Proposed Rule2021-20400
COVID-19 Related Relief Concerning Operations at Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, New York LaGuardia Airport, Ronald Reagan Washington National Airport, and San Francisco International Airport for the Winter 2021/2022 Scheduling Season
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 20, 2021
Issuing agencies
Transportation DepartmentFederal Aviation Administration
Abstract
The FAA proposes to extend through March 26, 2022, the Coronavirus (COVID-19)-related limited, conditional waiver of the minimum slot usage requirement at John F. Kennedy International Airport (JFK), New York LaGuardia Airport (LGA), and Ronald Reagan Washington National Airport (DCA) that the FAA has already made available through October 30, 2021, for all international operations. Similarly, the FAA proposes to extend through March 26, 2022, its COVID-19-related limited, conditional policy for prioritizing flights canceled at designated International Air Transport Association (IATA) Level 2 airports in the United States, for purposes of establishing a carrier's operational baseline in the next corresponding season, for all international operations. These IATA Level 2 airports include Chicago O'Hare International Airport (ORD), Newark Liberty International Airport (EWR), Los Angeles International Airport (LAX), and San Francisco International Airport (SFO). This relief would be limited to slots and approved operating times used by any carrier for international operations only, through March 26, 2022, and would be subject to the same terms and conditions, with minor modifications, that the FAA has already applied to the relief that remains available through October 30, 2021. This notice invites stakeholders to submit comments with detailed supporting information relevant to FAA making a final decision. The FAA anticipates subsequently providing notice of its final decision.
Full Text
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<title>Federal Register, Volume 86 Issue 179 (Monday, September 20, 2021)</title>
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[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Proposed Rules]
[Pages 52114-52120]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-20400]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 93
[Docket No. FAA-2020-0862]
COVID-19 Related Relief Concerning Operations at Chicago O'Hare
International Airport, John F. Kennedy International Airport, Los
Angeles International Airport, Newark Liberty International Airport,
New York LaGuardia Airport, Ronald Reagan Washington National Airport,
and San Francisco International Airport for the Winter 2021/2022
Scheduling Season
AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).
ACTION: Notice of proposed extension of a limited, conditional waiver
of the minimum slot usage requirement for all international operations.
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SUMMARY: The FAA proposes to extend through March 26, 2022, the
Coronavirus (COVID-19)-related limited, conditional waiver of the
minimum slot usage requirement at John F. Kennedy International Airport
(JFK), New York LaGuardia Airport (LGA), and Ronald Reagan Washington
National Airport (DCA) that the FAA has already made available through
October 30, 2021, for all international operations. Similarly, the FAA
proposes to extend through March 26, 2022, its COVID-19-related
limited, conditional policy for prioritizing flights canceled at
designated International Air Transport Association (IATA) Level 2
airports in the United States, for purposes of establishing a carrier's
operational baseline in the next corresponding season, for all
international operations. These IATA Level 2 airports include Chicago
O'Hare International Airport (ORD), Newark Liberty International
Airport (EWR), Los Angeles International Airport (LAX), and San
Francisco International Airport (SFO). This relief would be limited to
slots and approved operating times used by any carrier for
international operations only, through March 26, 2022, and would be
subject to the same terms and conditions, with minor modifications,
that the FAA has already applied to the relief that remains available
through October 30, 2021. This notice invites stakeholders to submit
comments with detailed supporting information relevant to FAA making a
final decision. The FAA anticipates subsequently providing notice of
its final decision.
DATES: Submit comments on or before September 27, 2021.
[[Page 52115]]
ADDRESSES: Submit written views and supporting data by email to the
Slot Administration Office at <a href="/cdn-cgi/l/email-protection#f9c0d4bfb8b8d4aa95968dd4a99695909a80b99f9898d79e968f"><span class="__cf_email__" data-cfemail="e8d1c5aea9a9c5bb84879cc5b88784818b91a88e8989c68f879e">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Al Meilus, Manager, Slot
Administration, AJR-G, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone (202) 267-2822;
email <a href="/cdn-cgi/l/email-protection#7a3b1654371f13160f093a1c1b1b541d150c"><span class="__cf_email__" data-cfemail="ca8ba6e487afa3a6bfb98aacababe4ada5bc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
On March 16, 2020, the FAA granted a limited waiver of the minimum
slot usage requirements \1\ to carriers operating at all slot-
controlled airports in the United States (DCA, JFK, and LGA) \2\ and
related relief to carriers operating at designated IATA Level 2
airports in the United States (EWR, LAX, ORD, SFO) due to the
extraordinary impacts on the demand for air travel resulting from the
COVID-19 pandemic.\3\ Since the initial slot usage waiver and related
relief was provided, the FAA has taken action to extend the relief
provided on three occasions subject to certain substantive changes,
including the addition of conditions, as the COVID-19 situation
continued to evolve.\4\ The most recent limited, conditional extension
of COVID-19 related relief was issued by the FAA on January 13, 2021,
and is due to expire on October 31, 2021.\5\
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\1\ The FAA has authority for developing ``plans and policy for
the use of the navigable airspace'' and for assigning ``by
regulation or order the use of the airspace necessary to ensure the
safety of aircraft and the efficient use of airspace.'' 49 U.S.C.
