[Federal Register Volume 73, Number 211 (Thursday, October 30, 2008)]
[Notices]
[Pages 64658-64660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25850]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2008-0629]


Operating Limitations for Unscheduled Operations at John F. 
Kennedy International Airport and Newark Liberty International Airport

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Disposition of Comments to Proposed Order.

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SUMMARY: On July 17, 2008, the FAA issued a proposed order requesting 
written views on the FAA's tentative determination to temporarily limit 
unscheduled aircraft operations at John F. Kennedy International 
Airport (JFK) and Newark Liberty International Airport (EWR). The 
temporary limit was intended to supplement previously issued FAA orders 
limiting scheduled operations at both airports by addressing congestion 
related delays that would otherwise occur pending the ongoing 
rulemaking action for JFK and EWR. This disposition of comments 
explains the FAA's rationale for not presently adopting the proposed 
order and discusses the comments received in response to the proposed 
order.

ADDRESSES: To read background documents or comments received, go to 
http://www.regulations.gov and follow the online instructions for 
accessing the docket. Alternatively, go to the Docket Operations in 
Room W12-140 of the West Building Ground Floor at 1200 New Jersey 
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this disposition of comments contact: Gerry Shakley, System Operations 
Services, Air Traffic Organization; telephone: (202) 267-9424; 
facsimile: (202) 267-7277; e-mail: [email protected]. For legal 
questions concerning this disposition of comments contact: Rebecca B. 
MacPherson, Office of the Chief Counsel, Federal Aviation 
Administration; telephone: (202) 267-7240; facsimile: (202) 267-7971; 
e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You may obtain an electronic copy using the Internet by:
    (1) Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    (2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.
    You also may obtain a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.

Discussion of Written Submissions and the Final Order

    The FAA published the Notice of Proposed Order, ``Operating 
Limitations for Unscheduled Operations at John F. Kennedy International 
Airport and Newark Liberty International Airport,'' on July 17, 2008. 
The FAA concludes that it is unnecessary to issue a final order because 
the limits proposed are imposed by a final rule, ``Congestion 
Management Rule for John F. Kennedy International Airport and Newark 
Liberty International Airport,'' (``Final Rule'') issued on October 10, 
2008.\1\ However, if the Final Rule is rendered ineffective for any 
reason, the FAA may adopt the proposed order as final without an 
opportunity for further comment. Accordingly, the comments to the 
proposed order are discussed below.
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    \1\ 73 FR 60544.
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    The Notice requested comments on several aspects of the proposed 
order, as well as any general comments. The comment period closed on 
July 28, 2008. The FAA received one comment during the comment period 
and eleven additional comments after the closing date. These comments 
are from interested parties including airlines, all-cargo air carriers, 
a public charter operator, and industry organizations. Several 
commenters generally support the FAA's goal of reducing congestion at 
the New York area airports, and three commenters support the proposal 
in its entirety. Commenters opposing the

[[Page 64659]]

proposed order contend that it fails to address the nature of charter, 
business, and general aviation operations and the effect of the 
proposed order on those segments of the aviation industry. Comments to 
the Notice are addressed below by topic. The FAA also received seven 
comments in response to ``Congestion Management Rule for John F. 
Kennedy International Airport and Newark Liberty International 
Airport'' \2\ regarding unscheduled operations that raised 
substantially the same issues and are discussed below.
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    \2\ Docket No. FAA-2008-0517.
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All-Cargo Operations

