[Federal Register: July 17, 2008 (Volume 73, Number 138)]
[Notices]               
[Page 41156-41162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy08-144]                         

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2008-0629]

 
Operating Limitations for Unscheduled Operations at John F. 
Kennedy International Airport and Newark Liberty International Airport

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of Proposed Order Limiting Unscheduled Operations at 
John F. Kennedy International Airport and Newark Liberty International 
Airport; Request for comments.

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SUMMARY: The FAA tentatively has determined that it is necessary to 
temporarily limit unscheduled aircraft operations at John F. Kennedy 
International Airport (JFK) and Newark Liberty International Airport 
(EWR). By Orders dated January 15 and May 15, 2008, the FAA restricted 
the number of scheduled operations respectively at JFK and EWR. These 
orders were a result of persistent congestion and delays at JFK and EWR 
during the peak operating hours, as well as a dramatic projected 
increase in fight delays at both airports during the summer of 2008 if 
proposed schedules were implemented as requested by carriers. The FAA 
recently published a notice of proposed rulemaking that addresses the 
operating limits of scheduled and unscheduled operations at both 
airports for the longer term. The FAA believes that in the interim it 
is necessary to limit unscheduled operations, as even the addition of a 
few operations in the critical peak hours can result in added 
congestion and delay. The intended effect of this action would be 
consistent with the previously issued Orders governing scheduled 
operations. This final Order would take effect at 6 a.m., Eastern Time, 
on August 28, 2008, and would expire at 11:59 p.m., Eastern Time, on 
October 24, 2009.
    This proposed Order would implement a reservation system to limit 
unscheduled operations at the airports and includes special provisions 
for public charter operations. A final Order would be enforceable under 
the FAA's civil penalty authority.

DATES: Send your comments on or before July 28, 2008.

ADDRESSES: You may send comments identified by Docket Number FAA-2008-
0629 using 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 to Docket Operations, M-30, U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Bring comments to Docket 
Operations in Room W12-140 of the West Building Ground Floor at 1200 
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at 202-493-2251.
    Privacy: We will post all comments we receive, without change, to 
http://www.regulations.gov, including any personal information that you 
provide. Using the search function of the http://www.regulations.gov 
Web site, anyone can find and read the electronic form of all comments 
received into any of our dockets, including the name of the individual 
sending the comment (or signing the comment for an association, 
business, labor union, etc.). The electronic form of all comments 
posted to http://www.regulations.gov can be searched by the submitter's 
name. You may review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477-78). For 
information about the privacy aspects of the Federal eRulemaking 
Portal, please see the Privacy and Use notice at http://
www.regulations.gov.
    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. Alternatively, go to the Docket 
Operations in Room W12-140 of the West Building Ground Floor 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: For technical questions concerning 
this proposed rule contact: Gerry Shakley, System Operations Services, 
Air Traffic Organization; telephone (202) 267-9424; facsimile (202) 
267-7277; e-mail gerry.shakley@faa.gov. For legal questions concerning 
this proposed rule contact: Rebecca B. MacPherson, Office of the Chief 
Counsel, Federal Aviation Administration; telephone (202) 267-7240; 
facsimile (202) 267-7971; e-mail: rebecca.macpherson@faa.gov.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Government has exclusive sovereignty over the airspace of 
the United States.\1\ Under this broad authority, Congress has 
delegated to the Administrator extensive and plenary authority to 
ensure the safety of aircraft and the efficient use of the nation's 
navigable airspace. In this regard, the Administrator is required to 
assign the use of navigable airspace by regulation or order under such 
terms, conditions and limitations as he or she may deem necessary to 
ensure its efficient use.\2\ The Administrator may modify or revoke an 
assignment when required in

[[Page 41157]]

the public interest.\3\ The FAA interprets its statutory directive to 
act in the public interest as implicitly applying to any decision by 
the FAA to assign the efficient use of the navigable airspace. 
Furthermore, in carrying out the Administrator's safety 
responsibilities under the statute, the Administrator must consider 
controlling the use of the navigable airspace and regulating civil 
operations in that airspace in the interest of the safety and 
efficiency of those operations.\4\
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    \1\ 49 U.S.C. 40103(a).
    \2\ 49 U.S.C. 40103(b)(1), as previously codified in 49 U.S.C. 
App. Sec.  307(a). Title 49 was recodified by Public Law No. 103-
222, 108 Stat. 745 (1994). The textual revisions were not intended 
to result in substantive changes to the law. The recodification 
stated that the words in Sec.  307(a) ``under such terms, 
conditions, and limitations as he may deem'' were omitted as 
surplus. H. Rpt. 103-180 (103d Cong., 1st Sess. 1993) at 262.
    \3\ Id.
    \4\ 49 U.S.C. 40101(d)(4).
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    The FAA interprets its broad statutory authority to manage ``the 
efficient use of airspace'' to encompass its management of the 
nationwide system of air commerce and air traffic control. On a daily 
basis, that system regularly transports millions of passengers, 
thousands of tons of cargo, and millions of pieces of mail. The FAA 
believes that ensuring the efficient use of the airspace means that it 
must take all necessary steps to prevent extreme congestion at an 
airport from disrupting or adversely affecting the overall air traffic 
system for which the FAA is responsible. Delays at a single key airport 
of the sort experienced at JFK and EWR can have a crippling effect on 
other parts of the system, causing untold losses in time and money for 
individuals and businesses, as well as the operators at JFK and EWR and 
beyond.

