[Federal Register Volume 74, Number 92 (Thursday, May 14, 2009)]
[Proposed Rules]
[Pages 22714-22717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11293]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2008-0517; Notice No. 09-03]
RIN 2120-AJ48


Congestion Management Rule for John F. Kennedy International 
Airport and Newark Liberty International Airport

AGENCY: Federal Aviation Administration (FAA).

ACTION: Notice of proposed rescission.

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SUMMARY: The FAA proposes to rescind the final rule Congestion 
Management Rule for John F. Kennedy International Airport and Newark 
Liberty International Airport. The final rule established procedures to 
address congestion in the New York City area by assigning slots at John 
F. Kennedy (JFK) and Newark Liberty (Newark) International Airports, 
assigning to existing operators the majority of slots at the airports, 
and creating a market by annually auctioning off a limited number of 
slots in each of the first five years of the rule. The final rule also 
contained provisions for minimum usage, capping unscheduled operations, 
and withdrawal for operational need. The rule was scheduled to sunset 
in ten years.

DATES: Send your comments on or before June 15, 2009.

ADDRESSES: You may send comments identified by Docket Number FAA-2008-
0517 using any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your 
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Bring comments 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.
     Fax: Fax comments to Docket Operations at 202-493-2251. 
For more information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information you 
provide. Using the search function of our docket Web site, anyone can 
find and read the electronic form of all comments received into any of 
our dockets, including the name of the individual sending the comment 
(or signing the comment for an association, business, labor union, 
etc.). You may review the Department of Transportation's complete 
Privacy Act Statement in the Federal Register published on April 11, 
2000 (65 FR 19477-78) or you may visit http://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov at any time and follow the online 
instructions for accessing the docket. Or, 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 questions concerning this 
rulemaking, contact: Molly W. Smith, Office of Aviation Policy and 
Plans, APO-200, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591; telephone (202) 267-3275; e-mail 
[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: Later in this preamble, under the Additional 
Information section, we discuss how you can comment on this proposal 
and how we will handle your comments. Included in this discussion is 
related information about the docket and the handling of proprietary or 
confidential business information. We also discuss how you can get a 
copy of this proposal and related rulemaking documents.

Authority for This Rulemaking

    The FAA has broad authority under 49 U.S.C. 40103 to regulate the 
use of the navigable airspace of the United States. This section 
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

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directs the FAA to prescribe air traffic rules and regulations 
governing the efficient utilization of the navigable airspace.

I. Background

    The final rule Congestion Management Rule for John F. Kennedy 
International Airport and Newark Liberty International Airport was 
published in the Federal Register on October 10, 2008 (73 FR 60544). 
The final rule established procedures to address congestion in the New 
York City area by assigning slots at John F. Kennedy (JFK) and Newark 
Liberty (Newark) International Airports, assigning to existing 
operators the majority of slots at the airports, and creating a market 
by annually auctioning off a limited number of slots in each of the 
first five years of the rule. The final rule also contained provisions 
for minimum usage, capping unscheduled operations, and withdrawal for 
operational need. The rule was scheduled to sunset in ten years and was 
to become effective December 9, 2008.
    The rulemaking was highly controversial. Thirty-eight interested 
parties filed comments to the docket addressing the NPRM. The majority 
of comments were consistent in rejecting the proposal. Many commenters 
said that the FAA had failed to demonstrate how the proposal would 
achieve any significant relief from congestion. Rather, according to 
the commenters, a final rule would impose an untested and unproven 
auction process on airlines that would not address the fundamental 
airspace congestion issues in the New York metro area.
    The final rule was challenged by several parties before it could 
take effect. Petitioners included the Port Authority of New York and 
New Jersey, the Air Transport Association of America, Inc. (ATA), the 
International Air Transport Association (IATA), Continental, and U.S. 
Airways. The petitioners sought a stay of the final rule pending 
judicial review, arguing that they would likely succeed on the merits 
of the underlying litigation, they would suffer irreparable harm, a 
stay would not harm other parties, and a stay was in the public 
interest. On December 8, 2008, the United States Court of Appeals for 
the District of Columbia Circuit determined that the petitioners had 
satisfied the standards for a stay and issued an order staying the 
rule. Accordingly, the rule has never been implemented. On January 22, 
2009, the ATA requested that the Secretary of Transportation, Ray 
LaHood, withdraw the final rule in light of the court's stay.
    At present, operations at both airports remain capped by order at 
81 scheduled operations per hour until October 2009. Order Limiting 
Scheduled Operations at John F. Kennedy International Airport (73 FR 
3519 (Jan. 18, 2008), as amended 73 FR 8737 (Feb. 14, 2008)); Order 
Limiting Scheduled Operations at Newark Liberty International Airport 
(73 FR 29550 (May 21, 2008)). The FAA is in the process of considering 
its options with regard to managing congestion at the airport in ways 
that provide a means for carriers to either commence or expand 
operations at the airport, thereby introducing more competition and 
service options to benefit the traveling public.
    On March 11, 2009, the President signed Public Law 111-8, Omnibus 
Appropriations Act, 2009. That legislation provides several departments 
within the executive branch, including the Department of 
Transportation, with the funds to operate until the end of this fiscal 
year. That legislation also contains a provision in Division I, section 
115 that states in pertinent part:

