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Operating Limitations at Newark Liberty International Airport

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Start Preamble


Federal Aviation Administration (FAA), DOT.


Notice of Proposed Order Limiting Scheduled Operations at Newark Liberty International Airport; Request for Comments.


The Federal Aviation Administration (FAA) has tentatively determined that it is necessary to place a temporary limitation on scheduled flight operations at Newark Liberty International Airport (EWR). The FAA is issuing this proposal as a result of persistent congestion and delays at EWR during the peak operating hours, as well as a dramatic projected increase in flight delays at the airport during the summer of 2008 if proposed schedules were implemented as requested by carriers. We intend this proposed limitation on scheduled operations to relieve the substantial inconvenience to the traveling public caused by excessive congestion-related flight delays at the airport, which magnify as they spread through the National Airspace System. Among other things, this proposal will ensure that projected delays do not increase significantly and provide for a more efficient use of the nation's airspace. The final Order would take effect at 6 a.m., Eastern Time, on June 1, 2008, and would expire at 11:59 p.m., Eastern Time, on October 24, 2009.

This proposed limitation on scheduled operations is necessary to prevent an increase in scheduled flights during peak hours. Flights in certain hours in summer 2007 were in excess of the airport's capacity, and scheduling is a factor in the high level of delays historically experienced at the airport. The proposed limits would apply to all U.S. and foreign air carriers' scheduled operations, excluding helicopters, from 6 a.m., Eastern Time, through 10:59 p.m., Eastern Time. A final Order would be enforceable under the FAA's civil penalty authority. In a separate docket, the FAA intends to propose limits on unscheduled flights at EWR during the same hours, as well as a system to allocate the reservations for the available unscheduled operations. The FAA anticipates that the total number of operations at EWR will be limited to an average of 83 per hour.


Send your comments on this proposed order on or before April 1, 2008.


You may submit comments, identified by docket number FAA-2008-0221, using any of the following methods:

  • Federal eRulemaking Portal: Go to and follow the online instructions for sending your comments electronically.
  • Mail: Send comments by mail to Docket Operations, U.S. Department of Transportation, M-30, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. Persons wishing to receive confirmation of receipt of their written submission should include a self-addressed stamped postcard.
  • Hand Delivery: Deliver comments to Docket Operations in Room W12-140 on the ground floor of the West Building at 1200 New Jersey Avenue, SE., Washington DC, between 9 a.m. and 5 Start Printed Page 14553p.m., Monday through Friday, except Federal holidays.
  • Facsimile: Fax comments to the docket operations personnel at 202-493-2251.

Privacy: We will post all comments that we receive, without change, at, including any personal information that you provide. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments in any of our dockets, including the name of the individual sending the comment or signing the comment on behalf of an association, business, labor union, or other entity or organization. You may review the DOT's complete Privacy Act Statement in the Federal Register at 65 FR 19477-78 (April 11, 2000), or you may find it at

Reviewing the docket: To read background documents or comments received, go to at any time and follow the online instructions for accessing the docket; or go to Docket Operations in Room W12-140 on the ground floor of the West Building at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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Gerry Shakley, System Operations Services, Air Traffic Organization; telephone—(202) 267-9424; e-mail—

End Further Info End Preamble Start Supplemental Information


I. Background

The U.S. Government has exclusive sovereignty over the airspace of the United States.[1] Under this broad authority, Congress has delegated to the Administrator extensive and plenary authority to ensure the safety of aircraft and the efficient use of the nation's navigable airspace. In particular, the Administrator is required to assign the use of navigable airspace by regulation or order under such terms, conditions, and limitations as he may deem necessary to ensure its efficient use.[2] The Administrator also may modify or revoke an assignment when required in the public interest.[3] The FAA construes its statutory directive to act in the public interest as implicitly applying to any decision by the FAA to assign the efficient use of the navigable airspace. Furthermore, in carrying out the Administrator's safety responsibilities under the statute, the Administrator must consider controlling the use of the navigable airspace and regulating civil operations in that airspace in the interest of the safety and efficiency of those operations.[4]

The FAA interprets its broad statutory authority to manage “the efficient use of airspace” to encompass its management of the nationwide system of air commerce and air traffic control. On a daily basis, that system regularly transports millions of passengers, thousands of tons of cargo, and millions of pieces of mail. The FAA believes that ensuring the efficient use of the airspace means that it must take all necessary and reasonable steps to prevent extreme congestion at an airport from disrupting or adversely affecting the overall air traffic system for which the FAA is responsible. Inordinate delays at a single airport can ripple throughout other parts of the system, causing losses in time and money for individuals and non-aviation businesses, as well as for U.S. and foreign air carriers.

EWR has historically experienced a significant number of delays relative to other airports. Ranked according to the proportion of delayed operations, EWR has frequently been the most delayed airport in the system. Daily operations have been relatively stable while delays have continued to increase. In Fiscal Year (FY) 2000, there were 1,253 average daily operations. In FY 2007, there were 1,219 average daily operations, a decrease of about 3 percent. Demand during peak hours, however, approaches or exceeds the average runway capacity, resulting in volume-related delays. These are more apparent when weather or other operating conditions reduce the airport's capacity below optimal levels. The percent of on-time gate arrivals within 15 minutes of the scheduled time decreased from 70.66% in FY 2000 to 63.97% in FY 2006 and to 61.71% in FY 2007. The average daily counts of arrival delays greater than one hour were 54 in FY 2000; 79 in FY 2006; and 93 in FY 2007, an increase of almost 18% in the last fiscal year alone.

