29626 Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Proposed Rules 

1The term ‘‘new entrant carrier’’ was defined as 

‘‘an air carrier that does not hold a slot at the airport 

concerned and has never sold or given up a slot at 

that airport after December 16, 1985, and a limited 

incumbent carrier.’’ 49 U.S.C. 41714(h)(3). 

2Application of New Air Corporation for 

Exemption from 14 CFR part 93, Subparts K and S 

of 49 U.S.C. 41714(c), Order 99–9–11 (September 

16, 1999). 

3The phase-out also included LaGuardia, as of 

January 1, 2007. 49 U.S.C. 41715(a)(2). The HDR at 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 93 

[Docket No. FAA–2008–0517; Notice No. 08– 

05] 

RIN 2120–AJ28 

Congestion Management Rule for John 

F. Kennedy International Airport and 

Newark Liberty International Airport 

AGENCY: Federal Aviation 

Administration (FAA). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to 

establish procedures to address 

congestion in the New York City area by 

assigning slots at John F. Kennedy (JFK) 

and Newark Liberty (Newark) 

International Airports in a way that 

allows carriers to respond to market 

forces to drive efficient airline behavior. 

This proposal is a companion to a 

separate rulemaking initiative 

addressing congestion mitigation at New 

York’s LaGuardia airport. Today’s 

proposal is similar to what we have 

proposed for LaGuardia airport, but it 

takes into consideration the 

characteristics of both JFK and Newark, 

including the large number of 

international flights at these airports 

and our international obligations. The 

FAA proposes to extend the caps on the 

operations at the two airports, assign to 

existing operators the majority of slots at 

the airports, and create a market by 

annually auctioning off a limited 

number of slots in each of the first five 

years of this rule. The FAA is proposing 

two alternatives. 

Under the first alternative, the 

assignment of slots at JFK and Newark 

would be conducted through a uniform 

mechanism. The FAA would auction off 

a portion of the slots and would use the 

proceeds to mitigate congestion and 

delay in the New York City area. Under 

the second alternative, the same auction 

procedure would apply at Newark as 

under the first alternative but at JFK the 

auction proceeds would go to the carrier 

holding the slot rather than to the FAA. 

For both alternatives, this proposal also 

contains provisions for minimum usage, 

capping unscheduled operations, and 

withdrawal for operational need. The 

FAA proposes to sunset the rule in ten 

years. 

DATES: Send your comments on or 

before July 21, 2008. 

ADDRESSES: You may send comments 

identified by Docket Number FAA– 

2008–0517 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Bring 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

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

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

For more information on the rulemaking 

process, see the SUPPLEMENTARY

INFORMATION section of this document. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

Web site, anyone can find and read the 

electronic form of all comments 

received into any of our dockets, 

including the name of the individual 

sending the comment (or signing the 

comment for an association, business, 

labor union, etc.). You may review the 

Department of Transportation’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (65 FR 19477–78) or you may visit 

http://DocketsInfo.dot.gov. 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

and follow the online instructions for 

accessing the docket. Or, go to Docket 

Operations in Room W12–140 of the 

West Building Ground Floor 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: For 

technical questions regarding this 

rulemaking, contact: Molly W. Smith, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone (202) 

267–3275; e-mail 

molly.w.smith@faa.gov. For legal 

questions concerning this rulemaking, 

contact: Rebecca MacPherson, FAA 

Office of the Chief Counsel, 800 

Independence Ave., SW., Washington, 

DC 20591; telephone (202) 267–3073; 

e-mail rebecca.macpherson@faa.gov. 

SUPPLEMENTARY INFORMATION: Later in 

this preamble, under the Additional 

Information section, we discuss how 

you can comment on this proposal and 

how we will handle your comments. 

Included in this discussion is related 

information about the docket and the 

handling of proprietary or confidential 

business information. We also discuss 

how you can get a copy of this proposal 

and related rulemaking documents. 

Authority for This Rulemaking 

The FAA has broad authority under 

49 U.S.C. 40103 to regulate the use of 

the navigable airspace of the United 

States. This section authorizes the FAA 

to develop plans and policy for the use 

of navigable airspace and to assign the 

use that the FAA deems necessary for its 

safe and efficient utilization. It further 

directs the FAA to prescribe air traffic 

rules and regulations governing the 

efficient utilization of the navigable 

airspace. 

I. Background 

A. History of Congestion Management 

Initiatives at JFK 

JFK has historically been a 

constrained airport. From 1969 through 

2006, the FAA managed congestion 

there during the five hours of peak 

transatlantic demand—3 p.m. through 

7:59 p.m., Eastern Time under the High 

Density Rule (HDR). 14 CFR part 93 

subparts K and S. 

In 1994, Congress began to relax the 

HDR by authorizing the Secretary of 

Transportation, upon making a public 

interest finding, to grant exemptions 

from the HDR to enable new entrant 

carriers 1 to provide air transportation at 

certain slot-controlled airports, 

including JFK. 49 U.S.C. 41714. In 1999, 

pursuant to this authority, the 

Department issued an order that 

authorized new flight operations at JFK 

by granting 75 slot exemptions to 

JetBlue Airways (JetBlue), a new entrant 

carrier, to be phased in over a five-year 

period.2 The order stated that JetBlue 

would operate the majority of its flights 

outside the five HDR slot-controlled 

hours. 

In 2000, the Wendell H. Ford Aviation 

Investment and Reform Act for the 21st 

Century (AIR–21), Public Law No. 106– 

181, ended the application of the HDR 

at JFK, effective January 1, 2007. 49 

U.S.C. 41715(a)(2).3 AIR–21 also 


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Chicago O’Hare International Airport was directed 

to be phased out by July 1, 2002. 49 U.S.C. 

41715(a)(1). 

4See: http://www.faa.gov/airports_airtraffic/ 

air_traffic/nas_redesign/regional_guidance/ 

eastern_reg/nynjphl_redesign/. 

5An airport, where demand is approaching 

capacity and a more formal level of cooperation is 

required to avoid the circumstances of overcapacity, is designated an IATA Level 2 Schedules 

Facilitated Airport. At a Level 2-designated airport, 

a schedules facilitator seeks the cooperation and 

voluntary agreement of airlines serving the airport 

to avoid congestion. 

6Where demand for an airport exceeds capacity, 

voluntary cooperation is unlikely to resolve the 

problem, and short term capacity enhancements are 

not available, the airport is designated an IATA 

Level 3 Coordinated Airport. 

directed the Secretary to grant 

exemptions from the HDR’s flight 

restrictions for operations by new 

entrant carriers or for flights serving 

Small-Hub and Non-Hub airports as 

long as the aircraft used had less than 

71 seats. Additionally, it preserved the 

FAA’s authority to impose flight 

restrictions by stating that ‘‘[n]othing in 

this section * * * shall be construed 

* * * as affecting the Federal Aviation 

Administration’s authority for safety 

and the movement of air traffic.’’ 49 

U.S.C. 41715(b). 

Until recently, most operations at JFK 

took place during relatively pronounced 

arrival and departure banks 

corresponding to the operating windows 

of transatlantic flights. Maximum 

efficiency at JFK has been achieved with 

the use of either two arrival runways 

and one departure runway, or two 

departure runways and one arrival 

runway. Air traffic controllers have 

employed that configuration to facilitate 

the historic transatlantic traffic flows. 

Since the spring of 2006, U.S. air 

carriers serving JFK have significantly 

increased their domestic scheduled 

operations throughout the day. Most of 

the increase has come from the two 

largest operators at the airport, Delta 

Airlines (Delta) and JetBlue. The new 

traffic patterns affect the efficient use of 

JFK’s four runways, impeding the use of 

the three-runway configurations (two 

arrival/one departure, or one arrival/two 

departure) for maximum utility of active 

runways. 

As a result of the increase in 

scheduled operations at JFK, the 

summer 2007 demand exceeded the 

airport’s capacity during many periods 

of the day. During morning hours, 

volume-related delays were routine 

from 7 a.m. through 9 a.m. The 

afternoon and evening demand 

exceeded the airport’s optimal capacity 

until about 10 p.m. This prevented the 

airport from having an evening period to 

recover from congestion-induced delays. 

During fiscal year 2007, the average 

daily operations at JFK increased 21 

percent over fiscal year 2006. 

Corresponding to the increased 

operations, on-time performance and 

other delay metrics have declined year 

over year. The on-time performance at 

JFK, which is defined as the arrival at 

the gate within 15 minutes of the 

scheduled time, declined from 68.5 

percent in fiscal year 2006 to 62.19 

percent in fiscal year 2007. On-time 

arrivals during the peak travel months 

of June, July and August declined from 

63.37 percent in 2006 to 58.89 percent 

in 2007, while on-time departures 

declined from 67.49 percent to 59.89 

percent. For the entire fiscal year, the 

average daily arrival delays exceeding 

one hour increased by 87 percent over 

fiscal year 2006 levels. Taxi out delays, 

which measure the time that aircraft 

wait prior to departing the runway, 

increased by 15 percent. Taxi out delays 

in the evening departure periods 

frequently exceeded an hour in 

duration. 

The increased congestion and 

associated delays at JFK impact other 

airports in the region and the National 

Airspace System (NAS). The airspace 

redesign for the New York/New Jersey/ 

Philadelphia metropolitan area, 

approved in 2007, documents the costs 

and far-reaching impacts of delays that 

originate from this area. The delays that 

cascade from this area throughout the 

NAS are costly and far-reaching, as 

detailed in the recently approved 

airspace redesign plan for the New 

York/New Jersey/Philadelphia 

metropolitan area.4 The FAA has taken 

steps to implement airspace redesign, 

which will provide efficiency and 

congestion relief by, among other things, 

opening additional arrival and 

departure routes in the New York area. 

Further, the FAA, working with 

stakeholders, is implementing shortterm initiatives to improve the 

efficiency of airport operations and air 

traffic control, particularly during 

severe weather. Additionally, the FAA 

has increased the use of a second 

departure runway at JFK when 

conditions permit. However, none of 

these initiatives will offer an immediate 

or complete solution. 

On September 24, 2007, the FAA redesignated JFK as a Level 2 Schedules 

Facilitated Airport 5 for the summer 

2008 scheduling season in accordance 

with the International Air Transport 

Association Worldwide Scheduling 

Guidelines (IATA WSG). 72 FR 54317. 

Under the WSG, carriers must inform 

the coordinator of projected operations 

at a Level 2 airport for the next 

scheduling season. When submitting the 

required information, the airlines 

expressed their intent to add new flights 

at JFK during peak and off-peak hours 

for summer 2008. 

Also in September 2007, the 

Administrator determined that JFK was 

a severely congested airport and that a 

scheduling reduction meeting, under 49 

U.S.C. 41722, was necessary to discuss 

flight reductions with U.S. air carriers to 

reduce over-scheduling and flight 

delays at JFK during peak operating 

hours. On October 12, 2007, the 

Secretary of Transportation determined 

that a scheduling reduction meeting was 

necessary to meet a serious 

transportation need or to achieve an 

important public benefit. On October 

22, the FAA opened a docket for 

information on the establishment of 

flight reduction targets at JFK during 

peak hours. 72 FR 59579. In order to 

address increases in demand by foreign 

air carriers, the FAA determined that a 

Level 3 Coordinated Airport declaration 

was warranted on October 25, 2007.6 72 

FR 60710. 

In order to address increases in 

demand by domestic carriers, the FAA 

convened the scheduling reduction 

meeting with U.S. carrier participants 

on October 23–24, 2007. Subsequent inperson and telephonic meetings took 

place as well. At the sessions, American 

Airlines, Delta and JetBlue, which 

together account for three-quarters of 

the total operations at JFK, withdrew the 

schedule increases each had proposed 

for summer 2008 during the airport’s 3 

p.m. to 7:59 p.m. peak hours. They also 

adjusted the timing of operations during 

those hours and others to smooth out 

peaks. Other airlines also agreed to 

retime peak operations. The FAA 

offered capacity during other hours to 

carriers who re-timed operations or 

added additional flights. 

As a result of the agreements reached 

at that meeting and other discussions 

held with carriers regarding their 

projected summer 2008 schedules, the 

FAA issued a temporary Order limiting 

scheduled operations at JFK, effective 6 

a.m., Eastern Time, March 30, 2008, 

through 11:59 p.m., Eastern Time, 

October 24, 2009, to U.S. and foreign air 

carriers serving the airport and generally 

capping scheduled operations at 81 per 

hour. 73 FR 3519 (Jan. 18, 2008), as 

amended 73 FR 8737 (Feb. 14, 2008). 

This Order temporarily responds to the 

carriers’ desire to regularly schedule 

flights above the airport’s capacity 

during peak operating hours, relieves 

the substantial inconvenience to the 

traveling public caused by excessive 


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7 72 FR 54317 (Sept. 24, 2007). 

8 Id. 

9Requests for additional flights or retiming of 

flights into peak periods were received after the 

FAA’s announced schedule submission deadline of 

October 11, 2007. These requests were 

accommodated only if there was available capacity 

remaining after consideration of historic operations 

and on-time requests. 10 73 FR 14552 (March 18, 2008). 11The appendix to the order included a few 

operations for summer 2008 above the 81 per hour 

limit. 

congestion-related flight delays at the 

airport (which rippled through the 

NAS), reduces the average length of 

delays, and provides for a more efficient 

use of airspace. 

B. History of Congestion Management at 

Newark 

Newark was once subject to the HDR 

although the FAA suspended the 

application of the rule at Newark due to 

sufficient airport capacity to meet 

demand. 35 FR 16591 (Oct. 24, 1970). 

Over the past several years, however, 

Newark has grown to be one of the most 

delay-prone airports in the country. 

Current and anticipated demand during 

peak hours approaches or exceeds the 

average runway capacity, resulting in 

volume-related delays. These delays are 

aggravated by weather or other adverse 

operating conditions. 

Comparing FY 2007 to FY 2000, 

average daily operations at the airport 

decreased about 3 percent (from 1,253 to 

1,219) but performance nevertheless 

suffered. The percent of on-time gate 

arrivals decreased from 70.66 percent to 

61.71 percent; arrival delays greater 

than one hour increased from 54 to 93 

per day on average. 

In 2007, for example, Newark’s ontime arrival performance was 61.8 

percent, the second worst among the top 

35 airports. Based on ‘‘the airport’s 

performance metrics and imbalance 

between air traffic control (ATC) 

capacity and demand that is expected to 

continue in the near term,’’ the FAA 

designated Newark a Level 2 IATA 

Schedules Facilitated Airport for the 

summer 2008 scheduling season.7 The 

FAA explained that ‘‘increased levels of 

air traffic operations, congestion and 

delay at [both JFK and Newark] airports 

and a tangible decrease in operational 

performance’’ warranted this 

designation.8 The FAA found the 

morning hours of 7 a.m. to 10 a.m. and 

the afternoon and evening hours of 2 

p.m. to 10 p.m. were particularly 

constrained, but that capacity otherwise 

was available for retiming of flights or 

new operations. 

The FAA modeled the proposed 

summer 2008 schedule requests against 

Newark’s average runway capacity, and 

delay projections for the summer of 

2008 indicated a potential increase of 

almost 50 percent. The FAA also 

discussed carriers’ future schedule 

plans at Newark and asked carriers to 

consider scheduling flights at times 

where there was available capacity. It 

was clear that some carriers intended to 

proceed with their plans to begin 

operations according to their proposed 

schedules during the busiest hours, 

regardless of the potential impact on 

delay. Based on the requested schedules 

for Newark and anticipated additional 

demand for Newark due to the operating 

limits underway at JFK, the FAA 

determined that the anticipated summer 

2008 demand would overtax Newark’s 

capacity, warranting a Level 3 

Coordinated Airport designation. 72 FR 

73418 (Dec. 27, 2007). After the 

designation, a series of discussions with 

the FAA led some carriers, including 

the hub carrier, Continental, to move 

some of their historic flights from the 

most oversubscribed hours. The 

movement of these flights tended to 

smooth the scheduling peaks and 

valleys at Newark. 

The information provided by the 

carrier for the summer 2008 scheduling 

season reflected a projected increase in 

flight schedules during the summer of 

2008, especially during the peak hours. 

U.S. and foreign carriers had planned 

about 100 new operations per day at 

Newark, many during the afternoon and 

early evening hours for the summer of 

2008.9 That number of new flights, 

along with proposed retiming of historic 

flights into busier time periods, would 

have caused massive delays, because 

they would have exceeded the airport’s 

optimal rate of handling flights over 

multiple, consecutive hours. For several 

consecutive hours, the number of hourly 

arrivals and departures would have 

reached the upper 80s to the mid-90s. 

These operations would have 

significantly exceeded the airport’s 

average capacity of 83 total operations 

over the 12-month period ending 

August 2007. These additional flights 

would have caused a spike in 

congestion and delays at Newark and 

would also have had an adverse effect 

on other airports in the New York region 

and on the NAS. 

Consequently, on March 18, 2008, the 

FAA proposed to place temporary caps 

on peak hour operations at Newark to 

mitigate persistent congestion and 

delays at the airport.10 73 FR 14552. The 

cap would limit scheduled operations 

during constrained hours to an average 

of 81 per hour.11 The FAA stated that 

it identified Newark’s average capacity 

by considering the airport’s capacity to 

be ‘‘the higher value of either the 

aircraft throughput at the airport in a 

given hour or the number of arrivals and 

departures that ATC personnel 

identified as achievable in that hour.’’

73 FR 14552, 14554. The measurement 

reflected ‘‘the airport’s demonstrated 

and potential performance over time 

under actual meteorological and 

operational conditions.’’ Id. The FAA 

committed to closely monitoring the 

gains in efficiency and delay reductions 

from implementing the airspace 

redesign and other air traffic control or 

airport operational changes to ensure 

that the scheduling limits reflect the 

available capacity. 

The FAA has adopted its March 18, 

2008, proposal to impose a temporary 

cap on scheduled operations at Newark. 

The cap takes effect 30 days after 

publication and expires 11:59 p.m. 

Eastern Time, October 24, 2009. The cap 

limits peak hour scheduled operations 

to an average of 81 per hour, except as 

provided in the appendix to the Order, 

and total scheduled and unscheduled 

operations to an average of 83. As 

indicated in the proposed order, the 

FAA intends to use the hours with 

scheduled operations below the limit of 

81 for delay mitigation and would lease 

new capacity over 81 pursuant to an 

auction. 

C. New York Aviation Rulemaking 

Committee 

In addition to the regulatory 

initiatives discussed above, on 

September 25, 2007, the Acting FAA 

Administrator established an Aviation 

Rulemaking Committee (ARC) to 

explore various options, including 

market-based mechanisms, for 

addressing airspace congestion in the 

New York area. The ARC was comprised 

of officials from the FAA and the Office 

of the Secretary of Transportation 

(OST), the Port Authority of New York 

and New Jersey (Port Authority), 

representatives of carriers and operators 

serving JFK, Newark, LaGuardia, and 

Teterboro airports, airport and aviation 

industry trade associations, and 

consumer groups. 

By design, the ARC provided 

opportunity for extensive input by all 

stakeholders, having members from 

major air carriers in the United States 

and their trade organizations (the Air 

Transport Association, the Regional 

Airline Association, the Air Carrier 

Association of America, the National 

Air Carrier Association), foreign carriers 

and their worldwide trade organization 

(IATA), the Port Authority, and the 

Airports Council International-North 

America. Through the ARC process, 

these stakeholders played a key role in 


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exploring ideas to address congestion 

and ensuring that any actions 

contemplated by the Department and 

the FAA would be fully informed. The 

ARC worked throughout the fall and 

submitted a report to the Secretary, 

dated December 13, 2007, discussing its 

findings. A copy of the ARC Report may 

be found at: http://www.dot.gov/affairs/ 

FinalARCReport.pdf. 

II. Discussion of Proposed Rule 

Today’s proposal would replace the 

Orders imposing operating limitations at 

JFK and Newark and establish a rule 

limiting unscheduled operations at 

those airports. The Orders are scheduled 

to expire on October 24, 2009. If 

adopted, the proposed rule would apply 

to all operations at JFK and Newark 

between the hours of 6 a.m. and 10:59 

p.m., every day. For reasons set out in 

the Newark and JFK Orders, discussed 

above, the FAA has determined that 

capacity is constrained at these airports 

for this entire period. 

The following table briefly 

summarizes today’s proposal and 

identifies differences between the two 

options. 

PROPOSED REGULATION FOR JFK AND NEWARK

Feature Newark 

JFK 

Option 1 Option 2 

Base Schedule ............................... Seasonal schedule, as approved 

by the FAA, for summer 2008 

and winter 2008/2009.

Seasonal schedule, as approved 

by the FAA, for summer 2008 

and winter 2008/2009.

Same as Option 1. 

