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###### Department of Transportation

###### Federal Aviation Administration 

          - [Docket No. FAA-2006-25755] 

# AGENCY:

Federal Aviation Administration (FAA), DOT. 

# ACTION:

Proposed amendments and request for comments. 

# SUMMARY:

The Federal Aviation Administration (FAA) has tentatively determined that it will be necessary to amend the December 12, 2006, order that places temporary limitations on flight operations at New York's LaGuardia Airport (LaGuardia). 

# FOR FURTHER INFORMATION CONTACT:

                        Komal Jain, Regulations Division, Office of the Chief Counsel; Telephone: (202) 267-3073; E-mail:                         *komal.jain@faa.gov*.                     

# SUPPLEMENTARY INFORMATION: 

## Proposed Amendments to Order 

The Federal Aviation Administration (FAA) proposes to modify its December 12, 2006, order (the Order) that temporarily limits flight operations at New York's LaGuardia Airport (LaGuardia), pending its promulgation of a long-term regulation to manage congestion at the airport. We propose to (1) provide an approval process for Operating Authorization (OA) transfers for day-of carrier substitutions; (2) amend provisions affecting the 80 percent minimum-use requirement by adding a waiver for holiday periods and providing the Administrator greater discretion to suspend the requirement under certain conditions; and (3) provide a mechanism for withdrawal of OAs for FAA operational reasons. These proposed amendments would not affect unscheduled operations. 

The FAA invites air carriers and other interested persons to submit written comments on this proposal by no later than September 6, 2007 in Docket FAA-2006-25755. We will give full consideration to comments received before we issue a final modification to the Order. You may send comments using any of the following methods: 

*DOT Docket Web Site:*                     Go to                     *http://dms.dot.gov*                     and follow the instructions for sending your comments electronically.                 

*Mail:*                     U.S. Department of Transportation, Docket Operations, M-30, Room W12-140, 1200 New Jersey Ave., SE., Washington, DC 20590.                 

*Fax:*                     (202) 493-2251.                 

*Hand Delivery:*                     West Building, Ground Floor, Room W12-140, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590 between 9 a.m. and 5 p.m., Monday through Friday, except for Federal holidays.                 

## I. Background 

                    Due to LaGuardia's limited runway capacity, the airport cannot accommodate the number of flights that airlines would like to operate without causing significant congestion. The FAA has long limited the number of arrivals and departures at LaGuardia during peak demand periods through the promulgation and implementation of the High Density Rule (HDR).[1]                                          By statute enacted in April 2000, the HDR's applicability to LaGuardia operations terminated as of January 1, 2007.[2]                                          On August 29, 2006, the FAA published a notice of proposed rulemaking (NPRM) in anticipation of the HDR's expiration (71 FR 51360). In the NPRM, the agency proposed another congestion management program for LaGuardia, which, among other things, proposed to continue to limit the number of scheduled and unscheduled operations at LaGuardia. Because the rulemaking was not completed before January 1, 2007, the FAA, after notice and comment, adopted interim operational limitations on LaGuardia flights through the Order (71 FR 77854; Dec. 27, 2006). Without the limits contained in the Order, the FAA projected that severe congestion-related delays would occur as a result of excessive demand at LaGuardia, leading to delays both at LaGuardia and at other airports throughout the National Airspace System (NAS).                 

When the FAA issued the Order, we (1) maintained hourly limits at 75 scheduled and six unscheduled operations at LaGuardia from 6 a.m. through 9:59 p.m., Eastern time, Monday through Friday, and from noon through 9:59 p.m., Eastern time on Sundays; (2) imposed an 80 percent minimum usage requirement for OAs; (3) provided for a lottery to reallocate withdrawn, surrendered or unallocated OAs; and (4) allowed for trades and leases of OAs for consideration for the duration of the Order. 

## II. Proposed Amendments 

The Order, which took effect on January 1, 2007, is a temporary measure while the FAA completes its final rule (Rule) to manage congestion at LaGuardia. The agency is in the process of reviewing comments received on the NPRM, but the review is not complete. Until the Rule becomes effective, we propose several amendments to the Order to improve the administration of the congestion management program at LaGuardia. 

The FAA's authority to limit the number of flight operations at LaGuardia is an essential component of the FAA's statutory responsibilities. The FAA holds broad authority under 49 U.S.C. 40103(b) to regulate the use of the navigable airspace of the United States. This provision authorizes the FAA to develop plans and policy for the use of navigable airspace and, by order or rule, to regulate the use of the airspace as necessary to ensure its efficient use. 

### Secondary Market: Approval Process 

Some air carriers with affiliated or regional carrier flights expressed concerns about the burden associated with obtaining prior approval from the FAA for OA transfers when making day-of carrier substitutions. Due to the around-the-clock nature of an airline's operations, and the real-time nature of operational logistics, it is not unusual for an air carrier to make day-of flight service substitutions from one carrier to another. The FAA recognizes that advance approval of an OA transfer is not always possible, in part because the FAA Slot Administration Office is not open 24 hours a day. Therefore, we propose to amend the Order to permit a transfer request to be submitted for FAA approval up to 72-hours after the actual operation. In order to support the request for the post-transfer approval, the FAA would require flight information, including flight number, origin, destination and scheduled time of operation. 

                    The FAA is not prepared to eliminate entirely the requirement that we receive advance notice of OA transfers. The initial scheduling decisions are normally made with sufficient time to obtain the requisite approval, even in the case of common ownership and affiliated carriers. The FAA proposes to limit post-transaction approvals to unplanned, day-of operational schedule changes between commonly owned or affiliated carriers under the same marketing control, and we are seeking                           ( print page 44215)                        comment on whether the transfer provisions should be revised to recognize these operational issues and whether the procedure outlined meets carrier needs.                 

