High Density Rule

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 93

[Docket No. 29624]

High Density Rule

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed interpretation; request for comments.

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SUMMARY: This action requests comments on a proposed interpretation of

the term ``operator'' as used to interpret the extra section provision

of the FAA's High Density Rule. This proposed interpretation would

permit one airline code-share partner to operate an extra section of a

regularly scheduled flight of another code-share partner. It is

intended to recognize the development of code-share arrangements in the

aviation industry.

DATES: Comments must be submitted on or before July 12, 1999.

ADDRESSES: Comments regarding this action should be mailed, in

triplicate, to Federal Aviation Administration, Office of the Chief

Counsel, Attention: Rules Docket (AGC-10), Docket No. 29624, 800

Independence Avenue, SW., Washington, DC 20591. Comments must be marked

Docket No. 29624. Comments may be examined in Room 915G weekdays

between 8:30 a.m. and 5 p.m., except on Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lorelei Peter, Air Traffic and

Airspace Law Branch, Office of the Chief Counsel, AGC-230, Federal

Aviation Administration 800 Independence Avenue, SW., Washington, DC

20591, (202) 267-3073.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to comment on this action by

submitting such written data, views, or arguments, as they may desire.

Comments should identify the regulatory docket and should be submitted

in triplicate to the Rules Docket address specified above. All comments

received will be available, both before and after the closing date for

comments, in the Rules Docket for examination by interested persons.

Commenters wishing the FAA to acknowledge receipt of their comments

submitted in response to this action must include a preaddressed,

stampted postcard marked ``Comments to Docket 29624.'' The postcard

will be date stamped and mailed to the commenter.

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

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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 Washington National

(National) Airport, 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 (14 CFR part 93, subpart S), 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

bought and sold by any party.

Current Requirements

14 CFR 93.123(b)(4) permits air carriers at LaGuardia, Newark,

O'Hare and National Airports to conduct ``extra section'' operations of

scheduled flights. Additionally, commuters are permitted to conduct

extra section operations of scheduled flights at National Airport. An

extra section is when an operator conducting a scheduled operation with

a slot finds it necessary to use an additional aircraft to service

passengers that cannot be accommodated on the original scheduled

flight. Under these circumstances, the operator may conduct that

additional flight or ``extra section'' without another slot.

The purpose of the extra section provision was to accommodate

operations that an operator cannot precisely predict. Extra section

operations are not scheduled operations and it would be impractical to

obtain permanent slots for such operations. Regular scheduled

operations do not have the same uncertainty and, these require slots.

The extra section authority is available to any air carrier, or

commuter operator at Washington National, with a slot for regularly

scheduled operations. The extra section must: (1) Be non-scheduled; (2)

serve passengers that cannot be accommodated on the original scheduled

flight for which the operator has obtained an arrival or departure

slot; and (3) depart no more than a few minutes before, on, or after

the time at which the original flight was scheduled (46 FR 58306;

November 27, 1981).

Historically, the FAA has interpreted the extra section provision

as limited to aircraft operated by the operator who had the slot and

conducted the scheduled operation. At the time this provision was

promulgated, code-share agreements were not widely used. The FAA finds

that the increasing use of code-share agreements in the aviation

industry warrants a reexamination of this interpretation.

Proposed Interpretation

For purposes of the extra section provision codified in 14 CFR

92.123(b)(4), the FAA proposes to interpret the term ``operator'' to

include the partners to a code-share agreement/alliance. As a result of

this proposed interpretation, one code-share partner may conduct an

extra section operation to an original scheduled flight of another

code-share partner without the need for an additional slot. This

interpretation does not change the requirement for the operator

conducting the original scheduled operation to have a slot allocated

under 14 CFR 93.123. This interpretation also does not affect any

aspect of the Department's policy and regulations addressing code-

share.

The FAA does not anticipate that this proposed interpretation would

result in any operational impact at the airports since the regulations

permit use of extra sections. Lastly, the FAA emphasizes that this

proposed interpretation does not affect or in anyway modify the

provisions of 14 CFR 93.123(c), which establishes the type of aircraft

that may operate in air carrier and commuter slots at the high density

traffic airports. The regulations governing slots do not permit the use

of air carrier category aircraft in commuter slots. Specifically, at

National Airport, only commuter equipment may be used to conduct extra

sections of commuter operations when using a commuter slot.

The FAA requests comments on the above-proposed interpretation. The

FAA finds that because there is an immediate need for this flexibility

in extra section operations, the public interest supports a short

comment period.

Regulatory Evaluation Summary

Changes to Federal regulations must undergo several economic

analyses. First, Executive Order 12866 directs that each Federal agency

shall proposed or adopt a regulation only upon a reasoned determination

that the benefits of the intended regulation justify its costs. Second,

the Regulatory Flexibility Act requires agencies to analyze the

economic effect of regulatory changes on small business and other small

entities. Third, the Office of Management and Budget directs agencies

to assess the effect of regulatory changes on international trade. This

proposed interpretation has been reviewed as an interpretive rule in

accordance with Executive Order 12866 and the Regulatory Flexibility

Act of 1980. It is not a ``significant regulatory action'' as defined

in the Executive Order or the Department of Transportation Regulatory

Policies and Procedures.

The proposed interpretation would permit code share partners to

operate extra sections at certain high density airports. Extra section

operations are already permitted by the rule. This proposed

interpretive rule would not impose any new or additional costs on code

share partners.

Moreover, since the expected impact is minimal, this proposal does

not warrant a full evaluation. This proposed interpretative rule is not

considered significant under the regulatory procedures of the

Department of Transportation (44 FR 11034; February 26, 1979).

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980, 5 U.S.C. 601-612, was

enacted by U.S. Congress to ensure that small entities are not

unnecessarily or disproportionately burdened by Government regulations.

The RFA requires a regulatory flexibility analysis if a proposed rule

has a significant economic impact on a substantial number of small

business entities.

The FAA is aware of only two air carriers regularly using extra

sections in their daily operations (``shuttle operators''). These

operators are not small entities. Moreover, while the resulting

flexibility in the use of one partner's aircraft to support the

operation of the other partner will result in some benefits to the

affected air carriers and commuters, they are minimal when compare to

the

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overall revenues derived from their operations. Accordingly, pursuant

to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal

Aviation Adminsitration certifies that this rule would not have a

significant economic impact on a substantial number of small entities.

The FAA solicits comments from affected entities with respect to this

finding and determination and requests that commenters provide

supporting data or analyses.

International Trade Impact Analysis

The provisions of this proposed interpretive rule would have little

or no impact of trade for U.S. firms doing business in foreign

countries and foreign firms doing business in the United States.

Federalism Implications

The proposed interpretive rule would not have a substantial direct

effect 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 rule

would not have sufficient federalism implications to warrant the

preparation of a federalism assessment.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (the Act),

codified in 2 U.S.C. 1501-1571, 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 when such a

mandate would be ``significant.'' A significant regulatory action under

the Act is any provision in a Federal agency regulation that would

result in an expenditure by State, local, and tribal governments, or by

the private sector, in the aggregate of $100 million or more (adjusted

annually for inflation) in any one year.

Since this proposed interpretive rule does not impose any cost, the

requirements of Title II of the Unfunded Mandates Reform Act of 1995 do

not apply.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d)), the FAA has determined that there are no requirements for

information collection associated with this proposed rule.

Issued in Washington, DC, on June 28, 1999.

Nicholas G. Garaufis,

Chief Counsel.

[FR Doc. 99-16807 Filed 7-1-99; 8:45 am]

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