John F. Kennedy International Airport (JFK)

    In 1968, the FAA issued the High Density Rule (HDR), designating 
JFK a high density traffic airport and limiting the number of takeoffs 
and landings at the airport, effective April 27, 1969.\5\ Under the 
HDR, the FAA 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. The HDR remained in 
effect at JFK for nearly four decades, during which aircraft operations 
at JFK were limited for the five hours of peak demand--3 p.m. through 
7:59 p.m., Eastern Time.
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    \5\ 33 FR 17896 (1968). The FAA codified the rules for operating 
at high density traffic airports in 14 CFR part 93, subpart K.
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    In April 2000, Congress began phasing out the HDR at certain 
airports, including JFK, which was no longer subject to the HDR after 
January 1, 2007.\6\ The elimination of the HDR at JFK allowed increased 
scheduling during the peak hours, continuing a trend of increased 
operations at JFK in recent years. However, capacity has not increased 
commensurate with the flight increases. In addition, JFK has evolved 
from an airport that historically served primarily international 
markets and the associated domestic feeder service into an airport that 
now also provides significantly more domestic service. There has been 
more recently an increased emphasis on connecting traffic that is 
typical of hub airports, as well as an increased focus on origin and 
destination traffic.
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    \6\ 49 U.S.C. 41715(a).
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    As a result of these changes at JFK, carriers increased their 
scheduled operations throughout the day to the point that by summer 
2007, demand exceeded the airport's capacity during some periods. For 
example, from February through July 2007, JFK's average actual airport 
capacity was 83 total operations per hour, including scheduled and 
nonscheduled flights. The scheduled demand during the busiest hour, 4 
p.m., was over 110 arrivals and departures during summer 2007. Adjacent 
hours had fewer scheduled flights, but they were still above the 
average hourly runway capacity which resulted in increased delays. 
Although air traffic control procedural and runway use plans adopted in 
early 2007 have increased JFK's aircraft throughput, especially for 
departures, they do not provide a capacity increase that would have 
accommodated the proposed summer 2008 demand.
    The increase in scheduled operations at JFK has had a profound 
effect on the delays that travelers have experienced. During fiscal 
year 2007, the average daily operations at JFK increased 21% over 
fiscal year 2006. Corresponding to the increased operations, on-time 
performance and other delay metrics have declined year over year. The 
on-time arrival performance at JFK, which is defined as arrival at the 
gate within 15 minutes of the scheduled time, declined from 68.5% in 
fiscal year 2006 to 62.19% in fiscal year 2007. On-time arrivals during 
the peak travel months of June, July and August declined from 63.37% in 
2006 to 58.53% in 2007 while on-time departures declined from 67.49% to 
59.89%. For the entire fiscal year, the average daily arrival delays 
exceeding one hour increased by 87% over fiscal year 2006 levels. Taxi 
out delay, which measures the time that aircraft wait prior to 
departing the runway, increased by 15%. Taxi out delays in the evening 
departure periods frequently exceeded an hour in duration. At the same 
time, U.S. and foreign air carriers continued to announce new flights 
for JFK throughout the day, including during the most oversubscribed 
hours. Unscheduled flights during the peak periods contributed to 
cumulative demand and shared in the resulting delays.
    Using the authority conferred under Sec.  41722 to address 
congested airports,\7\ the Secretary of Transportation and the Acting 
Administrator of the FAA concluded that a meeting with U.S. air 
carriers was necessary to discuss flight reductions at JFK to reduce 
overscheduling and flight delays.\8\
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    \7\ 49 U.S.C. 41722(a)
    \8\ Through a notice issued October 16, 2007, and published in 
the Federal Register, the FAA invited all U.S. scheduled air 
carriers and the Port Authority of New York and New Jersey (PANYNJ) 
to attend the scheduling reduction meeting, commencing October 23, 
2007. The FAA also invited all interested persons to submit 
information on the subject of overscheduling at JFK, including any 
data and their views, to a public docket for the FAA's consideration 
in issuing its Order. The Docket ID is FAA-2007-29320, and it can be 
examined online at www.regulations.gov or in person at the docket 
Operations address listed in the ADDRESSES section of this NPRM.
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    The FAA convened the scheduling reduction meeting with the U.S. air 
carrier participants and representatives of the airport operator on 
October 23 and 24. The FAA issued an Order on January 15, 2008, that 
limited scheduled operations of U.S. air carriers and foreign air 
carriers at JFK to a maximum of 81 per hour, except as provided in the 
appendix to the Order. The Order was effective at 6 a.m., Eastern Time 
on March 30, 2008, and expires at 11:59 p.m., Eastern Time on October 
24, 2009. This order will reduce the substantial inconvenience to the 
traveling public caused by excessive congestion-related flight delays 
at the airport that magnify as they spread through the National 
Airspace System. This action also is expected to reduce the average 
length of delays by about 15 percent over summer 2007 levels and 
provide for a more efficient use of the nation's airspace by more 
closely tying demand to capacity. In order to ensure the effectiveness 
of the carrier scheduling adjustments and limitations in the JFK Order, 
it is necessary to restrict unscheduled operations at JFK, as further 
explained later in this Proposed Order. Otherwise, even a few 
additional operations during peak hours would result in additional 
delay and could erode the gains achieved through schedule reductions.

