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###### Department of Transportation

###### Federal Aviation Administration

          - [Docket No. FAA-2006-25755]

# AGENCY:

Federal Aviation Administration (FAA), DOT.

# ACTION:

Notice of amendment to order.

# SUMMARY:

                        The Federal Aviation Administration (FAA) is amending the Order Limiting Scheduled Operation at New York LaGuardia Airport that published in the                         **Federal Register**                         on December 27, 2006. This amendment reduces the number of reservations available for unscheduled operations from six per hour to three per hour.                    

# DATES:

This amendment is effective on August 28, 2008.

# FOR FURTHER INFORMATION CONTACT:

                        For technical questions concerning this amendment contact: Gerry Shakley, System Operations Services, Air Traffic Organization; telephone (202) 267-9424; facsimile (202) 267-7277; e-mail                         *gerry.shakley@faa.gov.*                         For legal questions concerning this amendment contact: Rebecca MacPherson, Office of Chief Counsel, Federal Aviation Administration; telephone (202) 267-7240; facsimile (202) 267-7971; e-mail                         *rebecca.macpherson@faa.gov.*

# SUPPLEMENTARY INFORMATION:

                    The FAA is modifying its December 12, 2006 Order (the Order), that temporarily limits flight operations at New York's LaGuardia Airport (LaGuardia), pending its promulgation of a long-term regulation to manage congestion at the                           ( print page 48429)                        airport.[1]                                          The number of unscheduled operations is reduced from six per hour to three. This amendment does not affect scheduled operations at the airport.                

## I. Background

                    Due to LaGuardia's limited runway capacity, the airport cannot accommodate the number of flights that airlines and others would like to operate without causing significant congestion. The FAA has long limited the number of arrivals and departures at LaGuardia during peak demand periods through the promulgation and implementation of the High Density Rule (HDR).[2]                                          By statute enacted in April 2000, the HDR's applicability to LaGuardia operations terminated as of January 1, 2007.[3]                                          On August 29, 2006, the FAA published a notice of proposed rulemaking (NPRM) in the                     **Federal Register**                     in anticipation of the HDR's expiration.[4]                                          In the NPRM, the agency proposed another congestion management program for LaGuardia, which, among other things, would continue to limit the number of scheduled and unscheduled operations at LaGuardia. Because the rulemaking was not completed before January 1, 2007, the FAA, after notice and comment, adopted interim operational limitations on LaGuardia flights through the Order.[5]                                          Without the limits contained in the Order, the FAA projected that severe congestion-related delays would occur as a result of excessive demand at LaGuardia, leading to delays both at LaGuardia and at other airports throughout the National Airspace System.[6] 

As part of that Order, the FAA imposed a reservation system for unscheduled operations at the airport. Specifically, the FAA provided that it would accommodate up to six unscheduled reservations per hour during the hours the airport was capped as long as the operators had secured a reservation with the Airport Reservation Office. The FAA has decided to reduce that number of available reservations from six to three per hour.

The FAA and MITRE's Center for Advanced Aviation System Development (CAASD) have reviewed data on air traffic operations at LaGuardia for calendar year 2007 to determine the level of unscheduled operations at the airport. In 2007 there was an average of 36 weekday operations at the airport from 6 a.m. to 10 p.m., the period the Order is in effect. During the peak hours, unscheduled operations averaged three per hour.

                    The FAA published an Order imposing a cap on operations at John F. Kennedy International Airport on January 18, 2008. That Order took effect March 30, 2008. In addition, the FAA published an Order imposing a cap on operations at Newark Liberty International Airport on May 21, 2008.[7]                                          That Order took effect on June 20, 2008. In conjunction with those two orders, the FAA intends to restrict the number of unscheduled operations, other than helicopters, at both airports. The FAA has not proposed to restrict operations at Teterboro.                

The FAA is concerned that restricting unscheduled operations at JFK and Newark could encourage operators to move their unscheduled operations from those airports to LaGuardia. Delay numbers at LaGuardia for 2007 were among the highest in the country. Thus, the FAA proposed to reduce the allowable number of unscheduled operations from six to three per hour.

It is significant to note that additional reservations will be made available for unscheduled operations depending on the weather, runway configuration or less than anticipated delays. In such instances the FAA would likely allow more than three unscheduled operations in a given hour. It is unlikely that the FAA would know more than eight hours in advance whether additional capacity is available. If additional capacity is available, reservations would be allocated through the Airport Reservation Office's e-CVRS reservation system and not through the local air traffic control facilities.

## II. Discussion of Comments

Comments were submitted by the National Air Carrier Association (NACA) and two individuals responding to the proposal. NACA is concerned with the reduction in the number of reservations available for unscheduled operations. NACA complains that the FAA did not consider the ramifications of the orders on the New York region's airports as a whole and that the FAA's concern with additional unscheduled operations moving to LaGuardia from other constrained airports is unfounded.

