[Federal Register Volume 85, Number 182 (Friday, September 18, 2020)]
[Rules and Regulations]
[Pages 58258-58260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18404]


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. FAA-2007-29320]


Operating Limitations at John F. Kennedy International Airport

AGENCY: Department of Transportation, Federal Aviation Administration 
(FAA).

ACTION: Extension to order.

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SUMMARY: This action extends the Order Limiting Operations at John F. 
Kennedy International Airport (JFK) published on January 18, 2008, and 
most recently extended on September 17, 2018. The Order remains 
effective until October 29, 2022.

DATES: This action is effective on September 18, 2020.

ADDRESSES: Requests may be submitted by mail to Slot Administration 
Office, System Operations Services, AJR-0, Room 300W, 800 Independence 
Avenue SW, Washington, DC 20591, or by email to: 7-awa-slotadmin@faa.gov.

FOR FURTHER INFORMATION CONTACT: For questions concerning this Order 
contact: Bonnie Dragotto, Regulations Division, FAA Office of the Chief 
Counsel, AGC-250, Room 916K, Federal Aviation Administration, 800 
Independence Avenue SW, Washington, DC 20591; telephone (202) 267-3808; 
email Bonnie.Dragotto@faa.gov.

SUPPLEMENTARY INFORMATION:

Availability of Rulemaking Documents

    You may obtain an electronic copy using the internet by:
    (1) Searching the Federal eRulemaking Portal (http://www.regulations.gov);
    (2) Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/; or
    (3) Accessing the Government Printing Office's web page at http://www.gpoaccess.gov/fr/index.html.
    You also may obtain a copy by sending a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue SW, Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this 
rulemaking.

Background

    The FAA historically limited the number of arrivals and departures 
at JFK through the implementation of the High Density Rule (HDR).\1\ By 
statute enacted in April 2000, operations were added at JFK through 
provisions permitting exemptions for new entrant carriers and flights 
to small and non-hub airports.\2\ The HDR's applicability to JFK 
operations terminated as of January 1, 2007.\3\ With the AIR-21 
exemptions and the HDR phase-out, some air carriers serving JFK 
significantly increased their scheduled operations throughout the day 
and retimed existing flights. This resulted in scheduled demand in peak 
hours that exceeded the airport's capacity and caused significant 
congestion and delay. In January 2008, the FAA placed temporary limits 
on scheduled operations at JFK to mitigate persistent congestion and 
delays at the airport.\4\ The FAA extended the January 18, 2008, Order 
placing temporary limits on scheduled operations at JFK on October 7, 
2009, April 4, 2011, May 14, 2013, March 26, 2014, May 24, 2016, as 
corrected June 21, 2016, and on September 17, 2018.\5\
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    \1\ 33 FR 17896 (Dec. 3, 1968). The FAA codified the rules for 
operating at high density traffic airports in 14 CFR part 93, 
subpart K. The HDR required carriers to hold a reservation, which 
came to be known as a ``slot,'' for each takeoff or landing under 
instrument flight rules at the high density traffic airports.
    \2\ Aviation Investment and Reform Act for the 21st Century 
(AIR-21), Public Law 106-181 (Apr. 5, 2000), 49 U.S.C. 41715(a)(2).
    \3\ Id.
    \4\ 73 FR 3510 (Jan. 18, 2008), as amended by 73 FR 8737 (Feb. 
14, 2008).
    \5\ 74 FR 51650; 76 FR 18620; 78 FR 28276; 79 FR 16854; 81 FR 
32636; 81 FR 40167; 83 FR 46865.
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    Under the Order, as amended, the FAA (1) maintains the current 
hourly limits of 81 scheduled operations at JFK during the peak period; 
(2) imposes an 80 percent minimum usage requirement for Operating 
Authorizations (OAs) \6\ with defined exceptions; (3) provides a 
mechanism for withdrawal of OAs for FAA operational reasons; (4) 
establishes procedures to allocate withdrawn, surrendered, or 
unallocated OAs; and (5) allows for trades and leases of OAs for 
consideration for the duration of the Order.
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    \6\ Also referred to herein as ``slots.''
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    The reasons for issuing the Order have not changed appreciably 
since it was implemented. Based upon experience from the 2018-2020 
period, demand for access to JFK remains high and multiple new entrant 
and other incumbent airlines have been waitlisted for new peak period 
operations and retiming existing flights to higher demand hours. Many 
of these airlines were on a waitlist for several scheduling seasons. 
The average hourly flights and allocated slots in the busiest hours 
were generally at the limits under this Order.
    The FAA has reviewed the on-time and other performance metrics for 
the past two years in the peak months--May to August 2018 and 2019--and 
generally found continuing improvements relative to the same peak 
period in 2008. Year over year trends show a modest decrease in 
performance overall largely due to the closure of Runway 13L/31R for 
construction in 2019.\7\ The FAA has determined that the operational 
limitations imposed by this Order remain necessary. Notwithstanding the 
disruption caused by the COVID-19 public health emergency, the duration 
of which is uncertain, without the operational limitations imposed by 
this Order, the FAA expects severe congestion-related delays would 
occur at JFK and at other airports throughout the National Airspace 
System (NAS) as flights are added or retimed into peak periods at JFK. 
The FAA will continue to monitor demand, performance, and runway 
capacity at JFK, including the effects of the COVID-19 public health 
emergency, to determine if changes are warranted during the effective 
period of this Order.\8\ The FAA, in coordination with the Office of 
the Secretary of Transportation (OST), will also continue to consider 
potential rulemaking to codify policies for slot-controlled airports.
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    \7\ Docket No. FAA-2007-29320 includes a copy of the MITRE 
analysis completed for the FAA.
    \8\ The limited waiver of the minimum slot usage requirement for 
JFK and LGA airports published on March 16, 2020, 85 FR 15018, and 
extended on April 17, 2020, 85 FR 21500, remains in effect through 
October 24, 2020.
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Pending Issues

