[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Notices]
[Pages 63335-63350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22291]
[[Page 63335]]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
[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 2020/2021
Scheduling Season
AGENCY: Department of Transportation (DOT), Federal Aviation
Administration (FAA).
ACTION: Extension of limited waiver of the minimum slot usage
requirement.
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SUMMARY: The FAA has determined to extend through March 27, 2021, the
coronavirus disease 2019 (COVID-19)-related limited 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 already has made available through
October 24, 2020, with additional conditions as described herein. In
addition, the FAA also has determined to extend, through March 27,
2021, its COVID-19-related 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, also with
additional conditions as described in this notice. 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). These extensions
remain subject to the stated policy on reciprocity that applied to the
COVID-19-related relief that the FAA earlier granted through October
24, 2020.
DATES: The relief announced in this notice is available for the Winter
2020/2021 scheduling season, which runs from October 25, 2020 through
March 27, 2021. Conditions on the relief announced in this notice
require compliance beginning on October 15, 2020.
FOR FURTHER INFORMATION CONTACT: Bonnie Dragotto, Office of the Chief
Counsel, Regulations Division, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
3808; email: bonnie.dragotto@faa.gov.
SUPPLEMENTARY INFORMATION:
Background
In a notice published in the Federal Register on March 16, 2020 (85
FR 15018), the FAA announced certain relief through May 31, 2020, in
light of impacts on air travel demand related to the COVID-19 public
health emergency.\1\ As announced in that notice, through May 31, 2020,
the FAA waived the minimum usage requirement as to any slot associated
with a scheduled nonstop flight between JFK, LGA, or DCA, respectively,
and another point that was canceled as a direct result of COVID-19-
related impacts.\2\ In addition, that notice announced that the FAA
would prioritize flights canceled due to COVID-19 at designated IATA
Level 2 airports in the United States--including ORD, EWR, LAX, and
SFO--through May 31, 2020, for purposes of establishing a carrier's
operational baseline in the next corresponding season.\3\ In granting
this relief, the FAA asserted its expectation that foreign slot
coordinators would accommodate U.S. carriers with reciprocal relief.
The FAA further stated that it would continue to monitor the situation
and might augment the waiver as circumstances warrant.
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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.'' 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 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), and this notice extends to all allocated slots,
including slots allocated by exemption.
\3\ The FAA notes that a minimum usage requirement does not
apply at designated IATA Level 2 airports in the United States.
However, established procedures under the IATA Worldwide Slot
Guidelines (WSG) allow for the prioritization of such cancelations
in subsequent corresponding seasons consistent with the FAA's policy
statement.
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Subsequently, following a notice of opportunity for interested
persons to show cause why the FAA should or should not extend the
relief provided due to continuing COVID-19-related impacts on demand
for air travel (85 FR 16989; Mar. 25, 2020), the FAA extended the
relief through October 24, 2020 (85 FR 21500; Apr. 17, 2020). The FAA
explained its intent to provide carriers with maximum flexibility
during this unprecedented situation and to support the long-term
viability of carrier operations at slot-controlled and IATA Level 2
airports in the United States.
On September 11, 2020, the FAA issued a notice of proposed
extension of the limited relief already provided through the Summer
2020 scheduling season, with additional conditions, which was published
in the Federal Register on September 15, 2020 (85 FR 57288). In this
notice, the FAA invited comment on its specific proposals for continued
relief from the minimum slot usage requirements and related policies
due to COVID-19. Specifically, the FAA proposed to extend the relief
already made available at U.S. slot-controlled airports (DCA, JFK, and
LGA) with additional conditions through the Winter 2020/2021 season.
The FAA also proposed limited additional relief at U.S. designated IATA
Level 2 airports (EWR, LAX, ORD, and SFO) on a conditional basis
through December 31, 2020.
The FAA notes that carriers have not begun providing any
significant slot returns or schedule updates for Winter 2020/2021, as
they await a final decision on FAA policies relative to waiving minimum
usage requirements at DCA, LGA, and JFK and relief at Level 2 airports
for prioritization in Winter 2021/2022. Several carriers have advised
the FAA informally that they already have identified slot returns and
schedule reductions for some or all of the scheduling season, and that
they will provide additional information after the FAA finalizes its
usage waiver policy. The FAA encountered similar carrier behavior
earlier this year when it initially granted relief through May 31,
2020, before extending the waiver through October 24, 2020.
Current COVID-19 Situation
Since the FAA's September 11, 2020 notice was issued, COVID-19 has
continued to cause disruption globally and within the United States.
The World Health Organization (WHO) reports COVID-19 cases in more than
200 countries, areas, and territories worldwide. For the week ending
September 27, 2020, the WHO reported more than 2 million new COVID-19
cases and 36,475 new deaths, bringing the cumulative total to over 32.7
million
[[Page 63336]]
confirmed COVID-19 cases and 991,000 deaths.\4\
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\4\ COVID-19 weekly epidemiological update, September 28, 2020,
available at: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports.
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International travel recommendations from the Centers for Disease
Control and Prevention (CDC) categorize nearly 200 countries, areas,
and territories worldwide under Level 3--COVID-19 Risk Is High.
Although the U.S. Department of State's Global Health Advisory was
downgraded from Level 4--Do Not Travel for certain destinations,
advisories ranging from Level 2--Exercise Increased Caution to Level
3--Reconsider Travel and up to Level 4 remain in effect for many parts
of the world due to continuing impacts of COVID-19.\5\ 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 notes further that
foreign governments may implement restrictions with little notice, even
in destinations that were previously low risk.\6\ Accordingly, the U.S.
Department of State warns 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.\7\
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\5\ https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories.html/.
\6\ https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html.
\7\ Id.
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Within the United States, the CDC reported 7,260,465 total cases
and 207,302 deaths from COVID-19 as of October 2, 2020, with 302,093
new cases in the prior seven days.\8\ 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. A national emergency related to
COVID-19 remains in effect pursuant to the President's March 13, 2020
Proclamation.\9\
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\8\ CDC COVID Data Tracker, updated October 2, 2020, available
at https://covid.cdc.gov/covid-data-tracker/?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fcases-updates%2Fcases-in-us.html#cases_casesinlast7days.
\9\ https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
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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 extending relief
due to COVID-19 impacts.\10\
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\10\ See 85 FR 15018 (Mar. 16, 2020).
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At JFK and LGA, each slot must be used at least 80 percent of the
time.\11\ 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.\12\
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\11\ 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).
\12\ 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.\13\ 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.\14\
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\13\ See 14 CFR 93.227(a).
\14\ 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 and maximize the benefits to both 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 they make decisions in
anticipation of the FAA granting a slot usage waiver.
Summary of Comments and Information Submitted
The FAA received 196 comments \15\ on the proposal from
stakeholders and other persons, including IATA, Airlines for America
(A4A), the oneworld Alliance, the Star Alliance, the Cargo Airline
Association (CAA), the National Air Carrier Association (NACA),
Airports Council International-World (ACI World), Airports Council
International-North America (ACI-NA), Airlines for Europe (A4E), the
Latin American and Caribbean Air Transport Association (ALTA), the
Association of Asia Pacific Airlines, the Arab Air Carriers
Organization, 10 U.S. carriers,\16\ 33 foreign carriers,\17\ the
International Association of Machinists and Aerospace Workers (IAMAW),
the Professional Flight Control Association (PAFCA-UAL), the
Association of Flight Attendants-CWA, AFL CIO, 22 members of Congress,
10 state/elected officials, 54 other non-aviation businesses and
industry organizations, and 71 individuals (most of whom identified as
airline or other aviation and travel industry employees).\18\ In
addition, one foreign carrier also submitted a comment to the U.S.
Department of State, which has been included in the docket for this
proceeding with all other comments not containing proprietary or
confidential business information.
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\15\ The FAA notes that some comments were submitted on behalf
of multiple persons. For example, the FAA received three
Congressional letters, which collectively reflected signatures from
22 members. Four commenters, including U.S. and foreign carriers,
submitted comments marked as proprietary and confidential. The
information contained within comments marked as Proprietary
Information (PROPIN) was consistent with information submitted by
other airline industry commenters. The FAA will maintain the
confidentiality of this information to the extent permitted by law.
\16\ Comments were submitted by the following U.S. carriers:
Alaska Airlines, Inc., Allegiant Air, LLC, Delta Air Lines, Inc.,
JetBlue Airways Corp., Southwest Airlines Co., Spirit Airlines,
Inc., United Airlines, Inc., Eastern Airlines, LLC, and Polar Air
Cargo Worldwide, Inc. United and one additional U.S. carrier
submitted comments, or a portion thereof, marked as proprietary and
confidential.
\17\ Comments were submitted by the following foreign carriers:
Aeromexico, Air Canada, Air China, Air France/KLM, Air New Zealand,
Air Serbia, Alitalia, All Nippon Airways, Austrian Airlines,
Avianca, Brussels Airlines, Cathay Pacific, Copa, Emirates,
Ethiopian Airlines, Eurowings, Finnair, Iberia, LATAM, LOT Polish
Airlines, Deutsche Lufthansa, Norwegian Air International, Ltd.,
Qantas Airways, Ltd., Royal Air Maroc, SAS Airlines, Singapore
Airlines, Swiss International Air Lines Ltd., Turkish Airlines Inc.,
Virgin Atlantic, VivaAerobus, and Xiamen Airlines. Two additional
foreign carriers submitted comments marked as proprietary and
confidential.
\18\ The comment period closed on September 22, 2020. Comments
considered in finalizing the policy announced in this notice include
late-filed submissions received as of September 25, 2020.
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Most incumbent U.S. and foreign airline commenters, as well as
their industry representatives and others, support an extension of
relief and advocate for aligning the duration of relief at slot-
controlled and Level 2 airports in the United States through the
upcoming Winter 2020/2021 season. These commenters also generally
[[Page 63337]]
opposed the FAA's proposal for bulk (monthly) slot returns four weeks
in advance of the date of operation, which is equivalent to four to
eight weeks in advance of certain operations. While some commenters,
particularly among the airport community, support the FAA's approach
for the Winter 2020/2021 season as proposed, several carriers assert
that the policies are inadequate and/or unlikely to have the intended
effect. Several commenters suggest that the FAA should close the door
to any further relief beyond the Winter 2020/2021 season, while other
commenters offer alternative approaches to force full-season bulk
returns for permanent reallocation. Some commenters seek to supersede
this waiver proceeding entirely by encouraging the Federal Government
to establish broader economic/market-based aviation industry recovery
policies and/or change the regulatory policy landscape for managing
slots and schedule facilitation in the United States. Some comments
were limited to discussing either the proposal for slot-controlled
airports or the proposal for Level 2 airports. The comments are
summarized in more detail below.
Comments Concerning FAA's Proposal for Continued Relief at U.S. Slot-
Controlled Airports (DCA, JFK, and LGA) and Other General Provisions of
the FAA's Proposal
Eastern Airlines commented that it fully supports the FAA's
proposal to extend the COVID-19-related limited waiver of the minimum
slot usage requirement at JFK through March 27, 2021.
ACI World expresses full support for the FAA's proposal, including
the attachment of strict conditions to the proposed extension of the
waiver, which ACI World believes are instrumental to support the
recovery of aviation by ensuring waivers are not used ``to insulate
slots from market realities during the recovery period.'' ACI World
comments that the strict conditions proposed would avoid unintended
impacts on competition and ensure consumers are protected from last-
minute cancellations. ACI World asserts the slot return condition is
``necessary to incentivize airlines to return slots. . .to enable
airports to safely plan operations, complying with physical distancing
requirements and encouraging efficient reallocation when possible;''
the condition excluding new allocations from relief ``will avoid the
possibility of airlines building up historics for the post-COVID-19
future;'' and the exclusion of newly transferred slots from relief will
``ensure that airlines that are ready and able to operate to support
the recovery are not blocked from entering airports by anti-competitive
holding of slots by airlines exiting these markets.'' ACI World
emphasizes that `` `ghost flights' are not justified'' and ``[u]nder no
circumstances are air carriers required to operate flights because of
slot usage requirements'' as ``[c]arriers who reported being `forced'
to operate such flights actually made a strategic decision to protect
their slot portfolio.''
