STATE OF TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION DIVISION OF AIR POLLUTION CONTROL 9TH FLOOR L& C ANNEX 401 CHURCH STREET NASHVILLE, TENNESSEE 37243 1531 December 30, 2002 J. I. Palmer, Jr. Regional Administrator United States Environmental Protection Agency Region IV Sam Nunn Atlanta Federal Center 61 Forsyth Street, SW Atlanta, Georgia 3 03 03 Re: Clean Air Act  Early Action Compacts Dear Mr. Palmer:

This letter is to confirm that eight early action compacts have been forwarded under separate cover to Ms. Kay Prince of your staff. The early action compacts are for the following areas:

Memphis Area Nashville Area Chattanooga Area Knoxville Area Tri Cities Area Putnam County Lawrence County Haywood County In preparing these documents, we worked closely with the four local air pollution control programs of Tennessee and the states of Georgia, Mississippi and Arkansas. I understand that the other states are forwarding their component of an early action plan for an MSA shared with Tennessee to you under separate cover. Mr. Palmer December 30, 2002 Page Two If your staff should have any questions, they should contact my deputy, Quincy Styke III or me at ( 615) 532 0554. We look forward to working with EPA in the next few months as we determine the scope of the air quality improvement plans for the above listed areas. As the scope of those plans is developed, the signatories will make a determination to see if they wish to continue to remain in an early action compact.

Sincerely, I Barry R. Stephens, P. E. Technical Secretary Tennessee Air Pollution Control Board copy to: Kay Prince, EPA Region IV Tennessee Air Pollution Control Board Tennessee Tennessee Local Air Programs State of Georgia State of Mississippi State of Arkansas EARLY ACTION COMPACT FOR THE State of Tennessee and Haywood Co. Local Area Prepared for U. S. Environmental Protection Agency Region 4 Atlanta, Georgia 2 TABLE OF CONTENTS SECTION DESCRIPTION PAGE 1.0 PURPOSE OF THE EARLY ACTION COMPACT 3 2.0 BACKGROUND 3 2.1 Air Quality Status/ Trends 3 2.2 History of Local Air Quality Planning Efforts 4 2.3 The Early Action Compact/ Air Quality Improvement Plan 4 2.4 Regional Interstate Coordination 5 3.0 MEMORANDUM OF AGREEMENT 5 3.1 General Provisions 5 3.2 Air Quality Improvement Plan 6 3.2.1 Milestones and Reporting 6 3.2.2 Emissions Inventories 7 3.2.3 Modeling 8 3.2.4 Emission Reduction Strategies 8 3.2.5 Maintenance for Growth 9 3.2.6 Public Involvement 9 3.3 Local, State, and EPA Commitments 10 3.3.1 State and Local Commitments 10 3.3.2 State Commitments 10 3.3.3 TAPCB Commitments 11 3.3.4 EPA Commitments 11 3.4 Termination Provisions 13 3.5 Signatures 14 4.0 TABLE OF ACRONYMS AS USED IN THIS DOCUMENT 15 3 1.0 PURPOSE OF THE EARLY ACTION COMPACT This Early Action Compact ( EAC) serves as a Memorandum of Agreement among government agencies representing, collectively, local governments, state governments, including the Tennessee Air Pollution Control Board ( TAPCB), and the United States Environmental Protection Agency ( EPA). It is for the express purpose of commitment to EPA's " Protocol for Early Action Compacts Designed to Achieve and Maintain the 8 Hour Ozone Standard".

The " Protocol" allows for early voluntary 8 hour air quality improvement plans to be developed through a " Compact" between Local, State, and EPA officials for areas that are in attainment for the 1 hour ozone standard, but approach or monitor exceedances of the 8 hour standard. All areas in Tennessee are currently designated in attainment of the 1 hour ozone standard and, based on preliminary data for 2000 through 2002 a number of areas may not be in attainment of the 8 hour ozone standard. Thus, the areas are eligible and a good candidate for the Early Action Compacts.

The EAC requires the development of an early action plan that includes all necessary elements of a comprehensive air quality plan, but is tailored to local needs and driven by local decisions. As long as all Compact terms and milestones are met, the effective date of nonattainment designations is deferred, as are related requirements. The early action approach will offer a more expeditious timeline for achieving emissions reductions than EPA's expected 8 hour implementation rulemaking, while providing " fail safe" provisions for the area to revert to the traditional State Implementation Plan ( SIP) process if specific milestones are not met. Currently, EPA plans to make the designations for the 8 hour ozone standard in 2004.

According to the latest EPA guidance, this Compact is to be executed no later than December 31, 2002. The air quality improvement plan required of the Compact is to be completed and its elements submitted to the EPA no later than December 31, 2004 to be incorporated into the Tennessee State Implementation Plan.

2.0 BACKGROUND 2.1 Air Quality Status/ Trends in Tennessee The entire State of Tennessee is currently in attainment for all pollutants with established National Ambient Air Quality Standards. Portions of the State however, are not expected to be in attainment with the 8 hour ozone standard by the end of 2002.

Table 1 provides a summary of Haywood Counties 4th highest 8 hour average readings for 2000, 2001, and 2002 and the design value for the three year period. A design value of 85 ppb or greater represents a nonattainment situation, thus the Haywood County area is potentially classified with a nonattainment designation. 4 TABLE 1 Summary Data for 8 Hour Ozone at the Monitoring Sites Within the Haywood County Area for 2000 2002 County Site Name MONITOR ID 2000 4th Max. 2001 4th Max. 2002 4th Max. Design Value PPM Haywood Co 1741 Hillville Loop Road 470750003  1 0.093 0.081 0.085 0.086 Data Source Table 1. Final 2002 Data. There are no other ambient air ozone monitors in the area 2.2 History of Local Air Quality Planning Efforts Haywood County is currently attaining the 1 hour and is not expected to be in attainment for the 8 hour ozone air quality standard in 2002. No significant ozone air quality planning requirements have had to be implemented in this area in the past.

2.3 The Early Action Compact/ Air Quality Improvement Plan Areas formally declared in violation of the NAAQS are designated " nonattainment areas" and must meet certain Clean Air Act requirements such as:

A. New Source Review   requires a comprehensive review of new or expanded industrial operations to minimize air pollution. Emissions controls requirements are more stringent and costly than for attainment areas. B. Transportation Conformity   requires a demonstration that regional longrange transportation plans will not negatively affect progress toward attainment or federal highway funds can be withheld. C. Rate of Progress Requirements   a certain percentage of pollutants must be reduced each year. D. Failure to Attain   consequences of failure to reach attainment by the specified date include stricter control measures and the potential for stiff penalties. E. 10 year Maintenance Plan   includes additional or continuing mandatory programs for 10 years following attainment.

