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###### Department of Transportation

###### Federal Aviation Administration 

          - [Docket No. FAA-2004-16944]

# ACTION:

Notice of order.

# SUMMARY:

On July 18, 2005, the Federal Aviation Administration (FAA) issued an order to show cause, which solicited written views on extending for a second time the FAA's August 18, 2004, order limiting scheduled operations at O'Hare International Airport (O'Hare). The August 2004 order made effective a series of schedule adjustments that the air carriers individually agreed to during a scheduling reduction meeting. These agreements, in general, resulted in a voluntary peak-hour arrival rate at O'Hare of eighty-eight scheduled flights, with the exception of the 8 p.m. hour—the final peak hour of the day—when the rate would not exceed ninety-eight scheduled arrivals. 

The FAA previously extended the effectiveness of the August 2004 order through October 29, 2005. This notice announces that the FAA Administrator has signed an order that further extends the August 2004 order through April 1, 2006. The text of the extension order is published below as supplementary information to this notice. 

# FOR FURTHER INFORMATION CONTACT:

                        Gerry Shakley, System Operations, Air Traffic Organization: telephone (202) 267-9424; facsimile (202) 267-7277; e-mail                         *gerry.shakley@faa.gov.*

# SUPPLEMENTARY INFORMATION:

## Second Order Extending the August 2004 Limitation of Scheduled Operations at O'Hare International Airport

                    On July 18, 2005, the Federal Aviation Administration (FAA) issued an order to show cause, soliciting written views on extending through April 1, 2006, the August 2004 order limiting scheduled operations at O'Hare International Airport (O'Hare).[1]                                          The August 2004 order made effective a series of schedule adjustments that air carriers                           ( print page 59799)                        individually agreed to during a scheduling reduction meeting convened under 49 U.S.C. § 41722. The FAA previously extended the order through October 29, 2005. After careful reflection on the written views submitted, the FAA is now extending the August 2004 order through April 1, 2006.                 

                    The FAA is taking this action to ensure that congestion and delay at O'Hare remain at manageable levels through the upcoming winter scheduling season while the agency considers the need for additional measures. The FAA has separately issued a notice of proposed rulemaking that would limit scheduled arrivals at O'Hare and establish allocation, transfer, and other procedures not included in the August 2004 order.[2]                                          The comment period for the proposed rule closed on May 24, and the FAA and the Office of the Secretary of Transportation are evaluating the comments filed in that proceeding. The FAA intends to make a final decision in that proceeding as promptly as possible. The FAA expects that this extension of the August 2004 order will permit the order's expiration to coincide with the effective date of a final rule, if a rule is adopted.                 

The FAA's authority to extend the August 2004 order is the same authority cited in that order. The FAA proposed to extend the August 2004 order under the agency's broad authority in 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. In addition, 49 U.S.C. § 41722 authorizes the FAA to conduct scheduling reduction meetings. The FAA's authority under section 41722 would be unenforceable if the FAA lacked the related authority to capture voluntary schedule reductions in FAA orders.

*Discussion of the Written Submissions:*                     A total of six respondents filed written views on the FAA's proposed extension of the August 2004 order. The respondents included four air carriers (American Airlines, Independence Air, Northwest Airlines, and United Airlines), one air carrier organization (the Air Carrier Association of America), and the City of Chicago (City). None of the respondents representing air carrier interests opposed the extension of the August 2004 order through April 1, 2006.                

As the operator of O'Hare, the City registers a concern that the restrictions contained in the August 2004 order will be effective indefinitely. We reiterate that the agreements reached during the August 2004 scheduling reduction meeting are temporary. In the August 2004 order, the FAA emphasized that capacity increases—not negotiated schedule reductions or other restrictions on demand—are the preferred means of curtailing delays like those the O'Hare experienced prior to the order. In addition, as the July 18 Order to Show Cause reflects, the FAA has issued a notice  of proposed rulemaking on the subject of flight limitations at O'Hare, and the FAA and Office of the Secretary of Transportation are evaluating the comments received in that matter. Our decision to extend the August 2004 order through April 1, 2006, will permit adequate time to consider the comments on the proposed rulemaking and, if a rule is adopted, to implement a final rule. Again, we continue to anticipate that the August 2004 order will endure for the shortest practical duration.

