[Federal Register Volume 64, Number 7 (Tuesday, January 12, 1999)]
[Proposed Rules]
[Pages 2086-2093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-621]
[[Page 2085]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 93
High Density Airports; Allocation of Slots; Proposed Rule
Federal Register / Vol. 64, No. 7 / Tuesday, January 12, 1999 /
Proposed Rules
[[Page 2086]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 93
[Docket No. FAA-1999-4971; Notice No. 99-20]
RIN 2120-AG50
High Density Airports; Allocation of Slots
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes to amend the regulations governing
takeoff and landing slots and slot allocation procedures at certain
High Density Traffic Airports. As a result of the ``Open Transborder''
Agreement between the Government of the United States and Government of
Canada, this proposed rule is necessary to codify the provisions of the
bilateral agreement and ensure consistency between FAA regulations
governing slots and the bilateral agreement.
DATES: Comments must be received on or before February 11, 1999.
ADDRESSES: Comments on this proposed rulemaking should be mailed or
delivered, in duplicate, to: U.S. Department of Transportation Dockets,
Docket No. FAA-1999-4971, 400 Seventh Street, SW, Room Plaza 401,
Washington, DC 20590. Comments may also be sent electronically to the
following Internet address: [email protected]. Comments may be
filed and/or examined in Room Plaza 401 between 10 a.m. and 5 p.m.
weekdays except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lorelei D. Peter, Airspace and Air
Traffic Law Branch, Regulations Division, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone (202) 267-3073.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the proposed
rulemaking by submitting such written data, views, or arguments as they
may desire. Comments relating to the environmental, energy, federalism,
or economic impact that may result from adopting the proposals in this
notice are also invited. Comments that provide the factual basis
supporting the views and suggestions presented are particularly helpful
in developing reasoned regulatory decisions. Communications should
identify the regulatory docket number and be submitted in triplicate to
the above specified address. All communications and a report
summarizing any substantive public contact with FAA personnel on this
rulemaking will be filed in the docket. The docket is available for
public inspection both before and after the closing date for receiving
comments.
Before taking any final action on this proposal, the Administrator
will consider all comments made on or before the closing date for
comments and the proposal may be changed in light of the comments
received.
The FAA will acknowledge receipt of a comment if the commenter
includes a self-addressed, stamped postcard with the comment. The
postcard should be marked ``Comments to Docket No. FAA-1999-4971.''
When the comment is received by the FAA, the postcard will be dated,
time stamped, and returned to the commenter.
Availablity of NPRM
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Rulemaking, 800
Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-9677. Communications must identify the notice number of this NPRM.
Persons interested in being placed on a mailing list for future FAA
NPRMs should request a copy of Advisory Circular No. 11-2A, Notice of
Proposed Rulemaking Distribution System, which describes application
procedures.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone 703-321-
3339) or the Federal Register's electronic bulletin board service
(telephone 202-512-1661). Internet users may read the FAA's web page at
http://www.faa.gov or the Federal Register's web page at http://
www.access.gpo.gov/su__docs for access to recently published rulemaking
documents.
Background
The FAA has broad authority under Title 49 of the United States
Code (U.S.C.), Subtitle VII, to regulate and control the use of
navigable airspace of the United States. Under 49 U.S.C. 40103, the
agency is authorized to develop plans for and to formulate policy with
respect to the use of navigable airspace and to assign by rule,
regulation, or order the use of navigable airspace under such terms,
conditions, and limitations as may be deemed necessary in order to
ensure the safety of aircraft and the efficient utilization of the
navigable airspace. Also, under section 40103, the agency is further
authorized and directed to prescribe air traffic rules and regulations
governing the efficient utilization of the navigable airspace.
The High Density Traffic Airports Rule, or ``High Density Rule,''
14 CFR part 93, subpart K, was promulgated in 1968 to reduce delays at
five congested airports: JFK International Airport, LaGuardia Airport,
O'Hare International Airport, Ronald Reagan National Airport, and
Newark International Airport (33 FR 17896; December 3, 1968). The
regulation limits the number of instrument flight rule (IFR) operations
at each airport, by hour or half hour, during certain hours of the day.
It provides for the allocation to carriers of operational authority, in
the form of a ``slot'' for each IFR landing or takeoff during a
specific 30- or 60- minute period. The restrictions were lifted at
Newark in the early 1970's.
On December 16, 1985, the Department of Transportation (Department)
promulgated the ``buy/sell'' rule, a comprehensive set of regulations
that provide for the allocation and transfer of air carrier and
commuter slots (50 FR 52180; December 20, 1985). The two primary
features of this rule were, first, that initial allocation would be
accomplished by ``grandfathering'' existing slots to the carriers that
currently held them, and second, that a relatively unrestricted
aftermarket in slots would be permitted. As a result, effective April
1, 1986 slots used for domestic operations could be brought and sold by
any party.
The FAA allocates slots designated for international use by U.S.
and foreign-flag carriers under procedures different from those that
apply to the allocation of slots designated as domestic. Under 14 CFR
section 93.217, international slots are allocated at Kennedy and O'Hare
twice a year for the summer and winter scheduling seasons.
In promulgating the ``buy/sell'' rule, the Department determined
that, as a matter of international aviation policy, the allocation of
new slots to international carriers as Kennedy and O'Hare Airports
would be made by the FAA based on requests from foreign and U.S.
operators conducting international operations (50 FR 52187; December
20, 1985).
