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[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Notices]
[Pages 18618-18620]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7845]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2008-0221]

Operating Limitations at Newark Liberty International Airport

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Extension to Order.

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SUMMARY: This action amends the Order Limiting Operations at Newark 
Liberty International Airport (EWR) that published on May 21, 2008, and 
was amended on October 7, 2009. The Order remains effective until the 
final Congestion Management Rule for LaGuardia Airport, John F. Kennedy 
International Airport, and Newark Liberty International Airport becomes 
effective but not later than October 26, 2013.

DATES: This amendment is effective on April 4, 2011.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this Order contact: Gerry Shakley, System Operations Services, Air 
Traffic Organization, Federal Aviation Administration, 800 Independence 
Avenue SW., Washington, DC 20591; telephone: (202) 267-9424; facsimile: 
(202) 267-7277; e-mail: gerry.shakley@faa.gov.
    For legal questions concerning this Order contact: Robert Hawks, 
Office of the Chief Counsel, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-
7240; facsimile: (202) 267-7971; e-mail: rob.hawks@faa.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You may obtain an electronic copy 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.
    You also may obtain 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 amendment number or docket number of this 
rulemaking.

Background

    Over the past several years, EWR has grown to be one of the most 
delay-prone airports in the country. In 2007, demand during peak hours 
approached or exceeded the average runway capacity, resulting in 
significant volume-related delays. In May 2008, the FAA placed 
temporary limits on scheduled operations at EWR to mitigate persistent 
congestion and delays at the airport.\1\ This Order also mitigated 
FAA's concern about a spillover effect resulting from limiting 
operations at John F. Kennedy International Airport (JFK). With a 
temporary schedule limit order in place, the FAA proposed a long-term 
rule that would limit the number of scheduled and unscheduled 
operations at EWR.\2\ On October 10, 2008, the FAA published the 
Congestion Management Rule for John F. Kennedy International Airport 
and Newark Liberty International Airport, which would have become 
effective on December 9, 2008.\3\ That rule was stayed by the U.S. 
Court of Appeals for the District of Columbia Circuit and subsequently 
rescinded by the FAA.\4\ This Order was further extended on October 7, 
2009.\5\
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    \1\ 73 FR 29550 (May 21, 2008), as amended by 74 FR 51648 (Oct. 
7, 2009).
    \2\ 73 FR 29626 (May 21, 2008); Docket FAA-2008-0517.
    \3\ 73 FR 60574, amended by 73 FR 66516 (Nov. 10, 2008).
    \4\ 74 FR 52134 (Oct. 9, 2009).
    \5\ 74 FR 51648.
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    Under the Order, as amended, the FAA (1) maintains the current 
hourly limits on 81 scheduled operations at EWR during the peak period; 
(2) imposes an 80 percent minimum usage requirement for Operating 
Authorizations (OAs) with defined exceptions; (3) provides a mechanism 
for withdrawal of OAs for FAA operational reasons; (4) establishes 
procedures to allocate withdrawn, surrendered, or unallocated OAs; and 
(5) allows for trades and leases of OAs for consideration for the 
duration of the Order. Without the operational limitations imposed by 
this Order, the FAA expects severe congestion-related delays would 
occur at EWR and at other airports throughout the National Airspace 
System (NAS).
    The FAA is engaged in a rulemaking effort to implement a long-term 
congestion management rule at LaGuardia Airport (LGA), JFK, and EWR. 
The FAA anticipates publishing a notice of proposed rulemaking for the 
Congestion Management Rule for LaGuardia Airport, John F. Kennedy 
International Airport, and Newark Liberty International Airport (RIN 
2120-AJ89) during the summer of 2011. To prevent this Order from 
expiring prior to a final rule becoming effective, the FAA has 
concluded it is necessary to extend the expiration date of this Order 
until the final Congestion Management Rule for LaGuardia Airport, John 
F. Kennedy International Airport, and Newark Liberty International 
Airport becomes effective but not later than

[[Page 18619]]

October 26, 2013. This expiration date coincides with the expiration 
dates for the Orders limiting scheduled operations at JFK and LGA, as 
also amended by notices in today's Federal Register.
    Therefore, the FAA finds that notice and comment procedures under 5 
U.S.C. section 553(b) are impracticable and contrary to the public 
interest. The FAA further finds that good cause exists to make this 
Order effective in less than 30 days.

The Amended Order

    The Order, as amended, is recited below in its entirety.
    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 will expire when the final Congestion Management Rule for 
LaGuardia Airport, John F. Kennedy International Airport, and Newark 
Liberty International Airport becomes effective but not later than 
October 26, 2013.
    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 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 7-AWA-Slotadmin@faa.gov, 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 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. 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

[[Page 18620]]

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 March 28, 2011.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. 2011-7845 Filed 4-1-11; 8:45 am]
BILLING CODE 4910-13-P
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