The area's participation in the Early Action Compact Protocol offers several key advantages relative to the traditional nonattainment SIP process. These include:

A. The EAC Protocol is designed to achieve clean air sooner than would be expected under the traditional nonattainment process. 5 B. The EAC Protocol affords the signatories greater flexibility in selecting emission reduction measures and programs that are best suited to local needs and circumstances. C. The EAC Protocol ensures deferral of nonattainment designation and related requirements, thereby avoiding the stigma, cost, and economic development impacts associated with a nonattainment designation while the protocol remains in effect.

The cornerstone of the Early Action Compact Protocol is the Air Quality Improvement Plan ( AQIP) developed to reduce local ozone forming emissions and lower summertime ozone levels. It is the official attainment/ maintenance plan for the area to be developed under the EAC Protocol agreement. It is a comprehensive air quality plan that will be incorporated into a formal Tennessee State Implementation Plan, and the area will be required to carry out this plan just as in nonattainment areas. Unlike a nonattainment area SIP plan, though, the AQIP will be tailored to local needs and driven by local decisions. The specific elements required of the AQIP are described below in Section 3.2. According to the EAC Protocol, it must be completed and submitted by no later than December 31, 2004, to the EPA to be incorporated into the State SIP. However, recent guidance from EPA requires that the local plan must be complete and submitted to the State and EPA by March 31, 2004 to provide adequate time for Tennessee to adopt the plan as a State rule prior to submittal to EPA as a SIP revision by December 31, 2004.

2.4 Regional Interstate Coordination Tennessee has also participated in the Southern Appalachian Mountains Initiative and in VISTAS to coordinate air quality management in a multi state fashion in East Tennessee. Tennessee is currently participating in ATMOS with the neighboring states in West Tennessee 3.0 MEMORANDUM OF AGREEMENT This Early Action Compact ( EAC) is a Memorandum of Agreement between EPA and the local governments in the Haywood County area, County Executives and the state government represented by the TAPCB.. It is for the express purpose of developing and implementing an Air Quality Improvement Plan ( AQIP) that will reduce ozone levels and achieve and maintain compliance with the 8 hour ozone standard in the Haywood County area.

3.1 General Provisions A. The signatory parties commit to develop, implement and maintain the AQIP according to Protocol for Early Action Compacts endorsed by EPA on June 19, 2002 ( as supplemented in a letter dated October 18, 2002, from Gregg Cooke, EPA, to Robert Huston, Texas Commission on Environmental Quality), and adhere to all terms and conditions stated in the Protocol. On November 14, 2002, EPA finalized its Early Action 6 Compact guidance memorandum for state and local governments that spelled out specific milestones and tasks for a state or local government to qualify for an early action compact. B. If the area fails to meet all the terms of the EAC, including meeting agreed upon milestones, then it will forfeit its participation and will be subject to designation as nonattainment according to EPA's 8 hour ozone implementation rules. C. Before formal adoption into the Tennessee SIP, this agreement may be modified or terminated by mutual consent of all signatory parties, or any party may withdraw from the agreement. The local government signatories will approve the AQIP before it is submitted to the TAPCB for inclusion in the SIP. Once the AQIP elements are incorporated into the SIP, any modifications will be treated as SIP revisions. D. The signature date of the EAC is the start date of the agreement's term and the agreement remains in effect until December 31, 2007, except as specified above.

3.2 Air Quality Improvement Plan The state and local governments agree to develop and implement an AQIP that will demonstrate attainment of the 8 hour ozone standard by December 31, 2007, and maintenance until at least 2012. The state and local governments will develop this plan in coordination with EPA, stakeholders, and the general public. The AQIP will include a process monitor and maintain long term compliance with the standard. The AQIP will be finalized and submitted to EPA by March 31, 2004 for submittal by December 31, 2004, for SIP amendment. If a development or issue arises that may impact performance or progress toward milestones, the state or local government signatories will immediately notify all other signatories.

The AQIP will address the following major elements.

3.2.1 Milestones and Reporting To facilitate performance monitoring and communication with the EPA, TAPCB, and stakeholders, the EAC protocol requires that the EAC include clearly measurable milestones for the development and implementation of the AQIP. Major milestones established for this EAC are shown below in Table 2. The individual participants representing their respective area will assess and report all progress relative to these milestones to the state which in turn will report all progress relative to these milestones in a regular, public process at least every six months.

Table 2. Major Milestones for the Tennessee State and Local Early Action Compact.

MILESTONE DATE EAC Memorandum of Agreement Executed 31DEC02 7 Identify & Describe Likely Local Control Measures Being Considered 16JUN03 Initial Progress Report Prepared and Updated Every 6 Months 23JUN03 Emissions Inventories Completed 30JUN03 Base Case/ Future Case Modeling Completed 30SEP03 Control Scenarios Modeling Completed 30NOV03 Adoption of Emission Reduction Measures 30JAN04 Completion/ Adoption of Air Quality Improvement Plan and Submittal to the EPA for Review 31MAR04 Submittal of SIP 31DEC04 All Local Emission Reduction Strategies Implemented 31MAR05 Review Progress in Implementation of Reduction Strategies 30JUN06 EAC Expires 31DEC07 Annual Reviews of Growth 2008 2012 3.2.2 Emission Inventories Base case( s) and related future year ( 2007) emissions inventories will be developed by June 30, 2003. These inventories will be used for input for SIP quality regional airshed modeling, thus they must be developed using tools that are suitable for this purpose and approved by both TDEC and EPA. The base case( s) inventories will be developed for 1999 or later episodes selected to be representative of typical ozone exceedance situations as determined with EPA episode selection guidance. The inventories will include:

A. Point source emissions   employing TDEC Emission Inventory System data. B. Onroad mobile source emissions   employing Mobile 6 emission modeling based on appropriate locally modeled transportation data for the Haywood County areas. C. Nonroad sources  model data adjusted for local equipment usage. D. Area sources  data based, where possible, on local survey data. E. Biogenic sources   inventory developed employing methods acceptable to TDEC and EPA. 8 Where practicable, trends in emissions from the various source categories will be analyzed to provide a better understanding of emissions trends statewide and to facilitate verification of accuracy of the inventories.