Slot ................................................. Defined as right to land or depart 

(not both) in a 30-minute time 

window.

Defined as right to land or depart 

(not both) in a 30-minute time 

window.

Same as Option 1. 

Number of Slots ............................. 81/hour + 1 to 2 unscheduled ...... 81/hour + 1 to 2 ............................ Same as Option 1 

Slots definition ............................... Common Slots: The Baseline (up 

to 20 slots per carrier) plus 90% 

of slots above 20 have 10 year 

leases; Limited Slots: 10% 

would have shorter leases and 

be auctioned over five years 

(2% each) (after which they 

convert to Unrestricted Slots).

Common Slots: the Baseline (up 

to 20 slots per carrier) plus 90% 

of slots above 20 have 10 year 

leases; Limited Slots: 10% 

would have shorter leases and 

be auctioned over five years 

(2% each) (after which they 

convert to Unrestricted Slots).

Common Slots: The Baseline (up 

to 20 slots per carrier) plus 80% 

of slots above 20 would have 

10 year leases; Limited Slots 

20% would have shorter leases 

and then be reallocated via 

auction over five years (4%/yr). 

Slot Time of Day ............................ 6:00 a.m. through 10:59 p.m., everyday; no more than 81 in any 

one hour or 44 in any half-hour.

6:00 a.m. through 11:59 p.m., everyday; no more than 81 in any 

one hour or 44 in ay half-hour.

Same as Option 1. 

Mechanics ...................................... ‘‘Fair’’ initial distribution with half 

of slots with less than 10 years 

life selected by carriers; the 

other half selected by FAA according to specified rules.

‘‘Fair’’ initial distribution with half 

of slots with less than 10 years 

life selected by carriers; the 

other half selected by FAA according to specified rules.

Same as Option 1. 

Auction ........................................... Limited Slots would be auctioned 

among carriers.

Limited Slots would be auctioned 

among carriers.

Same as Option 1. 

Auction Proceeds ........................... Auction funds to FAA to defray 

costs of auction, then to NY capacity/projects.

Auction funds to FAA to defray 

costs of auction, then to NY capacity/projects.

Auction funds (net of auction 

costs) to incumbent holder; incumbent cannot bid on own 

slots. 

Use/Lose ........................................ Only on grandfathered slots as 

consideration for slots.

Only on grandfathered slots as 

consideration for slots.

As as Option 1. 

Term ............................................... Program is through March 2019; 

slot lives are whatever proportion of 10 years remain upon 

reallocation.

Program is through March 2019; 

slot lives are whatever proportion of 10 years remain upon 

reallocation.

As as Option 1. 

Bidders ........................................... Airlines .......................................... Airlines .......................................... As as Option 1. 

Holders ........................................... Holders of record (not marketing 

carrier).

Holders of record (not marketing 

carrier).

As as Option 1. 

New or returned capacity ............... IATA WSG .................................... IATA WSG .................................... As as Option 1. 

Secondary market .......................... Transparent not blind: carrier notifies FAA of intent to sublease; 

FAA makes slot availability 

known; bilateral negotiations; 

final terms disclosed to OST for 

monitoring.

Transparent not blind: carrier notifies FAA of intent to sublease; 

FAA makes slot availability 

known; bilateral negotiations; 

final terms disclosed to OST for 

monitoring.

Same. 

Logistical swaps of slots ................ Permitted ...................................... Permitted ...................................... Same. 

The rule would apply to carriers at 

JFK and Newark. A U.S. air carrier 

conducting operations solely under 

another carrier’s market control with 

unified inventory control would not be 

considered a separate carrier, an 

approach that is consistent with how 

carriers have been treated historically 

under the various slot regimes. The 

same would not be true for foreign air 

carriers. This difference in treatment 

reflects the commercial realities of JFK 

and Newark where there are foreign air 

carriers that share a common owner but 

hold out service to the public as 

separate commercial entities. Treating 

foreign air carriers with common 

ownership as separate carriers for 

purposes of slot allocation is an 

accepted practice in the international 

arena. The recent SNPRM on LaGuardia 

airport, as well as the LaGuardia Order, 

treats carriers with common ownership 

as a single carrier. 


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As we have explained, we do not 

anticipate that airport and airspace 

system improvements scheduled to 

come on line during the next year and 

a half will be sufficient to meet the 

demand for flights at either JFK or 

Newark for the foreseeable future. 

Therefore, if we let the Orders expire 

according to their terms, we believe 

carriers will once again schedule flights 

well in excess of the respective 

capacities of both JFK and Newark and 

unscheduled operations would grow 

during peak hours. Historic experience 

strongly suggests that congestion and 

delays during peak operating hours 

would result, requiring the FAA to step 

in and address unacceptable operational 

performance yet again. 

Rather than taking repeated, 

piecemeal approaches to limit and 

manage operations at JFK and Newark 

on a short-term basis, we believe it is 

prudent to adopt a longer-term rule 

dealing with the congestion and delays 

we expect to persist at those airports. 

The FAA’s preference in addressing 

congestion resulting from capacity 

shortfalls is to expand the airport and 

airway system capacity and to increase 

the efficient use of existing resources. 

This is by far the most effective way to 

serve the traveling public and to 

promote a strong airport and airway 

system. Although both the FAA and the 

Port Authority are working to 

implement these capacity 

improvements, this rule would 

complement those efforts and mitigate 

projected airport congestion. 

We propose to treat the three major 

New York City-area airports similarly by 

capping operations and introducing 

market mechanisms to allocate some 

slots. While we have provided two 

different versions of the draft regulatory 

text to present two alternatives for 

market allocation, Newark would be 

treated the same under both versions. 

Accordingly, all discussion of 

alternative 2 will be limited to JFK. 

The FAA believes it is necessary to 

address congestion and delays at 

LaGuardia, JFK, and Newark in a 

coordinated manner. Congestion and 

delays at each of the three airports affect 

the other two airports as well as the 

NAS as a whole. The airports are all 

located relatively close to each other 

and consistently have been among the 

nation’s most delay-prone airports. 

Excluding any one of the three major 

New York-area airports from the 

imposition of caps would simply shift 

the problem to the non-slot controlled 

airport, as it would become very 

attractive to carriers wanting to start or 

add service in the New York market. 

The likely result would be an 

overburdening of that airport and the 

system. We propose to award capacity at 

JFK and Newark through mechanisms 

that rely, in part, on the market. These 

mechanisms resemble those in the 

proposal for LaGuardia Airport, but are 

modified to reflect the respective 

characteristics of JFK and Newark. 

Today’s proposal will ensure that the 

scarce airspace resources are used for 

operations by the carriers valuing the 

resources most highly. Additionally, 

over the course of the ten-year life of the 

proposed rule, we will monitor the need 

to maintain the caps and may increase 

the number of scheduled operations in 

response to technological, operational, 

or capacity plans or improvements or to 

other factors that may warrant such 

action. 

We note that both JFK and Newark are 

already capped under the respective 

Orders at 81 scheduled operations per 

hour (except as provided in the 

Appendices to the Orders). Today’s 

proposal, if adopted, will replace those 

Orders. The FAA believes the summer 

of 2007 served as a stark reminder that 

the demand for access to New York City 

is exceptional and cannot be managed 

without these caps at an acceptable 

level of delay. 

The NPRM proposes to apply the 

limits of the recent JFK and Newark 

Orders, except where the Administrator 

determines under § 93.163 of subpart N 

and § 93.183 of subpart O that 

additional slots can be accommodated. 

In addition, there would be no more 

than 44 slots in any 30-minute period at 

JFK and Newark, or more than 81 in a 

60-minute period. We have proposed to 

specify the 30- and 60-minute 

limitations in addition to the hourly 

maximum to avoid excessive bunching 

of slots, which can cause unnecessary 

delays. Section 93.163(d) of subpart N 

and § 93.183 of subpart O sets out the 

authority of the Administrator to 

increase the number of slots as airport 

conditions warrant. No additional 

rulemaking would be required for any 

increase. 

JFK and Newark have similar demand 

profiles, with an early morning peak 

that typically clears by mid-morning. 

Demand approaches capacity in the 

early afternoon and typically continues 

until about 10 p.m. Scheduled requests 

submitted by carriers to the FAA for 

summer 2008 showed marked increases 

throughout the day. Modeling and 

experience demonstrate that delays 

grow exponentially and have a 

cascading effect on airport operations 

and individual flights at the airport. As 

part of the discussions with the carriers 

regarding summer 2008 schedules, 

carriers decided to schedule flights at 

off-peak hours since the FAA was 

unwilling to authorize new peak hour 

flights. Based on demand and the 

modeling showing the potential for 

increased delays, the FAA determined 

that the appropriate hours to limit 

flights would cover much of the 

operating day. 

The FAA proposes that the final rule, 

if adopted, would terminate at 11 p.m. 

on March 30, 2019. This approach will 

allow for future determinations by the 

FAA as to whether a cap is still needed 

and, if so, whether changes are needed 

to more efficiently manage the scarce 

resource. At present it is impossible to 

determine what changes in business 

models may occur over the next ten 

years. In addition, full implementation 

of the New York/New Jersey/ 

Philadelphia Metropolitan Area 

Airspace Redesign project and NextGen 

technologies are expected to 

successfully impact delays and air 

traffic efficiency within the next ten 

years, and we should not prejudge the 

market response. The FAA plans to 

evaluate the effects of the slot program 

proposed today on the distribution of 

slots and entry into JFK and Newark. 

The agency intends to take this 

experience into account in all 

congestion management activities. 

III. Proposal for Efficient Allocation of 

Capacity at JFK and Newark 

A. Need for More Efficient Allocation 

Congress has directed the Department 

to place ‘‘maximum reliance on 

competitive market forces and on actual 

and potential competition.’’ 49 U.S.C. 

40101(a)(6). The ability of carriers to 

initiate or expand service at the airport 

is hindered, in large part, by the 

imposition of a cap. Accordingly, the 

FAA believes it must strike a balance 

between (1) promoting competition and 

permitting access to new entrants and 

(2) recognizing historical investments in 

the airport by carriers and the need to 

provide continuity. It is not the role of 

the Government either to dictate 

particular business models or to 

constrain a market and provide no 

means for others to enter that limited 

market. Simply imposing a cap and then 

doing nothing to ensure that there are 

competitive market forces and actual 

and potential competition is 

unacceptable. 

Not only is the FAA required to 

assure the efficient use of the NAS, but 

it must do so in a manner that does not 

penalize all potential operators at the 

airport by effectively shutting them out 

of the market. Accordingly, the FAA 

believes that it is well within the 

agency’s authority in 49 U.S.C. 40103 to 


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12Under the cooperative agreements FAA will be 

transferring a leasehold interest in the slots, but 

FAA will not entirely dispose of its property. 

Receiving compensation from these transfers is 

antithetical to the definition of a cooperative 

agreement. Nonetheless, to the degree that adequate 

compensation might be considered required under 

49 U.S.C. 40110(a)(2), the compensation will be the 

carriers’ agreement to be bound by the terms in the 

cooperative agreement as well as FAA’s recognition 

of the public value received by the carriers’

historical investment at JFK and Newark. 

provide some mechanism for slot 

reallocation. Today’s proposal attempts 

to strike the appropriate balance by 

actively developing a market that values 

the limited asset that the FAA created. 

B. Authority To Assign Slots at JFK and 

Newark 

The FAA has statutory authority to 

dispose of property. Because of the 

congressional mandate in 49 U.S.C. 

40101(a)(6) to rely to the maximum 

extent possible on competitive market 

forces, the FAA is tailoring its approach 

at the two airports. Today the agency is 

requesting comment on an approach 

whereby the FAA would establish a cap 

on operations and address, through a 

regulation, which slots would revert to 

the FAA for reallocation but would use 

its transaction authority to allow for 

reallocation of slots via a market-based 

mechanism. 

1. Authority To Determine the Best Use 

of the Airspace 

The United States Government holds 

exclusive sovereignty over United States 

airspace. 49 U.S.C. 40103. Citizens of 

the United States have a public right of 

transit through navigable airspace, but 

the FAA is authorized to assign the use 

of the airspace necessary to ensure the 

efficient use of airspace. To the extent 

these needs can be met without 

specifying which citizen may transit or 

reserve a particular segment of airspace 

at a particular time, there was no need 

for the FAA to place constraints such as 

slots on the use of the airspace—this 

remains the case for the vast majority of 

the NAS. 

As described above, however, at New 

York-area airports, in order to ensure 

the efficient use of airspace, FAA has 

had to impose constraints by assigning 

to carriers operational authority to 

conduct a scheduled arrival or 

departure operation on a particular day 

of the week during a specified 30- 

minute period. These reservations of 

airspace were called slots under the 

HDR. After the FAA issued the ‘‘buy/ 

sell rule’’, 14 CFR part 93, subpart S, 

these slots were treated not only as 

property of the United States 

Government, but also as if the carriers 

had a property interest, albeit an interest 

that was heavily encumbered by the 

restrictions imposed by the FAA. The 

nature of this property interest, 

however, has always been somewhat 

unclear. To encourage the most efficient 

use of constrained airspace, the FAA is 

clarifying the proprietary interest that 

the FAA is willing to transfer to airlines 

for a limited period of time. However, 

the FAA has determined that in order to 

assure the efficient use of airspace, it 

cannot simply permit those whom it 

grants authority to use the airspace to 

treat that authority as their own; it is the 

United States Government that has 

sovereignty over, and control of, the 

airspace. Such an approach would not 

only ignore the inherently valuable 

nature of an airspace usage assignment, 

but allows a select few to profit from a 

governmental interest to the detriment 

of their competitors and the public as a 

whole. 

2. Authority To Enter Into Leases and 

Cooperative Agreements 

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). When disposing of 

an interest in property, however, the 

FAA must receive adequate 

compensation. 49 U.S.C. 40110(a)(2). 

Nevertheless, the FAA also has broad 

authority to enter into cooperative 

agreements on such terms and 

conditions as the FAA may consider 

appropriate. 49 U.S.C. 106(l)(6). Under 

the Federal Grants and Cooperative 

Agreements Act, a cooperative 

agreement is to be used when the 

principal purpose of the agreement is to 

transfer a thing of value to a recipient, 

either public or private, to carry out a 

public purpose of support or 

stimulation authorized by law, instead 

of acquiring (by purchase, lease or 

barter) property or services for the direct 

use or benefit of the agency, and there 

is substantial Federal involvement in 

the activity. 

Because we must balance the need to 

promote market forces with the value of 

continuity and certainty of services, the 

FAA believes this is the appropriate 

vehicle to use to transfer most of the 

slots as described in the following 

options, for a ten-year period, to the 

carriers that currently have operating 

authorizations at JFK and Newark. 

Doing so will recognize these carriers’

historical investment in JFK and 

Newark, and the public interest that has 

been served by that investment. In 

addition, it would prevent disruption to 

the national air transportation system 

that might otherwise occur, allowing the 

public to benefit from continued 

certainty of readily available air 

transportation to and from these 

airports. There will, however, be 

substantial ongoing Federal 

involvement with these slots, as the 

FAA will retain ATC responsibilities for 

assuring that the use of these segments 

of airspace for their specified times is 

done safely and with maximum possible 

efficiency.12

C. Description of the Proposal 

1. Categories of Slots 

Today’s proposal would create three 

categories of slots: Common Slots, 

Limited Slots, and Unrestricted Slots. 

All three categories would be held by 

carriers pursuant to a lease. While the 

overwhelming percentage of slots will 

be Common Slots, many carriers would 

hold slots in all three categories. 

Common Slots would be assigned to 

carriers currently serving the airports, 

and would be leased for the duration of 

the rule, i.e., ten years. Once the rule 

sunsets, all interests would revert to the 

FAA, assuming the rule is not replaced 

by a different regulatory regime. Unlike 

slots allocated under the HDR and 

Operating Authorizations allocated 

under the JFK and Newark Orders, 

carriers would be granted clear property 

rights to Common Slots, allowing the 

slots to be collateralized or subleased to 

another carrier for consideration. 

However, Common Slots would be 

subject to reversion to the FAA under 

the rule’s minimum usage provision and 

could be withdrawn for operational 

reasons. 

Leases for Limited Slots would also be 

assigned by cooperative agreements 

between the FAA and the carriers, but 

during each of the first five years of the 

rule, a percentage of Limited Slots 

would be made available by auction, at 

which point they would be converted to 

Unrestricted Slots. Limited Slots would 

consist only of those slots operated on 

a daily, year-round basis. Thus, slots 

used on a seasonal or on a less-thandaily basis would not be designated as 

Limited Slots. The FAA arrived at this 

tentative proposal because we seek to 

populate the auction pool with those 

slots that are most economically 

valuable to carriers seeking to serve 

New York City. Slots only available on 

certain days or during one scheduling 

season would likely have value only to 

small subsets of operators at any given 

time, thus limiting the effectiveness of 

the market. Although slots would be 

awarded to carriers through the auction 

for daily, year-round operation, the 


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13 ‘‘Baseline operations’’, as defined in § 93.162 

and § 93.182, are up to 20 slots per day. 

acquiring carrier may sublet to other 

carriers any portion of that award. 

Under alternative 1, as currently 

proposed, 10 percent of the slots above 

the baseline operations 13 at both JFK 

and Newark would be designated as 

Limited Slots, and thus could become 

Unrestricted Slots. Under alternative 2, 

20 percent of the slots at JFK above the 

baseline operations would be designated 

as Limited Slots. 

The FAA recognizes that the 

percentage of slots that the agency 

proposes to reallocate represents a 

relatively small percentage of the total 

number of slots at the two airports, 

particularly since each carrier’s first 20 

slots, at each airport, will not be subject 

to reversion. Accordingly, we 

specifically invite commenters to 

address the desirability of assigning 

different percentages for both JFK and 

Newark under both alternatives. For 

example, should we increase the 

percentages to be auctioned under 

alternative 1 to 20 percent? 

Additionally, the FAA seeks comment 

on whether the proposed percentages 

are sufficient to ensure the opportunity 

for new entry and an efficient allocation 

of slots among all carriers at the 

airports, such that each slot is allocated 

to the user who values it the most 

highly. Increasing the percentage of 

slots for auction would further facilitate 

the use of market forces to allocate 

capacity, which is a major goal of this 

rulemaking. On the other hand, 

lowering the number of slots withdrawn 

for auction would be less disruptive to 

the carriers currently operating at JFK 

and Newark, and would allow the 

agency to gain experience with the 

auction process. The agency also seeks 

input on the appropriate percentages of 

slots available for auction (both in total 

and annually) sufficient to assure an 

efficient allocation of this scarce 

resource. The final rule may provide for 

the reversion of a higher or lower 

percentage of slots available for auction 

than we have proposed under either 

alternative in this document. 

Following a review of the comments 

and further consideration, we may 

provide in a Final Rule for an auction 

of a greater percentage of a carrier’s 

Limited Slots. As with Common Slots, 

Limited Slots could be withdrawn 

under the proposed minimum usage 

provision, or for operational reasons. 

Unrestricted Slots are slots that a 

carrier would lease directly from the 

FAA under the auction processes under 

both alternatives. These slots would not 

be withdrawn by the FAA either under 

the minimum usage provisions or for 

operational reasons because carriers are 

required to purchase them due to 

government action. As with Common 

Slots, Unrestricted Slots would expire 

when the rule sunsets. 

2. Initial Assignment of Capacity 

Upon the rule’s effective date, each 

carrier at JFK and Newark would 

automatically be assigned up to 20 slots. 

Carriers whose approved schedules 

under the JFK and Newark orders call 

for fewer than 20 operations would be 

assigned the same number of slots as 

they are approved to operate under the 

respective orders. These slots would 

constitute carrier’s baseline operations. 

Slots above a carrier’s baseline 

operations would be designated as 

Common or Limited Slots as described 

above. The FAA believes this is a 

rational approach to assuring that no 

carrier is affected at a level that could 

seriously disrupt its existing operations 

at the airports. 

The number of slots to be designated 

as Limited Slots would be calculated 

after subtracting the slots in each 

carrier’s baseline operations of up to 20 

slots per day. In other words, if a carrier 

has 30 slots at JFK or Newark, 20 would 

be protected at that airport. Under 

alternative 1, 10 percent of the 

remainder, or one slot, would become a 

Limited Slot. Under alternative 2, 20 

percent of the remainder, or two slots, 

would become Limited Slots at JFK. Of 

course, most carriers hold a number of 

slots that would not be evenly divisible 

by applying a 10-or 20-percent rule. In 

such situations, the FAA would round 

the number of slots to be designated as 

Limited Slots up or down to the nearest 

whole number. As a practical matter, a 

carrier would have to have at least 25 

slots under alternative 1 or 23 slots 

under alternative 2, before any would be 

designated as Limited Slots. 