40103(b)(1). The FAA manages slot usage requirements under the
authority of 14 CFR 93.227 at DCA and under the authority of Orders
at JFK and LGA. See Operating Limitations at John F. Kennedy
International Airport, 85 FR 58258 (Sep. 18, 2020); Operating
Limitations at New York LaGuardia Airport, 85 FR 58255 (Sep. 18,
2020).
\2\ Although DCA and LGA are not designated as IATA Level 3
slot-controlled airports given that these airports primarily serve
domestic destinations, the FAA limits operations at these airports
via rules at DCA and an Order at LGA that are equivalent to IATA
Level 3. See FN 1. The FAA reiterates that the relief provided in
the March 16, 2020, notice (85 FR 15018), the April 17, 2020, notice
(85 FR 21500), the October 7, 2020, notice (85 FR 63335), and this
policy statement, extends to all allocated slots, including slots
allocated by exemption.
\3\ Notice of Limited Waiver of the Slot Usage Requirement, 85
FR 15,018 (Mar. 16, 2020).
\4\ Notice of Extension of Limited Waiver of the Minimum Slot
Usage Requirement, 85 FR 21,500 (Apr. 17, 2020); Extension of
Limited Waiver of the Minimum Slot Usage Requirement, 85 FR 63,335
(Oct. 7, 2020); and FAA Policy Statement: Limited, Conditional
Extension of COVID-19 Related Relief for the Summer 2021 Scheduling
Season (Docket No. FAA-2020-0862-0302).
\5\ FAA Policy Statement: Limited, Conditional Extension of
COVID-19 Related Relief for the Summer 2021 Scheduling Season
(Docket No. FAA-2020-0862-0302).
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Current COVID-19 Situation
Since the FAA's January 13, 2021, policy statement granting a
limited, conditional extension of COVID-19-related relief at slot-
controlled airports and IATA Level 2 airports in the United States,
COVID-19 has continued to cause disruption globally and the timeline
for recovery from this global pandemic remains uncertain. The World
Health Organization (WHO) reports COVID-19 cases in more than 200
countries, areas, and territories worldwide.\6\ For the week ending
September 12, 2021, the WHO reported nearly 4 million new COVID-19
cases and just over 62,000 new deaths, bringing the cumulative total to
more than 224 million reported COVID-19 cases and more than 4.6 million
deaths globally since the start of the COVID-19 pandemic.\7\
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\6\ <a href="https://covid19.who.int/table">https://covid19.who.int/table</a>.
\7\ COVID-19 weekly epidemiological update, September 14, 2021,
available at: <a href="https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports">https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports</a> See also <a href="https://covid19.who.int/">https://covid19.who.int/</a>
for WHO COVID-19 Dashboard with the most current number of cases
reported.
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The WHO reports that it is monitoring multiple variants globally;
currently the WHO has classified four different variants as ``variants
of concern'' and five different variants as ``variants of interest.''
\8\ The Center for Disease Control (CDC) is monitoring four variants of
COVID-19 in the United States.\9\ These variants include: The B.1.1.7
(Alpha), B.1.351 (Beta), P.1 (Gamma), and B.1.617.2 (Delta).\10\ The
CDC has stated that these variants of concern--including the current
dominant Delta variant--spread more easily and quickly. However, the
CDC reports that so far, studies suggest that the current Food and Drug
Administration (FDA)-approved or authorized vaccines do work against
the circulating variants.\11\
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\8\ <a href="https://www.who.int/en/activities/tracking-SARS-CoV-2-variants/">https://www.who.int/en/activities/tracking-SARS-CoV-2-variants/</a>.
\9\ Center for Disease Control (CDC), About Variants of the
Virus that Causes COVID-19, available at: <a href="https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html">https://www.cdc.gov/coronavirus/2019-ncov/variants/variant.html</a>.
\10\ Id.
\11\ Id. See also <a href="https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html">https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html</a>.
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On January 21, 2021, President Biden announced the National
Strategy for the COVID-19 Response and Pandemic Preparedness, a
national strategy to beat the COVID-19 pandemic.\12\ The strategy is a
comprehensive plan that starts with restoring public trust and mounting
an aggressive, safe, and effective vaccination campaign while
continuing with the steps that stop the spread like expanded masking,
testing, and social distancing. On September 9, 2021, President Biden
announced a six-pronged approach to expand vaccinations, provide
booster shots, keep schools safely open, increase testing and masking,
protect the economic recovery, and improve care for those with COVID-
19.\13\
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\12\ <a href="https://www.whitehouse.gov/wp-content/uploads/2021/01/National-Strategy-for-the-COVID-19-Response-and-Pandemic-Preparedness.pdf">https://www.whitehouse.gov/wp-content/uploads/2021/01/National-Strategy-for-the-COVID-19-Response-and-Pandemic-Preparedness.pdf</a>.
