

[Federal Register: November 8, 2007 (Volume 72, Number 216)]
[Notices]               
[Page 63224-63228]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no07-86]                         

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2006-25755]

 
Operating Limitations at New York LaGuardia Airport; Notice of 
Order

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of order.

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SUMMARY: On August 7, 2007, the FAA proposed amendments to the December 
12, 2006, order (the Order) that temporarily limits flight operations 
at New York's LaGuardia Airport (LaGuardia). Under the Order, the FAA 
limited scheduled and unscheduled operations at the airport to prevent 
congestion-related delays associated with LaGuardia's limited runway 
capacity. The FAA is issuing amendments to the Order as proposed with 
little modification.

FOR FURTHER INFORMATION CONTACT: Komal K. Jain, Office of the Chief

[[Page 63225]]

Counsel, Regulations Division, AGC-240, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591; 
telephone (202) 267-3073.

SUPPLEMENTARY INFORMATION: 
    The FAA's authority to limit the number of flight operations at 
LaGuardia is an essential component of the FAA's statutory 
responsibilities. The FAA holds broad authority under 49 U.S.C. 
40103(b) to regulate the use of the navigable airspace of the United 
States. This provision authorizes the FAA to develop plans and policy 
for the use of navigable airspace and, by order or rule, to regulate 
the use of the airspace as necessary to ensure its efficient use.
    On August 7, 2007, the FAA proposed to modify its December 12, 
2006, Order that temporarily limits the flight operations at LaGuardia 
pending the promulgation of a long-term regulation to manage congestion 
at the airport. 72 FR 44214. The Agency proposed to (1) provide an 
approval process for Operating Authorization (OA) transfers for ``day-
of'' carrier substitutions; (2) amend provisions affecting the 80 
percent minimum use requirement by adding a waiver for holiday periods 
and providing the Administrator greater discretion to suspend the 
requirement under certain conditions; and (3) provide a mechanism for 
withdrawal of OAs for FAA operational reasons.

I. Background

    LaGuardia's runway capacity cannot accommodate the number of 
arrivals and departures that carriers would like to operate without the 
development of significant congestion. Until January 1, 2007, the FAA 
limited the number of operations at the airport through implementation 
of the High Density Rule and the Buy-Sell Rule (or slot rules), 14 CFR 
part 93, subparts K and S. In 2000, out of concern over the collateral 
effects of the slot rules at LaGuardia on airport access and 
competition, Congress included a provision in the Wendell H. Ford 
Aviation Investment and Reform Act for the 21st Century (AIR-21) that 
terminated the LaGuardia slot rules as of January 1, 2007.\1\ In 
anticipation of the HDR's expiration, the FAA proposed a long-term rule 
that would limit the number of scheduled and unscheduled operations at 
LaGuardia.\2\ Because the FAA could not complete that rulemaking by 
January 1, the FAA issued the Order and adopted temporary limits that 
will remain in place until the rulemaking is completed. Without such 
operational limitations, the FAA expected severe congestion-related 
delays would occur, both at LaGuardia and at other airports throughout 
the National Airspace System (NAS) as a result of capacity constraints 
at LaGuardia.
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    \1\ 49 U.S.C. 41715(a)(2), enacted by Pub. L. No. 106-181, Sec.  
231, 114 Stat. 61, 106-10 (2000).
    \2\ 71 FR 51360 (August 29, 2006); Docket FAA-2006-25709.
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    Under the Order, the FAA (1) maintains the current hourly limits on 
scheduled (75) and unscheduled (six) operations at LaGuardia during 
peak period; (2) imposes an 80 percent minimum usage requirement for 
OAs; (3) provides for a lottery to reallocate withdrawn, surrendered or 
unallocated OAs; and (4) allows for trades and leases of OAs for 
consideration for the duration of the Order.
    On August 7, 2007, the FAA proposed to modify the Order to (1) 
provide an approval for OA transfers for ``day-of'' carrier 
substitutions; (2) amend provisions affecting the 80 percent minimum 
use requirement by adding a waiver for holiday periods and providing 
the Administrator greater discretion to suspend the requirement under 
certain conditions; and (3) provide a mechanism for withdrawal of OAs 
for FAA operational reasons (August 2007 notice). The FAA requested 
written comments to its proposed changes. The comment period closed on 
September 6, 2007.

