[Federal Register: January 8, 2009 (Volume 74, Number 5)]
[Notices]               
[Page 845-847]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ja09-64]                         

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2008-25755]

 
Operating Limitations at New York Laguardia Airport; Notice of 
Order

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of amendment to Order.

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SUMMARY: The Federal Aviation Administration (FAA) is amending the 
Order Limiting Operations at New York LaGuardia Airport (LGA) that 
published on December 27, 2006, and was amended on November 8, 2007, 
and August 19, 2008. This amendment extends the expiration date to 
October 24, 2009.

DATES: This amendment is effective on January 8, 2009.

FOR FURTHER INFORMATION CONTACT: For technical questions concerning 
this Order contact: Gerry Shakley, System Operations Services, Air 
Traffic Organization, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591; telephone: (202) 267-9424; 
facsimile: (202) 267-7277; email: gerry.shakley@faa.gov. For legal 
questions concerning this Order contact: Rebecca B. MacPherson, Office 
of the Chief Counsel, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591; telephone: (202) 267-7240; 
facsimile: (202) 267-7971; email: rebecca.macpherson@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

    Due to LaGuardia's limited runway capacity, the airport cannot 
accommodate the number of flights that airlines and others would like 
to operate without causing significant congestion. The FAA has long 
limited the number of arrivals and departures at LaGuardia during peak 
demand periods through the promulgation and implementation of the High 
Density Rule (HDR).\1\ By statute enacted in April 2000, the HDR's 
applicability to LaGuardia operations terminated as of January 1, 
2007.\2\
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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-2 1), Public Law 106-181 (Apr. 5, 2000), 49 U.S.C. 41715(a)(2).
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    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.\3\ Because the FAA could not complete that 
rulemaking by January 1, 2007, the FAA issued an Order on December 27, 
2006, adopting temporary limits pending the completion of the 
rulemaking.\4\ This Order was amended on November 8, 2007, and August 
19, 2008.\5\
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    \3\ 71 FR 51360 (August 29, 2006); Docket FAA-2006-25709. The 
FAA subsequently published a Supplemental Notice of Proposed 
Rulemaking. 73 FR 20846 (Apr. 17, 2008).
    \4\ 71 FR 77854.
    \5\ 72 FR 63224; 73 FR 48428.
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    Under the Order, as amended, the FAA (1) maintains the current 
hourly limits on scheduled (75) and unscheduled (three) operations at 
LaGuardia during peak period; (2) imposes an 80 percent minimum usage 
requirement for OAs with defined exceptions; (3) provides a mechanism 
for withdrawal of OAs for FAA operational reasons; (4) provides for a 
lottery to reallocate withdrawn, surrendered, or unallocated OAs; and 
(5) allows for trades and leases of OAs for consideration for the 
duration of the Order. Without the operational limitations imposed by 
this Order, the FAA expected severe congestion related delays would 
occur at LGA and at other airports throughout the National Airspace 
System (NAS) resulting from capacity constraints at LGA.
    On October 10, 2008, the FAA published the ``Congestion Management 
Rule for LaGuardia Airport'' final rule (``Congestion Management 
Rule'').\6\ The Congestion Management Rule would have become effective 
on December 9, 2008. The Congestion Management Rule imposes limitations 
on scheduled and unscheduled operations.
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    \6\ 73 FR 60574; amended by 73 FR 66517, Nov. 10, 2008.
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    Several parties petitioned for review of the Congestion Management 
Rule and sought a stay of that rule.\7\ On December 8, 2008, the United 
States Court of Appeals for the District of Columbia Circuit stayed the 
Congestion Management Rule, which rendered it temporarily ineffective. 
To prevent this Order from expiring prior while the litigation is 
pending, the FAA has concluded that it is necessary to extend

[[Page 846]]

the expiration date of this Order to October 24, 2009. This expiration 
date coincides with the expiration dates for the Orders limiting 
scheduled operations at John F. Kennedy International and Newark 
Liberty International Airports.
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    \7\ Port Auth. of New York & New Jersey v. Fed. Aviation Admin., 
No. 08-1329, consolidated with 08-1331, 08-1332, 08-1333, 08-1343, 
08-1344, 08-1355, & 08-1371 (D.C. Cir. filed Oct. 10, 2008).
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    Therefore, the FAA finds that notice and comment procedures under 5 
U.S.C. section 553(b) are impracticable and contrary to the public 
interest. The FAA further finds that good cause exists to make this 
Order effective in less than 30 days.

The Amended Order

    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 
on October 24, 2009.
    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-AWASlotadmin@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 
nonuse, surrendered to the FAA or are 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 \8\
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    \8\ Unscheduled operations are operations other than those 
regularly conducted by an air carrier between LaGuardia 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, the FAA 
adopts the following:
    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 
on October 24, 2009.
    3. No person can operate an aircraft other than a helicopter to or 
from LaGuardia unless the operator has received, for that unscheduled 
operation, 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

[[Page 847]]

available via the Internet at http://www.flyfaa.gov/ecvrs.
    4. Three (3) 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 would 
be 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. Nonemergency 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 are 
obtained through the ARO.
    9. Reservations cannot be bought, sold, or leased.

    Issued in Washington, DC on December 31, 2008.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. E8-31462 Filed 1-7-09; 8:45 am]

BILLING CODE 4910-13-M