29550 Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Notices 

1 73 FR 14,552 (Mar. 18, 2008). 

2 72 FR 54,317 (Sept. 24, 2007). 

3 Id., at 54,318. 

4 Id. 

5As with previous aircraft queuing model runs 

produced for the FAA by the MITRE Corporation’s 

Center for Advanced Aviation System 

Development, it was assumed that no scheduled 

operation was cancelled. 

6 73 FR 3,510 (Jan. 18, 2008) (order limiting 

scheduled operations at JFK). 

7 72 FR 73,418 (Dec. 27, 2007). 

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: Order Limiting Scheduled 

Operations at Newark Liberty 

International Airport. 

SUMMARY: In a proposed order published 

on March 18, 2008, the Federal Aviation 

Administration (FAA) tentatively 

identified the parameters of an order 

that would temporarily limit scheduled 

flight operations at Newark Liberty 

International Airport (EWR).1 The FAA 

issued the proposal as a result of 

persistent congestion and delays at EWR 

during the peak operating hours, as well 

as a dramatic projected increase in flight 

delays at the airport during the summer 

of 2008 if proposed schedules were 

implemented as requested by carriers. 

After evaluating the written comment 

submitted to the public docket in this 

matter, the FAA is issuing this final 

Order, which will take effect at 6 a.m., 

Eastern Time, on June 20, 2008. 

If you wish to review the background 

documents or comments received in this 

proceeding, you may go to http:// 

www.regulations.gov at any time and 

follow the online instructions for 

accessing the electronic docket. You 

may also go to the U.S. Department of 

Transportation’s Docket Operations in 

Room W12–140 on the ground floor of 

the West Building at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Gerry Shakley, System Operations 

Services, Air Traffic Organization; 

telephone—(202) 267–9424; e-mail—

gerry.shakley@faa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

EWR has historically experienced a 

significant number of delays relative to 

the other airports in the domestic 

system. When ranked according to the 

proportion of delayed operations, EWR 

has frequently been the most delayed 

airport in the country. Moreover, EWR’s 

on-time performance has deteriorated in 

recent years. The percent of on-time gate 

arrivals within 15 minutes of the 

scheduled time decreased from 70.66% 

in fiscal year (FY) 2000 to 63.97% in FY 

2006 and to 61.71% in FY 2007. The 

average daily counts of arrival delays 

greater than one hour were 54 in FY 

2000; 79 in FY 2006; and 93 in FY 2007, 

an increase of almost 18% in the last 

fiscal year alone. 

One of the factors contributing to the 

EWR’s declining performance has been 

the carriers’ scheduling practices at the 

airport. Daily operations have been 

relatively stable while delays have 

continued to increase. In Fiscal Year 

(FY) 2000, there were 1,253 average 

daily operations. In FY 2007, there were 

1,219 average daily operations, a 

decrease of about 3 percent. Demand 

during the most desirable peak hours, 

however, approached or exceeded the 

average runway capacity resulting in 

volume-related delays. The cumulative 

impact of such scheduling by all carriers 

can result in delays even under ideal 

weather conditions. However, the 

resulting delays become even more 

pronounced when weather or other 

operating conditions reduce the 

airport’s capacity below optimal levels. 

During the summer of 2007, in 

addition to the delays experienced at 

EWR, another New York-area airport, 

John F. Kennedy International Airport 

(JFK), also experienced significant 

congestion-related delays. Based on 

both airports’ summer 2007 

performance, and in the absence of any 

major capacity enhancing projects, the 

FAA designated the airports as Level 2, 

Schedules Facilitated Airports for the 

summer 2008 scheduling season, in 

accordance with the International Air 

Transport Association (IATA) 

Worldwide Scheduling Guidelines.2 In 

designating the airports as IATA Level 

2, Schedules Facilitated Airports, the 

FAA required all U.S. and foreign air 

carriers to report to the FAA their 

proposed summer 2008 scheduled 

operations at the airports during 

designated hours. With respect to EWR, 

the FAA specifically noted that it 

intended to work with carriers on the 

flight operations planned from 7 until 

10 a.m. and from 2 until 10 p.m., 

Eastern Time.3 The FAA further 

specified that it was considering its 

options to ‘‘further address congestion 

and improve operational performance at 

EWR, including the timing of flights at 

the airport and their impact on the 

airport’s operation.’’ 4

The information that U.S. and foreign 

air carriers reported to the FAA 

regarding their proposed operations at 

EWR reflected a significant increase in 

scheduled operations, especially during 

the most oversubscribed hours when the 

airport routinely experienced delays. 