O'Hare is unique in that domestic slots are withdrawn to
accommodate requests for international operations during each summer
and winter season. 14 CFR section 93.217(a)(6) specifically
[[Page 2087]]
provides that the FAA must allocate a slot for an international
operation at O'Hare upon request. If there is not an available slot
within 60 minutes of requested time, a slot would be withdrawn from a
domestic carrier to fill that request. At LaGuardia, section
93.217(a)(7) provides that additional slots will be allocated for
international operation if required by bilateral agreement. At Kennedy,
section 93.217(a)(8) provides that domestic slots will be withdrawn for
international operations only if required by international obligations.
At the time of the ``buy/sell'' rule, the Department concluded that
since certain slots used for international operations are specially
treated within Subpart S, it is important that the Department be aware
of which slots are being used for those operations. Therefore, U.S.
carriers were required to submit to the FAA in writing, the slots that
were used for international operations as of December 16, 1985. These
slots were then designated by the FAA as international slots.
International slots may not be bought, sold, leased, or otherwise
transferred, except such slots may be traded to another slot holder on
a one-for-one-basis at the same airport. Furthermore, if a carrier does
not use an international slot for more than a two-week period, the slot
must be returned to the FAA. International slots may only be used for
international service.
However, FAA regulations permit the use of domestic slots for
either international or domestic service. Regardless of the type of
service, i.e., domestic or international, the minimum slot usage
requirement and withdrawal procedures apply to a slot designated as
domestic. FAA regulations governing slots provide for lotteries of
domestic slots in certain circumstances. These regulations also permit
only U.S. carriers to participate in lotteries for domestic slots.
International slots are not allocated by the lottery mechanism.
U.S.-Canada Bilateral Agreement
On February 24, 1995, the Government of the United States and the
Government of Canada entered into a bilateral agreement (Agreement)
phasing in an ``Open Transborder'' regime between the two countries.
Annex II of the Agreement specifically addresses slots and access to
O'Hare, LaGuardia and Ronald Reagan National Airports. After a three
year phase-in period, the Agreement provides that, effective February
24, 1998: (1) the Canadian carriers will be able to obtain slots at the
High Density Traffic Airports under the same prevailing allocation
system as U.S. carriers; (2) the base levels of slots established for
Canada will consist of 42 slots at LaGuardia, and 36 slots for the
Summer season at O'Hare and 32 slots for the Winter season at O'Hare;
(3) Canadian carriers' slot base at LaGuardia and O'Hare (which
currently is comprised of international slots), effectively will
``convert'' to domestic slots; (4) all slots acquired by the Canadian
carriers, including the determined slot base, as described in (2)
above, at LaGuardia and O'Hare, will be subject to the minimum slot
usage requirement set forth in section 93.227 and may be withdrawn for
failure to meet that requirement; (5) the provision of the bilateral
agreement do not permit the determined slot base as LaGuardia and
O'Hare to be withdrawn for the purpose of providing a U.S. or foreign
air carrier with slots for international operations or to provide slots
for new entrant operators; (6) any slots acquired after the transition
date that do not form part of the determined slot base may be withdrawn
at any time to fulfill operational needs; (7) neither the Government of
Canada nor any Canadian carrier may modify the determined slot base at
LaGuardia or O'Hare and then have claim to any time slot to restore the
base; and (8) slots that are acquired above the determined slot base
level and then subsequently disposed of shall not modify the base.
The Agreement also contains several provisions specific to Ronald
Reagan National Airport, concerning non-stop service between Canada and
the U.S. These provisions will not be addressed since they are
unaffected by the contents of this proposal.
The present regulatory framework governing slots and slot
allocation procedures does not provide for all the terms of the
Agreement as set forth above. In order to ensure that FAA slot
regulations are consistent with the terms of the Agreement, the FAA
proposes to modify the regulations. This proposal consists of two
primary actions: the conversion of certain international slots to
domestic, and the establishment of a regulatory base level of slots for
the Canadian carriers. In addition, the FAA proposes to amend the
regulatory submission deadline for international requests to coincide
with the deadline established for the seasonal International Air
Transport Association (IATA) Schedule Coordination Conference.
Conversion of International Slot to Domestic Slots
The Open Transborder bilateral agreement has liberalized U.S.-
Canadian transborder air transportation. Following the three year
phase-in period, U.S. and Canadian carriers have full freedom of entry.
The Agreement provides that Canadian carriers will be able to obtain
slots in the HDR Airports under the ``same prevailing allocation
system'' as U.S. carriers. This effectively requires that the Canadian
carriers be treated similarly to domestic carriers. Consequently,
effective February 24, 1998, Canadian air carriers and their slots are
subject to the allocation provisions and associated options applicable
to domestic slots.
U.S. carriers may obtain domestic slots three ways: (1) through the
market, by the buying, selling, trading, or leasing of slots; (2) by
participation in a slot lottery (in accordance with 14 CFR section
93.225, the FAA may hold a lottery upon determination that there are a
sufficient number of slots available); and (3) allocation of slots in
low-demand periods. (14 CFR section 92.226 permits, on a first-come,
first-served basis, for the allocation of slots available for less than
5 days per week; for less than a full season; or between 6:00 a.m.-6:59
a.m. or 10:00 p.m.-midnight.)
At present, the Canadian carriers hold 36 international slots at
O'Hare and 42 international slots at LaGuardia. Since the Agreement
permits the Canadian carriers to buy, sell, lease, or trade these
slots, the FAA proposes to reclassify the 36 international slots at
O'Hare and the 42 international slots at LaGuardia as domestic slots.
As a result of this reclassification, all the regulatory requirements
of domestic slots, such as the minimum slot usage requirement, would
attach to the subject slots. We note that the Agreement already
subjects these slots to the minimum slot usage requirement. This
reclassification would be consistent with the purpose and intent of the
Agreement.
