`[Federal Register Volume 73, Number 13 (Friday, January 18, 2008)]
[Notices]
[Pages 3510-3542]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-171]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket FAA-2007-29320]


Operating Limitations at John F. Kennedy International Airport; 
Order Limiting Scheduled Operations at John F. Kennedy International 
Airport

I. Introduction

    This Order establishes a temporary limitation on the number of 
scheduled operations at John F. Kennedy International Airport (JFK). 
The Acting Administrator of the Federal Aviation Administration (FAA) 
is issuing this Order as a result of a persistent number of flights 
above capacity at JFK during the peak operating hours. We intend this 
Order to relieve the substantial inconvenience to the traveling public 
caused by excessive congestion-related flight delays at the airport, 
which magnify as they spread through the National Airspace System. 
Among other things, this Order will reduce the average length of delays 
and provide for a more efficient use of the nation's airspace. This 
Order takes effect at 6 a.m., Eastern Time, on March 30, 2008, and will 
expire at 11:59 p.m., Eastern Time, on October 24, 2009.
    The FAA previously determined that a limit on scheduled operations 
is necessary to address the increased level of flights over the past 
two years and, in particular, flights added during the peak afternoon 
and evening hours. These additional flights resulted in

[[Page 3511]]

summer 2007 schedules well in excess of the airport's optimal capacity. 
The limits apply to all air carrier and foreign air carrier scheduled 
operations, excluding helicopters, from 6 a.m., Eastern Time, through 
10:59 p.m., Eastern Time. The FAA will soon issue a proposal to 
establish limits on unscheduled flights at JFK during the same hours 
and a system to allocate the available reservations.
    This Order follows the conclusion of a scheduling reduction meeting 
conducted by the FAA with air carriers and the Port Authority of New 
York and New Jersey (PANYNJ) under the FAA's authority in 49 U.S.C. 
41722. he 15 air carriers that attended the meeting also met 
individually with the FAA to review their schedules. In addition to the 
meeting's collective and individual sessions, the FAA invited all 
interested individuals, organizations, and business entities to file 
their written views in the public docket associated with this 
proceeding. This Order is enforceable under the FAA's civil penalty 
authority.