U.S. and foreign air carriers requested 

about 100 new operations, adding to the 

schedules that produced pronounced 

delays during summer 2007. The 

proposed schedules in the afternoon 

and evening period were of the greatest 

concern. For example, several 

consecutive hours would have had 

demand for arrivals or departures in the 

mid-90s and others in the upper 80s. By 

contrast, EWR’s adjusted average airport 

capacity reflects that, from September 

2006 through August 2007, the airport 

handled or was capable of handling an 

average of 83 operations per hour. 

The FAA modeled the level of delays 

that passengers transiting EWR could 

expect if the carriers were to operate the 

summer 2008 schedules that they 

proposed. When compared with EWR’s 

modeled baseline delays during the 

summer of 2007, the average arrival 

delays would have increased 38% to 35 

minutes; the average number of arrival 

delays of at least one hour would have 

increased 50%; and the mean arrival 

delay would have reached almost 80 

minutes by 7 p.m. The proposed 

schedules also would have negatively 

affected departures.5

In response to the U.S. and foreign air 

carriers’ proposed summer 2008 

schedules, the FAA held discussions 

with many of the carriers to validate 

their schedule requests and to ask them 

to reconsider their proposed timings in 

light of the airport’s capacity 

limitations. Although there were some 

modest revisions to the proposed 

schedules, it was clear that demand 

would continue to exceed capacity 

without further action, as some carriers 

indicated that they would operate as 

proposed despite the FAA’s concern 

about the impact on delays. In addition, 

the FAA anticipated that carriers might 

try to add still more operations at EWR 

when a forthcoming operational 

limitation took effect at nearby JFK,6 in 

effect shifting a portion of that problem 

to an already oversubscribed EWR. As a 

result, the FAA elected to modify EWR’s 

IATA designation to a Level 3, 

Coordinated Airport for summer 2008.7

This designation provided notice, in 

accordance with international norms, 

that the FAA would focus proposed new 

operations at the airport on hours 

during which airport capacity is 


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8 73 FR at 14,558–65. 

9Although Virgin America identified its intention 

to conduct operations at JFK during summer 2008, 

it filed no such intention in response to EWR’s 

IATA Level 2 designation. After the FAA declared 

EWR an IATA Level 3, Fully Coordinated Airport, 

Virgin America indicated for the first time a desire 

to provide scheduled service there. 

10Eos Airlines, for example, recently ceased 

operations after April 27, 2008. Eos does not have 

historic scheduled operations at EWR, and it has 

not commenced the operations it planned to 

conduct at EWR this summer and for which the 

FAA proposed to allocate Operating Authorizations. 

Because Eos has ceased to conduct scheduled 

Continued 

available and to deny proposed new 

operations during oversubscribed hours. 

Some carriers, including Continental 

Airlines, the primary hub carrier at 

EWR, moved flights from historic peak 

hours to less congested times in order to 

assist with delay reduction. The FAA 

published in the appendix to the 

proposed order the results of the 

discussions with U.S. and foreign air 

carriers and our approved schedules 

reflecting very limited peak-hour 

growth.8 While the proposed order, 

through the appendix, provided the 

public with notice of the state of the 

FAA’s discussions with carriers under 

the IATA Worldwide Scheduling 

Guideline process, the principal 

purpose of the proposed order was to 

describe and to raise for public 

comment a series of practical 

considerations that the FAA must 

address when it undertakes to place a 

temporary limit on operations at an 

airport. 

II. Summary and Analysis of the 

Comments 

As of May 1, 2008 the FAA received 

in the public docket 78 written 

comments on the FAA’s proposed order. 

The vast majority of the commenters 

support the FAA’s effort, as a general 

matter, to control congestion and delays 

at EWR. A small number of comments 

question certain aspects of the FAA’s 

proposal. 

One commenter—Virgin America, 

Inc.—expresses its preference that the 

FAA had followed a different process in 

limiting operations at EWR. Virgin 

America specifically would prefer that 

the FAA had conducted a scheduling 

reduction meeting for scheduled 

operations at EWR, as the FAA did in 

limiting scheduled operations at JFK. 