The FAA proposes that U.S. carriers be extended similar treatment.
The basis for a number of provisions being codified in the ``buy/sell''
rule was the standing policy that it is desirable to treat U.S.
carriers and foreign-flag carriers similarly when conducting identical
service. In 1985, at the time that the ``buy/sell'' rule was
promulgated, several commenters argued for the exclusion of any
international operations from the ``buy/sell'' provisions (50 FR
52187). The Department, favoring equal treatment of U.S. international
operators and foreign operators in most respects, concluded that the
``buy/sell'' provisions should apply only to domestic slots and that
all international slots will be treated the same, irrespective of
whether the holder is a U.S. carrier or foreign-flag carrier.
[[Page 2088]]
Thus, in 1985, U.S. carriers were required to identify which slots were
used for international service as of December 16, 1985.
The slots identified by U.S. carriers as international in 1985 were
predominantly used to service the U.S./Canada market. Certain
provisions applicable to international slots were specifically adopted
to address concerns by the Canadian carriers about competing with U.S.
carriers who had much larger slot basis at the HDR airports than the
Canadian operators. For example, an international slot could be traded
to another carrier for the purpose of conducting the operation in a
different hour or half-hour. Deliberate measures were taken in
promulgating the ``buy/sell'' rule to minimize distinctions between
U.S. and foreign-flag carriers when engaged in international
operations. Under a similar analysis, FAA now believes that the
treatment of U.S. carrier international slots at O'Hare and LaGuardia
warrants reexamination in light of the Agreement and the consideration
afforded Canadian carriers under the terms of the Agreement.
By classifying international slots held by the Canadian carriers as
domestic slots, the Canadian carriers may realize an unfair advantage
over U.S. carriers. Canadian carriers may buy, sell, or lease the slots
they use for U.S./Canada transborder service, while U.S. carriers that
operate international slots cannot buy, sell, or lease the slots for
the same transborder service. While the Agreement was clear that
Canadian carriers would be subject to the prevailing mechanisms for
slot allocation that apply to U.S. carriers, it was silent as to its
impact on U.S. carriers. U.S. carriers, subject to the existing
international allocation procedures, would continue to treat flights to
or from Canada as international flights for slots allocated under
section 93.217(1)(a). On the other hand, U.S. carriers may request
additional international slots under section 93.217(a)(1) for U.S./
Canada service while Canadian carriers could not, since Canadian
carriers are now subject to allocation procedures for domestic slots.
Canadian carriers may perceive this as an unfair benefit to their U.S.
competitors.
The equitable intent of the Agreement was to treat carriers of both
countries in the same manner for purposes of slot allocation.
Therefore, the FAA proposes similar treatment for certain, identified,
international slots held by U.S. carriers at O'Hare and LaGuardia
Airports. Specifically, the FAA proposes to reclassify as domestic a
total of 35 international slots at O'Hare and 17 international slots at
LaGuardia that are held by U.S. carriers. As stated above, the
principal reason for designating these slots as international slots in
December 1985 was to provide U.S. carriers the same opportunities and
protections as foreign-flag carriers, particularly with respect to
U.S.-Canada transborder service.
FAA records for O'Hare indicate that in December 1985, American
Airlines held 18 international slots, Northwest held two international
slots, and United held 15 international slots. Of these 35 slots, 32
were used for U.S./Canada service. Agency records for LaGuardia also
indicate that in 1985 American Airlines held 15 international slots and
Delta held two slots. The FAA finds significant that the four U.S.
carriers directly affected by the proposed redesignation of slots from
international to domestic status have continuously used these slots
since the adoption of the Department's slot allocation rules in
December 1985, and in some cases, conducted this same international
service prior to the adoption of the High Density Rule in 1969.
This proposed amendment would redesignate slots identified and held
by U.S. carriers as international under 14 CFR section 93.215(d),
provided that an equivalent number of slots were held by the carriers
as of February 24, 1998, the date of phase-in under the Agreement. This
proposal would not affect any other international slots subsequently
allocated under section 93.217 after December 1985, i.e., that were not
part of a carrier's historic base at the time that the ``buy/sell''
rule was adopted. This proposed ``conversion'' to domestic status would
provide affected slot holders with increased scheduling flexibility; as
domestic slots, they can be used for U.S./Canada transborder service,
any other domestic service, or for international service.
Since the FAA proposes to reclassify certain international slots
held by U.S. carriers as domestic, the FAA accordingly finds it
necessary to propose an adjustment of the international slot allocation
of air carriers holding or operating 100 or more slots at O'Hare.
Specifically, 14 CFR Section 93.217(a)(10) provides that the
international allocation for air carriers holding and operating 100 or
more permanent slots will not exceed the number of international slots
allocated to that carrier as of February 23, 1990, unless the
allocation could be made without increasing withdrawals. The purpose of
this amendment was to limit the ability of the largest U.S. air
carriers to force the withdrawal of domestic slots from other U.S.
carriers in order to expand international operations. The largest
carriers may still increase their international operations at O'Hare
above their international allocation of February 23, 1990; however,
they must do so by using slots from within their own domestic slot base
or from slots otherwise available without withdrawal of a slot. The
reclassification of certain international slots to domestic must take
into account large carriers that are subject to the above cap on
international allocation. Today the only carriers limited by section
93.217(a)(10) are American and United and their affiliated commuter
operations under common ownership. Consequently, in reclassifying the
18 international slots held by American and 15 international slots held
by United in December 1985, it would be necessary to adjust the
February 23, 1990, international allocation for, American and United by
the corresponding number. Therefore, the FAA proposes to reduce the
February 23, 1990, international base allocation for American and
United respectively by 18 and 15 slots.