II. Background

    The U.S. Government has exclusive sovereignty over the airspace of 
the United States.\1\ Under this broad authority, Congress has 
delegated to the Administrator extensive and plenary authority to 
ensure the safety of aircraft and the efficient use of the nation's 
navigable airspace. In this regard, the Administrator is required to 
assign the use of navigable airspace by regulation or order under such 
terms, conditions and limitations as he or she may deem necessary to 
ensure its efficient use.\2\ The Administrator may modify or revoke an 
assignment when required in the public interest.\3\ The FAA interprets 
its statutory directive to act in the public interest as implicitly 
applying to any decision by the FAA to assign the efficient use of the 
navigable airspace. Furthermore, in carrying out the Administrator's 
safety responsibilities under the statute, the Administrator must 
consider controlling the use of the navigable airspace and regulating 
civil operations in that airspace in the interest of the safety and 
efficiency of those operations.\4\
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    \1\ 49 U.S.C. 40103(a).
    \2\ 49 U.S.C. 40103(b)(1), as previously codified in 49 U.S.C. 
App. Sec.  307(a). Title 49 was recodified by Pub. L. 103-222, 108 
Stat. 745 (1994). The textual revisions were not intended to result 
in substantive changes to the law. The recodification stated that 
the words in Sec.  307(a) ``under such terms, conditions, and 
limitations as he may deem'' were omitted as surplus. H. Rpt. 103-
180 (103d Cong., 1st Sess. 1993) at 262.
    \3\ Id.
    \4\ 49 U.S.C. 40101(d)(4).
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    The FAA interprets its broad statutory authority to manage ``the 
efficient use of airspace'' to encompass its management of the 
nationwide system of air commerce and air traffic control. On a daily 
basis, that system regularly transports millions of passengers, 
thousands of tons of cargo, and millions of pieces of mail. The FAA 
believes that ensuring the efficient use of the airspace means that it 
must take all necessary steps to prevent extreme congestion at an 
airport from disrupting or adversely affecting the overall air traffic 
system for which the FAA is responsible. Inordinate delays at a single 
airport of the sort experienced at JFK can have a crippling effect on 
other parts of the system, causing untold losses in time and money for 
individuals and businesses, as well as the carriers at JFK and 
throughout the country.
    The FAA's role in relieving congestion at JFK is not a recent 
phenomenon. In 1968, the FAA issued the High Density Rule (HDR), 
designating JFK a high density traffic airport and limiting the number 
of takeoffs and landings at the airport, effective April 27, 1969.\5\ 
Under the HDR, the FAA required carriers to hold a reservation, which 
came to be known as a ``slot,'' for each takeoff or landing under 
instrument flight rules at the high density traffic airports.\6\ The 
HDR remained in effect at JFK for nearly four decades, during which 
aircraft operations at JFK were limited for the five hours of peak 
demand--3 p.m. through 7:59 p.m., Eastern Time.
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    \5\ 33 FR 17896 (1968). The FAA codified the rules for operating 
at high density traffic airports in 14 CFR part 93, subpart K.
    \6\ See, e.g., 14 CFR 93.125 (2004).
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    In April 2000, Congress began phasing out the HDR at certain 
airports, including JFK, which was no longer subject to the HDR after 
January 1, 2007.\7\ The elimination of the HDR at JFK has allowed 
increased scheduling during the peak hours, continuing a trend of 
increased operations at JFK in recent years. However, capacity has not 
increased commensurate with the flight increases. In addition, JFK has 
evolved from an airport that historically served primarily 
international markets and the associated domestic feeder service into 
an airport that now also provides significantly more domestic service. 
There has more recently been an increasing emphasis on connecting 
traffic that is typical of hub airports, as well as an increased focus 
on origin and destination traffic.
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    \7\ 49 U.S.C. 41715(a).
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    As a result of these changes at JFK, carriers have significantly 
increased their scheduled operations throughout the day, and demand 
exceeds the airport's capacity during some periods. For example, from 
February 2007 through July 2007, JFK's average actual airport capacity 
was 81 operations per hour. The scheduled demand during the busiest 
hour, 4:00 p.m., was over 110 arrivals and departures during summer 
2007. Adjacent hours had fewer scheduled flights, with total operations 
numbering from the mid-80s to mid-90s, but they were still above the 
average hourly runway capacity. As a result, aircraft were delayed 
until they could be accommodated safely within the available capacity.
    In addition, the relatively pronounced arrival and departure banks 
that historically characterized JFK's afternoon and evening 
transatlantic operations are now supplanted by mixed arrivals and 
departures during peak hours. Although JFK has four runways, the 
airport is limited to, at most, a three-runway configuration due to the 
shared airspace in the New York area. JFK achieves maximum efficiency 
using either two arrival runways and one departure runway or two 
departure runways and one arrival runway. The recent mixing of arrivals 
and departures throughout the day, however, reduces the efficiency of 
predominantly arrival or departure runway configurations. Although air 
traffic control procedural and runway use plans adopted in early 2007 
have increased JFK's aircraft throughput, especially for departures, 
they do not provide a capacity increase that will accommodate the 
current peak period demand.
    The increase in scheduled operations at JFK has had a profound 
effect on the delays that travelers have experienced. During fiscal 
year 2007, the average daily operations at JFK increased 21% over 
fiscal year 2006. Corresponding to the increased operations, on-time 
performance and other delay metrics have declined year over year. The 
on-time arrival performance at JFK, which is defined as arrival at the 
gate within 15 minutes of the scheduled time, declined from 68.5% in 
fiscal year 2006 to 62.19% in fiscal year 2007. On-time arrivals during 
the peak travel months of June, July and August declined from 63.37% in 
2006 to 58.53% in 2007 while on-time departures declined from 67.49% to 
59.89%. For the entire fiscal year, the average daily arrival delays 
exceeding one hour increased by 87% over fiscal year 2006 levels. Taxi 
out delays, which measure the time that aircraft wait prior to 
departing the runway, increased by 15%. Taxi out delays in the evening 
departure periods frequently exceeded an hour in

[[Page 3512]]

duration. At the same time, U.S. and foreign air carriers have 
continued to announce new flights for JFK throughout the day, including 
during the most oversubscribed hours.
    The increased congestion and delays at JFK have had an adverse 
effect on other airports in the region and on the National Airspace 
System. For instance, Newark Liberty International Airport and 
LaGuardia Airport, which share airspace with JFK, have consistently 
been among the nation's most delay-prone airports. The recently 
approved airspace redesign plan for the New York/New Jersey/
Philadelphia metropolitan area \8\ documents the costs and far-reaching 
impacts of delays that originate from this area.
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    \8\ The Record of Decision implementing the New York/New Jersey/
Philadelphia Metropolitan Area Airspace Redesign was issued 
September 5, 2007 and may be found at http://www.faa.gov.
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    The FAA, working with the airport operator, carriers, and other 
customer representatives, has begun to implement a number of short-term 
initiatives to improve the efficiency of airport operations and the air 
traffic control system, especially during periods of adverse weather 
when the effects of overscheduling are more pronounced. The FAA's 
recently concluded New York Aviation Rulemaking Committee examined 
congestion issues in the New York area and considered a list of over 77 
initiatives that could improve operations in the region, including some 
that could apply to JFK. Moreover, airspace redesign will open 
additional arrival and departure routes in the New York area to reduce 
delays and congestion. These measures alone, however, are not expected 
to provide sufficient near-term gains to accommodate the peak hour 
schedules at JFK's current or forecast levels of demand.