\13\ President Biden's COVID-19 Plan [bond] The White House.
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Currently three COVID-19 vaccines have been authorized for
emergency use or approved by the FDA.\14\ As of September 13, 2021,
53.9% of Americans are fully vaccinated and 63.2% of Americans have
received at least one dose.\15\ Increased rates of vaccination in the
U.S., along with other measures to stop the spread have resulted in an
overall decline of the U.S. COVID-19 infection rate since the previous
COVID-19 waiver proceeding. However, cases increased again following
the U.S. reaching its lowest rates of infection experienced since the
week of March 16, 2020 (79,358 confirmed new cases for the week of June
14 reflected the lowest rate of infection since the week of March, 16,
2020).\16\ When the FAA extended COVID-19-related relief on January 13,
2021, the number of confirmed cases of COVID-19 in the U.S. for the
week of January 11, 2021, based on WHO data, was 1,580,016.\17\ For the
week ending September 12, 2021, which is the most recent week for which
data is available, the WHO reports 1,034,836 confirmed cases in the
United States.\18\
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\14\ <a href="https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines">https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines</a>.
\15\ CDC, COVID-19 Vaccinations in the United States, updated
September 13, 2021, available at: <a href="https://covid.cdc.gov/covid-data-tracker/#vaccinations">https://covid.cdc.gov/covid-data-tracker/#vaccinations</a>.
\16\ <a href="https://covid19.who.int/region/amro/country/us">https://covid19.who.int/region/amro/country/us</a>.
\17\ FAA Policy Statement: Limited, Conditional Extension of
COVID-19 Related Relief for the Summer 2021 Scheduling Season.
(Docket No. FAA-2020-0862-0302). See also <a href="https://covid19.who.int/region/amro/country/us">https://covid19.who.int/region/amro/country/us</a>.
\18\ COVID-19 weekly epidemiological update, September 14, 2021,
available at: <a href="https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports">https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports</a>. See also <a href="https://covid19.who.int/region/amro/country/us">https://covid19.who.int/region/amro/country/us</a>.
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The U.S. is attempting to distribute vaccines globally to help
vaccination numbers improve.\19\ On August 18, 2021, President Biden
announced that in the months of June and July the United States had
donated 100 million doses and that in the coming months of fall and
early winter another 100 million boosters and 200 million
[[Page 52116]]
additional doses will be donated to other countries.\20\
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\19\ <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/03/statement-by-president-joe-biden-on-global-vaccine-distribution/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/06/03/statement-by-president-joe-biden-on-global-vaccine-distribution/</a>.
\20\ <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/08/18/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-2/">https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/08/18/remarks-by-president-biden-on-fighting-the-covid-19-pandemic-2/</a>.
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The President has placed a suspension and limitation on entry into
the United States for non-U.S. citizens or permanent residents who have
been present in, several foreign countries within the preceding 14
days.\21\ International travel advisories issued by the U.S. Department
of State's Global Health Advisory remain in effect worldwide, including
designations ranging from Level 1--Exercise Normal Precautions to Level
4--Do Not Travel for more than 200 destinations.\22\ A majority of
countries are designated either Level 3 of Level 4--where COVID-19
numbers are classified as high and very high, respectively.\23\ The
U.S. Department of State advises that challenges to any international
travel at this time may include mandatory quarantines, travel
restrictions, and closed borders. The U.S. Department of State has
noted further that foreign governments may implement restrictions with
little notice, even in destinations that were previously low risk.
Accordingly, the U.S. Department of State has warned Americans choosing
to travel internationally that their trip may be disrupted severely and
it may be difficult to arrange travel back to the United States. The
CDC advises prospective domestic travelers to consider whether their
destination has requirements or restrictions for travelers, and notes
that State, local, and territorial governments may have travel
restrictions in place, including testing requirements, stay-at-home
orders, and quarantine requirements upon arrival.\24\
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\21\ <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/25/proclamation-on-the-suspension-of-entry-as-immigrants-and-non-immigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease/">https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/25/proclamation-on-the-suspension-of-entry-as-immigrants-and-non-immigrants-of-certain-additional-persons-who-pose-a-risk-of-transmitting-coronavirus-disease/</a>.
\22\ <a href="https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/">https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/</a>.
\23\ <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html#travel-4">https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel-notices.html#travel-4</a>.
\24\ <a href="https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-covid19.html">https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-covid19.html</a>.