ACI-NA supports the FAA's proposal, commenting that the proposal
``acknowledges the critical role that access to the most congested
airports plays in economic vitality for communities, the significance
of recognizing the cataclysmic impact from COVID-19 to the aviation
industry, and the importance of providing price and service competition
where air carriers see opportunity as opposed to allowing precious
resources to be squandered because of historical happenstance.'' ACI-NA
believes the proposal is ``a strong restatement that [slot resources]
are not the property of the air carriers'' consistent with 14 CFR
93.223(a). ACI-NA comments that ``[w]hile ACI-NA is not advocating for
a wholesale realignment of slot and access portfolios at this time, the
Notice should be the foundation for a careful investigation and
analysis of the changing landscape in the air service competitive
environment.'' ACI-NA remarks that the proposal is ``a reasonable step
and consistent with the determination of other civil aviation
authorities across the world,'' but ``it is likely that even with four
to eight weeks of notice to the air carrier community of available
slots, not all carriers have the flexibility to respond commercially to
take advantage of these openings.'' ACI-NA recommends ``that DOT and
FAA carefully monitor how the proposed system is applied during W20 and
account for the results, to include expressions of interest by new
entrants who consider the slot regime to be a barrier to entry, in any
future consideration of limited relief of slot utilization requirements
through expanding the timeframe for [returns] to further encourage
utilization of these scarce resources.''
The PANYNJ comments that it fully agrees with comments submitted by
ACI-NA. In addition, given that ``fundamental shifts in the industry
have occurred,'' the PANYNJ suggests that ``[p]olicy should reflect the
industry's new reality, and market-distorting waivers should not
persist for years until pre-COVID demand levels return.'' The PANYNJ
further ``concurs with the assertion that [ghost flights] are an
inefficient use of resources and are inconsistent with the purpose of
slot-controls'' and believes that this issue ``should continue to be of
importance once demand for air travel fully rebounds.'' PANYNJ comments
that ``no carrier is ever forced to conduct operations to maintain
slots, and carriers unable to sustain genuine operations consistent
with their slot portfolio should return unused slots for
reallocation.''
JetBlue and Alaska support the FAA's proposal to extend relief at
slot-controlled airports in the United States through the Winter 2020/
2021 season, and JetBlue further notes that it ``accepts the FAA's
proposed conditions, which are intended to balance the needs and
requirements of various stakeholders.''
The CAA fully supports the FAA's proposal ``and recognize[s] that
airlines should not be penalized for their temporary inability to meet
the required slot utilization rates because of flight cancellations
stemming from drastically reduced passenger traffic caused by the
extraordinary and unforeseen COVID-19 pandemic.'' The CAA further
emphasizes the ``expanding needs [of cargo carriers] for service at
many of the communities with slot constrained airports'' and asserts
that ``it would be in the public interest for the FAA to temporarily
reallocate to cargo airlines the slots not used by passenger airlines''
given the interests served by air cargo service in support of
transporting medical supplies and equipment to combat COVID-19. The CAA
notes that the DHS Cybersecurity and Infrastructure Security Agency has
recognized air cargo workers as ``Essential Critical Infrastructure
Workers'' exempt from shelter-in-place rules. The CAA also notes that
the upcoming ``October-December timeframe is when demand will peak to
the highest point in the year and this year will undoubtedly present
challenges for the air cargo industry.'' CAA urges the FAA to finalize
the relief proposed through March 27, 2021 and to ``make available
unused slots for temporary reallocation to air cargo operations.''
While IATA generally supports the FAA's intent in providing further
relief from the minimum slot usage requirements for the full Winter
2020/2021 season at DCA, JFK, and LGA, IATA opposes the FAA's proposed
conditions for a carrier to benefit from the proposed waiver extension.
IATA asserts that ``[f]ailure to eliminate these limitations would
negatively and unnecessarily impact all carriers operating to U.S.
Level 2 and [slot-
[[Page 63338]]
controlled] airports as well as expose them to restrictions to their
operations around the world.'' IATA urges the FAA to amend the proposed
slot return condition ``to a simple rolling deadline prior to operation
in line with the rest of the world and grant exemptions for those slots
not covered by the return period at the start of the season.'' IATA
notes that as carriers at U.S. slot-controlled airports would be
required to return slots that will not be used at least four weeks in
advance by the first day of the preceding month, the effect is a return
deadline of four to eight weeks prior to operation to be eligible for
relief. IATA asserts that this ``far exceeds the conditions of other
waivers globally, which range from no [return] deadline to maximum four
weeks in advance'' and ``will result in cancellations not dictated by
market demand and hinder recovery further.'' IATA asserts the proposal
is ``confusing in terms of implementation, impractical, and
unjustifiable given current demand and booking behaviors'' and further
that ``[i]t is also made practically impossible by government
restrictions that limit the ability of airlines to plan schedules in
advance.''
IATA points to evolving government travel advisories, changes to
crew restrictions and requirements, testing regimes, quarantines, and
passenger booking behavior \19\ as examples of considerations that make
it challenging for carriers ``to make decisions on their operating
schedule by the first of the month prior to the operating month. . .''
Thus, according to IATA, carriers would be likely to cancel more
flights than otherwise necessary to preserve their long-term access to
slots. IATA references a collaborative approach used to reach consensus
by the European Commission (EC), which has resulted in a three-week
deadline being applied voluntarily at all European Union and European-
coordinated airports for the Winter 2020/2021 season, thus concluding
that it may be advisable for the FAA to consider the EC agreed upon
deadline. IATA further notes practical challenges associated with the
proposed return deadline given the timing of the announcement of the
proposal and seeks to ensure relief will be provided to carriers to
address concerns ``that slots for the last week of October and the
whole of November will not benefit from the waiver unless they are
exempted from any return deadlines.'' IATA points out that issuance of
the FAA's final waiver policy in October would prevent carriers from
being able to meet October and November deadlines.
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\19\ IATA's analysis and airline data shows that 67% of U.S.
domestic bookings and 46% of U.S. international bookings are
currently made less than four weeks from travel.
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IATA also seeks clarification of the conditions for newly allocated
slots, treatment of transfers, and the exception for certain
cancellations that have not met the conditions ``to ensure maximum
benefit to the industry.'' IATA urges the FAA to indicate that it will
consider ``border or airport closures; quarantine requirements; load
restrictions/passenger caps; and onerous or economically infeasible
testing protocols'' in determining whether to grant an exception from
any conditions imposed on the waiver and to establish a ``procedure to
allow for this alleviation without unnecessary bureaucratic review and
processing that would unnecessarily burden both the slot coordinator
and airlines.'' IATA supports a condition that new slots allocated for
the Winter 2020/2021 season be excluded from the waiver and remain
subject to minimum slot usage requirements. However, IATA asks the FAA
to clarify the condition for new allocations and, specifically, whether
it applies to slots allocated for purposes of the Winter 2020/2021
season regardless of the timing of the new allocation. IATA also asks
for additional clarification concerning the circumstances under which a
transfer would not be eligible for the waiver. IATA assumes that
condition ``would only apply to those transactions undertaken 14 days
post-publication of the waiver that are not continuing long-term
transfers.''
A4A generally supports FAA's proposal to make relief from the
minimum slot usage requirements available at slot-controlled airports
in the United States through the Winter 2020/2021 season. However, A4A
opposes the FAA's proposed condition for returns and similarly points
to the booking curve, which A4A asserts has ``shifted substantially,
with more passengers now booking within just a week or two of
departure.'' A4A seeks the alignment of this proposed condition with
certain foreign jurisdictions providing for a three-week rolling return
deadline consistent with current demand and booking patterns and in
order to increase operational flexibility.
The oneworld Alliance generally supports the FAA's consideration of
continued relief from the minimum slot usage requirements, but
expresses concern that the proposed conditions ``will negatively impact
airlines . . . and potentially result in carriers being subject to
unfair reciprocal treatment in other jurisdictions.'' In addition, the
oneworld Alliance urges FAA ``to amend the condition for the return of
unused slots to a four-week deadline prior to operation, to align with
conditions globally.''
United generally supports the FAA's proposal for slot-controlled
airports to the extent the proposal would preserve the general status
quo, but United opposes the imposition of any conditions on the relief
made available given ``the entire point of the Notice is to afford
relief due to extraordinary circumstances.'' Nevertheless, consistent
with comments from IATA and A4A, United urges the FAA to simplify the
process and timing for slot returns and to clarify the basis for
approving exceptions from the conditions at slot-controlled airports.
Delta supports the FAA's proposal to extend relief from the minimum
slot usage requirements at JFK, LGA, and DCA through March 27, 2021,
noting that this extension ``will provide carriers with critical
flexibility and support the long-term viability of carrier operations
at slot-controlled airports in the United States.'' Delta encourages
the FAA to amend the proposed return condition ``to allow carriers to
return a slot no later than three weeks in advance of the corresponding
flight'' in order ``[t]o align the advance slot return requirement with
the current demand and booking patterns.'' Delta comments that the
proposed condition requiring returns four to eight weeks in advance of
an operation ``would cause commercial and operational challenges for
Delta and other carriers'' as ``approximately 75% of customer bookings
on Delta flights now take place within just four weeks of the scheduled
flight, and approximately one-third of passenger bookings have been
occurring within just one week of departure.'' Delta notes that a
three-week return condition would allow ``more operational flexibility
while still supporting the FAA's objective of allowing other interested
carriers to operate the unused slots on an ad hoc basis'' and be ``more
consistent with international slot waiver and return standards.''
Star Alliance supports the FAA's proposal to extend relief at slot-
controlled airports in the United States through the end of the Winter
2020/2021 season, but opposes the FAA's proposed return deadline to the
extent it ``force[s] airlines to forego flexibility in recovery
opportunities'' and diverges from foreign jurisdictions that require
returns at most four weeks in advance of the date of planned operation.
[[Page 63339]]
With limited exceptions, foreign carriers generally support the
full season extension of relief proposed at slot-controlled airports,
endorsing the IATA comments and expressing opposition to the FAA's
proposed timeline for returning unused slots. Foreign carriers
articulate two main concerns about the FAA's proposed deadline for
returning slots: (1) That the FAA's return deadline is a global outlier
that complicates unified schedule planning; and (2) that the FAA's
deadline is too restrictive in the current COVID-19-impacted commercial
environment.
Royal Air Maroc comments that the FAA's proposed return deadline
``far exceeds the conditions of other waivers globally, which range
from no deadline to maximum four weeks in advance.'' Royal Air Maroc
asserts that, ``[g]iven the crisis, airlines are not in a position to
make decisions on whether or not to operate certain flights eight weeks
prior to departure.'' Ethiopian Airlines also takes issue with the
proposed slot return timeline, asking that the ``FAA amend [its]
proposal for advance slot returns'' and ``align with the global best
practice of requiring returns in advance (one week) of the planned date
of operation.''
Carriers propose various return deadline timelines, with some
advocating for one week in advance while others proposed two-week,
three-week, or four-week rolling return deadlines. Iberia advocates for
the FAA to require the return of slots three weeks before the date of
the operation. Alitalia is most concerned with the proposed FAA
deadline being at the beginning of the preceding month, proposing a
``simple'' four-week rolling deadline instead. Qantas also commented
that, ``a simple four-week deadline prior to operation would be
appropriate.'' Cathay Pacific supported a two-week return deadline,
commenting that the lead-time for cargo services ``will be even shorter
than passenger services.''
