BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. ) Congestion Management Rule for ) LaGuardia Airport ) Docket No. FAA-2006-25709 ) COMMENTS OF THE INTERNATIONAL AIR TRANSPORT ASSOCIATION Communications with respect to this document should be sent to: Robert L. McGeorge, Douglas E. Lavin General Counsel Regional Vice President North America mcgeorger@iata.org International Air Transport Association Leslie Lugo, Senior Counsel 601 Pennsylvania Ave., N.W., Suite 300 lugol@iata.org Washington, D.C. 20006 Alex Piera, Senior Counsel Tel: (202) 628-9292 pieraa@iata.org lavind@iata.org International Air Transport Association 800 Place Victoria, P.O. Box 113 Montreal, QC H4Z 1M1 Canada Tel: (514) 874-0202 June 16, 2008
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. ) Congestion Management Rule for ) LaGuardia Airport ) Docket No. FAA-2006-25709 ) COMMENTS OF THE INTERNATIONAL AIR TRANSPORT ASSOCIATION The International Air Transport Association (IATA) 1 hereby submits the following comments in response to the Federal Aviation Administration (FAA) Supplemental Notice of Proposed Rulemaking (the SNPRM), which addresses congestion at New York s LaGuardia Airport. IATA is disappointed that the FAA refused to extend the deadline for submission of comments in this proceeding as requested by the Air Transport Association (ATA), the Regional Airline Association (RAA) and the Air Carrier Association of America ACAA). As noted by ATA in its submission of May 23, 2008, the refusal to extend this deadline will make it difficult, if not impossible, for the public to fully develop meaningful comments on the SNPRM. Without the full record that would have developed with a modest extension of this deadline, the FAA will also limit its ability to make an informed decision on the important and complex issues raised in the SNPRM. 1 IATA is the association of the world s international airlines. It brings together approximately 230 airlines, 78 of which have scheduled service to the New York region. Flights by IATA airlines comprise more than 95 percent of all international scheduled air traffic.
IATA Needs More Time In Order to Submit Meaningful Comments The FAA s refusal to grant an extension of the comment deadline in this proceeding could have a greater adverse impact on IATA than the ATA and most other interested members of the public. Since LaGuardia primarily serves domestic destinations, it appeared that operators of international flights would not be significantly affected by the proposals for reducing congestion at that airport. IATA therefore intended to rely primarily on the ATA and other U.S. based airline associations to submit comments demonstrating the flaws in the FAA s proposed congestion mitigation and slot allocation rules for LaGuardia. However, on May 21, 2008, the FAA published a notice of proposed rulemaking (NPRM) addressing congestion at John F. Kennedy International Airport (JFK) and Newark Liberty International Airport (Newark), which states that: Today s proposal is similar to what we have proposed for LaGuardia airport... 2 Unlike LaGuardia, JFK and Newark airports are major U.S. international gateway airports. We estimate that approximately 70 U.S. and non-u.s. IATA member airlines operate about 10,500 international flights per week using these airports. The adoption of congestion-mitigation and slot allocation rules for JFK and Newark airports is therefore of direct and vital concern to IATA and its member airlines in particular, the non-u.s. airlines that are not represented by ATA or the other U.S.-based airline associations. 2 73 Fed. Reg. 20626 (May 21, 2008). 3
In these circumstances, IATA now is confronted with the possibility (perhaps, the likelihood) that: the FAA will adopt a system for mitigating congestion at LaGuardia that it will apply to JKF and Newark airports; and IATA will not have sufficient time to develop the evidence needed to show that the proposed congestion mitigation rules are ill advised, ignore proven means of reducing congestion, exceed the FAA s statutory authority, and contravene international agreements. IATA will not have sufficient time to consult with the member airlines that serve these airports, prepare affidavits to address the relevant factual issues, retain counsel to advise on the relevant legal issues, and provide meaningful comments before the June 16 deadline for comments on the precedentsetting LaGuardia SNPRM. In fact, IATA will be hard pressed to submit meaningful comments on the related congestion mitigation and slot allocation issues by the July 21, 2008 deadline for the JFK and Newark NPRM. The FAA has created a dilemma for itself, as well as IATA. In IATA s opinion, the FAA will act in an arbitrary and capricious manner if it provides only three weeks notice of its intent to create congestion-mitigation and slot allocation rules for airlines primarily operating domestic flights at LaGuardia that will become precedent for operators of international flights at JFK and Newark. The FAA may attempt to extricate itself from that dilemma by stating that IATA and other parties with an interest in the JFK/Newark NPRM will have until 4