The FAA holds a number of options 

in controlling congestion at a particular 

airport. As the FAA articulated when it 

requested the carriers’ anticipated 

summer 2008 schedules involving EWR, 

the FAA considered them all in 

selecting its course with respect to EWR. 

There is no requirement that the FAA 

pursue a particular avenue in 

addressing airport congestion, and small 

differences in a particular airport’s 

operations can argue for a slightly 

different solution. The FAA’s election to 

improve the carriers’ scheduling and 

EWR’s performance through a 

combination of the IATA scheduling 

process and a voluntary drawing down 

of carriers’ schedules during the 

oversubscribed hours was a rational 

method of addressing congestion-related 

delay at the airport. Moreover, and 

equally important, it was both an 

expedient course and a permissible 

exercise of the FAA’s discretion. 

Nor is it apparent that conducting a 

scheduling reduction meeting like that 

held for JFK would have led to a 

different result than that expressed in 

the proposed order for EWR. The FAA 

published both JFK’s and EWR’s 

designation as IATA Level 2, Schedules 

Facilitated Airports in the same 

document.9 The starting point for the 

FAA’s discussions with carriers at the 

subsequent scheduling reduction 

meeting for JFK was the proposed 

schedules that the carriers submitted 

pursuant to JFK’s designation as an 

IATA Level 2, Schedules Facilitated 

Airport. Many carriers at JFK, including 

those with the largest presence at the 

airport, agreed to reduce flights during 

the most desirable hours in order to 

improve operational performance and to 

benefit all operators. At the same time, 

the FAA ensured that other carriers 

were restricted from adding new flights 

during the previously oversubscribed 

hours, which would have offset the 

delay reduction that the other carriers’

schedule adjustments achieved. The 

FAA accommodated a few timely 

requested new operations during the 

hours of peak demand. 

The FAA applied the same general 

policy approach at EWR, with the 

objective of preventing a further 

degradation in operational performance 

by keeping demand within the average 

available capacity. We recognize Virgin 

America’s position that it did not take 

advantage of the IATA schedule 

submission requirement or the initial 

ensuing IATA schedule discussions 

regarding EWR. As a result, in 

consideration of Virgin America’s newly 

advanced request for scheduled 

operations, the FAA attempted to 

accommodate Virgin America during 

the hours that are scheduled below the 

airport’s adjusted average hourly 

capacity. The discussions leading to the 

FAA’s proposed order, including the 

conversations with Virgin America, 

necessarily had the same tenor as a 

scheduling reduction meeting’s 

discussions. If the FAA were to conduct 

a scheduling reduction meeting for 

EWR, we do not expect that the product 

would differ materially from the results 

published in the appendix to the 

proposed order. 

Virgin America and the Air Carrier 

Association of America also state that 

the proposed order diminishes the 

ability of new entrants to compete at 

EWR and strengthens the position of 

EWR’s hub carrier. In particular, Virgin 

America notes the potential that more 

established carriers could abuse the 

proposed mechanisms of retiming 

operations and permitting operational 

growth at EWR. Virgin America and the 

Air Carrier Association of America 

recommend a periodic withdrawal and 

redistribution of Operating 

Authorizations to stimulate 

competition. We emphasize, however, 

that we intended the proposed order to 

describe a short-term vehicle to preserve 

realistic scheduling at EWR while 

longer term solutions are applied to 

relieve EWR’s congestion and delay. 

The mechanisms that we identified to 

permit operational flexibility and 

growth within the airport’s capacity, if 

applied fairly and without 

discrimination, should provide 

opportunities during the relatively brief 

duration of this final Order. While we 

anticipate that all carriers will conduct 

their transactions under this Order in a 

principled way, the FAA will closely 

monitor the operation of the airport and 

the application of the mechanisms for 

the trade and lease of Operating 

Authorizations while this Order remains 

in effect. If we detect unfair or 

anticompetitive behavior, we will not 

hesitate to take corrective action and to 

propose more stringent controls on such 

transactions in the future. 