During the summer of 2007, another New York-area airport, John F. Kennedy International Airport (JFK), also experienced significant congestion-related delays. Based on both airports' summer 2007 performance and absent any major capacity enhancing projects, the FAA designated the airports as Level 2 Schedules Facilitated Airports for the summer 2008 scheduling season, in accordance with the International Air Transport Association (IATA) Worldwide Scheduling Guidelines.[5] In designating the airports as IATA Level 2 Schedules Facilitated Airports, the FAA required all U.S. and foreign air carriers to report to the FAA their proposed summer 2008 scheduled operations at the airports during designated hours.[6]

The information that the U.S. and foreign air carriers reported to the FAA regarding their proposed operations at EWR reflected a significant increase in scheduled operations, especially during already peak hours when the airport routinely experienced delays. In particular, U.S. and foreign air carriers requested about 100 new operations, adding to the schedules that produced pronounced delays during summer 2007. The proposed schedules in the afternoon and evening period were of the greatest concern. For example, several consecutive hours would have had demand for arrivals or departures in the mid-90s and others in the upper 80s. By contrast, EWR's adjusted average airport capacity reflects that, from September 2006 through August 2007, the airport handled or was capable of handling an average of 83 operations per hour.

The FAA modeled the level of delays that passengers transiting EWR could expect if the carriers were to operate the summer 2008 schedules that they proposed. The average arrival delays would have increased 38% to 35 minutes; the average number of arrival delays of at least one hour would have increased 50%; and the mean arrival delay would have reached almost 80 minutes by 7 p.m. Departures would have likewise been impacted.[7]

Moreover, the congestion and delays that the FAA modeled for the proposed EWR schedules would also have an adverse effect on other airports in the region and on the National Airspace System. For example, JFK and LaGuardia Airport, which are located only a few miles from EWR, have Start Printed Page 14554consistently been among the nation's most delay-prone airports. The recently approved airspace redesign plan for the New York/New Jersey/Philadelphia metropolitan area documents the costs and far-reaching impacts of delays that emanate from this area.[8]

In response to the U.S. and foreign air carriers' proposed summer 2008 schedules, the FAA held discussions with many of the carriers to validate their schedule requests and to ask them to reconsider their proposed timings in light of the airport's capacity limitations. Although there were some modest revisions to the proposed schedules, it was clear that demand would continue to exceed capacity without further actions. The FAA elected to modify EWR's IATA designation to a Level 3 Coordinated Airport for summer 2008.[9] This designation permitted the FAA the flexibility to focus proposed new operations at the airport on hours during which airport capacity is available and to deny proposed new operations during oversubscribed hours. Some carriers, including Continental Airlines, the primary hub carrier at EWR, moved some historic peak hour flights to less congested times in order to assist with delay reduction. The results of the FAA's discussions with U.S. and foreign air carriers with respect to their summer 2008 schedules are summarized in the appendix to this proposed order. The FAA has also provided individual schedule approval to carriers as part of the IATA Worldwide Scheduling Guidelines review process and other discussions. The individual schedule approval may contain additional information regarding effective dates or schedule changes for parts of the summer 2008 season. Although the appendix summarizes the peak period operations, it is not meant to rescind any prior approvals granted by the FAA for summer 2008.

Despite the relative relief that the approved schedules should yield over the proposed summer 2008 schedules, the FAA, working with the airport operator, carriers, and other customer representatives, has begun to implement a number of short-term initiatives to improve the efficiency of airport operations and the air traffic control system, especially during periods of adverse weather when the effects of overscheduling are more pronounced. The FAA's recently concluded New York Aviation Rulemaking Committee examined congestion issues in the New York area and considered a list of over 77 initiatives that could improve operations in the region, including some that apply specifically to EWR. Moreover, airspace redesign will open additional arrival and departure routes in the New York area to reduce delays and congestion. These measures alone, however, are not expected to provide sufficient near-term gains to accommodate the peak hour schedules at EWR's unrestricted level of demand.

II. Summary of the Proposed Operational Limitations

A. Hourly Schedule Limitations

The FAA proposes to limit total operations at EWR during the constrained hours to an average of 83 per hour. Accordingly, the proposed limitation on scheduled operations identified in the appendix is based on the FAA's assessment that EWR's adjusted average airport capacity from September 2006 through August 2007 was 83 operations per hour, and it takes into account the need for some accommodation of unscheduled operations at the airport. In identifying EWR's average adjusted airport capacity, the FAA considered the airport's capacity to be the higher value of either the aircraft throughput at the airport in a given hour or the number of arrivals and departures that air traffic control personnel identified as achievable in that hour. As a result, the FAA accepted the higher number when the airport's performance exceeded expectations, as well as when the airport's potential capacity exceeded demand. This measurement reflects the airport's demonstrated and potential performance over time under actual meteorological and operational conditions.

The modeled delays for the schedules in the appendix will be a significant improvement over the proposed summer 2008 schedules that the carriers filed with the FAA in October 2007, under which the longest arrival delays would increase by up to 50 percent over the summer 2007 levels. The scheduled operations identified in the appendix include an average of almost 82 operations by U.S. and foreign air carriers in certain hours. Some hours are currently below the limit of 81 and will be used for delay mitigation during, at a minimum, the summer of 2008.

