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, 63335-63350 [2020-22291]

Download as PDF Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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 Department of Transportation (DOT), Federal Aviation Administration (FAA). ACTION: Extension of limited waiver of the minimum slot usage requirement. AGENCY: 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. SUMMARY: FOR FURTHER INFORMATION CONTACT: Bonnie Dragotto, Office of the Chief Counsel, Regulations Division, Federal Aviation Administration, 800 Independence Avenue SW, Washington, VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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. 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, 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. PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 63335 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 E:\FR\FM\07OCN1.SGM 07OCN1 63336 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices confirmed COVID–19 cases and 991,000 deaths.4 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 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 4 COVID–19 weekly epidemiological update, September 28, 2020, available at: https:// www.who.int/emergencies/diseases/novelcoronavirus-2019/situation-reports. 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. 8 CDC COVID Data Tracker, updated October 2, 2020, available at https://covid.cdc.gov/covid-datatracker/?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/presidentialactions/proclamation-declaring-nationalemergency-concerning-novel-coronavirus-diseasecovid-19-outbreak/. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 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 slotholding air carrier and which affects carrier operations for a period of five consecutive days or more.12 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 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 10 See 85 FR 15018 (Mar. 16, 2020). 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 twomonth period will be withdrawn by the FAA. See LGA Order, 85 FR at 58257. 13 See 14 CFR 93.227(a). 14 See 14 CFR 93.227(j). 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 11 Operating PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 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. 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 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. E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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/marketbased 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 slotcontrolled 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. SlotControlled 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 VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 airlines that are ready and able to operate to support the recovery are not blocked from entering airports by anticompetitive 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 marketdistorting waivers should not persist for years until pre-COVID demand levels return.’’ The PANYNJ further ‘‘concurs PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 63337 with the assertion that [ghost flights] are an inefficient use of resources and are inconsistent with the purpose of slotcontrols’’ 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 slotcontrolled 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- E:\FR\FM\07OCN1.SGM 07OCN1 63338 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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. slotcontrolled 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 Europeancoordinated 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.’’ 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. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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. 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 longterm 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 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 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 slotcontrolled 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. E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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, threeweek, 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 VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 million) fewer flights in 2020 compared to 2019’’ and that ‘‘the overall revenue loss across the industry, including airports and ANSPs, is estimated at Ö140 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. [slotcontrolled] 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 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 63339 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 slotcontrolled 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 E:\FR\FM\07OCN1.SGM 07OCN1 63340 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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 ‘‘marketbased 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- VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 [slotcontrolled] 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 nonincumbents 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 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 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 E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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 slotcontrolled 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 [slotcontrolled] 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 multiyear investments to support their traffic 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%. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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. 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 fullseason extension of relief at slotcontrolled 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.’’ 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, 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. PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 63341 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 rampup 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 22 In addition to submitting comments for consideration in the public docket, United submitted additional materials marked as proprietary and confidential. E:\FR\FM\07OCN1.SGM 07OCN1 63342 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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.’’ 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. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 selfinterest 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 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 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 [slotcontrolled]’’ and ‘‘there is no reason to expect that demand at Level 2 airports will recover more quickly than at [slotcontrolled] 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 E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices decreased by 73 percent compared to between July–August 2019, which is a severe example of the decrease in demand.’’ 23 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 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. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 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. PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 63343 competitive impacts. Senator Booker notes that ‘‘January is a known lowdemand period for airlines and demand for air travel is expected to continue to hover around 40% compared to preCOVID–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.’’ 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. 