III. The Decision To Convene a Scheduling Reduction Meeting

    When Congress began phasing out the HDR at JFK in 2000, it 
emphasized that it did not intend to limit the FAA's overall authority, 
including its authority over ``the movement of air traffic.'' \9\ More 
recently, in December 2003, Congress specifically authorized the 
Secretary of Transportation to ask U.S. air carriers to meet with the 
FAA to discuss flight reductions at severely congested airports to 
reduce overscheduling and flight delays during peak operating 
hours.\10\ Under this authority, the FAA's Acting Administrator found 
in September 2007 that such a meeting was necessary with respect to JFK 
to reduce overscheduling and flight delays during peak hours of 
operation. The Secretary of Transportation determined in October 2007 
that a meeting was necessary to meet a serious transportation need or 
to achieve an important public benefit.
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    \9\ 49 U.S.C. 41715(b).
    \10\ 49 U.S.C. 41722(a).
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    Through a notice issued October 16, 2007, and published in the 
Federal Register, the FAA invited all U.S. scheduled air carriers and 
the PANYNJ to attend the scheduling reduction meeting, commencing 
October 23. The FAA also invited all interested persons to submit 
information on the subject of overscheduling at JFK, including any data 
and their views, to a public docket for the FAA's consideration in 
issuing this Order.

IV. Determination of Operational Targets

    The statute authorizing the Administrator to conduct a scheduling 
reduction meeting requires the FAA to establish operational targets for 
the efficient scheduling of the airport. In identifying this number, 
the FAA reviewed JFK's hourly operations over a two-year period, from 
July 2005 through July 2007. The FAA assigned to each hour the higher 
value of the actual aircraft throughput or the number of arrivals and 
departures that the air traffic control personnel identified as 
achievable in a given hour. As a result, the FAA accepted the higher 
number when the airport's performance exceeded expectations, as well as 
when the airport's potential capacity exceeded demand. Over the entire 
period that we reviewed, the higher of JFK's actual or air traffic 
control declared capacity averaged 77 hourly operations. We further 
noted, however, that the average steadily increased over the evaluated 
period. During the first year, from July 2005 through June 2006, the 
airport had an average adjusted capacity of 74 hourly operations. Over 
the final six months of the period--February 2007 through July 2007--
the airport's average adjusted capacity increased to 81 hourly 
operations.
    On October 19, 2007, the FAA announced its operational targets for 
the meeting. The announced total operational target was 80 operations 
per hour, except from 3 p.m. through 7:59 p.m., when the target was 
identified as 81 hourly operations. In an effort to smooth the 
operations within each hour, the targeted 30-minute maximum was 44 
operations and the 15-minute maximum was 24 operations. In addition, 
because the best runway configurations at JFK offer either two arrival 
runways and one departure runway or two departure runways and one 
arrival runway, we identified that the mix of arrival and departure 
demand is important to achieve maximum aircraft throughput. Therefore, 
additional limits on arrivals and departures were targeted to balance 
the demand, with the number of arrivals or departures not to exceed 53 
in any 60-minute period, 29 in any 30-minute period, or 16 in any 15-
minute period.
    The proposed targets for the scheduling discussions would apply to 
operations from 6 a.m. through 9:59 p.m., Eastern Time, daily. The 
targets included all scheduled operations and up to four unscheduled 
operations per hour. In applying the targets, the FAA decided that 
regularly conducted air carrier flights, such as cargo and charter 
flights, would be considered scheduled operations even if they do not 
appear in the Official Airline Guide.

V. Meetings With the U.S. Air Carriers

    The FAA convened the scheduling reduction meeting with the U.S. air 
carrier participants and representatives of the airport operator on 
October 23, and the meeting continued on October 24. In total, the FAA 
had separate meeting sessions over the two days with 15 air carriers 
and with the PANYNJ. Additional in-person and telephonic meeting 
sessions took place on November 16 and December 11. Representatives of 
the Department of Justice's Antitrust Division monitored the joint and 
individual meeting sessions of the scheduling reduction meeting. In 
addition, the in-person and telephonic sessions were transcribed.\11\ 
At these meetings, the FAA requested the carriers provide whatever 
information and opinion they deemed relevant to the FAA's ultimate 
decision; additionally, the FAA made clear its intention to take prompt 
action immediately following the sessions' conclusion to establish 
flight limits that would apply to all carriers and incorporate any 
positive schedule reductions or adjustments by U.S. carriers into a 
binding and final agency order.
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    \11\ The FAA has not yet formally adjourned the meeting. In the 
event that further meeting sessions are required, it is anticipated 
that this may occur closer to the March 30, 2008, effective date of 
this order.
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    During the individual air carrier sessions, American Airlines, 
Delta Air Lines, and JetBlue Airways, which together now account for 
approximately 75% of the total operations at JFK, withdrew the schedule 
increases that they proposed for summer 2008 during the airport's peak 
hours of 3 p.m. through 7:59 p.m. They also retimed operations from 
those hours, in some

[[Page 3513]]

cases below the levels that they operated during summer 2006. Other 
participants were agreeable to retiming some scheduled operations to 
reduce scheduling peaks and to produce a more efficient overall 
schedule. Because the summer 2007 schedules already exceed the 
announced targets during some hours, proposed new operations could not 
be accommodated at those times. The FAA offered alternative hours when 
the airport had capacity, however, to the air carriers seeking to 
retime previously conducted operations or to add new flights to their 
summer 2008 schedules.
    U.S. and foreign air carriers, the PANYNJ, and other interested 
parties were also invited by Federal Register notice to provide 
whatever information and opinion they deemed relevant to the FAA's 
ultimate decision. The Federal Register notice made clear the FAA's 
intention to take prompt action immediately following the sessions' 
conclusion to establish flight limits that would apply to all carriers 
and incorporate any positive schedule reductions or adjustments by U.S. 
air carriers into a binding and final agency order. Having considered 
the results of these sessions and the extensive information received 
during them and through the public docket, the Acting Administrator has 
determined that it is in the public interest to take immediate action 
to implement the various scheduling reductions and adjustments offered 
to the FAA.

