
[Federal Register: October 7, 2009 (Volume 74, Number 193)]
[Notices]               
[Page 51650-51653]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc09-119]                         

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2007-29320]

 
Operating Limitations at John F. Kennedy International Airport

ACTION: Notice of order extending and modifying the limitations on 
scheduled operations at John F. Kennedy International Airport.

-----------------------------------------------------------------------

SUMMARY: The FAA is amending the January 15, 2008, order limiting the 
number of scheduled aircraft operations at John F. Kennedy 
International Airport (JFK) during peak operating hours, as amended 
(January 2008 order).\1\ The amendment extends the January 2008 order 
by approximately two years, through October 29, 2011. In addition, 
because the amendment extends the January 2008 order's duration, the 
amendment clarifies that the FAA will not allocate new or returned 
capacity under the order via the auction

[[Page 51651]]

procedure that the order originally described.
---------------------------------------------------------------------------

    \1\ Order Limiting Scheduled Operations at John F. Kennedy 
International Airport, 73 FR 3,510 (Jan. 18, 2008); 73 FR 8,737 
(Feb. 14, 2008)(amendment to order).
---------------------------------------------------------------------------

    If you wish to review the background documents or comments received 
in this proceeding, you may go to http://www.regulations.gov at any 
time and follow the online instructions for accessing the electronic 
docket. You may also go to the U.S. Department of Transportation's 
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.

DATES: These amendments to the January 2008 order are effective 
immediately upon publication in the Federal Register.

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: 

I. Background

    On June 5, 2009, the FAA published a notice that invited comments 
on its proposal to extend the January 2008 order limiting scheduled 
operations at JFK.\2\ At the time, the January 2008 order was scheduled 
to expire on October 24, 2009. For the reasons described in the notice, 
it was unrealistic to expect a long-term rule to take effect and 
control the significant congestion-related delays that the FAA 
anticipated would occur at JFK if the January 2008 order were to expire 
as originally scheduled. Given the uncertainty over when a final rule 
would take effect and the impending expiration of the January 2008 
order, the FAA proposed to extend the January 2008 order for 
approximately one year.
---------------------------------------------------------------------------

    \2\ 74 FR 27,059.
---------------------------------------------------------------------------

    The FAA expected the one-year extension of the January 2008 order 
to serve as at least a partial bridge to the implementation of a long-
term measure to control congestion and related delays at JFK. The FAA 
received written submissions on the proposal from nine commenters. The 
commenters include six scheduled carriers, two industry organizations, 
and the airport operator.

II. Summary and Analysis of the Comments

A. Amended Duration

    Seven of the nine commenters express support for an extension of 
the January 2008 order to prevent a return of the congestion-related 
delays that passengers previously experienced at JFK. Although the FAA 
proposed an extension of about one year, three carriers and one 
organizational commenter state that an extension of longer than one 
year is appropriate. While the specific observations and opinions of 
these four commenters differ, they variously assert that one year is 
not sufficient time either to create enough capacity at JFK to meet the 
demand or to finalize and implement a new rule to manage congestion at 
the airport.
    The FAA proposed a one-year extension of the January 2008 order 
because the FAA never intended the order to serve as a long-term 
solution to congestion at JFK. From this perspective, using the minimum 
number of short-term extensions would offer the benefit of regular and 
public status reports on where the FAA stands in establishing a longer-
term solution to overscheduling at JFK. As the commenters note, 
however, such short-term extensions may not best facilitate the long-
term planning of some carriers that conduct, or hope to conduct, 
service at the airport. Accordingly, while the FAA does not agree that 
an indefinite extension is appropriate, the FAA will increase the 
duration of the present extension to about two years to accommodate 
carriers' longer term planning. The January 2008 order, as amended, 
will now expire on October 29, 2011. The reporting deadlines for 
carriers to return Operating Authorizations for all or part of a 
scheduling season in paragraph 9.b.i. are amended to reflect the longer 
duration of the order. These deadlines are also advanced by 
approximately two weeks to coincide with the deadlines in the 
International Air Transport Association's Worldwide Scheduling 
Guidelines.