Given the seasonality of operations at 

these airports, both in terms of 

differences between summer and winter 

operations and within-season variability 

(which is much greater than at 

LaGuardia), the determination of which 

carrier is entitled to which slot will be 

based on the seasonal schedules 

approved by the FAA for summer 2008 

and winter 2008/2009. The FAA has 

tentatively decided to assign the 

majority of slots at the airport to existing 

carriers in order to minimize disruption 

and to recognize the carriers’ historical 

investments in both the airport and the 

community. 

No later than the final rule’s effective 

date, the FAA will inform all carriers 

that will have Limited Slots of the 

number of Limited Slots they will have. 

The designations as Limited Slots 

would be made by both carriers and the 

FAA. Once the total number of Limited 

Slots is communicated to each carrier, 

the carrier would designate 50 percent 

of the total by notifying the FAA within 

10 days which of the slots in its slot 

pool it designates as Limited Slots. 

During the subsequent 10 days, the FAA 

would determine the remainder of slots 

that will be designated as Limited Slots 

for each carrier. In making this 

determination, the FAA would initially 

exclude from consideration slots held 

during all hours where carriers have 

collectively determined two or more 

slots should be Limited Slots. This 

approach will assure that slots will be 

available for auction throughout the 

day. The time windows for the Limited 

Slots would be distributed evenly over 

the day to the extent possible. 

Limited Slots would expire on 

designated dates and the duration of 

each Limited Slot would be arranged to 

ensure that each affected carrier’s 

aggregate lease duration would be 

approximately equal to that of the other 

affected carriers. The FAA would 

publish a list showing the expiration 

date for each Limited Slot. In this way, 

all carriers would know within 20 days 

of the rule’s effective date what slots 

will become available for purchase, and 

when. 

A technical report more fully 

explaining how Limited Slots could be 

categorized and allocated was prepared 

for the LaGuardia rulemaking. A copy of 

that report has been placed in the 

docket for this rulemaking. Commenters 

are encouraged to review and comment 

on that document. 

3.Market-Based Award of Capacity 

For the first five years of the rule, the 

FAA would conduct an annual auction 

of Limited Slots. Section 93.165(c) of 

subpart N and § 93.185 of subpart O 

provides for the conversion of Limited 

Slots to Unrestricted Slots. In 

accordance with the schedule published 

under § 93.164, one-fifth of the 

identified Limited Slots would revert to 

the FAA for auction each year. Both the 

auction and secondary market would be 

open to any carrier in order to avoid 

artificially restricting any carrier’s 

flexibility to acquire Unrestricted Slots 

for its services, and to offer carriers 

wishing to initiate or expand operations 

at JFK or Newark the full range of 

opportunities to acquire slots. 

Under alternative 1, the FAA is 

proposing to have 10 percent of the 

carriers’ slots above its baseline 

operations revert to the FAA over the 

first five years of the rule. The FAA 

would auction the reverting Limited 


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14The FAA will attempt to auction an even 

number of slots during each hour to provide an 

opportunity for a carrier to replace a slot that it is 

auctioning. This may not always be possible. 

Slots, with FAA retaining proceeds of 

the sale. After recouping its auction 

costs, the FAA plans to spend the 

remainder of the proceeds on aviation 

congestion and delay management 

initiatives in the New York City area. 

Alternative 1 would make 

approximately 19 slots available for 

auction at JFK and 18 slots available at 

Newark each year. Carriers typically 

require pairs of slots, so alternative 1 

would provide the equivalent of 

approximately 9 round trips per day at 

both airports. Under alternative 1, any 

carrier could bid on a slot in an auction 

that is blind to the participants and it 

would be awarded in the form of an 

Unrestricted Slot to the highest 

responsive bidder. The winning carrier 

could commence operations using the 

newly acquired slot at the beginning of 

the next summer scheduling season. 

Alternative 2 proposes a different 

auction procedure for JFK that would 

provide that the holder of a Limited Slot 

would retain the proceeds of its sale in 

the auction. The only deduction from 

the sale price would be for the FAA’s 

costs associated with conducting the 

auction. 

Under this alternative, 20 percent of 

the carriers’ slots above the baseline 

operations at JFK would revert to the 

FAA over the first five years of the rule. 

Therefore, approximately 179 slots 

would be available at JFK, of which 

approximately 36 slots would be 

available for auction each year. Carriers 

typically require pairs of slots, so 

alternative 2 as proposed would provide 

the equivalent of 18 round trips per day 

at JFK. 

Under alternative 2, Unrestricted 

Slots would be awarded to the highest 

responsive bidders in a blind auction. 

Only cash could be bid for a slot. Since 

the goal of this rulemaking is to impose 

marketplace discipline on the use of 

slots, the FAA has proposed certain 

restrictions in alternative 2 to reduce 

anticompetitive behavior. For example, 

carriers may not set minimum bids for 

the slots, so they cannot impose a price 

so prohibitively high as to effectively 

preclude any sales. For similar reasons, 

carriers would not be permitted to bid 

on their own slots; otherwise, knowing 

that no actual payment would be made, 

they could bid unrealistic amounts that 

no competitor could match. With 

unrealistic bids, the fair market value of 

the slot would not be identified. 

Although the prohibition against a 

carrier bidding on its own slots would 

mean that the carrier would no longer 

have that slot, any carrier could 

negotiate for subleases or transfers from 

other carriers in the secondary market or 

bid on other slots concurrently up for 

auction and held by other carriers.14

The FAA believes that the above 

procedures could not be applied at 

Newark, because the current market 

profile there would diminish the 

likelihood that the auction would bring 

the beneficial effects of market forces 

that this proposal seeks to stimulate. At 

JFK (and at LaGuardia), no one carrier 

provides the vast majority of slots that 

would be up for auction, and any carrier 

that values a slot at a particular time 

could have the opportunity to bid on an 

equivalent slot that is held by another 

carrier. At Newark, however, 

Continental would have approximately 

174 of its slots up for auction if 20 

percent of its slots reverted to the FAA, 

but would be unable to bid on those 

slots or on an equivalent number of slots 

because only 19 slots would be available 

from any other carrier. Under this 

circumstance, the prices paid for slots at 

Newark may not be reflective of their 

actual value, with no meaningful slot 

market developing. 

Among the specific questions on 

which we request comment is whether 

under alternative 2, 20 percent of a 

carrier’s slots above its baseline at 

Newark should revert to the FAA for 

auction, even though the reallocation 

mechanism would be the same as under 

the first alternative. The agency also 

requests comment on whether 

alternative 2, in its entirety, should be 

adopted at Newark. 

The FAA considered using a 

transparent auction procedure for both 

alternatives 1 and 2. The FAA believes 

that such transparency with respect to 

identity of the bidders and their 

corresponding bids would encourage 

gaming of the auction and significantly 

reduce the economic value of the initial 

auction of slots. The FAA also believes 

that an auction where the identity of the 

bidders is not known assists new 

entrants seeking to enter the market. 

Therefore, under Alternative 1, the 

identity of bidders would not be known 

to other bidders. Since the FAA will 

accept the highest responsive bid, 

regardless of who that bidder is, there is 

no need to keep bidders’ identities from 

the agency. Under Alternative 2, the 

identity of bidders would be known 

only to the auctioneer, and then only for 

administrative purposes. 

The FAA does not propose to auction 

slots after the first five years because it 

believes that ideally slots should 

transfer from one carrier to another 

through the secondary market. Not only 

will the auctions help create a market 

for slots, but all carriers will be able to 

assess the true market value of a slot. 

Armed with information on how much 

a given slot is likely to be worth on the 

open market, carriers (and their 

shareholders) will be in an even better 

position to determine how best to use 

their slots based on commercial 

considerations. 

In the unlikely event no bids were 

received for a slot, we propose that the 

FAA retire the slot until the next 

auction to assist in delay mitigation. We 

request comment on whether, in the 

alternative, the carrier that previously 

held the slot should retain the slot for 

use until the next season. 

4. New and Returned Capacity 

As mentioned above, the FAA may 

raise the caps at JFK or Newark based 

on an analysis of delay statistics, aircraft 

operations at the respective airports, 

airport and airspace improvements, and 

other pertinent factors. The agency 

believes there is unlikely to be much, if 

any, returned capacity because carriers 

can sublease slots that they do not 

utilize efficiently rather than surrender 

them to the FAA because of inadequate 

usage. It is impossible at this time to 

estimate with any certainty how much 

new capacity is likely to come online; 

but it is unlikely there will be much 

new capacity in the near-term. Over a 

longer period of time, the realization of 

new capacity is dependent upon 

NextGen technologies. The efficiencies 

realized from the New York/New Jersey/ 

Philadelphia Metropolitan Area 

Airspace Redesign project will benefit 

delay reduction and will not be used to 

add new capacity at the airports. 

The auction method proposed for 

LaGuardia, whereby all new and 

returned capacity would be auctioned, 

maximizes the total number of slots 

available for auction and would, in turn, 

increase the efficiencies that the 

proposal is intended to generate. 

However, the FAA believes the 

character of operations at JFK and 

Newark justifies a different approach. At 

both airports, a substantial percentage of 

air traffic is international. Historically, 

the FAA has used the IATA Worldwide 

Scheduling Guidelines (WSG) to 

allocate slots for international 

operations at slot constrained airports to 

the extent they did not conflict with the 

rules imposing caps at the affected 

airports. 

The use of the WSG to assign new 

slots could affect carriers’ scheduling 

incentives and reduce the efficiency of 

the market for existing slots. However, 

given the amount of new capacity that 


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29634 Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Proposed Rules 

15As indicated in the Order Limiting Operations 

at John F. Kennedy International Airport, 73 FR 

3510 (1/18/08) and the Notice of Proposed Order 

Limiting Scheduled Operations at Newark Liberty 

International Airport, 73 FR 14552 (3/18/08), the 

FAA intends to auction new or returned capacity, 

if any, under those orders. The contract would 

cover auctions at all possible airports. The FAA is 

not waiting until this rule is finalized to award the 

contract, because this proposal and the two orders 

contemplate potentially conducting the first auction 

before the end of the year. 

16Since the auction will address the lease of slots 

awarded by the FAA under its leasing authority 

rather than under any administrative allocation, 

notice to interested parties will be governed by 

applicable procurement law rather than the 

Administrative Procedure Act. 

is likely to be available during the rule’s 

timeframe, this effect is likely to be 

small. Given the significant 

international presence at both airports, 

the FAA proposes to follow procedures 

for assigning newly available or 

returned slots that are largely derived 

from the WSG. A new entrant would be 

defined as a carrier holding or operating 

eight slots or fewer, assigned by the 

FAA, during the constrained hours. The 

FAA understands that in order to 

maintain viable operations at JFK or 

Newark, a carrier would need four to six 

slots for domestic operations, and at 

least two slots for an international 

operation. The five slots contemplated 

under the WSG provide little 

opportunity for a new entrant carrier to 

establish its operations before losing 

new entrant status and thereafter being 

able to expand in the New York market 

only through the purchase of a lease. 

Setting a limit of eight slots 

administratively assigned by the FAA as 

the cut-off for new entrant status allows 

a carrier to maintain its operations and 

provides some ability to grow without 

jeopardizing the carrier’s access to slots 

through the WSG. 

The agency is proposing that carriers 

lose their new entrant status if, at any 

point during the duration of the 

proposed rule, the FAA assigns a total 

of more than eight Common or Limited 

Slots on a particular day. Thus, if a 

carrier were awarded six Common Slots 

on a given day of the week, it could only 

be eligible for assignment of two more 

slots for that day through the WSG 

before losing its new entrant status, 

even if it subsequently subleased some 

of those Common Slots to another 

carrier, giving it less than eight total 

slots. However, the same carrier could 

be assigned six Common Slots, acquire 

any number of additional slots through 

the secondary market, and still be 

eligible to receive two additional slots 

under the WSG as a new entrant. This 

provision is intended to prevent carriers 

from continuing to gain an advantage as 

a new entrant by transferring holdings 

for which they have provided no 

monetary consideration. On the other 

hand, since only those slots 

administratively assigned by the FAA, 

and not those awarded by auction or 

through a lease with another carrier, 

would be considered in determining 

new entrant status, carriers with eight or 

fewer of these slots will not be 

discouraged from entering into lease 

agreements with other carriers, 

contributing to the development of a 

robust secondary market. A carrier’s 

new entrant status would not be affected 

by one-for-one trades, which the agency 

believes are necessary for operational 

efficiency, which do not result in either 

a gain or reduction in operations, and 

for which no consideration may be 

given. The FAA seeks comment on 

whether carriers should be allowed to 

retain their new entrant status if they 

have subleased or otherwise transferred 

slots originally allocated to them by the 

FAA. 

After allowing for retimings and 

accommodating requests by new 

entrants, the FAA would evaluate the 

efficiency of the requested assignment 

in determining which carriers should 

receive the slot. We would consider the 

effective period of operation, the extent 

and regularity of the proposed usage, 

and the carrier’s schedule constraints. 

Using a WSG-based approach would 

facilitate the continued smooth 

integration of JFK and Newark into the 

international slot allocation system. 

Based on discussions during the ARC, 

we believe that the WSG approach is 

well-understood and is an 

internationally-recognized system of 

allocation at airports. 

We recognize that this method of 

allocation differs from the method 

proposed for new and returned capacity 

in the companion proposal at 

LaGuardia. We also recognize that 

several commenters to the LaGuardia 

NPRM argued that any administrative 

allocation of capacity could dilute the 

viability of the secondary market. 

Accordingly, the FAA may adopt an 

allocation method that allocates new 

and returned capacity via an auction. 

This was the approach favored in the 

LaGuardia SNPRM. Under that 

approach, the slots would be auctioned 

as Unrestricted Slots. During the first 

five years of the rule, this new capacity 

would be auctioned at the same time as 

the slots that revert to the FAA under 

today’s proposal. Should insufficient 

capacity be available to justify the 

expense of conducting an auction in the 

last five years of the rule, the FAA 

would retain the slots until sufficient 

capacity was available for a meaningful 

auction. The FAA invites comment as to 

whether the final rule should specify 

that new and returned capacity at JFK 

and Newark be allocated by auction 

instead of by the WSG-method method 

described above. 

D. Auction Procedures 

The FAA is currently engaged in 

procuring the services of a contractor to 

conduct auctions of the proposed 

Limited Slots.15 The details regarding 

the specifics of any potential auction 

will be disclosed after the contractor has 

developed and validated an auction 

process and the FAA is ready to proceed 

with an auction.16

In order to ensure that auction 

participants understand how the 

auction process works, the FAA 

anticipates the contractor would have to 

conduct a training seminar and a mock 

auction prior to each auction. A single 

training seminar and mock auction 

would not suffice since presumably not 

every carrier will participate in every 

auction. The auction would also have to 

be structured to prevent gaming. This 

would likely be accomplished through 

the use of activity rules. 

Finally, the contractor would have to 

provide and maintain a secure 

communication mechanism for 

conducting the auction and develop a 

website that provides information on 

the availability of slots and the logistics 

of the auction. 

At present, the FAA is contemplating 

requiring bidding carriers to provide upfront payments as a prerequisite to 

participating in the auction and 

requiring full payment for the slots at 

the time of award. The Federal 

Communications Commission (FCC) has 

experienced problems with bidders who 

were not financially secure or who were 

otherwise unwilling or unable to pay for 

the awards. The upfront payment could 

also discourage bid-sniping by 

preventing carriers from adding slots to 

their bid package beyond the amount of 

the upfront payment. The FAA 

recognizes that paying for the entire 

lease at one time could be expensive; 

however, it also believes that serious 

bidders should be able to obtain the 

requisite financing. 

E. Secondary Trading 

All slots will have value in the 

secondary market. To the extent that the 

secondary market is not mature and the 

value of slots is not well-known, the 

auction should inform potential buyers 

of the value of these slots and stimulate 

the secondary market. The FAA believes 

that ultimately the best way to 

maximize competition is with the 


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17See United Airlines, Inc. v. Civil Aeronautics 

Board, 766 F. 2d 1107, 1112, 1114 (7th Cir. 1985) 

and cases cited therein; see also H.R. Rep. No. 98–

793, 98th Cong., 2d Sess. (1984) at 4–5, Order 2002–

9–2, Complaint of the American Society of Travel 

Agents, Inc., and Joseph Galloway against United 

Air Lines, Inc, et al. (Docket No. OST–99–6410) and 

Complaint of The American Society of Travel 

Agents, Inc., and Hillside Travel, Inc. against Delta 

Air Lines, et al. (Docket No. OST–02–12004) 

(September 4, 2002) at 22–23. 

development of a robust secondary 

market. Through the years, the FAA has 

received complaints that carriers were 

unaware of possible opportunities to 

buy or lease slots at slot-controlled 

airports and that incumbent carriers 

were colluding to keep new entrant 

carriers out of the airport. 

We believe some measures must be 

taken to assure access to the secondary 

market. All carriers interested in 

initiating operations at JFK and Newark, 

or increasing their operations there, 

should have an opportunity to 

participate in any transactions. 

Accordingly, the FAA proposes to (1) 

permit carriers to include Common 

Slots for sale in the auction, organized 

by the FAA, and (2) establish a 

‘‘secondary-market’’ bulletin-board 

system whereby carriers seeking to 

sublet slots, or to acquire such 

subleases, would notify the FAA, which 

would then post the relevant 

information on its Web site. 

If a carrier wishes to include some of 

its slots in the auction, these slots will 

be treated in the same manner as other 

slots being auctioned by the FAA. 

However, the carrier would be able to 

specify a minimum price for these slots 

so that it need not give up the slots 

unless they command a price that the 

carrier is willing to accept. 

The FAA has tentatively decided that 

transactions via the bulletin-boardsystem would not have to be blind, and 

the transaction could include both cash 

and non-cash payments. While it may 

be argued that transparency among 

parties to the transaction encourages 

anti-competitive behavior, the FAA 

believes that a blind, cash-only 

requirement could be unduly restrictive. 

In particular, the FAA believes that noncash bids promote competition by 

enlarging the pool of potential bidders. 

Thus, non-cash transactions should 

result in both more bidders and 

potentially higher bids. However, it is 

critical that the identities of parties be 

known if non-cash assets are permitted 

because that is the only way to value 

those assets. In addition, the non-cash 

aspect of the transaction would require 

direct negotiating. 

The FAA believes that these concerns 

could be met in a blind secondary 

market. For example, the agency could 

adopt a hybrid scheme whereby the 

initial offer and acceptance would be 

blind and limited to a cash offer, but the 

parties could negotiate non-cash assets 

after the offer had been accepted. Such 

an approach may be workable. During 

the posting of the lease and subsequent 

bidding for the slots, the parties’

identities would not be known. Once 

the auction closed, the FAA would 

forward the highest bid to the sublessor 

without any bidder identification. The 

sublessor would have a set number of 

business days to accept the bid. At that 

point, the parties’ identities would be 

revealed, and they would have a set 

period of time to negotiate the 

possibility of non-cash assets in lieu of 

money as consideration for the lease. If 

the parties were unable to come to an 

agreement, the lease would have to 

proceed on a cash basis. The FAA seeks 

comment on this and other viable 

alternatives. 

The FAA recognizes that non-blind 

transactions could facilitate, and even 

encourage, collusion. The Department 

has the authority under 49 U.S.C. 41712 

to investigate, prohibit, and impose 

penalties on an air carrier for an unfair 

or deceptive practice or an unfair 

method of competition in air 

transportation or the sale of air 

transportation. The Department has 

consistently held that this authority 

empowers it to prohibit anticompetitive 

conduct (1) that violates the antitrust 

laws, (2) that is not yet serious enough 

to violate the antitrust laws but may do 

so in the future, or (3) that, although not 

a violation of the letter of the antitrust 

laws, is close to a violation or contrary 

to their spirit.17

In order to assure that the Department 

can conduct adequate oversight, today’s 

proposal would require carriers to file 

with the Department a detailed 

breakdown of all lease terms and asset 

transfers for each transaction, and the 

subletting carrier would have to disclose 

all bids submitted in response to its 

solicitation. The slot could not be 

operated by the acquiring carrier until 

all documentation has been received, 

and the FAA has approved the transfer. 

The FAA has considered whether to 

publicly disclose non-confidential 

business information so that all carriers 

have an assessment of the relative value 

of the slots that are being traded. We 

have not included language to this effect 

in the proposed regulatory text. 

However, we seek comment on whether 

it would be helpful for this type of 

information to be disclosed. 

Under proposed § 93.168 and 

§ 93.188, trades among U.S. air carriers 

with unified marketing control 

(marketing carriers) would not have to 

be advertised, because they are 

considered a single carrier for the 

purpose of this rule and these trades do 

not have the characteristics of a normal 

arm’s-length transaction. Since foreign 

air carriers are considered separate 

carriers, they would not be able to take 

advantage of this provision. As it has 

done historically, the FAA would 

approve these transactions after it has 

received written evidence from each 

carrier that it consents to the transfer. 