The FAA has decided to allocate Operating Authorizations in 30-minute increments. The FAA will continue to work with carriers to smooth their schedules and to adjust the timing of arriving and departing flights within the allocated times. We will also closely monitor the efficiency gains and the reduction in delay from the implementation of airspace redesign and other air traffic control or airport operational changes in order to ensure that our scheduling limits reflect fully the available capacity.

B. Operational Flexibility and Future Airport Growth

Based on the FAA's experience with capacity-constrained airports, we anticipate that U.S. and foreign air carriers may occasionally need to modify their schedule times for operational or other reasons while the Order that we propose is in effect. Accordingly, we acknowledge that the Order should provide a mechanism through which such carriers can modify their schedules. Given the near-saturation of the EWR's peak operational hours, however, it is also essential that any schedule adjustment preserves the stabilizing effect of the operational limits. Therefore, we propose to establish three means through which U.S. and foreign air carriers can change an initial allocation of an Operating Authorization within the period from 6 a.m. through 10:59 p.m.

First, because it is necessary to evaluate the effect of any proposed schedule change, a U.S. or foreign air carrier must obtain the Administrator's written approval before making a schedule change that would be outside the 30-minute window of the allocated Operating Authorization. If we determine that the schedule change will not adversely affect congestion at EWR, the FAA will approve it. Because the FAA wishes to maximize the reduction in delays while accommodating carriers' need for flexibility, the FAA anticipates that it would approve schedule changes that would reduce the overall number of flights in any given hour to or below 81.

Second, if the FAA is unable to approve a proposed schedule change, a U.S. or foreign air carrier may still achieve the scheduling change by trading Operating Authorizations with another carrier. Before any such trade becomes final, the carriers must obtain the Administrator's written approval. Once again, if the FAA determines that the trade will not increase congestion at EWR, it may be approved.

Third, in addition to the permitted trades of Operating Authorizations among U.S. or foreign air carriers, the FAA will permit the leasing of the Operating Authorizations assigned Start Printed Page 14555under the final Order, provided that any lease does not survive the Order's expiration. The carriers may offer or accept any form of consideration in a lease transaction negotiated under the Order. However, the Order is not intended to create a long-term solution to congestion at EWR. Because the Operating Authorizations established under the Order will not create long-term rights at EWR, the FAA will not allow lease transactions that assume that the carrier leasing an Operating Authorization will acquire any right to continue operating flights after the Order expires. Accordingly, permanent sales, purchases, or transfers of Operating Authorizations will not be permitted. In addition, in order to promote meaningful participation in the IATA scheduling process, a carrier may not lease an Operating Authorization unless it has actually used the authorization to conduct flights to or from EWR at least 80% of the time over a consecutive 90-day period.

In the event that any new capacity is realized at EWR during the constrained hours of 6 a.m. through 10:59 p.m. while the final Order is in effect, the FAA intends to allocate it consistent with our responsibility to manage the efficiency of the National Airspace System. New capacity is defined as any hourly capacity above and beyond 81, other than those Operating Authorizations above that level allocated under this Order. As new capacity becomes available, as allocated Operating Authorizations are returned to the FAA, or as currently unallocated Operating Authorizations become available, the FAA plans to lease that capacity. Capacity returned to the FAA as a function of this Order's use-or-lose provision or as a result of a carrier ceasing operations at EWR would also be leased by the FAA, but we would not withdraw existing capacity from any carrier for leasing purposes. We anticipate that each lease will be for a period of up to five years. Leases may be issued pursuant to an auction, with the highest responsive bidder being awarded the lease. Auction procedures will be consistent with our international obligations. Foreign air carriers will be eligible to bid on leases. We will provide additional information about leasing procedures and the relevant statutory authorities before conducting any auction.

Because carriers may wish to initiate operations after the commencement of a scheduling season or to cease operations prior to the end of the season, there may be some available capacity during some periods of both the summer and winter scheduling seasons. It is feasible that some of this capacity could be reintroduced into the system without significantly increasing delays. In addition, the FAA recognizes that a carrier may have a short-term need to conduct operations during these time periods. As a result, we propose that a carrier may request that the FAA allow it to temporarily operate a flight at a time period when there is, for this reason, temporarily idle capacity. The FAA would retain full discretion to determine whether to allow these short-term operations, which would not be afforded historical status when determining Operating Authorizations for the next applicable season. By contrast, any longer-term capacity that is returned by a carrier's failure to adhere to the final order's usage requirement could be reallocated for the next applicable season via an auction procedure.

C. Effect on Limited Incumbents and New Entrants

Throughout the IATA scheduling process, and during our review of all the schedule requests of U.S. and foreign air carriers, the FAA has sought a solution to EWR's burgeoning congestion that is fair to all the carriers. Throughout the process, the FAA was sensitive to the proportionally greater importance a single operation can have to a carrier that operates fewer overall flights at EWR. As a result, in addition to granting all but the largest U.S. air carrier at EWR their historic schedules at every hour if they wished to continue them, carriers were able to add operations from their proposed summer 2008 schedules during the hours in which capacity remained available. Moreover, despite the generally congested peak hours, carriers without any current presence at the airport were able to add one roundtrip within the afternoon and evening hours using the limited available capacity. The resulting schedule carefully balances the competing interests of all carriers at EWR and is the least intrusive on the carriers with the smallest EWR presence, which retain all of their historic and realistically timed new operations at the airport.

