Order Tentatively Establishing Exemption Criteria for Regional and Commuter Airlines From Certain Notice Requirements

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Order 94-10-5 and Docket 49814]

Order Tentatively Establishing Exemption Criteria for Regional

and Commuter Airlines From Certain Notice Requirements

SUMMARY: We are publishing the order in its entirety as an appendix to

this document.

DATES: Issued in Washington, DC, October 6, 1994.

FOR FURTHER INFORMATION CONTACT:

Dennis DeVany, Chief, EAS & Domestic Analysis Division, U.S. Department

of Transportation, Office of Aviation Analysis, room 6401, 400 Seventh

Street, SW., Washington, DC 20590, (202) 366-1061.

On August 23, 1994, Congress enacted the Federal Aviation

Administration Authorization Act of 1994 (P.L. 103-305), which, among

other things, establishes notice requirements on airlines intending to

suspend service at certain communities, effective February 1, 1995.

Specifically, the law states, ``An air carrier may not terminate

interstate air transportation from a nonhub airport included on the

Secretary's latest published list of such airports, unless such air

carrier has given the Secretary at least 45 days' notice before such

termination.''\1\ There are several exemptions to the notice

requirement. Carriers are exempt from filing a suspension notice if

they are experiencing a sudden or unforeseen financial emergency

including natural weather-related emergencies, equipment-related

emergencies, or strikes. Other exemptions include seasonal suspensions,

cases in which the airline has served the community for 180 days or

less, cases in which the airline provides jet service from another

airport serving the same community, and cases in which the departing

airline arranges with another airline to provide replacement service so

that the service continues uninterrupted.\2\

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\1\The final version of the law contains a technical drafting

error. The ``Definitions'' section of the law (section 41715(d)(1)),

includes a definition of ``nonhub airport'' by reference, but the

reference is incorrect--i.e., it refers to section 41731(a)(3),

which in fact defines a ``hub airport'', but should have referred to

section 41731(a)(4). The Senate version, which was adopted in

conference, referred to section 419(k)(4) of the Federal Aviation

Act, which correctly defined a ``nonhub airport''. During the time

that the bill was under consideration, the Federal Aviation Act and

other related statutes were codified. The incorrect citation above

occurred in the translation to the codified statute. We are

implementing the provision as intended and will seek corrective

legislation.

\2\The Department will issue a Notice of Proposed Rulemaking

addressing those issues shortly.

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Finally, the law allows for waivers from the notice requirements

for regional and commuter airlines. Specifically, the law requires

that, ``Before January 1, 1995, the Secretary shall establish terms and

conditions under which regional/commuter carriers can be excluded from

the termination notice requirement.''

First, we wish to make clear that nothing in the legislation or in

this order has any effect on the notice requirements already in place

in connection with the Department's essential air service (EAS)

program. All carriers will continue to be subject to all applicable

laws and regulations pertaining to the EAS program. In case of

conflict, the more stringent and longer notice requirements shall

prevail.

By this order we tentatively propose to establish criteria for

waivers for regional and commuter airlines. The legislative history of

this bill indicates that the primary focus is on jet service, i.e., on

ensuring that communities receive at least 45 days' notice before jet

service to them is terminated. Consistent with that intent, the

legislation requires the Secretary to carve out exemptions for regional

and commuter carriers. (The legislation defines a regional/commuter

carrier as an airline operating under 14 CFR Part 135, or one operating

under 14 CFR Part 121 that operates exclusively with 70-seat or smaller

aircraft.) Because the primary focus is on jet service, we propose to

exempt regional and commuter carriers from the requirement to file a

45-day notice if jet service would remain at the community. Absent the

availability of jet service, the focus of the new law would also appear

not to dictate a notice obligation if a community retained two or more

non-jet carriers following the suspension of service by another. We

would propose, therefore, to grant exemptions from the 45-day filing

requirement if two or more regional/commuter carriers would remain at

the community, i.e., the third to last commuter/regional carrier would

not have to file a notice. We would not exempt the second to last

carrier from a notice obligation. Requiring such notice in that

situation would obviate the prospect that one of two carriers serving a

community could suspend service abruptly even if it was providing the

lion's share of the service, as long as the remaining carrier was

technically meeting the community's EAS definition.

We will establish a 30-day period from the issue date of this order

for interested parties to show cause why we should not adopt our

tentative conclusions as final. Any objection should demonstrate how

our tentative decision is not consistent with the applicable law and

must include the conditions under which regional/commuter airlines

should be exempted from the notice requirements. After reviewing all

the objections, if any, we will issue an order taking final action on

the waivers for commuter and regional carriers.

This order is issued under authority delegated in 49 CFR 1.56(i).

Accordingly,

1. The Department tentatively establishes waivers for regional and

commuter airlines from the notice requirements contained in the Federal

Aviation Administration Authorization Act of 1994 (P.L. 103-305). The

waivers would apply under either of the following two conditions: (1)

if the affected community would continue to receive scheduled jet

service, or (2) if the affected community would continue to receive

scheduled air service from two or more regional/commuter carriers;

2. The Department directs all interested parties to show cause

within 30 days of the issue date of this order why we should not

finalize the tentative conclusions in paragraph 1 above; and

3. We will publish a copy of this order in the Federal Register.

By:

Patrick V. Murphy,

Acting Assistant Secretary for Aviation and International Affairs.

[FR Doc. 94-25319 Filed 10-12-94; 8:45 am]

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