VI. Summary of the Information Received

A. Revised Hourly Schedule Limitations

    As discussed earlier in this Order, the FAA proposed 15-, 30-, and 
60-minute scheduling targets for JFK that would have provided for 
considerable delay reduction over the summer 2007 levels. The FAA based 
these targets primarily on recent airport runway throughput and our 
delay reduction goals. Several air carriers and the PANYNJ stated 
during the scheduling reduction meeting that the targets were too low, 
would be overly restrictive, and would result in underutilization of 
the airport's capacity and infrastructure. A number of interested 
parties filed similar views in the public docket.
    The FAA ultimately has agreed to accept schedules that include 
fewer reductions during some peak hours from the historic summer 2007 
operations and exceed the 15-, 30-, and 60-minute targets in some 
periods. For the purpose of the initial summer 2008 allocation, we have 
accepted some scheduled operations above our proposed limits in 
recognition of the voluntary nature of the scheduling reduction meeting 
and in expectation of future schedule adjustments. In particular, we 
recognize that carriers have been increasing the point-to-point or 
block time of peak hour flights to account for delays experienced on a 
regular basis. With improved operational performance, carriers will 
likely seek to reduce block time, which could affect the currently 
allocated times. The FAA expects that, over time, some periods with 
Operating Authorizations currently above our proposed limits will be 
adjusted to other times.
    The modeled delays for the currently proposed schedules will be a 
significant improvement over the proposed summer 2008 schedules that 
the carriers filed with the FAA in October 2007, under which delays 
could have increased by up to 150 percent over the summer 2007 levels. 
The accepted levels include an average of 82 to 83 operations by U.S. 
and foreign air carriers in certain hours. At the same time, about 100 
new operations will be accommodated throughout the day. With these new 
flights and slightly higher scheduling targets, the modeled levels of 
delay are higher than those modeled for the proposed targets against 
the summer 2007 baseline schedules. Even so, the duration of the delays 
will not be as severe as those experienced in summer 2007 due to more 
evenly distributed demand in summer 2008.
    While additional delay reduction benefits were possible using 15 
minute targets, the FAA has decided to accept the proposed schedules 
and allocate Operating Authorizations in 30 minute increments. The FAA 
will continue to work with carriers to smooth their schedules and to 
adjust the timing of arriving and departing flights within the 
allocated times. It is possible this smoothing process could be 
hindered by a carrier assessing a relative ``value'' to a specific 15 
minute time periods rather than seeking to improve the airports 
operations. The FAA believes allocating the authorizations in 30 minute 
increments will assist in smoothing actual operations. The FAA record 
of Operating Authorizations reflecting carrier schedules for summer 
2008 are reflected in the appendix to this Order.
    We will also closely monitor the efficiency gains and the reduction 
in delay from the implementation of airspace redesign and other air 
traffic control or airport operational changes in order to ensure that 
our scheduling limits reflect fully the available capacity.

B. Operational Flexibility and Future Airport Growth

    Based on the FAA's experience with capacity-constrained airports, 
we anticipate that U.S. and foreign air carriers may occasionally need 
to modify their schedule times for operational or other reasons while 
this Order is in effect. Accordingly, we acknowledge that this Order 
should provide a mechanism through which such carriers can modify their 
schedules.
    Given the near-saturation of the airport's peak operational hours, 
however, it is also essential that any schedule adjustment preserves 
the stabilizing effect of the operational limits in this Order. 
Therefore, this Order establishes three means through which U.S. and 
foreign air carriers can change an initial allocation of an Operating 
Authorization within the periods from 6 a.m. through 10:59 p.m.
    First, because it is necessary to evaluate the effect of any 
proposed schedule change, a U.S. or foreign air carrier must obtain the 
Administrator's written approval before making a schedule change that 
would be outside the 30-minute window of the allocated Operating 
Authorization.
    If we determine that the schedule change will not adversely affect 
congestion at JFK, the FAA will approve it. The FAA does not expect to 
approve schedule changes that would add flights above the accepted 
level of 81 operations in a given hour. Because the FAA wished to 
maximize the reduction in delays while accommodating carriers' need for 
flexibility, the FAA anticipates that it would approve schedule changes 
that bring the overall number of flights in any given hour down to or 
below 81.
    Second, if the FAA is unable to approve a proposed schedule change, 
a U.S. or foreign air carrier may still achieve the scheduling change 
by trading Operating Authorizations with another carrier. Before any 
such trade becomes final, the carriers must obtain the Administrator's 
written approval. Once again, if the Administrator or his delegate 
determines that the trade will not increase congestion at JFK, the FAA 
will approve it.
    Third, in addition to the permitted trades of Operating 
Authorizations among U.S. or foreign air carriers, the FAA will permit 
the leasing of the Operating Authorizations assigned under this Order, 
provided that any lease does not survive this Order's expiration. The 
carriers may offer or accept any form of consideration in a lease 
transaction negotiated under this Order. However, this Order is not