In addition, as proposed in the previous subsection of this Order, all carriers will have an opportunity to acquire and to retime operations at EWR while the Order is in effect. Under the Order, all carriers would have the opportunity to trade with others for Operating Authorizations at times that are more desirable to them. In addition, all U.S. and foreign air carriers have the opportunity to lease Operating Authorizations from other carriers for the duration of the Order. Furthermore, in the event that FAA or airport initiatives create new capacity at EWR while the Order is in effect, all carriers—including those without a presence at EWR and those with few operations—would have the opportunity to bid on a leasehold interest in the new operations via an auction process.

D. Foreign Air Carriers

Foreign air carriers are included in the limits proposed in this Order and would be allocated Operating Authorizations based on historic summer 2007 operations or on amended requests for summer 2008 schedules that have been approved by FAA. In November, the FAA met with many of the carriers at the IATA Schedules Conference to review the proposed summer 2008 schedules. Historic operations of foreign air carriers were granted if requested for summer 2008, as were some retimings. Foreign air carriers, like U.S. air carriers, were offered alternative timings when capacity was available, and they may trade or lease Operating Authorizations to change the timing of their operations or to obtain additional Operating Authorizations.

Because the final Order would extend until October 24, 2009, the FAA understands that there may be slight variations with winter timings or allocations that will need to be considered. The FAA does not propose to exceed the limits set forth in the appendix for the winter 2008/2009 scheduling season, but we will work with carriers to address their historic scheduling needs.

E. Usage Requirement and Withdrawals

The FAA has considered whether, in order to encourage maximum utilization of EWR's limited capacity, the final Order should include a usage requirement for the Operating Authorizations that it allocates. Such requirements are common at capacity constrained airports. A usage requirement previously applied at several High Density Rule airports; it continues to apply to Ronald Reagan Washington National Airport under the High Density Rule; and such a requirement applies under the rules currently in effect at Hare International Airport and the orders now governing LaGuardia Airport and JFK. In addition, the IATA Worldwide Scheduling Guidelines include a minimum usage requirement. Including a usage requirement may provide a greater opportunity for carriers to obtain Operating Authorizations in the Start Printed Page 14556secondary market, because carriers may seek to lease them rather than lose Operating Authorizations for underutilization. This could potentially benefit carriers seeking to enter the market or to increase their presence at EWR

In the recently issued order limiting scheduled operations at JFK, as amended, the FAA adopted the IATA Worldwide Scheduling Guidelines requirement for the usage of JFK's Operating Authorizations. We propose a very similar usage requirement at EWR, once again applying an 80% usage threshold. Under the Worldwide Scheduling Guidelines, carriers are required to inform the coordinator of their intended summer and winter operations by January 15 and August 15, respectively.[10] Any operations not declared by these dates are surrendered and are not given historical status for the subsequent applicable scheduling season. However, they also do not count against each carrier's calculated usage rate for use-or-lose purposes. For example, if a carrier were to tell the FAA that it would commence operations on June 1 and cease those operations on August 31, the relevant timeframe for measuring the carrier's usage of the Operating Authorization would be June 1 through August 31, even though the summer scheduling season, in 2008, runs from March 30 until October 25. Assuming the carrier conducted enough flights under the Operating Authorization in the June through August timeframe to receive historical recognition, the carrier would retain the Operating Authorization within the summer 2009 scheduling season, from June 1 through August 31.

The FAA recognizes a distinct merit in this approach in the context of a congested airport like EWR. A strictly seasonal use-or-lose policy would require carriers to operate flights on the shoulders of a scheduling season merely to ensure that they would not lose the Operating Authorization during the few weeks or months when they actually require it. This unnecessary service would have the effect of artificially inflating demand for EWR's limited runway capacity during the spring and fall, leading to an increase in congestion-related delay.

Accordingly, we propose that, for purposes of use-or-lose and historical allocation for subsequent seasons, carriers must tell the FAA when their usage of a particular Operating Authorization will start and stop. Under this approach, because it is now too late to meet the submission date specified in the Worldwide Scheduling Guidelines for summer 2008, carriers must report on or before June 6, 2008, their planned usage of the EWR Operating Authorizations identified in the appendix during summer 2008. Carriers that have previously provided the effective dates of their summer 2008 schedules, and received approval from the FAA for those schedules, do not need to resubmit the information. Thereafter, the carriers' notification to the FAA of their planned usage for winter 2008/2009 and summer 2009 schedules will follow the Worldwide Scheduling Guidelines' schedule. Thus, the FAA will receive initial schedule requests for the winter 2008/2009 scheduling season by the May 15 deadline and coordinate with carriers at the June 2008 IATA Schedules Conference.

With respect to the carriers' reported usage of their Operating Authorizations during or after each scheduling season, the FAA proposes to adopt requirements that are similar to those in the recent JFK order, as amended. Accordingly, carriers would be required to provide the FAA with an interim usage report approximately two months before the end of the scheduling season and a final report at the end of the season. The final report would be due no later than 30 days after the end of the scheduling season.

Recognizing that there may be unexpected times when a carrier's operations are greatly disrupted, the Administrator proposes to retain the authority to waive the 80% usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which exists for a period of 5 consecutive days or more. Additionally, the FAA will treat as used any Operating Authorization held by a carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.

If the FAA determines that a reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA proposes to conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations.[11] When capacity returns to its previous levels, the withdrawn Operating Authorizations would be returned to the carriers from whom they were withdrawn. The FAA will provide at least 45 days of advance notice of the need for a withdrawal, if possible.