II. Discussion of Written Submissions and the Final Order

    In response to a request for written comments, 12 respondents 
expressed views on the FAA's proposed amendments to the Order. The 
respondents included eight air carriers (American Airlines (American), 
US Airways, Delta Air Lines, Northwest Airlines, United Airlines, 
jetBlue Airways Corp. (jetBlue), Air Canada, and Pinnacle Airlines 
Group (Pinnacle)), three air carrier organizations (Regional Airline 
Association (RAA), Air Carrier Association of America (ACAA) and Air 
Transport Association of America (ATA)), and the Port Authority of New 
York and New Jersey (Port Authority).
    Overall, the commenters supported the FAA's effort to address 
concerns that were overlooked or not identified at the time the Order 
was issued. Several commenters also raised issues that were beyond the 
scope of the proposed amendments, including elimination of the 
Perimeter Rule, creation of a buy/sell secondary market, and the 
withdrawals of OAs for immediate redistribution to limited incumbents. 
The FAA therefore is not responding to those issues. The FAA, however, 
has chartered an Aviation Rulemaking Committee (ARC) to address the 
congestion at the New York City area airports, and these issues are 
expected to be part of the ARC deliberations. The FAA's discussion of 
remaining comments follows.

Secondary Market: Approval Process for ``Day-of'' Transfers

    As discussed in the August 2007 notice, some air carriers have 
expressed concerns about the administrative burden associated with 
obtaining prior approval from the FAA for OA transfers when making 
``day-of'' carrier substitutions between affiliated or regional 
carriers under the marketing control of a single air carrier. Due to 
the around-the-clock nature of an airline's operations, and the real-
time nature of operational logistics, it is not unusual for an air 
carrier to make ``day-of'' flight service substitutions from one 
affiliated carrier to another to meet operational needs or to address 
schedule disruptions. The FAA recognizes that advance approval of an OA 
transfer for these last-minute carrier substitutions is not always 
possible, in part because of the coordination required between air 
carrier operation centers and scheduling or marketing departments and 
because the FAA Slot Administration Office is not open 24 hours a day. 
Therefore, it proposed to amend the Order to permit a transfer request 
to be submitted for FAA approval up to 72 hours after the actual 
operation.
    While the FAA received general support for its efforts to 
streamline the reporting burden associated with obtaining approvals for 
transfers between marketing carriers and the operating carriers under 
their marketing control, several air carriers, ATA and RAA argued that 
it did not go far enough. ATA and RAA, among others, would have the FAA 
treat these transactions as ``substitutions'' rather than ``transfers'' 
among commonly owned and affiliated carriers and, therefore, take them 
out of the secondary market purview. US Airways further argued that 
``once [OAs] are obtained by a carrier, the FAA's only real concern 
ought to be ensuring compliance with the minimum usage requirements * * 
* [T]racking of which individual carrier is operating under the ``US'' 
marketing code seems an unnecessary resource drain on both airlines and 
the FAA.''
    The FAA recognizes there is a significant paperwork responsibility 
associated with the transfer approval process, and is trying to lessen 
this burden on carriers while also

[[Page 63226]]

maintaining an accurate record of which air carrier is flying under 
each OA at any particular time. This is not simply a matter of 
monitoring operations for minimum use requirements, as US Airways 
suggests. Under this Order, the FAA limits the number of operations 
that can occur at LaGuardia and, therefore, has a significant interest 
and responsibility in ensuring that only carriers with OAs conduct 
flights at the airport during the allocated time periods. Air carriers 
may have marketing agreements with many other carriers to operate 
flights on their behalf, with varying degrees of scheduling or 
operational control. One carrier may even operate for multiple 
marketing carriers at the same airport. The FAA monitors operations 
through several mechanisms including usage reports, published flight 
schedules, and flight plans filed with FAA Air Traffic Control (ATC). 
Communication with ATC facilities, including flight plans, require 
authorized FAA identifiers and call signs that are unique to the 
operating carrier and do not signify information as to the marketing or 
selling carrier of the flight. In order for the FAA to have accurate 
record detailing which carriers are authorized to operate at the 
airport, approval requests for the transfer of OAs are generally 
required in advance if they are to be operated by a carrier other than 
the holder listed on FAA records. This amendment is adopting a very 
limited exception to provide flexibility for ``day-of'' operational 
needs.
    However, as requested by US Airways under its comment submission, 
the FAA is willing to provide more time for carriers to inform the FAA 
of its transfers. Under the Order, the FAA provides carriers five 
business days, instead of the proposed 72 hours, to submit requests for 
OA transfer approvals for ``day-of'' transfers among commonly owned and 
affiliated carriers. This additional time also allows carriers to 
submit more transfer approval requests under one cover, thereby 
reducing the number of transactions with the FAA.
    As proposed, to support any request, carriers must provide flight 
information, including flight number, origin, destination and scheduled 
time of operation. While United commented that this is more information 
than is required by the FAA under the ``use or lose'' reports, the FAA 
distinguishes the two reporting requirements. Under this provision, in 
order to approve an after-the-fact transfer request, the FAA must 
verify that the substitution from one carrier to another resulted from 
the express need to conduct a specific flight. Without the above 
mentioned information, the FAA could not validate the request.