One commenter—Porter Airlines, 

Inc.—requests an amendment to the 

appendix of the proposed order to grant 

it fourteen total operations at EWR 

during the time periods that it originally 

requested of the FAA. Porter contends 

that it received an approved schedule 

from the EWR Terminal/Gate Schedules 

Facilitator and that the FAA should 

allow it to operate that schedule. Porter, 

as well as the Air Transport Association 

of Canada, also contends that the FAA’s 

proposed allocations would violate the 

U.S.-Canada Open Skies Agreement. In 

a supplemental filing, Porter asks the 

FAA to reconsider the allocation of 

Operating Authorizations to Porter if 

any Operating Authorization becomes 

available in the future, such as by the 

revised operating plans of other 

carriers.10


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operations, the FAA is not allocating Operating 

Authorizations to Eos in the appendix to this final 

Order. 

11We further note that, under this Order, carriers 

may return Operating Authorizations to the FAA on 

or before the seasonal deadline for the periods 

during which the carriers do not intend to use 

them. This allows carriers to adjust their seasonal 

allocation to match more precisely the carriers’

known schedules at the time of the deadline. 

Additionally, this Order creates a secondary market 

for the transfer of Operating Authorizations to 

another carrier that is able to use them. 

Throughout the process that led to the 

FAA’s proposed order, the FAA’s 

representatives were candid during and 

after the IATA Schedules Conference in 

November 2007 regarding the potential 

for restricted operations at EWR, 

particularly in the already 

oversubscribed afternoon and evening 

hours. The FAA expressly made Porter 

aware that it was not granting approval, 

based on runway capacity, for all 

Porter’s proposed new operations 

during the peak hours, that the FAA was 

continuing to seek voluntary moves by 

carriers to retime schedule requests, and 

that any plans to conduct scheduled 

operations during those periods would 

be at Porter’s own risk. Consistent with 

the FAA’s preliminary assessment of the 

operational impact of the carriers’

proposed schedules, the FAA 

determined that it was necessary to 

modify EWR’s designation from Level 2 

to Level 3 when it became clear that 

voluntary schedule adjustments by the 

carriers to avoid the overscheduling of 

EWR’s peak hours were not achievable. 

With respect to the FAA’s proposed 

allocation of Operating Authorizations, 

the U.S.–Canada Open Skies Agreement 

requires the FAA to accord fair and 

equal, not preferential, treatment. 

Contrary to Porter Airlines’ suggestion, 

the FAA’s proposal treats Porter 

Airlines identically to all air carriers 

that are similarly situated at EWR. In 

addition, like all other carriers, Porter 

Airlines will retain the flexibility under 

this Order to trade, to lease, and to 

request retimings of its scheduled 

operations to enhance its competitive 

posture. Retiming of an approved 

Operating Authorization for any carrier, 

however, would be granted only if 

capacity exists, if the FAA determines 

that it does not diminish the efficiency 

of the airport’s operations, and if it is 

otherwise consistent with the provisions 

and policies expressed in this Order. 

Porter’s request in its supplemental 

filing for an additional two Operating 

Authorizations in the 5 p.m. and 7 p.m. 

hours and its request to retime an 

approved arrival in the 9 p.m. half hour 

to the 8 p.m. hour are denied. Shifting 

a 9 p.m. half hour flight to the earlier, 

more problematic hours would increase 

congestion and would not be equitable 

to other carriers that are unable to make 

similar moves. As a carrier that did not 

have any historic operations at EWR but 

that timely indicated that it would 

provide summer 2008 service, Porter 

Airlines was permitted one new 

roundtrip during the airport’s busiest 

period, from 3 p.m. through 8:59 p.m. 

The FAA proposed similar allocations 

for two other new entrant carriers that 

timely indicated their intention to 

initiate service at EWR. By contrast, 

other carriers, including those with a 

limited existing presence at the airport, 

were not permitted to add new flights 

during those hours. In addition, other 

carriers either removed or rescheduled 

some historically conducted operations 

during that period to reduce delays. 

Adding even a few flights to that period 

diminishes the delay reduction benefits 

that the voluntary moves of other 

carriers have achieved. Accordingly, the 

FAA’s manner of accommodating new 

entrant carriers at EWR is adopted as 

proposed. 

Air Canada, the Air Transport 

Association of America, and American 

Airlines recommend adjustments to the 

FAA’s proposed 80% usage requirement 

for Operating Authorizations. They 

request that the FAA consider an 

Operating Authorization as used if the 

carrier elects to cancel a flight due to a 

ground delay program. The Air 

Transport Association and American 

Airlines further request that the FAA 

consider an Operating Authorization 

used if the carrier elects to cancel a 

flight because a de-icing program is in 

effect. 