A4E supports the FAA's proposal to extend relief at slot-controlled
airports in the United States through the end of the Winter 2020/2021
season, but expresses concern about certain aspects of the proposal.
A4E comments that ``[t]ransatlantic routes are critically important for
some [A4E] members, who provide extensive business and leisure
connectivity between the United States (U.S.) and Europe, and thereby
generate substantial economic and employment benefits on both sides of
the Atlantic.'' A4E asserts that ``[c]ontinued slot relief is essential
for an industry experiencing its most severe crisis in history'' and
notes that ``Eurocontrol's recent traffic scenarios for Europe forecast
55% (6 million) fewer flights in 2020 compared to 2019'' and that ``the
overall revenue loss across the industry, including airports and ANSPs,
is estimated at [euro]140 billion.'' A4E also asserts that ``[t]raffic
is expected to remain 50% down on 2019 by February 2021.'' A4E urges
the FAA to reconsider its proposal for slot returns and align its
policy with Europe's policy, to require slot returns no later than
three weeks in advance of planned operation based on reciprocity
concerns and patterns of current demand, which make it impossible ``to
predict demand more than two or three weeks in advance under current
circumstances.'' A4E also recommends an exception that ``provides for
potential alleviation of slot returns made within three weeks if this
is caused by circumstances outside of the airline's control and related
to crisis (e.g. the imposition of travel restrictions at short
notice).''
ALTA comments that the proposal to extend relief at slot-controlled
and Level 2 airports ``allows airlines to operate flights in an
environmentally and financially sustainable manner instead on [sic]
focusing on just filling slots.'' However, ALTA is ``concerned that the
proposed [conditions] to the waiver will have undue negative impact on
all carriers operating to U.S. [slot-controlled] and Level 2 airports
and at the same time expose carriers to unfair reciprocal treatment
regardless of which U.S. airport they operate from.'' ALTA asserts that
the U.S. ``should provide slot relief that is consistent and equal to
other countries given the global nature of the airline's operations and
slot holdings on each end of the route.'' ALTA therefore urges FAA to
amend the condition for returning slots to a simple four-week deadline
prior to operation given ``airlines are not in a position to make
decisions on whether or not to operate certain flights eight weeks
prior to departure.'' ALTA also expresses concern about the timing of
the proposal and how usage of slots will be addressed for the early
part of the Winter 2020/2021 season. ALTA emphasizes the importance of
certainty during this crisis, especially for those carriers ``from
Latin America and the Caribbean which have been acutely affected with
prohibitions of flying in many cases.''
The Arab Air Carriers Organization comments that ``industry remains
in the deepest crisis it has ever experienced with little hope of any
return to near normal levels of flying this winter season'' and urges
the FAA ``to amend the condition for returning slots to a simple four-
week deadline prior to operation in line with the rest of the world.''
One individual expressed support for the FAA's proposal to extend
relief at slot-controlled airports through March 27, 2021, but also
advocated for a revised return deadline of three to four weeks to be
applied on a rolling basis to better align with standards adopted
internationally and to reflect the limited ability of carriers to
forecast demand up to eight weeks prior to operation.
Polar Air Cargo ``fully supports'' IATA's request to extend relief
through the full Winter 2020/2021 season, elaborating that ``all-cargo
carriers like Polar benefit from the flexibility provided by these slot
waivers to schedule extra-sections, as well as numerous charters, to
make up for the lack of belly capacity caused by the suspension of the
vast majority of flights by passenger carriers.'' Polar states that
``[t]his has allowed the movement of critical medical supplies the
world over and for the global supply chain to survive through service
to numerous and usually slot-congested airports.'' However, Polar
comments further that ``this policy should be discontinued thereafter
to permit all-cargo services, as well as other categories of service
that are being pressed to fill the void in air freight capacity, to
qualify for permanent awards of the vacated passenger carrier slots
starting in the Northern Summer 2021 Season.'' In support of its
argument for discontinuation, Polar notes that ``[i]t now appears that
the recovery of passenger services will be much slower, the shrinkage
of passenger fleets much greater, and the overall frequency of
passenger services much lower than anticipated, underscoring the need
for the continuation of additional all-cargo lift and the accompanying
slot availability.''
Southwest opposes the FAA's proposed extension for relief at slot-
controlled airports in the United States through the Winter 2020/2021
season, but urges that, if the FAA nonetheless proceeds with finalizing
the proposal, the FAA should affirmatively state in its final decision
that ``no further usage waivers will be granted so that all
stakeholders will have ample time to plan accordingly.'' Southwest
comments that the conditions placed on the relief are insufficient and
``largely impractical'' as they do not provide an adequate incentive or
assurance for carriers like Southwest to invest in new service for
short-term, ad hoc access to slot-controlled airports. Southwest states
that, in the absence of a ``guarantee that Southwest would be able to
use the reallocated slots
[[Page 63340]]
permanently, an investment in new service would not be justified.''
Lastly, Southwest notes that ``[i]f full utilization is required
beginning March 28, 2021, Southwest is prepared not only to operate its
full complement of slots at both DCA and LGA but would welcome the
opportunity to offer additional flights using any slots that are
reallocated on a permanent basis.''
Spirit opposes the FAA's proposal in its entirety as ``unacceptably
protective of dominant incumbent carriers at the expense of the
traveling public and of low-cost carriers ready and willing to serve.''
Spirit advocates for a ``market-based restructuring of domestic
competition.'' Spirit asserts that the ``proposal contravenes the
procompetitive public interest mandate to which the FAA must adhere and
penalizes low-cost and new entrant carriers willing to take on risk and
operate new routes and service immediately.''
In lieu of the FAA's proposal, Spirit seeks the removal of slot
control rules and schedule facilitation parameters at all airports in
the United States, at least with respect to domestic operations, in an
effort to ``allow market forces to rebuild demand.'' Spirit suggests a
process for reintroducing such parameters in the future ``[i]f and when
congestion returns.'' In the absence of such action, Spirit suggests
several ways in which the rules governing slots should be amended,
including revising the minimum slot usage requirements and by requiring
carriers ``to fly larger aircraft on routes that begin and end at large
or medium hub airports, using fewer slots, rather than underutilizing
slots to prevent new entry.'' Spirit believes that ``discontinuing
waivers alone is not enough . . . while keeping the slot regimes in
place'' as it encourages incumbents to fly ``empty airplanes to
preserve their slot priority when they may never use many of these
slots and authorizations again.'' Spirit asserts that the FAA's
proposal for slot returns is ``unrealistic, even absurd'' as it does
not allow Spirit or other carriers looking to add flights to operate
profitably given the lead time necessary for selling flights, crew
scheduling and securing long-term leases with assurance of future long-
term priority. Spirit comments that the FAA's proposal ``[i]gnores the
Department and FAA mandate to set policies in the public interest.''
Spirit asks that the FAA treat domestic and international operations
differently and disregard reciprocity concerns raised by other
commenters.
Spirit recommends that, if the FAA grants a full-season waiver at
slot-controlled airports, slot-holding carriers should be required to
determine what they will operate for the entire season in advance and
return slots that will not be used by October 1; all returned slots
would then be made available for permanent reallocation ``even if the
original [slot holders] want them back.'' Spirit suggests that ``FAA
can exceed the caps, if necessary, for one or two seasons to allow for
continuity of service in the case of low-cost or new entrants, as a
scheduling conference is worked out.'' Spirit further urges the FAA to
make clear that, barring a major resurgence of COVID-19, this will be
the last waiver at slot-controlled airports.
Allegiant comments that ``an extension of the [current] waiver
without change would be contrary to the public interest,'' and ``while
the modifications stated in the Notice represent an improvement over
the existing situation, they do not go far enough and as such, do not
adequately serve the public interest'' with reference to 49 U.S.C.
40101. Allegiant comments that ``a public health crisis does not
justify hoarding of public assets--in this case, slots at Level 2 and
[slot-controlled] airports--by any carrier when others are prepared to
utilize at least some of those assets, benefitting the public.''
Allegiant comments that ``[u]nder the FAA's approach, the flexibility
reserved for incumbents would confer a competitive advantage on them,
given that the most non-incumbents could hope for under the Notice is
ad hoc slots made available in monthly installments'' and ``a
competitive advantage conferred by a government agency upon any carrier
or carriers is contrary to the public interest.'' Allegiant asserts
that a proper balancing of interests ``requires that each group be
provided an equal opportunity to utilize the public assets in
question.''
In lieu of a waiver, Allegiant suggests that the FAA should require
``each incumbent carrier to declare by a date certain which slots it
will utilize for the Winter 2020-21 scheduling season and which it will
not. Slots retained by an incumbent for the season would be subject to
normal FAA use-or-lose requirements. In the case of Level 2 airports,
up-to-date winter schedules would be required from incumbents by the
same date. Other U.S. carriers wishing to utilize the slots/times thus
made available . . . would apply for them by a subsequent date certain,
listing the requested slots/times in order of preference for that
carrier.'' Allegiant suggests that the FAA then assign slots and
priorities and ties could be broken by the FAA using a procedure
similar to the DOT's procedure for issuing CARES Act Service
exemptions. Allegiant comments that it ``knows of no reason its
proposal would be any more complex or time-consuming than the proposal
outlined in the Notice,'' which Allegiant asserts ``is silent as to how
the slots turned back in one-month increments would be distributed.''
Allegiant urges the FAA ``to modify its proposal so that non-incumbent
carriers proposing to utilize available capacity at Level 2 and [slot-
controlled] airports during the Winter 2020-21 season will have at
least four months (December through March) of uninterrupted use of the
slots/times they receive, enabling them to offer service on a realistic
basis.''
NACA supports the comments submitted by Spirit and Allegiant and
``believe[s] an extension of these waivers without further
modifications creates an anti-competitive atmosphere and would be
contrary to the public interest.'' Agreeing with Spirit and Allegiant,
NACA believes ``the situation can be easily remedied by simply
requiring each incumbent carrier to declare by a date certain which
slots it will utilize for the Winter 2020-21 scheduling season and
which it will not'' to ``ensure that non-incumbent carriers would have
a reasonable opportunity to provide meaningful Winter 2020-21 service
utilizing these public assets.''
Exhaustless, Inc. opposes the proposed extension of the waiver of
the minimum slot usage requirements. This commenter expresses
opposition to the concept and practice of ``grandfathering slots'' and
requests enforcement of ``(1) the statutory terms of all air carrier's
[sic] economic certificates and (2) the binding case law that declares
a legitimate replacement for the prohibited practice of grandfathering
slots.''
Comments Concerning the FAA's Proposal for Continued Relief at U.S.
Designated IATA Level 2 Airports
As previously explained, ACI World expresses full support for the
FAA's proposal; the FAA therefore understands this comment as
supportive of the FAA's proposal to provide relief at Level 2 airports
through December 31, 2020.
The PANYNJ ``acknowledges that certain key differences exist in the
management of [slot-controlled] and Level 2 facilities,'' observes that
the absence of slots at Level 2 airports is a ``distinction'' that ``is
critical to the success of Level 2 facilities,'' and expresses
appreciation that the
[[Page 63341]]
distinction ``is acknowledged in the FAA's [proposal].'' The PANYNJ
``also appreciates that consistency is necessary for air carriers to
schedule their operations in a commercially viable manner, and that
both the FAA and airports have traditionally maintained a historic
baseline for schedules properly utilized in the Level 2 environment,''
but notes that ``in the Level 2 environment [FAA] has no legal
obligation to maintain such a baseline.''
