"High Density Airports; Notice of Extension of the Lottery Allocation at LaGuardia Airport"

Tuesday, July 6, 2004

High Density Airports; Notice of Extension of the Lottery Allocation at
LaGuardia Airport
The Federal Register


DATES: Effective upon July 6, 2004.

FOR FURTHER INFORMATION CONTACT: Lorelei Peter, Operations and Air
Traffic Law Branch, Regulations Division, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue SW.,
Washington, DC 20591; telephone number 202-267-3134.

SUPPLEMENTARY INFORMATION:

Background

The FAA has broad authority under Title 49 of the United States Code
(U.S.C.), Subtitle VII, to regulate and control the use of the navigable
airspace of the United States. In particular, 49 U.S.C. SEC 40103
authorizes the agency to develop plans and policies regarding the use of
the navigable airspace and to assign by rule, regulation, or order the
use of that airspace under such terms, conditions, and limitations as
may be deemed necessary to ensure the safe and efficient use of the
navigable airspace. Section 40103 also authorizes and directs the FAA to
prescribe air traffic rules and regulations governing the efficient use
of the navigable airspace.

In 1968, the FAA promulgated the High Density Traffic Airports Rule
(High Density Rule), 14 CFR part 93, subpart K, to reduce delays at five
congested airports: John F. Kennedy International Airport (JFK),
LaGuardia, O'Hare International Airport (O'Hare), Ronald
Reagan Washington National Airport, and Newark International Airport
(Newark) (33 FR 17896; December 3, 1968). The regulation limited the
number of instrument flight rules (IFR) operations at each airport
during certain hours of each day. It did so by allocating operational
authority to air carriers in the form of a "slot," for each IFR takeoff
or landing during a specified 30- or 60-minute period. The FAA lifted
the restrictions at Newark in the early 1970s.

"AIR-21"

On April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (AIR-21) became law. Section 231 of AIR-21
significantly amended 49 U.S.C. 41714 and added a new section 41715. 49
U.S.C. SEC 41715 eliminated slots at O'Hare as of July 1, 2002, and
will eliminate slots at LaGuardia and JFK on January 1, 2007. AIR-21
also included new provisions 49 U.S.C. 41716, 41717, and 41718 that
enabled air carriers meeting specified criteria to obtain exemptions
from the slot requirements of 14 CFR part 93, subparts K and S. As a
result of this legislation, the Department issued eight orders
implementing the slot exemptions authorized by the statute. DOT Order
2000-4-11 implemented 49 U.S.C. 41716(a) by providing that, under
specific conditions, a slot exemption must be granted to any air carrier
using Stage 3 aircraft with fewer than 71 seats for nonstop service
between LaGuardia and an airport that was designated as a small hub or
nonhub airport in 1997. The exemption must be granted if: (1) The air
carrier was not providing nonstop service between the small hub or
nonhub airport and LaGuardia during the week of November 1, 1999; (2)
the proposed service between the small hub or nonhub airports and
LaGuardia exceeds the number of flights provided between the airports
during the week of November 1, 1999; or (3) if the air transportation
pursuant to the exemption would be provided with a regional jet in
replacement of turboprop service that was provided during the week of
November 1, 1999.

Under AIR-21 and the related DOT Orders, an air carrier meeting one of
the statutory criteria automatically received approval for a slot
exemption, provided that the air carrier filed various certifications
and a written request for authority to begin service. The air carrier
was required to certify that the aircraft used to provide the proposed
service would be Stage 3 compliant and would have fewer than 71 seats.
The air carrier was further required to certify that the airport
receiving service to or from LaGuardia was designated a small hub or
nonhub airport in 1997. In addition, the air carrier was required to
certify that the proposed service, when compared to service provided
during the week of November 1, 1999, was new service, was an additional
frequency between the airports, or was regional jet service that
replaced a turboprop flight. The air carrier was required to specify the
number of slot exemptions needed, the slot times needed to provide the
proposed service, the frequency of service and the effective date.