[[Page 3514]]

intended to create a long-term solution to congestion at JFK. Because 
the Operating Authorizations established under this Order do not create 
long-term rights at JFK, the FAA will not allow lease transactions that 
assume that the carrier leasing an Operating Authorization will acquire 
any right to continue operating flights after this Order expires. 
Because of the short-term nature of the Order, permanent sales, 
purchases, or transfers of Operating Authorizations will not be 
permitted. In addition, in order to lease an Operating Authorization, a 
carrier must have actually used the authorization to conduct flights 
into and out of JFK. Otherwise a carrier could simply choose to never 
operate a flight that it had represented to the FAA in the scheduling 
reduction meetings it intends to conduct.
    In the event that any new capacity is realized at JFK during the 
duration of this Order, several oral requests and three written 
submissions proposed that the FAA should offer the new capacity first 
to any air carrier that reduced its schedule at JFK through the 
scheduling reduction meeting process. In responding to these requests, 
it should be noted that no air carrier reduced its overall number of 
operations at JFK during the constrained hours of 6 a.m. through 10:59 
p.m. Instead, to the extent that air carriers retreated from their 
summer 2007 schedules during some hours to the more manageable levels 
that the FAA identified, the air carriers universally shifted 
operations to other hours. Moreover, in many instances, air carriers 
added still more scheduled operations. As a result, the schedule that 
this Order establishes adds more than 100 daily scheduled operations to 
the number previously offered at JFK through the unconstrained summer 
2007 carrier schedules.
    Under the scheduling reduction process, no carrier reduced 
operations at JFK from its summer 2007 levels, and total operations at 
the airport will actually increase during summer 2008. In addition, the 
FAA will intend to maximize passenger throughput during the most 
congested hours of the day by proposing to restrict unscheduled 
service, which effectively raises the cap for scheduled operations 
during those hours.
    New capacity is defined as any capacity above and beyond 81, other 
than those Operating Authorizations above that level allocated under 
this Order. As new capacity becomes available, or as allocated 
Operating Authorizations are returned to the FAA, the FAA plans to 
lease that capacity. Capacity returned to the FAA as a function of this 
Order's use-or-lose provision or as a result of a carrier ceasing 
operations at JFK would also be leased by the FAA, but we would not 
withdraw existing capacity from any carrier for leasing purposes. We 
anticipate that each lease will be for a period of five years. Leases 
will be issued pursuant to an auction, with the highest responsive 
bidder being awarded the lease. Auction procedures will be consistent 
with our international obligations. Foreign air carriers will be 
eligible to bid on leases. We will provide additional information about 
leasing procedures and the relevant statutory authorities before 
conducting any auction.

C. Effect on Limited Incumbents and New Entrants

    Three air carriers (Eos Airlines, Global Aero Logistics, and Virgin 
America) and two associations (the Air Carrier Association of America 
and the National Air Carrier Association) observed that a temporary cap 
on operations at JFK will tend to suppress the growth of new entrant 
and limited incumbent air carriers. Virgin America, in particular, 
proposed that the FAA should reserve 15 daily roundtrips (a total of 30 
operations) for each air carrier during the restricted hours at JFK.
    Throughout the scheduling reduction process, and during our review 
of all the schedule requests of U.S. and foreign air carriers, the FAA 
sought a solution that is fair to all the carriers, a subset of which 
is the carriers that provide a small number of daily operations at JFK. 
Ultimately, however, a successful conclusion required the FAA to reduce 
a summer 2007 spike in scheduled operations in the 8 a.m. hour and 
during the period from 3 p.m. through 7:59 p.m.\12\ During the process, 
the FAA was sensitive to the proportionally greater importance a single 
operation can have to a carrier that operates fewer overall flights. As 
a result, in addition to granting all but the largest U.S. air carriers 
at JFK their historic schedules at every hour if they wished to 
continue them, the FAA offered the carriers with the smallest presence 
an opportunity to add operations during the hours that did not exceed 
the proposed hourly caps. The resulting schedule carefully balances the 
competing interests of all carriers at JFK and is the least intrusive 
on the carriers with the smallest JFK presence, who retain all of their 
historic and realistically timed new operations at the airport.
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    \12\ See Docket FAA-2007-29320, Doc. 0009 at 4-5.
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    In addition, as noted in the previous subsection of this Order, all 
carriers will have an opportunity to acquire and to retime operations 
at JFK while this Order is in effect. Under this Order, all carriers 
have the opportunity to trade with others for Operating Authorizations 
at times that are more desirable to them. In addition, all U.S. and 
foreign air carriers have the opportunity to lease Operating 
Authorizations from other carriers for the duration of this Order. 
Furthermore, in the event that FAA or airport initiatives create new 
capacity at JFK while the Order is in effect, all air carriers--
including those without a presence at JFK and those with few 
operations--would have the opportunity to bid on a leasehold interest 
in the new operations.
    The FAA cannot accommodate Virgin America's suggestion that each 
air carrier receive 30 operations at JFK during the peak hours. Because 
Virgin America, like all other U.S. and foreign air carriers, had the 
opportunity to add operations at JFK during the hours when they could 
realistically conduct them, it appears that their request more 
specifically seeks 30 operations during their preferred hours. As one 
of three major New York-area airports and a key international gateway, 
however, JFK is not a typical facility. During the summer of 2007, JFK 
enjoyed service from no fewer than 83 different U.S. and foreign air 
carriers. Of these, only four offered more than 30 daily operations at 
JFK. As an airport that is so significantly oversubscribed, it is 
simply impossible to grant every air carrier 30 operations at the times 
that they would prefer.