JetBlue supports the FAA's proposal that for flights at EWR after
December 31, 2020, priority would be based on approved schedules as
operated for the balance of the scheduling season. JetBlue notes that
``EWR has now been a Level 2 airport for almost five years and JetBlue
continues to grow at EWR.'' Moreover, ``[g]iven that EWR is a Level 2
airport where any carrier is free to operate flights at any time,
JetBlue certainly supports the FAA providing assurances to any carrier
at EWR that it will not lose access to EWR as a result of the partial
waiver, if the FAA ultimately decides to adopt its proposal to only
extend the EWR waiver until December 31, 2020.''
IATA opposes the FAA's proposal for relief at U.S. designated IATA
Level 2 airports, asserting that equal relief should be provided for
Level 2 and slot-controlled airports as IATA does not expect industry
recovery in the U.S. market until 2023 and internationally until 2025.
IATA asserts that Level 2 and slot-controlled airports are effectively
similar, particularly in the New York City area given comparable
decreases in booking and throughput due to COVID-19,\20\ and similar
congestion challenges within the market as well as compared to slot-
controlled airports elsewhere in the world. IATA asserts that it has
``no data . . . that would provide any basis for differentiating Level
2 and [slot-controlled] airports at the mid-winter 2020/21 season
point.'' IATA further asserts that ``[a]irlines will be forced to spend
their limited cash to ensure future access to Level 2 airports'' as
they ``will be compelled to operate financially unsustainable flights
in order to preserve their positions at these Level 2 airports'' where
airlines have ``made multi-million/billion and multi-year investments
to support their traffic levels at these airports.'' IATA comments that
``even if demand was back to normal levels in January 2021, this
partial season approach is coming too late in the winter planning
process to permit an 80% flight schedule,'' which depends upon selling
tickets, crew and fleet assignments, airport facility access, and
airport personnel including airline staff, airport vendors, and
security and immigration personnel.
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\20\ IATA notes that according to TSA data, all three airports
are down a total of 85.6% this summer compared to summer 2019
throughput and the New York City area has the second highest
percentage reduction in scheduled flights in the total U.S. market
for September (-74% versus September 2019). IATA reports that LAX,
SFO, and ORD are facing similar challenges, with SFO down 85.6% in
throughput over 2019, LAX down 80%, and ORD down 76%.
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IATA further notes that the FAA's proposal for Level 2 airports
coupled with the FAA's policy on reciprocity ``will likely result in
other governments imposing additional restrictions on their previous
full season waiver grant for U.S. carriers serving foreign Level 2 and
possibly [slot-controlled] airports,'' which ``will put U.S. carriers
at a disadvantage versus their competitors at a time when they can
least afford it and force them to spend precious dollars to maintain
their positions at these international hubs.'' IATA references several
reciprocity provisions adopted by foreign jurisdictions as examples
likely to lead to this result. Lastly, IATA also expresses concerns
regarding the proposed return condition within the context of the Level
2 proposal to the extent that the return deadline exceeds the
conditions of other waivers globally and is ``unjustifiable given
current demand and booking behaviors.''
A4A opposes the FAA's proposal for relief at Level 2 airports
through December 31, 2020 and seeks alignment of relief at these
airports with the full-season extension of relief at slot-controlled
airports. A4A contends that the failure to align these policies will
``lead to a distortion in the market and place dramatic burdens on
airlines, put undue strain on American businesses and workers, impact
the environment, and set the FAA apart from other global regulators.''
A4A offers that the pandemic and regulatory response thereto have
decimated demand for air travel \21\ and, looking ahead, ``passenger
traffic is not expected to return to 2019 levels until at least 2024,
maybe longer for international traffic.''
---------------------------------------------------------------------------
\21\ A4A also points to TSA throughput data indicating a 75%
decline in summer 2020 generally and a decline of 86 percent in the
New York market.
---------------------------------------------------------------------------
Consistent with IATA's comments, A4A asserts that the proposal for
Level 2 airports will have a substantial adverse impact on the entire
industry and, particularly on A4A members that operate at these
airports. A4A indicates that carriers already have made plans in
reliance on a forthcoming full-season waiver at Level 2 airports. A4A
also asserts that based on the proposal, carriers would have to
``quickly re-hire staff, ensuring that all the training and
certification requirements are met, which takes time.'' A4A contends
that ``[w]hile no carrier would compromise safety, the resources and
rush that will need to be employed to ensure this happens by January 1,
2021 will be significant and avoidable.'' A4A ``submits that the
uncertainty will further destabilize airlines and make recovery even
more difficult and costly.'' Moreover, A4A reiterates that ``the
bifurcation [of relief at Level 2 and slot-controlled airports] will
distort markets and/or cause airlines to fly mostly empty airplanes to
avoid losing the significant investments that carriers have made in
these airports . . .'' by ``[f]orcing airlines'' ``to make an unfair
choice between operating empty aircraft, losing further resources in a
distressed market and facing a longer road to recovery or abandoning
the market and with it the investments it has made to operate in that
market.''
Also consistent with IATA, A4A points to concerns about reciprocity
from foreign jurisdictions that have indicated they only will provide
relief to the extent it is provided to their carriers. A4A expresses
concern that a ``lack of reciprocity will impair connectivity and
therefore distort competition and alter passenger demand in the
future.'' With respect to its reciprocity concerns, A4A reiterates its
concerns about a sudden need to ramp-up operations given ``[a]irlines
have put significant portions of their aircraft fleets in storage,
permitted their employees to take voluntary furloughs, and reduced
their winter schedules.'' This ramp up is expected to put ``strains on
already diminished carrier resources'' and ``could also put more
employees at risk of exposure to the virus as they return to airports
and airplanes--without demand.'' Lastly, A4A asserts that ``[n]o data
suggests that removing the waivers at Level 2 airports will generate
demand, giving new entrants the opportunity to enter a struggling
market and displace another carrier and its personnel that have
invested substantially in the airport for the long-term.''
United opposes limiting the duration of relief at Level 2 airports
to less than the full-season waiver that the FAA proposed for slot-
controlled airports.\22\ United contends that ``[r]elief for both
[slot-controlled] and Level 2 airports should be synchronous, parallel,
and
[[Page 63342]]
consistent through the full Winter 2020/2021 season.'' According to
United, disparate treatment of Level 2 airports means that ``airlines
serving Level 2 airports will be forced to take extreme actions in
order to maintain their operational capability developed over decades
at those airports.'' United asserts that the FAA's proposed Level 2
treatment ``fosters conditions that incentivize carriers to rush
aircraft back into service'' and thereby ``introduces needless
potential health and safety risks--both to frontline airline employees
and the operation.'' United references investments at Level 2 airports
that carriers would be trying to protect: ``Carriers have paid
substantial rates, fees and charges, committed to signatory status, and
worked collaboratively with Level 2 airports to improve gates,
terminals, and other infrastructure. Carriers have established hubs at
Level 2 airports.''
---------------------------------------------------------------------------
\22\ In addition to submitting comments for consideration in the
public docket, United submitted additional materials marked as
proprietary and confidential.
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Regarding the prospect of losing priority at Level 2 airports,
United observes that the ``consequences are severe for airlines, like
United, that operate international hubs at Level 2 airports,'' and
notes that ``United would be singularly affected'' because ``United has
a hub at each of those airports, where it has contributed through
rates, charges, and fees to improve facilities and built a robust
international network.'' United notes that ``[b]ecause of reduced
demand . . . United has already been particularly affected by the drop
in international travel that has, in turn, exacerbated the drop in
domestic travel'' and ``[i]f other airlines are able to establish
priority for ad hoc operations, United will be blocked from reopening
the passageways when the crisis abates.''
United comments that ``[a]s a matter of reasonable notice and
fairness, airlines should have been provided more fulsome notice and
time for public comments, and government should have afforded itself
more time to consider the second- and third-order effects of a decision
to change prioritization.'' United emphasizes that the current waiver
in effect has not precluded carriers from seeking and gaining approval
from the FAA for ad hoc use of temporarily available slots and
movements. United also argues that the FAA's proposal would lead to
``perverse'' results and encourage ``manipulation,'' offering as an
example that a major carrier operating at JFK or LGA would benefit from
the waiver there, and could then commence ad hoc flights at EWR, moving
its NYC area operations in a manner that secures priority at EWR while
also preserving unoperated slots at JFK or LGA.
United views the distinction between the two levels, slot-
controlled and Level 2, in the United States as based upon ``airspace
management, airport capacity, and congestion and delay mitigation
considerations rather than on competition.'' In addition, United
references reciprocity concerns consistent with other commenters and
notes that ``[o]ne of the foundational precepts of the original waiver
was to ensure international reciprocity of relief,'' which ``calls into
question whether full season waivers issued by other countries that are
contingent on reciprocity will be withdrawn or similarly limited to
grant only partial relief.'' United discusses ``the self-interest of
carriers who rely on domestic business and thus have no concern about
reciprocity or other second order effects that a split season and
process changes will have on international networks.'' United further
asserts that ``[a]t a minimum, the current waiver should remain in
effect for two full scheduling seasons, Summer and Winter, so that the
concept of corresponding seasons remains viable'' and to ensure
stability. United also recommends that the FAA ``consult with carriers,
slot coordinators, and IATA before altering international and
industrial norms.''
Lastly, United acknowledges the existence of ``long-standing
disputes'' about slot controls and schedule facilitation and how to
balance the interests involved, but argues that the goal now should be
``preservation, not reconstruction,'' and that ``[t]he last time that
government should tinker with airline markets and competition is during
the most severe threat in history to the survival of the industry.''
United asserts that ``it is far too early to draw any conclusions about
a `new paradigm' '' and warns against ``the false assumption that the
situation over the past six months signals permanent change to demand
patterns'' rather than an ``artificial landscape (i.e., an environment
shaped by the effects of the pandemic and government restrictions).''
The oneworld Alliance urges the FAA ``to amend its proposal to
provide relief at Level 2 airports for the full winter 2020/21 season,
through 27 March 2021, to ensure equal treatment for operators at these
airports and at [slot-controlled] airports, as well as other airports
globally where waivers have been granted.''
Star Alliance urges the FAA to maintain consistency in its relief
for Level 2 and slot-controlled airports, which would ``ensure global
consistency in the non-discrimination of airports.'' Star Alliance
asserts that continued and consistent relief is necessary to provide
airlines certainty to forward-plan. In the absence of such relief, Star
Alliance asserts that ``airlines will be forced to fly all their
previously allocated movements, or forfeit them,'' connectivity for
businesses and communities through Level 2 cities will be negatively
impacted, and foreign airlines are likely to be disadvantaged by the
U.S. not reciprocating the relief adopted by foreign jurisdictions.
Alaska generally supports the FAA's ``proposal to extend
prioritization of flights cancelled at IATA Level 2 U.S. airports,''
but ``urges the FAA to apply the same duration of extension for Level 2
airports (to March 27, 2021) to align with the proposed extension date
for JFK, DCA, and LGA.'' Alaska notes that it has ``sustained a high
level of operations across [its] network'' throughout the pandemic, but
that ``an extension of the existing waiver is necessary'' for
``flexibility to align scheduling with demand'' given the ``underlying
purpose of an extension is the same regardless of whether an airport is
categorized as Level 2 or [slot-controlled]'' and ``there is no reason
to expect that demand at Level 2 airports will recover more quickly
than at [slot-controlled] airports.''
