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###### Department of Transportation

###### Federal Aviation Administration

# ACTION:

Statement of policy.

# SUMMARY:

This action explains the adoption and implementation of a temporary policy regarding the minimum slot usage requirement for slots and slot exemptions at LaGuardia Airport for the winter season. A recent increase in the total number of operations at the airport, largely as a result of recently enacted legislation liberalizing access to slot-controlled airports, has had a significant operational impact at the airport. This policy will assist carriers in addressing operational issues by allowing limited flexibility of the slot usage requirement.

# EFFECTIVE DATE:

Effective upon publication.

# FOR FURTHER INFORMATION CONTACT:

Lorelei D. Peter, Office of the Chief Counsel, AGC-230, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone number 202-267-3073.

# SUPPLEMENTARY INFORMATION:

## Background

On April 5, 2000, the “Wendell H Ford Aviation Investment and Reform act of the 21st Century” (“AIR 21”) was enacted. Section 231 of AIR 21 significantly amends 49 U.S.C. § 41714 and created 49 U.S.C. §§ 41716, 41717, and 41718. These provisions enable air carriers meeting specified criteria to obtain new slot exemptions at New York's LaGuardia Airport (LaGuardia) and John F. Kennedy International Airport (JFK); Chicago's O'Hare International Airport (O'Hare); and Washington, DC's Ronald Reagan Washington National Airport (National). As a result of this legislation, the Department of Transportation (Department) issued eight orders establishing procedures for the processing of various applications. This policy statement addresses operations at LaGuardia as authorized under Order 2000-4-11 (LaGuardia—Exemptions for air service to small and nonhub airports—limited to aircraft with a seating capacity of less than 71) and Order 2000-4-10 (LaGuardia—Exemptions for new entrant and limited incumbent air carriers).

Specifically, Order 2000-4-11 implements 49 U.S.C. 41716(a), which provides in pertinent part that exemptions must be granted to any airline using Stage 3 aircraft with less than 71 seats that proposes to provide nonstop service between LaGuardia and an airport that was designated as a small hub or nonhub in 1997 under certain conditions. The exemption must be granted if: (1) The airline was not providing such nonstop service between the small hub or nonhub and LaGuardia Airport during the week of November 1, 1999; (2) the proposed service between the small hub or nonhub and LaGuardia, exceeds the number of flights provided between such airports during the week of November 1, 1999; or (3) if the air transportation pursuant to the exemption would be provided with a regional jet as replacement of turboprop service that was being provided during the week of November 1, 1999.

                    According to AIR-21 and the Department's Orders, air carriers meeting the statutory tests delineated above automatically receive blanket approval for slot exemptions, provided that they certify in accordance with 14 CFR 302.4(b) that they meet each and every one of the statutory criteria. The certification should state the communities and airport to be served, that the community was designated a small hub or nonhub as of 1997, that the aircraft used to provide the service have fewer than 71 seats, that the aircraft are Stage 3 compliant, and the planned effective dates. Carriers must also certify that the proposed service represents new service, additional frequencies, or regional jet service that has been upgraded from turboprop service when compared to service of the week of November 1, 1999. In addition, carriers must state the number of slot                           ( print page 69602)                        exemptions and the times needed to provide the service.                

Order 2000-4-10 implements the provisions of 49 U.S.C. § 41716(b), which states in pertinent part, that exemptions must be granted to any new entrant or limited incumbent airline using Stage 3 aircraft that proposes  “* * * to provide air transportation to or from LaGuardia or John F. Kennedy International Airport if the number of slot exemptions granted under this subsection to such air carrier with respect to such airport when added to the slots and slot exemptions held by such air carrier with respect to such airport does not exceed 20.” Applications submitted under this provision must identify the airports to be served and the time requested.

In August, there were 55 additional exemption operations at LaGuardia authorized by the Department and allocated by the FAA Slot Administration Office under the provisions of AIR 21. The number of exemptions increased to 192 by mid-September and is expected to reach 274 by mid-November 2000.

Preliminary FAA air traffic operations data reported by OPSNET for September 2000 indicate that there were 1,163 average daily operations at LaGuardia. This is an increase of approximately 18 percent over the September 1999 level of 982 average daily operations. OPSNET reported that air traffic control delays of 15 minutes or more at LaGuardia increased to 10,515 for September 2000 from 3,108 in September 1999. The percentage of flights recorded with air traffic delays increased to 30.13 percent from 10.55 percent. In comparison, the second highest level of OPSNET reported air traffic delays was at Newark International Airport where the percentage of flights delayed showed a small decline to 8.5 percent in September 2000 compared to 8.7 percent in September 1999.