Establishment of Regulatory Base of Slots for the Canadian Carriers
The terms of the Agreement also provide for an established based
level of slots for the Canadian carriers at LaGuardia and O'Hare. At
LaGuardia, the base level of slots for the Canadian carriers is 42. At
the time the Agreement was signed, the Canadian carriers held 28 slots.
In June 1995, the FAA was directed by the Department to allocate 14 new
slots to the Canadian carriers. The FAA proposes to increase the quota
under 14 CFR Section 93.123 for air carrier operations at LaGuardia to
include the 14 new slots, as authorized by the Agreement and in
operation since June 1995.
At O'Hare, the Agreement provides Canadian carriers with a base
level of 36 slots for the Summer season and 32 slots for the Winter
season. At the time of the Agreement, the Canadian slot base was
comprised of 12 slots held by the Canadian carriers since 1985, and 14
slots held by the Canadian carriers in time periods for which domestic
slots usually have been withdrawn. These 14 slots are allocated
seasonally under section 93.217 and do not constitute permanent slots.
In June 1995, ten slots were allocated to the Canadian carriers. Thus,
the above sets forth the present Canadian air carrier slot base, as
articulated in the Agreement. The Canadian carriers are now permitted
to buy, sell, lease or otherwise trade their
[[Page 2089]]
slots. The 14 slots held by Canadian carriers allocated under section
93.217(a)(6), which have resulted from withdrawals of domestic slots,
cannot be bought, sold, leased, or otherwise traded. The FAA does not
have a regulatory process to withdraw slots from domestic carriers and
to permanently allocate the slots to the Canadian carriers. The FAA
believes that creating 14 new slots at O'Hare would achieve two desired
results. First, it would address the requirements of the Agreement.
Second, it would not result in the permanent withdrawal of domestic
slots to the benefit of foreign-flag carriers. At the time that the
Agreement was negotiated, a permanent withdrawal of domestic slots was
not contemplated. Therefore, the FAA proposes to increase the quota
under 14 CFR Section 93.123 for air carrier slots at O'Hare to allow
the Canadian carriers to continue to operate as envisioned by the
negotiated Agreement without withdrawing domestic slots from U.S.
carriers. The 14 new slots, plus the 10 slots allocated in June 1995 in
addition to the 12 slots previously held by Canadian carriers, would
constitute the agreed upon slot base at O'Hare.
A section by section analysis describing the proposed amendments is
as follows:
Section 93.123 High Density Traffic Airports
The FAA proposes to amend section 93.123 by adding a footnote that
specifically allocates to the Canadian carriers 14 slots at LaGuardia
and 24 slots at O'Hare, in accordance with the Agreement between the
U.S. and Canada of February 24, 1995. The FAA proposes this amendment
in the manner of a footnote rather than as an amendment to the hourly
totals at LaGuardia and O'Hare for two reasons. First, these slots did
not exist for allocation prior to the negotiations for the bilateral
agreement between the U.S. and Canada, i.e., these slots did not
represent any unused capacity at either airport. Second, the special
allocation of these slots was a component of the complete negotiated
Agreement and constitutes the established base for Canadian carriers.
Therefore, not only were these slots not available for any of FAA's
specified allocation procedures as set forth in sections 93.217, 93.219
or 93.225 of Subpart S, but the FAA did not have discretion to allocate
these slots to any other requesting carrier.
Section 93.217 Allocation of Slots for International Operations and
Applicable Limitations
The FAA proposes amending section 93.217(a) to exclude from this
section, the allocation of international slots at HDR airports for
transborder service operations solely between that airport and Canada.
This proposal would not affect the allocation of international slots to
foreign-flag carriers for continuation flights originating/terminating
outside the U.S.
Additionally, section 93.217(a) (5), (6) and (8) require that
requests for international slot allocations must be submitted to the
FAA Slot Administration office by May 15 of each year for operations to
commence during the following Winter season and by October 15 for
operations to commence during the following Summer season. With the
exception of the U.S. slot controlled airports, all other capacity
scheduled international airports generally follow the IATA guidelines
in allocating international slots. The IATA guidelines for submission
of each carrier's seasonal request for slots are published by IATA and
generally fall within seven days of the FAA deadline articulated in
section 93.217 above. For carriers requesting international slots, the
use of two separate deadlines, one for U.S. airports and another for
all other airports, causes confusion and has resulted in carriers
unintentionally submitting late requests for O'Hare and Kennedy.
Therefore, the FAA proposes to amend the deadline for seasonal requests
to coincide with the date of submission for IATA. While the IATA
deadlines remain in October for the Summer season and May for the
Winter season, the particular date changes every year. The FAA proposes
to announce the submission deadline for international requests at
Kennedy and O'Hare in the Federal Register no later than 90 days in
advance of the scheduled IATA deadline. The FAA believes that
coordinating submission deadlines would reduce the administrative
burden for affected U.S. carriers and foreign-flag carriers, as well as
for the FAA.
Lastly, paragraph (a)(10) of this section would amend the
international allocation of the largest carriers at O'Hare by reducing
their international slot base to reflect the proposed reclassification
of certain international slots to domestic slots.
Section 93.218 Reclassification of Certain International Slots to
Domestic Slots and Special Provisions for Slots Held by Canadian
Carriers.
