[Federal Register Volume 73, Number 212 (Friday, October 31, 2008)]
[Rules and Regulations]
[Pages 64883-64884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26039]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2006-25709]
RIN 2120-A170


Congestion Management Rule for LaGuardia Airport

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice; clarification of final rule.

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SUMMARY: On October 10, 2008, the FAA issued a final rule to address 
congestion at New York's LaGuardia Airport (LaGuardia). That final rule 
is scheduled to take effect December 9, 2008. As part of the final 
rule, the FAA explained how it would initially allocate slots to 
incumbent carriers on the rule's effective date. The preamble to the 
final rule noted that it would not allocate slots to a carrier that was 
no longer operating at the airport. However, it did not address how 
those slots would be allocated under the rule. Today's notice provides 
that explanation.

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 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 clarification notice contact: Nan Shellabarger, Office of Aviation 
Policy and Plans, APO-1, Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591; telephone (202) 267-
3275; e-mail

[[Page 64884]]

[email protected]. For legal questions concerning this 
rulemaking, contact: Rebecca MacPherson, FAA Office of the Chief 
Counsel, 800 Independence Ave., SW., Washington, DC 20591; telephone 
(202) 267-3073; e-mail [email protected].

SUPPLEMENTARY INFORMATION: On October 10, 2008, the FAA issued a final 
rule to address congestion at LaGuardia. 73 FR 60574. That final rule 
is scheduled to take effect December 9, 2008. As part of the final 
rule, the FAA explained how it would initially allocate slots to 
incumbent carriers no later than the rule's effective date. Under the 
rule, initial allocation is based on Operating Authorizations allocated 
under the Order Limiting Operations at LaGuardia Airport (LaGuardia 
Order) to carriers for the week of September 28, 2008. The preamble to 
the final rule noted that it would not allocate slots to a carrier that 
was no longer operating at the airport. However, it did not address how 
those slots would be allocated under the rule. Specifically, the 
preamble to the final rule stated:
    One carrier that held Operating Authorizations in January 2007 is 
no longer in business, although it continues to hold an air carrier 
certificate. While those Operating Authorizations are currently being 
operated by another carrier solely within its marketing control, the 
FAA believes it is simply cleaner to allocate the slots to the holder 
of the Operating Authorization only if the carrier is still operating 
at the airport. (73 FR 60585)
    Section 93.39(b) of the final rule's regulatory text states:
    If a carrier was allocated operating rights under the Order 
Limiting Operations at LaGuardia Airport during the week of September 
28-October 4, 2008, but the operating rights were held by another 
carrier regularly conducting operations at the airport as of that week, 
then the corresponding slots will be assigned to the carrier that held 
the operating rights for that period, as evidenced by the FAA's 
records.
    Under the LaGuardia Order, ATA Airlines was allocated 14 slots at 
the airport. These slots have been operated under lease agreements by 
AirTran and Delta Air Lines. However, the allocation has remained with 
ATA Airlines. That carrier ceased operations at LaGuardia on January 7, 
2008, and ceased operations entirely on April 3, 2008. Thus, section 
93.39(b) does not apply. Likewise, these slots would not be considered 
new or returned capacity that can be reallocated only via auction under 
93.40 and then designated as unrestricted slots. Since no provision of 
the final rule specifically directs how these types of slots will be 
allocated, the FAA believes it is appropriate to provide clarification.
    On October 17, 2008, in the bankruptcy proceeding of In re: ATA 
Airlines, Inc., U.S. Bankruptcy Court for the Southern District of 
Indiana, Indianapolis Division, case no. 08-03675-BHL-1 1, the court 
issued an Order Granting Expedited Motion under Bankruptcy Code 
Sections 105 and 363 to Establish Solicitation and Bid Procedures for 
the Sale of the Debtor 's Business (Bankruptcy Order). The Bankruptcy 
Order establishes rules and procedures that will govern the 
solicitation and submission of proposals for the acquisition of ATA 
Airlines. At present, initial bids are due to the ATA Airlines by 
November 3, 2008. ATA Airlines will determine which Bid Proposal (as 
defined in the Bankruptcy Order) is the highest and best offer for the 
sale of the business. Each Bid Proposal shall be subject to bankruptcy 
court approval.
    In proceeding before the court, the FAA has reiterated that the 
Operating Authorizations allocated under the LaGuardia Order cannot be 
sold. However, the Bankruptcy Order addresses the sale of the business 
as a whole. Accordingly, for the purpose of the LaGuardia Order and the 
Final Rule, the FAA would consider the acquiring entity to stand in the 
shoes of ATA Airlines. If the acquiring entity is an air carrier,\1\ 
the FAA will allocate the 14 LaGuardia slots to that entity. The 
acquiring carrier need not currently have a presence at the airport. 
The provision in the preamble that the air carrier must operate at 
LaGuardia was directed to the holder of the Operating Authorization 
under the LaGuardia Order. The FAA simply did not contemplate a 
circumstance whereby ATA Airlines could be acquired by another carrier 
under bankruptcy proceedings.
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    \1\ Only air carriers can hold either Operating Authorizations 
under the LaGuardia Order or slots under the final rule. 
Accordingly, the FAA assumes that only an existing air carrier would 
be likely to bid on ATA Airlines if its primary interest is 
acquiring the LaGuardia slots. Any entity that does not currently 
possess an air carrier certificate should contact the FAA's 
Indianapolis Flight Standards District Office (FSDO) to discuss 
concerns regarding ATA Airlines' operating certificate. Operating 
certificates cannot be sold, and the FAA requires certain criteria 
be met before it will issue a certificate. Questions to the 
Indianapolis FSDO should be directed to Ron Myers at (317) 837-4419 
or Bruce Montigney at (317) 837-4410.
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    The FAA understands that several aspects of the final rule need to 
be addressed given the possibility of these slots being allocated 
outside of the context of the LaGuardia Order.
     As is the case with all slots allocated in a manner other 
than under the provisions of section 93.40, these slots will be 
designated as common slots and, except as discussed below, will be 
subject to the rule's usage requirements and may be withdrawn for 
operational need.
     Should the acquisition transaction not be completed until 
after the rule's effective date, the FAA will hold the slots in 
abeyance until the transaction is complete, at which point it will 
allocate the slots.
     The slots will be included in the total number of common 
slots initially allocated to the carrier under the rule. Should the 
total number of common slots exceed 20, the carrier may lose a 
percentage of the slots in accordance with the final rule. However, 
depending on when the slots are allocated, reversion of the additional 
slots may not occur before March, 2010.
     Since the bankruptcy court order includes unexpired 
leases, the FAA anticipates the acquiring carrier will comply with the 
requirements of all leases related to the slots, including any time 
frames provided for termination of the lease agreement.
     The FAA will waive the usage requirements for a period of 
no more than six months following allocation so that the acquiring 
carrier has the opportunity to establish new routes or services.

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/regulationspolicies/; 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 docket number of this rulemaking.

    Issued in Washington, DC on October 27, 2008.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations, Federal Aviation 
Administration.
[FR Doc. E8-26039 Filed 10-30-08; 8:45 am]
BILLING CODE 4910-13-M