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Standard Applicable to This Waiver Proceeding
The FAA reiterates the standards applicable to petitions for
waivers of the minimum slot usage requirements in effect at DCA, JFK,
and LGA, as discussed in the FAA's initial decision granting relief due
to COVID-19 impacts.\25\ At JFK and LGA, each slot must be used at
least 80 percent of the time.\26\ Slots not meeting the minimum usage
requirements will be withdrawn. The FAA may waive the 80 percent usage
requirement in the event of a highly unusual and unpredictable
condition that is beyond the control of the slot-holding air carrier
and which affects carrier operations for a period of five consecutive
days or more.\27\
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\25\ See 85 FR 15018 (Mar. 16, 2020).
\26\ Operating Limitations at John F. Kennedy International
Airport, 85 FR 58258 (Sep. 18, 2020); Operating Limitations at New
York LaGuardia Airport, 85 FR 47065 at 58255 (Sep. 18, 2020).
\27\ At JFK, historical rights to operating authorizations and
withdrawal of those rights 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. See JFK Order, 85 FR at 58260. At LGA, any operating
authorization not used at least 80 percent of the time over a two-
month period will be withdrawn by the FAA. See LGA Order, 85 FR at
58257.
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At DCA, any slot not used at least 80 percent of the time over a
two-month period also will be recalled by the FAA.\28\ The FAA may
waive this minimum usage requirement in the event of a highly unusual
and unpredictable condition that is beyond the control of the slot-
holding carrier and which exists for a period of nine or more days.\29\
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\28\ See 14 CFR 93.227(a).
\29\ See 14 CFR 93.227(j).
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When making decisions concerning historical rights to allocated
slots, including whether to grant a waiver of the usage requirement,
the FAA seeks to ensure the efficient use of valuable aviation
infrastructure while maximizing the benefits to airport users and the
traveling public. This minimum usage requirement is expected to
accommodate routine cancelations under all but the most unusual
circumstances. Carriers proceed at risk if, at any time prior to a
final decision, they make decisions in anticipation of the FAA granting
a slot usage waiver.
Summary of Petitions From Stakeholders Concerning Continued COVID-19
Relief
The FAA has received nine petitions regarding COVID-19-related
relief for the Winter 2021/2022 season to date. Five petitioners,
including the International Air Transport Association (IATA), Avianca
Airlines, All Nippon Airways (ANA), Lufthansa Group, and Airlines for
America (A4A) \30\ seek further relief through the end of the Winter
2021/2022 scheduling season due to ongoing COVID-19 impacts on demand
for air travel. These petitioners emphasize the critical importance of
an expedient decision to provide the industry with stability and
certainty during the ongoing COVID-19 pandemic. Three petitioners,
including JetBlue Airways (JetBlue), Southwest Airlines Co.
(Southwest), and Airports Council International-North America (ACI-NA),
oppose further extension of the limited, conditional relief FAA has
made available through October 30, 2021. ACI-NA and JetBlue oppose any
further relief due to COVID-19; however, JetBlue recognizes the
potential need for relief for international operations and urges FAA to
adopt a case-by-case approach to evaluating petitions for relief.
Southwest specifically opposes any further relief at U.S. domestic
airports, DCA and LGA. One petitioner submitted a petition marked
privileged and confidential.
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\30\ All petitions and other submissions related to COVID-19
relief beyond the Summer 2021 season received by the FAA, with
exception of one petition which was marked privileged and
confidential, have been included in the docket for this proceeding.
The FAA notes that two submissions were received from IATA, dated
June 4 and June 25, 2021, respectively.
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IATA, Avianca, ANA, and Lufthansa Group support continued relief
for international operations at U.S. slot-controlled and IATA Level 2
airports and would prefer the FAA adopt the Worldwide Airport Slot
Board's (WASB) slot relief package.\31\ The FAA has previously
described the provisions of the WASB slot relief package and explained
how the provisions would be applied in the United States, if adopted,
in a notice of proposed extension of a limited, conditional waiver of
minimum slot usage requirement beyond March 27, 2021, which was
published in the Federal Register on December 22, 2020 (85 FR 83672).
The WASB slot relief package remains unchanged from the prior slot
relief proceeding.
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\31\ A summary of the WASB proposal for Winter 2021/2022 was
included in an annex to IATA's June 4, 2021 petition, which has been
placed in the docket for this proceeding.
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IATA believes ``the situation remains critically desperate and
recovery slow'' highlighting the ``uncertainty around the need for
booster vaccinations this fall, the impact of variants and government
management of restrictions related to these outbreaks, lack of
significant corporate demand until at least 2022, significant new
outbreaks in Asia and Latin American and the related government
retraction from reopening, as well as the disparity between countries
approaches to managing the risk'' as justification for continued slot
relief for international operations. IATA states that flexibility from
continued slot usage relief ``enables airlines to focus flying where
there is demand and not purely to satisfy slot use rules'' and that
``worsening the competitive position of U.S. aviation as it emerges
[[Page 52117]]
from the crisis only serves to jeopardize more jobs and further risks
U.S. international connectivity.''