The FAA proposes a new section 93.218 that provides for the
reclassification as domestic slots the number of slots identified by
U.S carriers for international operations in December 1985. This number
is not to exceed the number of equivalent slots held as of February 24,
1998. In addition, this section would change the reclassification of
the slots comprising the Canadian slots base from international status
to domestic status. The properties and characteristics associated with
domestic slots, such as the minumum slot usage requirement, would
attach to all the slots in the slot base upon the reclassification as
domestic.
This section also proposes to codify the established base of slots
to Canadian carriers as set forth in the Agreement. The established
base of slots would consist of 42 slots at LaGuardia, 36 slots at
O'Hare for the Summer season, and 32 slots at O'Hare for the Winter
season.
In addition, in accordance with the Agreement, the FAA proposes
that any disposal of slots comprising the defined established base,
that would result in a decrease of that base would be considered a
permanent modification to the slot base.
Section 93.223 Slot Withdrawal
The FAA proposes to amend this section by adding a new paragraph
that would prevent, as specified by the terms of the Agreement, slots
that comprise the established Canadian slot base, as defined in the new
section 93.218, from being withdrawn to fulfill requests for
international operations or for new entrants.
Section 93.225 Lottery of Available Slots
Lastly, the FAA proposes to amend this section to include
participation by Canadian carriers in the allocation of slots by
lottery. Historically, the participation in slot lotteries was reserved
for domestic carriers. However, since Canadian carriers are now subject
to the same prevailing allocation methods that apply to U.S. carriers,
an extension of this provision would be necessary to provide the same
allocation procedures for carriers of both countries.
Related Petitions
On May 27, 1998, the FAA granted a limited exemption to Northwest
Airlines, Inc., permitting the air carrier to use two international
slots at O'Hare
[[Page 2090]]
for domestic service. The FAA found that the public interest supported
this limited exemption and recognized Northwest Airlines' considerable
long-term use of the two slots and the fact that its ``use'' of the
slots, at a minimum, has been equivalent to the usage required for
domestic service.
Additionally, by petition dated April 29, 1998, American Airlines
petitioned to redesignate 15 international slots at LaGuardia as
domestic slots.
The Proposal
In order to ensure that FAA regulations governing slots and slot
allocation procedures are consistent with the terms of the Agreement,
the FAA proposes to amend the following provisions of Subparts K and S:
The FAA proposes to: (1) codify, in a footnote to the hourly slot
totals in subpart K, the 14 slots at LaGuardia and 24 slots at O'Hare
that were allocated to the Canadian carriers in June 1995; (2) exclude
from the allocation of international slots at HDR airports transborder
service operations solely between that airport and Canada; (3) set
forth the provisions that apply to slots used for transborder service
between the U.S. and Canada and codify the established base level of
slots allocated to Canadian carriers; (4) reclassify certain
international slots as domestic slots; (5) reduce the international
allocation for air carriers that hold and operate more than 100
permanent slots at O'Hare by the number of international slots
reclassified as domestic slots; (6) permit Canadian carriers to
participate in any lotteries of domestic slots; and (7) amend the
regulatory deadline for submitting requests for international
allocation to coincide with the published IATA deadline.
The Summer 1999 scheduling season begins on April 4, 1999. The FAA
understands from industry practices that air carriers need
approximately 60 days advance notice to set schedules for aircraft
crews and to publish scheduled airline information. In order for all
air carriers that may be affected by the changes proposed in this NPRM
to be able to determine their slot base with respect to international
and domestic slots prior to this season, the FAA finds that a 30-day
comment period is justified. A 30-day comment period for this NPRM will
provide commenters with adequate time to file comments and will enable
the FAA to promulgate the final rule so that it can be in effect for
slot allocation for the 1999 Summer scheduling season.
Environmental Review
The FAA has concluded that this proposed rule does not trigger the
requirements of the National Environmental Policy Act (NEPA), 42 U.S.C.
4321 et seq., or other environmental laws. As explained below, the
action is a non-discretionary one mandated by the bilateral agreement
entered into by the United States and Canada on February 24, 1995.
In accordance with the bilateral agreement, part one of this
proposed regulation reclassifies slots held by Canadian carrier at
LaGuardia and O'Hare airports. The Canadian carriers' slots would be
converted from international to a modified form of domestic slots.
Under the arrangement mandated by the Agreement and codified in this
proposed regulation, the slots held by the Canadian carriers would
resemble domestic slots in that (1) they can be bought, sold, or traded
on the open market, and (2) they are subject to the bi-monthly ``use-
or-lose'' requirement. Unlike other domestic slots, however, the slots
held by the Canadian carriers would not be subject to seasonal
withdrawal for international use pursuant to 14 CFR section 93.217 or
for new entrants. To provent disparate treatment between U.S. carriers
and Canadian carriers, the proposed regulations would also reclassify
certain, identified international slots held by U.S. carriers as
domestic slots.
Part two of this proposed regulation would establish base levels of
permanent slots for the Canadian carriers at LaGuardia and O'Hare. The
bilateral agreement directs that the Canadian carriers receive 42
permanent slots at LaGuardia. Currently, the Canadian carriers are
using 42 slots at LaGuardia so no additional allocation of slots is
necessary. This Agreement also directs that the Canadian carriers
receive 36 Summer slots and 32 Winter slots at O'Hare. Currently, the
Canadian carriers hold 22 permanent slots at O'Hare. The Canadian
carriers also are allocated 14 seasonal slots for the summer and 10
seasonal slots for the winter under 14 CFR section 93.217 in time
periods for which domestic slots are withdrawn. To complete the base
level of slots at O'Hare, the proposed regulation provides that an
additional 14 slots in the summer and 10 slots in the winter be
allocated permanently to the Canadian carriers. Because the Canadian
carriers are receiving these allocations as permanent, the proposed
regulation also provides that they would no longer be eligible to
receive international slots under 14 CFR section 93.217.