Since September, traffic management programs have been implemented regularly by the FAA Air Traffic Control System Command Center due to the increased volume of flights at the airport. Peak period demand routinely exceeds airport capacity. Delays of one hour or more are frequent, even during ideal weather conditions. Delays often increase to several hours in duration when adverse aviation weather reduces system capacity. Many airlines have operationally addressed the increased delays through various means, including waiting for the assigned clearance time, canceling flights, reaccommodating passengers on later flights, and adding flying time to account for increased operating times.

## Statement of Policy

As a result of the additional operations and the impact described above on the operating environment at LaGuardia, the FAA finds that it is necessary to issue a temporary policy concerning the slot usage requirement for operations at LaGuardia. This change in policy is effective for the reporting periods of September/October and November/December in 2000, and January/February and March/April in 2001. At least 60 days prior to the end of the March/April reporting period, the FAA will evaluate operations at the airport and determine whether to extend this policy or take other action regarding slot usage.

In response to the large increase in volume-related delays, the FAA believes that airlines' decisions to cancel flights or otherwise make determinations on the operation of a flight should not be unduly influenced by the slot use or lose provision. While the cancellation of flights may be burdensome on both the airline passenger and the airline, advance planning should permit more efficient overall carrier operations while allowing passengers to be appropriately accommodated. One result of this temporary policy may be that fewer flights will operate, which may decrease delays for the remaining operations.

During the above stated months, the FAA will permit carriers operating slots or slot exemptions at LaGuardia to temporarily return to the FAA slots issued under the authority of 14 CFR part 93, subpart S, or exemption slots issued by the Department. This allows carriers to turn in slots and exemption slots in advance due to schedule planning or other decisions by the carriers without jeopardizing the permanent loss of the slot or slot exemption. Carriers that plan to return slots or slot exemptions must notify the FAA Slot Administration Office in advance and provide the slot withdrawal number, frequency and effective period of the return. Slots and slot exemptions returned to the FAA under this policy will not be allocated to any other carrier during the effective period and will revert automatically to the operator at the expiration of the period for which it was returned.

Carriers must contact the FAA Slot Administration Office concerning the date and frequency of restart-up should dates change. The Department has determined that a carrier returning slot exemptions under this policy will not need to recertify under Order 2000-4-10 and Order 2000-4-11 provided that all other certified conditions remain valid.

The FAA will treat a slot or slot exemption as used if the flight was scheduled but canceled for operational reasons and the slot would not otherwise have been subject to withdrawal. In the use or lose reports submitted to the FAA, carriers should indicate the flight was scheduled and, if appropriate, was canceled due to operational reasons. Carriers may report a slot or slot exemption as operated only if the flight was in fact operated. The FAA advises carriers to retain records of such cancellations should the FAA request additional documentation regarding the reason for the cancellation.

The FAA notes that when the slot usage requirements was last revised in 1992, the FAA specifically addressed the fact that adoption of the 80 percent usage threshold takes into account certain factors such as weather and operational delay. The adopted 80 percent  usage requirement provides an appropriate balance that ensures limited slot resources are used and allows a reasonable level of nonoperation due to operational, scheduling or other reasons. The FAA recognizes, however, that the additional operations at LaGuardia as a result of AIR-21 slot exemptions have impacted operational performance and significantly increased air traffic delays at the airport beyond this historical rates. Consequently, the FAA believes that is necessary to implement this policy on a temporary basis through the April 2001 reporting period.

The FAA will also extend the due date for the September/October 2000 reporting period by three weeks in order to allow operators additional time to review their reports in light of this policy statement. This extension will apply to slots and slot exemptions at the four high density airports. Slot usage reports for the September/October 2000 reporting period will be due by December 5, 2000.

                    This temporary policy on nonoperation or return of slots and slot exemptions does not apply to the use or lose provisions for slots at other high density traffic airports unless the operator can provide clear and convincing evidence that a flight cancellation at that airport was directly related to the non-operation of a slot at LaGuardia, as described in this policy statement. This policy is not intended to provide blanket relief to any slot operator not meeting the minimum usage requirement due to reasons other than those discussed previously. It is also not intended to establish a basis for                           ( print page 69603)                        the FAA to routinely consider delays and traffic management programs as grounds for a usage waiver. These factors were considered during the rulemaking process. Any waiver of the slot usage requirement at other high density airports for non-operation of flights at LaGuardia not covered by this policy will continue to be processed in accordance with 14 CFR Section 39.227.                

Issued in Washington, DC, on November 13, 2000.

Jane F. Garvey,

Administrator.

[FR Doc. 00-29408  Filed 11-14-00; 3:09 pm]

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