E6-17818. Congestion Management Rule for LaGuardia Airport

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM); extension of comment period.

SUMMARY:

This action extends the comment period for the NPRM published August 29, 2006 (71 FR 51360). Under the NPRM, the FAA proposed to establish an operational limit on the number of aircraft landing and taking off at New York's LaGuardia Airport. This extension is a result of requests from the Airports Council International—North America (ACI-NA), the Air Transport Association of America (ATA) and the Regional Airline Association (RAA), and the Port Authority of New York and New Jersey (Port Authority) for additional time to comment on the proposal.

DATES:

Comments must be received on or before December 29, 2006.

ADDRESSES:

You may send comments to Docket No. FAA-2006-25709 using any of the following methods:

• DOT Docket Web site: Go to http://dms.dot.gov and follow the instructions for sending your comments electronically.
• Government-wide rulemaking Web site: Go to http://www.regulations.gov and follow the instructions for sending your comments electronically.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Fax: [phone].
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

Privacy: We will post all comments we receive, without change, to http://dms.dot.gov,, including any personal information you provide. For more information, see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION section of this document.

Docket: To read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Molly W. Smith, Office of Aviation Policy and Plans, APO-001, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone [phone]; e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the web address in the ADDRESSES section.

Privacy Act: Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.

Proprietary or Confidential Business Information

Do not file in the docket information that you consider to be proprietary or confidential business information. Send or deliver this information directly to the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. You must mark the information that you consider proprietary or confidential. If you send the information on a disk or CD ROM, mark the outside of the disk or CD ROM and also identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), when we are aware of proprietary information filed with a comment, we do not place it in the docket. We hold it in a separate file to which the public does not have access, and place a note in the docket that we have received it. If we receive a request to examine or copy this information, we treat it as any other request under the Freedom of Information Act (5 U.S.C. 552). We process such a request under the DOT procedures found in 49 CFR part 7.

Background

On August 29, 2006, the Federal Aviation Administration (FAA) issued Notice No. 06-13, “Congestion Management Rule for LaGuardia Airport” (71 FR 51360). The comment period for the NPRM was 60 days, scheduled to end on October 30, 2006.

In a comment submitted to the docket assigned to the NPRM (Docket No. FAA-2006-25709), the Airports Council International—North America (ACI-NA) requested we extend the comment period an additional 30 days. In a letter dated September 22, 2006, ACI-NA stated that the NPRM is a highly significant rulemaking that will affect its members, including the Port Authority. ACI-NA stated that the comment period was too short to adequately examine and address all potential effects on its members, especially effects on small-hub and non-hub airports. ACI-NA requested the FAA extend the comment period to expire on November 29, 2006.

On October 3, 2006, the Air Transport Association of America (ATA) and Regional Airline Association (RAA) submitted a joint comment requesting extension of the comment period. ATA and RAA requested an extension of the comment period to consider, research, and understand the operational consequences and the legal and policy implications of the NPRM. Additionally, ATA and RAA feel an extension of the comment period would not delay the rulemaking since the FAA is still seeking legislative authority to complete it and has published a proposal to place temporary limitations on operations through an Order.^[1] ATA and RAA stated that the NPRM raises significant policy and legal questions, including issues under the Administrative Procedures Act, FAA's authority to regulate aircraft size and service, authority to withdraw operating rights, and economic and financial impacts on airlines operating at the airport. Additionally, ATA stated that the FAA has had years to consider and develop an economic analysis to support the proposed rule, and 60 days is not enough time for its staff to review the FAA's Regulatory Evaluation properly and produce its own report. ATA and RAA feel that since the final rule is dependent on legislative authority they believe may not be granted until 2008, and the FAA's own proposed Order will maintain current operations through September 2007, promulgation of the final rule will not be delayed by extending the comment period until January 22, 2007.

On October 6, 2006, the Port Authority requested that the comment period for the NPRM be extended an additional 180 days until April 27, 2007. The Port Authority, as the operator of the airport, requests the extension to research, consider, and thoroughly understand the operational consequences and the legal and policy implications of the proposal. The Port Authority also states that it is concurrently preparing a response to the FAA's proposed Order and will be able to focus more time on responding to the NPRM if the comment period is extended through April 2007. On October 10, 2006, ATA and RAA submitted a joint letter of support for the Port Authority's request that the comment period be extended until April 27, 2007.

We have considered the requests for extension presented by ACI, ATA and RAA, and the Port Authority and weighed the requests against the interest of proceeding with the comment period closing on the originally intended date. We agree there are important legal, policy, and operational issues involved in the NPRM, and we wish to provide adequate time for all affected parties to evaluate the proposal in its entirety. To date, we have received three specific requests for extension and consider their merits equal. The FAA agrees that an extension for the comment period is in the public interest; however, we feel that sufficient justification has not been given for an extension beyond 60 days. ATA and RAA's request for a 90-day extension is based, in part, on an apparent misunderstanding that FAA must obtain legislative authority to complete the proposed rule. At a meeting FAA attended at ATA on September 19th, to answer clarifying technical questions related to the NPRM, FAA made clear its intentions to issue a Final rule prior to receiving any legislative authority to implement market based mechanisms such as auctions or congestion pricing at LaGuardia. (A summary of this meeting is being placed in the docket.) The NPRM states that subsequent rulemaking would be required to address the reallocation of expired Operating Authorizations or to implement any new legislative authority. Similarly, the Port Authority does not provide a compelling rationale as to why they would need a 180-day extension to the comment period. An eight-month comment period is not warranted even granted the complexity of this NPRM. Therefore, the comment period for Notice No. 06-13 is extended an additional 60 days and will expire on December 29, 2006. This extension should provide commenters with sufficient time to complete any review and submit comment. Absent unusual circumstances, the FAA does not anticipate any further extension of the comment period for this rulemaking.

Extension of Comment Period

In accordance with § 11.29(c) of Title 14, Code of Federal Regulations, the FAA has reviewed the petitions made by the Airports Council International—North America, Air Transport Association and Regional Airline Association, and the Port Authority of New York and New Jersey for extension of the comment period to Notice No. 06-13. The petitioners have a substantive interest in the proposed rule and the FAA has determined that an extension of the comment period is consistent with the public interest.

Accordingly, the comment period for Notice No. 06-13 is extended until December 29, 2006.

Issued in Washington, DC, October 17, 2006.

Nan Shellabarger,

Director, Office of Aviation Policy and Plans.

Footnotes

1.  Proposed Order, “Operating Limitations at New York LaGuardia Airport,” published in the Federal Register on September 14, 2006. (71 FR 54331) (Docket FAA-2006-25755).