No NEPA or other environmental analysis is required because the
proposed action is ministerial in nature. The FAA has no choice about
how to accomplish the international mandate, which reclassifies
international slots held by Canadian carriers as domestic slots and to
provide additional slots at O'Hare. While the FAA retains complete
authority to withdraw slots for operational needs in accordance with 14
CFR section 93.223, the existing allocation mechanisms do not provide a
means for the FAA to allocate the slots to the Canadian carriers. 14
CFR section 93.225 provides that if slots are available, the slots will
be distributed by random lottery with new entrant and limited incumbent
carriers receiving priority. In addition, fulfilling the Agreement
obligation by allocating slots under 14 CFR section 93.217 is not
feasible since these slots are allocated seasonally. Furthermore, even
if allocating slots under 14 CFR section 93.217 were feasible, slot
withdrawals by the FAA are legislatively capped at the level of slots
withdrawn as of October 31, 1993. 49 U.S.C. 41714(b)(2). Thus, lacking
a mechanism for withdrawing the slots from the existing slot holders
and re-directing them to the Canadian carriers, the FAA has no choice
but to comply with the bilateral agreement by creating 14 additional
slots at O'Hare. NEPA requires agencies to take environmental concerns
into consideration when making decisions where a range of alternatives
is available. However, under these circumstances, where no choice is
involved, an action is ministerial and no NEPA analysis is required.
The FAA's position that this action is ministerial finds support in
the NEPA-implementing regulations promulgated by the Department of
State, 22 CFR part 161. Among the actions which the State Department
exempts from NEPA analysis are:
Mandatory actions required under any treaty or international
agreement to which the United States Government is a party, or
required by the decisions of international organizations or
authorities in which the United States is a member or participant,
except when the United States has substantial discretion over
implementation of such requirements.
By comparison, the allocation of slots to the Canadian carriers is
an example of an action that would likely be exempt under the State
Department regulations. The FAA is required by the Agreement to allot
permanent slots to the Canadian carriers, and the agency has no
discretion but to create additional slots.
[[Page 2091]]
Given the international agreement, the FAA adopts the position espoused
by the State Department regulations and concludes that the allocation
of slots to Canadian carriers, as required by the bilateral agreement,
does not trigger NEPA compliance.
Regulatory Evaluation Summary
Both the executive and legislative branches of government recognize
that economic considerations are an important factor in establishing
regulations. Executive Order 12866, signed by President Clinton on
September 30, 1993, requires Federal agencies to assess both the costs
and benefits of proposed regulations. Recognizing that some costs and
benefits are difficult to quantify, agencies are to propose or adopt
regulations only upon a reasoned determination that the benefits of
each regulation justify its costs. In addition, the Regulatory
Flexibility Act of 1980 requires Federal agencies to determine whether
or not proposed regulations are expected to have a significant economic
impact on a substantial number of small entities, and, if so, to
examine the feasibility of regulatory alternatives to minimize the
economic burden on small entities. Finally, the Office of Management
and Budget directs agencies to assess the effects of proposed
regulations on international trade.
This section summarizes the FAA's economic and trade analyses,
findings, and determinations in response to these requirements. The
complete economic and trade analyses are contained in the docket.
The FAA allocates international and domestic slots without charge
to carriers at HDR airports. Allocated slots do not represent a
property right, but represent an operating privilege subject to
absolute FAA control. As such, the FAA does not place any economic
value on the slots it allocates at HDR airports. However, slots do have
economic value to air carriers, because they provide access to the HDR
airport, and with access to the airport comes the opportunity to earn
revenue.
A market has been created for those domestic slots that air
carriers control at the HDR airports. Since domestic slots can be
bought, sold, traded, or leased, these slots have a monetized value.
International slots also provide an opportunity to earn revenue.
However, because they cannot be bought, sold, leased, bartered, or used
as collateral, no market exists for them at HDR airports.
Although the total number of slots (international plus domestic)
would not increase for any of the U.S. carriers, the number of domestic
slots for affected carriers would increase. The proposed rule would
generate benefits for those air carriers holding historic slots
identified for international use under 14 CFR 93.215(d) because those
international slots would be converted to domestic slots. Operators
benefit because of the enhanced flexibility they receive to manage
their scheduling at HDR airports. The slots that have been converted
from international to domestic can be scheduled in Canada-USA
transborder service, they can be scheduled in other domestic service,
or they can be scheduled for any international service. Operators also
receive an expanded economic value because the market has placed a
value on domestic slots if the operator decides to buy, sell, lease,
barter, or collateralize slots. Therefore, the FAA believes that the
proposed rule would benefit operators not only because domestic slots
present a greater measure of potential earning power than do
international slots, but also because domestic slots offer operators a
better opportunity to manage their assets.
There is no compliance cost associated with the proposed rule. The
proposed rule would not impose any additional equipment, training,
administrative, or other cost to the aviation industry. However, the
FAA solicits comments regarding the extent and plausibility of the
adverse impacts on operators that feel they would be impacted from
implementation of the proposed rule. All commenters are asked to
provide detailed cost information on the nature of their impact and
over what time period.