D. Foreign Air Carriers

    Foreign air carriers are included in the limits established by this 
Order and will be allocated Operating Authorizations based on historic 
summer 2007 operations or on amended requests for summer 2008 schedules 
that have been approved by FAA. The FAA declared JFK a Level 2 
schedules facilitated airport under the International Air Transport 
Association (IATA) Worldwide Scheduling Guidelines and advised carriers 
to submit proposed summer 2008 schedules by October 11, 2007. Shortly 
after the submission deadline, the FAA determined to hold a scheduling 
reduction meeting for JFK and to declare the airport an IATA Level 3 
coordinated airport. In November, the FAA met with many of the carriers 
at the IATA Schedules Conference to review the proposed summer 2008 
schedules. Historic operations of foreign air carriers were granted if 
requested for summer

[[Page 3515]]

2008, as were some retimings. Similar to the position taken with 
domestic air carriers during the scheduling reduction meetings, the FAA 
indicated that requests for new operations during the oversubscribed 
hours could not be accommodated, because we expected U.S. air carriers 
to reduce operations during those hours below the summer 2007 level. 
Foreign air carriers were offered alternative timings when capacity was 
available, and like domestic carriers, they may trade or lease 
Operating Authorizations to change the timing of their operations or to 
obtain additional Operating Authorizations.
    Because this Order extends to October 24, 2009, the FAA understands 
that there may be slight variations with winter timings or allocations 
that will need to be considered. The FAA will not exceed the limits 
adopted in this Order for the winter 2008 scheduling season, but we 
will work with carriers to address their historic scheduling needs.

E. Usage Requirement and Withdrawals

    The FAA has considered whether, in order to encourage maximum 
utilization of JFK's limited capacity, this Order should include a 
usage requirement for the Operating Authorizations that it allocates. 
Such requirements are common at capacity constrained airports. A usage 
requirement previously applied to JFK and the other HDR airports; it 
continues to apply to Ronald Reagan Washington National Airport under 
the HDR; and such a requirement applies under the rules currently in 
effect at O'Hare International and LaGuardia Airports. In addition, the 
IATA Worldwide Scheduling Guidelines include a minimum usage 
requirement.
    Based on discussions with carriers, it seems that most support 
adopting the Worldwide Scheduling Guidelines requirement for the usage 
of JFK's Operating Authorizations. The FAA therefore is requiring that 
the Operating Authorizations be used at least 80% of the time during 
the period for which they have been allocated. This standard is 
distinguished from the 80% usage requirement currently in effect at 
O'Hare and LaGuardia, because rather than calculating usage over an 
aggregate 2-month period, we will measure it by use on the allocated 
day and specific time. Including a usage requirement may also provide a 
greater opportunity for carriers to obtain Operating Authorizations in 
the secondary market, because carriers may seek to lease them rather 
than lose Operating Authorizations for underutilization. This could 
potentially benefit carriers seeking to enter the market or to increase 
their presence at JFK.
    Recognizing that there may be unexpected times when a carrier's 
operations are greatly disrupted, the Administrator under this Order 
has the authority to waive the 80% usage requirement in the event of a 
highly unusual and unpredictable condition which is beyond the control 
of the carrier and which exists for a period of 5 consecutive days or 
more. Additionally, the FAA will treat as used any Operating 
Authorization held by a carrier on Thanksgiving Day, the Friday 
following Thanksgiving Day, and the period from December 24 through the 
first Saturday in January.
    If the FAA determines that a reduction in the number of allocated 
Operating Authorizations is required to meet operational needs, such as 
reduced airport capacity, the FAA will conduct a weighted lottery \13\ 
to withdraw Operating Authorizations to meet a reduced hourly or half-
hourly limit for scheduled operations. Once capacity returned to its 
previous levels, the withdrawn Operating Authorizations would be 
returned to the carriers from whom they were withdrawn. The FAA will 
provide at least 45 days advanced notice if possible.
---------------------------------------------------------------------------