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 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. E:\FR\FM\07OCN1.SGM 07OCN1 63344 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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 [slotcontrolled] 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 VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 slotcontrolled airports. This individual asserts that ‘‘commercial aviation—so PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 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.’’ E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices As previously noted, some commenters seek to supersede the Level 2 policy proceeding entirely by encouraging the Federal Government to establish broader economic/marketbased 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. In its proposal, the FAA acknowledged the need for slot holders to have some flexibility in decisionmaking 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 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-covid19data-updates/#. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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. slotcontrolled 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 (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 Additionally, an exception may be granted and the waiver therefore 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. 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. PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 63345 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. E:\FR\FM\07OCN1.SGM 07OCN1 63346 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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. 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 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. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 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 newlyallocated 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 InternationalEurope, 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. 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 30 https://ec.europa.eu/commission/presscorner/ detail/en/STATEMENT_20_1645. E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices clarifies that in considering net newlyallocated 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 VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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.’’ PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 63347 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) nonbinding 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–19related 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 E:\FR\FM\07OCN1.SGM 07OCN1 63348 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices the rules and process in place at slotcontrolled 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–19related 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 slotcontrolled airports. Some minor adjustments have been made to reflect the different procedures, terminology, and regulatory requirements at slotcontrolled 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 FAAapproved 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 VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 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–19related 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 slotcontrolled 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 slotcontrolled airports, the FAA determined to apply a second condition at Level 2 E:\FR\FM\07OCN1.SGM 07OCN1 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices airports similar to the second condition that applies at slot-controlled airports.31 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 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. VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 slotcontrolled 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, PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 63349 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–19related 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 E:\FR\FM\07OCN1.SGM 07OCN1 63350 Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / Notices 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 VerDate Sep<11>2014 17:21 Oct 06, 2020 Jkt 253001 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 slotcontrolled 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–19related cancellations and return the slots to the FAA by email to 7-awaslotadmin@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] BILLING CODE P PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 DEPARTMENT OF TRANSPORTATION Federal Aviation Administration Public Notice of Intent To Rule on a Release Request To Sell On-Airport Property Purchased With Airport Improvement Program (AIP) Funding and Remove It From Airport Dedicated Use at the Lehigh Valley International Airport (ABE), Allentown, PA Federal Aviation Administration (FAA) DOT. ACTION: Notice of release request to sell on-airport property purchased with AIP funding and remove it from dedicated use. AGENCY: The FAA is requesting public comment on the Lehigh-Northampton Airport Authority proposed land release and sale of 32.566 acres of on airport property at the Lehigh Valley International Airport in Hanover Township, Pennsylvania. The subject property was purchased with federal financial assistance under the Airport Improvement Program. FAA grants affecting the parcels to be released are identified below. 1. Grant No. 3–42–0001–074–2008 2. Grant No. 3–42–0001–067–2006 3. Grant No. 3–42–0001–074–2008 4. Grant No. 3–42–0001–035–1998 5. Grant No. 3–42–0001–067–2006 6. Grant No. 3–42–0001–029–1996 7. Grant No. 3–42–0001–029–1996 8. Grant No. 3–42–0001–062–2005 DATES: Comments must be received on or before November 6, 2020. ADDRESSES: Comments on this application may be emailed or delivered to the following address: Thomas Stoudt, Manager, Lehigh Valley International Airport, 3311 Airport Road, Allentown, PA 18109, 610– 266–6001 and at the FAA Harrisburg Airports District Office: Rick Harner, Manager, Harrisburg Airports District Office, 3905 Hartzdale Dr., Suite 508, Camp Hill, PA 17011, (717) 730–2830 FOR FURTHER INFORMATION CONTACT: Brian Gearhart, Project Manager, Harrisburg Airports District Office, location listed above. The request to release airport property may be reviewed in person at this same location. SUPPLEMENTARY INFORMATION: The following is a brief overview of the request: The Lehigh-Northampton Airport Authority requests the release of a total of 32.566 acres of land previously required for future development that is SUMMARY: E:\FR\FM\07OCN1.SGM 07OCN1

Agencies

[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: [email protected].

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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \10\ See 85 FR 15018 (Mar. 16, 2020).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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%.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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/#.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    (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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \30\ https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_20_1645.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 [email protected]. 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 [email protected] 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 [email protected] 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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