3.2.3 Modeling All modeling will be based on the " Draft Guidance on the Use of Models and Other Analyses in Attainment Demonstrations for the 8 hour Ozone NAAQS" ( EPA 454/ R 99 004, May 1999). The modeling will follow the guidance as facilitated by the EPA Regional Office. Regional airshed modeling for the Air Quality Improvement Plan will employ an EPA accepted modeling technique and appropriate EPA guidance for SIPlevel modeling. Modeling protocol development, episode selection, model input preparation, and actual model simulations will involve close collaboration and agreement of the participating representatives, TAPCB, and EPA. As mentioned previously, there may also be opportunity to coordinate with representatives of other planning areas for efficiency and consistency in regional modeling efforts.

Base case and future case ( 2007) modeling are scheduled to be completed by September 30, 2003. Control strategy modeling including direction ( e. g. effectiveness of VOC vs. NOx controls) and range finding ( percent reduction scenarios   i. e. needed reduction levels) as well as control strategies scenarios are scheduled to be completed by November 30, 2003.

All adopted Federal and State emission reduction measures that have been or will be implemented by March 31, 2005, will be included in base case, future case, and control strategy modeling.

Modeling efforts will be carefully documented. Model performance will be assessed to assure conformance with EPA's accepted model accuracy criteria. A technical support document describing the modeling effort and attainment demonstration will be part of the AQIP submittal.

3.2.4 Emission Reduction Strategies Following research of various emission reduction strategies and, with guidance provided by testing of various strategies with the developed regional airshed modeling, the participating stakeholders will select and adopt local emission reduction measures necessary to support demonstration of attainment of the 8 hour ozone standard by December 31, 2007. The research, selection, and adoption process for the local measures is scheduled to be completed by March 30, 2004. However, recent EPA guidance requires that likely local measures being considered for the AQIP should be identified and described by June 16, 2003.

The selected local emission reduction measures will be specific, quantifiable, and enforceable. Specific implementation dates, as well as detailed documentation and reporting processes will be provided for each. 9 The local emission reduction measures will be incorporated by the TAPCB into the SIP and submitted to EPA for review and approval. In the event the area desires to add, delete or substitute measures after SIP promulgation, the area will request a modification of the AQIP. Such modification will be treated as a SIP revision and facilitated by the Tennessee Department of Environment and Conservation ( TDEC).

3.2.5 Maintenance for Growth The AQIP will include a component to address emissions growth at least 5 years beyond December 31, 2007, ensuring that the previous nonattainment or attaining participating areas will remain in attainment of the 8 hour standard during that period. The future attainment maintenance analysis may employ one or more of the following or any other appropriate techniques necessary to make such a demonstration:

A. Modeling analysis showing ozone levels below the 8 hour standard in 2012; B. An annual review of growth ( especially stationary and mobile sources) to ensure control measures and growth assumptions are adequate; C. Identification and quantification of federal, state, and/ or local measures indicating sufficient reductions to offset growth estimates.

The AQIP will also detail a continuing planning process that includes modeling updates and modeling assumption verification ( particularly growth assumptions) where changes in emissions inventories and growth assumptions warrant. The continuing planning process will consider and evaluate:

A. All relevant actual new point sources and major modifications of existing sources; B. Impacts from increased emissions from potential new source growth; C. Future transportation patterns and their impact on air quality in a manner that is consistent with the most current adopted Long Term Transportation Plan and most current estimate of future local motor vehicle emissions as adopted in the Putnam County conformity documents approved by the U. S. Department of Transportation and EPA.

If the review of growth demonstrates that adopted emission reduction measures are inadequate to address growth in emissions, additional measures will be added to the AQIP through the SIP revision process.

3.2.6 Public Involvement Public involvement will be conducted in all stages of the planning and implementation process. Public education programs will be used to raise awareness regarding issues, opportunities for involvement in the planning process, implementation of control strategies, and any other issues important to the participants. Interested stakeholders will 10 be involved in the planning process as early as possible. They will be provided advance notice of meeting times, locations, and agenda for planning meetings. Plan drafts will be publicly available, and the document development process will have sufficient opportunities for comment from all interested stakeholders. . Stakeholders will include, at a minimum, local environmental groups, Chambers of Commerce and other business groups, and the transportation community. Public comment on the proposed final AQIP will follow the normal SIP revision process as implemented by TAPCB. Semi annual reports detailing, at a minimum, progress toward milestones will be publicly presented and available.

3.3 Local, State, and EPA Commitments 3.3.1 State and Local Commitments The State, including TDEC, and Local Governments will jointly hold responsibility for the development and implementation of the early action plan ( Air Quality Improvement Plan), as well as for maintaining communication with all parties to the Compact. The Local Air Pollution Control Programs will be the lead agencies in their respective counties. Other responsibilities include:

A. Drawing up the Compact, which embodies the requirements described in the EAC Protocol, including a time line for milestones; B. Completing and signing by all parties of the Early Action Compact no later than December 31, 2002; C. Completing and adopting the emission reduction measures elements of the AQIP as part of the SIP no later than March 31, 2004. D. Notifying parties as soon as possible if Compact milestones will be missed or have been missed; E. Notifying parties as soon as possible if Compact modification/ termination is to be requested.

3.3.2 State Commitments The State, represented by TDEC and TDOT, will provide support to all participants throughout the planning and implementation process. Areas of support will include:

A. Technical assistance in the development of emission inventories, modeling process, trend analysis, and quantification and comparison of emission reduction strategies; B. Necessary information on all Federal and State adopted emission reduction measures which affect the area; C. Critical third party review of emissions inventory, modeling, and selfevaluation work; 11 D. Technical and strategic assistance, as appropriate, in the selection and implementation of emission reduction strategies; E. Technical and planning assistance in developing and implementing processes to address the impact of emissions growth beyond the attainment date; Maintenance of monitors and reporting and analysis of monitoring data; F. Support for public education efforts; G. Coordinate communication between stakeholders and EPA to facilitate continuing EPA review of local work; H. Propose a modification of the SIP to adopt the appropriate elements of the AQIP; I. Adoption of emission reduction strategies into the SIP as expeditiously as possible. The final complete SIP revision must be completed, adopted, and submitted by the state to EPA by December 31, 2004.