### Minimum Usage Requirements and Waivers 

#### Holiday Waiver 

                    On January 9, 2007, the Air Transport Association (ATA) submitted a petition for an amendment to the Order related to the minimum usage requirement.[3]                                          ATA noted that the Order contains no provision to address the “predictable drop-off in operations on and immediately after certain holidays.” By contrast, ATA noted that the HDR and the governing rules for O'Hare state “the FAA will treat as used any slot held by a carrier at a High Density Traffic Airport on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.”                 

ATA is correct in its conclusion that the FAA inadvertently omitted a holiday waiver provision under the Order. The FAA proposes to correct that omission and include a holiday waiver under this proposed amendment. 

#### Start-up Waiver 

The FAA recognizes that carriers obtaining an OA in a lottery would require time prior to its use to market the flights and arrange for aircraft, crew, gate, and terminal availability. Most carriers have indicated in past proceedings for LaGuardia that 120 days provides sufficient planning time. Therefore, the FAA proposes to adopt a waiver of the minimum usage requirements for 120 days after an OA is allocated in a lottery. A similar start-up waiver is not warranted when an OA is leased or transferred because carriers should consider the usage requirements in their discussions. 

#### Administrator's Waiver Authority 

                    Under the Order, the FAA Administrator can “waive the 80 percent usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which exists for a period of 5 consecutive days or more.” We propose the Administrator be given greater discretion to issue a waiver if the                     *impact*                     of a particular event is five consecutive days versus the duration of the event existing for more than five days. This recognizes that carrier operations may require several days to return to normal after significant disruptions to service; for example, aircraft and crew may need to be repositioned. We believe this proposed amendment allows carriers and the FAA, in its administration of the congestion management program at LaGuardia, greater latitude and flexibility to deal with unpredictable conditions; while still maintaining the integrity and purpose of the usage requirement.                 

### Reversion and Withdrawal of Operating Authorizations 

As the FAA has indicated in various proceedings related to capacity-constrained airports, operating authority is subject to absolute FAA control. The FAA may reduce flight operations at an airport in order to meet operational needs or to recognize reductions in available airport capacity. The Order currently does not provide a process for the FAA to reduce the number of OAs should that become necessary. The FAA proposes to use a weighted lottery system if we determine that OAs need to be withdrawn or temporarily suspended. 

Under this weighted lottery proposal, all air carriers holding OAs at the airport would be included. The FAA will use weights when establishing the air carrier rank order for OA selections. For example, if an air carrier has a weight equal to seven, the carrier's name will be placed seven times in a random draw. Once we have completed this process for all lottery participants, a representative of the FAA will begin drawing names. Although there is a possibility that any air carrier participating in the lottery could be chosen first in the rank order, carriers with greater operations at LaGuardia would have higher odds of being selected. Using a random drawing to establish a carrier rank order, carriers would relinquish two OAs in each sequence until the FAA's reduced level of operations by half-hour or hour, as appropriate, has been achieved. Withdrawal would not be made from any carrier if the result would reduce its holdings below 20 OAs on any weekday. For these purposes, the FAA would consider commonly owned and affiliated carriers to be single air carriers. The FAA would provide at least 45 days' notice unless otherwise required by operational needs. Any OA that is withdrawn or temporarily suspended would, if reallocated, be reallocated to the carrier from which it was taken, provided that the carrier continues to operate scheduled service at LaGuardia. 

## III. Proposed Amendment to the Order 

### A. Scheduled Operations 

With respect to scheduled operations at LaGuardia, the FAA proposes the following amendments to ordering paragraphs: 

                    5. An air carrier can lease or trade an Operating Authorization to another carrier for any consideration, not to exceed the duration of the Order. Notice of a trade or lease under this paragraph would be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or e-mail                     *7-AWA-Slotadmin@faa.gov*, 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 would approve transfers between carriers under the same marketing control up to 72-hours after the actual operation. This post-transfer approval would be limited to accommodate operational disruptions that occur on the same day of the scheduled operation.                 

6. Each air carrier holding an Operating Authorization would 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 would be withdrawn by the FAA except: 

The FAA would 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. 

The FAA would treat as used any Operating Authorization obtained by an air carrier through a lottery under paragraph 7 for the first 120 days after allocation in the lottery. 

The Administrator of the FAA could 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. 

                    [                    *The following paragraph would be inserted as ordering paragraph 8, and existing paragraph 8 would be renumbered as ordering paragraph 9*].                 

                    8. If the FAA determines that a reduction in the number of allocated Operating Authorizations is required to                           ( print page 44216)                        meet operational needs, such as reduced airport capacity, the FAA would conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. Withdrawal would not be made from any air carrier if the result would reduce their holdings below 20 Operating Authorizations on any weekday. The FAA would provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended would, 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.                 

## IV. Request for Comments 

The FAA invites all interested persons to submit written comments on the proposals described in this Order by filing their written views in Docket FAA-2006-25755 on or before September 6, 2007. 

Issued in Washington, DC on August 2, 2007. 

Kerry B. Long, 

Chief Counsel. 

# Footnotes

1.                                                     *See*49 CFR part 93, subpart K.                    
        Back to Citation      

2.                             Aviation Investment and Reform Act for the 21st Century (AIR-21), Pub. L. 106-181 (April 5, 2000), 49 U.S.C. 41715(a)(2).                    
        Back to Citation      

3.                             See Docket FAA-2006-25755.                    
        Back to Citation      

[FR Doc. 07-3855 Filed 8-2-07; 4:30 pm] 

BILLING CODE 4910-13-P