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###### Department of Transportation

###### Federal Aviation Administration

          - [Docket No. FAA-2006-25755]

# 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 December 13, 2006, order limiting the number of scheduled and unscheduled operations at LaGuardia 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 July 1, 2009.

# ADDRESSES:

You may submit written information, identified by docket number FAA-2006-25755, by any of the following methods:
      -  Federal eRulemaking Portal:                          Go to                          http://www.regulations.gov                          and follow the online instructions for sending your comments electronically.                    
      -  Mail:                          Send comments 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                                ( print page 28773)                              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 Web site, 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 December 13, 2006, order limiting scheduled and unscheduled operations at LaGuardia Airport, as subsequently amended (December 2006 order).[1]                                          This order to show cause invites air carriers and other interested persons to submit comments in Docket FAA-2006-25755 on this proposal to extend the duration of the December 2006 order.[2] 

                    As a result of the limited capacity of LaGuardia's two-runway configuration, the airport cannot accommodate the number of scheduled and unscheduled flights that operators would like to conduct there without causing significant congestion-related delays. LaGuardia was one of the original U.S. airports at which the FAA capped the number of peak-hour operations under the High Density Rule.[3]                                          The High Density Rule limited the number of scheduled operations at the airport to 62 per hour.                

                    In a statute enacted in April 2000, Congress began to phase out the High Density Rule at LaGuardia and other airports.[4]                                          Before fully extinguishing the High Density Rule at LaGuardia on January 1, 2007, the statute directed the Secretary of Transportation immediately to grant a number of exemptions from the High Density Rule for specific types of scheduled operations.[5]                                          Demand for exemptions to operate scheduled service at LaGuardia soared. By November 2000, the debilitating delays that resulted from the surging demand required the FAA to roll back and limit the number of operations at LaGuardia.[6]                                          The FAA limited the peak-hour scheduled operations at a total of 75 hourly departures and arrivals.                

                    In the ensuing years, the FAA examined and proposed various alternatives to the High Density Rule in an effort to control congestion at LaGuardia.[7]                                          When it became apparent that the FAA would not have a replacement rule in place before the High Density Rule expired at LaGuardia, and recognizing that LaGuardia is prone to overscheduling, the FAA issued the December 2006 order to limit the number of scheduled and unscheduled operations at the airport until the FAA could issue a final rule. During much of the time that the December 2006 order has remained in effect, the airport has continued to experience significant congestion-related delays. As a result, the FAA reduced the peak-hour limit on unscheduled operations from six to three.[8]                                          More recently, the FAA reduced the peak-hour limit on scheduled operations from 75 to 71.[9] 

                    The FAA established the order's October 2009 expiration date to permit time for a recently issued final rule to take effect to control congestion at LaGuardia.[10]                                          However, the rule was stayed by the U.S. Court of Appeals for the District of Columbia Circuit prior to the rule's effective date, and the FAA is currently soliciting comments on a proposal to rescind the final rule.[11]                                          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 December 2006 order took effect, it is now unlikely that the FAA will have an effective final rule on the order's current expiration date. In the absence of the FAA's extension of the order, the FAA anticipates a return of the congestion-related delays that required the FAA to limit the number of operations at the airport. The hourly capacity at LaGuardia has not increased since the order took effect. Because the demand for operations at New York-area airports remains high, the FAA has determined that an extension of the December 2006 order appears to be appropriate while the FAA identifies the appropriate long-term solution to congestion at LaGuardia.

*Order to Show Cause:*

To prevent a recurrence of overscheduling at LaGuardia during the interim between the expiration of the December 2006 order on October 24, 2009, and the effective date of a replacement rule, the FAA tentatively intends to extend the December 2006 order. The order will continue to apply to both scheduled and unscheduled operations at the airport. Maintaining the existing order for an additional, finite period constitutes a reasonable approach to preventing unacceptable congestion and delays at LaGuardia until a long-term measure is implemented. The December 2006 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 December 2006 order through October 30, 2010, by filing their                           ( print page 28774)                        written views in Docket FAA-2006-25755. 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 December 2006 order.                

Issued in Washington, DC, on June 11, 2009.

Rebecca MacPherson,

Assistant Chief Counsel for Regulations.

# Footnotes

1.                             Operating Limitations at New York LaGuardia Airport, 71 FR 77,854 (Dec. 27, 2006); 72 FR 63,224 (Nov. 8, 2007) (transfer, minimum usage, and withdrawal amendments); 72 FR 48,428 (Aug. 19, 2008) (reducing the reservations available for unscheduled operations); 74 FR 845 (Jan. 8, 2009) (extending the expiration date of the December 2006 order until October 24, 2009); 74 FR 2,646 (Jan. 15, 2009) (reducing the peak-hour cap on scheduled operations to 71).                    
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2.                             The FAA separately solicited comments on proposals to extend the January 15, 2008, order limiting scheduled operations at John F. Kennedy International Airport (JFK) and the May 15, 2008, order limiting scheduled operations at Newark Liberty International Airport (Newark). The public may file or review documents related to these proposals in Dockets FAA-2007-29320 (JFK) and FAA-2008-0221 (Newark).                    
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3.                             33 FR 17,896, 17,898 (Dec. 3, 1968); 34 FR 2,603 (Feb. 26, 1969).                    
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4.                             49 U.S.C. 41715(a)(2).                    
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5.                             49 U.S.C. 41716.                    
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6.                             65 FR 69,126, 69,127-28 (Nov. 15, 2000).                    
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7.                             71 FR 51,360 (Aug. 29, 2006) (Notice of Proposed Rulemaking); 73 FR 20,846 (April 17, 2008) (Supplemental Notice of Proposed Rulemaking).                    
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8.                             72 FR at 48,428.                    
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9.                             74 FR at 2,646.                    
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10.                             74 FR at 845.                    
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11.                             74 FR 22,717 (May 14, 2009).                    
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[FR Doc. E9-14168 Filed 6-16-09; 8:45 am]

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