A4A supports a waiver of minimum slot usage requirements for
international operations at U.S. slot-controlled airports and IATA
Level 2 airports. A4A believes a waiver of minimum slot usage
requirements for international operations is needed because
``international demand remains repressed and to ensure a level playing
field.'' A4A states that international operations ``remain
significantly deterred as a result of COVID-19 and direct government
actions.'' Further A4A highlights that ``many countries have included
reciprocity requirements previously and will likely wait until the U.S.
acts before providing relief to ensure foreign carrier access to slots
and gates in the U.S. when they resume operations.'' A4A asserts,
``without reciprocity U.S. carriers will lose slots in key
international markets and be put at a significant competitive
disadvantage relative to foreign competitors.''
JetBlue and ACI-NA oppose continued slot usage relief and support a
return to usual 80/20 minimum slot usage requirements. ACI-NA believes
that ``the U.S. is turning the corner in our battle against
Coronavirus'' and that ``there are beginning to be opportunities for
international travel.'' ACI-NA states that ending slot usage waivers
``will allow affected airports to begin piecing together their future
air services portfolios that enable airports to drive sustainable
economic growth for the communities they serve.'' Likewise, JetBlue
believes that ``demand has returned and is growing and the U.S. airline
industry will not be able to recover with full haste if competition-
altering slot waivers continue without restriction.'' In addition,
JetBlue believes that international flying levels may never return and
broad waivers discourage the repurposing of slots previously used for
international service. However, JetBlue states that it ``appreciates
the complexities in international markets that were raised in the IATA
letter'' and urges that ``DOT/FAA enable a case-by-case evaluation for
limited exemptions based on extreme circumstances such as border
closure or conditions of entry that represent de facto border
closure.''
Southwest opposes continued slot usage relief at domestic-focused
airports. Southwest specifically requests that the FAA ``reject any
further requests for waivers of slot usage requirements for DCA and
LGA, considering (a) the resurgence in the demand for domestic airline
travel since March 2021, and (b) that DCA and LGA have perimeter
restrictions that ensures the vast majority of flights from these
airports are domestic.'' In addition, Southwest states, ``reopening
these two predominately domestic airports would reflect the reality
that domestic traffic is far more robust than international markets.''
Further, Southwest requests the FAA reduce barriers to competition at
DCA and LGA and believes returning to normal slot usage requirements
will ``clear the way for such competition to resume.''
Discussion of Proposal
Continued Relief for International Operations Through March 26, 2022
In consideration of the foregoing information, the petitions that
the FAA has received, and the evolving and highly unpredictable
situation globally with respect to ongoing impacts from COVID-19 at the
current moment, the FAA proposes to extend, for all international
operations, the current limited, conditional relief that FAA has
already made available through October 30, 2021, through the end of the
Winter 2021/2022 season on March 26, 2022.\32\ This relief would be
limited to slots and approved operating times used by carriers for
international operations, through March 26, 2022, and would be subject
to the same terms and conditions, with minor modifications, that the
FAA has applied to the relief already made available through October
30, 2021, which the FAA reiterates in this notice. International
operations, for purpose of this notice, are flights intended for
operation between one of the U.S. slot-controlled or IATA Level 2
airports and any point in a foreign jurisdiction.
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\32\ The FAA notes that for purposes of the relief proposed in
this proceeding, Canadian carriers would be treated as foreign
carriers.
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It is not the policy of the Department of Transportation (DOT) to
use slot and Level 2 rules to reserve capacity for historic incumbent
carriers until demand returns to predetermined levels. Instead, it is
the policy of the Department to encourage high utilization of scarce
public infrastructure. Under the established standard, slot usage
waivers are generally used to address short-term, unpredictable shocks
to demand or capacity that are beyond carriers' control. After 19
months of experience, the DOT believes it is becoming apparent that
COVID-19 is causing structural and operational changes to the airline
industry; the industry is adapting; and the issuance of waivers should
not hinder that adaptation. As previously stated, at some point in
time, repeated waivers to preserve pre-COVID slot holdings will impede
the ability of airports and airlines to provide services that benefit
the overall national economy and make appropriate use of scarce public
assets. Therefore, the FAA emphasizes that operators should not assume
further relief on the basis of COVID-19 will be forthcoming beyond the
end of the Winter 2021/22 scheduling season.