B. Buy and Sell Authority

    In light of the increased duration of the January 2008 order, five 
commenters question the ban on the purchase, sale, or long-term lease 
of the Operating Authorizations held by virtue of the original order. 
The commenters reason that the FAA included the ban as a result of the 
January 2008 order's short duration. The commenters perceive that 
extending the order increases the importance of a market mechanism that 
permits the sale and purchase of operating authority, which would 
facilitate competition and new entry, as well as leases for such 
authority that extend beyond the order's expiration date.
    The FAA included in the January 2008 order the ability of carriers 
to trade or to lease Operating Authorizations to other carriers; 
however, the duration of the trade or lease could not exceed the 
duration of the order.\3\ The commenters claim that relying on short-
term trades and leases alone may become limiting as the January 2008 
order remains effective over a significantly longer term. The proposed 
extension of the January 2008 order, however, specifically limited the 
comments to the proposed extension.\4\ The FAA intends to address long-
term transfers of Operating Authorizations at some point in the future.
---------------------------------------------------------------------------

    \3\ 73 FR at 3,516 (ordering paragraphs seven and eight)
    \4\ 74 FR at 27,060 (``any submission to the current docket 
should be limited to the proposed extension of the January 2008 
order'').
---------------------------------------------------------------------------

C. New Entrant and Limited Incumbent Opportunities

    One carrier, Virgin America, Inc., observes that the January 2008 
order originally provided limited opportunities for new entrant and 
limited incumbent carriers to initiate or to augment their scheduled 
operations at JFK. Virgin America offers that any extension of the 
order should include enhancements that could increase service at the 
airport from new entrant and limited incumbent carriers.
    Virgin America is correct in noting that the extension of the 
January 2008 order merits a revisitation of the opportunities that are 
available at JFK for new entrant and limited incumbent carriers.\5\ 
There are currently several avenues for carriers to conduct scheduled 
service, to acquire Operating Authorizations, or to adjust the timing 
of their Operating Authorizations at JFK. First, the January 2008 order 
is effective daily from 6 a.m. until 10:59 p.m., local time, and 
carriers can schedule additional operations during the hours that the 
January 2008 order is not in effect. Second, subject to FAA written 
approval, a carrier can request a new Operating Authorization or a 
shift of an existing Operating Authorization in any half hour that the 
order is in effect. Third, all carriers have the opportunity to lease 
or trade Operating Authorizations for any period not exceeding the 
duration of the January 2008 order. Fourth, in the event that there is 
new capacity at JFK while the January 2008 order remains in effect, the 
order provides a mechanism under which carriers can bid on a leasehold 
interest in the new operations.
---------------------------------------------------------------------------

    \5\ 73 FR at 3,514.
---------------------------------------------------------------------------

    After the January 2008 order took effect, Congress enacted the 
Omnibus Appropriations Act of 2009. In part, this statute precluded the 
use of appropriated funds to take any action involving the scheduling 
of airline operations if the action also involves the

[[Page 51652]]

auctioning of permission to conduct airline operations at an 
airport.\6\ Because this language could be construed to preclude the 
FAA from eliciting bids from carriers to acquire a leasehold interest 
in newly available capacity, which is listed as the fourth alternative 
in the preceding paragraph, the FAA is withdrawing that provision, 
effective immediately.
---------------------------------------------------------------------------

    \6\ Omnibus Appropriations Act, 2009, Public Law 111-8, Sec.  5, 
div. I, tit. I, Sec.  115, 123 Stat. 524, 921-22.
---------------------------------------------------------------------------

