[Federal Register Volume 74, Number 193 (Wednesday, October 7, 2009)]
[Notices]
[Pages 51648-51650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24118]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration (FAA)

[Docket No. FAA-2008-0221]


Operating Limitations at Newark Liberty International Airport

ACTION: Notice of order extending and modifying the limitations on 
scheduled operations at Newark Liberty International Airport.

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SUMMARY: The FAA is amending the May 15, 2008, order limiting the 
number of scheduled aircraft operations at Newark Liberty International 
Airport (EWR) during peak operating hours (May 2008 order).\1\ The 
amendment extends the May 2008 order by approximately two years, 
through October 29, 2011. In addition, because the amendment extends 
the May 2008 order's duration, the amendment clarifies that the FAA 
will not allocate new or returned capacity under the order via the 
auction procedure that the order originally described.
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    \1\ Order Limiting Scheduled Operations at Newark Liberty 
International Airport, 73 FR 29,550 (May 21, 2008).
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    If you wish to review the background documents or comments received 
in this proceeding, you may go to http://www.regulations.gov at any 
time and follow the online instructions for accessing the electronic 
docket. You may also go to the U.S. Department of Transportation's 
Docket Operations in Room W12-140 on the ground floor of the West 
Building at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.

DATES: These amendments to the May 2008 order are effective immediately 
upon publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: James W. Tegtmeier, Associate Chief 
Counsel for the Air Traffic Organization; telephone--(202) 267-8323; e-
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 5, 2009, the FAA published a notice that invited comments 
on its proposal to extend the May 2008 order limiting scheduled 
operations at EWR.\2\ At the time, the May 2008 order was scheduled to 
expire on October 24, 2009. For the reasons described in the notice, it 
was unrealistic to expect a long-term rule to take effect and control 
the significant congestion-related delays that the FAA anticipated 
would occur at EWR if the May 2008 order were to expire as originally 
scheduled. Given the uncertainty over when a final rule would take 
effect and the impending expiration of the May 2008 order, the FAA 
proposed to extend the May 2008 order for approximately one year.
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    \2\ 74 FR 27,060.
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    The FAA expected the one-year extension of the May 2008 order to 
serve as at least a partial bridge to the implementation of a long-term 
measure to control congestion and related delays at EWR. The FAA 
received written submissions on the proposal from seven commenters. The 
commenters include four scheduled carriers, two industry organizations, 
and the airport operator.

II. Summary and Analysis of the Comments

A. Amended Duration

    Five of the seven commenters express support for an extension of 
the May 2008 order to prevent a return of the congestion-related delays 
that passengers previously experienced at EWR. Although the FAA 
proposed an

[[Page 51649]]

extension of about one year, two of the commenters state that an 
extension of longer than one year is appropriate. These commenters 
assert that one year is not sufficient time to finalize and to 
implement a new rule to manage congestion at the airport.
    The FAA proposed a one-year extension of the May 2008 order because 
the FAA never intended the order to serve as a long-term solution to 
congestion at EWR. From this perspective, using the minimum number of 
short-term extensions would offer the benefit of regular and public 
status reports on where the FAA stands in establishing a longer-term 
solution to overscheduling at EWR. As the commenters note, however, 
such short-term extensions may not best facilitate the long-term 
planning of some carriers that conduct, or hope to conduct, service at 
the airport. Accordingly, while the FAA does not agree that an 
indefinite extension is appropriate, the FAA will increase the duration 
of the present extension to about two years to accommodate carriers' 
longer term planning. The May 2008 order will now expire on October 29, 
2011. The reporting deadlines for carriers to return Operating 
Authorizations for all or part of a scheduling season in paragraph 
9.b.i. are also amended to reflect the longer duration of the order.

B. Buy and Sell Authority

    In light of the increased duration of the May 2008 order, four 
commenters question the ban on the purchase, sale, or long-term lease 
of the Operating Authorizations held by virtue of the original order. 
The commenters reason that the FAA included the ban as a result of the 
May 2008 order's short duration. The commenters perceive that extending 
the order increases the importance of a market mechanism that permits 
the sale and purchase of operating authority, which would facilitate 
competition and new entry, as well as leases for such authority that 
extend beyond the order's expiration date.
    The FAA included in the May 2008 order the ability of carriers to 
trade or to lease Operating Authorizations to other carriers; however, 
the duration of the trade or lease could not exceed the duration of the 
order.\3\ The commenters claim that relying on short-term trades and 
leases alone may become limiting as the May 2008 order remains 
effective over a significantly longer term. The proposed extension of 
the May 2008 order, however, specifically limited the comments to the 
proposed extension.\4\ The FAA intends to address long-term transfers 
of Operating Authorizations at some point in the future.
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    \3\ 73 FR at 29,554 (ordering paragraphs seven and eight).
    \4\ 74 FR at 27,061 (``any submission to the current docket 
should be limited to the proposed extension of the May 2008 
order'').
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C. New Entrant and Limited Incumbent Opportunities