IATA reports that international flights globally are operating
around 88% below 2019 levels, with only slight recovery in
international traffic forecast by the end of 2021 to about 66% below
2019 levels. As indicated by IATA, ``[t]he situation remains critically
desperate and recovery slow with low advance bookings and many more
last-minute bookings (and cancellations) on most routes projected for
the foreseeable future. Uncertainty around the need for booster
vaccinations this fall, the impact of variants and government
management of restrictions related to these outbreaks, lack of
significant corporate demand until at least 2022, significant new
outbreaks in Asia and Latin America and the related government
retraction from reopening, as well as the disparity between countries
approaches to managing the risk justifies continued slot relief at this
time. Without any stability and planning still at a 6-8 week horizon,
airlines will continue to need maximum flexibility.''
FAA agrees with these petitioners and believes, based on global
vaccination rates, changing infection rates and the threat of new virus
strains, continued unpredictability of international travel
restrictions, and the disparity between demand for domestic air travel
and demand for international air travel, that extending the current
limited, conditional waiver for international operations by all
carriers, is reasonable. The FAA believes that extending the limited,
conditional slot usage waiver, for international operations only,
through the Winter 2021/2022 season would provide carriers with
flexibility to operate in the unpredictable international market and
would support long term viability of carrier operations at slot-
controlled and IATA Level 2 airports in the United States.
The FAA recognizes that domestic carriers have a mix of both
domestic and international operations and therefore the agency intends
to make this relief available for international operations that would
have been operated in the Winter 2021/2022 season, but for COVID-19
impacts. In other words, the FAA intends to provide this conditional
relief to domestic carriers on a scale that
[[Page 52118]]
is comparable to each carrier's pre-COVID level of international
service. The FAA would generally evaluate any request for relief from
U.S. carriers for the Winter 2021/2022 scheduling season based on
historical levels of operations to foreign points as demonstrated in
published schedules. Domestic carriers seeking relief for a particular
operation under the waiver will need to provide the FAA, if not readily
apparent from FAA records and historic published schedule data,
alternative supplemental information that predates this notice to
demonstrate intent to use a slot or approved operating time for an
international destination. The FAA would not accept evidence of intent
to use a particular slot or approved operating time for an
international flight during the Winter 2021/2022 season, if the
information is dated after this notice is issued.
International operations eligible for a waiver under this proposal
would be subject to all of the same conditions and policies, with minor
modifications, described in FAA's January 13, 2021 policy statement,
which remains in effect at slot-controlled and IATA Level 2 airports in
the United States for the Summer 2021 season.\33\ The FAA believes the
conditions associated with the relief provided to date are generally
comparable to the WASB package and remain necessary to strike a balance
between competing interests of incumbent carriers and those carriers
seeking new or increased access at these historically-constrained
airports, as well as to ensure the relief is appropriately tailored to
reduce the potential to suppress flight operations for which demand
exists. The conditions for relief at slot-controlled airports, which
the FAA would apply to the relief proposed in this notice, include:
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\33\ FAA Policy Statement: Limited, Conditional Extension of
COVID-19 Related Relief for the Summer 2021 Scheduling Season.
(Docket No. FAA-2020-0862-0302).
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(1) All slots not intended to be operated must be returned at least
four weeks prior to the date of the FAA-approved operation to allow
other carriers an opportunity to operate these slots on an ad hoc basis
without historic precedence. Compliance with this condition is required
for operations scheduled from October 31, 2021 through the duration of
this relief; therefore, carriers should begin notifying the FAA of
Winter returns by October 4, 2021. Slots operated as approved on a non-
historic basis in Winter 2021/2022 will be given priority over new
demands for the same timings in the next equivalent season (Winter
2022/23) for use on a non-historic basis, subject to capacity
availability and consistent with established rules and policies in
effect in the United States.<SUP>34 35</SUP> Foreign carriers seeking
priority under this provision will be required to represent that their
home jurisdiction will provide reciprocal priority to U.S. carrier
requests of this nature.
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\34\ Consistent with the FAA's final policy statement issued
January 13, 2021, this priority would apply to slot or schedule
requests for Winter 2022/2023, which are comparable in timing,
frequency, and duration to the non-historic ad hoc approvals made by
the FAA for Winter 2021/2022. This priority does not affect the
historic precedence or priority of slot holders and carriers with
schedule approvals, respectively, which meet the conditions of the
waiver during Winter 2021/2022 and seek to resume operating in
Winter 2022/2023. The FAA may consider this priority in the event
that slots with historic precedence become available for permanent
allocation by the FAA.
\35\ Although the FAA is proposing to extend the four-week
rolling return policy consistent with the Summer 2021 waiver, any
carrier returning full-season slots or schedule approvals at an
airport outside the United States and associated with a route to the
United States will generally be expected to similarly return the
complementary full-season U.S. slot or schedule approval to the FAA
for re-allocation on a non-historic or ad hoc basis.
