[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Rules and Regulations]
[Pages 52134-52136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24235]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2008-0517; Notice No. 93-93]
RIN 2120-AJ48


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

AGENCY: Federal Aviation Administration (FAA).

ACTION: Final rule; rescission.

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SUMMARY: The FAA is rescinding 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 for scheduled 
services 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, requiring 
reservations for unscheduled operations, and withdrawal for operational 
need. The rule was scheduled to sunset in ten years.

DATES: Effective Date: October 9, 2009.

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: 

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 directs the FAA to prescribe 
air traffic rules and regulations governing the efficient utilization 
of thenavigable 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) 
(2008 final rule). The 2008 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 slot usage, withdrawal of slots for 
operational need, and requiring reservations for unscheduled 
operations. The rule was scheduled to sunset in ten years and added to 
the Code of Federal Regulations December 9, 2008. The rulemaking was 
highly controversial. The final rule was challenged by several parties 
before it could take effect. On December 8, 2008, the United States 
Court of Appeals for the District of Columbia Circuit stayed the rule. 
On January 22, 2009, the ATA requested the Secretary of Transportation, 
Ray LaHood, withdraw the final rule in light of the court's stay. While 
the regulations were incorporated into the Code of Federal Regulations, 
due to the courts ruling, they had no force and effect.
    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 prohibits the Secretary of Transportation from promulgating 
regulations or taking any action regarding the scheduling of airline 
operations that involve auctioning rights or permission to conduct 
airline operations at such an airport or withdrawing a right or 
permission to conduct operations at such an airport (except when the 
withdrawal is for operational reasons or pursuant to the

[[Page 52135]]

terms or conditions of such operating right or permission). The 
prohibition is limited to this fiscal year.
    At present, both airports remain limited 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)).
    On May 14, 2009 the FAA published a notice proposing to rescind the 
2008 final rule citing the impact of the Omnibus Appropriations Act on 
the rule and the state of the economy in general. The comment period 
closed June 15, 2009. The FAA received six sets of comments, all of 
which supported rescission of the rule.
    For the reasons stated in the NPRM, the FAA has decided to rescind 
the 2008 final rule effective immediately. The FAA has determined that 
good cause exists for implementing this rule immediately. As discussed 
above, the rule has been stayed by court action and has not been 
implemented. Accordingly, no further action is required by the 
regulated parties and delaying the effective date serves no useful 
purpose. The agency will consider its options with regard to managing 
congestion at the airport in ways that provide a means for carriers 
either to commence or expand operations at the airport in future 
rulemaking.
    In order to prevent over-scheduling at JFK and Newark while the 
agency considers alternative congestion management options the FAA has 
published orders to show cause proposing to extend the existing orders 
until October 2010. 74 FR 27059 (June 5, 2009); 74 FR 27060 (June 5, 
2009).

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 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 2008 final rule. The agency has determined the rescission does not 
require any further economic analysis. Practically speaking, due to the 
rescission, the status quo remains in effect, and neither costs nor 
benefits anticipated by the final rule will accrue. Likewise, the 
paperwork burden anticipated under the rule will not be imposed on any 
parties. The FAA has already determined that the rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act. Rescission of the 2008 final rule 
likewise imposes no such burden. As the rescission of the 2008 final 
rule does not impose any standard on any party, the FAA has assessed 
the potential effect of this rescission and determined that it will 
impose no costs on international entities and thus have a no trade 
impact. Nor will 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 rescission of the 2008 final rule is a ``significant regulatory 
action'' under Executive Order 12866 and is ``significant'' as defined 
in DOT's Regulatory Policies and Procedures. Accordingly, it has been 
reviewed by DOT and OMB.

Executive Order 13132, Federalism

    The FAA has analyzed this rescission under the principles and 
criteria of Executive Order 13132, Federalism. We have determined that 
this action will 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, does 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 2008 
final rule also qualifies for a categorical exclusion since it will 
have no impact on the environment.

Regulations That Significantly Affect Energy Supply, Distribution, or 
Use

    The FAA has analyzed this rescission 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 the executive order 
because while a ``significant regulatory action'' under Executive Order 
12866, it is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy.

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.

[[Page 52136]]

    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 
resission from the 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 Amendment

0
In consideration of the foregoing, the Federal Aviation Administration 
amends Chapter I of Title 14, Code of Federal Regulations, as follows:

PART 93--SPECIAL AIR TRAFFIC RULES

0
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]

0
2. Remove and reserve Subpart N of Part 93.

    Issued in Washington, DC, on October 1, 2009.
J. Randolph Babbitt,
Administrator.
[FR Doc. E9-24235 Filed 10-8-09; 8:45 am]
BILLING CODE 4910-13-P