05-19600. Minimum Slot Usage Requirement

ACTION:

Notice of denial of request for waiver of the minimum slot usage requirement.

SUMMARY:

The FAA recently issued a letter responding to a request from the Regional Airlines Association (RAA) for a blanket waiver of the minimum slot usage requirement for all slots at the three High Density Traffic Airports. The text of that letter is set forth in this notice.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Deborah C. McElroy, President, Regional Airline Association, 2025 M Street, NW., Suite 800, Washington, DC 20036-3309.

Dear Ms. McElroy: This is in response to your September 9 letter, submitted on behalf of the Regional Airline Association's (RAA) membership, requesting a waiver of the “use or lose” requirements for slots and slot exemptions held by RAA members at John F. Kennedy International (JFK), LaGuardia (LGA) and Ronald Reagan Washington National Airports (DCA) for the period August 29, 2005 through March 29, 2006.

Section 93.227, subsection (j) of Title 14 of the Code of Federal Regulations provides that the Chief Counsel of the FAA may waive the usage requirements of paragraph (a) of that section in the case of “a highly unusual and unpredictable condition which is beyond the control of the slot-holder and which exists for a period of 9 or more days.” As an example, of such a condition, subsection 93.227(j) gives, “weather conditions which request in the restricted operation of an airport for an extended period of time.”

RRA points to factors beyond the carriers' control—including record fuel costs, potential disruptions in fuel supplies, airport closing and major changes in travel patterns—that are creating economic difficulties for airlines of the like that have not been experienced since the aftermath of September 11 or the Gulf War. Your petition further states that the carriers' inability to raise fares to recoup higher fuel costs will necessitate schedule changes, which will result in either utilization of slots below the 80% minimum specified in our regulations or the operation of flights solely to preserve slot holdings. Additionally, you note that recent challenges to fuel supplies and further increases in fuel costs due to the impact of Hurricane Katrina have critically exacerbated the situation.

Your association requests a waiver on behalf of its members for usage requirements on all slots and slot exemptions at JFK, LGA, and DCA beginning with the initial period following the hurricane through the winter scheduling season.

This office received comments on your petition from JetBlue Airways Corp. and US Airways, Inc. JetBlue opposes the requested waiver principally on the ground that the request is “overly broad” because the proposed waiver would affect slots beyond those needed to serve airports directly impacted by Hurricane Katrina, such as New Orleans (MSY). JetBlue would support a more limited waiver concerning flights between such airports, and the slot-controlled airports. According to JetBlue, RAA has not make and adequate demonstration of need for a broader wavier, given the existing demand by JetBlue and others for scarce take-off and landing rights at DCA and LGA. JetBlue argues that underutilized slots should be returned to the FAA for redistribution under Part 93.

US Airways supports the RAA petition and requests its own (identical) relief, specifically, a waiver of the slot usage requirements for all operable slots and slot exemptions at DCA and LGA through March 2006. US Airways recites many of the same facts described in the RAA petition, emphasizing actual and potential disruptions in the nation's refining capacity, which drive up fuel costs. US Airways states that a waiver would give it “scheduling and operational flexibility * * * to rationalize its services as much as possible” in light of Katrina and related events. The carrier also points out that a variety of other federal agencies (such as EPA, the Department of Energy, and IRS) have waived various regulatory requirements to facilitate hurricane relief and recovery efforts.

On September 19, 2005 we granted a request from American Airlines, Inc. to waive the slot usage requirements with respect to four specifically identified slots that the carrier was scheduled to use from September 1 through December 31, 2005 for flights from LGA to MSY. We noted that this requested waiver satisfied the criteria listed in section 93.227(j).

We are receptive to specific requests for short-term waivers from the slot usage requirements, i.e., with respect to service from any slot-controlled airport to/from airports affected by the recent hurricanes. We recognize that slot holders may well have difficulty meeting the rule's usage requirements when the extraordinary and devastating effects of the hurricane have interfered with their ability to sustain service in that region.

The FAA stands ready to work with the affected carriers and their trade associations to address such situations. (Of course, if carriers are expecting to cancel operations for some or all of the winter season, please advise our slot program office as soon as possible since other carriers might be interested in utilizing the slots on a temporary basis, thus avoiding their potential withdrawal under the “use or lose” rule.)

Because, however, many of the circumstances cited in your petition go to longstanding and fundamental obstacles to airline profitability, and are not specific to Katrina, I do not find that the criteria in section 93.227(j) have been satisfied. Therefore, I am denying your petition but without prejudice to your renewing your request on a more specific, limited basis.

If you have further questions on this matter, please contact Lorelei Peter on my staff at 202-267-3134.

Sincerely,

Andrew B. Steinberg,

Chief Counsel.

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

Gary A. Michel,

Acting Assistant Chief Counsel for Regulations.