Newark Liberty International Airport (EWR)

    On May 15, 2008, the Acting Administrator of the FAA issued an 
Order limiting scheduled operations at EWR in order to ensure that 
delays did not increase significantly as a result of proposed summer 
2008 scheduled operations that included about 100 new

[[Page 41158]]

operations, many during the already busy afternoon and evening hours. 
Newark routinely experiences delays and there is limited capacity for 
additional flights during the busiest hours of the day. Additionally, 
flight limitations recently adopted by the FAA for JFK may otherwise 
encourage carriers to operate to Newark if they are unable to obtain 
timely Operating Authorizations for JFK. The EWR limitations are 
necessary to ensure that operations do not significantly exceed the 
airports capacity and applies to all U.S. and foreign air carriers' 
scheduled operations, excluding helicopters, from 6 a.m.: Eastern Time, 
through 10:59 p.m., Eastern Time. The Order is effective at 6 a.m., 
Eastern Time on June 20, 2008, and expires at 11:59 p.m. on October 24, 
2009.
    Although EWR has historically experienced a significant number of 
congestion related delays, often ranking as the most delayed airport in 
the system, the proportion of delayed operations was relatively stable 
for many years and had declined compared to several years ago. More 
recently, however, the airport's on-time performance has diminished, 
and the modeled delays for the proposed summer 2008 schedules would 
have increased significantly.

Initial Scheduling Information Requests

    Based on JFK and EWR's summer 2007 operational and on-time 
performance, demand that exceeded capacity during certain hours, and 
limited runway capacity to accommodate additional flights, the FAA 
designated both airports as Level 2 Schedules Facilitated Airports for 
the summer 2008 scheduling season, in accordance with the International 
Air Transport Association (IATA) Worldwide Scheduling Guidelines.\9\ In 
designating the airports as Level 2 airports, the FAA required all U.S. 
and foreign air carriers to report to the FAA their proposed summer 
2008 scheduled operations at the airports during designated hours.
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    \9\ 72 FR 54,317 (Sept. 24, 2007).
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    In response to the U.S. and foreign air carriers' proposed summer 
2008 schedules and discussions with carriers that indicated a purely 
voluntary solution to adjust schedules was unlikely to resolve expected 
congestion, the FAA elected to modify EWR's IATA designation to a Level 
3 Coordinated Airport for summer 2008.\10\ This designation permitted 
the FAA to approve new operations at the airports in hours during which 
airport capacity is available and to deny proposed new operations 
during peak hours. The results of the FAA's discussions with U.S. and 
foreign air carriers with respect to their summer 2008 schedules are 
captured in the appendix to the JFK and the EWR Orders.
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    \10\ In connection with its January 15 order, the FAA also 
designated JFK an IATA Level 3 Coordinated Airport. 73 FR 3,510 
(Jan. 18, 2008)(order limiting scheduled operations); 72 FR 60,710 
(Oct. 25, 2007)(notice of airport level designation); 72 FR 73,418 
(Dec. 27, 2007).
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    The limitations on scheduled operations are based on the FAA's 
capacity review over a two year period from September 2006 through 
August 2007. That review indicated the airport average available runway 
capacity was 83 total operations per hour. This included scheduled and 
unscheduled operations.