    No funds provided in this Act may be used by the Secretary of 
Transportation to promulgate regulations or take any action 
regarding the scheduling of airline operations at any commercial 
airport in the United States if such regulation or action involves:
    (1) the auctioning by the Secretary or the FAA Administrator of 
rights or permission to conduct airline operations at such an 
airport, * * *
    (3) either:
    (A) withdrawal by the Secretary or Administrator of a right or 
permission to conduct operations at such an airport (except when the 
withdrawal is for operational reasons or pursuant to the terms or 
conditions of such operating right or permission), * * *

    At the same time, the nation's economy has continued to suffer 
under the current recession, which is both deeper and longer than was 
first assumed. In recognition of the extent of the economic emergency, 
President Obama recently signed the American Recovery and Reinvestment 
Act of 2009 \1\ (ARRA), which provides an extraordinary amount of 
emergency funds to address the unprecedented global recession and to 
promote economic recovery.
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    \1\ Public Law 111-5, 123 Stat. 115 (Feb. 17, 2009).
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    The Omnibus Appropriations Act prevents the FAA from implementing 
the slot auction rule or conducting slot auctions. However, we 
recognize that the restriction in section 115 of the Act applies only 
until the end of this fiscal year, or September 30, 2009. The 
restriction in section 115 means the rule adopted last year can no 
longer operate in the way that the agency had planned. The halt in 
funding for this fiscal year makes it impossible for the rule to have 
the 10-year life originally contemplated, even without considering the 
challenging and widespread change in current economic conditions that 
led to the adoption of ARRA.
    Because of the complexity of the issues, the uncertainty caused by 
the Omnibus Appropriations Act, and the possible impact of the 
significantly changed economic circumstances on the slot auction 
program, the FAA believes it would be better to rescind the rule rather 
than propose to extend it. Rescission would also eliminate the 
potential for wasting resources of all parties in the pending 
litigation. We specifically request comments and data from affected 
interests on whether and how the changed circumstances bear on this 
proposed rescission.
    The current orders for JFK and Newark airports presently address 
congestion and delay associated with scheduled operations. However, the 
orders do not address all issues associated with market access at 
capped airports. Accordingly, the FAA believes it may need further work 
to address these concerns and limit operations at the two airports.
    The FAA seeks comment on this proposal. DOT's Regulatory Policies 
and Procedures contemplate at least a 60-day comment period for a 
significant rulemaking, unless otherwise justified. The final rule was 
subject to notice and comment less than 12 months ago, and those 
comments were fully considered by the agency in issuing that rule. 
Since comments should be limited to any change in circumstances, 
including the statutory restriction discussed above, the FAA believes 
that a 30-day comment period is sufficient in this instance.

II. Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 directs that each Federal agency 
shall propose or adopt a regulation only upon a reasoned determination 
that the benefits of the intended regulation justify its costs. Second, 
the Regulatory Flexibility Act of 1980 requires agencies to analyze the 
economic impact of regulatory changes on small entities. Third, the 
Trade Agreements Act (19 U.S.C. 4 2531-2533) prohibits agencies from 
setting standards that create unnecessary obstacles to the foreign 
commerce of the United States. In developing U.S. standards, this Trade 
Act requires agencies to consider international standards and, where 
appropriate, to be the basis of U.S. standards. Fourth, the

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Unfunded Mandate Reform Act of 1995 (Pub. L. 104-4) requires agencies 
to prepare a written assessment of the costs, benefits, and other 
effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation). The FAA currently 
uses an inflation-adjusted value of $136.1 million in lieu of $100 
million.
    The FAA conducted all of these analyses when it originally issued 
the final rule. This proposed rescission is not economically 
significant under Executive Order 12866.
    The paperwork burden anticipated under the rule would not be 
imposed on any parties. The FAA determined that the original final rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act. Rescission of the 
rule would likewise impose no such burden. The FAA has assessed the 
potential effect of this proposal and determined that it would impose 
no costs on international entities and thus would have no trade impact. 
Nor would the rescission impose a Federal mandate that may result in an 
expenditure of $100 million or more (adjusted annually for inflation) 
in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector, and the requirements of Title II 
of the Unfunded Mandate Reform Act of 1995 do not apply.
    The proposed rescission of the final rule is not an economically 
``significant regulatory action'' under Executive Order 12866; however, 
it is ``significant'' as defined in DOT's Regulatory Policies and 
Procedures. Accordingly, it has been reviewed by OST and OMB.