The FAA received 33 comments from foreign air carriers, all of whom
believe the FAA should extend the waiver for IATA Level 2 airports
through the end of the Winter 2020/2021 scheduling season. A number of
foreign air carriers express concern that ending relief at the Level 2
airports could hamper access to the U.S. market, slow the recovery of
the international air market, and financially harm carriers trying to
remain viable enterprises during COVID-19. Foreign air carriers believe
that ending Level 2 relief would force them to sever and forfeit long-
established international air connections between their respective
countries and the United States or maintain such ties by operating at a
tremendous financial loss. Carriers submitted information about forward
bookings in their relevant markets. For example, Alitalia submits data
showing that the U.S.-Italian passenger market continues to be
depressed by more than 80 percent due to COVID-19 related impacts. Air
France and KLM highlight that, ``our sector is suffering from an
unprecedented crisis.'' Turkish Airlines notes that, ``[t]he industry
remains in the deepest crisis it has ever experienced with little hope
of any return to near normal levels of flying this winter season. The
number of passengers carried by Turkish Airlines to the USA between
July-August 2020
[[Page 63343]]
decreased by 73 percent compared to between July-August 2019, which is
a severe example of the decrease in demand.'' \23\
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\23\ Turkish Airlines also submitted a substantially similar
comment to the U.S. Department of State. That comment has been
posted to the public docket for this proceeding.
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The commenting foreign air carriers largely assert that the FAA's
Level 2 proposal would force them to either operate flights at a large
cost or potentially cede access to the United States market. Air Canada
states that ``[t]he current FAA proposal goes against the international
norms applied to [slot-controlled] and Level 2 airports. It cuts the
Winter season into two halves, each with different rules and
requirements, and introduces an entirely new, punitive structure that
forces airlines to fly all their previously allocated movements or,
apparently, forfeit them.'' Singapore Airlines calls the FAA's Level 2
proposal ``extremely concerning,'' and comments that, ``[w]hen we are
on the path to recovery, it is extremely stressful if these slots we
have been utilising [sic] in the Level 2 U.S. airports are no longer
available to us. This will further slow down the rate of recovery and
dampen our presence in the [United States] market.''
Foreign air carriers also emphasize in their comments that the FAA
proposal for ending Level 2 relief on December 31, 2020 is not in
alignment with policies at non-U.S. airports, which could cause
reciprocity concerns for U.S. carriers. Deutsche Lufthansa writes that
``[f]or the U.S. Level 2 airports . . . we cannot accept the proposal
to limit the extension only until December 31, 2020, basically
splitting the winter season in half'' and observes that ``countries
whose airlines are disadvantaged by this differential treatment in the
U.S. might in return only grant waivers until December 31 for U.S.
carriers operating to those countries on the principle of
reciprocity.'' These carriers also note that most global aviation
regulators and slot coordinators have granted relief at Level 2
airports for the entirety of the scheduling season.
Foreign air carriers also note difficulty planning to operate
service starting January 1, 2020 in light of the timing of FAA's
issuance of its proposed policy. Avianca, for example, comments that
``[t]he proposals for the US relief are coming very late in the
planning for winter operations. We cannot simply have crew and fleet
ready to operate again from January 1, 2021 without considerable costs
and time to ensure all operating and safety aspects are duly prepared.
Our schedule needs considerable operational and commercial review if we
are to return to flying in January.''
A4E urges the FAA to ``reconsider its proposal and to provide
alleviation at Level 2 airports for the full winter season . . . to
ensure equal treatment for operators [at all slot-controlled and Level
2 airports] . . . and to ensure consistency with the full season
waivers that have been planned or granted at other airports globally,
including Europe.'' A4E notes that ``[w]ith the European Union (EU) set
to introduce a waiver for the full winter season, European airlines may
potentially face a difficult situation by the end of 2020, knowing that
a slot at one end of the route is protected but could be lost at U.S.
level 2 airports.''
As previously discussed, ALTA is ``concerned that the proposed
[conditions] to the waiver will have undue negative impact on all
carriers operating to U.S. [slot-controlled] and Level 2 airports and
at the same time expose carriers to unfair reciprocal treatment
regardless of which U.S. airport they operate from.'' ALTA therefore,
urges the FAA to provide relief at Level 2 airports for the full winter
season.
The Arab Air Carriers Organization also supports the comments of
IATA ``urging the U.S. FAA to provide relief at Level 2 airports for
the full winter season, through to March 27, 2021 to ensure equal
treatment for operators at EWR, LAX, ORD and SFO to those at [slot-
controlled] airports and the full season waivers granted at other
airports globally.''
Twenty-two members of Congress \24\ collectively submitted three
comments advocating for an extension of the relief already provided at
Level 2 airports through the Winter 2020/2021 season consistent with
the proposal for extending relief at slot-controlled airports. These
members of Congress express concern about the termination of relief at
Level 2 airports and associated financial, labor, environmental,
operational, and competitive impacts. Senator Booker notes that
``January is a known low-demand period for airlines and demand for air
travel is expected to continue to hover around 40% compared to pre-
COVID-19 levels,'' but an abrupt end to the relief already provided
``will result in many barely filled or empty airplanes being forced to
fly.'' The Greater Houston area delegation comments that the proposal
``runs the risk of forcing carriers . . . to make dramatic scheduling
changes at a time where certainty is desperately needed'' as a ``split
season waiver makes it difficult for carriers to properly prepare a
demand-driven schedule, and could impose significant financial and
operational concerns on air carriers.'' The Illinois delegation sees
``no reason to treat Level 2 and [slot-controlled] airports
separately--the COVID pandemic has impacted the aviation industry
uniformly,'' and accordingly ``urge[s] the FAA to simply continue its
equal treatment of congested airports in the [United States] until we
are on the road to recovery.''
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\24\ The twenty-two members of Congress who submitted comments
include Senator Cory A. Booker, Senator Dick Durbin, Senator Tammy
Duckworth, Representative Mike Quigley, Representative Darin LaHood,
Representative Bobby L. Rush, Representative Raja Krishnamoorhi,
Representative Mike Bost, Representative Rodney Davis,
Representative Bill Foster, Representative John Shimkus,
Representative Daniel W. Lipinski, Representative Adam Kinzinger,
Representative Cheri Bustos, Representative Robin L. Kelly,
Representative Danny K. Davis, Representative Bradley S. Schneider,
Representative Jan Schakowsky, Representative Kevin Brady,
Representative Dan Crenshaw, Representative Pete Olson, and
Representative Randy Weber.
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State and local officials from California and Illinois \25\
similarly urge the FAA to continue equal treatment of congested
airports in the United States ``until we are on the road to recovery.''
These officials advocate for a sustainable aviation recovery and the
economic benefits that aviation brings to communities and workers
[across] the U.S., which these officials assert depends on flexibility
for carriers to match demand with capacity. These officials comment
further that given COVID-19 impacts are the same for airlines operating
to all airports, congested airports should be treated the same by the
FAA. These officials also reference the likelihood that carriers ``will
be forced to operate `ghost flights' '' to retain slots and schedule
approvals and emphasize that the U.S. would ``stand alone if it
continues with this policy proposal,'' subjecting U.S. jobs and
travelers to even greater risk and uncertainty.
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\25\ These State and local officials from California and
Illinois include State Controller Betty T. Yee, State Senator Jerry
Hill, State Senator Shannon Grove, State Senator Patricia C. Bates,
Assemblyman Vince Fong, Assemblyman and California Aviation Caucus
Chair Jim Patterson, Los Angeles Councilmember Joe Buscaino,
Governor JB Pritzker, State Senator Bill Brady, and State
Representative Jim Durkin.
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The IAMAW and PAFCA-UAL submitted comments substantially similar to
the comments submitted by the State and local officials. The
Association of Flight Attendants-CWA also urges the FAA to maintain
harmonization of the COVID-19 relief
[[Page 63344]]
for Level 2 airports and slot-controlled airports in the United States
through the end of the Winter 2020/2021 season. In support of its
views, the Association states that ``the current FAA COVID-19 policy to
treat congested airports equally . . . is the best way forward at this
time'' and suggests that this approach can be re-evaluated and adjusted
if needed, ``once we are on the path to recovery.''
The FAA received 54 comments from a diverse array of businesses and
organizations, including Visa Inc., the United States Chamber of
Commerce, the California Chamber, the Environmental Policy and Law
Center, Oracle, and dozens of others. The majority of comments focused
on advocating for an extension of the Level 2 waiver through the end of
the Winter 2020/2021 scheduling season, with commenters iterating
concerns about the economic and environmental effects of ending relief
on December 31, 2020. Many of these organizations used similar phrasing
to the effect that ``[o]ur ask is to simply treat Level 2 and [slot-
controlled] airports the same, as the COVID 19 impacts to airlines
operating to these airports are the same.'' The African American
Chamber of Commerce of New Jersey contends that ``the FAA's proposal to
provide disparate treatment to air carriers at Level 2 airports as
compared to carriers at [slot-controlled] airports would address the
pandemic-induced demand disruption by picking market winners and
losers.'' Commenters assert that the proposed Level 2 policy would
impose large costs on air carriers either through loss of market access
or through increasingly unprofitable flying during COVID-19.
Visa Inc. writes that ``[r]ather than support an aviation
recovery--and by extension a wider economic recovery--the FAA's policy
proposals do the opposite,'' and asserts further that ``the proposed
Notice . . . imposes severe consequences for an airline not flying its
full allocation of movements.'' Commenters assert that the broader
economic recovery from COVID-19 is going to depend in part on continued
connectivity at U.S. Level 2 airports that serve as major domestic and
international connection points. Stressing the importance of good air
connectivity to their local and regional economy, the Illinois Chamber
of Commerce comments that ``Chicago area businesses depend on the
routine functioning of the aviation industry at O'Hare in order to
survive and thrive,'' and states further that ``[a]s the economy
continues to suffer the economic fallout of the pandemic, the Illinois
business community cannot also bear a market distortion which results
in a weakened carrier base at O'Hare.''
Many commenters also stressed the potential environmental and
carbon impact of operating ``ghost flights'' to ``maintain slots.'' The
Environmental Law and Policy Center comments that ``[u]ntil the minimum
usage waiver was put in place last March, `ghost flights' wasted fuel
and contributed to climate change for the sole purpose of allowing
airlines to retain slots at airports. The [initial] waiver was thus a
sensible, common sense response to the unprecedented drop in travel
demand caused by COVID-19.''
Travelers United disapproves of the FAA's proposal, arguing that
``[t]he free market should be allowed to function as the industry
rebuilds itself over the next several years,'' that ``the existing
slots waiver should not be extended,'' and that ``[i]f extended, the
FAA should indicate that this will be the final extension.'' According
to Travelers United, ``[t]he free market should be allowed to
reallocate the use of these slots, which are actually owned by the
public, to airlines that are willing to provide service for the benefit
of the public.'' Travelers United contends that a ``free market will
allow all airline consumers greater choices.''
In addition, 71 individuals commented on the FAA's proposed
discontinuation of relief at Level 2 airports beyond December 31, 2020.
Most of the individual commenters (69 in total) comment to the effect
that the FAA should, ``extend through the end of the International Air
Transport Association (IATA) 2020/2021 winter season the COVID-19
related policy that prioritizes flights canceled at IATA Level 2
airports in the [United States].'' Most of these 69 commenters are
individual employees of United and their comments are substantially
similar, though some comments reflect on how FAA policies could have an
impact on an airline employee's career.
One individual commenter asserts that ``the proposed partial-season
extension arbitrarily discriminates between the users of slot-
controlled and Level 2 airports and will visit far more damage than
benefit on the industry, with little or no offsetting benefit to the
traveling public'' or to new entrant carriers, because incumbents will
opt to fly mostly empty airplanes to keep priority. This individual
also referenced international reciprocity concerns and the likelihood
of foreign jurisdictions adopting partial season relief for U.S.
carriers at both Level 2 and slot-controlled airports. This individual
asserts that ``commercial aviation--so fundamental a prerequisite to
that recovery--requires policy decisions predicated on stability and
predictability,'' as ``[i]t makes little sense to base policy on calls
to `let the market function' when there is no functioning market.'' In
addition, as previously noted, this commenter proposes that the FAA
reconsider the return deadline and adopt a three to four week rolling
deadline in lieu of the proposal.