3.3.3 Tennessee Air Pollution Control Board Commitments The Tennessee Air Pollution Control Board, in consultation with TDEC, the local governments, interested stakeholders and members of the public will help to ensure that actions under the Early Action Compact are tailored to the needs of the Haywood County area that adequate progress is attained under the AQIP. In consultation with the aforementioned, the Tennessee Air Pollution Control Board will:

A. By February 1, 2003 develop a plan for routine state level consultation with members of the environmental, public health and business communities as well as opportunities for timely public input and comment. B. By March 1, 2003, develop measurable goals and milestones, building on those listed in Table 2: identify the consequences of failure to achieve goals and milestones and provide samples of acceptable control measures for the AQIP. C. Every 6 months conduct a formal review of progress attained under the EAC, including determining whether the terms of the EAC, in general and with respect to each local area, should be modified or revoked.

3.3.4 EPA Commitments The EPA will recognize the State and Local commitment to voluntarily adopt an early, substantive, scientifically based and enforceable attainment plan with early 12 implementation of control measures by becoming a party to the Early Action Compact developed in conformance with the EPA's EAC Protocol. EPA responsibilities include:

A. Provided that the monitor in the Haywood County area reflects attainment by December 31, 2007, EPA will move expeditiously to designate those areas as attainment and impose no additional requirements other than those federally approved SIP revisions undertaken pursuant to this Early Action Compact. The Office of Management and Budget ( OMB) has announced changes for Core Based Statistical Areas ( 65 FR 82228,12/ 27/ 2000 FR ) and plans to publish new lists of areas in June 2003. EPA will be evaluating OMB's new lists after they are released to determine whether they concur and/ or can still use OMBs' new definition for purposes of the starting point for nonattainment area boundaries. At that time EPA will also look at the nonattainment boundary guidance memo of 3/ 28/ 2000 to see if it might need updating based on the OMB work. B. If the monitor in the Haywood County area reflects nonattainment when EPA's 8 hour implementation guidelines call for designations or at any time during the area's participation in the Early Action Compact, EPA will defer the effective date of nonattainment designation and related requirements for the area as long as all terms and milestones of the compact are being met, including submission of the early action SIP revision by 2004. C. The EPA will provide technical assistance to the Haywood County area participants in the development of the AQIP. D. The EPA will move quickly to review and approve completed plans by no later than nine months after submission of the SIP revision by TDEC. E. Provided that the area has progressed from nonattainment to attainment status by December 31, 2007, EPA will move expeditiously to designate the area as attainment and impose no additional requirements. F. If at any time the area does not meet all the terms of this Compact, including meeting agreed upon milestones, then it will forfeit its participation and be designated ( or re designated if necessary) according to EPA's 8 hour ozone implementation guidelines. The EPA will offer such an area no delays, exemptions or other favorable treatment because of its previous participation in this program. G. If the monitor identified in Table 1 violates the standard after December 31, 2007, the area will be designated nonattainment. TDEC will then submit a revised attainment demonstration SIP revision according to the 13 Clean Air Act ( CAA) and EPA's 8 hour implementation rule, unless the 8 hour implementation schedule requires SIPs from 8 hour nonattainment areas before December 31, 2008. In that event, a revised attainment demonstration SIP revision for the participating area will be due as soon as possible but no later than December 31, 2008. In no event will EPA extend the attainment date for the area beyond that required by the CAA and/ or EPA's 8 hour implementation rule. H. The region will not be allowed to renew this EAC after December 31, 2007, or to initiate a new compact if it has previously forfeited its participation.

3.4 Termination Provision:

This Early Action Compact is offered to EPA in good faith as a way to achieve clean air quicker with the opportunity to tailor a control plan in the most beneficial way possible for the Haywood County area. It is expressly declared that prior to adoption of early control measures into the Tennessee SIP, a signatory to this Early Action Compact may opt out of the process by filing a written notice to the other signatories. In filing said written termination notice, the terminating entity will revert to the routine attainment designation process provided in the Clean Air Act and its implementing regulations in effect at the time of the signing of this document. If any of the participants or Haywood County, opt out of this process, the Haywood County area Compact shall be terminated. It is also recognized that if EPA deems the terminating entity's emissions are critical to the success of an Early Action Compact, EPA may nullify the Early Action Compact for the entire MSA.

In evaluating certain public participation documents that were filed as part of the process that created this document, it is apparent that not all entities agree with the concept of an Early Action Compact. If litigation should ensue that results in the inability of any entity to live up to the commitments made including actual SIP revisions, then the signatories shall have the option of withdrawing all or part of any SIP revision given to EPA as part of the Early Action Compact and EPA shall honor that withdrawal. 15 4.0 Table of Acronyms as Used in this Document MSA Metropolitan Statistical Area EAC Early Action Compact EPA Environmental Protection Agency TAPCB Tennessee Air Pollution Control Board SIP State Implementation Plan ppb parts per billion GVWR Gross Vehicle Weight Rating OBD II On Board Diagnostics I/ M Inspection and Maintenance TVA Tennessee Valley Authority NAAQS National Ambient Air Quality Standards AQIP Air Quality Improvement Plan SAMI Southern Appalachian Mountain Initiative VISTAS Visibility Improvement State and Tribal Association of the Southeast VOC Volatile Organic Compound NOX Nitrogen Oxide TDEC Tennessee Department of Environment and Conservation MPO Metropolitan Planning Office TDOT Tennessee Department of Transportation CAA Clean Air Act


[Federal Register: May 21, 2008 (Volume 73, Number 99)]
[Notices]
[Page 29550-29566]
[DOCID:fr21my08-104]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

[Docket No. FAA-2008-0221]

Operating Limitations at Newark Liberty International Airport

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Order Limiting Scheduled Operations at Newark Liberty
International Airport.

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SUMMARY: In a proposed order published on March 18, 2008, the Federal
Aviation Administration (FAA) tentatively identified the parameters of
an order that would temporarily limit scheduled flight operations at
Newark Liberty International Airport (EWR).\1\ The FAA issued the
proposal as a result of persistent congestion and delays at EWR during
the peak operating hours, as well as a dramatic projected increase in
flight delays at the airport during the summer of 2008 if proposed
schedules were implemented as requested by carriers. After evaluating
the written comment submitted to the public docket in this matter, the
FAA is issuing this final Order, which will take effect at 6 a.m.,
Eastern Time, on June 20, 2008.
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    \1\ 73 FR 14,552 (Mar. 18, 2008).
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    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.

