05-12716. High Density Airports; Notice of Extension of the Lottery Allocation and Amended Policy for Reallocation Procedures for Slot Exemptions at LaGuardia Airport

AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Notice of extension of the lottery allocation for takeoff and landing times at LaGuardia Airport and amended policy for the allocation procedures at LaGuardia Airport.

SUMMARY:

The FAA is extending by fourteen months the current allocation of slot exemptions at LaGuardia Airport (LaGuardia) through December 31, 2006. This action maintains the current limit on scheduled operations at LaGuardia pending the adoption of a long-term solution for congestion management and the expiration of the High Density Traffic Airports Rule (High Density Rule) at LaGuardia on January 1, 2007. We also are amending the lottery reallocation procedures at LaGuardia in response to a petition submitted by Northwest Airlines, Inc. (Northwest). Air carriers that do not currently serve small hub/non-hub airports from LaGuardia can now participate in any reallocation of AIR-21 slot exemptions that are returned to the FAA or become available through non-use.

DATES:

Effective June 27, 2005.

FOR FURTHER INFORMATION CONTACT:

Lorelei Peter, Regulations Division Office of the Chief Counsel, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone [phone].

SUPPLEMENTARY INFORMATION:

The High Density Rule (49 CFR part 93, subpart K) is being phased out at certain airports pursuant to the “Wendall H. Ford Aviation Investment and Reform Act for the 21st Century” (AIR-21) enacted in 2000. 49 U.S.C. 41714, et seq. Under AIR-21, the High Density Rule terminates at LaGuardia and John F. Kennedy International Airports on January 1, 2007. At the same time, however, acting out of concern over loss of service to small hub/non-hub airports by certain carriers and access to LaGuardia by carriers who are new entrants or limited incumbents, Congress directed the Secretary Of Transportation to create slot exemptions dedicated to these two categories of carriers. 49 U.S.C. 41716, 41717, 41718.

On December 4, 2000, the FAA capped the number of AIR-21 slot exemptions at 159 and allocated the slot exemptions via lottery among the two categories of carriers (79 slot exemptions for small community service and 80 slot exemptions to new entrants/limited incumbents). A second lottery was held on August 15, 2001, to reallocate the slot exemptions that had been returned to the FAA. After this second lottery, new entrants/limited incumbents held 79 slot exemptions and providers of small community service held 84 slot exemptions.

On October 28, 2002, the FAA published in the Federal Register a Notice of Adopted Allocation Procedures at LaGuardia (67 FR 65826). This notice set forth the FAA's policy for reallocating slot exemptions that become available because they either are not being used or have been returned voluntarily to the FAA. The agency wanted to provide the opportunity for “parity,” to the maximum extent possible, between the number of slot exemptions available for the two categories of eligible carriers. Thus, if a new entrant seeks slot exemptions, the available slot exemptions would be offered to that carrier first as long as the number of slot exemptions held by service providers to small hub/non-hub airports was not less than 76. Thereafter, slot exemptions for the new entrant category would be allocated to limited incumbents in accordance with the established ranking. Slot exemptions for small community service providers likewise would be allocated in accordance with the established ranking.^[1] While the adopted reallocation procedures provided access for carriers in the new entrant category, the procedures did not provide the same opportunity to carriers seeking to initiate service to small hub/non-hub airports from LaGuardia.

Northwest, a carrier that has not provided service to small communities from LaGuardia, requested the opportunity to participate in the allocation of available AIR-21 slot exemptions at LaGuardia for service to small hub/non-hub airports with aircraft with fewer than 71 seats. On November 17, 2004, the FAA published Northwest's petition to modify the lottery allocation procedures at LaGuardia (69 FR 67383).

Discussion of Comments

The comment period on Northwest's petition closed on December 7, 2004. US Airways, Inc. (US Airways) and Delta Air Lines, Inc. (Delta) filed comments in the docket. Although the carriers generally supported amending the procedures for the AIR-21 slot exemption lotteries as long as the modified procedures only apply to slot exemptions that become available through non-use, neither carrier supported a redistribution of currently allocated slot exemptions at LaGuardia.

US Airways urged that any new participant in the lottery allocation be placed at the end of the current, established ranking. Delta further asked that carriers who were forced to cancel services due to the December 2000 cap on slot exemptions be made whole before slot exemptions are given to other potential small airport service providers. Delta contends that any revision of the lottery procedures should give a significant preference to those carriers that have been unable to restore the services they were providing in 2000.

While mindful of Delta's concerns, our initial allocation of slot exemptions at LaGuardia and our corresponding implementation of the reallocation procedures did not address how carriers at LaGuardia seeking to provide new small community service sector all carriers that were not operating at LaGuardia in 2000. Further, it is important that while we maintain the overall limits on operations at LaGuardia, there be some level of access and competitive opportunity at the airport. Enhancing competition at airports can have favorable implications for service and fares.