                    Contrary to NACA's assertions, this proposal was generated by the agency's concern on managing operations within the region. Consistent with this action, the FAA recently proposed limits for unscheduled operations at JFK and EWR.[8]                                          At these airports, the FAA proposed reductions in the number of unscheduled operations in the most congested hours. The FAA does not find it unreasonable to limit unscheduled operations at LaGuardia to their 2007 levels. In the New York area, the FAA must balance fair and reasonable access to congestion reduction and management goals. To reach these goals, the number of unscheduled operations cannot grow at LaGuardia, JFK or EWR. If weather conditions permit and additional operations can be accommodated without affecting delay, additional reservations will be made available.                

                    One individual seeks clarification as to whether visual flight rules (VFR) fixed-wing aircraft would be required to obtain reservations to operate at LaGuardia. The Notice of Order [9]                                          defines unscheduled operations as “operations other than those regularly conducted by an air carrier between LaGuardia and another service point. Scheduled operations include general aviation, public aircraft, military, charter, ferry and position flights. Helicopter operations are excluded from the reservation requirements. Reservations for unscheduled flight operations under visual flight rules (VFR) are granted when the aircraft receives clearance from air traffic control to land or depart LaGuardia. Reservations for unscheduled VFR flights are not included in the limits for unscheduled operators.”                

A second individual requests all unscheduled flights be denied access to LaGuardia as the flights contribute to environmental damage and global warming effects.

## III. Amendment to the Order

With respect to unscheduled flight operations at LaGuardia, the FAA adopts the following:

                    1. The final order applies to all operators of unscheduled flights, except helicopter operations, at LaGuardia from 6 a.m. through 9:59 p.m., Eastern Time, Monday through Friday and from 12 noon through 9:59 p.m., Eastern Time, Sunday.                          ( print page 48430)    

2. The final Order takes effect on January 1, 2007, and will expire at the first change of the scheduling season occurring no less than 90 days after the issuance of a final rule regulating congestion at LaGuardia.

                    3. No person can operate an aircraft other than a helicopter to or from LaGuardia unless the operator has received, for that unscheduled operation, a reservation that is assigned by the David J. Hurley Air Traffic Control System Command Center's Airport Reservation Office (ARO). Additional information on procedures for obtaining a reservation will be available via the Internet at                     *http://www.fly.faa.gov/​ecvrs.*

4. Three (3) reservations are available per hour for unscheduled operations at LaGuardia. The ARO will assign reservations on a 30-minute basis.

5. The ARO receives and processes all reservation requests. Reservations are assigned on a “first-come, first-served” basis, determined as of the time that the ARO receives the request. A cancellation of any reservation that will not be used as assigned would be required.

6. Filing a request for a reservation does not constitute the filing of an instrument flight rules (IFR) flight plan, as separately required by regulation. After the reservation is obtained, an IFR flight plan can be filed. The IFR flight plan must include the reservation number in the “remarks” section.

                    7. Air Traffic Control will accommodate declared emergencies without regard to reservations. Non-emergency flights in direct support of national security, law enforcement, military aircraft operations, or public-use aircraft operations will be accommodated above the reservation limits with the prior approval of the Vice President, System Operations Services, Air Traffic Organization. Procedures for obtaining the appropriate reservation for such flights are available via the Internet at                     *http://www.fly.faa.gov/​ecvrs.*

8. Notwithstanding the limits in paragraph 4, if the Air Traffic Organization determines that air traffic control, weather, and capacity conditions are favorable and significant delay is not likely, the FAA can accommodate additional reservations over a specific period. Unused operating authorizations can also be temporarily made available for unscheduled operations. Reservations for additional operations are obtained through the ARO.

9. Reservations cannot be bought, sold, or leased.

Issued in Washington, DC, on August 12, 2008.

Robert A. Sturgell,

Acting Administrator.

# Footnotes

1.                             On April 16, 2008, the FAA published a notice in the                         **Federal Register**                         seeking comment on reducing the number of unscheduled operations per hour at LaGuardia from six to three.  73 FR 20732; April 16, 2008.                    
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2.                             See 14 CFR part 93, subpart K.                    
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3.                             Aviation Investment and Reform Act for the 21st Century (AIR-21), Public Law 106-181 (April 5, 2000), 49 U.S.C. 41715(a)(2).                    
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4.                             71 FR 51360.                    
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5.                             71 FR 77854; December 27, 2006.                    
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6.                             Subsequent to this Order, the FAA published a Supplemental Notice of Proposed Rulemaking in the                         **Federal Register**                         that withdrew certain proposals and instead proposed two options to allocate the limited capacity at LaGuardia.                         *See*73 FR 20846; April 17, 2008.                    
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7.                             73 FR 29550.                    
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8.                             FR 41156; July 17, 2008.                    
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9.                             See footnote 23 in the December 27, 2006 Notice of Order.                    
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[FR Doc. E8-19112 Filed 8-18-08; 8:45 am]

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