FOR FURTHER INFORMATION CONTACT: Gerry Shakley, System Operations
Services, Air Traffic Organization; telephone--(202) 267-9424; e-mail--
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    EWR has historically experienced a significant number of delays
relative to the other airports in the domestic system. When ranked
according to the proportion of delayed operations, EWR has frequently
been the most delayed airport in the country. Moreover, EWR's on-time
performance has deteriorated in recent years. The percent of on-time
gate arrivals within 15 minutes of the scheduled time decreased from
70.66% in fiscal year (FY) 2000 to 63.97% in FY 2006 and to 61.71% in
FY 2007. The average daily counts of arrival delays greater than one
hour were 54 in FY 2000; 79 in FY 2006; and 93 in FY 2007, an increase
of almost 18% in the last fiscal year alone.
    One of the factors contributing to the EWR's declining performance
has been the carriers' scheduling practices at the airport. Daily
operations have been relatively stable while delays have continued to
increase. In Fiscal Year (FY) 2000, there were 1,253 average daily
operations. In FY 2007, there were 1,219 average daily operations, a
decrease of about 3 percent. Demand during the most desirable peak
hours, however, approached or exceeded the average runway capacity
resulting in volume-related delays. The cumulative impact of such
scheduling by all carriers can result in delays even under ideal
weather conditions. However, the resulting delays become even more
pronounced when weather or other operating conditions reduce the
airport's capacity below optimal levels.
    During the summer of 2007, in addition to the delays experienced at
EWR, another New York-area airport, John F. Kennedy International
Airport (JFK), also experienced significant congestion-related delays.
Based on both airports' summer 2007 performance, and in the absence of
any major capacity enhancing projects, the FAA designated the 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.\2\ In designating
the airports as IATA Level 2, Schedules Facilitated 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. With respect to EWR, the FAA specifically noted that
it intended to work with carriers on the flight operations planned from
7 until 10 a.m. and from 2 until 10 p.m., Eastern Time.\3\ The FAA
further specified that it was considering its options to ``further
address congestion and improve operational performance at EWR,
including the timing of flights at the airport and their impact on the
airport's operation.'' \4\
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    \2\ 72 FR 54,317 (Sept. 24, 2007).
    \3\ Id., at 54,318.
    \4\ Id.
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    The information that U.S. and foreign air carriers reported to the
FAA regarding their proposed operations at EWR reflected a significant
increase in scheduled operations, especially during the most
oversubscribed hours when the airport routinely experienced delays.
U.S. and foreign air carriers requested about 100 new operations,
adding to the schedules that produced pronounced delays during summer
2007. The proposed schedules in the afternoon and evening period were
of the greatest concern. For example, several consecutive hours would
have had demand for arrivals or departures in the mid-90s and others in
the upper 80s. By contrast, EWR's adjusted average airport capacity
reflects that, from September 2006 through August 2007, the airport
handled or was capable of handling an average of 83 operations per
hour.
    The FAA modeled the level of delays that passengers transiting EWR
could expect if the carriers were to operate the summer 2008 schedules
that they proposed. When compared with EWR's modeled baseline delays
during the summer of 2007, the average arrival delays would have
increased 38% to 35 minutes; the average number of arrival delays of at
least one hour would have increased 50%; and the mean arrival delay
would have reached almost 80 minutes by 7 p.m. The proposed schedules
also would have negatively affected departures.\5\
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    \5\ As with previous aircraft queuing model runs produced for
the FAA by the MITRE Corporation's Center for Advanced Aviation
System Development, it was assumed that no scheduled operation was
cancelled.
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    In response to the U.S. and foreign air carriers' proposed summer
2008 schedules, the FAA held discussions with many of the carriers to
validate their schedule requests and to ask them to reconsider their
proposed timings in light of the airport's capacity limitations.
Although there were some modest revisions to the proposed schedules, it
was clear that demand would continue to exceed capacity without further
action, as some carriers indicated that they would operate as proposed
despite the FAA's concern about the impact on delays. In addition, the
FAA anticipated that carriers might try to add still more operations at
EWR when a forthcoming operational limitation took effect at nearby
JFK,\6\ in effect shifting a portion of that problem to an already
oversubscribed EWR. As a result, the FAA elected to modify EWR's IATA
designation to a Level 3, Coordinated Airport for summer 2008.\7\ This
designation provided notice, in accordance with international norms,
that the FAA would focus proposed new operations at the airport on
hours during which airport capacity is

available and to deny proposed new operations during oversubscribed
hours. Some carriers, including Continental Airlines, the primary hub
carrier at EWR, moved flights from historic peak hours to less
congested times in order to assist with delay reduction. The FAA
published in the appendix to the proposed order the results of the
discussions with U.S. and foreign air carriers and our approved
schedules reflecting very limited peak-hour growth.\8\ While the
proposed order, through the appendix, provided the public with notice
of the state of the FAA's discussions with carriers under the IATA
Worldwide Scheduling Guideline process, the principal purpose of the
proposed order was to describe and to raise for public comment a series
of practical considerations that the FAA must address when it
undertakes to place a temporary limit on operations at an airport.
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    \6\ 73 FR 3,510 (Jan. 18, 2008) (order limiting scheduled
operations at JFK).
    \7\ 72 FR 73,418 (Dec. 27, 2007).
    \8\ 73 FR at 14,558-65.
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II. Summary and Analysis of the Comments

    As of May 1, 2008 the FAA received in the public docket 78 written
comments on the FAA's proposed order. The vast majority of the
commenters support the FAA's effort, as a general matter, to control
congestion and delays at EWR. A small number of comments question
certain aspects of the FAA's proposal.
    One commenter--Virgin America, Inc.--expresses its preference that
the FAA had followed a different process in limiting operations at EWR.
Virgin America specifically would prefer that the FAA had conducted a
scheduling reduction meeting for scheduled operations at EWR, as the
FAA did in limiting scheduled operations at JFK.
    The FAA holds a number of options in controlling congestion at a
particular airport. As the FAA articulated when it requested the
carriers' anticipated summer 2008 schedules involving EWR, the FAA
considered them all in selecting its course with respect to EWR. There
is no requirement that the FAA pursue a particular avenue in addressing
airport congestion, and small differences in a particular airport's
operations can argue for a slightly different solution. The FAA's
election to improve the carriers' scheduling and EWR's performance
through a combination of the IATA scheduling process and a voluntary
drawing down of carriers' schedules during the oversubscribed hours was
a rational method of addressing congestion-related delay at the
airport. Moreover, and equally important, it was both an expedient
course and a permissible exercise of the FAA's discretion.
    Nor is it apparent that conducting a scheduling reduction meeting
like that held for JFK would have led to a different result than that
expressed in the proposed order for EWR. The FAA published both JFK's
and EWR's designation as IATA Level 2, Schedules Facilitated Airports
in the same document.\9\ The starting point for the FAA's discussions
with carriers at the subsequent scheduling reduction meeting for JFK
was the proposed schedules that the carriers submitted pursuant to
JFK's designation as an IATA Level 2, Schedules Facilitated Airport.
Many carriers at JFK, including those with the largest presence at the
airport, agreed to reduce flights during the most desirable hours in
order to improve operational performance and to benefit all operators.
At the same time, the FAA ensured that other carriers were restricted
from adding new flights during the previously oversubscribed hours,
which would have offset the delay reduction that the other carriers'
schedule adjustments achieved. The FAA accommodated a few timely
requested new operations during the hours of peak demand.
---------------------------------------------------------------------------

