[Federal Register: January 8, 2009 (Volume 74, Number 5)]
[Notices]
[Page 845-847]
[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:<PHONE_NUMBER>;
facsimile:<PHONE_NUMBER>; email<EMAIL_ADDRESS>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:<PHONE_NUMBER>;
facsimile:<PHONE_NUMBER>; email<EMAIL_ADDRESS>
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<PHONE_NUMBER>. 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

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<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. 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

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