F. Unscheduled Operations

Unscheduled operations, including general aviation, charter flights, and other ad hoc operations, have typically been a small percentage of the overall traffic at EWR. However, given the level of congestion projected for summer 2008, even the addition of a few operations during the oversubscribed hours can exacerbate delays. Although they may not have traditionally appeared in the Official Airline Guide, some charter and other operations are regularly conducted carrier operations, and the FAA considers them to be scheduled operations for the purposes of this Order. Therefore, the carriers that conducted such operations at EWR in summer 2007 would be allocated Operating Authorizations for summer 2008.

The FAA is also considering the issuance of a separate notice of proposed rulemaking (NPRM) proposing to limit the number of unscheduled flights and to require a reservation to operate during controlled hours. During the busiest hours, the number of reservations set aside for unscheduled operations would be reduced to allow for additional scheduled traffic. The FAA expects that under certain operating conditions, additional reservations could be made available for unscheduled operations, provided that significant delay impacts are not expected. Additional information on unscheduled operations and the proposed reservation system will be included in the NPRM, and the FAA will consider any comments received prior to adopting a final rule.

G. Enforcement of This Order

The FAA may enforce the final Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). Under that provision, a carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, is liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in the Order. A carrier that is a small business as defined in the Small Business Act is liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in the Order. The FAA also may file a civil action in Start Printed Page 14557U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any carrier from violating the terms of the Order.

H. Intermediate- and Long-Term Solutions

While this Order proposes a limitation on the number of scheduled operations at EWR, it is not the FAA's preferred alternative to addressing capacity shortfalls. In the FAA's view, the intermediate- and long-term priority is to expand airport and airway system capacity and to increase the efficient use of existing resources. This is by far the most effective way to serve the traveling public and to promote a strong airport and airway system. Although there is no single action that will solve the problem of congestion in and around New York, the recently concluded New York Aviation Rulemaking Committee, among its many other products, published a list of 77 airport and airspace initiatives that could help to relieve congestion in the New York area. The list is available as appendix C to the committee's report, which is currently available as a link off the FAA's Web site, It includes procedural, technological, and capital improvements that relate to all the major New York area airports, the efficient operation of which are largely interdependent.

While events or technology may overtake the completion of all the 77 listed initiatives, each has the potential to add incrementally to the existing capacity. Most immediately, we anticipate the completion of a number of the items by summer 2008. In addition, as the views expressed in the docket indicate, the full implementation of New York/New Jersey/Philadelphia airspace redesign and the progressive achievement of the Next Generation Air Traffic System's component technologies will also contribute to reducing delay. As a result, to permit time for system improvements to come on line, we propose an expiration date for the final Order of October 24, 2009.

I. Environmental Impact

The agency order stating FAA policies and procedures with respect to the environmental impact of FAA activities, FAA Order 1050.1E, identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined that this Order qualifies for the categorical exclusion identified in paragraph 312d “Issuance of regulatory documents (e.g., Notices of Proposed Rulemaking and issuance of Final Rules) covering administrative or procedural requirements (Does not include Air Traffic procedures; specific Air Traffic procedures that are categorically excluded are identified under paragraph 311 of this Order.)” This Order, which proposes a temporary limitation on operations pending a future rulemaking, is in the nature of a rule. No extraordinary circumstances exist that may cause a significant impact and therefore no further environmental review is required.

Accordingly, with respect to scheduled flight operations at EWR, the FAA proposes the following ordering language:

1. This Order assigns operating authority to conduct an arrival or a departure at EWR during the affected hours to the U.S. air carrier or foreign air carrier identified in the appendix to this Order. The FAA will not assign operating authority under this Order to any person or entity other than a certificated U.S. or foreign air carrier with appropriate economic authority and FAA operating authority under 14 CFR part 121, 129, or 135. This Order applies to the following:

a. All U.S. air carriers and foreign air carriers conducting scheduled operations at EWR as of the date of this Order, any U.S. air carrier or foreign air carrier that operates under the same designator code as such a carrier, and any air carrier or foreign-flag carrier that has or enters into a codeshare agreement with such a carrier.

b. All U.S. air carriers or foreign air carriers initiating scheduled or regularly conducted commercial service to EWR while this Order is in effect.

c. The Chief Counsel of the FAA, in consultation with the Vice President, System Operations Services, is the final decision-maker for determinations under this Order.

2. This Order governs scheduled arrivals and departures at EWR from 6 a.m. through 10:59 p.m., Eastern Time, Sunday through Saturday.

3. This Order takes effect at 6 a.m., Eastern Time, on June 1, 2008, and expires at 11:59 p.m., Eastern Time, on October 24, 2009.

4. Under the authority provided to the Secretary of Transportation and the FAA Administrator by 49 U.S.C. 40101, 40103 and 40113, we hereby order that:

a. No U.S. air carrier or foreign air carrier initiating or conducting scheduled or regularly conducted commercial service at EWR may conduct such operations without an Operating Authorization assigned by the FAA.

b. Except as provided in the appendix to this Order, scheduled U.S. air carrier and foreign air carrier arrivals and departures will not exceed 81 per hour from 6 a.m. through 10:59 p.m., Eastern Time.

c. The Administrator may change the limits if he determines that capacity exists to accommodate additional operations without a significant increase in delays.

5. For administrative tracking purposes only, the FAA will assign an identification number to each Operating Authorization.