The receiving carrier could not use the 

slot until the FAA has provided written 

approval of the transfer. Same day 

transactions among marketing carriers 

that address emergency situations, such 

as maintenance problems, adverse 

weather, or other unforeseen operational 

issues, could take place without prior 

approval by the FAA, but carriers would 

have to notify the FAA of the trade 

within five business days. 

One-for-one trades between any two 

carriers would similarly not be subject 

to the restrictions of the secondary 

market. Such trades enhance the 

operational efficiency of the airport. 

However, the proposed rule would not 

allow consideration other than slots to 

be offered. When monetary or other 

compensation is involved in a slot 

transfer, the transaction would have to 

be handled as a sublease under § 93.168 

of subpart N and § 93.188 of subpart O. 

As with subleases and trades between 

marketing carriers, the slot could not be 

used by the new carrier until the FAA 

provides written confirmation of the 

transfer. 

IV. Unscheduled Operations 

The FAA intends to limit 

unscheduled operations into and out of 

JFK and Newark during the constrained 

hours. Unscheduled operations at 

Newark would be limited to two per 

hour between 6 a.m. and 11:59 a.m. and 

between 10 p.m. and 10:59 p.m. and one 

per hour between 12 noon and 9:59 p.m. 

At JFK, there would be two 

unscheduled operations permitted per 

hour between 6 a.m. and 1:59 p.m. and 

between 10 p.m. and 10:59 p.m. and one 

per hour between 2 p.m. and 9:59 p.m. 

Under today’s proposal, reservations 

would be required to use the airport 

(except for emergency operations) and 

could be obtained up to 72 hours in 

advance. 

To the extent ATC can handle 

additional requests (for example, in 

good weather) it will do so without 

regard to the reason for the request. 

However, there is no guarantee that the 

FAA would accept more than the 

specified number of reservations per 

hour, and the determination to handle 

more traffic would likely be made on 


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that day. Reservations for all nonemergency flights would still be 

required and would be assigned by the 

FAA’s e-CVRS system. Additional 

information of procedures for obtaining 

reservations will be available on the 

Internet at http://fly.faa.gov/ecvrs. 

The FAA proposes to allow Public 

Charter operators to reserve an 

allowable operation up to six months in 

advance. Since the reservation pool 

consists of operations planned well in 

advance and last-minute operations, the 

number of reservations made available 

to public charter flights up to six 

months in advance would be limited to 

no more than one in any hour and no 

more than 25 percent of the total 

reservations from 12 noon to 9:59 p.m. 

local time. A Public Charter operator 

without the advance reservation could 

attempt to secure a reservation within 

the three-day window that is available 

for all other unscheduled operations. A 

carrier could also elect to use one of its 

assigned slots or obtain a slot from 

another carrier in the secondary market. 

V. Other Issues 

A. 30-Minute Windows 

Consistent with the existing JFK and 

Newark Orders, we propose to assign 

slots at JFK and Newark in 30-minute 

windows. The FAA cautions, however, 

that peaking within the 30-minute 

windows could lead to increased 

congestion. The FAA will continue to 

monitor operations and will address any 

significant operational issues through 

discussions with carriers. 

B. Use-or-Lose 

Consistent with the approach taken in 

the JFK and Newark Orders, which is 

based on the WSG, the FAA is 

proposing a use-or-lose requirement for 

JFK and Newark that takes into 

consideration the seasonal nature of 

international, as well as some domestic, 

operations at those airports. Carriers 

would be expected to operate their 

Common Slots and Limited Slots in 

accordance with approved schedules at 

least 80 percent of the time. However, 

proposed § 93.170 of subpart N and 

§ 93.190 of subpart O would consider 

the summer and winter schedules 

separately. Carriers would be allocated 

slots on the days and for the time 

periods set out in their summer 2008 

and winter 2008/2009 schedules 

approved by the FAA. The carriers will 

be subject to the use-or-lose requirement 

only for those slot times that are 

allocated to them. Unrestricted Slots 

would not be subject to usage 

requirements. 

The proposed rule would allow for 

limited waivers of the minimum usage 

requirements in the event that the 

carrier experiences an unusual and 

unpredictable condition that prevents it 

from using the slot for at least five 

consecutive days. If weather conditions 

prevented operations, for example, an 

operator might be granted a waiver of 

the use-or-lose provisions. 

To enable carriers to make necessary 

operational adjustments, the usage 

requirements will not apply for the first 

90 days after a carrier receives a slot 

under a sublease. However, a transfer 

between carriers under § 93.168(f) of 

subpart N and § 93.188(f) of subpart O 

of this part, in which one carrier holds 

marketing and inventory control of the 

flights operated by another carrier, is 

not a sublease for the purpose of this 

section. Therefore, there would be no 

90-day waiver of the minimum use 

requirements following a transfer 

between them. Likewise, there would be 

no waiver for slots acquired via the 

WSG because carriers would have 

ample time after the slots were allocated 

to take the steps necessary to initiate the 

new operations. 

C. Usage Reporting Requirements 

The minimum usage requirement for 

JFK and Newark would be calculated on 

a seasonal basis. Therefore, we are 

proposing to require carriers to file 

reports with the FAA for each 

scheduling season. In accordance with 

§ 93.172 of subpart N and § 93.192 of 

subpart O, carriers would report the 

usage of Common and Limited Slots. An 

interim report would be due no later 

than September 1 for the summer 

scheduling season and no later than 

February 1 for the winter scheduling 

season. Carriers would also be required 

to file final usage reports within 30 days 

of the last day of the applicable 

scheduling season. 

D. Administrative Provisions 

The FAA may withdraw or suspend 

slots at JFK or Newark for operational 

reasons pursuant to § 93.167 of subpart 

N and § 93.187 of subpart O. The FAA 

would assign a withdrawal priority 

number to each Common and Limited 

Slot by a random lottery. If a reduction 

in operations becomes necessary, slots 

would be withdrawn starting with the 

highest number. The Common or 

Limited Slot with the lowest assigned 

numbers would be the last to be 

withdrawn. The FAA would provide at 

least 45 days’ notice of its intention to 

withdraw or temporarily suspend a slot, 

unless the operational circumstances 

necessitate a shorter notice period. 

Given that a number of operators will 

have only a limited number of slots at 

JFK and Newark, we are requesting 

comment on whether the FAA should 

establish a level of slots that would not 

be subject to withdrawal or temporary 

suspension to fulfill operational needs 

to avoid the possibility of marginalizing 

or excluding such operators from the 

airport. 

VI. Regulatory Notices and Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (19 U.S.C. 4 2531–2533) 

prohibits agencies from setting 

standards that create unnecessary 

obstacles to the foreign commerce of the 

United States. In developing U.S. 

standards, the Trade Act requires 

agencies to consider international 

standards and, where appropriate, to be 

the basis of U.S. standards. Fourth, the 

Unfunded Mandate Reform Act of 1995 

(Pub. L. 104–4) requires agencies to 

prepare a written assessment of the 

costs, benefits, and other effects of 

proposed or final rules that include a 

Federal mandate likely to result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

annually (adjusted for inflation). 

In conducting these analyses, FAA 

has determined this final rule (1) has 

benefits that justify its costs, is a 

‘‘significant regulatory action’’ as 

defined in § 3(f) of Executive Order 

12866, which is also known as an 

‘‘economically significant regulation 

action,’’ and is ‘‘significant’’ as defined 

in DOT’s Regulatory Policies and 

Procedures; (2) would not have a 

significant economic impact on a 

substantial number of small entities; (3) 

would not adversely affect international 

trade; and (4) would not impose an 

unfunded mandate on State, local, or 

tribal governments, or on the private 

sector. These analyses, set forth in this 

document, are summarized below. 

Total Costs and Benefits of This 

Rulemaking 

Through implementation of an 

auction, FAA estimates that this 

proposed rule would result in a longterm improvement in the allocation of 

scarce slot resources at JFK and Newark. 

The estimated present value of net 

benefits of improved slot allocation by 


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18Estimates based on a 7 percent discount rate. 

All results reported in this analysis are costbeneficial at a 7 percent discount rate; using a 3 

percent rate would make them even more so, with 

a present value net benefit of about $836 million 

from 2009–2019 for JFK and $859 million from 

2009–2019 for Newark. 

19The slots auctioned in January 2009 under both 

alternatives would become available beginning in 

the summer season of 2009. Until that time, the air 

carrier that formerly held the Limited Slot could 

continue to use it. 

20 GRA, Incorporated ‘‘Economic Values for FAA 

Investment and Regulatory Decisions, A Guide,’’

prepared for FAA Office of Aviation Policy and 

Plans, (October 3, 2007). Passenger value of time is 

for ‘‘all purposes,’’ reflecting a mix of business and 

leisure travel. 

auctions is between $256 million and 

$267 million at JFK and between $207 

million and 218 million at Newark from 

2009 to 2019. The costs of the rule, with 

a present value between $11 and $22 

million each at JFK and Newark, are due 

to the design, implementation and 

participation in an auction of slots. 

These costs assume that the full cost of 

setting up the auction mechanism and 

participating in the auctions are 

individually borne at each airport; in 

fact, if auctions are conducted at more 

than one airport in the New York area, 

the costs of the setting up and 

participating in the auctions could be 

shared among the users of the airports 

and would be lower on a per airport 

basis. 

This regulatory impact analysis 

assumes as a baseline that in the 

absence of this rulemaking, the FAA 

would not otherwise impose long-term 

caps on aircraft operations at JFK and 

Newark. Therefore, the FAA estimates 

that, through the long-term 

implementation of a cap on aircraft 

operations, this proposed rule would 

result in about a 25 percent reduction in 

the average delay per operation at JFK 

relative to a situation with no cap. After 

allowing for the lost consumer and 

producer surplus due to a reduction in 

air service caused by the caps, the net 

value of the savings in average delay 

attributable to the cap generates a 

present value net benefit of about $686 

million from 2009 to 2019. At Newark, 

this proposed rule would result in about 

a 23 percent reduction in the average 

delay per operation at Newark relative 

to a situation with no cap, generating a 

present value net benefit (after 

deducting lost producer and consumer 

surplus from reductions in air service) 

of about $705 million from 2009–

2019.18 The benefits are estimated by 

comparing the no-rule scenario (similar 

to the situation at JFK and Newark in 

August 2007) with the proposed cap. 

Who Is Potentially Affected by This 

Rulemaking 

• Operators of scheduled and nonscheduled, domestic and international 

flights, and new entrants who do not yet 

operate at JFK and Newark. 

• All communities with air service to 

JFK and Newark. 

• Passengers of scheduled flights to 

JFK and Newark. 

• The Port Authority of New York 

and New Jersey, which operates the 

airport. 

Key Assumptions 

• Base Case: No operating 

authorizations or caps. 

• Cap on operations provides delay 

improvement. 

• Alternative 1: 100 percent of slots 

held by a carrier with fewer than 21 

slots at either JFK or Newark would be 

reassigned to the carrier with 10 years 

of life; for holders with 21 or more slots 

at either airport, 100 percent of the first 

20 slots at each airport would 

reassigned to the carrier with leases of 

10 years and 90 percent of slots above 

the 20 slot base for the carrier would be 

reassigned to the carrier with leases of 

10 years. Ten percent of slots above the 

20 slot base would be designated as 

Limited Slots and would be auctioned: 

one-fifth immediately upon the 

implementation of the rule.19 The 

remaining four-fifths of the Limited 

Slots would be assigned to the carrier 

which held them previously, but with 

leases of 1 to 4 years of life. The FAA 

would auction the Limited Slots to the 

highest bidder in annual auctions 

beginning in January 2009 and ending 

in January 2013. FAA would use the net 

revenues of the annual auctions to 

invest in capacity in the New York area. 

• Alternative 2: For JFK, 100 percent 

of slots held by carriers with fewer than 

21 slots at JFK would be reassigned to 

the carrier with leases of 10 years; for 

holders with 21 or more slots, 100 

percent of the first 20 slots would be 

reassigned to the carrier with leases of 

10 years and 80 percent of slots above 

the 20 slot base for the carrier would be 

reassigned to the carrier with leases of 

10 years. Twenty percent of slots above 

the 20 slot base would be designated as 

Limited Slots and would be auctioned: 

one-fifth immediately upon the 

implementation of the rule. The 

remaining four-fifths of the Limited 

Slots would be assigned to the carrier 

which held them previously, but with 

leases of 1 to 4 years of life. The FAA 

would auction the Limited Slots to the 

highest bidder in annual auctions 

beginning in January 2009 and ending 

in January 2013. Carriers at JFK could 

not bid on slots they formerly held but 

would retain the net revenues generated 

by the sale of the former leases. As 

Newark would be treated the same 

under either approach, the key 

assumptions for Newark are the same as 

under Alternative 1. 

• For the purposes of this evaluation, 

the effective date is 12/01/08. 

Other Important Assumptions 

• Discount Rate—3 and 7 percent in 

real (net of inflation) terms. 

• Period of Analysis: 2009 to 2019. 

• Assumes 2008 constant year (real) 

dollars. 

• Passenger Value of Travel Time—

$28.60 per hour at JFK and Newark.20

Alternatives We Have Considered 

• No Action: This alternative would 

let the current orders restricting 

operations at JFK and Newark expire on 

October 24, 2009 without replacing the 

limitations. The FAA expects that, 

without caps, air carriers would expand 

flight operations at these two airports to 

levels equal to or exceeding those 

experienced in the summer of 2007, 

causing increasingly severe delays at 

these airports and throughout the 

National Airspace System (NAS). 

• Caps: This alternative would 

permanently impose caps at 81 

scheduled operations per hour each at 

JFK and Newark, plus up to two 

unscheduled operations per hour at 

each airport, every day from 6 a.m. to 

10:59 p.m.; it would grandfather current 

holders of operating authorizations to 

operate at the airports. 

• Alternative 1: This alternative 

would institute caps at both JFK and 

Newark as described above and 

reallocate 10 percent of eligible capacity 

via five annual auctions beginning in 

January 2009. The FAA would retain the 

net proceeds of the auctions for use on 

congestion and delay management 

initiatives in the New York City area. 

• Alternative 2: This alternative 

would institute caps at JFK as above and 

reallocate 20 percent of eligible slots at 

JFK, via five annual auctions beginning 

in January 2009. The carrier holding a 

slot to be reallocated would not be able 

to bid on its own slots, but would retain 

the net auction proceeds. Under 

alternative 2, the regime of Newark 

would be the same as in alternative 1. 

We are requesting comment from 

industry on the range of alternatives 

considered. 

Benefits of This Rulemaking 

The primary benefits of this 

rulemaking would be due to the delay 

reduction from the caps on operations 


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and an improvement in the efficiency of 

allocation of scarce slot resources 

through the use of an auction 

mechanism and secondary slot 

subleasing markets characterized by 

clearly defined property rights. 

Costs of This Rulemaking 

The major costs of this proposed rule 

are the costs to the public and private 

sectors of designing, implementing and 

participating in the auction. 

Additionally, the implementation of 

caps under this rulemaking will lead to 

a reduction in flights into JFK and 

Newark compared to what would occur 

without the caps. The FAA has 

estimated the value of these scheduled 

flight reductions and has deducted them 

from the delay benefits of the caps at 

each airport to calculate overall net 

benefits of the caps. FAA specifically 

requests comment on the impacts from 

the reduction in scheduled flights. 

Paperwork Reduction Act 

This proposal contains the following 

new information collection 

requirements. As required by the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)), the FAA has submitted 

the information requirements associated 

with this proposal to the Office of 

Management and Budget for its review. 

Some of the information requirements 

in today’s notice are similar to those 

originally proposed in the SNPRM 

‘‘Congestion Management Rule for 

LaGuardia Airport’’ (Docket No. FAA–

2006–25707; Notice No. 08–04). The 

FAA has applied these requirements 

and summarized them below. 

Title: Congestion Management Rule 

for John F. Kennedy International 

Airport and Newark Liberty 

International Airport. 

Summary: The FAA proposes to 

grandfather the majority of operations at 

JFK and Newark and develop a 

secondary market by annually 

auctioning off a limited number of slots 

at each airport. This proposal also 

contains provisions for use-or-lose and 

withdrawal for operational need. The 

FAA proposes to sunset the rule in ten 

years. More information on the 

proposed requirements is detailed 

elsewhere in today’s notice. 

Use of: The information is reported to 

the FAA by scheduled operators holding 

slots at JFK and Newark. The FAA logs, 

verifies, and processes the requests 

made by the operators. 

This information is used to allocate, 

track usage, withdraw, and confirm 

transfers of slots among the operators 

and facilitates the transfer of slots in the 

secondary market. The FAA also uses 

this information in order to maintain an 

accurate accounting of operations to 

ensure compliance with the operations 

permitted under the rule and those 

actually conducted at the airports. 

Respondents: The respondents to the 

proposed information requirements in 

today’s notice are scheduled carriers 

with existing service at JFK and Newark, 

carriers that plan to enter the JFK and 

Newark markets (by auction or 

secondary market), and carriers that 

enter the JFK and Newark market in the 

future. There are currently seventyseven (77) carriers with existing 

scheduled service at JFK and thirty-nine 

(39) carriers with existing scheduled 

service at Newark. Various carriers 

included in these totals have service at 

both airports. 

Frequency: The information collection 

requirements of the rule involve 

scheduled carriers notifying the FAA of 

their use of slots. Each carrier must 

notify the FAA of its: (1) Designation of 

50 percent of its Limited Slots, if 

applicable; (2) request for confirmation 

to sublease slots; (3) consent to transfer 

slots under the transferring Carrier’s 

marketing control; (4) requests for 

confirmation of one-for-one slot trades; 

(5) slot usage (operations); and (6) 

request for assignment of slots available 

on a temporary basis. 

Annual Burden Estimate: The annual 

reporting burden for each subsection of 

the rule is presented below. Annual 

burden estimates presented in today’s 

notice are based on burden estimates 

from the SNPRM ‘‘Congestion 

Management Rule for LaGuardia 

Airport’’ (Docket No. FAA–2006–25709; 

Notice No. 08–04). 

The burden is calculated by the 

following formula: 

Annual Hourly Burden = (# of 

respondents) * (time involved) * 

(frequency of the response). 

Section 93.164(c)(2) Categories of 

Slots: A Carrier Shall Designate 50 

Percent of Its Limited Slots 

JFK 

(4 carriers with Limited Slots) * (80 

hours per submittal) = 320 hours. 

Based on the current allocation of 

Operating Authorizations and the 

proposed level of baseline operations 

each carrier would be grandfathered 

under today’s proposal, we assumed the 

four carriers with the most operations at 

JFK would expend up to 10 days of 

planning time each, potentially 80 

hours, to develop and submit their 

designations of 50 percent of their 

Limited Slots, for a total of 320 hours. 

This designation would occur once, 10 

days after the final rule effective date. 

Newark 

(1 carrier) * (240 hours per submittal) = 

240 hours. 

(5 carriers) * (80 hours per submittal) = 

400 hours. 

Total Annual Hourly Burden = 640 

hours. 

Based on the projected allocation of 

Operating Authorizations and the 

proposed level of baseline operations 

each carrier would be grandfathered 

under today’s proposal, we assumed 

that one carrier, Continental Airlines, 

with the most operations at Newark 

would expend up to 30 days of planning 

time, potentially 240 hours, to develop 

and submit its designation of 50 percent 

of its Limited Slots. The remaining five 

carriers required to designate Limited 

Slots would each expend up to 10 days 

of planning time, potentially 80 hours 

each, to develop and submit their 

designation of 50 percent of their 

Limited Slots. These five carriers would 

therefore need 400 hours. In total, the 

six carriers at Newark required to 

designate Limited Slots would require 

640 hours of effort to make the 

designation. This designation would 

occur once, 10 days after the final rule 

effective date. 

Section 93.165(c) Initial Assignment of 

Slots 

We assumed that the 77 carriers 

operating at JFK and 39 carriers 

operating at Newark would expend time 

submitting and collecting information to 

participate in the proposed auctions for 

slot assignments. The FAA is currently 

in the process of procuring auction 

software and services. The FAA will 

make available burden estimates for 

information requirements relating to 

auction participation in a separate 

notice. 

Section 93.166(b)–(c) Assignment of 

New or Returned Slots 

We made no assumptions about 

additional workload for carriers at either 

airport associated with the IATA-like 

administrative process for assigning 

new or returned slots. Workload would 

vary depending on how many (if any) 

new or returned slots were to develop 

at either airport over the 10 year period 

of the proposed rule. In any case, 

carriers are already familiar with and 

use IATA-like allocation methods and 

would handle them in the course of 

normal operations at JFK and Newark. 