Another individual commenter objects to the proposed relief from
the minimum slot usage requirements. This commenter acknowledges that
COVID-19 ``has certainly disadvantaged most of the legacy carriers and
has lead [sic] to substantial downsizing in their fleets and
workforce,'' but asserts that ``other carriers, such as Southwest
Airlines, Frontier, Spirit, and Allegiant, have a different business
model that will allow them a far quicker recovery.'' This commenter
argues that ``[c]ontinuing to deny other carriers who may be capable of
using these slots economically the right to claim these underutilized
slots just promotes a monopoly that disadvantages taxpayers and
customers.''
As previously discussed, Spirit opposes the FAA's proposal in its
entirety. With regard to the FAA's Level 2 proposal, Spirit comments
that the Level 2 designations at EWR, LAX, ORD, and SFO ``should end
now given the low airport utilization and the minimum three-year
expectation for recovery'' or ``[a]t an absolute minimum, FAA should
eliminate the flight caps at EWR as irrelevant for the foreseeable
future.'' Spirit asserts that if limits are needed again in the future
``FAA can consider first raising the caps'' to 2017 levels and ``if
necessary and pursuant to statute, hold a scheduling conference to
fairly allocate slots based on an assessment of pre-COVID operations,
and operations over the two years preceding the need to reimpose the
caps.'' Moreover, as discussed previously, Allegiant proposes an
alternative process in lieu of a waiver for both slot-controlled and
Level 2 airports, which would require updated schedules from incumbent
airlines based on planned operations over a three to four month period
for reallocation to non-incumbent carriers like Allegiant. Similarly,
``NACA recommends that the FAA should immediately end the Level 2
designation at ORD, EWR, LAX, and SFO in light of the historically low
airport utilization and the legacy carriers' own forecasts that a
return to pre-pandemic levels of passenger demand will take three years
or more.''
[[Page 63345]]
As previously noted, some commenters seek to supersede the Level 2
policy proceeding entirely by encouraging the Federal Government to
establish broader economic/market-based aviation industry recovery
policies and/or change the regulatory policy landscape for managing
slots and schedule facilitation in the United States.
Discussion of Relief for Slot Holders at U.S. Slot-Controlled Airports
(DCA/JFK/LGA)
At the present time, COVID-19 continues to present a highly unusual
and unpredictable condition that is beyond the control of carriers. As
demonstrated in comments submitted by carriers as well as industry
advocates, passenger demand has decreased dramatically as a result of
COVID-19,\26\ and is expected to remain as low as 40-50% of 2019 demand
during the upcoming Winter 2020/2021 season, even as there are some
signs of limited recovery in some markets and some restructuring of
airline operations. The ultimate duration and severity of COVID-19
impacts on passenger demand in the United States and internationally
remain unclear. Even after COVID-19 is contained, impacts on passenger
demand are likely to continue for some time.
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\26\ Multiple carriers commented on decreased demand and
financial losses. A4A commented that ``about one-third of the US
fleet is parked'' and provided information on bookings on U.S.
domestic flights and U.S. international flights for October 2020
through March 2021 as of August 2020 vs. August 2019. IATA provided
similar information for the U.S. Level 2 and slot-controlled
airports. As discussed earlier in this notice, A4A and IATA also
provided information on TSA passenger screening data in 2020
compared to the same periods in 2019. The FAA notes that additional
information on TSA passenger checkpoint throughput data for 2020 and
2019 is available at https://www.tsa.gov/coronavirus/passenger-throughput. A4A maintains additional information on COVID-19 related
data at https://www.airlines.org/dataset/impact-of-covid19-data-updates/#.
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In its proposal, the FAA acknowledged the need for slot holders to
have some flexibility in decision-making as the severe impacts of the
COVID-19 public health emergency continue, but further noted that what
starts as a highly unusual and unpredictable condition may eventually
become foreseeable. Indeed, many airlines may well be on their way to
restructuring their operations in response to a new, albeit volatile,
environment. There may come a point in time at which ongoing waivers to
preserve pre-COVID slot holdings could impede the ability of airports
and airlines to provide services that may benefit the economy. The FAA
acknowledged the interests of carriers with limited or no access to
constrained airports in the United States and the interests of airports
in serving their local community and rebounding from COVID-19. Further,
the FAA agreed that any additional relief from the minimum slot usage
requirements at U.S. slot-controlled airports should be tailored
narrowly to afford increased access to carriers that are willing and
able to operate at these airports, even if on an ad hoc basis until
such time as slots revert to the FAA for reallocation under the
governing rules and regulations at each slot-controlled airport.
Based on the comments received in this proceeding, the FAA has
determined to make available to slot holders at DCA, JFK, and LGA a
waiver from the minimum slot usage requirements due to continuing
COVID-19 impacts through March 27, 2021, subject to each of the
following revised and clarified conditions:
(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 November 12,
2020 through the rest of the Winter 2020/2021 season; therefore,
carriers should begin notifying the FAA of returns on October 15,
2020. Slots for the period from October 28, 2020 through November
11, 2020 are not subject to this condition.\27\
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\27\ The usual process for treating slots as used for the
Thanksgiving and Winter holiday periods provided by 14 CFR 93.227(l)
of the High Density Rule and the JFK and LGA orders will still apply
and will not be superseded by this decision.
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(2) The waiver does not apply to slots newly allocated for
initial use during the Winter 2020/2021 season. New allocations
meeting minimum usage requirements would remain eligible for
historic precedence. The waiver will 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).
(3) The waiver does not apply to slots newly transferred on an
uneven basis (i.e., via one-way slot transaction/lease) after
October 15, 2020, for the duration of the transfer. 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 proposed relief would not be
eligible for transfer if the slot holder ceases all operations at
the airport.\28\
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\28\ The FAA notes that this provision is not intended to apply
to continuing long-term transfers that are already part of the
operating environment pre-dating October 15, 2020.
Additionally, an exception may be granted and the waiver therefore
applied, if a government's official action (e.g., travel prohibition or
other restriction due to COVID-19), prevents the operation of a flight
on a particular route that a carrier otherwise intended to operate.
This exception will be administered by the FAA in coordination with the
Office of the Secretary of Transportation (OST). This exception will
apply under extraordinary circumstances only in which a carrier is able
to demonstrate an inability to operate a particular flight or comply
with the conditions of the proposed waiver due to an official
governmental prohibition or restriction. A carrier seeking an exception
may provide documentation demonstrating that the carrier qualifies for
the requested exception. If documentation is not provided in support of
a request for an exception, the FAA and OST will make a determination
based on publicly available resources.
The FAA believes this final decision on further relief at slot-
controlled airports for the Winter 2020/2021 season maintains a
reasonable balancing of the various competing interests in an uncertain
environment with ongoing COVID-19-related impacts and within the bounds
of the current regulatory and policy landscape for slot management in
the United States. The FAA believes this approach is appropriate to
provide carriers with flexibility during this unprecedented situation,
to support the long-term viability of carrier operations at slot-
controlled airports while also supporting economic recovery, and to
reduce the potential for a long-term waiver to suppress flight
operations for which demand exists. The FAA also believes this decision
is more consistent with the approach taken by other jurisdictions.
The FAA received a number of comments and requests for
clarification on the proposed conditions and exception, including some
general comments from carriers that the conditions are not strict
enough, as well as others such as the comment from Southwest that the
conditions placed on the relief are insufficient and ``largely
impractical'' as they do not provide an adequate incentive or assurance
for carriers like Southwest to invest in new service for short-term, ad
hoc access to slot-controlled airports. Southwest states that, in the
absence of a ``guarantee that Southwest would be able to use the
reallocated slots permanently, an investment in new service would not
be justified.'' Additional comments, clarifications, and changes to the
conditions and exception are discussed below.
[[Page 63346]]
Slot Return Deadline
The FAA is amending the return deadline to a simple, rolling four-
week time period beginning October 15, 2020, for purposes of planned
operations four weeks from that date on November 12, 2020. The four-
week return period will not apply to slots for the period from October
28, 2020 through November 11, 2020. Usage will be waived for COVID-19
cancellations during this period consistent with the other conditions
applied to the waiver.
The FAA notes that this condition is a minimum requirement for
carriers to benefit from the waiver. However, the FAA strongly
encourages carriers to return slots voluntarily as soon as possible and
for as long a period as possible during the Winter 2020/2021 season so
that other airlines able to add or increase operations on an ad hoc
basis may do so with increased certainty. The FAA understands that
there is a lag period between when schedule changes are submitted to
the distribution systems and when schedules are made public.\29\ To
help inform future decisions, the FAA intends to monitor the results of
the return deadline, including trends on how close to the deadline
returns are made to the FAA and whether the returns are sufficient to
meet demand for the following few weeks. Multiple industry groups and
airlines, including a number of the largest operators at the Level 2
and slot-controlled airports, cited the impacts of COVID-19 on demand,
their operations, and cash flow positions in support of the FAA
granting a full season waiver at slot-controlled airports. Those
supporting similar alleviation at Level 2 airports for the full season
rather than through December 31, 2020, as the FAA proposed, cited the
difficulties with adding significant new flights starting in January,
even with three months or more notice. That suggests that some carriers
have made decisions that at least some flights will not operate. The
FAA believes carriers may often be in a position to well exceed the
minimum four-week slot return deadline that the FAA is adopting.
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\29\ The FAA encourages submission of cancellation as early as
feasible and carriers are reminded that they may mark specific
information as PROPIN, if applicable. Carriers should identify a
date when the PROPIN limitation would no longer apply.
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The FAA recognizes that commenters including ACI World, ACI-NA, and
PANYNJ support the return deadline as proposed. Furthermore, Allegiant,
Spirit, and NACA oppose even the proposed return deadline as they
contend that it disproportionately favors incumbent airlines and does
not provide sufficient notice or certainty for carriers to add flights
during the Winter 2020/2021 season; they propose alternative return
processes for the full season to allow greater certainty of ad hoc
operations for multiple months.
Nevertheless, the FAA is persuaded by comments supporting a
shorter, rolling return period, while believing there remains a valid
basis for making slots returned to the FAA available to other carriers
for as long as possible consistent with the current slot management
rules in effect. A4A, A4E, IATA, oneworld Alliance, Star Alliance,
ALTA, and the Association of Asia Pacific Airlines supported a shorter
period by which unused slots would need to be returned to qualify for a
waiver. Likewise, many foreign and domestic air carriers supported a
shorter, rolling deadline or endorsed comments filed by IATA.
Experience has shown that, even in the absence of any return deadline
in connection with the waiver the FAA provided during the Summer 2020
season, carriers still have flown ad hoc operations in unused slots;
looking ahead to Winter 2020/2021, CAA specifically asks ``that the FAA
make available unused slots for temporary reallocation to air cargo
operations'' and states that ``the October-December timeframe is when
[air cargo] demand will peak to the highest point in the year.'' Polar
Air Cargo notes that ``all-cargo carriers like Polar benefit from the
flexibility provided by these slot waivers to schedule extra-sections,
as well as numerous charters, to make up for the lack of belly capacity
caused by the suspension of the vast majority of flights by passenger
carriers.''