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(2) The waiver does not apply to slots newly allocated for initial
use during the Winter 2021/2022 season. New allocations meeting minimum
usage requirements remain eligible for historic precedence. The waiver
does not apply to historic in-kind slots within any 30-minute or 60-
minute time period, as applicable, in which a carrier seeks and obtains
a similar new allocation (i.e., arrival or departure, air carrier or
commuter, if applicable); and,
(3) the waiver does not apply to slots newly transferred on an
uneven basis (i.e., via one-way slot transaction/lease) since October
15, 2020, for the duration of the transfer.\36\ Slots transferred prior
to this date may benefit from the waiver if all other conditions are
met. Slots granted historic precedence for subsequent seasons based on
this relief are not eligible for transfer if the slot holder ceases all
operations at the airport.
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\36\ As previously explained, the FAA has determined not to
revise this condition to include a buffer period for new transfers
to be completed and still benefit from this waiver. Therefore, this
policy will remain in effect continuously from the initial effective
date of October 16, 2020.
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In addition, as proposed, an exception may be granted to these
conditions based on any government restriction that prevents or
severely restricts international travel to specific airports,
destinations (including intermediate points) or countries for which the
slot was held. This exception applies under extraordinary circumstances
only in which a carrier is able to demonstrate that the ability to
operate a particular flight or comply with the conditions of the
proposed waiver is prevented or severely restricted due to an
unpredictable official governmental action related to COVID-19. This
proposed exception includes minor modifications compared to the
exception currently in effect for the Summer 2021 season.\37\ The FAA
seeks to provide greater flexibility in allowing exceptions under
certain circumstances based on issues that have arisen in the course of
implementing the relief currently available. Official government
actions that may qualify for this exception, include--
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\37\ See FAA Policy Statement: Limited, Conditional Extension of
COVID-19 Related Relief for the Summer 2021 Scheduling Season
(Docket No. FAA-2020-0862-0302).
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<bullet> Government travel restrictions based on nationality,
closed borders, government advisories related to COVID-19 that warn
against all but essential travel, or complete bans on flights from/to
certain countries or geographic areas.
<bullet> Government restrictions related to COVID-19 on the maximum
number of arriving or departing flights and/or the number of passengers
on a specific flight or through a specific airport.
<bullet> Government restrictions on movement or quarantine/
isolation measures within the country or region where the airport or
destination (including intermediate points) is located.
<bullet> Government-imposed closure of businesses essential to
support aviation activities (e.g., closure of hotels, ground handling
suppliers, etc.).
<bullet> Governmental restrictions on airline crew, including
unreasonable entry requirements or unreasonable testing and/or
quarantine measures.
This exception is being administered by the FAA in coordination
with the Office of the Secretary of Transportation (OST). The
extraordinary circumstances exception in this slot usage relief would
only apply within the scope of the relief otherwise provided by the
waiver; U.S. carriers should not expect to rely on the extraordinary
circumstances exception for relief for domestic operations.
The conditions for COVID-19-related relief for prioritizing flights
canceled at IATA Level 2 airports, for purposes of establishing a
carrier's operational baseline in the next corresponding season, which
the FAA would apply to the relief proposed in this notice include:
(1) All schedules as initially submitted by carriers and approved
by
[[Page 52119]]
the FAA and not intended to be operated must be returned at least four
weeks prior to the date of the FAA-approved operation to allow other
carriers an opportunity to operate these times on an ad hoc basis
without historic precedence. Schedules operated as approved on an ad
hoc basis in Winter 2021/2022 will be given priority over new demands
for the same timings in the next equivalent season (Winter 2022/2023)
for use on an ad hoc basis, subject to capacity availability and
consistent with established rules and policies in effect in the United
States. Foreign carriers seeking priority under this provision would be
required to represent that their home jurisdiction will provide
reciprocal priority to U.S. carrier requests of this nature; and,
(2) The priority for FAA schedules approved for Winter 2021/2022
does not apply to net-newly approved operations for initial use during
the Winter 2021/2022 season. New approved times will remain eligible
for priority consideration in Winter 2022/2023 if actually operated in
Winter 2021/2022 according to established processes.
Consistent with the proposal for slot-controlled airports, limited
exceptions may be granted from either or both of these conditions at
Level 2 airports under extraordinary circumstances due to any
government restriction that prevents or severely restricts travel to
specific airports, destinations (including intermediate points), or
countries for which the slot was held, as discussed previously with
respect to slot-controlled airports. If the exception is determined not
to apply, carriers are expected to meet the conditions for relief or
operate consistent with standard expectations for the Level 2
environment. The extraordinary circumstances exception in this slot
usage relief would only apply within the scope of the relief otherwise
provided by the waiver, carriers should not expect to rely on the
extraordinary circumstances exception for relief related to domestic
operations.
The FAA believes an extension of relief for all international
operations, through March 26, 2022, is reasonable due to fluctuating
travel restrictions and ongoing economic and health impacts of COVID-19
internationally. The proposed relief is expected to provide carriers
with flexibility during this unprecedented situation and to support the
long-term viability of international operations at slot-controlled and
IATA Level 2 airports in the United States.\38\ Continuing relief for
this additional period is reasonable to mitigate the impacts on
passenger demand for international air travel resulting from the spread
of COVID-19 worldwide.