Section 93.168(b), (d), (f) Sublease and 

Transfer of Slots 

JFK 

(18 carriers) * (1.5 hours per submittal) 

* (4 occurrences per year) = 108 

hours. 


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(59 carriers) * (1.5 hours per submittal) 

* (2 occurrences per year) = 177 

hours. 

Total Annual Hourly Burden = 285 

hours. 

Based on burden estimates from 

‘‘Congestion Management Rule for 

LaGuardia Airport,’’ we assumed the 77 

carriers operating at JFK would expend 

11⁄2 hours for each occurrence of a lease 

or transfer of a slot. For each operator 

with 6 or more slots (18 carriers total), 

we assumed that a lease or transfer of a 

slot would occur on average quarterly. 

For each operator with fewer than 6 

slots (59 carriers total), we assumed that 

a lease or transfer of a slot would occur 

on average biannually. The total annual 

hourly burden for all carriers 

collectively would be 285 hours. 

Newark 

(1 carrier) * (1.5 hours per submittal) * 

(16 occurrences per year) = 24 hours. 

(12 carriers) * (1.5 hours per submittal) 

* (4 occurrences per year) = 72 hours. 

(26 carriers) * (1.5 hours per submittal) 

* (2 occurrences per year) = 78 hours. 

Total Annual Hourly Burden = 174 

hours. 

As with JFK, we assumed the 39 

carriers operating at Newark would 

expend 1/1⁄2 hours for each occurrence 

of a lease or transfer of a slot. For the 

largest operator, we assumed that a lease 

or transfer of 4 slots would occur on 

average quarterly. For those operators at 

Newark with 6 or more slots (12 carriers 

total, excluding Continental Airlines), 

we assumed that a lease or transfer of a 

slot would occur on average quarterly. 

For each operator with fewer than 6 

slots (26 carriers total), we assumed that 

a lease or transfer of a slot would occur 

on average biannually. The total annual 

hourly burden for all carriers 

collectively would be 174 hours. 

Section 93.169(b), (d) One-for-One 

Trades of Slots 

JFK 

(18 carriers) * (1.5 hours per submittal) 

* (4 occurrences per year) = 108 

hours. 

(59 carriers) * (1.5 hours per submittal) 

* (2 occurrences per year) = 177 

hours. 

Total Annual Hourly Burden = 285 

hours. 

Based on burden estimates from 

‘‘Congestion Management Rule for 

LaGuardia Airport,’’ we assumed the 77 

carriers operating at JFK would expend 

11⁄2 hours for each occurrence of a onefor-one trade of a slot. For each operator 

with 6 or more slots (18 carriers total), 

we assumed that a one-for-one slot trade 

would occur on average quarterly. For 

each operator with fewer than 6 slots 

(59 carriers total), we assumed that a 

one-for-one slot trade would occur on 

average biannually. The total annual 

hourly burden would be 285 hours. 

Newark 

(1 carrier) * (1.5 hours per submittal) * 

(16 occurrences per year) = 24 hours. 

(12 carriers) * (1.5 hours per submittal) 

* (4 occurrences per year) = 72 hours. 

(26 carriers) * (1.5 hours per submittal) 

* (2 occurrences per year) = 78 hours. 

Total Annual Hourly Burden = 174 

hours. 

As with JFK, we assumed the 39 

carriers operating at Newark would 

expend 11⁄2 hours for each occurrence of 

a one-for-one trade of a slot. For the 

largest operator, we assumed that a onefor-one trade of 4 slots would occur on 

average quarterly. For those operators at 

Newark with 6 or more slots (12 carriers 

total, excluding Continental Airlines), 

we assumed that a one-for-one slot trade 

would occur on average quarterly. For 

each operator with fewer than 6 slots 

(26 carriers total), we assumed that a 

one-for-one slot trade would occur on 

average biannually. The total annual 

hourly burden would be 174 hours. 

Section 93.171 Unscheduled 

Operations 

This section of the proposed rule 

requires unscheduled and public charter 

operations at JFK and Newark to be 

reserved using the Airport Reservation 

Office (ARO) or, for public charters 

seeking reservations up to six months in 

advance, through the Slot 

Administration Office. It is the FAA’s 

intention, however, to require these 

reservation procedures at JFK and 

Newark regardless of and apart from the 

outcome of this rulemaking. 

Accordingly, the FAA will make 

available burden estimates relating to 

unscheduled and public charter 

operations in a separate rulemaking 

notice. 

Section 93.172(a)–(b) Reporting 

Requirements 

JFK 

(77 carriers) * (1.5 hours per submittal) 

* (4 occurrences per year) = 462 

hours. 

Based on burden estimates from the 

‘‘Congestion Management Rule for 

LaGuardia Airport’’ (Docket No. FAA– 

2006–25709; Notice No. 08–04), we 

assumed the 77 carriers operating at JFK 

would expend, on average, 11⁄2 hours 

two times per summer and winter 

season to submit the data required by 

§ 93.172. 

Newark 

(39 carriers) * (1.5 hours per submittal) 

* (4 occurrences per year) = 234 

hours. 

Based on burden estimates from the 

‘‘Congestion Management Rule for 

LaGuardia Airport’’ (Docket No. FAA– 

2006–25709; Notice No. 08–04), we 

assumed the 39 carriers operating at 

Newark would expend, on average, 11⁄2

hours every two months to submit the 

data required by § 93.172. 

Summary 

JFK 

Total First Year Hourly Burden—320 

Hours. 

Total Recurring Annual Hourly 

Burden (per year for 10 years)—1,032 

Hours. 

Newark 

Total First Year Hourly Burden—640 

Hours. 

Total Recurring Annual Hourly 

Burden (per year for 10 years)—582 

Hours. 

The burden estimates for JFK and 

Newark do not include the time 

required to participate in the annual 

auctions. The FAA will make available 

burden estimates for information 

requirements relating to auction 

participation in a separate notice. 

The agency is soliciting comments 

to— 

(1) Evaluate whether the proposed 

information requirements are necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

(2) Evaluate the agency’s estimate of 

the burden; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology. 

Individuals and organizations may 

submit comments on the information 

collection requirement by July 21, 2008, 

and should direct them to the address 

listed in the ADDRESSES section of this 

document. Comments also should be 

submitted to the Office of Information 

and Regulatory Affairs, OMB, via 

facsimile at (202) 395–6974, Attention: 

Desk Officer for FAA. 

According to the 1995 amendments to 

the Paperwork Reduction Act (5 CFR 

1320.8(b)(2)(vi)), an agency may not 

collect or sponsor the collection of 

information, nor may it impose an 

information collection requirement 

unless it displays a currently valid OMB 

control number. The OMB control 

number for this information collection 

will be published in the Federal 

Register, after the Office of Management 

and Budget approves it. 


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Regulatory Flexibility Determination 

The Regulatory Flexibility Act of 1980 

(RFA) establishes ‘‘as a principle of 

regulatory issuance that agencies shall 

endeavor, consistent with the objective 

of the rule and of applicable statutes, to 

fit regulatory and informational 

requirements to the scale of the 

business, organizations, and 

governmental jurisdictions subject to 

regulation.’’ To achieve that principle, 

the RFA requires agencies to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions. The RFA covers a wide range of 

small entities, including small 

businesses, not-for-profit organizations, 

and small governmental jurisdictions. 

Agencies must perform a review to 

determine whether a proposed or final 

rule would have a significant economic 

impact on a substantial number of small 

entities. If the agency determines that it 

would, the agency must prepare a 

regulatory flexibility analysis as 

described in the Act. 

However, if an agency determines that 

a proposed or final rule is not expected 

to have a significant economic impact 

on a substantial number of small 

entities, § 605(b) of the 1980 RFA 

provides that the head of the agency 

may so certify and a regulatory 

flexibility analysis is not required. The 

certification must include a statement 

providing the factual basis for this 

determination, and the reasoning should 

be clear. The basis for such FAA 

determination follows. 

The proposed rule most directly 

affects four scheduled operators at JFK 

(Delta Air Lines, JetBlue Airways, 

American Airlines, and United Airlines) 

and five scheduled operators at Newark 

(Continental Airlines, American 

Airlines, United Airlines, Delta Air 

Lines, and U.S. Airways). These carriers 

would receive one or more Limited 

Slots. None of these carriers are small 

businesses. However, the FAA 

considered that some small regional 

operators affiliated with these carriers 

and using slots provided by these 

carriers could be affected. Based on a 

review of the number of employees for 

each scheduled operator, the FAA found 

that only two scheduled operators 

(CommutAir and EOS Airlines) at JFK, 

and none at Newark, are considered 

small by Small Business Administration 

size standards (in this case, firms with 

1,500 or fewer employees). Of the two 

scheduled operators at JFK, CommutAir 

operates under the name Continental 

Connection for Continental Airlines. 

Continental Airlines has fewer than 20 

operations per day at JFK and therefore 

neither it nor CommutAir is affected by 

this rule. 

Using Enhanced Traffic Management 

System (ETMS) data, the FAA has 

determined that there are approximately 

54 identifiable unscheduled operators at 

JFK and 61 identifiable unscheduled 

operators at Newark who could be 

affected by this rule. While some of 

these operators may be small 

businesses, the FAA does not believe 

they will be significantly impacted by 

this rulemaking. These operators 

typically have greater flexibility to 

adjust operations and carry out very few 

operations during peak hours compared 

to scheduled operators. During peak 

hours in the summer of 2007, there were 

fewer than two average unscheduled 

operations per hour at each airport, 

whereas the proposed rule would allow 

1 to 2 operations per hour. Section 

93.171(g) of subpart N and § 93.191(g) of 

subpart O enables the FAA to determine 

that additional reservations may be 

accommodated for a specific time 

period, and allows unused slots to be 

available temporarily for unscheduled 

operations. In summary, while the 

proposed rule reduces the number of 

unscheduled operations per hour, it 

does not significantly affect the overall 

number of current unscheduled 

operations that take place at each 

airport. 

Using 2007 Census data, the FAA has 

also reviewed whether there would be 

interruptions to service to communities 

with a population of less than 50,000. 

We do not know if there will be any 

service interruptions as a result of the 

rule. We have reviewed population 

statistics for every city served from JFK 

and Newark in August 2007 (the base 

for initial allocation of slots under the 

proposal) and found none with a 

population of less 50,000. 

Therefore, the FAA certifies that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

International Trade Impact Assessment 

The Trade Agreements Act of 1979 

(Pub. L. 96–39), as amended by the 

Uruguay Round Agreements Act (Pub. 

L. 103–465), prohibits Federal agencies 

from establishing any standards or 

engaging in related activities that create 

unnecessary obstacles to the foreign 

commerce of the United States. 

Pursuant to these Acts, the 

establishment of standards or engaging 

in related activities is not considered as 

creating unnecessary obstacles to the 

foreign commerce of the United States, 

so long as the standards and activities 

have a legitimate domestic objective, 

such the protection of safety, and do not 

operate in a manner that excludes 

imports that meet this objective. The 

statute also requires consideration of 

international standards and, where 

appropriate, that they be the basis for 

U.S. standards. The FAA notes the 

proposed rule to establish slots and 

limited auctions of slot leases at JFK and 

Newark is necessary for the efficient 

utilization of the national airspace 

system, and has assessed the effects of 

this rulemaking to ensure that the final 

rule, if adopted, would not impose costs 

or barriers to international entities 

within the national airspace system. 

Foreign entities at both JFK and 

Newark would not have any slots 

classified as Limited Slots under either 

alternative 1 or 2 under the terms of 

§ 93.164 of subpart N and § 93.184 of 

subpart O of the proposed rule. Foreign 

carriers might benefit from the rule if 

they choose to participate in the 

proposed auction to acquire additional 

slots or to sublease slots in the 

secondary market. 

Unfunded Mandate Assessment 

The Unfunded Mandate Reform Act of 

1995 (the Act) is intended, among other 

things, to curb the practice of imposing 

unfunded Federal mandates on State, 

local, and tribal governments. Title II of 

the Act requires each Federal agency to 

prepare a written statement assessing 

the effects of any Federal mandate in a 

proposed or final agency rule that may 

result in an expenditure of $100 million 

or more (adjusted annually for inflation) 

in any one year by State, local, and 

tribal governments, in the aggregate, or 

by the private sector; such a mandate is 

deemed to be a ‘‘significant regulatory 

action.’’ The FAA currently uses an 

inflation-adjusted value of $136.1 

million in lieu of $100 million. This 

final rule does not contain such a 

mandate. The requirements of Title II do 

not apply. 

Executive Order 13132, Federalism 

The FAA has analyzed this proposed 

rule under the principles and criteria of 

Executive Order 13132, Federalism. We 

determined that this action would not 

have a substantial direct effect on the 

States, on the relationship between the 

national Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

would not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E, ‘‘Environmental 

Impacts: Policies and Procedures’’

identifies FAA actions that are normally 

categorically excluded from preparation 

of an environmental assessment or 


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environmental impact statement under 

the National Environmental Policy Act 

(NEPA) in the absence of extraordinary 

circumstances. The FAA has 

determined that this rulemaking 

qualifies for the categorical exclusions 

identified in paragraph 312d ‘‘Issuance 

of regulatory documents (e.g., Notices of 

Proposed Rulemaking and issuance of 

Final Rules) covering administration or 

procedural requirements (does not 

include Air Traffic procedures; specific 

Air traffic procedures that are 

categorically excluded are identified 

under paragraph 311 of this Order)’’ and 

paragraph 312f, ‘‘Regulations, standards, 

and exemptions (excluding those which 

if implemented may cause a significant 

impact on the human environment.)’’ It 

has further been determined that no 

extraordinary circumstances exist that 

may cause a significant impact and 

therefore no further environmental 

review is required. The FAA has 

documented this categorical exclusion 

determination. A copy of the 

determination and underlying 

documents has been included in the 

Docket for this rulemaking. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this NPRM 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). We 

have determined that it is not a 

‘‘significant energy action’’ under the 

executive order because it is not a 

‘‘significant regulatory action’’ under 

Executive Order 12866, and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

Additional Information 

Comments Invited: The FAA invites 

interested persons to participate in this 

rulemaking by submitting written 

comments, data, or views. We also 

invite comments relating to the 

economic, environmental, energy or 

federalism impacts that might result 

from adopting the proposals in this 

document. The most helpful comments 

reference a specific portion of the 

proposal, explain the reason for any 

recommended change, and include 

supporting data. To ensure the docket 

does not contain duplicate comments, 

please send only one copy of written 

comments, or if you are filing comments 

electronically, please submit your 

comments only one time. 

We will file in the docket all 

comments we receive, as well as a 

report summarizing each substantive 

public contact with FAA personnel 

concerning this proposed rulemaking. 

Before acting on this proposal, we will 

consider all comments we receive on or 

before the closing date for comments. 

We will consider comments filed after 

the comment period has closed if it is 

possible to do so without incurring 

expense or delay. We may change this 

proposal in light of the comments we 

receive. 

Proprietary or Confidential Business 

Information 

Do not file in the docket information 

that you consider to be proprietary or 

confidential business information. Send 

or deliver this information directly to 

the person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

document. You must mark the 

information that you consider 

proprietary or confidential. If you send 

the information on a disk or CD ROM, 

mark the outside of the disk or CD ROM 

and also identify electronically within 

the disk or CD ROM the specific 

information that is proprietary or 

confidential. 

Under 14 CFR 11.35(b), when we are 

aware of proprietary information filed 

with a comment, we do not place it in 

the docket. We hold it in a separate file 

to which the public does not have 

access, and we place a note in the 

docket that we have received it. If we 

receive a request to examine or copy 

this information, we treat it as any other 

request under the Freedom of 

Information Act (5 U.S.C. 552). We 

process such a request under the DOT 

procedures found in 49 CFR part 7. 

Availability of Rulemaking Documents 

You can get an electronic copy of 

rulemaking documents 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 can also get 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 docket number, notice 

number, or amendment number of this 

rulemaking. 

You may access all documents the 

FAA considered in developing this 

proposed rule, including economic 

analyses and technical reports, from the 

internet through the Federal 

eRulemaking Portal referenced in 

paragraph (1). 

List of Subjects in 14 CFR Part 93 

Air traffic control, Airports, 

Navigation (air). 

Proposed Regulatory Text 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend Chapter I of Title 14, 

Code of Federal Regulations, as follows: 

PART 93—SPECIAL AIR TRAFFIC 

RULES 

1. The authority citation for part 93 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40106, 

40109, 40113, 44502, 44514, 44701, 44719, 

46301. 

Proposed Amendment—Alternative 1 

2. Subpart N is added to read as 

follows: 

Subpart N—John F. Kennedy 

International Airport and Newark 

Liberty International Airport Traffic 

Rules 

Sec. 

93.161 Applicability. 

93.162 Definitions. 

93.163 Slots for scheduled arrivals and 

departures. 

93.164 Categories of slots. 

93.165 Initial assignment of slots. 

93.166 Assignment of new or returned slots. 

93.167 Reversion and withdrawal of slots. 

93.168 Sublease and transfer of slots. 

93.169 One-for-one trade of slots. 

93.170 Minimum usage requirements. 

93.171 Unscheduled operations. 

93.172 Reporting requirements. 

93.173 Administrative provisions. 

Subpart N—John F. Kennedy 

International Airport and Newark 

Liberty International Airport Traffic 

Rules 

§ 93.161 Applicability. 

(a) This subpart prescribes the air 

traffic rules for the arrival and departure 

of aircraft used for scheduled and 

unscheduled service, other than 

helicopters, at John F. Kennedy 

International Airport (JFK) and Newark 

Liberty International Airport (Newark). 

(b) This subpart also prescribes 

procedures for the assignment, transfer, 

sublease and withdrawal of Slots issued 

by the FAA for scheduled operations at 

JFK and Newark. 

(c) The provisions of this subpart 

apply to JFK and Newark during the 

hours of 6 a.m. through 10:59 p.m., 

Eastern Time. No person shall operate 

any scheduled arrival or departure into 

or out of JFK or Newark during such 

hours without first obtaining a Slot in 


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accordance with this subpart. No person 

shall conduct an Unscheduled 

Operation to or from JFK or Newark 

during such hours without first 

obtaining a Reservation. 

(d) A U.S. Air Carrier conducting 

operations solely under another 

Carrier’s marketing control with unified 

inventory control shall not be 

considered a separate Carrier for 

purposes of this subpart. 

(e) The Slots assigned under this 

subpart terminate at 11 p.m. on March 

30, 2019. 

§ 93.162 Definitions. 

For purposes of this subpart, the 

following definitions apply: 

Airport Reservation Office (ARO) is an 

operational unit of the FAA’s David J. 

Hurley Air Traffic Control System 

Command Center. It is responsible for 

the administration of reservations for 

unscheduled operations at JFK and 

Newark. 

Baseline Operations are those 

common slots held by a carrier at JFK 

or Newark on [final rule effective date], 

that do not exceed 20 operations per 

day. 

Carrier is a U.S. or foreign air carrier 

with authority to conduct scheduled 

service under parts 121, 129, or 135 of 

this chapter and the appropriate 

economic authority for scheduled 

service under 14 CFR chapter II and 49 

U.S.C. chapter 411. 

Common Slot (C-slot) is a slot that is 

assigned by the FAA as a lease under its 

cooperative agreement authority for the 

length of this rule. 

Enhanced Computer Voice 

Reservation System (e-CVRS) is the 

system used by the FAA to make arrival 

and/or departure reservations for 

unscheduled operations at JFK, Newark, 

and other designated airports. 

Limited Slot (L-slot) is a slot operated 

every day, the lease for which expires 

prior to the expiration of this rule for 

subsequent award by the FAA as an 

unrestricted slot. 

New Entrant is any carrier that is 

administratively allocated a total of 8 or 

fewer slots at JFK or Newark, 

respectively, during controlled hours at 

any point during the duration of the 

rule. 

Public Charter is defined in 14 CFR 

380.2 as a one-way or roundtrip charter 

flight to be performed by one or more 

direct air carriers that is arranged and 

sponsored by a public charter operator. 

Public Charter Operator is defined in 

14 CFR 380.2 as a U.S. or foreign public 

charter operator. 

Reservation is an authorization 

received by a carrier or other operator of 

an aircraft, excluding helicopters, in 

accordance with procedures established 

by the FAA to operate an unscheduled 

arrival or departure on a particular day 

of the week during a specific 30-minute 

period. 

Scheduled Operation is the arrival or 

departure segment of any operation 

regularly conducted by a carrier 

between either JFK or Newark and 

another point regularly served by that 

carrier. 

Slot is the operational authority 

assigned by the FAA to a carrier to 

conduct one scheduled arrival or 

departure operation at JFK or Newark on 

a particular day of the week during a 

specific 30-minute period. 

Summer Scheduling Season begins on 

the last Sunday of March. 

