[Federal Register Volume 74, Number 193 (Wednesday, October 7, 2009)]
[Notices]
[Pages 51653-51655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24120]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2006-25755]


Operating Limitations at LaGuardia Airport

ACTION: Notice of Order Extending the Limitations on Operations at 
LaGuardia Airport.

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SUMMARY: The FAA is amending the December 13, 2006, order limiting the 
number of operations at LaGuardia Airport (LGA) during peak operating 
hours, as amended (December 2006 order).\1\ The current amendment 
extends the December 2006 order by approximately two years, through 
October 29, 2011.
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    \1\ Operating Limitations at New York LaGuardia Airport, 71 FR 
77,854 (Dec. 27, 2006); 72 FR 63,224 (Nov. 8, 2007) ( transfer, 
minimum usage, and withdrawal amendments); 72 FR 48,428 (Aug. 19, 
2008) (reducing the reservations available for unscheduled 
operations); 74 FR 845 (Jan. 8, 2009) (extending the expiration date 
of the December 2006 order until October 24, 2009); 74 FR 2,646 
(Jan. 15, 2009) (reducing the peak-hour cap on scheduled operations 
to 71).
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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 December 2006 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 17, 2009, the FAA published a notice that invited comments 
on its proposal to extend the December 2006 order limiting operations 
at LGA.\2\ At the time, the December 2006 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 LGA if the December 2006 order were to expire as originally 
scheduled. Given the current uncertainty over when a final rule would 
take effect and the impending expiration of the December 2006 order, 
the FAA proposed to extend the December 2006 order for approximately 
one year.
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    \2\ 74 FR 28,772.
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    The FAA expected the one-year extension to serve as at least a 
partial bridge to the implementation of a long-term measure to control 
congestion and related delays at LGA. The FAA received written 
submissions on the proposal from five commenters. The commenters 
include two scheduled carriers, two industry organizations, and the 
airport operator.

II. Summary and Analysis of the Comments

A. Amended Duration

    Four of the five commenters express support for an extension of the 
December 2006 order to prevent a return of the congestion-related 
delays that passengers previously experienced at LGA. Although the FAA 
proposed an 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 December 2006 order 
because the FAA never intended the order to serve as a long-term 
solution to congestion at LGA. 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 LGA. 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 December 2006 order will now expire 
on October 29, 2011.

B. Buy and Sell Authority

    In light of the increased duration of the December 2006 order, 
three 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 December 2006 order's intended 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 December 2006 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 December 2006 
order remains effective over a significantly longer term. The proposed 
extension of the December 2006 order, however, specifically limited the 
comments to the proposed extension.\4\ The FAA intends

[[Page 51654]]

to address long-term transfers of Operating Authorizations at some 
point in the future.
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    \3\ 72 FR at 63,227 (ordering paragraph five).
    \4\ 74 FR at 28,774 (``any submission to the current docket 
should be limited to the proposed extension of the December 2006 
order'').
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    Accordingly, the ordering paragraphs of the December 2006 order are 
hereby amended as follows:
A. Scheduled Operations
    With respect to scheduled operations at LaGuardia:
    1. The final Order governs scheduled arrivals and departures, 
except helicopters, at LaGuardia from 6 a.m. through 9:59 p.m., Eastern 
Time, Monday through Friday, and from 12 noon through 9:59 p.m., 
Eastern Time, Sunday. Seventy-one (71) Operating Authorizations are 
available per hour and will be assigned by the FAA on a 30-minute 
basis. The FAA will permit additional, existing operations above this 
threshold; however, the FAA will retire Operating Authorizations that 
are surrendered to the FAA, withdrawn for non-use, or unassigned during 
each affected hour until the number of Operating Authorizations in that 
hour reaches seventy-one (71).
    2. The final Order takes effect on January 1, 2007, and will expire 
on October 29, 2011.
    3. The FAA will assign operating authority to conduct an arrival or 
a departure at LaGuardia during the affected hours to the air carrier 
that holds equivalent slot or slot exemption authority under the High 
Density Rule or FAA slot exemption rules as of January 1, 2007; to the 
primary marketing air carrier in the case of AIR-21 small hub/nonhub 
airport slot exemptions; or to the air carrier operating the flights as 
of January 1, 2007, in the case of a slot held by a non-carrier. The 
FAA will not assign operating authority under the final Order to any 
person or entity other than a certificated U.S. or foreign air carrier 
with appropriate economic authority under 14 CFR part 121, 129, or 135. 
The Chief Counsel of the FAA will be the final decisionmaker regarding 
the initial assignment of Operating Authorizations.
    4. For administrative tracking purposes only, the FAA will assign 
an identification number to each Operating Authorization.
    5. For the duration of this order, an air 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. However, the FAA will approve transfers between 
carriers under the same marketing control up to five business days 
after the actual operation. This post-transfer approval is limited 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 LGA 
after the order expires.
    6. Each air 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 actually operated for each day of the two-
month reporting period within 14 days after the last day of the two-
month reporting period beginning January 1 and every two months 
thereafter. Any Operating Authorization not used at least 80 percent of 
the time over a two-month period will be withdrawn by the FAA except:
    a. The FAA will treat as used any Operating Authorization held by 
an air carrier on Thanksgiving Day, the Friday following Thanksgiving 
Day, and the period from December 24 through the first Saturday in 
January.
    b. The FAA will treat as used any Operating Authorization obtained 
by an air carrier through a lottery under paragraph seven for the first 
120 days after allocation in the lottery.
    c. The Administrator of the FAA may waive the 80 percent usage 
requirement in the event of a highly unusual and unpredictable 
condition which is beyond the control of the air carrier and which 
affects carrier operations for a period of five consecutive days or 
more.
    7. In the event that Operating Authorizations are withdrawn for 
nonuse, surrendered to the FAA, or are unassigned, the FAA will 
determine whether any of the available Operating Authorizations should 
be reallocated. If so, the FAA will conduct a lottery using the 
provisions specified under 14 CFR 93.225. The FAA may retime an 
Operating Authorization prior to reallocation in order to address 
operational needs. When the final Order expires, any Operating 
Authorizations reassigned under this paragraph, except those assigned 
to new entrants or limited incumbents, will revert to the FAA for 
reallocation according to the reallocation mechanism prescribed in the 
final rule that succeeds the final Order.
    8. 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 air 
carrier from which it was taken, provided that the air carrier 
continues to operate scheduled service at LaGuardia.
    9. The FAA will enforce the final Order through an enforcement 
action seeking a civil penalty under 49 U.S.C. 46301(a). An air carrier 
that is not a small business as defined in the Small Business Act, 15 
U.S.C. 632, would be liable for a civil penalty of up to $25,000 for 
every day that it violates the limits set forth in the final Order. An 
air carrier that is a small business as defined in the Small Business 
Act would be liable for a civil penalty of up to $10,000 for every day 
that it violates the limits set forth in the final 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 the final Order.