    One carrier, Virgin America, Inc., observes that the May 2008 order 
originally provided limited opportunities for new entrant and limited 
incumbent carriers to initiate or to augment their scheduled operations 
at EWR. Virgin America offers that any extension of the order should 
include enhancements that could increase service at the airport from 
new entrant and limited incumbent carriers.
    Virgin America is correct in noting that the extension of the May 
2008 order merits a revisitation of the opportunities that are 
available at EWR for new entrant and limited incumbent carriers.\5\ 
There are currently several avenues for carriers to conduct scheduled 
service, to acquire Operating Authorizations, or to adjust the timing 
of their Operating Authorizations at EWR. First, the May 2008 order is 
effective daily from 6 a.m. until 10:59 p.m., local time, and carriers 
can schedule additional operations during the hours that the May 2008 
order is not in effect. Second, subject to FAA written approval, a 
carrier can request a new Operating Authorization or a shift of an 
existing Operating Authorization in any half hour that the order is in 
effect. Third, all carriers have the opportunity to lease or trade 
Operating Authorizations for any period not exceeding the duration of 
the May 2008 order. Fourth, in the event that there is new capacity at 
EWR while the May 2008 order remains in effect, the order provides a 
mechanism under which carriers can bid on a leasehold interest in the 
new operations.
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    \5\ 73 FR at 29,551, 29,553-54.
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    After the May 2008 order took effect, Congress enacted the Omnibus 
Appropriations Act of 2009. In part, this statute precluded the use of 
appropriated funds to take any action involving the scheduling of 
airline operations if the action also involves the auctioning of 
permission to conduct airline operations at an airport.\6\ Because this 
language could be construed to preclude the FAA from eliciting bids 
from carriers to acquire a leasehold interest in newly available 
capacity, which is listed as the fourth alternative in the preceding 
paragraph, the FAA is withdrawing that provision, effective 
immediately.
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    \6\ Omnibus Appropriations Act, 2009, Pub. L. 111-8, section 5, 
div. I, tit. I, section 115, 123 Stat. 524, 921-22.
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    Accordingly, the ordering paragraphs of the May 2008 order are 
hereby amended as follows:
    1. This Order assigns operating authority to conduct an arrival or 
a departure at EWR 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:
    a. All U.S. air carriers and foreign air carriers conducting 
scheduled operations at EWR 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 a carrier, and any air carrier or foreign-flag carrier 
that has or enters into a codeshare agreement with such a carrier.
    b. All U.S. air carriers or foreign air carriers initiating 
scheduled or regularly conducted commercial service to EWR 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 decisionmaker for 
determinations under this Order.
    2. This Order governs scheduled arrivals and departures at EWR from 
6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
    3. This Order takes effect at 6 a.m., Eastern Time, on June 20, 
2008, and expires at 11:59 p.m., Eastern Time, on October 29, 2011.
    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 carrier or foreign air carrier initiating or 
conducting scheduled or regularly conducted commercial service at EWR 
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

[[Page 51650]]

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. For the duration of this order, a carrier may enter into a lease 
or trade of an Operating Authorization to another carrier for any 
consideration. Notice of a trade or lease under this paragraph must 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 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. The FAA's approval of a 
trade or lease does not constitute a commitment by the FAA to grant the 
associated historical rights to any operator in the event that slot 
controls continue at EWR after this order expires.
    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 period 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 and for each Operating 
Authorization, along with a listing of the Operating Authorizations 
and:
    i. The dates within each applicable season on which it intends to 
commence and to cease scheduled operations.
    A. For each winter scheduling season, the report must be received 
by the FAA no later than August 15 during the preceding summer.
    B. For each summer scheduling season, the report must be received 
by the FAA no later than January 15 during the preceding winter.
    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. A final report of 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 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 an involuntary reduction in the 
number of allocated Operating Authorizations is required to meet 
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 EWR.
    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 or on application by any carrier for good cause shown.

    Issued in Washington, DC, on October 1, 2009.
J. Randolph Babbitt,
Administrator, Federal Aviation Administration.
[FR Doc. E9-24118 Filed 10-2-09; 11:15 am]
BILLING CODE 4910-13-P