    The comments submitted by the Cargo Airline Association (CAA) best 
summarize the concerns of all-cargo air carriers. CAA contends that the 
proposed order will have a serious, adverse impact on all-cargo 
carriers, arguing that, although most operations are conducted during 
nighttime hours, these carriers cannot always plan in advance to meet 
service demands during congested hours. All-cargo carriers frequently 
conduct unscheduled operations on short notice, and many guarantee 
service by a time certain. Because of these combined circumstances, a 
failure to obtain a required reservation may result in liability to the 
shipper. CAA believes that reservations will not be available for last 
minute operations, which it argues constitutes an unfair and unlawful 
discrimination against all-cargo carriers and other unscheduled 
operations. Additionally, CAA contends that because of the nature of 
the all-cargo industry segment, it is not practical to use other area 
airports for unscheduled operations. One all-cargo carrier claims that 
the proposed order will preclude it from competing as an ``ad-hoc 
charter operator'' because its operations often are planned two hours 
in advance.
    CAA suggests that all-cargo carriers be treated similarly to 
military and public aircraft, and aircraft operating under contracts 
with the Department of Defense or the United States Postal Service to 
carry mail, because of the ``mission-critical all-cargo business 
model.'' Under this treatment, all-cargo carriers would be subject to 
the order and would need a reservation, but they would be given 
preferential treatment. Another all-cargo carrier requests that a 
number of reservations be allocated to allow all-cargo operations on an 
as-needed basis.
    The purpose of the reservation system is to allow for unscheduled 
operations, and the number of reservations available should accommodate 
operations in the desired hour of operation or in surrounding hours. It 
is impractical to allocate a certain number of reservations for last 
minute operations when the carriers themselves cannot identify when 
these operations will be needed.
    Unscheduled operations can be accommodated under the Final Rule if 
operators are flexible in their arrival and departure times. Based on 
data from FAA's Enhanced Traffic Management System (ETMS) for the year 
ended May 31, 2008, most unscheduled flights can be accommodated in 
visual meteorological conditions or through capacity in an adjacent 
hour (one hour on either side of the actual hour of operation in the 
data). The ETMS data shows that fewer than one flight per day on 
average would be affected by the Final Rule at each airport, where 
there is insufficient capacity in the adjacent two hours to handle 
excess demand. Based on this data, with minor accommodations in flight 
plans, unscheduled operators should be able to obtain reservations and 
operate without incurring additional costs. However, if an operator 
cannot obtain a reservation for its preferred time, its planned flight 
times may need to be revised because of the limited available 
reservations. This is similar to the burden borne by scheduled 
operators that conduct flights during available reservation times.

Private Charter and Business Aviation

    The National Air Carrier Association (NACA) contends that the 
proposed order unfairly targets a segment of the industry, unscheduled 
operations, that does not contribute significantly to the capacity 
constraints at the airports. Additionally, because of the nature of 
their business, these carriers cannot plan operations 72 hours in 
advance, and reservations may be unavailable at the last minute when 
they are needed to perform contractual obligations.
    As discussed above, unscheduled operations can be accommodated 
under the Final Rule if operators are flexible in their arrival and 
departure times. Additionally, the FAA believes that general aviation 
demand and a segment of flights conducted as business and private 
charters can be accommodated within regional capacity.

Number of Reservations and Applicable Hours

    NACA argues that the use of calendar year 2007 as a baseline is 
inappropriate because only LaGuardia was operating under an 
administrative order limiting the number of hourly operations. NACA 
further argues that with all three major New York airports operating 
under limitations, there is no alternative for unscheduled operations.
    CAA contends that the FAA failed to disclose detailed information 
related to its analysis of unscheduled operations, including what types 
of operations comprise the baseline and at what time of day or night 
those operations occurred. The CAA contends that meaningful comment to 
the proposed order or analysis of possible alternatives cannot be made 
without this detailed information.
    The FAA understands CAA's and NACA's concerns. However, the 
analysis of impact on JFK and EWR in the final regulatory evaluation 
for the Final Rule (contained in docket number FAA-2008-0517) assumed 
that the reservation restrictions were in place for the year ended May 
31, 2008.\3\ (See ``Availability of Rulemaking Documents'' section for 
information on how to access the docket.) Therefore, that analysis 
should reflect the conditions at the three major New York airports 
after the Final Rule becomes effective. Additionally, that analysis 
considered all operations during the slot-controlled hours, as 
indicated in the proposal. Unscheduled demand included operations that 
were not allocated Operating Authorizations under the FAA's order for 
scheduled flights. More detailed information regarding the exact times 
or type of operation would not change the net effect of the reservation 
system because the reservation system does not distinguish between the 
various types of unscheduled operations.
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    \3\ The FAA recently reduced the number of available hourly 
reservations at LaGuardia to reflect historic usage and in 
recognition that additional operations at LaGuardia would further 
increase delays and congestion in the region. 73 FR 48428 (Aug. 19, 
2008).
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    The Aircraft Owners and Pilots Association (AOPA) argues that a 
reservation system for visual flight rules (VFR) operations is not 
justified because air traffic control permits these operations only 
when weather and traffic conditions allow. AOPA also argues that the 
proposed order ignores recent announcements by airlines to reduce 
capacity and the effect of that reduced capacity on the congestion at 
JFK and EWR. AOPA contends that the proposed order unfairly burdens 
general aviation operators at JFK and EWR
    The FAA appreciates AOPA's concerns, but the Final Rule permits 
additional operations when capacity exists and significant delays are 
not expected. A reservation system for additional VFR operations 
maintains an equitable and orderly mechanism for allowing additional 
traffic at JFK and