For the present time, the FAA has 

decided not to amend the proposal to 

include categorical exclusions from the 

minimum usage requirement for flight 

cancellations for reasons such as ground 

delay or de-icing programs. In arriving 

at this conclusion, we understand that, 

during extreme conditions of extended 

delays or reduced capacity, carriers may 

find it necessary or practical to cancel 

a flight rather than conduct it several 

hours later. In such situations, carriers 

might accommodate passengers 

efficiently on other flights, permitting 

carriers to work on overall network 

recovery through a tactical use of flight 

cancellations. Moreover, under these 

circumstances, flight cancellations may 

deliver operational benefits to the 

National Airspace System, because 

delays would be even longer for all 

system users absent flight cancellations 

during reduced capacity conditions. 

Nevertheless, we must balance these 

considerations against the overall 

efficient use of a scarce operational 

resource. The proposed minimum usage 

requirement permits carriers to suspend 

flights for operational reasons up to 

20% of the time. Furthermore, the FAA 

may waive the usage requirement in the 

face of highly unusual and 

unpredictable conditions that are 

beyond the control of the carriers and 

that affect carrier operations for at least 

five consecutive days. Under normal 

circumstances, this degree of flexibility 

should be sufficient to absorb the 

occasional cancellation of a scheduled 

operation and still permit carriers to 

meet the minimum usage threshold, if 

the planned usage is near 100%. 

Carriers that do not schedule operations 

for all their assigned authority increase 

the risk of falling below the minimum 

usage threshold, and it is not the FAA’s 

intention to facilitate a carrier’s 

underutilization of an Operating 

Authorization by granting additional 

usage exceptions.11 While this Order is 

in effect, the FAA invites carriers to 

highlight specific instances in which the 

available measures appear insufficient. 

Such information may provide the good 

cause necessary to modify this Order. 

The Air Transport Association and 

American Airlines submitted comments 

on the FAA’s proposed termination of 

the Order on October 24, 2009. In their 

opinion, the FAA could avoid the lack 

of certainty that a potential series of 

short-term extensions would cause if the 

FAA would tie the Order’s expiration 

date to the effective date of a 

replacement rule. They note that such 

an approach was effective in the FAA 

order capping scheduled operations at 

LaGuardia Airport. 

The FAA originally considered 

whether the termination date of this 

Order should be open-ended, tied to the 

adoption of a replacement rule, or as 

proposed, identified as a date certain. 

We rejected the notion of leaving this 

Order open-ended or tying its expiration 

to the effective date of a replacement 

rule. This Order is constructed to 

provide short-term relief from the 

congestion that EWR would otherwise 

experience. We do not deem it 

appropriate as a longer-term structure 

for EWR’s operations. Accordingly, we 

will retain the Order’s proposed 

expiration date. 

American Airlines suggests that the 

FAA’s proposal to require carriers to use 

an Operating Authorization for 90 days 

before leasing or transferring it should 

be changed. Because Operating 

Authorizations were not previously 

assigned at EWR, American Airlines 

instead contends that a 90-day usage 

requirement in this context should look 

back to the period that carriers 

conducted the underlying historic 


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operations before the final Order takes 

effect. According to American Airlines, 

the market for Operating Authorizations 

would otherwise be suppressed for most 

of the summer 2008 scheduling 

season—a prospect that Porter Airlines 

also views negatively in its comments. 

To facilitate the secondary market for 

Operating Authorizations during the 

summer of 2008, the FAA agrees that 

this limitation should be amended to 

permit an earlier lease or transfer of 

Operating Authorizations that 

correspond to historically conducted 

operations with one caveat. In 

particular, we remain concerned about a 

potential abuse here and in the future of 

the process under which the FAA 

arrives at the final allocations, whereby 

a carrier could accept Operating 

Authorizations to conduct new 

operations while also attempting to 

control via lease the operator of the 

carriers’ historically conducted 

operations. This could serve as a 

disincentive for carriers to discuss their 

schedule plans in good faith, it is unfair 

to carriers that have concrete plans to 

serve the airport, and it could afford a 

carrier control over a greater share of the 

airport’s operations than any portion 

that the carrier ever conducted there. 

Therefore, the FAA will amend the final 

Order to permit the lease or transfer of 

Operating Authorizations whenever the 

carrier can demonstrate that it operated 

the flight that corresponds to the 

Operating Authorization at least 80% of 

the 90-day period immediately 

preceding the lease or transfer. 