    \13\ In a weighted lottery, the risk of having an Operating 
Authorization withdrawn is proportional to the number of Operating 
Authorizations that a carrier holds. Thus, those carriers with the 
greatest number of authorizations are most likely to have an 
authorization withdrawn. Those with very few operations bear a very 
small, but still some, risk of having an authorization withdrawn.
---------------------------------------------------------------------------

F. Unscheduled Operations

    Unscheduled operations, including general aviation, charter 
flights, and other ad hoc operations, have typically been a small 
percentage of the overall traffic at JFK. However, given the level of 
congestion experienced last summer, even the addition of a few 
operations during the oversubscribed hours can exacerbate delays. When 
the airport operations were limited by the HDR, a total of 8 
reservations were set aside for unscheduled operations during the five 
slot controlled hours. From 5 p.m. until 6 p.m., no unscheduled 
reservations were available, permitting additional capacity for 
scheduled operations. As indicated earlier in this notice and in the 
FAA notice establishing the targets for the scheduling reduction 
meeting, the FAA is including regularly conducted carrier operations in 
the category of scheduled operations. Therefore, the carriers that have 
conducted such operations will be allocated Operating Authorizations 
for their summer 2008 operations.
    The FAA soon intends to issue a separate notice of proposed 
rulemaking (NPRM) proposing to limit the number of unscheduled flights 
and to require a reservation to operate during controlled hours. During 
the busiest hours, the number of reservations set aside for unscheduled 
operations would be reduced to allow for additional scheduled traffic. 
In some of the scheduling reduction meeting discussions and in some of 
the views filed in this docket, some air carriers expressed support for 
additional operations for unscheduled flights, because such operations 
are an important component of their business. Atlas Air Worldwide 
Holdings, Global Aero Logistics, and the National Air Carrier 
Association advocated flexibility to accommodate charter, ferry, and 
other flights. The FAA expects that under certain operating conditions, 
additional reservations could be made available for unscheduled 
operations, provided that significant delay impacts are not expected. 
Additional information on unscheduled operations and the proposed 
reservation system will be included in the NPRM, and the FAA will 
consider any comments received prior to adopting a final rule.

G. Enforcement of This Order

    The FAA may enforce this Order through an enforcement action 
seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not 
a small business as defined in the Small Business Act, 15 U.S.C. 632, 
is liable for a civil penalty of up to $25,000 for every day that it 
violates the limits set forth in this Order. A carrier that is a small 
business as defined in the Small Business Act is liable for a civil 
penalty of up to $10,000 for every day that it violates the limits set 
forth in this Order. The FAA also may file a civil action in U.S. 
District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any 
carrier from violating the terms of this Order.

H. Intermediate- and Long-Term Solutions

    The views on schedule reduction that were expressed during the 
scheduling reduction meeting and filed in the public docket are uniform 
in their preference for increasing system capacity in the New York 
area. Among these thematically consistent views, some more specifically 
emphasized the importance of air traffic control modernization, others 
highlighted the importance of other technological improvements, and 
some emphasized the need to expedite airspace

[[Page 3516]]