The Proposed Order

    Unscheduled operations, including general aviation, charter, cargo, 
ferry. and other ad hoc operations, are typically a small percentage of 
the overall traffic at JFK and EWR. When the airport operations at JFK 
were limited by the HDR, a total of 8 reservations were set aside for 
unscheduled operations during the five slot controlled hours. From 5 
p.m. until 6 p.m., no unscheduled reservations were available. which 
permitted additional scheduled operations.
    As part of the analyses conducted for developing appropriate 
scheduling targets at JFK and EWR, we reviewed both scheduled and 
unscheduled traffic levels. For calendar year 2007, unscheduled 
operations at both airports averaged about two operations (arrival and 
departures combined) per hour. We used this historical information at 
both airports as the baseline for unscheduled operations at JFK and EWR 
and reviewed alternatives to vary the number of authorized reservations 
in this proposal. The greatest delay reduction benefits would come from 
limiting unscheduled operations during peak hours, except when capacity 
exists to accommodate additional operations without delay. This 
additional capacity would primarily be days when the airport's optimal 
capacity could be achieved. Unscheduled operators are in a position to 
take advantage of this capacity whereas scheduled operators are not. 
The FAA is not proposing to completely eliminate unscheduled operations 
from any hour at either JFK or EWR. However, the number of reservations 
will be limited and an individual operator may be unable to obtain a 
reservation at the preferred time and may need to operate during other 
hours, or possibly at another airport. The FAA proposes to implement a 
reservation system for unscheduled operations at JFK and EWR from 6 
a.m. through 10:59 p.m. (Eastern Time), Sunday through Saturday. The 
limits would begin on August 14, 2008 and continue through October 24, 
2009, consistent with ending dates for scheduled carrier limits. 
Reservations would be available on July 7 beginning 72 hours in advance 
of the proposed operation times at EWR or JFK.
    At JFK, the FAA proposes that during the controlled hours, unless 
otherwise authorized, the number of reservations for unscheduled 
operations would be limited to two per hour from 6 a.m. through 1:59 
p.m.; one per hour from 2 p.m. through 9:59 p.m.; and two per hour from 
10 p.m. through 10:59 p.m. At EWR, the FAA proposes that during the 
controlled hours, unless otherwise authorized, the number of 
reservations for unscheduled operations would be limited to two per 
hour from 6 a.m. through 11:59 a.m.; one per hour from 12 p.m. through 
9:59 p.m.; and two per hour from 10 p.m. to 10:59 p.m. This rule would 
apply to operations under instrument flight rules (IFR) and visual 
flight rules (VFR).
    The hours that permit only one unscheduled operation per hour 
represent the most concentrated peak operating hours at the airports 
when the demand is highest and delays, especially under adverse 
operating conditions, are also routinely at their highest levels. In 
these hours, scheduled operations have been curtailed and reduced under 
the applicable Orders. While the FAA prefers increasing the capability 
of the system to accommodate demand, rather than limiting access, in 
the case of both JFK and EWR, all operations have to be restricted to 
reduce delays and recognize capacity constraints. Many unscheduled 
operations have flexibility because of the nature of the operation and 
the New York City area has other airports that can be used for some 
unscheduled flights including Westchester, Islip, Republic, Stewart, 
Morristown, and Teterboro.
    Unscheduled operators, including air carriers conducting 
unscheduled operations at JFK and EWR, would need to review and 
possibly modify their plans based on the available reservations since 
the FAA cannot guarantee access to all operators without unduly 
increasing congestion. Unscheduled operators will need to consider the 
proposed reservation system at JFK and EWR, along with weight 
restrictions, noise abatement rules, and other limitations at other

[[Page 41159]]