6. A carrier holding an Operating Authorization may request the Administrator's approval to move any arrival or departure scheduled from 6 a.m. through 10:59 p.m. to another half hour within that period. Except as provided in paragraph seven, the carrier must receive the written approval of the Administrator, or his delegate, prior to conducting any scheduled arrival or departure that is not listed in the appendix to this Order. All requests to move an allocated Operating Authorization must be submitted to the FAA Slot Administration Office, facsimile (202) 267-7277 or e-mail, and must come from a designated representative of the carrier. If the FAA cannot approve a carrier's request to move a scheduled arrival or departure, the carrier may then apply for a trade in accordance with paragraph seven.

7. A carrier may lease or trade an Operating Authorization to another carrier for any consideration and for a period that does not exceed the duration of this Order. A carrier may not lease an Operating Authorization unless it has actually used the authorization to conduct flights to or from Newark at least 80% of the time over a consecutive 90-day period. Notice of a trade or lease under this paragraph must be submitted in writing to the FAA Slot Administration Office, facsimile (202) 267-7277 or e-mail, and must come from a designated representative of each carrier. The FAA must confirm and approve these transactions in writing prior to the effective date of the transaction. The FAA will approve transfers between carriers under the same marketing control up to five business days after the actual operation, but only to accommodate operational disruptions that occur on the same day of the scheduled operation.

8. A carrier may not buy, sell, trade, or transfer an Operating Authorization, except as described in paragraph seven.

9. Historical rights to Operating Authorizations and withdrawal of those Start Printed Page 14558rights due to insufficient usage will be determined on a seasonal basis and in accordance with the schedule approved by the FAA prior to the commencement of the applicable season.

a. For each day of the week that the FAA has approved an operating schedule, any Operating Authorization not used at least 80% of the time over the period authorized by the FAA under this paragraph will be withdrawn by the FAA for the next applicable season except:

i. The FAA will treat as used any Operating Authorization held by a carrier on Thanksgiving Day, the Friday following Thanksgiving Day, and the period from December 24 through the first Saturday in January.

ii. The Administrator of the FAA may waive the 80% usage requirement in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier and which affects carrier operations for a period of five consecutive days or more.

b. Each carrier holding an Operating Authorization must forward in writing to the FAA Slot Administration Office a list of all Operating Authorizations held by the carrier and for each Operating Authorization:

i. The dates within each applicable season on which it intends to start and to cease scheduled operations.

A. For the summer 2008 scheduling season, the report must be received by the FAA no later than June 6, 2008.

B. For the winter 2008/2009 scheduling season, the report must be received by the FAA no later than August 15, 2008.

C. For the summer 2009 scheduling season, the report must be received by the FAA no later than January 15, 2009.

ii. The completed operations for each day of the applicable scheduling season:

A. No later than September 1 for the summer scheduling season;

B. No later than January 15 for the winter scheduling season.

iii. The completed operations for each day of the scheduling season within 30 days after the last day of the applicable scheduling season.

10. In the event that a carrier surrenders to the FAA any Operating Authorization assigned to it under this Order or if there are unallocated Operating Authorizations, the FAA will determine whether the unallocated Operating Authorizations should be reallocated. The FAA may temporarily allocate an Operating Authorization if it determines that such allocation will not increase congestion at the airport. Such temporary allocations will not be entitled to historical status for the next applicable scheduling season under paragraph 9. Long-term allocations of returned or unallocated Operating Authorizations will be by auction.

11. If the FAA determines that a reduction in the number of allocated Operating Authorizations is required to meet operational needs, such as reduced airport capacity, the FAA will conduct a weighted lottery to withdraw Operating Authorizations to meet a reduced hourly or half-hourly limit for scheduled operations. The FAA will provide at least 45 days' notice unless otherwise required by operational needs. Any Operating Authorization that is withdrawn or temporarily suspended will, if reallocated, be reallocated to the carrier from which it was taken, provided that the carrier continues to operate scheduled service at EWR.

12. The FAA will enforce this Order through an enforcement action seeking a civil penalty under 49 U.S.C. 46301(a). A carrier that is not a small business as defined in the Small Business Act, 15 U.S.C. 632, will be liable for a civil penalty of up to $25,000 for every day that it violates the limits set forth in this Order. A carrier that is a small business as defined in the Small Business Act will be liable for a civil penalty of up to $10,000 for every day that it violates the limits set forth in this Order. The FAA also could file a civil action in U.S. District Court, under 49 U.S.C. 46106, 46107, seeking to enjoin any air carrier from violating the terms of this Order.

13. The FAA may modify or withdraw any provision in this Order on its own or on application by any carrier for good cause shown.

Start Signature

Issued in Washington, DC, on March 12, 2008.

Robert A. Sturgell,

Acting Administrator, Federal Aviation Administration.

End Signature

Appendix—Operating Limitations at Newark Liberty International Airport (EWR)—August 2008 Proposed as of 3/12/2008

[0600-2259 local hours only: 30 minute OA windows]