Unrestricted Slot (U-slot) is a slot that 

is awarded to a carrier by the FAA via 

the auction of a lease. 

Unscheduled Operation is an arrival 

or departure segment of any operation 

that is not regularly conducted by a 

carrier or other operator of an aircraft, 

excluding helicopters, between JFK or 

Newark and another service point. The 

following types of carrier operations 

shall be considered unscheduled 

operations for the purposes of this 

subpart: Public, on-demand, and other 

charter flights; hired aircraft service; 

extra sections of scheduled flights; ferry 

flights; and other non-passenger flights. 

Winter Scheduling Season begins on 

the last Sunday in October. 

§ 93.163 Slots for scheduled arrivals and 

departures. 

(a) During the hours of 6 a.m. through 

10:59 p.m., Eastern Time, no person 

shall operate any scheduled arrival or 

departure into or out of JFK or Newark 

without first obtaining a Slot in 

accordance with this subpart. 

(b) Except as otherwise established by 

the FAA under paragraph (c) of this 

section, the number of Slots shall be 

limited to no more than eighty-one (81) 

per hour at JFK and eighty-one (81) per 

hour at Newark. At JFK, the number of 

Slots may not exceed 44 in any 30- 

minute period, and 81 in any 60-minute 

period. At Newark, the number of Slots 

may not exceed 44 in any 30-minute 

period and 81 in any 60-minute period. 

The number of arrival and departure 

Slots in any period may be adjusted by 

the FAA as necessary based on the 

actual or potential delays created by 

such number or other considerations 

relating to congestion, airfield capacity 

and the air traffic control system. 

(c) Notwithstanding paragraph (b) of 

this section, the Administrator may 

increase the number of Slots based on 

a review of the following: 

(1) The number of delays; 

(2) The length of delays; 

(3) On-time arrivals and departures; 

(4) The number of actual operations; 

(5) Runway utilization and capacity 

plans; and 

(6) Other factors relating to the 

efficient management of the National 

Airspace System. 

§ 93.164 Categories of slots. 

(a) General. Each Slot shall be 

designated as a Common Slot, Limited 

Slot or Unrestricted Slot and shall be 

assigned to the Carrier under a lease 

agreement. A lease for a Common or 

Limited Slot shall be awarded via a 

cooperative agreement. A lease for an 

Unrestricted Slot shall be awarded via 

an auction. 

(b) Common Slots. (1) All Slots within 

any Carrier’s Baseline Operations, as 

determined on [final rule effective date], 

shall be designated as Common Slots. 

(2) Ten percent of the Slots at JFK and 

Newark on [final rule effective date] not 

otherwise designated as Common Slots 

under paragraph (b)(1) of this section 

shall be designated as Limited Slots. All 

other Slots shall be designated as 

Common Slots. 

(c) Limited Slots. Those Slots assigned 

to a Carrier subject to return to the FAA 

under § 93.165(c) shall be designated as 

Limited Slots until the date of their 

reassignment by the FAA as 

Unrestricted Slots. A Carrier may 

continue to use a Limited Slot that has 

reverted to the FAA until the date of the 

auction. 

(1) Each Carrier with a total number 

of daily operations at JFK or Newark in 

excess of its Baseline Operations will be 

notified by [final rule effective date] 

how many of its Slots will be designated 

as Limited Slots pursuant to paragraphs 

(c)(2) and (3) of this section. 

(2) A Carrier shall designate 50 

percent of its Limited Slots. The Carrier 

must notify the FAA of its 

determination by [date 10 days after the 

final rule effective date]. 

(3) The FAA will designate the 

remaining Limited Slots initially 

excluding those hours in which two or 

more Slots have been designated as 

Limited Slots by the Carriers. 

(4) No later than [date 20 days after 

the final rule effective date], the FAA 

will publish a list of all Limited Slots 

and the dates upon which they will 

expire. 

(d) Unrestricted Slots. Unrestricted 

Slots are Slots acquired by a Carrier 

through a lease with the FAA awarded 

via an auction. Unrestricted Slots are 

not subject to withdrawal by the FAA. 

§ 93.165 Initial assignment of slots. 

(a) Except as provided for under 

paragraphs (b) and (c) of this section, 


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any Carrier allocated operating rights 

under the Order limiting operations at 

JFK or the Order limiting operations at 

Newark as evidenced by the FAA’s 

records, will be assigned corresponding 

Slots in 30-minute periods consistent 

with the limits under § 93.163(b) and its 

summer and winter season schedules as 

approved by the FAA. If necessary, the 

FAA may utilize administrative 

measures such as voluntary measures or 

a lottery to re-time the assigned Slots 

within the same hour to meet the 30- 

minute limits under § 93.163(b). The 

FAA Vice President, System Operations 

Services, is the final decisionmaker for 

determinations under this section. 

(b) If a Carrier was allocated operating 

rights under the Order limiting 

operations at JFK or the Order limiting 

operations at Newark, but the operating 

rights were held by another Carrier, then 

the corresponding Slots will be assigned 

to the Carrier that held the operating 

rights for that period, as evidenced by 

the FAA’s records. 

(c) Starting [date 35 days after the 

effective date] and every year thereafter 

through 2013, one-fifth of the total 

number of Limited Slots shall revert to 

the FAA in accordance with the 

schedule published under § 93.164(c)(4) 

and be auctioned as Unrestricted Slots 

by the FAA. Any Slot receiving no 

responsive bids will be retired until the 

next auction. An affected Carrier will be 

allowed to use the Limited Slot until the 

effective date of an award to a Carrier 

as an Unrestricted Slot. 

§ 93.166 Assignment of new or returned 

slots. 

(a) This section describes the process 

by which the FAA assigns new Slots, as 

well as Slots returned to the FAA 

pursuant to the provisions of § 93.170. 

These Slots will be assigned by the FAA 

to requesting Carriers for the summer 

and winter scheduling seasons. 

(b) Requests for the new Slots or 

returned Slots or both must be 

submitted to the Federal Aviation 

Administration, Slot Administration 

Office, AGC–200, 800 Independence 

Avenue, SW., Washington, DC 20591 

(Facsimile: (202) 267–7277; e-mail: 7- 

awa-slotadmin@faa.gov), by the 

deadline as published by the FAA in a 

Federal Register notice for each 

Summer and Winter Scheduling Season. 

The requesting Carrier must submit its 

entire schedule at JFK and Newark for 

the particular season, noting which 

requests are in addition to, or changes 

from, the previous corresponding season 

at the respective airports. 

(c) Before assigning new or returned 

Slots under this section, the FAA will 

first accommodate Carrier requests to 

retime Slots for operational reasons or to 

bring the flight time closer to the time 

originally requested by the applicant 

Carrier in previous corresponding 

seasons, as reflected in FAA records. 

(d) After accommodating Carrier 

requests for retiming of Slots, the FAA 

will assign 50% of the new Slots and 

returned Slots to New Entrants, unless 

requests by New Entrants constitute 

fewer than 50% of available Slots. 

(e) With the remaining available Slots, 

if all requests for Slots under this 

section cannot be accommodated, the 

FAA will give priority to requests to 

introduce year-round service or to 

extend an existing operation to a yearround operation. 

(f) Thereafter, the FAA will assign 

Slots considering all relevant factors 

including: 

(1) The effective period of operation; 

(2) The extent and regularity of 

intended use of a Slot; 

(3) Schedule constraints of Carriers 

requesting Slots. 

§ 93.167 Reversion and withdrawal of 

slots. 

(a) This section does not apply to 

Unrestricted Slots. 

(b) A Carrier’s Common Slots or 

Limited Slots at JFK or Newark revert 

back to the FAA 30 days after the 

Carrier has ceased all operations at the 

respective airport(s) for any reasons 

other than a strike. 

(c) The FAA may retime, withdraw, or 

temporarily suspend Common Slots and 

Limited Slots at any time to fulfill 

operational needs. 

(d) Common Slots and Limited Slots 

will be withdrawn in accordance with 

the priority list established under 

§ 93.173 and international obligations. 

(e) Except as otherwise provided in 

paragraph (a) of this section, the FAA 

will notify an affected Carrier before 

withdrawing or temporarily suspending 

a Common Slot or Limited Slot and 

specify the date by which operations 

under the Common Slot or Limited Slot 

must cease. The FAA will provide at 

least 45 days’ notice unless otherwise 

required by operational needs. 

(f) Any Common Slot or Limited Slot 

that is temporarily withdrawn under 

this paragraph will be reassigned, if at 

all, only to the Carrier from which it 

was withdrawn, provided the Carrier 

continues to conduct Scheduled 

Operations at the respective airport. 

§ 93.168 Sublease and transfer of slots. 

(a) A Carrier may sublease its Slots to 

another Carrier in accordance with this 

section and subject to the provisions of 

the Carrier’s lease agreement with the 

FAA. 

(b) A Carrier must provide notice to 

the FAA to sublease a Slot. Such notice 

must contain: the Slot number and time, 

effective dates and, if appropriate, the 

duration of the lease. The Carrier may 

also provide the FAA with a minimum 

bid price. 

(c) The FAA will post a notice of the 

offer to sublease the Slot and relevant 

details on the FAA Web site at http:// 

www.faa.gov. An opening date, closing 

date and time by which bids must be 

received will be provided. 

(d) Upon consummation of the 

transaction, written evidence of each 

Carrier’s consent to sublease must be 

provided to the FAA, as well as all bids 

received and the terms of the sublease, 

including but not limited to: 

(1) The names of all bidders and all 

parties to the transaction; 

(2) The offered and final length of the 

sublease; 

(3) The consideration offered by all 

bidders and provided by the sublessee. 

(e) The Slot may not be used until the 

conditions of paragraph (d) of this 

section have been met, and the FAA 

provides notice of its approval of the 

sublease. 

(f) Slots may be transferred among a 

U.S. Air Carrier and another Carrier that 

conducts operations at JFK or Newark 

solely under the transferring Carrier’s 

marketing control, including the entire 

inventory of the flight. Each party to 

such transfer must provide written 

evidence of its consent to the transfer 

and the FAA must confirm and approve 

these transfers in writing prior to the 

effective date of the transaction. 

However, the FAA will approve 

transfers under this paragraph up to five 

business days after the actual operation 

to accommodate operational disruptions 

that occur on the same day of the 

scheduled operation. The FAA Vice 

President, System Operations Services 

is the final decision-maker for any 

determinations under this section. 

(g) A Carrier wishing to sublease a 

Slot via an FAA auction, rather than 

pursuant to this section, may do so. The 

Carrier shall retain the proceeds and the 

Slot shall retain the same designation 

that it had prior to the Carrier placing 

it up for auction. 

§ 93.169 One-for-one trade of slots. 

(a) A Carrier may trade a Slot with 

another Carrier on a one-for-one basis. 

(b) Written evidence of each Carrier’s 

consent to the trade must be provided 

to the FAA. 

(c) Each recipient of the trade may not 

use the acquired Slot until written 

confirmation has been received from the 

FAA. 


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(d) Carriers participating in a one-forone trade must certify to the FAA that 

no consideration or promise of 

consideration was provided by either 

party to the trade. 

§ 93.170 Minimum usage requirements. 

(a) This section does not apply to 

Unrestricted Slots. 

(b) Any Common Slot or Limited Slot 

included in a summer or winter season 

schedule approved by the FAA that is 

not used at least 80 percent of the time 

during the period for which it is 

assigned will be withdrawn by the FAA. 

(c) Paragraph (b) of this section does 

not apply to the first 90-day period after 

assignment of a Common Slot or 

Limited Slot through a sublease. 

(d) The FAA may waive the 

requirements of paragraph (b) of this 

section 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 or more consecutive days. 

Examples of conditions which could 

justify a waiver under this paragraph are 

weather conditions that result in the 

restricted operation of the airport for an 

extended period of time or the 

grounding of an aircraft type. 

(e) The FAA will treat as used any 

Common Slot or Limited Slot held by a 

Carrier on Thanksgiving Day, the Friday 

following Thanksgiving Day, and the 

period from December 24 through the 

first Sunday of January. 

§ 93.171 Unscheduled operations. 

(a) During the hours of 6 a.m. through 

10:59 p.m. Eastern Time, no person may 

operate an aircraft other than a 

helicopter to or from JFK or Newark 

unless he or she has received, for that 

Unscheduled Operation, a Reservation 

that is assigned by the Airport 

Reservation Office (ARO) or in the case 

of Public Charters, in accordance with 

the procedures in paragraph (d) of this 

section. Requests for Reservations will 

be accepted through the e-CVRS 

beginning 72 hours prior to the 

proposed time of arrival to or departure 

from JFK or Newark. Additional 

information on procedures for obtaining 

a Reservation is available on the Internet 

at http://www.fly.faa.gov/ecvrs. 

(b) Reservations, including those 

assigned to Public Charter operations 

under paragraph (d) of this section, will 

be available to be assigned by the ARO 

on a 30-minute basis as follows: 

(1) At JFK, two Reservations per hour 

between 6 a.m. and 1:59 p.m. and 

between 10 p.m. and 10:59 p.m. and one 

Reservation per hour between 2 p.m. 

and 10:59 p.m. 

(2) At Newark, two Reservations per 

hour between 6 a.m. and 11:59 a.m. and 

between 10 p.m. and 10:59 p.m. and one 

Reservation per hour between 12 noon 

and 9:59 p.m. 

(c) The ARO will receive and process 

all Reservation requests for unscheduled 

arrivals and departures at JFK and 

Newark. Reservations are assigned on a 

‘‘first-come, first-served’’ basis 

determined by the time the request is 

received at the ARO. Reservations must 

be cancelled if they will not be used as 

assigned. 

(d) One Reservation per hour will be 

available for assignment to Public 

Charter operations prior to the 72-hour 

Reservation window in paragraph (a) of 

this section. No more than 25 percent of 

the Reservation available from 12 noon 

through 9:59 p.m. will be made 

available to Public Charter operations 

under this paragraph. 

(1) The Public Charter operator may 

request a reservation up to six months 

in advance of the date of the flight 

operation. Reservation requests should 

be submitted to Federal Aviation 

Administration, Slot Administration 

Office, AGC–200, 800 Independence 

Avenue, SW., Washington, DC 20591. 

Submissions may be made via facsimile 

to (202) 267–7277 or by e-mail to: 7- 

awa-slotadmin@faa.gov. 

(2) The Public Charter operator must 

certify that its prospectus has been 

accepted by the Department of 

Transportation in accordance with 14 

CFR part 380. 

(3) The Public Charter operator must 

identify the call sign/flight number or 

aircraft registration number of the direct 

Air Carrier, the date and time of the 

proposed operation(s), the airport 

served immediately prior to or after JFK 

or Newark, aircraft type, and the nature 

of the operation (e.g., ferry or 

passenger). Any changes to an approved 

Reservation must be approved in 

advance by the Slot Administration 

Office. 

(4) If Reservations under paragraph 

(d)(1) of this section have already been 

assigned, the Public Charter Operator 

may request a Reservation under 

paragraph (a) of this section. 

(e) The filing of a request for a 

Reservation does not constitute the 

filing of an IFR flight plan as required 

by regulation. The IFR flight plan may 

be filed only after the Reservation is 

obtained, must include the Reservation 

number in the ‘‘Remarks’’ section, and 

must be filed in accordance with FAA 

regulations and procedures. 

(f) Air Traffic Control will 

accommodate declared emergencies 

without regard to Reservations. Nonemergency flights in direct support of 

national security, law enforcement, 

military aircraft operations, or publicuse aircraft operations may be 

accommodated above the Reservation 

limits with the prior approval of the 

Vice President, System Operations 

Services, Air Traffic Organization. 

Procedures for obtaining the appropriate 

waiver will be available on the Internet 

at http://www.fly.faa.gov/ecvrs. 

(g) Notwithstanding the limits in 

paragraph (b) of this section, if the Air 

Traffic Organization determines that air 

traffic control, weather and capacity 

conditions are favorable and significant 

delay is unlikely, the FAA may 

determine that additional Reservations 

may be accommodated for a specific 

time period. Unused Slots may also be 

made available temporarily for 

unscheduled operations. Reservations 

for additional operations must be 

obtained through the ARO. 

(h) Reservations may not be bought, 

sold or leased. 

§ 93.172 Reporting requirements. 

(a) No later than September 1 for the 

summer scheduling season and 

February 1 for the winter scheduling 

season, each Carrier holding a Common 

Slot or Limited Slot must submit an 

interim report of Slot usage for each day 

of the applicable scheduling season. No 

later than 30 days after the last day of 

the applicable scheduling season, each 

Carrier holding a Common Slot or 

Limited Slot must submit a final report 

of the completed operations for each 

day of the entire scheduling season. 

(b) Such reports, in a format 

acceptable to the FAA, must contain the 

following information for each Common 

Slot or Limited Slot: 

(1) The Slot number, time, and arrival 

or departure designation; 

(2) The operating Carrier; 

(3) The date and time of each of the 

operations conducted pursuant to the 

Slot, including the flight number and 

origin/destination; and 

(4) The aircraft type identifier. 

(c) The FAA may withdraw the Slot 

of any Carrier that does not meet the 

reporting requirements of paragraph (a) 

of this section. 

§ 93.173 Administrative provisions. 

(a) Each Slot shall be assigned a 

number for administrative convenience. 

(b) The FAA will assign priority 

numbers by random lottery for Common 

Slots and Limited Slots at JFK and 

Newark. Each Common Slot and 

Limited Slot will be assigned a 

withdrawal priority number, and the 30- 

minute time period for the Common 

Slot or Limited Slot, frequency, and the 

arrival or departure designation. 


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(c) If the FAA determines that 

operations need to be reduced for 

operational reasons, the lowest assigned 

priority number Common Slot or 

Limited Slot will be the last withdrawn. 

(d) Any Slot available on a temporary 

basis may be assigned by the FAA to a 

Carrier on a non-permanent, first-come, 

first-served basis subject to permanent 

assignment under this subpart. Any 

remaining Slots may be made available 

for unscheduled operations on a nonpermanent basis and will be assigned 

under the same procedures applicable to 

other operating Reservations. 

(e) All transactions under this subpart 

must be in a written or electronic format 

approved by the FAA. 

Proposed Amendment—Alternative 2 

3. Subparts N and O are added to read 

as follows: 

Subpart N—John F. Kennedy International 

Airport Traffic Rules 

Sec. 

93.161 Applicability. 

93.162 Definitions. 

93.163 Slots for scheduled arrivals and 

departures. 

93.164 Categories of slots. 

93.165 Initial assignment of slots. 

93.166 Assignment of new or returned slots. 

93.167 Reversion and Withdrawal of Slots. 

93.168 Sublease and transfer of slots. 

93.169 One-for-one trade of slots. 

93.170 Minimum usage requirements. 

93.171 Unscheduled operations. 

93.172 Reporting requirements. 

93.173 Administrative provisions. 

Subpart O—Newark Liberty International 

Airport Traffic Rules 

93.181 Applicability. 

93.182 Definitions. 

93.183 Slots for scheduled arrivals and 

departures. 

93.184 Categories of slots. 

93.185 Initial assignment of slots. 

93.186 Assignment of new or returned slots. 

93.187 Reversion and withdrawal of slots. 

93.188 Sublease and transfer of slots. 

93.189 One-for-one trade of slots. 

93.190 Minimum usage requirements. 

93.191 Unscheduled operations. 

93.192 Reporting requirements. 

93.193 Administrative provisions. 

§ 93.161 Applicability. 

(a) This subpart prescribes the air 

traffic rules for the arrival and departure 

of aircraft used for scheduled and 

unscheduled service, other than 

helicopters, at John F. Kennedy 

International Airport (JFK). 

(b) This subpart also prescribes 

procedures for the assignment, transfer, 

sublease and withdrawal of Slots issued 

by the FAA for scheduled operations at 

JFK. 

(c) The provisions of this subpart 

apply to JFK during the hours of 6 a.m. 

through 10:59 p.m., Eastern Time. No 

person shall operate any scheduled 

arrival or departure into or out of JFK 

during such hours without first 

obtaining a Slot in accordance with this 

subpart. No person shall conduct an 

Unscheduled Operation to or from JFK 

during such hours without first 

obtaining a Reservation. 

(d) A U.S. Air Carrier conducting 

operations solely under another 

Carrier’s marketing control with unified 

inventory control shall not be 

considered a separate Carrier for 

purposes of this subpart. 

(e) The Slots assigned under this 

subpart terminate at 11 p.m. on March 

30, 2019. 

§ 93.162 Definitions. 

For purposes of this subpart, the 

following definitions apply: 

Airport Reservation Office (ARO) is an 

operational unit of the FAA’s David J. 

Hurley Air Traffic Control System 

Command Center. It is responsible for 

the administration of reservations for 

unscheduled operations at JFK. 