airports in the New York City area when planning their flights.
    Under certain weather conditions and runway configurations, JFK and 
EWR have capacity to accommodate additional operations without causing 
significant additional delay. Scheduled operators cannot readily adjust 
the number or timing of arrivals and departures to take advantage of 
temporary fluctuations in the airports capacity during optimal weather. 
Unscheduled operators may have flexibility to make such adjustments and 
often conduct flights with short lead times. Therefore, when operating 
conditions permit, the FAA would make additional reservations 
available. The added capacity for unscheduled operations typically will 
not be determined more than eight hours in advance. There may also be 
times when the FAA has unallocated Operating Authorizations (under the 
Orders) for scheduled operations. The FAA would assess whether 
additional reservations could be made available for unscheduled 
flights. All reservations for unscheduled flights would be allocated 
using the procedures described below.
    Each reservation would be allocated on a 60-minute basis during the 
restricted hours. Although a 30-minute reservation may provide some 
additional delay reduction benefits by potentially avoiding peaks, the 
FAA has determined that greater latitude in timing should be permitted 
given the limited number of proposed reservations. The FAA's Airport 
Reservation Office (ARO) would receive and process all reservations 
requests. The reservations would be allocated on a first-come, first-
served basis, determined by the time the request is received by the 
ARO. Operators would primarily obtain reservations through the ARO's 
interactive computer system accessed via the internet or touch-tone 
telephone. This system is known as the Enhanced Computer Voice 
Reservation System (e-CVRS). Operators would provide the date/time of 
the proposed operation and other identifying information concerning the 
aircraft and the intended flight. The ARO would allocate through e-CVRS 
the added reservations that may be accommodated during periods of 
favorable weather and capacity conditions.
    The allocation mechanism for unscheduled operations proposed in 
this Order is similar to the procedures used to allocate slots for the 
``Other'' category under the HDR, and for unscheduled arrivals at 
Chicago's O'Hare International Airport (ORD). The proposed procedures 
are also similar to those used by unscheduled aircraft operators during 
Special Traffic Management Programs implemented by the Air Traffic 
Organization during periods of abnormally high traffic demand due to 
special events such as major conventions, sporting events, fly-ins, and 
other circumstances that cause temporary increases in airport demand. 
Consequently, many aircraft operators are familiar with the procedures 
that the FAA now proposes to adopt.
    Allocation of a reservation does not constitute an air traffic 
control (ATC) clearance nor does it obviate the need to file an IFR 
flight plan. Reservations would be required for both IFR and VFR 
operations. Although capacity typically increases in visual 
meteorological conditions, unscheduled VFR flights could still impact 
operations if concentrated in peak periods. The FAA would accommodate 
declared emergencies without regard to reservations. The filing of JFK 
or EWR as an alternate airport in flight plans, or an aircraft 
diversion absent a declared emergency, does not constitute a 
reservation. Non-emergency flights in support of national security, law 
enforcement, or similar requirements may be accommodated above the 
reservation limits with the prior approval of the FAA. The proposed 
text of the Order contains detailed instructions for requesting 
reservations via the Internet, telephone, or alternatively, by 
contacting the ARO. Reservations for regularly scheduled operations are 
authorized separately under the terms of the JFK and EWR Orders. The 
procedures described in this proposed Order would not be used for 
scheduled flights.
    The provisions of this proposal would apply to unscheduled 
operations at JFK and EWR conducted by foreign or domestic operators, 
regardless of whether the operation is domestic or foreign. We propose 
special provisions necessary to support flight operation for national 
security and similar purposes. In the case of the airports serving the 
New York City area, which is the headquarters of the United Nations, 
this may include diplomatic or other flights in direct support of 
foreign governments. The FAA would permit additional reservations, if 
necessary, to accommodate these flights but may approve an operation at 
a time other than the one initially requested. The FAA does not intend 
to categorically exclude these types of flights from the requirement to 
obtain a reservation prior to operation at JFK or EWR.
    In order to address the needs of public charter operators for 
advance planning and compliance with 14 CFR part 380, the FAA proposes 
to allow public charter operators to obtain a reservation up to six 
months in advance of a planned operation. Due to the limited number of 
reservations in the afternoon and evening periods, no more than one 
advance reservation would be allocated in any hour and no more than two 
advance reservations would be allocated in the 2 p.m. through 9:59 p.m. 
period. Public charter operators may need to consider operating at 
other times when capacity is available and may also obtain reservations 
within the 72 hour window. Carriers conducting charter operations or 
other unscheduled flights may use assigned Operating Authorizations 
under the JFK and EWR orders. Carriers could also lease Operating 
Authorizations from other carriers.
    The proposed provisions regarding reservations for public charter 
operations that are not regularly conducted are similar to the 
provisions applicable to public charter arrivals at Chicago's O'Hare 
International Airport under SFAR 105.\11\ Under the proposed provisions 
for public charter operations, the reservation is requested by and 
allocated to the public charter operator, regardless of whether the 
charter is operated by a U.S. or foreign air carrier. The public 
charter operator retains the discretion to select the direct air 
carrier. Thus, this proposed Order does not provide any incentive for a 
public charter operator to select a U.S. certificated carrier or a 
foreign air carrier.
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    \11\ 70 FR 39610 (July 8, 2005). FAA considers regularly 
conducted public charter operations to be similar to scheduled 
operations, even if they are not listed in the Official Airline 
Guide or other computer reservation systems. Thus, regularly public 
charter operations are covered by the JFK and EWR Orders, not this 
proposal.
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    Public charter operations that seek a reservation more than 72 
hours and up to 6 months in advance of the planned operation, would 
submit their request to the FAA's Slot Administration Office. A public 
charter operator would be required to provide the Slot Administration 
Office with a certification that any required prospectus has been 
accepted by the DOT in accordance with 14 CFR part 380 for the flight 
requiring a reservation; the call sign/flight number to be used for ATC 
communication by the direct air carrier conducting the operation; the 
date and time of the proposed arrival(s) or departure(s); origin 
airport immediately prior to JFK or EWR, or destination airport 
immediately following JFK or EWR; and aircraft type. A public charter 
operator also would be required to notify the Slot Administration 
Office of any changes to