As noted in comments, the FAA's change to the final return deadline
condition as compared to the proposal is based on a number of factors
including: (1) The occurrence of the return deadline varying from as
little as four weeks to as much as eight weeks in advance based on when
in the month the operation occurs, because of the proposal's use of a
fixed return deadline rather than a rolling deadline; (2) the
impracticality of a return deadline up to eight weeks in advance when
demand and passenger bookings have been materializing much closer in
time to the scheduled flight than that; (3) the divergence from other
waivers already issued globally that range from no advance return
deadline up to four weeks on a rolling basis; (4) the complications for
reciprocal treatment of U.S. carriers at foreign airports and potential
impacts to their operations or slot holdings; (5) the compliance issues
for returning slots and receiving a waiver for slots in the last week
of October and potentially the month of November depending on when the
final FAA policy is issued; and (6) the reasonable expectation that
this return deadline will in fact result in some level of ad hoc
operations rather than inactivity. The FAA considered proposals for
shorter rolling return deadlines, but believes four weeks strikes a
reasonable balance to support the FAA's objective of allowing other
interested carriers to operate unused slots on an ad hoc basis.
Newly Allocated Slots
The FAA proposed the waiver would not be made available for net
newly-allocated slots eligible for historic precedence, based on
allocation decisions made prior to the start of the Winter 2020/2021
scheduling season. IATA had included a similar condition in its
recommendations for consideration globally, and IATA agrees that ``new
slots allocated from the pool for the winter 2020 season must be
operated according to normal 80/20 requirements, and therefore are not
eligible for winter season waivers.''
IATA suggests, however, amending the proposed condition to include
newly allocated slots regardless of the timing of the new allocation,
and not limit the condition to allocation decisions made prior to the
start of the season. Information submitted by Air New Zealand indicates
newly allocated slots at New Zealand airports are not eligible for a
Winter season waiver, without reference to whether the allocation was
made prior to or after the start of the season. In Europe, A4E, IATA,
Airports Council International-Europe, and the European Union Airport
Coordinators Association reached voluntary agreement on conditions for
Winter 2020/2021 providing that ``slots newly allocated and operated as
a series may be considered for historic status only if they meet the
80% usage requirement.'' \30\ Waivers granted for other foreign
airports contain similar exclusions for newly allocated slots.
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\30\ https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_20_1645.
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The FAA agrees that it is not necessary to make a distinction based
on when a new slot allocation from the available slot pool is approved,
and accordingly, the FAA is removing the reference in the condition
that refers to allocation decisions made prior to the start of the
Winter 2020/2021 scheduling season. In addition, the FAA
[[Page 63347]]
clarifies that in considering net newly-allocated slots for the
purposes of this condition, the FAA will review a carrier's historic
slots in conjunction with any newly allocated slots for the Winter
2020/2021 season. The FAA does not intend for the waiver to apply for
historic slots while a newly allocated slot in the same time period
potentially meets minimum usage and qualifies for historic status. For
example, the waiver would not apply to historic slots unused on the
basis of COVID-19 if newly requested and FAA-allocated comparable slots
(e.g., arrival/departure, air carrier/commuter) or operating approvals
are able to be operated in the same 30-minute or 60-minute time period,
as applicable. Both the historic slots as well as the newly allocated
slots in that time period would be excluded from the relief made
available in this notice. The FAA also will closely review requests
that could result in carriers obtaining relief in one time period while
potentially gaining historic rights or priority through operations in
another time period.
Slots Newly Transferred on an Uneven Basis
IATA requested clarification on this condition, specifically the
statement that ``this provision is not intended to apply to continuing
long-term transfers.'' The FAA received comments from a few airlines
requesting clarification but without raising specific questions.
For the purposes of Condition 3, the FAA clarifies that it
considers long-term transfers (i.e., one-way slot transfers and leases
that had previously been approved by the FAA for the Winter 2019/2020
or Summer 2020 scheduling seasons) to be a part of the established
operating environment. Airlines seeking to transfer slots after October
15, 2020 will not be able to qualify for a waiver as to those slots
under this condition. Carriers may still opt to engage in uneven
transfers, but in doing so, would not be eligible for a waiver of the
minimum usage requirement for the associated slots for the Winter 2020/
2021 season. Carriers are reminded that they would still be required to
request approval from the FAA for any transfers, consistent with
applicable provisions in the FAA rules and Orders. In determining
whether a proposed slot transfer would qualify as a long-term transfer
for these purposes, the FAA will review prior approved transfers. In
particular, the FAA would review the duration of prior season transfers
relative to transfer requests for the Winter 2020/2021 scheduling
season to see if the duration of the transfers is similar. For example,
a one-week transfer in a prior season that is proposed for a full
season transfer in Winter 2020/2021 would not be considered a long-term
transfer that is already part of the operating environment. A prior
transfer for a substantial portion, but not the full season, could be
extended to the full Winter 2020/2021 season and meet this condition.
Carriers would still need to meet the eligibility to hold slots and
comply with transfer provisions in the FAA rules and Orders. Further,
the FAA notes that it adopted a date certain for this condition to
simplify the policy and align with the timeline for beginning
compliance with the slot return condition.
Limited Exception Based on Specific COVID-19-Related Government
Prohibitions or Restrictions
In the September 11, 2020, notice, the FAA proposed to apply each
of the foregoing conditions in considering whether a slot-holding
carrier has justification for a waiver based on the non-use of a slot
due to COVID-19 impacts, subject to a limited exception. As proposed,
this exception would have applied only under extraordinary
circumstances in which a carrier is able to demonstrate an inability to
operate a particular flight or comply with the conditions of the
proposed waiver due to a governmental action directly restricting
travel due to COVID-19.
The FAA is finalizing the exception largely as proposed, but is
providing additional clarification based on comments received. IATA
urges the FAA to provide clarification that ``travel restrictions'' and
``government action'' would ``include the various factors that may make
a particular flight unsustainable, including but not limited to: Border
or airport closures; Quarantine requirements; Load restrictions/
passenger caps; and Onerous or economically infeasible testing
protocols.'' IATA further urges the FAA ``to put in place a procedure
to allow for this alleviation without unnecessary bureaucratic review
and processing that would unnecessarily burden the slot coordinator and
airlines.'' JetBlue requests a ``broad understanding of criteria for
government mandated closure waivers.'' United asks for clarification on
``extraordinary circumstances,'' which it believes could include
``quarantines, travel constraints, border closures, testing
requirements, limited airport hours, crew entry and rest exclusions,
local curfews, caps on the number of arriving international passengers,
and operating limitations.''
In the final text of the exception, the FAA made limited changes to
clarify that: (1) The exception only would be considered based on
evidence of an official prohibition or restriction issued by a
governmental authority related to COVID-19 (such as a travel ban) that
prevents a carrier from operating on a particular route at a particular
date/time (consistent with the FAA's runway approval or authorized
slot); (2) non-binding protocols, guidance, and other policies issued
by any entity related to COVID-19 will not be considered to be a valid
basis for an exception; and (3) a carrier's intent to operate will be
evaluated for possible exception based upon several factors, including
published schedules, carrier website information, flight cancelation
information from flight plans or other FAA operational sources, carrier
statements on operational plans or market restrictions, and information
provided by airlines, airports, or other parties. If the exception is
determined not to apply, carriers will be expected to meet the
conditions of the waiver or operate consistent with applicable minimum
slot usage requirements.
The FAA seeks to avoid a situation in which this exception swallows
the rule; accordingly, the FAA does not agree with comments suggesting
a broader expansion of the exception. The FAA believes that applying
the exception as broadly as some commenters seem to anticipate would
negate the underlying purpose of the conditions and would not
adequately incentivize the timely return of unused slots or
notification of canceled operations. The concern about unnecessary
bureaucratic review and processing in administering this exception is
mitigated by the intent that relief under this exception will be
afforded sparingly rather than frequently. That said, articulation of
specific categories of qualifying circumstances would unnecessarily
restrain the flexibility that the exception is intended to provide.
Discussion of Relief for Operators at U.S. Designated IATA Level 2
Airports (EWR/LAX/ORD/SFO)
The FAA proposed to extend, through December 31, 2020, its COVID-
19-related policy for prioritizing flights canceled at designated IATA
Level 2 airports in the United States, including EWR, LAX, ORD, and
SFO, for purposes of establishing a carrier's operational baseline in
the initial months of the next corresponding season, also with
additional conditions as described herein. This limited extension was
proposed in recognition of the fact that the IATA Level 2 construct
differs from
[[Page 63348]]
the rules and process in place at slot-controlled airports; the
concepts of historic rights, series of slots, and minimum usage
requirements do not exist under the Level 2 construct. As stated in the
proposal, the FAA believes the voluntary, cooperative nature of Level 2
schedule facilitation is less amenable to continuing a policy that
provides priority for flights that are not operated for extended
periods of time while potentially denying access to carriers that are
willing and able to add service.
Based on the comments received in this proceeding, the FAA has
determined to extend through March 27, 2021, with conditions, its
COVID-19-related policy for prioritizing flights canceled at designated
IATA Level 2 airports in the United States, for purposes of
establishing a carrier's operational baseline in the next corresponding
season.
The FAA additionally has determined to apply some conditions to
carriers at Level 2 airports seeking relief and alleviation under this
policy similar to the conditions finalized for carriers to benefit from
the proposed relief at slot-controlled airports. Some minor adjustments
have been made to reflect the different procedures, terminology, and
regulatory requirements at slot-controlled airports that are not
applicable at Level 2 airports. The conditions applicable to Level 2
airports are as follows:
(1) All schedules as initially submitted by carriers and
approved by 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. Compliance with this
condition is required for operations scheduled from November 12
through the rest of the season; therefore, carriers should begin
notifying FAA of returns or other schedule adjustments on October
15. Times for previously approved flights for the period from
October 28, 2020 through November 11, 2020 are not subject to this
condition.
(2) The priority for FAA schedules approved for Winter 2020/2021
does not apply to net-newly approved operations for initial use
during the Winter 2020/2021 season. New approved times would remain
eligible for priority consideration in Winter 2021/2022 if actually
operated in Winter 2020/2021 according to established processes.
Consistent with the final decision for slot-controlled airports,
the FAA will consider, in coordination with OST, limited exceptions
from either or both of these conditions at Level 2 airports under
extraordinary circumstances if a government's official action (e.g.,
travel prohibition or other restriction due to COVID-19), prevents the
operation of a flight on a particular route that a carrier otherwise
intended to operate. This exception will apply under extraordinary
circumstances only in which a carrier is able to demonstrate an
inability to operate a particular flight or comply with the conditions
of the proposed waiver due to an official governmental prohibition or
restriction. A carrier seeking an exception may provide documentation
demonstrating that the carrier qualifies for the requested exception.
If documentation is not provided in support of a request for an
exception, the FAA and OST will make a determination based on publicly
available resources. If the exception is determined not to apply,
carriers will be expected to meet the conditions for relief or operate
consistent with standard expectations for the Level 2 environment.
The FAA has previously approved schedules by carriers for the
Winter 2020/2021 scheduling season at Level 2 airports and carriers may
choose to operate as approved, request application of this proposed
policy subject to the stated conditions, or submit new schedule
proposals for the season.
The FAA is persuaded by the overwhelming number of comments
supporting an extension of relief for the full duration of the Winter
2020/2021 season ending March 27, 2021. The FAA agrees that the
underlying cause and purpose of an extension is the same regardless of
whether an airport is categorized as Level 2 or slot-controlled, and
that there is no reason to expect that demand at Level 2 airports will
recover more quickly than at slot-controlled airports. The FAA further
acknowledges difficulties caused by the timing of its proposal issued
September 11, 2020, in proximity to the start of the Winter 2020/2021
season on October 25, 2020. The FAA had anticipated that offering
relief through December 31, 2020 would provide reasonably sufficient
advance notice for carriers to make their plans relative to Level 2
airports thereafter, but comments reveal that is not the case under the
circumstances here. The FAA also is mindful of unintended consequences
for reciprocity--i.e., the prospect that the shorter duration of relief
at Level 2 U.S. airports as compared to what other jurisdictions have
already offered could result in a corresponding shorter period of
relief internationally for U.S. carriers at not only Level 2 but also
slot-controlled airports.