However, we will monitor the net effect 

of the carriers’ lease transactions with 

respect to their newly allocated 

Operating Authorizations. If it is 

apparent that a carrier requested 

Operating Authorizations that it did not 

intend to utilize, the FAA may consider 

that circumstance in assessing the 

carrier’s future representations with 

respect to its need for capacity at this or 

other airports. 

Kalitta Air, LLC, comments that it is 

uniquely burdened by the proposed 

order due to its contract with the United 

States Postal Service (USPS) to carry 

mail for the U.S. military. It indicates 

that it regularly operates 10 or more 

departures from EWR each week but 

that the number and time of the flights 

may vary to meet the contractual 

requirements. Kalitta further notes that 

some periods of the year, such as the 

December holidays, have historically 

generated more flights and that it must 

operate additional flights to 

accommodate the mail during other 

times, as well. Kalitta cites as possible 

solutions a large pool of authority for 

day-of unscheduled operations, the use 

of ‘‘extra section’’ authority, and a 

reduction in the hours when operational 

limits will apply at EWR. Kalitta also 

indicates it would like to revise its 

historic summer 2007 schedules to 

operate at different times. 

The FAA understands that all carriers 

may need to revise their plans to 

conduct scheduled operations at EWR 

after this Order takes effect. The FAA 

intends to issue a proposal to institute 

a reservations system for unscheduled 

flights, and some of the issues that 

Kalitta raises regarding the availability 

of last-minute operations will be 

addressed in that context. A finite 

number of reservations are expected for 

unscheduled operations during the peak 

hours; however, there is a potential for 

additional reservations for last-minute 

unscheduled operations if operating and 

delay conditions permit. We expect that 

the ultimate structure for scheduled and 

unscheduled operations will 

accommodate the historic patterns of 

demand that cargo operators experience 

during particular times of year, such as 

the months of November and December, 

but some retiming of proposed 

schedules may be required. 

The type of operational flexibility that 

Kalitta seeks to conduct operations 

during EWR’s busiest hours is not 

practical, given the airport’s limited 

capacity and trend toward congestionrelated delays. The service that Kalitta 

provides to meet its USPS contract may 

be unique in its individual 

circumstances, but it does not materially 

differ as a practical matter from the 

limitations imposed on other operators. 

In some respects, cargo operations may 

have options that are not reasonably 

available to passenger-carrying and 

other operators, permitting flights at 

less-congested times. To this degree, it 

may be easier for a cargo operator to 

trade for or lease Operating 

Authorizations at favorable times than is 

the case for other carriers operating at 

EWR. 

As with other carriers, the FAA will 

not accept changes from a cargo 

operator’s historic operations if the net 

result would be increased congestion. 

For example, the FAA cannot approve 

Kalitta’s request to move a flight from 

the 9 p.m. hour to the 7 p.m. hour. 

Nevertheless, the FAA will work with 

Kalitta—as it will continue to do with 

other carriers—on schedule 

adjustments, but those adjustments 

must recognize the limits under this 

Order. 

A number of the commenters express 

opinions regarding the FAA’s future 

allocation of Operating Authorizations 

at EWR. American Airlines advocates 

the FAA’s long-term use of the IATA 

Worldwide Scheduling Guidelines at all 

congested airports, whereas the Air 

Carrier Association of America opposes 

the FAA’s reliance on the Worldwide 

Scheduling Guidelines. The Air 

Transport Association of America, the 

Air Transport Association of Canada, 

and American Airlines oppose the 

FAA’s use of auctions to allocate new or 

returned capacity at EWR, and the Air 

Carrier Association of America 

identifies alternative market-based 

allocation concepts. 

The FAA’s principal purpose in 

issuing the proposed order was to curb 

the overscheduling that passengers 

transiting EWR would experience 

during the summer of 2008 if the FAA 

failed to intervene. This final Order will 

result in significantly better 

performance at the airport than would 

occur if carriers were to implement the 

schedules that they originally proposed. 

The manner in which the FAA will 

allocate operational authority to 

conduct scheduled operations after this 

Order expires will be the subject of a 

rulemaking proceeding in a separate 

docket. Carriers that wish to register an 

opinion regarding that proposal should 

file their responsive written comments 

in the public docket that the FAA will 

open for that proceeding. 

