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###### Department of Transportation

###### Federal Aviation Administration (FAA)

          - [Docket No. FAA-2008-0221]

# ACTION:

Notice of order to show cause and request for information.

# SUMMARY:

The FAA is issuing an order to show cause, which solicits the views of interested persons on the FAA's tentative determination to extend through October 30, 2010, the May 15, 2008 order limiting the number of scheduled aircraft arrivals at Newark Liberty International Airport during peak operating hours. The text of the order to show cause is set forth in this notice.

# DATES:

Any written information that responds to the FAA's order to show cause must be submitted by June 19, 2009.

# ADDRESSES:

You may submit written information, identified by docket number FAA-2008-0221, by any of the following methods:
      -  Federal eRulemaking Portal:                          Go to                          http://regulations.gov                          and follow the online instructions for sending your comments electronically.                    
      -  Mail:                          Send comments by mail to Docket Operations, U.S. Department of Transportation, M-30, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. Persons wishing to receive confirmation of receipt of their written submission should include a self-addressed stamped postcard.                    
      -  Hand Delivery:                          Deliver comments to Docket Operations in Room W12-140 on the ground floor of the West Building at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                    
      -  Facsimile:                          Fax comments to the docket operations personnel at 202-493-2251.                    

*Privacy:*                         We will post all comments that we receive, without change, at                         *http://www.regulations.gov,*                         including any personal information that you provide. Using the search function of the docket website, anyone can find and read the electronic form of all comments in any of our dockets, including the name of the individual sending the comment or signing the comment on behalf of an association, business, labor union, or other entity or organization. You may review the DOT's complete Privacy Act Statement in the                         **Federal Register**                         at 65 FR 19477-78 (April 11, 2000), or you may find it at                         *http://docketsinfo.dot.gov.*

*Reviewing the Docket:*                         To read background documents or comments received, go to                         *http://www.regulations.gov*                         at any time and follow the online instructions for accessing the docket; or go to Docket Operations in Room W12-140 on the ground floor of the West Building at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.                    

# FOR FURTHER INFORMATION CONTACT:

                        James W. Tegtmeier, Associate Chief Counsel for the Air Traffic Organization; telephone—(202) 267-8323; e-mail—                        *james.tegtmeier@faa.gov.*

# SUPPLEMENTARY INFORMATION:

## Order To Show Cause

                    The Federal Aviation Administration (FAA) has tentatively determined that it will extend through October 30, 2010, the FAA's May 15, 2008 order limiting scheduled operations at Newark Liberty International Airport (EWR) (May 2008 order).[1]                                          This order to show cause invites air carriers and other interested persons to submit comments in Docket FAA-2008-0221 on this proposal to extend the duration of the May 2008 order.[2] 

                    The May 2008 order followed a period of elevated, congestion-related delays at the New York area's three commercial airports, culminating in the FAA's issuance of an order limiting scheduled operations at JFK in January 2008. To prevent new flights from moving to EWR, which was already prone to delays and scheduled near or above its average hourly runway capacity during many peak hours, the FAA engaged the U.S. and foreign air carriers serving EWR to reduce the number of scheduled operations during peak hours and to move operations to less congested hours. The May 2008 order captured the agreed upon schedules and limited the number of scheduled operations conducted by U.S. and foreign air                           ( print page 27061)                        carriers at EWR during peak operating hours. The order took effect June 20, 2008, and in the absence of an extension, it will expire on October 24, 2009.                

The FAA established the order's October 2009 expiration date to permit time to promulgate a final rule that would control congestion at EWR, and the FAA adopted a final rule to manage congestion at EWR that would have continued operational limits at the airport beyond October 2009. 73 FR 60544 (Oct. 10, 2008). However, the rule was stayed by the U.S. Court of Appeals for the District of Columbia Circuit prior to the rule's December 9, 2008 effective date. The FAA is currently soliciting comments on a proposal to rescind the final rule. 74 FR 22714 (May 14, 2009). As a result of the FAA's reconsideration of the rule, the court is holding in abeyance the briefing schedule in the rule's associated litigation.

In light of the events that have transpired since the May 2008 order took effect, it is now unlikely that the FAA will have an effective final rule on the May 2008 order's original expiration date. In the absence of the FAA's extension of the order, the FAA anticipates a return of the congestion-related delays that precipitated the voluntary schedule reductions and adjustments reflected in the May 2008 order. The hourly capacity at EWR has not increased significantly since the order took effect late last spring. Because the demand for operations at New York-area airports remains high, the FAA has determined that an extension of the May 2008 order appears to be appropriate while the FAA identifies the appropriate long-term solution to congestion at EWR.

*Order To Show Cause:*

To prevent a recurrence of overscheduling at EWR during the interim between the expiration of the May 2008 order on October 24, 2009, and the effective date of a rule, the FAA tentatively intends to extend the May 2008 order. The limit on scheduled operations that is embodied in the order reflects the FAA's agreements with U.S. and foreign air carriers. As a result, maintaining the order for an additional, finite period constitutes a reasonable approach to preventing unacceptable congestion and delays at EWR until a longer term measure is implemented. The May 2008 order, as extended, would expire on October 30, 2010.

Accordingly, the FAA directs all interested persons to show cause why the FAA should not make final its tentative findings and tentative decision to extend the May 2008 order through October 30, 2010, by filing their written views in Docket FAA-2008-0221. The FAA does not intend this request for the views of interested persons to address any issues related to the existing final rule or any future congestion management rule. Therefore, any submission to the current docket should be limited to the proposed extension of the May 2008 order.

Issued in Washington, DC, on May 29, 2009.

Rebecca MacPherson,

Assistant Chief Counsel for Regulations.

# Footnotes

1.                             Order Limiting Scheduled Operations at Newark Liberty International Airport, 73 FR 29,550 (May 21, 2008).                    
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2.                             The FAA is separately accepting comments on a proposal to extend the January 15, 2008 order limiting scheduled operations at John F. Kennedy Liberty International Airport (JFK). The public may file or review documents related to the JFK order in Docket FAA-2007-29320.                    
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[FR Doc. E9-13190 Filed 6-4-09; 8:45 am]

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