    \9\ Although Virgin America identified its intention to conduct
operations at JFK during summer 2008, it filed no such intention in
response to EWR's IATA Level 2 designation. After the FAA declared
EWR an IATA Level 3, Fully Coordinated Airport, Virgin America
indicated for the first time a desire to provide scheduled service
there.
---------------------------------------------------------------------------

    The FAA applied the same general policy approach at EWR, with the
objective of preventing a further degradation in operational
performance by keeping demand within the average available capacity. We
recognize Virgin America's position that it did not take advantage of
the IATA schedule submission requirement or the initial ensuing IATA
schedule discussions regarding EWR. As a result, in consideration of
Virgin America's newly advanced request for scheduled operations, the
FAA attempted to accommodate Virgin America during the hours that are
scheduled below the airport's adjusted average hourly capacity. The
discussions leading to the FAA's proposed order, including the
conversations with Virgin America, necessarily had the same tenor as a
scheduling reduction meeting's discussions. If the FAA were to conduct
a scheduling reduction meeting for EWR, we do not expect that the
product would differ materially from the results published in the
appendix to the proposed order.
    Virgin America and the Air Carrier Association of America also
state that the proposed order diminishes the ability of new entrants to
compete at EWR and strengthens the position of EWR's hub carrier. In
particular, Virgin America notes the potential that more established
carriers could abuse the proposed mechanisms of retiming operations and
permitting operational growth at EWR. Virgin America and the Air
Carrier Association of America recommend a periodic withdrawal and
redistribution of Operating Authorizations to stimulate competition. We
emphasize, however, that we intended the proposed order to describe a
short-term vehicle to preserve realistic scheduling at EWR while longer
term solutions are applied to relieve EWR's congestion and delay. The
mechanisms that we identified to permit operational flexibility and
growth within the airport's capacity, if applied fairly and without
discrimination, should provide opportunities during the relatively
brief duration of this final Order. While we anticipate that all
carriers will conduct their transactions under this Order in a
principled way, the FAA will closely monitor the operation of the
airport and the application of the mechanisms for the trade and lease
of Operating Authorizations while this Order remains in effect. If we
detect unfair or anticompetitive behavior, we will not hesitate to take
corrective action and to propose more stringent controls on such
transactions in the future.
    One commenter--Porter Airlines, Inc.--requests an amendment to the
appendix of the proposed order to grant it fourteen total operations at
EWR during the time periods that it originally requested of the FAA.
Porter contends that it received an approved schedule from the EWR
Terminal/Gate Schedules Facilitator and that the FAA should allow it to
operate that schedule. Porter, as well as the Air Transport Association
of Canada, also contends that the FAA's proposed allocations would
violate the U.S.-Canada Open Skies Agreement. In a supplemental filing,
Porter asks the FAA to reconsider the allocation of Operating
Authorizations to Porter if any Operating Authorization becomes
available in the future, such as by the revised operating plans of
other carriers.\10\
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    \10\ Eos Airlines, for example, recently ceased operations after
April 27, 2008. Eos does not have historic scheduled operations at
EWR, and it has not commenced the operations it planned to conduct
at EWR this summer and for which the FAA proposed to allocate
Operating Authorizations. Because Eos has ceased to conduct
scheduled operations, the FAA is not allocating Operating
Authorizations to Eos in the appendix to this final Order.

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

    Throughout the process that led to the FAA's proposed order, the
FAA's representatives were candid during and after the IATA Schedules
Conference in November 2007 regarding the potential for restricted
operations at EWR, particularly in the already oversubscribed afternoon
and evening hours. The FAA expressly made Porter aware that it was not
granting approval, based on runway capacity, for all Porter's proposed
new operations during the peak hours, that the FAA was continuing to
seek voluntary moves by carriers to retime schedule requests, and that
any plans to conduct scheduled operations during those periods would be
at Porter's own risk. Consistent with the FAA's preliminary assessment
of the operational impact of the carriers' proposed schedules, the FAA
determined that it was necessary to modify EWR's designation from Level
2 to Level 3 when it became clear that voluntary schedule adjustments
by the carriers to avoid the overscheduling of EWR's peak hours were
not achievable.
    With respect to the FAA's proposed allocation of Operating
Authorizations, the U.S.-Canada Open Skies Agreement requires the FAA
to accord fair and equal, not preferential, treatment. Contrary to
Porter Airlines' suggestion, the FAA's proposal treats Porter Airlines
identically to all air carriers that are similarly situated at EWR. In
addition, like all other carriers, Porter Airlines will retain the
flexibility under this Order to trade, to lease, and to request
retimings of its scheduled operations to enhance its competitive
posture. Retiming of an approved Operating Authorization for any
carrier, however, would be granted only if capacity exists, if the FAA
determines that it does not diminish the efficiency of the airport's
operations, and if it is otherwise consistent with the provisions and
policies expressed in this Order.
    Porter's request in its supplemental filing for an additional two
Operating Authorizations in the 5 p.m. and 7 p.m. hours and its request
to retime an approved arrival in the 9 p.m. half hour to the 8 p.m.
hour are denied. Shifting a 9 p.m. half hour flight to the earlier,
more problematic hours would increase congestion and would not be
equitable to other carriers that are unable to make similar moves. As a
carrier that did not have any historic operations at EWR but that
timely indicated that it would provide summer 2008 service, Porter
Airlines was permitted one new roundtrip during the airport's busiest
period, from 3 p.m. through 8:59 p.m. The FAA proposed similar
allocations for two other new entrant carriers that timely indicated
their intention to initiate service at EWR. By contrast, other
carriers, including those with a limited existing presence at the
airport, were not permitted to add new flights during those hours. In
addition, other carriers either removed or rescheduled some
historically conducted operations during that period to reduce delays.
Adding even a few flights to that period diminishes the delay reduction
benefits that the voluntary moves of other carriers have achieved.
Accordingly, the FAA's manner of accommodating new entrant carriers at
EWR is adopted as proposed.
    Air Canada, the Air Transport Association of America, and American
Airlines recommend adjustments to the FAA's proposed 80% usage
requirement for Operating Authorizations. They request that the FAA
consider an Operating Authorization as used if the carrier elects to
cancel a flight due to a ground delay program. The Air Transport
Association and American Airlines further request that the FAA consider
an Operating Authorization used if the carrier elects to cancel a
flight because a de-icing program is in effect.
    For the present time, the FAA has decided not to amend the proposal
to include categorical exclusions from the minimum usage requirement
for flight cancellations for reasons such as ground delay or de-icing
programs. In arriving at this conclusion, we understand that, during
extreme conditions of extended delays or reduced capacity, carriers may
find it necessary or practical to cancel a flight rather than conduct
it several hours later. In such situations, carriers might accommodate
passengers efficiently on other flights, permitting carriers to work on
overall network recovery through a tactical use of flight
cancellations. Moreover, under these circumstances, flight
cancellations may deliver operational benefits to the National Airspace
System, because delays would be even longer for all system users absent
flight cancellations during reduced capacity conditions.
    Nevertheless, we must balance these considerations against the
overall efficient use of a scarce operational resource. The proposed
minimum usage requirement permits carriers to suspend flights for
operational reasons up to 20% of the time. Furthermore, the FAA may
waive the usage requirement in the face of highly unusual and
unpredictable conditions that are beyond the control of the carriers
and that affect carrier operations for at least five consecutive days.
Under normal circumstances, this degree of flexibility should be
sufficient to absorb the occasional cancellation of a scheduled
operation and still permit carriers to meet the minimum usage
threshold, if the planned usage is near 100%. Carriers that do not
schedule operations for all their assigned authority increase the risk
of falling below the minimum usage threshold, and it is not the FAA's
intention to facilitate a carrier's underutilization of an Operating
Authorization by granting additional usage exceptions.\11\ While this
Order is in effect, the FAA invites carriers to highlight specific
instances in which the available measures appear insufficient. Such
information may provide the good cause necessary to modify this Order.
---------------------------------------------------------------------------