B. Unscheduled Operations \5\
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    \5\ Unscheduled operations are operations other than those 
regularly conducted by an air carrier between LaGuardia and another 
service point. Unscheduled operations include general aviation, 
public aircraft, military, charter, ferry, and positioning flights. 
Helicopter operations are excluded from the reservation requirement. 
Reservations for unscheduled flights operating under visual flight 
rules (VFR) are granted when the aircraft receives clearance from 
air traffic control to land at or depart LaGuardia. Reservations for 
unscheduled VFR flights are not included in the limits for 
unscheduled operators.
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    With respect to unscheduled flight operations at LaGuardia, the FAA 
adopts the following:
    1. The final Order applies to all operators of unscheduled flights, 
except helicopter operations, at LaGuardia from 6 a.m. through 9:59 
p.m., Eastern Time, Monday through Friday and from 12 noon through 9:59 
p.m., Eastern Time, Sunday.
    2. The final Order takes effect on January 1, 2007, and will expire 
on October 29, 2011.
    3. No person may operate an aircraft other than a helicopter to or 
from LaGuardia unless the operator has received, for that unscheduled 
operation, a reservation that is assigned

[[Page 51655]]

by the David J. Hurley Air Traffic Control System Command Center's 
Airport Reservation Office (ARO). Additional information on procedures 
for obtaining a reservation will be available via the Internet at 
http://www.fly.faa.gov/ecvrs.
    4. Three (3) reservations are available per hour for unscheduled 
operations at LaGuardia. The ARO will assign reservations on a 30-
minute basis.
    5. The ARO receives and processes all reservation requests. 
Reservations are assigned on a ``first-come, first-served'' basis, 
determined as of the time that the ARO receives the request. A 
cancellation of any reservation that will not be used as assigned is 
required.
    6. Filing a request for a reservation does not constitute the 
filing of an instrument flight rules (IFR) flight plan, as separately 
required by regulation. After the reservation is obtained, an IFR 
flight plan can be filed. The IFR flight plan must include the 
reservation number in the ``remarks'' section.
    7. Air Traffic Control will accommodate declared emergencies 
without regard to reservations. Nonemergency flights in direct support 
of national security, law enforcement, military aircraft operations, or 
public use aircraft operations will be accommodated above the 
reservation limits with the prior approval of the Vice President, 
System Operations Services, Air Traffic Organization. Procedures for 
obtaining the appropriate reservation for such flights are available 
via the Internet at http://www.fly.faa.gov/ecvrs.
    8. Notwithstanding the limits in paragraph four, if the Air Traffic 
Organization determines that air traffic control, weather, and capacity 
conditions are favorable and significant delay is not likely, the FAA 
can accommodate additional reservations over a specified period. Unused 
Operating Authorizations can also be temporarily made available for 
unscheduled operations. Reservations for additional operations are 
obtained through the ARO.
    9. Reservations cannot be bought, sold, or leased.

    Issued in Washington, DC, on October 1, 2009.
J. Randolph Babbitt,
Administrator, Federal Aviation Administration.
[FR Doc. E9-24120 Filed 10-2-09; 11:15 am]
BILLING CODE 4910-13-P