[[Page 41160]]

the above information once a reservation has been allocated. If each of 
the reservations reserved for public charters has been allocated, a 
public charter operator may request a reservation through the ARO 
beginning 72 hours in advance in accordance with the same procedures as 
unscheduled operators.
    Historically under the HDR, military operations and public use 
aircraft operations were subject to the reservation requirement. 
Military and public aircraft would be subject to this proposed rule and 
would need reservations. As provided for in proposed paragraph 7(c) of 
the Proposed Order, the FAA will accommodate non-emergency flights in 
support of national security, law enforcement, or similar requirements 
above the administrative limit with prior approval by the FAA. 
Approvals for these reservations above the limits would be obtained 
from the ARO. We anticipate these exceptions to be limited. Since the 
operations must be approved in advance by the ARO, changes to proposed 
arrival times may be necessary to minimize impacts at the airport. We 
do not support a blanket exception for flights of this nature. The 
incremental addition of just a few flights during peak hours 
cumulatively affects the airport. Carriers conducting scheduled 
operations have had to either reduce operations or limit growth to 
reach the manageable level that exists today and most of the 
unscheduled arrivals at JFK and EWR will be covered by this proposed 
Order. While the FAA does not expect or intend for military and public 
aircraft operators at these airports to be unfairly burdened, we do not 
propose to categorically exclude all military and public aircraft 
flights from the coverage of this proposed Order while limiting others 
with similar time or operational constraints. The public interest is 
served by permitting access for these mission-critical flights but they 
still remain subject to the Order. We have also received comments in 
related rulemaking proceedings that some carriers operate under 
contracts to government agencies such as the Department of Defense to 
carry military troops or supplies, or the United States Postal Service 
to carry mail. These flights would require reservations but the FAA may 
treat qualified flights in a similar fashion to military or public 
aircraft. However, to the extent possible, military, public aircraft, 
and supporting flights should be conducted outside peak periods or 
possibly at other airports with less congestion than JFK and EWR.
    The proposed Order may affect the use of JFK and EWR as an 
alternate airport for flight planning purposes for unscheduled IFR 
flights. There are various factors affecting use that may be applicable 
to a particular airport. Due to runway configuration, certain aircraft 
may not be able to operate at an airport. There may be noise abatement 
rules, departure procedures, and other operational procedures that must 
be factored into the flight planning process and the selection process 
of an alternate airport. The proposed reservation system at JFK and EWR 
would be another such factor. It is a traffic management tool, and if 
an unscheduled IFR operation intended to use JFK or EWR as an 
alternate, that operator would have to be prepared to meet all the 
requirements necessary to operate at the airport, including a 
reservation. While JFK or EWR might be preferable as an alternate 
airport from the operator's point of view, it is not operationally 
expedient to permit unpredictable increases in demand by allowing the 
unrestricted use of JFK and EWR as alternate airports. The FAA 
recognizes that there may be circumstances when safety or other 
considerations lead an operator to arrive at JFK or EWR without a 
reservation and current regulations and enforcement procedures provide 
for those cases.

Enforcement of This Order

    The FAA may enforce the final Order through an enforcement action 
seeking a civil penalty under 49 U.S.C. 4630 1(a). Under that 
provision, a carrier that is not a small business as defined in the 
Small Business Act, 15 U.S.C. 632, is liable for a civil penalty of up 
to $25,000 for every day that it violates the limits set forth in the 
order. An individual or small business, as defined in the Small 
Business Act, is liable for a civil penalty of up to $10,000 for every 
day that it violates the limits set forth in the Order. The FAA may 
also file a civil action in U.S. District Court, under 49 U.S.C. 46106, 
46107, seeking to enjoin any entity from violating the terms of the 
Order.