Seller carrierPeriod (LT)Arr/DepSunMonTueWedThuFriSat
AAL—American Airlines0600Departure2222222
AAL—American Airlines0730Departure2222222
AAL—American Airlines0830Arrival1111111
AAL—American Airlines0830Departure1111111
AAL—American Airlines0900Departure2222222
AAL—American Airlines0930Arrival1111111
AAL—American Airlines1000Departure1111111
AAL—American Airlines1030Arrival2222222
AAL—American Airlines1030Departure1111111
AAL—American Airlines1100Arrival1111111
AAL—American Airlines1100Departure1111111
AAL—American Airlines1130Departure1111111
AAL—American Airlines1200Arrival1111111
AAL—American Airlines1200Departure1111111
AAL—American Airlines1230Arrival1111111
AAL—American Airlines1230Departure1111111
AAL—American Airlines1300Departure2222222
AAL—American Airlines1330Arrival3333333
AAL—American Airlines1400Arrival1111111
AAL—American Airlines1400Departure1111111
AAL—American Airlines1500Arrival1111111
AAL—American Airlines1500Departure1111111
AAL—American Airlines1530Departure1111111
AAL—American Airlines1600Arrival3333333
Start Printed Page 14559
AAL—American Airlines1630Arrival1111111
AAL—American Airlines1630Departure2222222
AAL—American Airlines1700Departure3333333
AAL—American Airlines1730Arrival2222222
AAL—American Airlines1800Departure1111111
AAL—American Airlines1830Arrival1111111
AAL—American Airlines1830Departure1111111
AAL—American Airlines1900Departure1111111
AAL—American Airlines1930Arrival1111111
AAL—American Airlines1930Departure2222222
AAL—American Airlines2100Arrival2222222
AAL—American Airlines2100Departure1111111
AAL—American Airlines2130Arrival1111111
AAL—American Airlines2230Arrival2222222
ACA—Air Canada0600Departure1111111
ACA—Air Canada0730Arrival1111111
ACA—Air Canada0800Arrival1111111
ACA—Air Canada0830Departure2222222
ACA—Air Canada1000Arrival1111111
ACA—Air Canada1030Departure1111111
ACA—Air Canada1130Arrival1111111
ACA—Air Canada1230Arrival1111111
ACA—Air Canada1230Departure1111111
ACA—Air Canada1300Departure1111111
ACA—Air Canada1330Arrival1111111
ACA—Air Canada1430Departure1111111
ACA—Air Canada1530Arrival1111111
ACA—Air Canada1600Departure1111111
ACA—Air Canada1700Arrival1111111
ACA—Air Canada1730Departure1111111
ACA—Air Canada1800Arrival1111111
ACA—Air Canada1930Arrival1111111
ACA—Air Canada1930Departure1111111
ACA—Air Canada2000Arrival1111111
ACA—Air Canada2000Departure1111111
ACA—Air Canada2100Departure1111111
ACA—Air Canada2200Arrival1111111
AFR—Air France1530Arrival1111111
AFR—Air France1900Departure1111111
AIC—Air India1600Arrival1111111
AIC—Air India2100Departure1111111
ATN—Air Transport Intnl0600Arrival1111
ATN—Air Transport Intnl0630Departure1111
BAW—British Airways0800Departure1111111
BAW—British Airways1130Arrival1111111
BAW—British Airways1730Arrival1111111
Start Printed Page 14560
BAW—British Airways1830Departure1111111
BAW—British Airways2100Departure1111111
BAW—British Airways2130Arrival1111111
Start Printed Page 14561
DAL—Delta Air Lines0600Departure2222222
DAL—Delta Air Lines0700Departure2222222
DAL—Delta Air Lines0730Departure1111111
DAL—Delta Air Lines0800Departure1111111
DAL—Delta Air Lines0900Arrival1111111
DAL—Delta Air Lines0930Arrival1111111
DAL—Delta Air Lines1000Departure2222222
DAL—Delta Air Lines1030Arrival1111111
DAL—Delta Air Lines1100Departure1111111
DAL—Delta Air Lines1200Arrival1111111
DAL—Delta Air Lines1230Arrival1111111
DAL—Delta Air Lines1300Departure1111111
DAL—Delta Air Lines1330Departure1111111
DAL—Delta Air Lines1430Arrival1111111
DAL—Delta Air Lines1500Departure1111111
DAL—Delta Air Lines1600Arrival1111111
DAL—Delta Air Lines1630Arrival1111111
DAL—Delta Air Lines1630Departure1111111
DAL—Delta Air Lines1700Arrival1111111
DAL—Delta Air Lines1700Departure1111111
DAL—Delta Air Lines1730Arrival1111111
DAL—Delta Air Lines1730Departure1111111
DAL—Delta Air Lines1800Departure1111111
DAL—Delta Air Lines1830Arrival1111111
DAL—Delta Air Lines1900Departure1111111
DAL—Delta Air Lines1930Arrival1111111
DAL—Delta Air Lines2100Arrival1111111
DAL—Delta Air Lines2130Arrival1111111
DAL—Delta Air Lines2230Arrival1111111
ELY—El Al1430Departure11111
ESS—Eos Airlines1200Arrival11
ESS—Eos Airlines1700Arrival1011110
ESS—Eos Airlines1930Departure1111111
EVA—Eva Airways2130Arrival111
Start Printed Page 14562
JAI—Jet Airways1130Arrival1111111
JAI—Jet Airways2000Departure1111111
LOT—LOT Polish Airlines1630Arrival1111111
LOT—LOT Polish Airlines1830Departure1111111
LOT—LOT Polish Airlines2100Arrival111111
MEP—Midwest Airlines0600Departure1111111
MEP—Midwest Airlines1030Arrival1111111
MEP—Midwest Airlines1100Departure1111111
MEP—Midwest Airlines1430Arrival1111111
MEP—Midwest Airlines1500Departure1111111
MEP—Midwest Airlines1630Arrival1111111
MEP—Midwest Airlines1700Departure1111111
MEP—Midwest Airlines2000Arrival1111111
MEP—Midwest Airlines2030Departure1111111
MEP—Midwest Airlines2230Arrival1111111
Start Printed Page 14563
TAP—Air Portugal1400Arrival1111
TAP—Air Portugal1430Arrival1111111
TAP—Air Portugal1800Departure1111111
TAP—Air Portugal2030Departure1111
TRS—Air Tran Airlines0600Departure1111111
TRS—Air Tran Airlines1030Arrival1111111
TRS—Air Tran Airlines1100Departure1111111
TRS—Air Tran Airlines1130Arrival1111111
TRS—Air Tran Airlines1200Departure1111111
TRS—Air Tran Airlines1230Arrival1111111
TRS—Air Tran Airlines1330Arrival1111111
TRS—Air Tran Airlines1400Departure1111111
TRS—Air Tran Airlines1430Departure1111111
TRS—Air Tran Airlines1530Arrival1111111
TRS—Air Tran Airlines1630Departure1111111
TRS—Air Tran Airlines1900Arrival1111111
TRS—Air Tran Airlines1930Departure1111111
UAL—United Airlines0600Departure2222222
UAL—United Airlines0630Arrival2222222
Start Printed Page 14564
UAL—United Airlines0700Departure1111111
UAL—United Airlines0730Departure3333333
UAL—United Airlines0900Arrival1111111
UAL—United Airlines0900Departure1111111
UAL—United Airlines0930Arrival1111111
UAL—United Airlines1000Departure2222222
UAL—United Airlines1200Arrival1111111
UAL—United Airlines1230Departure1111111
UAL—United Airlines1330Arrival2222222
UAL—United Airlines1430Departure2222222
UAL—United Airlines1600Arrival1111111
UAL—United Airlines1630Arrival1111111
UAL—United Airlines1700Departure1111111
UAL—United Airlines1730Arrival1111111
UAL—United Airlines1730Departure1111111
UAL—United Airlines1800Arrival1111111
UAL—United Airlines1800Departure1111111
UAL—United Airlines1830Arrival1111111
UAL—United Airlines1830Departure1111111
UAL—United Airlines1900Arrival1111111
UAL—United Airlines1900Departure1111111
UAL—United Airlines2000Departure1111111
UAL—United Airlines2130Arrival2222222
USA—US Airways0600Departure1111111
USA—US Airways0630Departure2222222
USA—US Airways0730Arrival1111111
USA—US Airways0800Departure1111111
USA—US Airways0930Arrival1111111
USA—US Airways1000Arrival1111111
USA—US Airways1000Departure2222222
USA—US Airways1030Departure1111111
USA—US Airways1130Arrival1111111
USA—US Airways1230Departure1111111
USA—US Airways1300Arrival1111111
USA—US Airways1330Arrival2222222
USA—US Airways1400Arrival1111111
USA—US Airways1430Departure2222222
USA—US Airways1500Departure1111111
USA—US Airways1630Departure1111111
USA—US Airways1700Arrival2222222
USA—US Airways1800Arrival1111111
USA—US Airways1800Departure2222222
USA—US Airways1830Departure1111111
USA—US Airways1900Arrival1111111
USA—US Airways2000Arrival2222222
USA—US Airways2100Departure1111111
USA—US Airways2130Arrival1111111
VIR—Virgin Atlantic0800Departure1111111
VIR—Virgin Atlantic1830Arrival1111111
Start Printed Page 14565
VIR—Virgin Atlantic2100Arrival1111111
VRD—Virgin America *0630Arrival1111111
VRD—Virgin America *0930Departure1111111
VRD—Virgin America *1000Arrival1111111
VRD—Virgin America *1030Departure1111111
VRD—Virgin America *1100Arrival1111111
VRD—Virgin America *1130Departure1111111
* Pending.
End Supplemental Information