The NPRM would not place any additional requirements on the
aviation industry. Therefore, there is no compliance costs associated
with the proposed rule. Qualitative benefits from the proposed rule
would come from converting certain identified international slots to
domestic slots, thereby affording operators greater flexibility,
because the converted slots can be used for transborder service, any
other domestic service, or for other international service. Domestic
slots have greater economic value than international slots, because
domestic slots can be bought, sold, leased, bartered, or used as
collateral. Due to the advantages domestic slots offer over
international slots, operators have an enhanced opportunity to manage
their assets in such a way as to maximize their income. Therefore, the
FAA has determined that the proposed rule is cost beneficial.
Initial Regulatory Flexibility Assessment
The Regulatory Flexibility Act of 1980 (RFA), as amended, was
enacted by Congress to ensure that small entities are not unnecessarily
and disproportionately burdened by Government regulations. The Act
requires that whenever an agency publishes a general notice of proposed
rulemaking, an initial regulatory flexibility analysis identifying the
economic impact on small entities, and considering alternatives that
may lessen those impacts must be conducted if the proposed rule would
have a significant economic impact on a substantial number of small
entities.
This proposed rule will impact entities regulated by part 93. The
FAA has determined that the proposed amendments to part 93, Subparts K
and S, if promulgated, would affect only two Canadian carriers and four
major U.S. carriers and, the proposed amendments would not have a
significant impact on these major air carrier costs. Therefore, the FAA
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities. However, the FAA
solicits comments from operators that feel they would be negatively
impacted from implementation of the proposed rule.
International Trade Impact Statement
This proposal could positively affect the sale of Canadian aviation
services in the United States, but it could also positively affect the
sale of United States aviation services in Canada. However, this
proposed rule is not expected to impose a competitive advantage or
disadvantage to either U.S. air carriers doing business in Canada or
Canadian air carriers doing business in the United States. This
assessment is based on the fact that this proposed rule would not
impose additional costs on either U.S. or Canadian air carriers.
Unfunded Mandates Reform Act Assessment
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process
[[Page 2092]]
to permit timely input by elected officers (or their designees) of
State, local, and tribal governments on a proposed ``significant
intergovernmental mandate.'' A ``significant intergovernmental
mandate'' under the Act is any provision in a Federal agency regulation
that would impose an enforceable duty upon State, local, and tribal
governments, in the aggregate of $100 million (adjusted annually for
inflation) in any one year. Section 203 of the Act 2 U.S.C. 1533, which
supplements section 204(a), provides that before establishing any
regulatory requirements that might significantly or uniquely affect
small governments, the agency shall have developed a plan that, among
other things, provides for notice to potentially affected small
governments, if any, and for meaningful and timely opportunity to
provide input in the development of regulatory proposals.
This rule does not contain any Federal intergovernmental or private
sector mandate. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the FAA has submitted an explanation of the proposed burden
associated with this NPRM to the Office of Management and Budget (OMB)
for its review. Under the provisions of this NPRM, Canadian carriers or
commuter operators would need to report to the FAA certain aspects of
their operations at high density requirement (HDR) airports.
Specifically, FAA regulation requires notification of (1) requests for
confirmation of transferred slots; (2) requests to be included in a
lottery for available slots; (3) usage for slots on a bi-monthly basis;
and (4) requests for short-term use of off peak hour slots. Prior to
this NPRM, Canadian carriers and commuter operators were not required
to submit this information for international slots, nor were they able
to participate in the allocation procedures that apply to U.S.
carriers. The total reporting burden associated with this NPRM is 54
hours. The affected public would be Canadian carriers or commuter
operators. The requirement would be mandatory. Once this NPRM becomes a
final rule, the burden associated with it would be added to the current
information collection package, High Density Traffic Airports; Slot
Allocation and Transfer Methods, OMB approval number 2120-0524.
Federalism Implications
The regulations proposed herein will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
List of Subjects in 14 CFR Part 93
Air traffic control, Airports, Alaska, Navigation (air), Reporting
and recordkeeping.
The Proposed Amendment
For the reasons set forth above, the Federal Aviation
Administration proposes to amend 14 CFR part 93 as follows:
PART 93--SPECIAL AIR TRAFFIC RULES AND AIRPORT TRAFFIC PATTERNS
1. The authority citation for part 93 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44719, 46301.
2. Sec. 93.123 is amended by adding a new footnote 5 in the
headings in columns 2 and 4 and revising the heading in column 5 of the
chart in paragraph (a) to read as follows:
Sec. 93.123 High density traffic airports.
(a) * * *
IFR Operations Per Hour--Airport
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class of user LaGuardia \4\ \5\ Newark O'Hare \2\ \3\ \5\ Ronald Reagan National \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
\1\ Washington National Airport operations are subject to modifications per Section 93.124.
\2\ The hour period in effect at O'Hare begins at 6:45 a.m. and continues in 30-minute increments until 9:15 p.m.
\3\ Operations at O'Hare International Airport shall not--
(a) Except as provided in paragraph (c) of the note, exceed 62 for air carriers and 13 for commuters and 5 for ``other'' during any 30-minute period
beginning at 6:45 a.m. and continuing every 30 minutes thereafter.
(b) Except as provided in paragraph (c) of the note, exceed more than 120 for air carriers, 25 for commuters and 10 for ``other'' in any two consecutive
30-minute periods.
(c) For the hours beginning as 6:45 a.m., 7:45 a.m., 11:45 a.m., 7:45 p.m. and 8:45 p.m., the hourly limitations shall be 105 for air carriers, 40 for
commuters and 10 for ``other,'' and the 30-minute limitations shall be 55 for air carriers, 20 for commuters and 5 for ``other.'' For the hour
beginning at 3:45 p.m., the hourly limitations shall be 115 for air carriers, 30 for commuters and 10 for ``others'', and the 30-minute limitations
shall be 60 for air carriers, 15 for commuters and 5 for ``other.''