    \11\ We further note that, under this Order, carriers may return
Operating Authorizations to the FAA on or before the seasonal
deadline for the periods during which the carriers do not intend to
use them. This allows carriers to adjust their seasonal allocation
to match more precisely the carriers' known schedules at the time of
the deadline. Additionally, this Order creates a secondary market
for the transfer of Operating Authorizations to another carrier that
is able to use them.
---------------------------------------------------------------------------

    The Air Transport Association and American Airlines submitted
comments on the FAA's proposed termination of the Order on October 24,
2009. In their opinion, the FAA could avoid the lack of certainty that
a potential series of short-term extensions would cause if the FAA
would tie the Order's expiration date to the effective date of a
replacement rule. They note that such an approach was effective in the
FAA order capping scheduled operations at LaGuardia Airport.
    The FAA originally considered whether the termination date of this
Order should be open-ended, tied to the adoption of a replacement rule,
or as proposed, identified as a date certain. We rejected the notion of
leaving this Order open-ended or tying its expiration to the effective
date of a replacement rule. This Order is constructed to provide short-
term relief from the congestion that EWR would otherwise experience. We
do not deem it appropriate as a longer-term structure for EWR's
operations. Accordingly, we will retain the Order's proposed expiration
date.
    American Airlines suggests that the FAA's proposal to require
carriers to use an Operating Authorization for 90 days before leasing
or transferring it should be changed. Because Operating Authorizations
were not previously assigned at EWR, American Airlines instead contends
that a 90-day usage requirement in this context should look back to the
period that carriers conducted the underlying historic