We reject Delta's claim that new entry should be precluded until Delta recovers the slot exemptions that it held prior to December 2000. Such a policy would unreasonably favor one group of competitors over another. Of the 90 AIR-21 slot exemptions allocated to small community service providers to date, Delta hold 48. While this is a reduction in the total number of AIR-21 slot exemptions Delta operated or had scheduled to operate in December 2000, Delta continues to be the largest holder of AIR-21 slot exemptions in this category.

We will permit carriers not currently conducting service to small hub/non-hub airports to participate in the allocation of available AIR-21 slot exemptions for service to small communities. These applicants will be added to the bottom of the December 2000 established ranking of carriers providing such service.

Extension of Lottery Allocation

Maintaining the cap on total operations at LaGuardia is imperative. If the cap on AIR-21 slot exemptions were lifted, carriers could add an unlimited number of scheduled operations at the airport leading to a situation similar to that in the fall of 2000 where the public experienced an unacceptable level of delay. Significant delays and operational disruptions at LaGuardia also can have a negative effect on the national airspace and result in delays in operations at many other airports. The airport cannot accommodate, nor can the FAA permit, unrestrained growth in operations at LaGuardia at this time.

Accordingly, we are extending the current hourly limitations and, as amended, the accompanying allocation procedures, through December 31, 2006. The fourteen month extension of the slot exemption also is appropriate due to the complex issues associated with any long-term solution to congestion at LaGuardia and the competing interests that must be addressed. The FAA and Office of the Secretary of Transportation are developing a long-term plan to address access to LaGuardia after expiration of the High Density Rule in 2007. This requires consideration of complex statutory, regulatory, and policy issues. Until a new plan and process are in place, extension of the current allocation scheme is necessary.

Policy for Allocation Procedures

The FAA will follow the reallocation procedures adopted in the Federal Register notice, published on October 28, 2002 (67 FR 65826), and as modified today for the reallocation of returned or withdrawn slot exemptions. Under this notice, the FAA announces its policy to service sector using aircraft with fewer than 71 seats to participate in the allocation. New service providers for slot exemptions are required to have certified eligibility in accordance with OST Order 2000-4-11 to the Department of Transportation (the Department) and have a written request on file with the FAA Slot Administration Office when seeking available slot exemptions. These carriers will be added to the bottom of the established ranking and will be notified by the FAA, as appropriate, when slot exemptions are available. The adoption of this policy does not necessitate a specific change to the post-lottery allocation procedures.

1. The cap on AIR-21 slot exemptions (7 a.m. through 9:59 p.m.) will remain in effect through December 31, 2006.

2. The FAA may approve the transfer of slot exemption times between carriers only on a temporary one-for-one basis for the purpose of conducting the operation in a different time period. Carriers must certify to the FAA that no other consideration is involved in the transfer.

3. If any subsequent slot exemptions become available for reallocation and there is an eligible carrier seeking slot exemptions, then the available slot exemptions would be offered to that carrier first, provided that the total number of slot exemptions allocated to carriers providing small hub/non-hub service is not below 76. An eligible carrier is one that has certified such eligibility in accordance with OST Order 2000-4-10 to the Department and has a written request on file with the Slot Administration Office and is not conducting service at the airport. Carriers seeking slot exemptions for small hub/nonhub service must certify eligibility to the Department in accordance with OST Order 2000-4-11 and have a written request on file with the Slot Administration Office.

If a new, eligible carrier does not select the slot exemptions, then the exemption will be offered to the category of carriers that is below parity, up to the level of re-establishing parity (using respective rank Order).^[2] If the slot exemptions are not selected or there are available slot exemptions remaining, then they will be offered to carriers in the same category from which the slot exemptions came. Any remaining slot exemptions not selected will be offered to the other category of carriers, using its respective rank order.

4. A carrier will have three business days after an offer from the Slot Administration Office to accept the offered slot exemption time. Acceptance must be in writing to the Slot Administration Office. If the Slot Administration Office does not receive an acceptance to an offer within three business days, the carrier will be recorded as rejecting the officer and the next carrier on the list will be offered the available slot exemption times.

5. Carriers that are offered slot exemption times by the Slot Administration Office must re-certify to the Department in accordance with the procedures articulated in OST Orders 2000-4-10 and 2000-4-11 prior to operations, and provide the Department and the FAA's Slot Administration Office with the markets they will service, the number of slot exemptions, the frequency, and the time of operation, before the slot exemption times will be allocated by the FAA to the carrier.

6. All operations allocated under the post-lottery procedures must commence within 120 days of a carrier's acceptance of an available slot exemption.

7. The Chief Counsel will be the final decision maker concerning eligibility of carriers to participate in the allocation process.

Issued on June 23, 2005, in Washington, DC.

Andrew B. Steinberg,

Chief Counsel.

Footnotes

1.  The ranking for the small community hub/non-hub category and the new entrant/limited incumbent category was established at the lottery held on December 4, 2000. The ranking for the new entrant/limited incumbent category was amended at the lottery on August 15, 2001. See also 67 FR 65826, October 28, 2002.

2.  See 67 FR 45170; July 8, 2002 and 67 FR 65826; October 28, 2002.