Executive Order 13132, Federalism

    The FAA has analyzed this proposed rescission under the principles 
and criteria of Executive Order 13132, Federalism. We have determined 
that this action would not have a substantial direct effect on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and, therefore, would not have federalism 
implications.

Environmental Analysis

    FAA Order 1050.1E, ``Environmental Impacts: Policies and 
Procedures'' identifies FAA actions that are normally categorically 
excluded from preparation of an environmental assessment or 
environmental impact statement under the National Environmental Policy 
Act (NEPA) in the absence of extraordinary circumstances. The FAA 
previously determined that the final rule qualified for the categorical 
exclusions identified in paragraph 312d ``Issuance of regulatory 
documents (e.g., Notices of Proposed Rulemaking and issuance of Final 
Rules) covering administration or procedural requirements (does not 
include Air Traffic procedures; specific Air traffic procedures that 
are categorically excluded are identified under paragraph 311 of this 
Order)'' and paragraph 312f, ``Regulations, standards, and exemptions 
(excluding those which if implemented may cause a significant impact on 
the human environment.'' It has further been determined that no 
extraordinary circumstances exist that may cause a significant impact 
and therefore no further environmental review is required. The FAA 
documented this categorical exclusion determination. A copy of the 
determination and underlying documents has been included in the Docket 
for the rule. The FAA has determined that the rescission of the final 
rule would also qualify for a categorical exclusion since it would have 
no impact on the environment.

Regulations that Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this notice under Executive Order 13211, 
Actions Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). The agency has determined that it 
is not a ``significant energy action'' under executive order 12866 
because it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

Additional Information

Comments Invited

    The FAA invites interested persons to participate in this 
rulemaking by submitting written comments, data, or views. The agency 
also invites comments relating to the economic, environmental, energy 
or federalism impacts that might result from adopting the proposals in 
this document. The most helpful comments reference a specific portion 
of the proposal, explain the reason for any recommended change, and 
include supporting data. To ensure the docket does not contain 
duplicate comments, please send only one copy of written comments, or 
if you are filing comments electronically, please submit your comments 
only one time.
    The FAA will file in the docket all comments we receive, as well as 
a report summarizing each substantive public contact with FAA personnel 
concerning this proposed rulemaking. Before acting on this proposal, 
the agency will consider all comments received on or before the closing 
date for comments. The FAA will consider comments filed after the 
comment period has closed if it is possible to do so without incurring 
expense or delay.

Proprietary or Confidential Business Information

    Do not file in the docket information that you consider to be 
proprietary or confidential business information. Send or deliver this 
information directly to the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this document. You must mark the 
information that you consider proprietary or confidential. If you send 
the information on a disk or CD-ROM, mark the outside of the disk or 
CD-ROM and also identify electronically within the disk or CD-ROM the 
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when the FAA is aware of proprietary 
information filed with a comment, it does not place it in the docket. 
The agency holds it in a separate file to which the public does not 
have access, and places a note in the docket that it has received it. 
If the FAA receives a request to examine or copy this information, it 
is treated as any other request under the Freedom of Information Act (5 
U.S.C. 552) and such requests are processed under the DOT procedures 
found in 49 CFR part 7.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents 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 can also get 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, notice number, or amendment number 
of this rulemaking.
    You may access all documents the FAA considered in developing this 
proposed rule, including economic analyses and technical reports, from 
the

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internet through the Federal eRulemaking Portal referenced in paragraph 
(1).

List of Subjects in 14 CFR Part 93

    Air traffic control, Airports, Navigation (air), Recordkeeping and 
reporting requirements.

The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration proposes to amend Chapter I of Title 14, Code of Federal 
Regulations, as follows:

PART 93--SPECIAL AIR TRAFFIC RULES

    1. The authority citation for part 93 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502, 
44514, 44701, 44719, 46301.

Subpart N--[Removed and Reserved]

    2. Remove and reserve Subpart N.

    Issued in Washington, DC, on May 7, 2009.
Nan Shellabarger,
Director of Aviation Policy and Plans.
 [FR Doc. E9-11293 Filed 5-13-09; 8:45 am]
BILLING CODE 4910-13-P