    In the FAA's 2018 actions extending the JFK and LGA Orders, the FAA 
noted that it has received specific proposals for policy changes that 
would necessitate amending the Orders.\9\

[[Page 58259]]

Consideration of these issues is ongoing. In addition, the FAA is 
reviewing recent substantive amendments to the International Air 
Transport Association Worldwide Slot Guidelines (IATA WSG, now known as 
the Worldwide Airport Slot Guidelines or ``WASG'') and considering 
whether to implement certain changes in the United States.\10\ In the 
meantime, the FAA continues to apply version 9 of the IATA WSG (Jan. 1, 
2019) to inform its slot administration decisions at JFK.\11\
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    \9\ See discussion of ``Current Issues'' in 2018 JFK Order, 83 
FR at 46865, and 2018 LGA Order, 83 FR at 47065.
    \10\ https://www.iata.org/en/policy/slots/slot-guidelines/.
    \11\ https://www.iata.org/contentassets/4ede2aabfcc14a55919e468054d714fe/wsg-edition-9-english-version.pdf.
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    Accordingly, the FAA is extending the expiration date of this Order 
until October 29, 2022. This expiration date coincides with the 
extended expiration date for the Order limiting operations at LGA, as 
also extended by action published elsewhere in this issue of the 
Federal Register. This JFK action incorporates ministerial changes to 
the terms of the Order concerning internal FAA processes, amending a 
provision concerning the final decision-maker in paragraph 1.c., and 
makes other minor edits to improve readability.
    The FAA finds that notice and comment procedures under 5 U.S.C. 
553(b) are impracticable, unnecessary, and contrary to the public 
interest, as carriers have begun planning schedules for the winter 
2020/2021 season and no significant substantive changes are included in 
this action. For these reasons, the FAA also finds that it is 
impracticable and contrary to the public interest to delay the 
effective date of this action under 5 U.S.C. 553(d).
    This Order is the equivalent of limited local rules as referenced 
in the IATA WSG and takes precedence over the WSG where there are 
differences.\12\ At JFK, the FAA follows the WSG in many respects such 
as new entrant priority \13\ and consideration of schedule constraints 
such as terminal, gate, parking, customs and immigration, curfews, and 
similar operational factors.
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    \12\ As previously indicated, the FAA is reviewing recent 
substantive amendments to the WSG adopted in version 10 (Aug. 1, 
2019) and considering whether to implement certain changes in the 
United States.
    \13\ Under current policy and procedures, the FAA applies the 
definitions for ``new entrant'' as set forth in the WSG version 9 
(Jan. 1, 2019), which is ``an airline requesting a series of slots 
at an airport on any day where, if the airline's request were 
accepted, it would hold fewer than 5 slots at that airport on that 
day.
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    Under current rules, the FAA uses an approach adapted from the WSG 
for reallocating available OAs at JFK.\14\ This includes applying 
priorities for new entrant airlines, the retiming of historic slots, 
and allocation of remaining available capacity. The FAA also considers 
factors such as delays or operational performance in certain hours or 
periods when the allocation is above the limits in adjacent hours. In 
general, the FAA reviews retiming requests to move from less congested 
hours to more congested hours in a similar manner to a new request. New 
entrants may receive a higher priority in the case of competing 
requests. The FAA also maintains a waiting list of carrier requests 
that could not be accommodated in prior scheduling seasons, if 
requested by the initial submission deadline, and prioritizes such 
requests over requests for new slots submitted after the initial 
submission deadline. Carriers that obtain temporary slot swaps to meet 
their operational needs do not lose priority on the waiting list for 
permanent slot allocations. The priorities considered by the FAA under 
established policy and practice when allocating OAs on a permanent or 
temporary basis are set forth in paragraph 11 of the Amended Order.
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    \14\ In making allocation decisions, the FAA may not under its 
independent authority consider the markets to be served, the 
aircraft to be used, potential competition benefits associated with 
a carrier or service in particular markets, or the potential 
economic benefits of a particular flight.
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The Amended Order