\4\ Operations at LaGuardia Airport shall not--
(a) Exceed 26 for air carriers, 7 for commuters and 3 for ``other'' during any 30-minute period.
(b) Exceed 48 for air carriers, 14 for commuters, and 6 for ``other'' in any two consecutive 30-minute period.
\5\ Pursuant to bilateral agreement, 14 slots at LaGuardia and 24 slots at O'Hare are allocated to the Canadian carriers. These slots are excluded from
the hourly and daily quotas set forth in this section.
3. Section 93.217 is amended by revising paragraphs (a)
introductory text, (a)(5), (a)(6), (a)(8) and (a)(10)(i) to read as
follows:
Sec. 93.217 Allocation of slots for international operations and
applicable limitations.
(a) Any air carrier or commuter operator having the authority to
conduct international operations shall be provided slots for those
operations, excluding transborder service solely between HDR airports
and Canada, subject to the following conditions and the other
provisions of this section:
* * * * *
(5) Except as provided in paragraph (a)(10) of this section, at
Kennedy and O'Hare Airports, a slot shall be allocated, upon request,
for seasonal international operations, including charter operations, if
the Chief Counsel of the FAA determines that the slot had been
permanently allocated to and used by the requesting carrier in the same
hour and for the same time period during the corresponding season of
the preceding year. Requests for such slots must be submitted to the
office specified in Sec. 93.221(a)(1), in accordance with the terms
published in the Federal Register for each season. For operations
during the 1986 summer season, request under
[[Page 2093]]
this paragraph must have been submitted to the FAA on or before
February 1, 1986. Each carrier requesting a slot under this paragraph
must submit its entire international schedule at the relevant airport
for the particular season, noting which requests are in addition to or
changes from the previous year.
(6) Except as provided in paragraph (a)(10) of this section,
additional slots shall be allocated at O'Hare Airport for international
scheduled air carrier and commuter operations (beyond those slots
allocated under Sec. 93.215 and Sec. 93.217(a)(5)) if a request is
submitted to the office specified in Sec. 93.221(a)(1) and filed in
accordance with the terms published in the Federal Register for each
season. These slots will be allocated at the time requested unless a
slot is available within one hour of the requested time, in which case
the unallocated slots will be used to satisfy the request.
* * * * *
(8) To the extent vacant slots are available, additional slots
during the high density hours shall be allocated at Kennedy Airport for
new international scheduled air carrier and commuter operations (beyond
those operations for which slots have been allocated under Secs. 93.215
and 93.217(a)(5)), if a request is submitted to the office specified in
Sec. 93.221(a)(1) and in accordance with the terms published in the
Federal Register for each season. In addition, slots may be withdrawn
from domestic operations for operations at Kennedy Airport under this
paragraph if required by international obligations.
* * * * *
(10) * * *
(i) Allocation of the slot does not result in a total allocation to
that carrier under this section that exceeds the number of slots
allocated to and scheduled by that carrier under this section on
February 23, 1990, and as reduced by the number of slots reclassified
under Sec. 93.218, and does not exceed by more than 2 the number of
slots allocated to and scheduled by that carrier during any half hour
of that day, or
* * * * *
3. A new Sec. 93.218 is added to read as follows:
Sec. 93.218 Slots for transborder service to and from Canada.
(a) Except as otherwise provided in this subpart, effective
February 24, 1998, international slots identified by U.S. carriers for
international operations in December 1985 and the equivalent number of
international slots held as of February 24, 1998, will be domestic
slots. The Chief Counsel of the FAA shall be the final decisionmaker
for these determinations.
(b) Canadian carriers shall have a guaranteed base level of slots
of 42 slots at LaGuardia, 36 slots at O'Hare for the Summer season, and
32 slots at O'Hare in the Winter season.
(c) Any modification to the slot base by the Government of Canada
or the Canadian carriers that results in a decrease of the guaranteed
base in paragraph (b) of this section shall permanently modify the base
number of slots.
4. Sec. 93.223 is amended by adding a new paragraph (c)(4) to read
as follows:
Sec. 93.223 Slot withdrawal.
* * * * *
(c) * * *
(4) No slot comprising the guaranteed base of slots, as defined in
Sec. 93.318(b), shall be withdrawn for use for international operations
or for new entrants.
* * * * *
5. Sec. 93.225 is amended by revising paragraph (e) to read as
follows:
Sec. 93.225 Lottery of available slots.
* * * * *
(e) Participation in a lottery is open to each U.S. air carrier or
commuter operator operating at the airport and providing scheduled
passenger service at the airport, as well as where provided for by
bilateral agreement. Any U.S. carrier that is not operating scheduled
service at the airport and has not failed to operate slots obtained in
the previous lottery, or slots traded for those obtained by lottery,
but wishes to initiate scheduled passenger service at the airport,
shall be included in the lottery if that operator notifies, in writing,
the Slot Administration Office, AGC-230, Office of the Chief Counsel,
Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591. The notification must be received 15 days prior
to the lottery date and state whether there is any common ownership or
control of, by, or with any other air carrier or commuter operator as
defined in Sec. 93.213(c). New entrant and limited incumbent carriers
will be permitted to complete their selections before participation by
other incumbent carriers is initiated.
* * * * *
Issued in Washington, DC, on January 6, 1998.
James W. Whitlow,
Deputy Chief Counsel.
[FR Doc. 99-621 Filed 1-7-99; 12:13 pm]
BILLING CODE 4910-13-M