Environmental Impact

    The agency order stating FAA policies and procedures with respect 
to the environmental impact of FAA activities, FAA order 1015.1E, 
identifies FAA actions that are categorically excluded from preparation 
of an environmental assessment or environmental impact statement under 
the National Environmental Policy Act in the absence of extraordinary 
circumstances. The FAA has determined that this Order qualifies for the 
categorical exclusion identified in paragraph 312d ``Issuance of 
regulatory documents (e.g., Notice of Proposed Rulemaking and issuance 
of Final Rules) covering administrative or procedures requirements 
(Does not include Air Traffic procedures; specific Air Traffic 
procedures that are categorically excluded are identified under 
paragraph 311 of this Order.)'' This Order, which proposes a 
reservation system to temporarily limit unscheduled operations pending 
a future rulemaking, is in the nature of a rule. No extraordinary 
circumstance exists that may cause a significant impact and therefore 
no further environmental review is required.
    Accordingly, with respect to unscheduled flight operations at JFK 
and EWR, the FAA proposes the following ordering language:
    1. This Order applies to persons conducting unscheduled operations 
to and from John F. Kennedy International Airport (JFK) and Newark 
Liberty International Airport (EWR) from August 28, 2008, through 
October 24, 2009, during the hours of 6 a.m., Eastern Time, through 
10:59 p.m., Eastern Time, Sunday through Saturday. This Order does not 
apply to helicopter operations.
    2. For purposes of this Order:
    ``Additional Reservation'' is an approved reservation above the 
operational limit in section 3. Additional Reservations are available 
for unscheduled operations only, and are allocated in accordance with 
the procedures described in paragraph 7 of this Order.
    ``Airport Reservation Office (ARO)'' is an operational unit of the 
FAA's David J. Hurley Air Traffic Control System Command Center. It is 
responsible for the administration of reservations for the ``other'' 
category of operations, i.e. unscheduled flights at High Density 
Traffic Airports (14 CFR, part 93, subpart k); unscheduled flights 
under Special Traffic Management Programs; unscheduled flights at 
LaGuardia Airport; the O'Hare Arrival Reservation Program (excluding 
reservations for certain public charter flights allocated in accordance 
with section 6 of Special Federal Aviation Regulation No. 105); and 
unscheduled flights at JFK and EWR (excluding reservations for certain 
public charter flights allocated in accordance with paragraph 6 of this 
proposed Order).
    ``Enhanced Computer Voice Reservation System (e-CVRS)'' is the 
system used by the FAA to make arrival and/or departure reservations at 
designated airports requiring reservations. Reservations are made 
through a touch-tone telephone interface, an Internet Web interface, or 
directly through the ARO.

[[Page 41161]]

