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###### Department of Transportation

###### Federal Aviation Administration 

          - [Docket FAA-2007-29320] 

## 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                           ( print 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] 

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.                 

                    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.                 

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                           ( print 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.                 

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.                 

                    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.                 

                    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                           ( print 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                           ( print 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.                 

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                           ( print 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.                 

### 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                           ( print 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                     *7-AWA-Slotadmin@faa.gov*, and must come from a designated representative of the carrier. If the FAA cannot approve a carrier's request to move a scheduled arrival or departure, the carrier may then apply for a trade in accordance with paragraph seven.                 

                    7. A carrier may lease or trade an Operating Authorization to another carrier for any consideration, 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                     *7-AWA-Slotadmin@faa.gov*, and must come from a designated representative of each carrier. The FAA must confirm and approve these transactions in writing prior to the effective date of the transaction. The FAA will approve transfers between carriers under the same marketing control up to 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                           ( print 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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# Footnotes

1.                             49 U.S.C. 40103(a).                    
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2.                             49 U.S.C. 40103(b)(1), as previously codified in 49 U.S.C. App. § 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 § 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.                    
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3.                                                     *Id*.                    
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4.                             49 U.S.C. 40101(d)(4).                    
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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.                    
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6.                                                     *See*,                         *e.g.*, 14 CFR 93.125 (2004).                    
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7.                             49 U.S.C. 41715(a).                    
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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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9.                             49 U.S.C. 41715(b).                    
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10.                             49 U.S.C. 41722(a).                    
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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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12.                                                     *See*                         Docket FAA-2007-29320, Doc. 0009 at 4-5.                    
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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.                    
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BILLING CODE 4910-13-P

[FR Doc. 08-171 Filed 1-15-08; 1:41 pm]