    The Order, as amended, is recited below in its entirety.
    1. This Order continues the process for assigning operating 
authority to conduct an arrival or a departure at JFK during the 
affected hours to any certificated U.S. air carrier or foreign air 
carrier. 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 with operating 
authority from FAA 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 Vice President, System Operations Services, in coordination 
with the Chief Counsel of the FAA, is the final decision maker 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 took effect on March 30, 2008, and will expire 
October 29, 2022.
    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 otherwise authorized by the FAA based on historic 
precedence, 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 the Administrator 
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 7, the carrier must receive the written 
approval of the Administrator, or his delegate, prior to conducting any 
adjusted arrival or departure. All requests to move an allocated 
Operating Authorization must be submitted to the FAA Slot 
Administration Office, facsimile (202) 267-7277 or email 7-AWA-
[email protected], 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 7.
    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 email [email protected], 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

[[Page 58260]]

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 7.
    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. The FAA considers the following factors and priorities in 
allocating Operating Authorizations, which the FAA has determined are 
available for reallocation--
    a. Historical requests for allocation of an Operating Authorization 
in the same time;
    b. New entrant status;
    c. Retiming of historic Operating Authorizations;
    d. Extension of a seasonal Operating Authorization to year-round 
service;
    e. The effective period of operation;
    f. The extent and regularity of intended use with priority given to 
year-round services;
    g. The operational impacts of scheduled demand, including the 
hourly and half-hour demand and the mix of arrival and departure 
flights; and
    h. Airport facility constraints.
    Any carrier that is not approved for allocation of an Operating 
Authorization by the FAA may request it be placed on a waiting list for 
consideration should an Operating Authorization in the requested time 
become available during that scheduling season.
    12. 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 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.
    13. The FAA may enforce this Order through an enforcement action 
seeking a civil penalty under 49 U.S.C. 46301(a). The FAA or Department 
of Justice also could file a civil action in U.S. District Court, under 
49 U.S.C. 46106 or 46107, respectively, seeking to enjoin any carrier 
from violating the terms of this Order.
    14. 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 August 18, 2020.
Virginia Boyle,
Deputy Vice President, System Operations Services.
[FR Doc. 2020-18404 Filed 9-17-20; 8:45 am]
BILLING CODE 4910-13-P


