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Statement of Need: This rulemaking would replace the current temporary orders limiting scheduled operations at LaGuardia Airport, John F. Kennedy International Airport, and Newark Liberty International Airport with a more permanent rule to address the issues of congestion and delay at the New York area's three major commercial airports, while also promoting fair access and competition. The rulemaking would help ensure that congestion and delays are managed by limiting scheduled and unscheduled operations. The rulemaking would also establish a secondary market for U.S. and foreign air carriers to buy, sell, trade, and lease slots amongst each other at each of the three airports. This would allow carriers serving or seeking to serve the New York area airports to exchange slots as their business models and strategic goals require.

Summary of the Legal Basis: This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, sections 40101, 40103, 40105, and 41712. The Secretary of Transportation (Secretary) is the head of the DOT and has broad oversight of significant FAA decisions. See 49 U.S.C. 102 and 106. In addition, under 49 U.S.C. 41712, the Secretary has the authority to investigate and prohibit unfair and deceptive practices and unfair methods of competition in air transportation or the sale of air transportation. The FAA has broad authority under 49 U.S.C. 40103 to regulate the use of the navigable airspace of the United States. This section authorizes the FAA to develop plans and policy for the use of navigable airspace and to assign the use the FAA deems necessary for safe and efficient utilization. It further directs the FAA to prescribe air traffic rules and regulations governing the efficient utilization of navigable airspace. Not only is the FAA required to ensure the efficient use of navigable airspace, but it must do so in a manner that does not effectively shut out potential operators at the airport and in a manner that acknowledges competitive market forces. These authorities empower the DOT to ensure the efficient utilization of airspace by limiting the number of scheduled and unscheduled aircraft operations at JFK, EWR, and LGA, while balancing between promoting competition and recognizing historical investments in the airport and the need to provide continuity. They also authorize the DOT to investigate the transfer of slots and to limit or prohibit anti-competitive transfers.

Alternatives: The FAA considered two alternatives. The first alternative was to simply extend the existing orders. This alternative was rejected because the FAA wanted to increase competition by making slots available to more operators. The FAA believes these operators are likely to be small entities. The second alternative was to remove the existing orders. This alternative results in unacceptable delay costs from the increase in operations.

Anticipated Costs and Benefits: TBD

Risks: The FAA will review specific risks associated with this rulemaking.