Baseline Operations are those 

common slots held by a carrier on [final 

rule effective date], that do not exceed 

20 operations per day. 

Carrier is a U.S or foreign air carrier 

with authority to conduct scheduled 

service under Parts 121, 129, or 135 of 

this Chapter and the appropriate 

economic authority for scheduled 

service under 14 CFR chapter II and 49 

U.S.C. chapter 411. 

Common Slot (C-slot) is a slot that is 

assigned by the FAA as a lease under its 

cooperative agreement authority for the 

length of this rule. 

Enhanced Computer Voice 

Reservation System (e-CVRS) is the 

system used by the FAA to make arrival 

and/or departure reservations for 

unscheduled operations at JFK and 

other designated airports. 

Limited Slot (L-slot) is a slot operated 

every day, the lease for which must be 

transferred to another carrier by the 

holder of the limited slot as an 

unrestricted slot. 

New Entrant is any carrier that is 

administratively allocated a total of 8 or 

fewer slots at JFK during controlled 

hours at any point during the duration 

of the rule. 

Public Charter is defined in 14 CFR 

380.2 as a one-way or roundtrip charter 

flight to be performed by one or more 

direct air carriers that is arranged and 

sponsored by a public charter operator. 

Public Charter Operator is defined in 

14 CFR 380.2 as a U.S. or foreign public 

charter operator. 

Reservation is an authorization 

received by a carrier or other operator of 

an aircraft, excluding helicopters, in 

accordance with procedures established 

by the FAA to operate an unscheduled 

arrival or departure on a particular day 

of the week during a specific 30-minute 

period. 

Scheduled Operation is the arrival or 

departure segment of any operation 

regularly conducted by a carrier 

between JFK and another point regularly 

served by that carrier. 

Slot is the operational authority 

assigned by the FAA to a carrier to 

conduct one scheduled arrival or 

departure operation at JFK on a 

particular day of the week during a 

specific 30-minute period. 

Summer Scheduling Season begins on 

the last Sunday of March. 

Unrestricted Slot (U-slot) is a slot that 

is awarded to another carrier by the 

holder of a limited slot pursuant to the 

mandatory lease transfer provisions of 

this subpart. 

Unscheduled Operation is an arrival 

or departure segment of any operation 

that is not regularly conducted by a 

carrier or other operator of an aircraft, 

excluding helicopters, between JFK and 

another service point. The following 

types of carrier operations shall be 

considered unscheduled operations for 

the purposes of this subpart: public, ondemand, and other charter flights; hired 

aircraft service; extra sections of 

scheduled flights; ferry flights; and 

other non-passenger flights. 

Winter Scheduling Season begins on 

the last Sunday in October. 

§ 93.163 Slots for scheduled arrivals and 

departures. 

(a) During the hours of 6 a.m. through 

10:59 p.m., Eastern Time, no person 

shall operate any scheduled arrival or 

departure into or out of JFK during such 

hours without first obtaining a Slot in 

accordance with this subpart. 

(b) Except as otherwise established by 

the FAA under paragraph (c) of this 

section, the number of Slots shall be 

limited to no more than eighty-one (81) 

per hour at JFK. The number of Slots 

may not exceed 44 in any 30-minute 

period, and 81 in any 60-minute period. 

The number of arrival and departure 

Slots in any period may be adjusted by 

the FAA as necessary based on the 

actual or potential delays created by 

such number or other considerations 

relating to congestion, airfield capacity 

and the air traffic control system. 

(c) Notwithstanding paragraph (b) of 

this section, the Administrator may 

increase the number of Slots based on 

a review of the following: 

(1) The number of delays; 

(2) The length of delays; 

(3) On-time arrivals and departures; 

(4) The number of actual operations; 


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(5) Runway utilization and capacity 

plans; and 

(6) Other factors relating to the 

efficient management of the National 

Airspace System. 

§ 93.164 Categories of slots. 

(a) General. Each Slot shall be 

designated as a Common Slot, Limited 

Slot or Unrestricted Slot and shall be 

assigned to the Carrier under a lease 

agreement. A lease for a Common or 

Limited Slot shall be awarded via a 

cooperative agreement. A lease for an 

Unrestricted Slot shall be awarded via 

an auction. 

(b) Common Slots. 

(1) All Slots within any Carrier’s 

Baseline Operations, as determined on 

[final rule effective date], shall be 

designated as Common Slots. 

(2) Twenty percent of the Slots at JFK 

on [final rule effective date] not 

otherwise designated as Common Slots 

under paragraph (b) (1) of this section 

shall be designated as Limited Slots. All 

other Slots shall be designated as 

Common Slots. 

(c) Limited Slots. Those Slots assigned 

to a Carrier subject to return to the FAA 

under § 93.165(c) shall be designated as 

Limited Slots until they are transferred 

to another Carrier under those 

provisions. A Carrier may continue to 

use a Limited Slot that has reverted to 

the FAA until reassigned to another 

Carrier as an Unrestricted Slot. 

(1) Each Carrier with a total number 

of daily operations at JFK in excess of 

its Baseline Operations will be notified 

by [final rule effective date] how many 

of its remaining Slots will be classified 

as Limited Slots pursuant to paragraphs 

(c)(2) and (3) of this section. 

(2) A Carrier shall designate 50 

percent of its Limited Slots. The Carrier 

must notify the FAA of its 

determination by [date 10 days after the 

final rule effective date]. 

(3) The FAA will designate the 

remaining Limited Slots, initially 

excluding those hours in which two or 

more Slots have been designated as 

Limited Slots by the Carriers. 

(4) No later than [date 20 days after 

the final rule effective date], the FAA 

will publish a list of all Limited Slots 

and the dates upon which they will 

expire. 

(d) Unrestricted Slots. Unrestricted 

Slots are Slots acquired by a Carrier 

through a lease with the FAA awarded 

via an auction. Unrestricted Slots are 

not subject to withdrawal by the FAA. 

§ 93.165 Initial assignment of slots. 

(a) Except as provided for under 

paragraphs (b) and (c) of this section, 

any Carrier allocated operating rights 

under the Order limiting operations at 

JFK, as evidenced by the FAA’s records, 

will be assigned corresponding Slots in 

30-minute periods consistent with the 

limits under § 93.163(b), and its summer 

and winter season schedules as 

approved by the FAA. If necessary, the 

FAA may utilize administrative 

measures such as voluntary measures or 

a lottery to re-time the assigned Slots 

within the same hour to meet the 30- 

minute limits under § 93.163(b). The 

FAA Vice President, System Operations 

Services, is the final decisionmaker for 

determinations under this section. 

(b) If a Carrier was allocated operating 

rights under the Order limiting 

operations at JFK but the operating 

rights were held by another Carrier, then 

the corresponding Slots will be assigned 

to the Carrier that held the operating 

rights for that period, as evidenced by 

the FAA’s records. 

(c) Starting [date 35 days after the 

effective date] and every year thereafter 

through 2013, one-fifth of the total 

number of Limited Slots identified on 

[date 20 days after the effective date] 

shall revert to the FAA in accordance 

with the schedule published under 

§ 93.164(c)(4) and be auctioned as 

Unrestricted Slots by the FAA and 

subsequently transferred to another 

Carrier, effective no later than the next 

Summer Scheduling Season. 

(1) The auction shall be blind, and 

only cash may be bid. 

(2) The holder of a Limited Slot may 

not bid on its own Slots. 

(3) The FAA shall pay to the holder 

of the Limited Slot all proceeds from the 

transaction following deduction of the 

FAA’s expenses for conducting the 

auction. 

(4) The auction shall be conducted by 

the FAA, which will dictate all 

procedures related to the auction, 

including but not limited to the 

requirement that the Carrier may not 

specify a minimum bid price. 

(5) In the event no Carrier bids on the 

Slot, the FAA will retire it until the next 

auction. 

(6) The Carrier holding a Limited Slot 

will be allowed to use the Slot until the 

first day of the next Summer Scheduling 

Season. 

§ 93.166 Assignment of new or returned 

slots. 

(a) This section describes the process 

by which the FAA assigns new Slots, as 

well as Slots returned to the FAA 

pursuant to the provisions of § 93.170. 

These Slots will be assigned by the FAA 

to requesting Carriers for the Summer 

and Winter Scheduling Seasons. 

(b) Requests for the new Slots or 

returned Slots or both must be 

submitted to the Federal Aviation 

Administration, Slot Administration 

Office, AGC–200, 800 Independence 

Avenue, SW., Washington, DC 20591 

(Facsimile: (202) 267–7277; e-mail: 7- 

awa-slotadmin@faa.gov), by the 

deadline as published by the FAA in a 

Federal Register notice for each 

Summer and Winter Scheduling Season. 

The requesting Carrier must submit its 

entire schedule at JFK for the particular 

season, noting which requests are in 

addition to, or changes from, the 

previous corresponding season at the 

respective airports. 

(c) Before assigning new or returned 

Slots under this section, the FAA will 

first accommodate Carrier requests to retime Slots for operational reasons or to 

bring the flight time closer to the time 

originally requested by the applicant 

Carrier in previous corresponding 

seasons, as reflected in FAA records. 

(d) After accommodating Carrier 

requests for re-timing of Slots, the FAA 

will assign 50% of the new Slots and 

returned Slots to New Entrants, unless 

requests by New Entrants constitute 

fewer than 50% of available Slots. 

(e) With the remaining available Slots, 

if all requests for Slots under this 

section cannot be accommodated, the 

FAA will give priority to requests to 

introduce year-round service or to 

extend an existing operation to a yearround operation. 

(f) Thereafter, the FAA will assign 

Slots considering all relevant factors 

including: 

(1) The effective period of operation; 

(2) The extent and regularity of 

intended use of a Slot; 

(3) Schedule constraints of Carriers 

requesting Slots. 

§ 93.167 Reversion and withdrawal of 

slots. 

(a) This section does not apply to 

Unrestricted Slots. 

(b) A Carrier’s Common Slots or 

Limited Slots revert back to the FAA 30 

days after the Carrier has ceased all 

operations at JFK for any reasons other 

than a strike. 

(c) The FAA may re-time, withdraw, 

or temporarily suspend Common Slots 

and Limited Slots at any time to fulfill 

operational needs. 

(d) Common Slots and Limited Slots 

will be withdrawn in accordance with 

the priority list established under 

§ 93.173 and international obligations. 

(e) Except as otherwise provided in 

paragraph (a) of this section, the FAA 

will notify an affected Carrier before 

withdrawing or temporarily suspending 

a Common Slot or Limited Slot and 

specify the date by which operations 

under the Common Slot or Limited Slot 


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must cease. The FAA will provide at 

least 45 days’ notice unless otherwise 

required by operational needs. 

(f) Any Common Slot or Limited Slot 

that is temporarily withdrawn under 

this paragraph will be reassigned, if at 

all, only to the Carrier from which it 

was withdrawn, provided the Carrier 

continues to conduct Scheduled 

Operations at JFK. 

§ 93.168 Sublease and transfer of slots. 

(a) A Carrier may sublease its Slots to 

another Carrier in accordance with this 

section and subject to the provisions of 

the Carrier’s lease agreement with the 

FAA. 

(b) A Carrier must provide notice to 

the FAA to sublease a Slot. Such notice 

must contain: the Slot number and time, 

effective dates and, if appropriate, the 

duration of the lease. The Carrier may 

also provide the FAA with a minimum 

bid price. 

(c) The FAA will post a notice of the 

offer to sublease the Slot and relevant 

details on the FAA Web site at http:// 

www.faa.gov. An opening date, closing 

date and time by which bids must be 

received will be provided. 

(d) Upon consummation of the 

transaction, written evidence of each 

Carrier’s consent to sublease must be 

provided to the FAA, as well as all bids 

received and the terms of the sublease, 

including but not limited to: 

(1) The names of all bidders and all 

parties to the transaction; 

(2) The offered and final length of the 

sublease; 

(3) The consideration offered by all 

bidders and provided by the sublessee. 

(e) The Slot may not be used until the 

conditions of paragraph (d) of this 

section have been met, and the FAA 

provides notice of its approval of the 

sublease. 

(f) Slots may be transferred among a 

U.S. Air Carrier and another Carrier that 

conducts operations at JFK solely under 

the transferring Carrier’s marketing 

control, including the entire inventory 

of the flight. Each party to such transfer 

must provide written evidence of its 

consent to the transfer and the FAA 

must confirm and approve these 

transfers in writing prior to the effective 

date of the transaction. However, the 

FAA will approve transfers under this 

paragraph up to five business days after 

the actual operation to accommodate 

operational disruptions that occur on 

the same day of the scheduled 

operation. The FAA Vice President, 

System Operations Services, is the final 

decision-maker for any determinations 

under this section. 

(g) A Carrier wishing to sublease a 

Slot via an FAA auction, rather than 

pursuant to this section, may do so. The 

Carrier shall retain the proceeds and the 

Slot shall retain the same designation 

that it had prior to the Carrier placing 

it up for auction. 

§ 93.169 One-for-one trade of slots. 

(a) A Carrier may trade a Slot with 

another Carrier on a one-for-one basis. 

(b) Written evidence of each Carrier’s 

consent to the trade must be provided 

to the FAA. 

(c) Each recipient of the trade may not 

use the acquired Slot until written 

confirmation has been received from the 

FAA. 

(d) Carriers participating in a one-forone trade must certify to the FAA that 

no consideration or promise of 

consideration was provided by either 

party to the trade. 

§ 93.170 Minimum usage requirements. 

(a) This section does not apply to 

Unrestricted Slots. 

(b) Any Common Slot or Limited Slot 

included in a summer or winter season 

schedule approved by the FAA that is 

not used at least 80 percent of the time 

during the period for which it is 

assigned will be withdrawn by the FAA. 

(c) Paragraph (b) of this section does 

not apply to the first 90-day period after 

assignment of a Common Slot or 

Limited Slot through a sublease. 

(d) The FAA may waive the 

requirements of paragraph (b) of this 

section 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 or more consecutive days. 

Examples of conditions which could 

justify a waiver under this paragraph are 

weather conditions that result in the 

restricted operation of the airport for an 

extended period of time or the 

grounding of an aircraft type. 

(e) The FAA will treat as used any 

Common Slot or Limited Slot held by a 

Carrier on Thanksgiving Day, the Friday 

following Thanksgiving Day, and the 

period from December 24 through the 

first Sunday of January. 

§ 93.171 Unscheduled operations. 

(a) During the hours of 6 a.m. through 

10:59 p.m., Eastern Time, no person 

may operate an aircraft other than a 

helicopter to or from JFK unless he or 

she has received, for that Unscheduled 

Operation, a Reservation that is assigned 

by the Airport Reservation Office (ARO) 

or in the case of public charters, in 

accordance with the procedures in 

paragraph (d) of this section. Requests 

for Reservations will be accepted 

through the e-CVRS beginning 72 hours 

prior to the proposed time of arrival to 

or departure from JFK. Additional 

information on procedures for obtaining 

a Reservation is available on the Internet 

at http://www.fly.faa.gov/ecvrs. 

(b) Reservations, including those 

assigned to Public Charter operations 

under paragraph (d) of this section, will 

be available to be assigned by the ARO 

on a 30-minute basis at JFK as follows: 

(1) Two Reservations per hour 

between 6 a.m. and 1:59 p.m. and 

between 10 p.m. and 10:59 p.m. 

(2) One Reservation per hour between 

2 p.m. and 10:59 p.m. 

(c) The ARO will receive and process 

all Reservation requests for unscheduled 

arrivals and departures at JFK. 

Reservations are assigned on a ‘‘firstcome, first-served’’ basis determined by 

the time the request is received at the 

ARO. Reservations must be cancelled if 

they will not be used as assigned. 

(d) One Reservation per hour will be 

available for assignment to Public 

Charter operations prior to the 72-hour 

Reservation window in paragraph (a) of 

this section. No more than 25 percent of 

the reservations from 12 noon through 

9:59 p.m. will be made available for 

Public Charter operations under this 

paragraph. 

(1) The Public Charter Operator may 

request a reservation up to six months 

in advance of date of the flight 

operation. Reservation requests should 

be submitted to Federal Aviation 

Administration, Slot Administration 

Office, AGC–200, 800 Independence 

Avenue, SW., Washington, DC 20591. 

Submissions may be made via facsimile 

to (202) 267–7277 or by e-mail to: 

7–awa–slotadmin@faa.gov. 

(2) The Public Charter operator must 

certify that its prospectus has been 

accepted by the Department of 

Transportation in accordance with 14 

CFR part 380. 

(3) The Public Charter operator must 

identify the call sign/flight number or 

aircraft registration number of the direct 

Air Carrier, the date and time of the 

proposed operations(s), the airport 

served immediately prior to or after JFK, 

aircraft type, and the nature of the 

operations (e.g., ferry, passenger). Any 

changes to an approved Reservation 

must be approved in advance by the 

Slot Administration Office. 

(4) If Reservations under paragraph 

(d)(1) of this section have already been 

assigned, the Public Charter Operator 

may request a Reservation under 

paragraph (a) of this section. 

(e) The filing of a request for a 

Reservation does not constitute the 

filing of an IFR flight plan as required 

by regulation. The IFR flight plan may 

be filed only after the Reservation is 

obtained, must include the Reservation 


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number in the ‘‘Remarks’’ section, and 

must be filed in accordance with FAA 

regulations and procedures. 

(f) Air Traffic Control will 

accommodate declared emergencies 

without regard to Reservations. Nonemergency flights in direct support of 

national security, law enforcement, 

military aircraft operations, or publicuse aircraft operations may be 

accommodated above the Reservation 

limits with the prior approval of the 

Vice President, System Operations 

Services, Air Traffic Organization. 

Procedures for obtaining the appropriate 

waiver will be available on the Internet 

at http://www.fly.faa.gov/ecvrs. 

(g) Notwithstanding the limits in 

paragraph (b) of this section, if the Air 

Traffic Organization determines that air 

traffic control, weather and capacity 

conditions are favorable and significant 

delay is unlikely, the FAA may 

determine that additional Reservations 

may be accommodated for a specific 

time period. Unused Slots may also be 

made available temporarily for 

unscheduled operations. Reservations 

for additional operations must be 

obtained through the ARO. 

(h) Reservations may not be bought, 

sold or leased. 

§ 93.172 Reporting requirements. 

(a) No later than September 1 for the 

Summer Scheduling season and 

February 1 for the Winter Scheduling 

Season, each Carrier holding a Common 

Slot or Limited Slot must submit an 

interim report of Slot usage for each day 

of the applicable scheduling season. No 

later than 30 days after the last day of 

the applicable scheduling season, each 

Carrier holding a Common Slot or 

Limited Slot must submit a final report 

of the completed operations for each 

day of the entire scheduling season. 

(b) Such reports, in a format 

acceptable to the FAA, must contain the 

following information for each Common 

Slot or Limited Slot: 

(1) The Slot number, time, and arrival 

or departure designation; 

(2) The operating Carrier; 

(3) The date and time of each of the 

operations conducted pursuant to the 

Slot, including the flight number and 

origin/destination; and 

(4) The aircraft type identifier. 

(c) The FAA may withdraw the Slot 

of any Carrier that does not meet the 

reporting requirements of paragraph (a) 

of this section. 

§ 93.173 Administrative provisions. 

(a) Each Slot shall be assigned a 

number for administrative convenience. 

(b) The FAA will assign priority 

numbers by random lottery for Common 

Slots and Limited Slots at JFK. Each 

Common Slot and Limited Slot will be 

assigned a withdrawal priority number, 

and the 30-minute time period for the 

Common Slot or Limited Slot, 

frequency, and the arrival or departure 

designation. 

(c) If the FAA determines that 

operations need to be reduced for 

operational reasons, the lowest assigned 

priority number Common Slot or 

Limited Slot will be the last withdrawn. 

(d) Any Slot available on a temporary 

basis may be assigned by the FAA to a 

Carrier on a non-permanent, first-come, 

first-served basis subject to permanent 

assignment under this subpart. Any 

remaining Slots may be made available 

for unscheduled operations on a nonpermanent basis and will be assigned 

under the same procedures applicable to 

other operating Reservations. 

(e) All transactions under this subpart 

must be in a written or electronic format 

approved by the FAA. 

Subpart O—Newark Liberty 

International Airport Traffic Rules 

§ 93.181 Applicability. 

(a) This subpart prescribes the air 

traffic rules for the arrival and departure 

of aircraft used for scheduled and 

unscheduled service, other than 

helicopters, at Newark Liberty 

International Airport (Newark). 

(b) This subpart also prescribes 

procedures for the assignment, transfer, 

sublease and withdrawal of Slots issued 

by the FAA for scheduled operations at 

Newark. 

(c) The provisions of this subpart 

apply to Newark during the hours of 6 

a.m. through 10:59 p.m., Eastern Time. 