The FAA further acknowledges practical concerns with, as proposed,
establishing a distinct waiver duration at one airport in the New York
City area, EWR, which could result in carriers leveraging the waiver at
JFK or LGA to preserve slots at those airports while adding operations
at EWR to attempt to gain priority there. The FAA has observed cases in
Summer 2020 and requests for Winter 2020/2021 where airlines seek
additional operations at EWR in hours that were previously at the
scheduling limits while benefitting from a minimum usage waiver for
slots held at JFK and LGA. While DOT and FAA are not seeking to
interfere in competitive decisions by carriers on their operating
airport if they have slots or approved schedules at more than one New
York City area airport, neither is the purpose of this policy to
countenance the potential for gaming that could be enabled by disparate
treatment of New York City area airports.
As with its final decision regarding relief at slot-controlled
airports, the FAA believes that this final decision on further relief
at Level 2 airports for the Winter 2020/2021 season maintains a
reasonable balance of the various competing interests in an uncertain
environment with ongoing COVID-19-related impacts and within the bounds
of the current regulatory and policy landscape for slot management in
the United States. The FAA believes this approach is appropriate to
provide carriers with flexibility during this unprecedented situation,
to support the long-term viability of carrier operations at Level 2
airports while also supporting economic recovery, and to reduce the
potential for long-term relief to suppress flight operations for which
demand exists. The FAA also believes this decision is more consistent
with the approach taken by other jurisdictions.
Regarding conditions on the relief at Level 2 airports, the FAA
proposed a single condition imposing a return deadline similar to the
condition proposed for slot-controlled airports. For the reasons stated
above in discussing this condition at slot-controlled airports, at
Level 2 airports, as well, the FAA strongly encourages carriers to
return approved schedules voluntarily as soon as possible and for as
long a period as possible during the Winter 2020/2021 season, and the
FAA believes carriers may often be in a position to well exceed the
minimum four-week return deadline that the FAA is adopting.
Given the extension of relief at Level 2 airports for the full
season, and extensive comments advocating for parallel treatment of
Level 2 and slot-controlled airports, the FAA determined to apply a
second condition at Level 2
[[Page 63349]]
airports similar to the second condition that applies at slot-
controlled airports.\31\
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\31\ Different from the policy for slot-controlled airports, for
Level 2 airports, the FAA does not include a third condition
relative to schedule times newly transferred on an uneven basis.
There have been occasional transfers of approved times at EWR but
not at other Level 2 airports and not during Winter 2019/2020 or
Summer 2020. The FAA does not anticipate there would be a need to
approve any transfers at Level 2 airports during the effective
period of this policy, as the FAA would consider schedule
adjustments on an ad hoc basis after reviewing available capacity.
If any transfers are needed in Winter 2020/2021 for operational
reasons, they would be for the season only and would not be subject
to the priorities provided by this policy.
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Discussion of Additional Issues Raised in Comments
Several parties commented on the duration and severity of COVID-19
impacts, with particular emphasis on the FAA's proposal to discontinue
relief at Level 2 airports in the United States after December 31,
2020. The proposal reflected an attempt to balance the need for relief
due to COVID-19 impacts of unprecedented magnitude with the FAA's
mission to ensure access to the national airspace system to the
greatest extent practicable. To strike this balance, the FAA stated
that ``there may come a point in time in which ongoing waivers to
preserve pre-COVID slot holdings could impede the ability of airports
and airlines to provide services that may benefit the economy.''
Further, the proposal stated that while ``the FAA is proposing
continued, albeit conditional, relief through the Winter 2020/2021
season, carriers should not assume that further relief on the basis of
COVID-19 will be forthcoming beyond the end of the Winter 2020/2021
scheduling season.''
Comments reflected widely diverging views about the concept of
ending waivers in the future and the appropriate timing for considering
such action with respect to the ongoing COVID-19 public health
emergency. Some parties strongly supported ending COVID-19 waivers
soon--either before, during, or at the end of the Winter 2020/2021
season--and advocated broader regulatory and policy changes such as
eliminating slot rules and/or Level 2 designations altogether. Other
parties indicated that ongoing relief will be critical to the viability
of operators at congested airports, and that FAA should keep an ``open
mind'' on waiver petitions for the upcoming Summer 2021 season. Parties
holding authorizations at congested airports indicated that, if waivers
were to end in the demand environment currently projected for 2021,
airlines would be forced to fly ``ghost'' flights to preserve their
holdings in light of investments made in the airport facilities.
The FAA reiterates that operators should not assume that further
relief on the basis of COVID-19 will be forthcoming beyond the end of
the Winter 2020/2021 scheduling season. The FAA expects that this
additional full-season extension of conditional relief will provide
adequate notice and time for carriers at U.S. slot-controlled and Level
2 airports to make schedule decisions, market flights, and plan for
aircraft utilization, crew, and facilities before a possible return to
standard slot management and schedule facilitation processes might
occur.
The FAA reserves judgment at this time with respect to any
forthcoming petitions for additional relief. Rendering a decision for
the Summer 2021 season or taking action to alter the established rules
and policies for slot management and schedule facilitation in the
United States is not within the scope of this action. Any future
requests will be evaluated on their merits, based on the facts and
circumstances available at that time and consistent with the
established standard for considering waivers from minimum slot usage
requirements.
Nothing in this decision binds the FAA to treat Level 2 and slot-
controlled airports similarly in future decisions on slot usage and
prioritization relief when a highly unusual and unpredictable condition
occurs. The FAA continues to believe that while there may be practical
similarities between Level 2 and slot-controlled airports, there remain
fundamental regulatory differences between the two constructs that can
justify differing relief.
Moreover, to the extent that some commenters seek to supersede this
proceeding entirely by encouraging the Federal Government to establish
broader economic/market-based aviation industry recovery policies and/
or change the regulatory policy landscape for managing slots and
schedule facilitation in the United States, such comments are deemed to
be outside the scope of this proceeding.
Process for Administering Relief
Some comments requested information on the process to request, and
for FAA to approve, available slots at slot-controlled airports or
available schedule times at Level 2 airports. The FAA intends to follow
existing procedures whereby carriers submit requests for new flight
requests or changes to previously approved slots or flights to the FAA
Slot Administration Office by email at 7-awa-slotadmin@faa.gov. As
noted earlier, the FAA expects that new allocations, approvals, and
changes will be on an ad hoc basis only for the Winter 2020/2021
season, as much of the flexibility would be based on returns received
under this waiver policy. Historic slot rights or priority at Level 2
airports would be retained by the original carrier provided the
appropriate conditions are met. To facilitate the FAA temporarily
reallocating capacity returned under this waiver policy in a timely and
efficient manner, carriers should submit updated and accurate
information to the FAA as quickly as possible so the FAA can make
unused capacity available to other carriers.
Carriers should assume that new allocations in the Winter 2020/2021
season are granted without historic precedence eligibility, unless
explicitly stated and discussed otherwise with the FAA Slot
Administration Office. Carriers should clearly state if they are
unwilling or unable to accept ad hoc allocations limited to Winter
2020/2021 only. Requests for historically eligible slots will continue
to be evaluated and processed according to availability, per
established FAA processes. Those processes include maintaining a list
of carriers with outstanding requests so that they can potentially be
met if slots or times subsequently become available.
Decision
The FAA has determined to extend through March 27, 2021 the COVID-
19-related limited waiver of the minimum slot usage requirement at JFK,
LGA, and DCA that the FAA has already made available through October
24, 2020, subject to additional conditions. Similarly, the FAA has
determined to extend through March 27, 2021 its COVID-19-related policy
for prioritizing flights canceled or otherwise not operated as
originally intended at designated IATA Level 2 airports in the United
States, subject to additional conditions, for purposes of establishing
a carrier's operational baseline in the next corresponding season.
COVID-19 continues at this time to present a highly unusual and
unpredictable condition that is beyond the control of carriers. The
continuing impacts of COVID-19 on commercial aviation are dramatic and
extraordinary, with a historic decrease in passenger demand. The
ultimate duration and severity of COVID-19 impacts on passenger demand
in the United States and internationally remain unclear. Even after the
outbreak is contained, impacts on passenger demand are likely to
continue for some time. The FAA has therefore concluded that an
extension of relief through March 27, 2021, with conditions, is
appropriate to provide
[[Page 63350]]
carriers with flexibility during this unprecedented situation and to
support the long-term viability of carrier operations at slot-
controlled and IATA Level 2 airports in the United States. In light of
the evolving and extraordinary circumstances related to COVID-19
worldwide, continuing relief for this additional period on a
conditional basis is reasonable to mitigate the impacts on demand for
air travel resulting from the spread of COVID-19 worldwide.
While the FAA is providing continued, albeit conditional, relief
through the Winter 2020/2021 season, carriers should not assume that
further relief will be forthcoming beyond the end of the Winter 2020/
2021 scheduling season. The FAA will review the facts and circumstances
at the time of any future waiver requests; however, the FAA will also
continue to consider the importance of providing access to the Nation's
congested airports where there is capacity available. Slots are a
scarce resource. Slot usage waivers accordingly are reserved for
extraordinary circumstances. Even during an extraordinary period such
as the COVID-19 public health emergency, carriers should utilize their
slots and operating authorizations efficiently, in accordance with
established rules and policy, or relinquish those slots and
authorizations to the FAA so that other carriers willing and able to
make use of them can do so. The FAA cautions all carriers against
altering plans for usage at slot-controlled and Level 2 airports in
reliance upon a presumption that additional relief will be forthcoming,
which is a decision on which the FAA has not rendered a judgment at
this time. The presumption that carriers should apply in preparing for
operations in future scheduling seasons is compliance with standard
slot management and schedule facilitation processes.
The FAA reiterates its expectation 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.
The FAA acknowledges that some foreign jurisdictions may opt to adopt
more strict provisions in response to this policy than they had
otherwise planned. However, as previously explained, the FAA believes
the conditions associated with the relief provided in this policy are
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 for a long-term waiver
to suppress flight operations for which demand exists. 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 ScheduleFiling@dot.gov confirming reciprocal
treatment of the slot holdings of U.S. carriers.
The FAA emphasizes that it strongly encourages carriers to return
slots and approved schedules voluntarily as soon as possible and for as
long a period as possible during the Winter 2020/2021 season, so that
other airlines seeking operations on an ad hoc basis may do so with
increased certainty. The rolling four-week return deadline is only a
minimum requirement, and FAA anticipates that carriers may often be
able to provide notice of cancellations significantly further in
advance than four weeks. In both the Level 2 and slot-controlled
environments, the FAA seeks the assistance of all carriers to continue
to work with the FAA to ensure the national airspace system capacity is
not underutilized during the COVID-19 public health emergency.
Carriers should advise the FAA Slot Administration Office of COVID-
19-related cancellations and return the slots to the FAA by email to 7-awa-slotadmin@faa.gov to obtain relief. The information provided should
include the dates for which relief is requested, the flight number,
origin/destination airport, scheduled time of operation, the slot
identification number, as applicable, and supporting information
demonstrating that flight cancelations directly relate to the COVID-19
public health emergency. Carriers providing insufficient information to
identify clearly slots that will not be operated at DCA, JFK, or LGA
will not be granted relief from the applicable minimum usage
requirements. Carriers providing insufficient information to identify
clearly changes or cancellations from previously approved schedules at
EWR, LAX, ORD, or SFO will not be provided priority for future seasons.
Issued in Washington, DC, on October 2, 2020.
Arjun Garg,
Chief Counsel.
Timothy L. Arel,
Deputy Chief Operating Officer, Air Traffic Organization.
[FR Doc. 2020-22291 Filed 10-5-20; 4:15 pm]
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