Minimum Usage Requirements and Waivers

Holiday Waiver
    In response to the January 9, 2007, petition submitted by ATA,\3\ 
the FAA proposed to treat as used any OA held by a carrier at LaGuardia 
on Thanksgiving Day, the Friday following Thanksgiving Day, and the 
period from December 24 through the first Saturday in January. Most 
respondents supported the amendment, but Pinnacle and US Airways, asked 
that this provision be expanded to apply on the 4th of July, Memorial 
Day and Labor Day. JetBlue and ACAA, on the other hand, did not believe 
that waivers should be provided for any holiday periods. They argued 
that the FAA should ``encourage the efficient use of scarce air traffic 
system capacity'', and if holders of OAs do not fully maximize use of 
their OAs during holidays, they should be returned to the FAA for 
temporary redistribution. ACAA would further have the temporary OAs be 
made available to limited incumbents first.
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    \3\ See Docket FAA-2006-25755.
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    The FAA first rejects the notion that the holiday waiver to the 
minimum use requirements be extended to additional days. In 
establishing the 80% minimum use requirement, the FAA specifically 
accounted for days in the year where there are drops in service, for 
planned and unplanned events, including holidays. The FAA, however, has 
traditionally provided the waiver for the days of Thanksgiving Day, the 
Friday following Thanksgiving Day, and the period from December 24 
through the first Saturday in January because of reduced passenger 
demand at all airports and because they fall within the same 2-month 
reporting cycle for usage. Therefore, a majority of carriers would not 
meet the minimum requirement of 80 percent without potentially 
operating uneconomic flights.
    To the extent that there are carriers that hold OAs during holidays 
and do not anticipate full usage and there are other carriers who 
desire OAs during those same days, the FAA suggests carriers avail 
themselves of the secondary leasing market. The FAA is not compelled to 
increase our management of OA usage and allocations under the Order 
during holiday periods. The Agency fully believes that a viable and 
practical solution already exists, and it urges carriers to take 
advantage of the leasing market.
Start-up Waiver
    The FAA did not receive any adverse comments to the proposed 
amendment to waive the minimum use requirement for 120 days following 
the allocation of an OA by lottery. The provision is included in this 
amendment.
Administrator's Waiver Authority
    Under the Order, the FAA Administrator can ``waive the 80 percent 
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.'' The FAA proposed the 
Administrator be given greater discretion to issue a waiver if the 
impact of a particular event is five consecutive days versus the 
duration of the event existing for more than five days. This provision 
recognizes that carrier operations may require several days to return 
to normal after significant disruptions to service.
    Commenters supported this proposal, and the provision is included 
in this amendment.