    Accordingly, the ordering paragraphs of the January 2008 order are 
hereby amended as follows:
    1. This Order assigns operating authority to conduct an arrival or 
a departure at JFK during the affected hours to the U.S. air carrier or 
foreign air carrier identified in the appendix to this Order. The FAA 
will not assign operating authority under this Order to any person or 
entity other than a certificated U.S. or foreign air carrier with 
appropriate economic authority and FAA operating authority under 14 CFR 
part 121, 129, or 135. This Order applies to the following:
    a. All U.S. air carriers and foreign air carriers conducting 
scheduled operations at JFK as of the date of this Order, any U.S. air 
carrier or foreign air carrier that operates under the same designator 
code as such a carrier, and any air carrier or foreign-flag carrier 
that has or enters into a codeshare agreement with such a carrier.
    b. All U.S. air carriers or foreign air carriers initiating 
scheduled or regularly conducted commercial service to JFK while this 
Order is in effect.
    c. The Chief Counsel of the FAA, in consultation with the Vice 
President, System Operations Services, is the final decisionmaker for 
determinations under this Order.
    2. This Order governs scheduled arrivals and departures at JFK from 
6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
    3. This Order takes effect on March 30, 2008, and expires at 11:59 
p.m., Eastern Time, on October 29, 2011.
    4. Under the authority provided to the Secretary of Transportation 
and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we 
hereby order that:
    a. No U.S. air carrier or foreign air carrier initiating or 
conducting scheduled or regularly conducted commercial service at JFK 
may conduct such operations without an Operating Authorization assigned 
by the FAA.
    b. Except as provided in the appendix to this Order, scheduled U.S. 
air carrier and foreign air carrier arrivals and departures will not 
exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.
    c. The Administrator may change the limits if he determines that 
capacity exists to accommodate additional operations without a 
significant increase in delays.
    5. For administrative tracking purposes only, the FAA will assign 
an identification number to each Operating Authorization.
    6. A carrier holding an Operating Authorization may request the 
Administrator's approval to move any arrival or departure scheduled 
from 6 a.m. through 10:59 p.m. to another half hour within that period. 
Except as provided in paragraph seven, the carrier must receive the 
written approval of the Administrator, or his delegate, prior to 
conducting any scheduled arrival or departure that is not listed in the 
appendix to this Order. All requests to move an allocated Operating 
Authorization must be submitted 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 the carrier. If the FAA cannot 
approve a carrier's request to move a scheduled arrival or departure, 
the carrier may then apply for a trade in accordance with paragraph 
seven.
    7. For the duration of this order, a carrier may enter into a lease 
or trade of an Operating Authorization to another carrier for any 
consideration. 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. The FAA will approve transfers between carriers under 
the same marketing control up to five business days after the actual 
operation, but only to accommodate operational disruptions that occur 
on the same day of the scheduled operation. The FAA's approval of a 
trade or lease does not constitute a commitment by the FAA to grant the 
associated historical rights to any operator in the event that slot 
controls continue at JFK after this order expires.
    8. A carrier may not buy, sell, trade, or transfer an Operating 
Authorization, except as described in paragraph seven.
    9. Historical rights to Operating Authorizations and withdrawal of 
those rights due to insufficient usage will be determined on a seasonal 
basis and in accordance with the schedule approved by the FAA prior to 
the commencement of the applicable season.
    a. For each day of the week that the FAA has approved an operating 
schedule, any Operating Authorization not used at least 80% of the time 
over the time-frame authorized by the FAA under this paragraph will be 
withdrawn by the FAA for the next applicable season except:
    i. The FAA will treat as used any Operating Authorization held by a 
carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and 
the period from December 24 through the first Saturday in January.
    ii. The Administrator of the FAA may waive the 80% usage 
requirement in the event of a highly unusual and unpredictable 
condition which is beyond the control of the carrier and which affects 
carrier operations for a period of five consecutive days or more.
    b. Each 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 and:
    i. The dates within each applicable season it intends to commence 
and complete operations.
    A. For each winter scheduling season, the report must be received 
by the FAA no later than August 15 during the preceding summer.
    B. For each summer scheduling season, the report must be received 
by the FAA no later than January 15 during the preceding winter.
    ii. The completed operations for each day of the applicable 
scheduling season:
    A. No later than September 1 for the summer scheduling season.
    B. No later than January 15 for the winter scheduling season.
    iii. The completed operations for each day of the scheduling season 
within 30 days after the last day of the applicable scheduling season.
    10. In the event that a carrier surrenders to the FAA any Operating 
Authorization assigned to it under this Order or if there are 
unallocated Operating Authorizations, the FAA will determine whether 
the Operating Authorizations should be reallocated. The FAA may 
temporarily allocate an Operating Authorization at its discretion. Such 
temporary allocations will not be entitled to historical status for the 
next applicable scheduling season under paragraph 9.
    11. If the FAA determines that an involuntary 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

[[Page 51653]]

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 carrier from which it was 
taken, provided that the carrier continues to operate scheduled service 
at JFK.
    12. The FAA will enforce this Order through an enforcement action 
seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not 
a small business as defined in the Small Business Act, 15 U.S.C. 632, 
will be liable for a civil penalty of up to $25,000 for every day that 
it violates the limits set forth in this Order. A carrier that is a 
small business as defined in the Small Business Act will be liable for 
a civil penalty of up to $10,000 for every day that it violates the 
limits set forth in this 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 this Order.
    13. The FAA may modify or withdraw any provision in this Order on 
its own or on application by any carrier for good cause shown.

    Issued in Washington, DC, on October 1, 2009.
J. Randolph Babbitt,
Administrator, Federal Aviation Administration.
[FR Doc. E9-24121 Filed 10-2-09; 11:15 am]

BILLING CODE 4910-13-P