No person shall operate any scheduled 

arrival or departure into or out of 

Newark during such hours without first 

obtaining a Slot in accordance with this 

subpart. No person shall conduct an 

Unscheduled Operation to or from 

Newark during such hours without first 

obtaining a Reservation. 

(d) A U.S. Air Carrier conducting 

operations solely under anther Carrier’s 

marketing control with unified 

inventory control shall not be 

considered as a separate Carrier for 

purposes of this rule. 

(e) The Slots assigned under this 

subpart terminate at 11 p.m. on March 

30, 2019. 

§ 93.182 Definitions. 

For purposes of this subpart, the 

following definitions apply: 

Airport Reservation Office (ARO) is an 

operational unit of the FAA’s David J. 

Hurley Air Traffic Control System 

Command Center. It is responsible for 

the administration of reservations for 

unscheduled operations at Newark. 

Baseline Operations are those 

Common Slots held by a carrier on [final 

rule effective date], that do not exceed 

20 operations per day. 

Carrier is a U.S or foreign air carrier 

with authority to conduct scheduled 

service under Parts 121, 129, or 135 of 

this Chapter and the appropriate 

economic authority for scheduled 

service under 14 CFR chapter II and 49 

U.S.C. chapter 411. 

Common Slot (C-slot) is a slot that is 

assigned by the FAA as a lease under its 

cooperative agreement authority for the 

length of this rule. 

Enhanced Computer Voice 

Reservation System (e-CVRS) is the 

system used by the FAA to make arrival 

and/or departure reservations for 

unscheduled operations at Newark and 

other designated airports. 

Limited Slot (L-slot) is a slot operated 

every day, the lease for which expires 

prior to the expiration of this rule for 

subsequent award by the FAA as an 

unrestricted slot. 

New Entrant is any carrier that is 

administratively allocated a total of 8 or 

fewer slots at either JFK or Newark 

during controlled hours at any point 

during the duration of the rule. 

Public Charter is defined in 14 CFR 

380.2 as a one-way or roundtrip charter 

flight to be performed by one or more 

direct air carriers that is arranged and 

sponsored by a public charter operator. 

Public Charter Operator is defined in 

14 CFR 380.2 as a U.S. or foreign public 

charter operator. 

Reservation is an authorization 

received by a carrier or other operator of 

an aircraft, excluding helicopters, in 

accordance with procedures established 

by the FAA to operate an unscheduled 

arrival or departure on a particular day 

of the week during a specific 30-minute 

period. 

Scheduled Operation is the arrival or 

departure segment of any operation 

regularly conducted by a carrier 

between Newark and another point 

regularly served by that carrier. 

Slot is the operational authority 

assigned by the FAA to a carrier to 

conduct one scheduled arrival or 

departure operation at Newark on a 

particular day of the week during a 

specific 30-minute period. 

Summer Scheduling Season begins on 

the last Sunday of March. 

Unrestricted Slot (U-slot) is a slot that 

is awarded to a carrier by the FAA via 

the auction of a lease. 

Unscheduled Operation is an arrival 

or departure segment of any operation 

that is not regularly conducted by a 

carrier or other operator of an aircraft, 


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excluding helicopters, between Newark 

and another service point. The 

following types of carrier operations 

shall be considered unscheduled 

operations for the purposes of this rule: 

public, on-demand, and other charter 

flights; hired aircraft service; extra 

sections of scheduled flights; ferry 

flights; and other non-passenger flights. 

Winter Scheduling Season begins on 

the last Sunday in October. 

§ 93.183 Slots for scheduled arrivals and 

departures. 

(a) During the hours of 6 a.m. through 

10:59 p.m., Eastern Time, no person 

shall operate any scheduled arrival or 

departure into or out of Newark without 

first obtaining a Slot in accordance with 

this subpart. 

(b) Except as otherwise established by 

the FAA under paragraph (c) of this 

section, the number of Slots shall be 

limited to no more than eighty-one (81) 

period at Newark. The number of Slots 

may not exceed 44 in any 30-minute 

period and 81 in any 60-minute period. 

The number of arrival and departure 

Slots in any period may be adjusted by 

the FAA as necessary based on the 

actual or potential delays created by 

such number or other considerations 

relating to congestion, airfield capacity 

and the air traffic control system. 

(c) Notwithstanding paragraph (b) of 

this section, the Administrator may 

increase the number of Slots based on 

a review of the following: 

(1) The number of delays; 

(2) The length of delays; 

(3) On-time arrivals and departures; 

(4) The number of actual operations; 

(5) Runway utilization and capacity 

plans; and 

(6) Other factors relating to the 

efficient management of the National 

Airspace System. 

§ 93.184 Categories of slots. 

(a) General. Each Slot shall be 

designated as a Common Slot, Limited 

Slot or Unrestricted Slot and shall be 

assigned to the Carrier under a lease 

agreement. A lease for a Common or 

Limited Slot shall be awarded via a 

cooperative agreement. A lease for an 

Unrestricted Slot shall be awarded via 

an auction. 

(b) Common Slots. 

(1) All Slots within any Carrier’s 

Baseline Operations, as determined on 

[final rule effective date], shall be 

designated as Common Slots. 

(2) Ten percent of the Slots at Newark 

on [final rule effective date] not 

otherwise designated as Common Slots 

under paragraph (b) (1) of this section 

shall be designated as Limited Slots. All 

other Slots shall be designated as 

Common Slots. 

(c) Limited Slots. Those Slots assigned 

to a Carrier subject to return to the FAA 

under § 93.185(c) shall be designated as 

Limited Slots until the date of their 

reassignment by the FAA as 

Unrestricted Slots. A Carrier may 

continue to use a Limited Slot that has 

reverted to the FAA until reassigned to 

another Carrier as an Unrestricted Slot. 

(1) Each Carrier with a total number 

of daily operations at Newark in excess 

of its Baseline Operations will be 

notified by [final rule effective date] 

how many of its remaining Slots will be 

designated as Limited Slots pursuant to 

paragraphs (c)(2) and (3) of this section. 

(2) A Carrier shall designate 50 

percent of its Limited Slots. The Carrier 

must notify the FAA of its 

determination by [date 10 days after the 

final rule effective date]. 

(3) The FAA will designate the 

remaining Limited Slots, initially 

excluding those hours in which two or 

more Slots have been classified as 

Limited Slots by the Carriers. 

(4) No later than [date 20 days after 

the final rule effective date], the FAA 

will publish a list of all Limited Slots 

and the dates upon which they will 

expire. 

(d) Unrestricted Slots. Unrestricted 

Slots are Slots acquired by a Carrier 

through a lease with the FAA awarded 

via an auction. Unrestricted Slots are 

not subject to withdrawal by the FAA. 

§ 93.185 Initial assignment of slots. 

(a) Except as provided for under 

paragraphs (b) and (c) of this section, 

any Carrier allocated operating rights 

under the Order limiting operations at 

Newark as evidenced by the FAA’s 

records, will be assigned corresponding 

Slots in 30-minute periods consistent 

with the limits under § 93.183(b) and its 

summer and winter season schedules as 

approved by the FAA. If necessary, the 

FAA may utilize administrative 

measures such as voluntary measures or 

a lottery to re-time the assigned Slots 

within the same hour to meet the 30- 

minute limits under § 93.183(b). The 

FAA Vice President, System Operations 

Services, is the final decision-maker for 

determinations under this section. 

(b) If a Carrier was allocated operating 

rights under the Order limiting 

operations at Newark, but the operating 

rights were held by another Carrier, then 

the corresponding Slots will be assigned 

to the Carrier that held the operating 

rights for that period, as evidenced by 

the FAA’s records. 

(c) Starting [date 35 days after the 

effective date] and every year thereafter 

through 2013, one-fifth of the total 

number of Limited Slots shall revert to 

the FAA in accordance with the 

schedule published under § 93.164(c)(4) 

and be auctioned as Unrestricted Slots 

by the FAA. Any Slot receiving no 

responsive bids will be retired until the 

next auction. An affected Carrier will be 

allowed to use the Limited Slot until the 

effective date of an award to a Carrier 

as an Unrestricted Slot. 

§ 93.186 Assignment of new or returned 

slots. 

(a) This section describes the process 

by which the FAA assigns new Slots, as 

well as Slots returned to the FAA 

pursuant to the provisions of § 93.190. 

These Slots will be assigned by the FAA 

to requesting Carriers for the Summer 

and Winter Scheduling Seasons. 

(b) Requests for the new Slots or 

returned Slots or both must be 

submitted to the Federal Aviation 

Administration, Slot Administration 

Office, AGC–200, 800 Independence 

Avenue, SW., Washington, DC 20591 

(Facsimile: (202) 267–7277; e-mail: 7- 

awa-slotadmin@faa.gov), by the 

deadline as published by the FAA in a 

Federal Register notice for each 

Summer and Winter Scheduling Season. 

The requesting Carrier must submit its 

entire schedule at Newark for the 

particular season, noting which requests 

are in addition to, or changes from, the 

previous corresponding season at the 

respective airports. 

(c) Before assigning new or returned 

Slots under this section, the FAA will 

first accommodate Carrier requests to 

retime Slots for operational reasons or to 

bring the flight time closer to the time 

originally requested by the applicant 

Carrier in previous corresponding 

seasons, as reflected in FAA records. 

(d) After accommodating Carrier 

requests for retiming of Slots, the FAA 

will assign 50% of the new Slots and 

returned Slots to New Entrants, unless 

requests by New Entrants constitute 

fewer than 50% of available Slots. 

(e) With the remaining available Slots, 

if all requests for Slots under this 

section cannot be accommodated, the 

FAA will give priority to requests to 

introduce year-round service or to 

extend an existing operation to a yearround operation. 

(f) Thereafter, the FAA will assign 

Slots considering all relevant factors 

including: 

(1) The effective period of operation; 

(2) The extent and regularity of 

intended use of a Slot; 

(3) Schedule constraints of Carriers 

requesting Slots. 

§ 93.187 Reversion and withdrawal of 

slots. 

(a) This section does not apply to 

Unrestricted Slots. 


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(b) A Carrier’s Common Slots or 

Limited Slots revert back to the FAA 30 

days after the Carrier has ceased all 

operations at Newark for any reasons 

other than a strike. 

(c) The FAA may retime, withdraw, or 

temporarily suspend Common Slots and 

Limited Slots at any time to fulfill 

operational needs. 

(d) Common Slots and Limited Slots 

will be withdrawn in accordance with 

the priority list established under 

§ 93.193 and international obligations. 

(e) Except as otherwise provided in 

paragraph (a) of this section, the FAA 

will notify an affected Carrier before 

withdrawing or temporarily suspending 

a Common Slot or Limited Slot and 

specify the date by which operations 

under the Common Slot or Limited Slot 

must cease. The FAA will provide at 

least 45 days’ notice unless otherwise 

required by operational needs. 

(f) Any Common Slot or Limited Slot 

that is temporarily withdrawn under 

this paragraph will be reassigned, if at 

all, only to the Carrier from which it 

was withdrawn, provided the Carrier 

continues to conduct Scheduled 

Operations at the airport. 

§ 93.188 Sublease and transfer of slots. 

(a) A Carrier may sublease its Slots to 

another Carrier in accordance with this 

section and subject to the provisions of 

the Carrier’s lease agreement with the 

FAA. 

(b) A Carrier must provide notice to 

the FAA to sublease a Slot. Such notice 

must contain: the Slot number and time, 

effective dates and, if appropriate, the 

duration of the lease. The Carrier may 

also provide the FAA with a minimum 

bid price. 

(c) The FAA will post a notice of the 

offer to sublease the Slot and relevant 

details on the FAA Web site at http:// 

www.faa.gov. An opening date, closing 

date and time by which bids must be 

received will be provided. 

(d) Upon consummation of the 

transaction, written evidence of each 

Carrier’s consent to sublease must be 

provided to the FAA, as well as all bids 

received and the terms of the sublease, 

including but not limited to: 

(1) The names of all bidders and all 

parties to the transaction; 

(2) The offered and final lengths of the 

sublease; 

(3) The consideration offered by all 

bidders and provided by the sublessee. 

(e) The Slot may not be used until the 

conditions of paragraph (d) of this 

section have been met, and the FAA 

provides notice of its approval of the 

sublease. 

(f) Slots may be transferred among a 

U.S. Air Carrier and another Carrier that 

conducts operations at Newark solely 

under the transferring Carrier’s 

marketing control, including the entire 

inventory of the flight. Each party to 

such transfer must provide written 

evidence of its consent to the transfer 

and the FAA must confirm and approve 

these transfers in writing prior to the 

effective date of the transaction. 

However, the FAA will approve 

transfers under this paragraph up to five 

business days after the actual operation 

to accommodate operational disruptions 

that occur on the same day of the 

scheduled operation. The FAA Vice 

President, System Operations Services 

is the final decision-maker for any 

determinations under this section. 

(g) A Carrier wishing to sublease a 

Slot via an FAA auction, rather than 

pursuant to this section, may do so. The 

Carrier shall retain the proceeds and the 

Slot shall retain the same designation 

that it had prior to the Carrier placing 

it up for auction. 

§ 93.189 One-for-one trade of slots. 

(a) A Carrier may trade a Slot with 

another Carrier on a one-for-one basis. 

(b) Written evidence of each Carrier’s 

consent to the trade must be provided 

to the FAA. 

(c) Each recipient of the trade may not 

use the acquired Slot until written 

confirmation has been received from the 

FAA. 

(d) Carriers participating in a one-forone trade must certify to the FAA that 

no consideration or promise of 

consideration was provided by either 

party to the trade. 

§ 93.190 Minimum usage requirements. 

(a) This section does not apply to 

Unrestricted Slots. 

(b) Any Common Slot or Limited Slot 

included in a summer or winter season 

schedule approved by the FAA that is 

not used at least 80 percent of the time 

during the period for which it is 

assigned will be withdrawn by the FAA. 

(c) Paragraph (b) of this section does 

not apply to the first 90-day period after 

assignment of a Common Slot or 

Limited Slot through a sublease. 

(d) The FAA may waive the 

requirements of paragraph (b) of this 

section 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 or more consecutive days. 

Examples of conditions which could 

justify a waiver under this paragraph are 

weather conditions that result in the 

restricted operation of the airport for an 

extended period of time or the 

grounding of an aircraft type. 

(e) The FAA will treat as used any 

Common Slot or Limited Slot held by a 

Carrier on Thanksgiving Day, the Friday 

following Thanksgiving Day, and the 

period from December 24 through the 

first Sunday of January. 

§ 93.191 Unscheduled operations. 

(a) During the hours of 6 a.m. through 

10:59 p.m. Eastern Time, no person may 

operate an aircraft other than a 

helicopter to or from Newark unless he 

or she has received, for that 

Unscheduled Operation, a Reservation 

that is assigned by the Airport 

Reservation Office (ARO) or in the case 

of Public Charters, in accordance with 

the procedures in paragraph (d) of this 

section. Requests for Reservations will 

be accepted through the e-CVRS 

beginning 72 hours prior to the 

proposed time of arrival to or departure 

from Newark. Additional information 

on procedures for obtaining a 

Reservation is available on the Internet 

at http://www.fly.faa.gov/ecvrs. 

(b) Reservations, including those 

assigned to Public Charter operations 

under paragraph (d) of this section, will 

be available to be assigned by the ARO 

on a 30-minute basis at Newark as 

follows: 

(1) Two Reservations per hour 

between 6 a.m. and 11:59 a.m. and 

between 10 p.m. and 10:59 p.m. 

(2) One Reservation per hour between 

12 noon and 9:59 p.m. 

(c) The ARO will receive and process 

all Reservation requests for unscheduled 

arrivals and departures at Newark. 

Reservations are assigned on a ‘‘firstcome, first-served’’ basis determined by 

the time the request is received at the 

ARO. Reservations must be cancelled if 

they will not be used as assigned. 

(d) One Reservation per hour will be 

available for assignment to Public 

Charter operations prior to the 72-hour 

Reservation window in paragraph (a) of 

this section. No more than 25 percent of 

the reservations available from 12 noon 

through 9:59 p.m. will be made 

available for Public Charter operations 

under this paragraph. 

(1) The Public Charter Operator may 

request a reservation up to six months 

in advance of the date of the flight 

operation. Reservation requests should 

be submitted to Federal Aviation 

Administration, Slot Administration 

Office, AGC–200, 800 Independence 

Avenue, SW., Washington, DC 20591. 

Submissions may be made via facsimile 

to (202) 267–7277 or by e-mail to: 7- 

awa-slotadmin@faa.gov. 

(2) The Public Charter operator must 

certify that its prospectus has been 

accepted by the Department of 


cprice-sewell on PROD1PC69 with PROPOSALS3
Federal Register / Vol. 73, No. 99 / Wednesday, May 21, 2008 / Proposed Rules 29651 

Transportation in accordance with 14 

CFR part 380. 

(3) The Public Charter operator must 

identify the call sign/flight number or 

aircraft registration number of the direct 

Air Carrier, the date and time of the 

proposed operation(s), the airport 

served immediately prior to or after 

Newark, aircraft type, and the nature of 

the operation (e.g., ferry, passenger). 

Any changes to an approved 

Reservation must be approved in 

advance by the Slot Administration 

Office. 

(4) If Reservations under paragraph 

(d)(1) of this section have already been 

assigned, the Public Charter operator 

may request a Reservation under 

paragraph (a) of this section. 

(e) The filing of a request for a 

Reservation does not constitute the 

filing of an IFR flight plan as required 

by regulation. The IFR flight plan may 

be filed only after the Reservation is 

obtained, must include the Reservation 

number in the ‘‘Remarks’’ section, and 

must be filed in accordance with FAA 

regulations and procedures. 

(f) Air Traffic Control will 

accommodate declared emergencies 

without regard to Reservations. Nonemergency flights in direct support of 

national security, law enforcement, 

military aircraft operations, or publicuse aircraft operations may be 

accommodated above the Reservation 

limits with the prior approval of the 

Vice President, System Operations 

Services, Air Traffic Organization. 

Procedures for obtaining the appropriate 

waiver will be available on the Internet 

at http://www.fly.faa.gov/ecvrs. 

(g) Notwithstanding the limits in 

paragraph (b) of this section, if the Air 

Traffic Organization determines that air 

traffic control, weather and capacity 

conditions are favorable and significant 

delay is unlikely, the FAA may 

determine that additional Reservations 

may be accommodated for a specific 

time period. Unused Slots may also be 

made available temporarily for 

unscheduled operations. Reservations 

for additional operations must be 

obtained through the ARO. 

(h) Reservations may not be bought, 

sold or leased. 

§ 93.192 Reporting requirements. 

(a) No later than September 1 for the 

Summer Scheduling Season and 

February 1 for the Winter Scheduling 

Season, each Carrier holding a Common 

Slot or Limited Slot must submit an 

interim report of Slot usage for each day 

of the applicable scheduling season. No 

later than 30 days after the last day of 

the applicable scheduling season, each 

Carrier holding a Common Slot or 

Limited Slot must submit a final report 

of the completed operations for each 

day of the entire scheduling season. 

(b) Such reports, in a format 

acceptable to the FAA, must contain the 

following information for each Common 

Slot or Limited Slot: 

(1) The Slot number, time, and arrival 

or departure designation; 

(2) The operating Carrier; 

(3) The date and time of each of the 

operations conducted pursuant to the 

Slot, including the flight number and 

origin/destination; and 

(4) The aircraft type identifier. 

(c) The FAA may withdraw the Slot 

of any Carrier that does not meet the 

reporting requirements of paragraph (a) 

of this section. 

§ 93.193 Administrative provisions. 

(a) Each Slot shall be assigned a 

number for administrative convenience. 

(b) The FAA will assign priority 

numbers by random lottery for Common 

Slots and Limited Slots at Newark. Each 

Common Slot and Limited Slot will be 

assigned a withdrawal priority number, 

and the 30-minute time period for the 

Common Slot or Limited Slot, 

frequency, and the arrival or departure 

designation. 

(c) If the FAA determines that 

operations need to be reduced for 

operational reasons, the lowest assigned 

priority number Common Slot or 

Limited Slot will be the last withdrawn. 

(d) Any Slot available on a temporary 

basis may be assigned by the FAA to a 

Carrier on a non-permanent, first-come, 

first-served basis subject to permanent 

assignment under this subpart. Any 

remaining Slots may be made available 

for unscheduled operations on a nonpermanent basis and will be assigned 

under the same procedures applicable to 

other operating Reservations. 

(e) All transactions under this subpart 

must be in a written or electronic format 

approved by the FAA. 

Issued in Washington, DC, on May 15, 

2008. 

Nan Shellabarger, 

Director of Aviation Policy and Plans. 

[FR Doc. 08–1271 Filed 5–16–08; 12:00 pm] 

BILLING CODE 4910–13–P 


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