condition which is beyond the control of the carrier and which affects 
carrier operations for a period of five consecutive days or more.
    b. Each carrier holding an Operating Authorization must 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 and:
    i. The dates within each applicable season it intends to commence 
and complete operations.
    A. For the summer 2008 scheduling season, the report must be 
received by the FAA no later than February 29, 2008, unless the carrier 
intends to utilize its Operating Authorizations for the entire 
scheduling season.
    B. For the winter 2008/2009 scheduling season, the report must be 
received by the FAA no later than August 31, 2008.
    C. For the summer 2009 scheduling season, the report must be 
received by the FAA no later than January 31, 2009.
    ii. The completed operations for each day of the applicable 
scheduling season:
    A. No later than September 1 for the summer scheduling season:
    B. No later than January 15 for the winter scheduling season.
    iii. The completed operations for each day of the scheduling season 
within 30 days after the last day of the applicable scheduling season.
    10. In the event that a carrier surrenders to the FAA any Operating 
Authorization assigned to it under this Order or if there are 
unallocated Operating Authorizations, the FAA will determine whether 
the unallocated Operating Authorizations should be reallocated. The FAA 
may temporarily allocate an Operating Authorization at its discretion. 
Such temporary allocations will not be entitled to historical status 
for the next applicable scheduling season under paragraph 9.
    11. If the FAA determines that a reduction in the number of 
allocated Operating Authorizations is required to meting operational 
needs, such as reduced airport capacity, the FAA will conduct a 
weighted lottery to withdraw Operating Authorizations to meet a reduced 
hourly or half-hourly limit for scheduled operations. The FAA will 
provide at least 45 days' notice unless otherwise required by 
operational needs. Any Operating Authorization that is withdrawn or 
temporarily suspended will, if reallocated, be reallocated to the 
carrier from which it was taken, provided that the carrier continues to 
operate scheduled service at JFK.
    12. The FAA will enforce this Order through an enforcement action 
seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not 
a small business as defined in the Small Business Act, 15 U.S.C. 632, 
will be liable for a civil penalty of up to $25,000 for every day that 
it violates the limits set forth in this Order. A carrier that is a 
small business as defined in the Small Business Act will be liable for 
a civil penalty of up to $10,000 for every day that it violates the 
limits set forth in this 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 this Order.
    13. The FAA may modify or withdraw any provision in this Order on 
its own

[[Page 8740]]

or on application by any carrier for good cause shown.

    Issued in Washington, DC, on February 8, 2008.
Kerry B. Long,
Chief Counsel, Federal Aviation Administration.
[FR Doc. 08-661 Filed 2-8-08; 3:55 pm]
BILLING CODE 4910-13-M