DOT Order 2000-4-10 implemented the provisions of 49 U.S.C. SEC
41716(b), which required that a slot exemption be granted to any new
entrant or limited incumbent air carrier using Stage 3 aircraft that
proposed to provide air transportation to or from LaGuardia if the
number of slot exemptions granted under this subsection to an air
carrier combined with the number of slots held at the airport by that
carrier does not exceed 20. The order further required applications
submitted under this provision to identify the airports to be served,
the slot exemption times requested, the frequency of service and the
effective date.

Despite the statute's exemption of certain flights from the
FAA's regulatory slot limits, 49 U.S.C. 41715(b)(1) expressly
provides that the slot exemption provisions are not to affect the
FAA's authority over safety and the movement of air traffic. The
reallocation of slot exemption times by the lottery procedures described
in this Notice was based on the FAA's statutory authority and did
not rescind the exemptions issued by the Department under orders
2000-4-10 and 2000-4-11. As provided in those orders, air carriers that
filed the necessary certifications also needed to obtain an allocation
of slot exemption times from the FAA. The FAA's limitation and
reallocation of these slot exemptions recognized that it was not
possible to add an unlimited number of new operations at LaGuardia
during peak hours, even if those operations qualified for exemptions
under AIR-21.

14 CFR 93.225 sets forth the process for lotteries under the High
Density Rule. The process described in the regulations is similar to the
lottery process followed for allocating AIR-21 slot exemptions and
allows for specific conditions to be included when circumstances warrant
special consideration.

Extension of Lottery Allocation

On June 12, 2001, the FAA published a Notice of Alternative Policy
Options for Managing Capacity at LaGuardia and Proposed Extension of the
Lottery Allocation in the Federal Register. Through the notice, the FAA
sought comment on both long-term policy options and a short-term
extension of the cap on slot exemptions at LaGuardia (66 FR 31731). The
notice proposed to continue a cap on scheduled flight operations that
the FAA implemented in January 2001, limiting scheduled operations to 75
per hour between the hours of 7 a.m. and 9:59 p.m., in addition to the
six reservations per hour for "other" nonscheduled operations, which
included general aviation, charter, and military operations. The FAA
achieved this operational cap by limiting the number of AIR-21 slot
exemptions that could operate at the airport to 159 operations per day
and allocated the slot exemptions via a lottery on December 4, 2000.

On August 2, 2001, the FAA extended the lottery allocation through
October 26, 2002, set the date of August 15, 2001 for a second lottery,
and established procedures for subsequent allocations of slot exemptions
in the event that slot exemptions were returned or withdrawn by the FAA
for non-use (66 FR 41294; August 7, 2001).

Following the terrorist attacks of September 11, 2001, and an ensuing
downturn in commercial air travel, the FAA extended the closing date for
the comment period regarding the Notice of Policy Alternatives for
Managing Capacity at LaGuardia Airport (66 FR 52170; October 12, 2001).
On March 22, 2002, the FAA announced that the comment period on the
demand management alternatives for LaGuardia would close on June 20,
2002 (67 FR 13401). The FAA subsequently extended the limitation on
AIR-21 slot exemptions through October 30, 2004, and proposed
modifications to the allocation procedures (67 FR 45170; July 8, 2002).
The FAA adopted these modifications on October 28, 2002 (67 FR 65826).

Even with the operational cap in place, LaGuardia is operating at its
capacity. In April 2004, LaGuardia averaged 1,254 daily operations on
peak weekdays. Despite the improvement brought about by the operational
cap, delays at LaGuardia remain among the highest in the country and,
recently, only two U.S. airports have incurred a higher percentage of
delayed flights.

A long-term demand management solution cannot be implemented at
LaGuardia prior to the expiration of the current AIR-21 slot exemption
restrictions on October 30, 2004. As a result of the continuing flight
delays, however, maintaining the cap on total operations at LaGuardia is
imperative during the intervening period. If the cap on AIR-21 slot
exemptions was lifted, it is anticipated that air carriers would add
qualifying operations at the airport in such volume as to trigger a
repetition of the precipitous increase in exempted flight operations, in
the fall of 2000, leading to an unacceptable level of delay. Significant
delays and operational disruptions at LaGuardia have a negative effect
on the national air traffic control system and result in a ripple effect
on delays and operations nationwide. The airport cannot accommodate, nor
can the FAA permit, such unconstrained growth in operations at this
time.