operations before the final Order takes effect. According to American
Airlines, the market for Operating Authorizations would otherwise be
suppressed for most of the summer 2008 scheduling season--a prospect
that Porter Airlines also views negatively in its comments.
    To facilitate the secondary market for Operating Authorizations
during the summer of 2008, the FAA agrees that this limitation should
be amended to permit an earlier lease or transfer of Operating
Authorizations that correspond to historically conducted operations
with one caveat. In particular, we remain concerned about a potential
abuse here and in the future of the process under which the FAA arrives
at the final allocations, whereby a carrier could accept Operating
Authorizations to conduct new operations while also attempting to
control via lease the operator of the carriers' historically conducted
operations. This could serve as a disincentive for carriers to discuss
their schedule plans in good faith, it is unfair to carriers that have
concrete plans to serve the airport, and it could afford a carrier
control over a greater share of the airport's operations than any
portion that the carrier ever conducted there. Therefore, the FAA will
amend the final Order to permit the lease or transfer of Operating
Authorizations whenever the carrier can demonstrate that it operated
the flight that corresponds to the Operating Authorization at least 80%
of the 90-day period immediately preceding the lease or transfer.
However, we will monitor the net effect of the carriers' lease
transactions with respect to their newly allocated Operating
Authorizations. If it is apparent that a carrier requested Operating
Authorizations that it did not intend to utilize, the FAA may consider
that circumstance in assessing the carrier's future representations
with respect to its need for capacity at this or other airports.
    Kalitta Air, LLC, comments that it is uniquely burdened by the
proposed order due to its contract with the United States Postal
Service (USPS) to carry mail for the U.S. military. It indicates that
it regularly operates 10 or more departures from EWR each week but that
the number and time of the flights may vary to meet the contractual
requirements. Kalitta further notes that some periods of the year, such
as the December holidays, have historically generated more flights and
that it must operate additional flights to accommodate the mail during
other times, as well. Kalitta cites as possible solutions a large pool
of authority for day-of unscheduled operations, the use of ``extra
section'' authority, and a reduction in the hours when operational
limits will apply at EWR. Kalitta also indicates it would like to
revise its historic summer 2007 schedules to operate at different
times.
    The FAA understands that all carriers may need to revise their
plans to conduct scheduled operations at EWR after this Order takes
effect. The FAA intends to issue a proposal to institute a reservations
system for unscheduled flights, and some of the issues that Kalitta
raises regarding the availability of last-minute operations will be
addressed in that context. A finite number of reservations are expected
for unscheduled operations during the peak hours; however, there is a
potential for additional reservations for last-minute unscheduled
operations if operating and delay conditions permit. We expect that the
ultimate structure for scheduled and unscheduled operations will
accommodate the historic patterns of demand that cargo operators
experience during particular times of year, such as the months of
November and December, but some retiming of proposed schedules may be
required.
    The type of operational flexibility that Kalitta seeks to conduct
operations during EWR's busiest hours is not practical, given the
airport's limited capacity and trend toward congestion-related delays.
The service that Kalitta provides to meet its USPS contract may be
unique in its individual circumstances, but it does not materially
differ as a practical matter from the limitations imposed on other
operators. In some respects, cargo operations may have options that are
not reasonably available to passenger-carrying and other operators,
permitting flights at less-congested times. To this degree, it may be
easier for a cargo operator to trade for or lease Operating
Authorizations at favorable times than is the case for other carriers
operating at EWR.
    As with other carriers, the FAA will not accept changes from a
cargo operator's historic operations if the net result would be
increased congestion. For example, the FAA cannot approve Kalitta's
request to move a flight from the 9 p.m. hour to the 7 p.m. hour.
Nevertheless, the FAA will work with Kalitta--as it will continue to do
with other carriers--on schedule adjustments, but those adjustments
must recognize the limits under this Order.
    A number of the commenters express opinions regarding the FAA's
future allocation of Operating Authorizations at EWR. American Airlines
advocates the FAA's long-term use of the IATA Worldwide Scheduling
Guidelines at all congested airports, whereas the Air Carrier
Association of America opposes the FAA's reliance on the Worldwide
Scheduling Guidelines. The Air Transport Association of America, the
Air Transport Association of Canada, and American Airlines oppose the
FAA's use of auctions to allocate new or returned capacity at EWR, and
the Air Carrier Association of America identifies alternative market-
based allocation concepts.
    The FAA's principal purpose in issuing the proposed order was to
curb the overscheduling that passengers transiting EWR would experience
during the summer of 2008 if the FAA failed to intervene. This final
Order will result in significantly better performance at the airport
than would occur if carriers were to implement the schedules that they
originally proposed. The manner in which the FAA will allocate
operational authority to conduct scheduled operations after this Order
expires will be the subject of a rulemaking proceeding in a separate
docket. Carriers that wish to register an opinion regarding that
proposal should file their responsive written comments in the public
docket that the FAA will open for that proceeding.
    Regarding the language in the proposed order that refers to a
future auction of new and returned capacity at EWR while this final
Order remains in effect, the FAA does not anticipate the immediate
availability of a significant volume of new or returned capacity at
EWR. However, the FAA expects that the need may arise to conduct an
auction of new or returned capacity at EWR or JFK before the end of
this calendar year. If this proves to be true, we anticipate that we
would allocate such capacity for a 5- to 10-year term. The FAA has
authority to lease real and personal property, including intangible
property, to others. 49 U.S.C. 106(l)(6) and 106(n). Because the
auction would address an FAA lease of Operating Authorizations awarded
by the FAA under its leasing authority rather than under an
administrative allocation, notice to the interested parties will be
governed by applicable procurement law, rather than by the
Administrative Procedure Act. The details regarding a potential auction
will be disclosed when the FAA is ready to proceed with an auction. In
accordance with the FAA's Acquisition Management System, the FAA will
publicly announce its intention to conduct an auction on a particular
date or over the course of a particular period of time. The FAA will
also announce its proposed auction procedures and solicit comments on

those procedures. The FAA will consider the comments that it receives
and then publish the final auction procedures. Any interested party
will have an avenue to protest the procedures up until the date of the
auction, in accordance with 49 U.S.C. 40110(d)(4) and 14 CFR Part 17.
    The individual and non-airline organizational commenters express
nearly universal support for the proposed limit on scheduled operations
at EWR, primarily because they view it as an alternative to the delay
reduction anticipated from New York-New Jersey-Philadelphia airspace
redesign. The airspace redesign project to which they refer is an
initiative that is independent of this temporary limitation on flights
at EWR, and it will reduce congestion-related delay in that region over
the long term. The FAA will implement elements of the airspace redesign
over five years, and as a result, the full benefit of the redesign will
be realized in stages. By contrast, this Order will provide temporary
relief from the heightened delays that the region would experience as
early as this summer if carriers were permitted to operate the
schedules that they proposed. The FAA does not intend this Order to
serve as a long-term solution to congestion-related delay at and around
EWR.
    Accordingly, with respect to scheduled flight operations at EWR, it
is ordered that:
    1. This Order assigns operating authority to conduct an arrival or
a departure at EWR 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 EWR 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 EWR 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 decision-maker for
determinations under this Order.
    2. This Order governs scheduled arrivals and departures at EWR from
6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.
    3. This Order takes effect at 6 a.m., Eastern Time, on June 20,
2008, and expires at 11:59 p.m., Eastern Time, on October 24, 2009.
    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 EWR
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<PHONE_NUMBER> or e-mail<EMAIL_ADDRESS>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. A carrier may lease or trade an Operating Authorization to
another carrier for any consideration and for a period that does not
exceed the duration of this Order. A carrier may not lease an Operating
Authorization to another carrier unless it has actually used the
authorization to conduct flights to or from Newark at least 80% of the
time over the preceding 90-day period. The FAA may waive the 90-day
usage requirement of the Operating Authorization if the transferring
carrier can demonstrate that it has operated the flight that
corresponds to the Operating Authorization at least 80% of the time
over the 90 days preceding the proposed transfer of the Operating
Authorization. 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<EMAIL_ADDRESS>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.
    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 period 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 and for each Operating
Authorization. These reports must include:
    i. The dates within each applicable season on which it intends to
start and to cease scheduled operations.
    A. For the Summer 2008 scheduling season, the report must be
received by the FAA no later than June 20, 2008.
    B. For the Winter 2008/2009 scheduling season, the report must be

received by the FAA no later than August 15, 2008.
    C. For the Summer 2009 scheduling season, the report must be
received by the FAA no later than January 15, 2009.
    ii. The completed operations for each day of the applicable
scheduling season:
    A. Via an interim report filed no later than September 1 for the
Summer scheduling season;
    B. Via an interim report filed no later than January 15 for the
Winter scheduling season.
    iii. A final report of 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 unallocated Operating Authorizations should be reallocated. The FAA
may temporarily allocate an Operating Authorization if it determines
that such allocation will not increase congestion at the airport. 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 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
carrier from which it was taken, provided that the carrier continues to
operate scheduled service at EWR.
    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. Sec.
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 May 15, 2008.
Robert A. Sturgell,
Acting Administrator, Federal Aviation Administration.
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