Order: 2012

- 9

- 20 Served: September 17 , 2012

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 1 7 th day of September

, 2012

Docket OST

- 1999

- 6240

ORDER

SUMMARY

By this Order , the Department dismisses as moot the July 18, 2012, request of Re public

Airline Inc. ( Republic ) to amend the exemption authority granted in Order 1999

- 11

- 4 to

include Omaha

, in addition to Milwaukee

, as a designated destination for two slot s at Ronald Reagan Washington National Airport (Reagan National or DCA)

. Instead

, the Department will process Republic’s subsequent August 24 request

, in which it seeks to amend the same authority to replace Milwaukee altogether by changing the designated

destination for one slot to Omaha and one slot to Madison , Wisconsin.

BACKGRO UND

On Ju ly 18 , 2012, Republic requested that the Department amend existing exemption authority to include Omaha as an eligible designated destination for slots #4126/1236 and #4124/1087, subject to its assessment of market conditions. The exemption had originally been granted to Midwest Express Airlines in Order 1999

- 11

- 4, allowing the carrier to slide two 2100 slots at DCA to the 1400 and 1500 slot hours, respectively, for

service to Milwaukee. After its acquisition of Midwest Express, Republic has mai ntained

that service under its Frontier Airlines brand. Republic stated that the flexibility it would gain by including Omaha as an added designation would enable the carrier to use its limited DCA slots more efficiently and allow the air carrier to provi de services better aligned to market demand.

On August 24, Republic filed to amend its July 18 request by changing the designated destination for slot #4126/1236 to Madison and retiming slot #4126/1236 to 2000. Application of

REPUBLIC AIRLINE INC.

For an exemption from 14 CFR Part 93, pursuant

to 49 U.S.C. § 41714(d)2

Republic also requested a change the design ated destination for slot #4124/1087 to

Omaha and to retime the associated slot to 1900.

The Department is authorized by law to grant such requests, and it has in the past made such grants to carriers , upon determining that the requisite statutory condi tions are met

. Under 49 U.S.C. Section 41714(d) the Department may, under circumstances that it finds to be exceptional, grant an exemption to an air carrier that holds or operates a slot at Reagan National to enable it to move or “slide” the operating ti mes of a slot to a different time. Such exemptions are limited and must meet explicit conditions. Under Section 41714(d)(1), an exemption may not be granted if it would (A) result in an increase in the total number of slots per day at Reagan National; (B ) result in an increase in the total number of slots at Reagan National from 0700 to 2159; (C) increase the number of operations at Reagan National in any one

- hour period by more than two operations; (D) result in the withdrawal or reduction of slots opera ted by an air carrier; or (E) result in a net increase in noise impact on surrounding communities resulting from changes in timing of the exempted operations.

The Department’s processing of a request to amend exemption authority is subject to a 60

- day a pplication process under Section 41714(i) , such that if the Secretary neither approves nor denies such a request within the 60

- day period, excepting any days during

which the 60

- day period is tolled due to a timely request for more information , then the

re quest is deemed to have been approved on the 61 st day after the request was filed with the Secretary. A request must include the names of the airports to be served, the times requested, and other information as the Secretary may require. Accordingly, und er Section 41714(i), the 60

- day statutory period for Republic’s July 18 request would expire September 17, and that for Republic’s August 24 request would expire October 23.

The Department ’ s Rules of Practice in Proceedings provide for answers to applicat ions for exemption authority be filed within 15 days after the filing of an application and for the filing of replies to answers within seven days after the filing date of an answer . 14

CFR Sections 302.307

- 308.

APPLICATION

In its amended application of August 24

, Republic claims that subsequent to its July 18
request , it finalized its DCA schedules for the upcoming winter season, necessitating an amended request to reflect the schedule changes. Republic asserts that it s request complies with all of t he conditions of 49 U.S.C. Section 41714(d)(1) (A

- E), and i s consistent with the public interest and Department policy. Also, Republic contends that it is in compliance with the statute’s requirement that the grant of slot slide requests must

be under exc eptional circumstances.3

RESPONSIVE PLEADINGS

No answers to the July 18 request were filed.

DISCUSSION

Republic’s August 24 request effectively supersedes and moots its July 18 request . In its July 18 request , Republic contend ed that approval of the requested slot slide would enable Republic to bolster Omaha service to meet market demand and would allow it to operate a third conveniently

- timed nonstop roundtrip between Omaha and DCA “to meet the vitally important and continuing service needs of Ne braska and western Iowa.” Republic added that as the designated carrier between DCA and Omaha for GSA’s City

Pair Program, the third daily service would offer government employees greater low

- fare service options between the two points.

In its August 24 request , Republic states that it will have only one slot available for

service to Omaha and that it needs a slide to the 1900 hour to allow for it to maintain a single roundtrip between DCA and Omaha. Without the slide, Republic maintains that

Omaha would lose it s only competitive nonstop service to DCA. In contrast to its initial motion, Republic’s August 24 Amendment includes Madison as a new designation. Republic claims that

, beginning on October 28, 2012, it will have only one slot available

for Madi son and requires a slide from 1500 to 2000 at DCA in order to maintain a single roundtrip to Madison. Further, the July 18 request would give Republic the flexibility to continue service to Milwaukee, while the August 24 a mendment offers no such option.

Because Republic’s August 24 request specifies new airports to be served with the slot exemptions (Omaha and Madison vs. Milwaukee/Omaha)

, it effectively is a new request

, mooting its earlier July 18 request

. In these circumstances , we have cause to dis miss the July 18 request.

In addition

, as a procedural matter, t he Department must provide parties with an opportunity to file answers to the August 24 request and to file replies to any answers received

. While the Department appreciates Republic’s de sire that we expeditiously process the requested amendments, doing so within the 60

- day timeframe of the initial
request may prejudice the rights of other parties to file answers to the August 24 request and replies to the answers . As indicated above , the Department’s Rules of Practice

authorize interested persons to file answers to exemption requests within 15 days

— in the

case of the August 24 request , by September 10

— and replies to such answers must be filed within seven days

— by September 17

— the same dat e as the Department’s decision

would be issued under the initial timeline

.

W e have therefore decided to dismiss without prejudice Republic’s July 18 request and to process its August 24 request under 49 U.S.C. Sections 41714(d) and (i).4

ACCORDINGLY

,

1. The Department dismisses without prejudice Republic’s initial request of July 18, 2012, for an amendment to its exemption authority from 14 CFR Part 93 under 49 U.S.C.

Section 4171 4 (d);

2. The Department will process on Republic’s request of August 24 , 2012 for an amendment to its exemption authority from 14 CFR Part 93 under 49 U.S.C. Section 41714(d) ;

3. Under that processing schedule, a nswers to Republic’s August 24 request we re due September 10 and replies to answers filed are due September 17; and

4

. We shall serve a copy of this Order on the parties in this docket.

By:

SUSAN L. KURLAND Assistant Secretary for Aviation

and International Affairs

(SEAL)

An electronic version of this document will be made available on the World Wide Web at: http://dms.dot.gov/