The FAA and the Department have reviewed and analyzed all comments
submitted by the public on the FAA's June 2001 notice of the policy
options under consideration. Among the options under continuing review
are long-term solutions that could introduce significant market-based
elements into the allocation process. The development of such solutions
requires further consideration of complex statutory, regulatory, and
policy issues. Because some form of operational cap is necessary pending
the FAA's implementation of a long-term solution to
LaGuardia's congestion, the FAA is extending the current allocation
and hourly limits an additional twelve months, through October 20, 2005.

Allocation Procedures

The reallocation procedures that the FAA previously adopted in the
Federal Register notice published on October 28, 2002 (67 FR 65926) will
be followed for the reallocation of returned or withdrawn slot
exemptions and are restated as follows with one minor modification. In
allocating AIR-21 slot exemptions in accordance with the provisions in
paragraph 3 below, we are formalizing the current practice followed by
the majority of the affected air carriers. New carriers eligible for
slot exemptions that are not conducting service at the airport will now
be required to file the certification with the Department in accordance
with Order 2000-4-10 and to have a written request on file with the Slot
Administration Office when seeking available slot exemptions. While
carriers typically have filed this documentation with the Department and
the FAA, these filings were not previously required for air carrier
eligibility to receive an available slot exemption. We are now including
this provision, and as it reflects current practice and represents
minimal change, we are adopting this policy without public comment. We
find that requiring this documentation is a minor administrative change
and will provide the FAA with necessary information when slot exemptions
become available for reallocation.

1. The cap on AIR-21 slot exemptions (7 a.m. through 9:59 p.m.) will
remain in effect through October 29, 2005.

2. The FAA may approve the transfer of slot exemption times between
carriers only on a temporary one-for-one basis for the purpose of
conducting the operation in a different time period. Carriers must
certify to the FAA that no other consideration is involved in the
transfer.

3. If any slot exemptions become available for reallocation and there is
an air carrier seeking slot exemptions that currently is not conducting
operations at the airport, has certified to the Department in accordance
with OST Order 2000-4-10 and has a written request on file with the Slot
Administration Office, then the available slot exemptions would be
offered to that carrier first, provided that the total number of slot
exemptions allocated to carriers providing small hub/nonhub service is
not fewer than 76. If an eligible new entrant air carrier does not
select the slot exemptions, then the FAA will offer the slot exemptions
to air carriers in the new entrant category or the small hub/nonhub
service category, whichever AIR-21 category is below parity. Once parity
is achieved, or the opportunity to achieve parity has been afforded, any
remaining available slot exemptions will be offered to carriers in the
same AIR-21 category from which the slot exemptions came. The FAA will
follow the rank orders for each category, as established in the December
4, 2000, lottery for small hub/nonhub service and the August 15, 2001,
lottery for new entrants, as amended.

4. An air carrier will have three business days after an offer from the
Slot Administration Office to accept the offered slot exemption. The air
carrier's acceptance must be in writing to the Slot Administration
Office. If the Slot Administration Office does not receive an acceptance
to an offer within three business days, the air carrier will be recorded
as rejecting the offer and the FAA will offer the available slot
exemptions to the next eligible air carrier.

5. Any air carrier that selects slot exemptions must file with the
Department a current certification under Order 2400-4-10 or 2000-4-11,
as appropriate, and prior to conducting any flight operations under the
exemption. In addition, the FAA will not allocate a slot exemption time
to an air carrier until the air carrier first provides the Department
and the FAA with the markets to be served, the frequency of the service,
the number of slot exemptions to be use, the time when the operations
will occur and the effective date.

6. All operations authorized under AIR-21 must commence within 120 days
of a carrier's acceptance of an available slot exemption.

7. The Chief Counsel will be the final decisionmaker concerning
eligibility of carriers to participate in the allocation process.

Issued on June 29, 2004, in Washington, DC.

James Whitlow,
Deputy Chief Counsel


 Do you have an opinion about this story?
Share it with other readers in our CAA Discussion Forums

http://www.californiaaviation.org/dcfp/dcboard.php


*****************************************