Reversion and Withdrawal of Operating Authorizations

    The Order currently does not provide a process for the FAA to 
reduce flight operations at the airport to meet operational needs or to 
recognize reductions in available airport capacity. The FAA, therefore, 
proposed to include such a mechanism and use a weighted lottery system. 
The Agency received a number of comments in response.
    To the extent that certain respondents would have the FAA further 
refine this provision and have it affect operations at other airports 
in the New York area or commit to reducing the number of reservations 
made available to non-scheduled operators before scheduled operators, 
the FAA notes that these comments are outside the scope of this 
proposal and, therefore, will not be addressed.
    Some carriers opposed the weighted lottery system. Delta argued 
that the proposal is ``unfair to carriers that operate substantial 
levels of service, and have made significant investments in 
operations.'' The FAA believes, however, that through the following 
explanation, Delta and others will have a better understanding of why 
the FAA continues to support the proposal and has decided to include it 
in the Order subject to one modification related to the baseline 
protection of 20 OAs.
    Under the weighted lottery system, a lottery would be implemented 
each time

[[Page 63227]]

we needed to withdraw on OA. All air carriers holding OAs at the 
airport would be included, regardless of what period of the day needed 
to be depeaked. In this way, any air carrier operating at LaGuardia 
assumes the risk, based on its share of operations at the airport, of 
having OAs withdrawn. Weights will be established based on the 
proportionate share of OAs the carrier holds at the airport. For 
example, if an air carrier has a weight equal to 30, the carrier's name 
will be placed in a random draw 30 times. The random draw by an FAA 
representative would establish the order in which carriers need to 
relinquish OAs. While there is more of a likelihood that a carrier with 
greater operations at LaGuardia will be randomly chosen first, any air 
carrier holding OAs, including carriers with limited presence at the 
airport, as explained below, could be chosen. Carriers would relinquish 
two OAs in each sequence until the FAA's reduced level of operations by 
half-hour or hour, as appropriate, has been achieved.
    The FAA proposed that a withdrawal would not be made from any 
carrier if the result would reduce its holdings to less than 20 OAs on 
any weekday. However, upon reconsideration, the FAA believes that every 
carrier serving LaGuardia should carry the potential burden, 
proportional to its share of OAs, of a withdrawal. As such, American is 
correct in its assertion that the FAA should not provide a 20 OA 
baseline protection from potential withdrawal.
    The following illustrates how weights would be assigned to each air 
carrier in the lottery. On a weekly basis, there are a total of 6,750 
available OAs at LaGuardia. Assume Carrier A has 4,000 OAs, Carrier B 
has 2,000 OAs; and Carrier C has 750 OAs.
    Carrier A's share is 4,000/6,750 = .593.
    Carrier B's share is 2,000/6,750 = .296.
    Carrier C's share is 750/6,750 = .11.
    Thus, the weight for each carrier rounded to the higher whole 
number is:
    Carrier A = .593(100) = 60.
    Carrier B = .296(100) = 30.
    Carrier C = .11(100) = 11.
    For these purposes, the FAA will consider commonly owned and 
affiliated carriers to be single air carriers.
    Air Canada argued that their possible inclusion in a lottery 
violates the Air Transport Agreement between the Government of Canada 
and the Government of the United States and the 2005 US-Canada Open 
Skies Agreement in which the U.S. government agreed to provide Canadian 
carriers with a base level of 42 slots (OAs) at LaGuardia in the summer 
and winter seasons. The FAA has reviewed these agreements and believes 
that, as long as the Canadian carriers are subject to the same, non-
discriminatory regulations as U.S. operator, no violation of the 
agreements would occur. This withdrawal system is only to be used in 
the event of reduced capacity at the airport. The FAA would not be able 
to engage this mechanism and draw down OA holdings for purposes such as 
providing U.S. or foreign airlines with OAs for international services 
or providing OAs for ``new entrants.'' Any OA that is withdrawn or 
temporarily suspended, if reallocated, will be reallocated to the 
carrier form which it was taken, provided that the carrier continues to 
operate scheduled service at LaGuardia.

III. Conclusion: The Amended Order

    On August 7, 2007, the FAA proposed amendment to the Order, and 
solicited written views on the FAA's tentative determination to provide 
an approval process for OA transfers for ``day-of'' carrier 
substitutions; to amend provisions affecting the 80 percent minimum use 
requirement; and to provide a mechanism for withdrawal of OAs for FAA 
operational reasons. After considering the responses, the FAA has 
determined to amend the Order and adopt the proposal with two minor 
modifications. The Order, as amended, is recited below in its entirety.