Regarding the language in the 

proposed order that refers to a future 

auction of new and returned capacity at 

EWR while this final Order remains in 

effect, the FAA does not anticipate the 

immediate availability of a significant 

volume of new or returned capacity at 

EWR. However, the FAA expects that 

the need may arise to conduct an 

auction of new or returned capacity at 

EWR or JFK before the end of this 

calendar year. If this proves to be true, 

we anticipate that we would allocate 

such capacity for a 5- to 10-year term. 

The FAA has authority to lease real and 

personal property, including intangible 

property, to others. 49 U.S.C. 106(l)(6) 

and 106(n). Because the auction would 

address an FAA lease of Operating 

Authorizations awarded by the FAA 

under its leasing authority rather than 

under an administrative allocation, 

notice to the interested parties will be 

governed by applicable procurement 

law, rather than by the Administrative 

Procedure Act. The details regarding a 

potential auction will be disclosed 

when the FAA is ready to proceed with 

an auction. In accordance with the 

FAA’s Acquisition Management System, 

the FAA will publicly announce its 

intention to conduct an auction on a 

particular date or over the course of a 

particular period of time. The FAA will 

also announce its proposed auction 

procedures and solicit comments on 


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those procedures. The FAA will 

consider the comments that it receives 

and then publish the final auction 

procedures. Any interested party will 

have an avenue to protest the 

procedures up until the date of the 

auction, in accordance with 49 U.S.C. 

40110(d)(4) and 14 CFR Part 17. 

The individual and non-airline 

organizational commenters express 

nearly universal support for the 

proposed limit on scheduled operations 

at EWR, primarily because they view it 

as an alternative to the delay reduction 

anticipated from New York-New JerseyPhiladelphia airspace redesign. The 

airspace redesign project to which they 

refer is an initiative that is independent 

of this temporary limitation on flights at 

EWR, and it will reduce congestionrelated delay in that region over the long 

term. The FAA will implement elements 

of the airspace redesign over five years, 

and as a result, the full benefit of the 

redesign will be realized in stages. By 

contrast, this Order will provide 

temporary relief from the heightened 

delays that the region would experience 

as early as this summer if carriers were 

permitted to operate the schedules that 

they proposed. The FAA does not 

intend this Order to serve as a long-term 

solution to congestion-related delay at 

and around EWR. 

Accordingly, with respect to 

scheduled flight operations at EWR, it is 

ordered that: 

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 

decision-maker 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 

expires at 11:59 p.m., Eastern Time, on 

October 24, 2009. 

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. A carrier may lease or trade an 

Operating Authorization to another 

carrier for any consideration and for a 

period that does not exceed the duration 

of this Order. A carrier may not lease an 

Operating Authorization to another 

carrier unless it has actually used the 

authorization to conduct flights to or 

from Newark at least 80% of the time 

over the preceding 90-day period. The 

FAA may waive the 90-day usage 

requirement of the Operating 

Authorization if the transferring carrier 

can demonstrate that it has operated the 

flight that corresponds to the Operating 

Authorization at least 80% of the time 

over the 90 days preceding the proposed 

transfer of the Operating Authorization. 

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. 

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. These reports must 

include: 

i. The dates within each applicable 

season on which it intends to start and 

to cease scheduled operations. 

A. For the Summer 2008 scheduling 

season, the report must be received by 

the FAA no later than June 20, 2008. 

B. For the Winter 2008/2009 

scheduling season, the report must be 


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received by the FAA no later than 

August 15, 2008. 

C. For the Summer 2009 scheduling 

season, the report must be received by 

the FAA no later than January 15, 2009. 

ii. The completed operations for each 

day of the applicable scheduling season: 

A. Via an interim report filed no later 

than September 1 for the Summer 

scheduling season; 

B. Via an interim report filed 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 unallocated 

Operating Authorizations should be 

reallocated. The FAA may temporarily 

allocate an Operating Authorization if it 

determines that such allocation will not 

increase congestion at the airport. Such 

temporary allocations will not be 

entitled to historical status for the next 

applicable scheduling season under 

paragraph 9. 

11. If the FAA determines that a 

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 May 15, 

2008. 

Robert A. Sturgell, 

Acting Administrator, Federal Aviation 

Administration. 

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[FR Doc. 08–1278 Filed 5–16–08; 12:00 pm] 

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