    ``Public Charter'' is defined in 14 CFR 380.2 as a one-way or 
roundtrip charter flight to be performed by one or more direct air 
carriers that is arranged and sponsored by a charter operator.
    ``Public Charter Operator'' is defined in 14 CFR 380.2 as a U.S. or 
foreign public charter operator.
    ``Reservation'' is an authorization received in compliance with 
applicable Notices to Airmen (NOTAMs) and procedures established by the 
FAA to operate an unscheduled flight to or from JFK or EWR during the 
restricted hours specified in paragraph 1. ``Unscheduled Operation'' is 
an operation other than one regularly conducted and scheduled by an air 
carrier or other operator between JFK or EWR and another service point. 
Certain types of air carrier operations are considered unscheduled 
operations for the purposes of this rule, including but not limited to: 
Public, on-demand, and other charter flights; hired aircraft service; 
ferry flights; and other non-passenger flights.
    3. Except as provided for in paragraph 7 below, Unscheduled 
operations:
    a. To and from JFK are limited to two reservations per hour from 6 
a.m. through 1:59 p.m., one reservation per hour from 2 p.m. through 
9:59 p.m.; and two reservations per hour from 10 p.m. through 10:59 
p.m.
    b. To and from EWR are limited to two reservations per hour from 6 
a.m. through 11:59 a.m., one reservation per hour from 12 p.m. through 
9:59 p.m.; and two reservations from 10 p.m. through 10:59 p.m.
    4. Each person conducting an unscheduled flight to or from JFK or 
EWR during the peak hours described in paragraph 1 must obtain, for 
such flight operation, a Reservation allocated by the ARO or, in the 
case of public charters, in accordance with the procedures in paragraph 
6. A Reservation is not an air traffic control clearance. Additionally, 
it is the separate and sole responsibility of the pilot/operator to 
comply with all NOTAMs, security or other regulatory requirements to 
operate at JFK or EWR.
    5. The reservation procedures are as follows:
    a. The FAA's ARO will receive and process all Reservation requests 
for Unscheduled Operations at JFK and EWR during the effective period, 
except for requests for public charter flights made more than 72 hours 
and up to 6 months in advance of the planned operation. Requests for 
Reservations for such public charter flights are addressed in paragraph 
6. Reservations are assigned on a ``first-come, first-served'' basis 
determined by the time the request is received at the ARO.
    b. The filing of a request for a Reservation does not constitute 
the filing of an IFR flight plan as required by regulation. The IFR 
flight plan must be filed only after the Reservation is obtained, and 
must be filed in accordance with FAA regulations and procedures. 
Reservation numbers should be included in the remarks section of the 
flight plan. The ARO does not accept or process flight plans.
    c. Operators may obtain Reservations by (1) accessing the Internet; 
(2) calling the ARO's interactive computer system via touch-tone 
telephone; or (3) calling the ARO directly. The telephone number for 
the e-CVRS computer is 1-800-875-9694. This toll free number is valid 
for calls originating within the United States, Canada, and the 
Caribbean. ``Operators outside those areas may access e-CVRS by calling 
the toll number of (703) 707-0568. The Internet Web address for 
accessing e-CVRS is http://www.fly.faa.gov/ecvrs. Operators may contact 
the ARO at (703) 904-4452 if they have a technical problem making a 
Reservation using the automated interfaces, if they have a question 
concerning the procedures, or if they wish to'' make a telephone 
Reservation from outside the United States, Canada, or the Caribbean.
    6. The following provisions apply to Public Charter operations:
    a. No more than one Reservation in any hour will be available for 
assignment to Public Charters in advance of 72 hours prior to the 
operation.
    b. During the hours of 2 p.m. through 9:59 p.m., no more than two 
reservations total will be available for assignment to Public Charter 
operations in advance of 72 hours prior to operation.
    c. The Public Charter Operator may request a Reservation up to six 
months from the date of the flight operation. Reservations should be 
submitted to Federal Aviation Administration, Slot Administration 
Office, AGC-200, 800 Independence Avenue, SW., Washington, DC 20591. 
Submissions may be made by facsimile to (202) 267-7277 or by e-mail to 
7-AWA-slotadmin@faa.gov.
    d. The Public Charter Operator must certify that its prospectus has 
been accepted by the Department of Transportation in accordance with 14 
CFR part 380.
    e. The Public Charter Operator must identify the call sign/flight 
number or aircraft registration number of the direct air carrier, the 
date and time of the proposed operations, and aircraft type. For 
arrivals, the Public Charter Operator must also identify the origin 
airport immediately prior to JFK or EWR, and, for departures, the 
Public Charter Operator must also identify the destination airport 
immediately following JFK or EWR. Any changes to an approved 
Reservation must be approved in advance by the Slot Administration 
Office.
    f. If Reservations under paragraph (a) above have been assigned and 
are unavailable, the Public Charter Operator may request Reservations 
under paragraph 5.
    7. Notwithstanding the restrictions in paragraph 1:
    a. If the Air Traffic Organization determines that ATC weather and 
capacity conditions are favorable and significant delay is not likely, 
the FAA may determine that Additional Reservations may be accommodated 
for a specific time period. Generally, the availability of Additional 
Reservations will not be determined more than 8 hours in advance. 
Unused Operating Authorizations allocated for scheduled operations may 
also be made available as Additional Reservations for Unscheduled 
Operations. If available, Additional Reservations will be added to e-
CVRS and granted on a first-come, first served basis using the 
procedures described in paragraph 5 of this Order. Reservations for 
additional unscheduled operations are not granted by the local ATC 
facility and must be obtained through e-CVRS or the ARO.
    b. An operator that has been unable to obtain a Reservation at the 
beginning of the 72-hour window may find that a Reservation may be 
available on the scheduled date of operation due to Additional 
Reservations or cancellations.
    c. ATC will accommodate declared emergencies without regard to 
Reservations. Non-emergency flights in support of national security, 
law enforcement, military aircraft operations, public-use aircraft 
operations, or similar mission-critical flights may 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 waiver are available on the 
Internet at the e-CVRS Web site at http://www.fly.faa.gov/ecvrs.
    d. Reservations may not be bought, sold or leased.
    8. 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

[[Page 41162]]

Order. An individual or 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 entity from violating the terms of 
this Order.
    9. The FAA may modify or withdraw any provision in this Order on 
its own or on application by any operator for good cause shown.

    Issued in Washington, DC on July 8, 2008.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulation.
[FR Doc. E8-15961 Filed 7-16-08; 8:45 am]

BILLING CODE 4910-13-M