OST-97-2873 / AirTran / Exemption High Density Rule, Knoxville-Washington DCA / October 6, 1997

Application of

AIRTRAN AIRWAYS, INC.

for an exemption from Subparts K and S of 14 C.F.R. Part 93 (Knoxville-Washington (DCA)

1. The Airports Authority is opposed to the grant of an exemption as requested by AirTran because there is no legal basis to grant the exemption sought. The law could not be more clear. The provisions in Title 49 permitting the Secretary to grant exemptions to the high density rule slot limitations for new entrant air carriers, 49 U.S.C. § 41714, are not applicable at Washington National Airport. The provision on new entrant slots states:

Likewise, the provisions for granting exemptions from the slot restrictions for essential air service are expressly inapplicable to Washington National Airport, 49 U.S.C. § 41714 (a)(1), and the provisions to grant exemptions from the slot restrictions for foreign air transportation are also not applicable at Washington National, 49 U.S.C. § 41714(b)(1). The provision that does authorize the Secretary to grant exemptions from the high density rule at Washington National applies only to air carriers currently holding slots at the airport and then only in circumstances not applicable to AirTran's application. 49 U.S.C. § 41714(d). It is clear, therefor, that AirTran has no legal basis to have its application for an exemption granted.

2. Although there is no need to go beyond the clear language of the applicable statutes to respond to AirTran's application for an exemption, the Airports Authority does wish to call to the attention of the Department the extensive history of the high density rule at Washington National Airport. AirTran refers back to the 1980 reallocation of slots to accommodate New York Air. A more relevant action by the Department was the adoption of the Metropolitan Washington Airports Policy, initially by Secretary Goldschmidt and finally by Secretary Lewis in 1981. The extensive policy statement, published at 46 Fed. Reg. 58036, November 27, 1981, (enclosed) resolved a decade of debate over the role of National Airport. The Department addressed very basic matters - Should Washington National remain open? What hours? What kind of aircraft? The DOT Policy led to the reduction of air carrier slots at National out of concern for the need to bring stability to the airport and to carefully define its role as a major air carrier airport that will continue functioning on a very constrained site in an urban environment. The limited role made good sense given the available extensive airport capacity at nearby Washington Dulles and Baltimore Washington International airports, which serve the Metropolitan Washington market. To our knowledge, the Department's policy has not changed. Indeed, when National Airport, together with Washington Dulles International Airport, was transferred by the Department to the Airports Authority, the law (The Metropolitan Washington Airports Acts of 1986) that authorized the Department to make the transfer fixed in federal legislation the number of air carrier slots at National Airport. Pub. Law 99-591, Section 6009(e). This was done to eliminate the fears 1) of the air carrier industry that a locally controlled Authority would reduce the number of air carrier operations in response to environmental concerns and 2) to eliminate the community's concern that an Authority influenced by air carrier interests would increase the number of permitted flights. The Department agreed with the compromise legislation that fixed the number of air carrier slots for Washington National Airport in an act of Congress to remove the very possibility of what AirTran is now seeking by way of an administrative exemption from the slot limitations. The Department is referred to the more extensive filing by the Airports Authority submitted on May 27, 1994, in connection with the Federal Aviation Administration's study of the high density rule, Docket Number 27664. There we recount how the high density rule has become more than an air traffic control device at National and is a device for establishing and maintaining the roles of the airports serving the Washington metropolitan area.

The Metropolitan Washington Airports Policy and the 1986 transfer legislation are extremely relevant to the disposition of applications such as AirTran's for exemptions to the high density rule or for a reallocation of slots. Clearly, the Department's Policy, which addressed not only slots, but nonstop flight distances and nighttime noise limits has been a success. Both National and Dulles airports have benefited from a clear articulation of roles that enable the Airports Authority to plan and complete an extensive capital development program. We urge that the Department carefully review this Policy before deciding to make any changes to the operating environment for National Airport.

3. Finally, the Airports Authority at this time takes no position on the legality of the AirTran request for a reallocation of slots, as opposed to an exemption to create new slots. The Authority favors an aggressive use or lose policy by the Department. Slots not being used as defined in the regulation, 14 C.F.R. 93.227, should be reallocated. The Authority urges caution with regard to the reallocation of slots that are being used as defined in the regulation in order to foster different uses. The Airports Authority's concern is that the debate over the availability of service within the context of the slot rule will inevitably lead to a debate over the number of slots and then again over the very existence of slots. We strongly urge the Department to consider the stability achieved at National Airport by the Department's 1981 Policy and the transfer of the airports when it is considering a request for reallocation of slots under the high density rule.

Metropolitan Washington Airports Authority

By: Edward S. Faggen

Legal Counsel

44 Canal Center Plaza

Alexandria, Virginia 22314

October 6, 1997