July 21 to submit comments on the congestion-mitigation and slot allocation proposals for JFK and Newark. There is a crucial difference, however, between the opportunity to place documents in the docket and the opportunity to submit meaningful comments that will enable the FAA to make an informed decision. In this case, it appears that the FAA is only attempting to give IATA an opportunity to place documents in the docket, as it will probably be impossible for the FAA to avoid pre-judging the outcome of the JFK and Newark proceedings if it first adopts the conceptual approach reflected in the LaGuardia NPRM. In IATA s opinion, it is not too late for the FAA to correct its error by consolidating the proceedings for all three New York area airports, giving IATA the opportunity to submit comments before the FAA adopts congestion management precedent for any New York area airport, and allowing ATA and other parties an opportunity to supplement their comments on the LaGuardia proceedings at any time before the July 21 deadline for comments in the JFK/Newark NPRM. The FAA Needs More Time to Comply with Its International Obligations The FAA is subject to a consultation obligation that is has not met, and probably cannot fulfill in the near future. The air services agreements in effect between the United States and most, if not all, countries whose airlines provide international services at JKF and Newark include consultation requirements that apply when proposed rules, such as this one, significantly affect the regular and continuous development of international air transport 3. The FAA, therefore, must 3 See Air Transport Agreement between the United States and 27 European countries signed on 30 April 2007, Art. 18, Multilateral Agreement on the Liberalization of Air Transport signed on 1 May 2001 amongst 5
give affected foreign governments sufficient time to consult with their respective airlines and assess the actual impact of the proposed rules. The FAA must also give itself enough time to consult with the countries that have already expressed concern about the adoption of the FAA s proposed congestion mitigation (or that will express concern when they realize that these rules are likely to adversely affect their airlines JFK and Newark flights). Over the past nine months, numerous foreign governments have expressed concern directly to DOT and the U.S. Government directly about this rush on DOT s part to implement market mechanisms in New York and enable airports to do so across the country. Clearly, they expect to be consulted under the terms of their respective air service agreements before the FAA adopts any precedent on congestion management mechanisms for New York area airports. IATA Comments on the LaGuardia NPRM As noted above, IATA has had insufficient notice of the likely need to comment on the LaGuardia proceeding in order to forestall the creation of precedent that will determine the outcome of the FAA s consideration of similar congestion mitigation rules at LaGuardia and Newark. Under these the United States, Chile, Brunei Darussalam, New Zealand & Singapore, Art. 13. Later Mongolia, Samoa, Tonga and the Cook Islands joined the agreement. See also the following Air Services Agreements signed by the United States with the following countries: Canada, Art. 16; Thailand, Art. 13; Trinidad & Tobago; Albania, Art 13; Russian Federation, Art. 16; Aruba, Art 13; Australia, Art 10; Bahrain, Art. 13; Benin, Art. 13; Bosnia Herzegovina, Art. 13; Burkina Faso, Art. 13; Burma, Section IX; Cameroon, Art. 13; Cape Verde, Art. 13; Chad, Art. 13; China, Art. 12; Costa Rica, Art. 13; Croatia, Art. 13; Ecuador, Art. 13; Egypt, Art. 12; El Salvador, Art. 13; Ethiopia, Art. 13; Fiji, Art. 14; Gabon, Art. 13; Gambia, Art. 13; Georgia, Art. 13; Ghana, Art. 13; Guatemala, Art. 13; Guyana, Art. 8; Honduras, Art. 13; Hong Kong, Art. 16; Iceland, Art. 13; India, Art. 13; Indonesia, Art. 13; Iran, Art. 15; Jamaica, Art. 13; Jordan, Art. 14; Korea, Art. 13; Kuwait, Art. 13; Liberia, Art. 13; Macao, Art. 14; Madagascar, Art. 13; Malaysia, Art. 13; Maldives, Art. 13; Mali, Art. 13; Morocco, Art. 13; Namibia, Art. 13; Nicaragua, Art. 13; Nigeria, Art. 13; Norway, Art. 14; Pakistan, Art. 14; Panama, Art. 13; Paraguay, Art. 13; Peru, Art. 13; Qatar, Art. 13; Rwanda, Art. 13; Senegal, Art. 13; South Africa, Art. 13; Sri Lanka, Art. 13; Switzerland, Art. 13; Tanzania, Art. 13; Turkey, Art. 12; Uganda, Art. 13; Uruguay, Art. 13; Uzbekistan, Art. 13; Vietnam, Art. 13/. 6
circumstances, IATA has had time only to review the comments submitted by the ATA, and to determine that we are in general agreement with the views expressed in those comments. The ATA comments, however, do not address all of the relevant issues that IATA would have addressed had we known that the precedent created by the LaGuardia proceeding will likely predetermine the outcome of the JFK/Newark NPRM. We will expand on the ATA s comments when we submit our comments in the JFK/Newark proceeding despite the appearance that the FAA will make decisions on the basic framework of its congestion-mitigation and slot allocation rules before we submit those comments on July 21, 2008. Respectfully submitted, Douglas E. Lavin Regional Vice President North America International Air Transport Association 1750 K Street, N.W., 12th Floor Washington, D.C. 20006 Tel: (202) 293-9292 lavind@iata.org 7