improvements in the region. The FAA shares the views of those who 
expressed them in this proceeding.
    While this Order imposes a limitation on the number of scheduled 
operations at JFK, it is not the FAA's preferred alternative to 
addressing capacity shortfalls. In the FAA's view, the intermediate- 
and long-term priority is to expand 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 there is no single action 
that will solve the problem of congestion in and around New York, the 
recently concluded New York Aviation Rulemaking Committee, among its 
many other products, published a list of 77 airport and airspace 
initiatives that could help to relieve congestion in the New York area. 
The list is available as appendix C to the committee's report, which is 
currently available as a link off the FAA's Web site, http://www.faa.gov. It includes procedural, technological, and capital 
improvements that relate to all the major New York area airports, the 
efficient operation of which are largely interdependent.
    While events or technology may overtake the completion of all the 
77 listed initiatives, each has the potential to add incrementally to 
the existing capacity. Most immediately, we anticipate the completion 
or near completion of 18 of them by summer 2008. In addition, as the 
views expressed in the docket indicate, the full implementation of New 
York/New Jersey/Philadelphia airspace redesign and the progressive 
achievement of the Next Generation Air Traffic System's component 
technologies will also contribute to reducing delay. As a result, to 
permit time for system improvements to come on line, we are 
establishing an expiration date for this Order of October 24, 2009.
    Accordingly, with respect to scheduled flight operations at JFK, it 
is ordered that:
    1. This Order assigns operating authority to conduct an arrival or 
a departure at JFK during the affected hours to the U.S. air carrier or 
foreign air carrier identified in the appendix to this Order. The FAA 
will not assign operating authority under this Order to any person or 
entity other than a certificated U.S. or foreign air carrier with 
appropriate economic authority and FAA operating authority under 14 CFR 
part 121, 129, or 135. This Order applies to the following:
    a. All U.S. air carriers and foreign air carriers conducting 
scheduled operations at JFK as of the date of this Order, any U.S. air 
carrier or foreign air carrier that operates under the same designator 
code as such carrier, and any air carrier or foreign-flag carrier that 
has or enters into a codeshare agreement with such carrier.
    b. All U.S. air carriers or foreign air carriers initiating 
scheduled or regularly conducted commercial service to JFK while this 
Order is in effect.
    c. The FAA Vice President, System Operations Services, is the final 
decision-maker for determinations under this paragraph.
    2. This Order governs scheduled arrivals and departures at JFK from 
6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
    3. This Order takes effect on March 30, 2008, and expires at 11:59 
p.m., Eastern Time, on October 24, 2009.
    4. Under the authority provided to the Secretary of Transportation 
and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we 
hereby order that:
    a. No U.S. air carriers or foreign air carriers initiating or 
conducting scheduled or regularly conducted commercial service to JFK 
may conduct such operations without an Operating Authorization assigned 
by the FAA.
    b. Except as provided in the appendix to this Order, scheduled U.S. 
air carrier and foreign air carrier arrivals and departures will not 
exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.
    c. The Administrator may change the limits if he determines that 
capacity exists to accommodate additional operations without a 
significant increase in delays.
    5. For administrative tracking purposes only, the FAA will assign 
an identification number to each Operating Authorization.
    6. A carrier holding an Operating Authorization may request the 
Administrator's approval to move any arrival or departure scheduled 
from 6 a.m. through 10:59 p.m. to another half hour within that period. 
Except as provided in paragraph seven, the carrier must receive the 
written approval of the Administrator, or his delegate, prior to 
conducting any scheduled arrival or departure that is not listed in the 
appendix to this Order. All requests to move an allocated Operating 
Authorization must be submitted to the FAA Slot Administration Office, 
facsimile (202) 267-7277 or e-mail [email protected], and must 
come from a designated representative of the carrier. If the FAA cannot 
approve a carrier's request to move a scheduled arrival or departure, 
the carrier may then apply for a trade in accordance with paragraph 
seven.
    7. A carrier may lease or trade an Operating Authorization to 
another carrier for any consideration, not to exceed the duration of 
this Order. Notice of a trade or lease under this paragraph must be 
submitted in writing to the FAA Slot Administration Office, facsimile 
(202) 267-7277 or e-mail [email protected], and must come from a 
designated representative of each carrier. The FAA must confirm and 
approve these transactions in writing prior to the effective date of 
the transaction. The FAA will approve transfers between carriers under 
the same marketing control up to 72-hours after the actual operation, 
but only to accommodate operational disruptions that occur on the same 
day of the scheduled operation.
    8. A carrier may not buy, sell, trade, or transfer an operating 
authorization, except as described in paragraph seven.
    9. Each carrier holding an Operating Authorization must forward in 
writing to the FAA Slot Administration Office a list of all Operating 
Authorizations held by the carrier along with a listing of the 
Operating Authorizations actually operated for each day of the two-
month reporting period within 14 days after the last day of the two-
month reporting period beginning January 1 and every two months 
thereafter. Any Operating Authorization not used at least 80% of the 
time for each day over a two-month period will be withdrawn by the FAA 
for that day except:
    a. The FAA will treat as used any Operating Authorization held by a 
carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and 
the period from December 24 through the first Saturday in January.
    b. The Administrator of the FAA may waive the 80% usage requirement 
in the event of a highly unusual and unpredictable condition which is 
beyond the control of the carrier and which affects carrier operations 
for a period of five consecutive days or more.
    10. In the event that a carrier surrenders to the FAA any Operating 
Authorization assigned to it under this Order or if there are 
unallocated Operating Authorizations, the FAA will determine whether 
the unallocated operating authorizations should be reallocated.
    11. If the FAA determines that a reduction in the number of 
allocated Operating Authorizations is required to meet operational 
needs, such as reduced airport capacity, the FAA will conduct a 
weighted lottery to withdraw Operating Authorizations to meet a reduced 
hourly or half-hourly limit for scheduled operations. The FAA will 
provide at least 45 days' notice unless

[[Page 3517]]

otherwise required by operational needs. Any Operating Authorization 
that is withdrawn or temporarily suspended will, if reallocated, be 
reallocated to the carrier from which it was taken, provided that the 
carrier continues to operate scheduled service at JFK.
    12. The FAA will enforce this Order through an enforcement action 
seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not 
a small business as defined in the Small Business Act, 15 U.S.C. 632, 
will be liable for a civil penalty of up to $25,000 for every day that 
it violates the limits set forth in this Order. A carrier that is a 
small business as defined in the Small Business Act will be liable for 
a civil penalty of up to $10,000 for every day that it violates the 
limits set forth in this Order. The FAA also could file a civil action 
in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin 
any air carrier from violating the terms of this Order.
    13. The FAA may modify or withdraw any provision in this Order on 
its own or on application by any carrier for good cause shown.

    Issued in Washington, DC, on January 15, 2008.
Robert A. Sturgell,
Acting Administrator, Federal Aviation Administration.
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[FR Doc. 08-171 Filed 1-15-08; 1:41 pm]
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