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\38\ The FAA is responsible to develop plans and policy for the
use of navigable airspace and assign by regulation or order the use
of the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. See 49 U.S.C. 40103(b)(1). The FAA
manages slot usage requirements under the authority of 14 CFR 93.227
at DCA and under the authority of Orders at LGA and JFK. See
Operating Limitations at John F. Kennedy International Airport, 85
FR 58258 (Sep. 18, 2020); Operating Limitations at New York
LaGuardia Airport, 85 FR 58255 (Sep. 18, 2020).
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As of the date of issuance of this notice, U.S. domestic air travel
demand and vaccination rates have reached a level that the FAA believes
no longer necessarily justifies COVID-19-related slot usage relief
domestically. However, COVID-19 continues to present a highly unusual
and unpredictable condition for international operations that is beyond
the control of carriers. Indeed, foreign carriers in many parts of the
world are prevented from operating to the United States due to
governmental restrictions resulting from COVID-19. The continuing
impacts of COVID-19 on global aviation are dramatic and extraordinary,
with an unprecedented decrease in passenger demand for international
air travel globally. The ultimate duration and severity of COVID-19
impacts on passenger demand for international air travel remains
unclear. Even after the pandemic is contained, impacts on passenger
demand for international air travel are likely to continue for some
time.
If the FAA extends relief for international operations through
March 26, 2022, as proposed, the FAA expects that foreign slot
coordinators will provide reciprocal relief to U.S. carriers. To the
extent that U.S. carriers fly to a foreign carrier's home jurisdiction
and that home jurisdiction does not offer reciprocal relief to U.S.
carriers, the FAA may determine not to grant a waiver to that foreign
carrier. A foreign carrier seeking a waiver may wish to ensure that the
responsible authority of the foreign carrier's home jurisdiction
submits a statement by email to <a href="/cdn-cgi/l/email-protection#4e1d2d262b2a3b222b0827222720290e2a213a60292138"><span class="__cf_email__" data-cfemail="6a3909020f0e1f060f2c030603040d2a0e051e440d051c">[email protected]</span></a> confirming
reciprocal treatment of the slot holdings of U.S. carriers.
Invitation for Comment and Submission of Supporting Information
The FAA seeks views and information regarding this proposal.
Interested persons are invited to submit comments and supporting
information to demonstrate why the FAA should or should not finalize
this decision, and to submit any information relevant to making this
decision. The FAA has received multiple formal petitions advocating on
behalf of U.S. carriers that seek continued relief for international
operations. However, the FAA has not received formal, individualized
requests from U.S. carriers explaining the need for continued relief
for international operations despite the early signs of recovery of air
travel demand in the United States and certain parts of the world and
the potential for U.S. carriers to utilize slots for operations on
alternative routes--domestic or international. In particular, U.S.
carriers are invited to provide individualized responses to the
following--
<bullet> What is the basis with supporting rationale under which a
U.S. carrier may necessitate continued relief for international
operations in light of increasing demand for air travel domestically
and for some international destinations? To what extent do carriers
anticipate being unable to meet minimum slot usage requirements and/or
operate consistent with approvals at Level 2 airports?
<bullet> What is the particularized relief requested for the Winter
2021/2022 season? In other words, each U.S. carrier seeking relief for
international operations this Winter is invited to provide a detailed
accounting of which operations in its portfolio have historically been
used for international service versus domestic as well as any
differences for the upcoming Winter 2021/2022 season, with an
explanation regarding what extent (such, as percentage) of the
carriers' international portfolio cannot be repurposed for alternate
operations?
<bullet> What sources of information, other than historic published
schedules, would U.S. carriers make available to FAA to demonstrate
intent to use specific slots or approved timing for international
operations versus domestic?
<bullet> To what extent have U.S. carriers relied upon the relief
provided for the Summer 2021 season for international operations?
Information submitted to the FAA may be subject to disclosure under
the Freedom of Information Act. The FAA recognizes that commenters may
seek to submit business information that is both customarily and
actually treated as confidential. Persons that submit such confidential
business information should clearly mark the information as ``PROPIN''.
The FAA will take the necessary steps to protect properly designated
information to the extent allowable by law.
[[Page 52120]]
After receiving and reviewing comments, the FAA anticipates
subsequently providing notice of its final decision.
Issued in Washington, DC, on September 16, 2021.
Lorelei Dinges Peter,
Assistant Chief Counsel for Regulations.
Virginia T. Boyle,
Vice President, System Operations Services.
[FR Doc. 2021-20400 Filed 9-16-21; 4:15 pm]
BILLING CODE 4910-13-P
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</html>Indexed from Federal Register on September 20, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.