A. Scheduled Operations

    With respect to scheduled operations at LaGuardia:
    1. The final Order governs scheduled arrivals and departures 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.
    2. The final Order takes effect on January 1, 2007, and will expire 
at the first change of scheduling season, as defined in 14 CFR, part 
93, subpart B, occurring no less than 90 days after the issuance of a 
final rule regulating congestion at LaGuardia.
    3. The FAA will assign operating authority to conduct an arrival or 
a departure at LaGuardia during the affected hours to the air carrier 
that holds equivalent slot or slot exemption authority under the High 
Density Rule of FAA slot exemption rules as of January 1, 2007; to the 
primary marketing air carrier in the case of AIR-21 small hub/nonhub 
airport slot exemptions; or to the air carrier operating the flights as 
of January 1, 2007, in the case of a slot held by a non carrier. The 
FAA will not assign operating authority under the final Order to any 
person or entity other than a certificated U.S. or foreign air carrier 
with appropriate economic authority under 14 CFR part 121, 129 or 135. 
The Chief Counsel of the FAA will be the final decision maker regarding 
the initial assignment of Operating Authorizations.
    4. For administrative tracking purposes only, the FAA will assign 
an identification number to each Operating Authorization.
    5. An air carrier can lease or trade an Operating Authorization to 
another carrier for any consideration, not to exceed the duration of 
the 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. However, the FAA will approve transfers between 
carriers under the same marketing control up to 5 business days after 
the actual operation. This post-transfer approval is limited to 
accommodate operational disruptions that occur on the same day of the 
scheduled operation.
    6. Each air 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 percent of 
the time over a two-month period will be withdrawn by the FAA except:

    A. The FAA will treat as used any Operating Authorization held 
by an air carrier on Thanksgiving Day, the Friday following 
Thanksgiving Day, and the period from December 24 through the first 
Saturday in January.
    B. The FAA will treat as used any Operating Authorization 
obtained by an air carrier through a lottery under paragraph 7 for 
the first 120 days after allocation in the lottery.
    C. The Administrator of the FAA may waive the 80 percent usage 
requirement in the event of a highly unusual and unpredictable 
condition which is beyond the control of the air carrier and which 
affects carrier operations for a period of five consecutive days or 
more.

    7. In the event that Operating Authorizations are withdrawn for 
non-use, surrendered to the FAA or are

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unassigned, the FAA will determine whether any of the available 
Operating Authorizations should be reallocated. If so, the FAA will 
conduct a lottery using the provisions specified under 14 CFR 93.225. 
The FAA may retime an Operating Authorization prior to reallocation in 
order to address operational needs. When the final Order expires, any 
Operating Authorizations reassigned under this paragraph, except those 
assigned to new entrants or limited incumbents, will revert to the FAA 
for reallocation according to the reallocation mechanism prescribed in 
the final rule that succeeds the final Order.
    8. 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 otherwise required by 
operational needs. Any Operating Authorization that is withdrawn or 
temporarily suspended will, if reallocated, be reallocated to the air 
carrier from which it was taken, provided that the air carrier 
continues to operate scheduled service at LaGuardia.
    9. The FAA will enforce the final Order through an enforcement 
action seeking a civil penalty under 49 U.S.C. 46301(a). An air carrier 
that is not a small business as defined in the Small Business Act, 15 
U.S.C. 632, would be liable for a civil penalty of up to $25,000 for 
every day that it violates the limits set forth in the final Order. An 
air carrier that is a small business as defined in the Small Business 
Act would be liable for a civil penalty of up to $10,000 for every day 
that it violates the limits set forth in the final 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 the final Order.

B. Unscheduled Operations: \4\
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    \4\ Unscheduled operations are operations other than those 
regularly conducted by an air carrier between LaGaurdia and another 
service point. Unscheduled operations include general aviation, 
public aircraft, military, charter, ferry, and positioning flights. 
Helicopter operations are excluded from the reservation requirement. 
Reservations for unscheduled flights operating 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.
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    With respect to unscheduled flight operations at LaGuardia:
    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.
    2. The final Order takes effect on January 1, 2007, and will expire 
at the first change of 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 
operations, 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. Six (6) 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 is 
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 would be 
obtained through the ARO.
    9. Reservations cannot be bought, sold, or leased.

    Issued in Washington, DC, on November 2, 2007.
Kerry B. Long
Chief Counsel, Federal Aviation Administration.
[FR Doc. 07-5583 Filed 11-2-07; 4:11 pm]

BILLING CODE 4910-13-M