2.  49 U.S.C. 40103(b)(1), as previously codified in 49 U.S.C. App. § 307(a). Congress recodified Title 49 of the United States Code in Pub. L. No. 103-222, 108 Stat. 745 (1994), under which the textual revisions were specifically not intended to result in substantive changes to the law. A report describing the recodification stated that the words in §307(a) “under such terms, conditions, and limitations as he may deem” were omitted as surplus. H. Rpt. 103-180 (103d Cong., 1st Sess. 1993) at 262.

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5.  72 FR 54,317 (Sept. 24, 2007).

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6.  Since receiving the requested information, the FAA has issued an order limiting scheduled operations at JFK and has designated it an IATA Level 3 Coordinated Airport. 73 FR 3,510 (Jan. 18, 2008)(Order Limiting Scheduled Operations); 72 FR 60,710 (Oct. 25, 2007)(Notice of Airport Level Designation).

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7.  As with previous aircraft queuing model runs produced for the FAA by the MITRE Corporation's Center for Advanced Aviation System Development (CAASD), it was assumed that no scheduled operation was cancelled.

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8.  The Record of Decision implementing the New York/New Jersey/Philadelphia Metropolitan Area Airspace Redesign was issued September 5, 2007 and may be found at:​airports_​airtraffic/​air_​traffic/​nas_​redesign/​regional_​guidance/​eastern_​reg/​nynjphl_​redesign/​.

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9.  72 FR 73,418 (Dec. 27, 2007).

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10.  The slot return deadlines were recently changed by IATA from January 31 and August 31.

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11.  In a weighted lottery, the risk of having an Operating Authorization withdrawn is proportional to the number of Operating Authorizations that a carrier holds. Thus, those carriers with the greatest number of authorizations are most likely to have an authorization withdrawn. Those with very few operations bear a very small, but still some, risk of having an authorization withdrawn.

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[FR Doc. 08-1037 Filed 3-12-08; 4:55 pm]