[[Page 64660]]

EWR and provides greater opportunity to plan for airport demand. 
Additionally, although airlines may reduce capacity in the short term, 
many of the temporary reductions are in less congested hours. Moreover, 
it is important to have a comprehensive, long-term system in place to 
manage congestion and future growth at these airports. The FAA intends 
to use its authority under the Final Rule to provide reservations for 
unscheduled operations when reservations set aside for scheduled 
operations are not expected to be used, when capacity exists in the 
system, and when events or other local circumstances warrant special 
consideration. The FAA believes the flexibility to add reservations in 
positive operating conditions could allow greater access by general 
aviation and other unscheduled operations without the risks of having 
to implement restrictions later in the day.

Use of Reservations for Alternate Diversion Flights

    NACA argues that the entire reservation allocation process will 
encourage individual carriers to hoard unscheduled reservations to 
protect their operations and then fail to use those reservations, 
especially for those awarded for alternate diversion scenarios. NACA 
contends that the proposed order encourages this behavior because there 
is no accountability for failure to use the reservation.
    The FAA appreciates NACA's concerns regarding operators obtaining 
reservations and failing to use them. There are limited reservations, 
and operators should not hoard or fail to cancel unneeded ones because 
of the impact on other operators. The FAA did not propose a penalty for 
failing to use a reservation. However, the FAA will monitor 
reservations and actual operations to determine if abuse occurs and 
will work with individual operators to eliminate any abusive behavior. 
The final rule for JFK and EWR does not contain a requirement to obtain 
a reservation when filing flight plans listing those airports as 
alternates because such a requirement would result in unnecessary 
reservations that would remain unused in most cases. A reservation 
requirement applies only to actual operations at the airports, except 
in the case of a declared emergency. The FAA understands that there may 
be other safety or operational justifications that could dictate the 
use of an alternate airport. However, this is not expected to occur on 
a regular basis, and the FAA would consider the individual 
circumstances as part of any enforcement proceeding.
    Delta and Continental suggest that the FAA eliminate all 
unscheduled operations during the peak hours to maximize the efficiency 
of the airports.
    The FAA considered these comments but believes that the Final Rule 
strikes the appropriate balance between the operational needs of the 
various users of the airports.

Cost-Benefit Analysis of Limitations on Unscheduled Operations

    NetJets contends that the economic analysis for limiting 
unscheduled operations did not demonstrate any congestion reduction 
benefit or properly quantify the costs to aircraft operators. Without 
this analysis, NetJets contends there is no evidence that the proposed 
limitations are justified, and the public has had no opportunity to 
comment on this justification.
    The economic analysis addressed the costs and benefits of 
implementing the comprehensive congestion management plan and includes 
limits on unscheduled operations. Because all operations contribute to 
the congestion and delay problems at JFK and EWR, the solution must 
incorporate limitations on all operations. Under the Final Rule, 
scheduled operations bear the majority of the operational reduction. 
Even though unscheduled operations, which are a small fraction of the 
total operations at JFK and EWR, are not the root cause of the 
congestion and delay, the current situation where demand outstrips 
supply means that the addition of even one operation can have a 
disproportionate effect on congestion and delay. Accordingly, these 
limitations on unscheduled operations are part of the comprehensive 
plan to reduce congestion and delay.

Periodic Review of Orders

    NACA requests the FAA to review the necessity of limitations on 
unscheduled operations on a semi-annual basis in conjunction with the 
submission of summer and winter flight schedules to ensure that all 
operators may share in any additional capacity.
    The FAA agrees that available airport capacity could potentially be 
used by unscheduled operators. The Final Rule provides for additional 
reservations when weather and capacity conditions allow, which includes 
decreased demand by scheduled operators. Additionally the Air Traffic 
Organization, primarily through the Air Traffic Control System Command 
Center, constantly reviews demand at JFK and EWR, and will respond 
accordingly to changes in capacity by adding reservations that do not 
result in significant delay.

    Issued in Washington, DC on October 23, 2008.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. E8-25850 Filed 10-29-08; 8:45 am]
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