The City asks the FAA to let the order expire to determine whether over scheduling at O'Hare will recur. The City reasons that a capacity constraint can be imposed again if it proves necessary. In the August 2004 order, the FAA recounted in detail the impact of over scheduling at O'Hare. The nationwide and debilitating nature of the resulting delays caused the FAA to convene the scheduling reduction meeting. The recent and expected air traffic procedural improvements and equipment upgrades that the City identifies will not increase O'Hare's capacity so significantly that intolerable delay will not recur if the August 2004 order were to expire as now scheduled. the FAA's overall approach seeks to avoid the instability that successive expiration and reinstitution of voluntary schedule reductions at O'Hare would inflict on air carriers and the public. Moreover, while the FAA recognizes the City's view that the O'Hare Modernization Program, if approved and implemented, could significantly increase the airport capacity, the program could not be completed before the August 2004 order is currently scheduled to expire.

The City also asserts that the hourly scheduled arrival rate of eighty-eight during most peak hours, as set forth in the August 2004 order, is too low. The City would prefer an hourly scheduled arrival rate of ninety-two. In addition, the City repeats that, in its view, the FAA should amend the August 2004 order to exempt all international operations from the order's limitations.

                    The City previously raised identical concerns over the FAA's first extension of the August 2004 order, and the FAA therefore addressed the City's views in detail when it extended the order in March 2005.[3]                                          In the context of extending the voluntary scheduling limits, the FAA's prior assessment of the City's views has not materially changed. In addition, the City has filed similar comments in the public docket for the related rulemaking proceeding. The FAA and the Office of the Secretary of Transportation are affording the City's comments most careful consideration in that proceeding. Because the only matter at issue in this order is the contemplated short-term extension of the August 2004 order through April 1, 2006, it is unwise to address here issues that are now the subject of an open rulemaking before the agency. The FAA will address the merit of these comments in the rulemaking process.                

Finally, we reject the City's suggestion that the agency lacks the authority to limit arrivals at O'Hare by extending the August 2004 order. As an initial matter, the August 2004 order was the product of voluntary schedule limitations negotiated during a scheduling reduction meeting that Congress specifically authorized in 49 U.S.C. 41722. An FAA-issued order is the only practical means by which we can enforce the voluntary agreements that a scheduling reduction meeting produces. Accordingly, in authorizing the FAA to conduct such meetings, Congress presumably perceived that the FAA would issue and maintain orders, like the August 2004 order, as extended, that comport with the air carriers' agreements.

Furthermore, in phasing out the High Density Rule at O'Hare in July 2002, Congress simultaneously emphasized that it did not disturb the FAA's authority over safety and the movement of air traffic. 49 U.S.C. 41715(b). Our continuing authority in these areas is more than adequate to permit the extension of the August 2004 order that we specify here.

*Conclusion:*                     The FAA proposed to extend the August 2004 order through April 1, 2006, on the basis of its tentative finding that such an extension is necessary to prevent a recurrence of overscheduling at O'Hare. After considering the responses, the FAA has determined to make this finding final and to extend the order through April 1, 2006.                

                    Accordingly, with respect to scheduled flight operations at O'Hare, it is ordered that:                          ( print page 59800)    

1. Ordering paragraph seven of the FAA's August 18, 2004, order limiting scheduled operations at O'Hare International Airport is amended to state that the order shall expire at 9 p.m. on April 1, 2006.

Issued in Washington, DC, on October 5, 2005.

Rebecca MacPherson,

Assistant Chief Counsel for Regulation.

# Footnotes

1.                             70 FR 42135 (July 21, 2005).                    
        Back to Citation      

2.                             70 FR 15520 (Mar. 25, 2005).                    
        Back to Citation      

3.                             Mar. 21, 2005, Order at 5-10.                    
        Back to Citation      

[FR Doc. 05-20464 Filed 10-12-05; 8:45 am]

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