OST-00-7131 / Delta Connection Carriers / High Density Rule - Answer of Queens Borough / April 13, 2000

Applications of

ATLANTIC COAST JET, INC.

For Exemptions from Subparts K and S of 14 C.F. R. Part 93 pursuant to 49 U. S.C. § 41716 (LaGuardia Regional Jet Services))

Communications with respect to this document should be addressed to:

Hugh B. Weinberg

Counsel

Queens Borough President's Office

120-55 Queens Boulevard

Kew Gardens, NY 11424-1015

(718) 286-2880

April 13, 2000

Page 1 of 9

The Office of the President of the Borough of Queens in New York City hereby moves for leave to file a late answer in response to the Delta Connection Carriers' application for 186 slot exemptions at LaGuardia Airport. Queens County, in New York City, is of course home to two of the busiest airports in the nation, and for this reason, among others, the people of Queens should have a chance to respond to this application.

For the reasons stated herein and in the attached answer, the United States Department of Transportation is respectfully requested to accept this answer and, upon due consideration, reject Delta's application.

Respectfully submitted,

CLAIRE SHULMAN

President

Borough of

By:

Hugh Weinberg

Counsel to the Borough President

120-55 Queens Boulevard

Kew Gardens, NY 11424

(718) 286-2880

Page 2 of 9

The President of the Borough of Queens is the highest level county-wide executive in Queens County in New York City. If the Delta Connection Carriers' application for 186 slot exemptions at LaGuardia is granted, it would have significant adverse impact on the residents of Queens County, which is the home of both LaGuardia and JFK Airports, and which has a population of approximately two million individuals. Because the Borough President is elected by and represents the entire county, and works closely with the aviation industry to balance the economic and transportation benefits of that industry with its negative impacts on residents, the Borough President's Office is in the best position to represent Queens Country's interest in this proceeding.

While it is true that both airports in Queens generate thousands of jobs and other economic benefits for residents of the county, it is also true that these residents must also bear the burdens resulting from close proximity to the airports, including aircraft noise, air pollution, safety risks, and increased levels of traffic congestion on the airports' access roads, on the airports' tarmacs and runways, and in the skies above and around Queens. These problems are exacerbated near JFK and LaGuardia, which are located in one of the most densely populated residential area of all the airports in the nation.

For the reasons discussed herein, the President of the Borough of Queens in New York City strongly opposes this application seeking 186 regional jet slot exemptions.

Queens County is, as stated above, the home of both LaGuardia and JFK. These two airports together handle over 700,000 flights carrying approximately 50 million passengers per year, and these flights impose a tremendous burden upon the two million residents in this borough. Specifically, local residents suffer from a disproportionate amount of aircraft noise, congestion, delays and pollution, and these airport-related impacts have been constant problems in Queens County for many years.

Prior to 1968, there were absolutely no legal or regulatory limits on the number of flights that could be added to LaGuardia and JFY, and eventually the congestion of the aviation system reached a crisis stage. In its 1995 Report to Congress, the United Stated Department of Transportation ("DOT") described the problems as follows:

Page 3 of 9

The Federal Aviation Administration ("FAX') finally took action against this problem on November 27, 1968 by adopting the "High Density Rule," which limits the number of flights at "high density" airports during particular hours. /2 The High Density Rule provided tremendous relief to both air travellers and local residents from the problems that had been caused by airspace congestion, and the rule remains the only protection that airline passengers and residents have against a complete return to the problems that plagued the air traffic system in the 1960s. /3

As Delta observes in its application, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("Air 21") has paved the way for greater access to LaGuardia and JFK, via regional jets. It should also be noted, however, that Air 21 preserves the High Density Rule until 2007. The Borough President's Office believes that Air 21 should not be applied so as to totally eviscerate the High Density Rule without regard to operational limitations and environmental safeguards.

In October 1997, DOT issued a report entitled Environmental Assessment and Finding of No Significant Impact for Exemptions from 14 CFR Part 93, Subparts K and S for Operations at O'Hare and LaGuardia Airports. That report concluded, among other things, that the environmental assessment discussed therein supported the addition of up to 30 slot exemptions at LaGuardia because, according to the assessment, that number of additional slot exemptions would have no significant impact on the environment. Implicit in DOT's findings is that, at the very least, additional analysis would be required before DOT could grant any exemptions beyond the 30 sanctioned in the report.

1/ Report to Congress: A Study of the High Density Rule, United States Department of Transportation, May 1995, page 22 (footnotes omitted).

2/ 14 C.F.R. Part 93, Subpart K

3/ For a fuller discussion of the history behind the High Density Rule and the tremendous adverse impact that additional flights have on New York City, see Consolidated Answer of the Office of the Queens Borough President, City of New York Docket Numbers OST-97-2870, OST-97-2885, OST-97-2932, OST-97-2970, OST-97-2994, OST-97-3086, OST97-3097 (December 3, 1997).

Page 4 of 9

It is the understanding of the Borough President's Office that at least 30 slot exemptions have been awarded at LaGuardia by DOT since the issuance of the environmental assessment report. In addition, in 1999, an exhaustive environmental review was required before JetBlue Airways could be awarded 75 new slots at JFK (over three years). Thus, no additional slot exemptions for LaGuardia or JFK should be granted until a meaningful environmental review of the potential impact of any new flights has been conducted.

Even under Air 21, airlines should be required to demonstrate that their plans to add aircraft activity to an already overcrowded market are environmentally sound. This is especially appropriate where, as is the case here, the airport in question is located in a densely populated residential area and, secondly, the applicant airline proposes to add such a high number of flights. /4

Furthermore, it is worth noting that the language of Air 21 supports a finding that Congress intended that any new flight activity at LaGuardia and JFK would have to comport with applicable environmental laws and be subjected to environmental testing. For example, Section 41718 ("Special Rules for Ronald Reagan Washington National Airport") of Air 21 states the following:

There appears to be no comparable exception for slot exemption applications at LaGuardia or JFK. Also, note that subsections (f) and (g), entitled "Noise Compatibility Planning and Programs" and "Study of Community Noise Levels Around High Density Airports", respectively, apply to all four high density airports. The very presence of these subsections clearly demonstrates that Congress did not intend to allow a precipitous increase in flight activity in the automatic, reflexive way proposed by Delta, in reckless disregard of any environmental considerations.

In addition, as noted above, in 1999, DOT required a comprehensive environmental assessment before it would grant JetBlue 75 slots (25 per year over three years) at JFK. This is noteworthy because, along with Delta's pending application, DOT is currently considering applications seeking a total of close to 400 slots, many of which are not designated for regional jets.

The Borough President believes strongly that DOT must conduct or commission to be conducted a comprehensive environmental assessment that meets the procedural and substantive environmental requirements set forth by the Council of Environmental Quality in its regulations implementing the National Environmental Policy Act of 1969, as amended (NEPA). Such an assessment is especially critical, in light of the potentially large increase in the number of slots

4/ Note that 146 additional daily operations at LaGuardia would represent an increase in flight activity of more than 10% over current activity levels.

Page 5 of 9

(close to 33%, if all pending applications are granted), and because of LaGuardia's location, in a densely populated part, of Queens County, New York. The lives of millions could potentially be affected by DOT's actions.

In a 1995 order, DOT denied a request by Spirit Airlines ("Spirit") for more flights at LaGuardia. DOT specifically addressed LaGuardia's congestion and delay problems. VVNle that order was issued under prior law, some of the discussion contained therein is still relevant today. The DOT order suggested that aircraft noise played a part in its decision, and even more significant to DOT were the issues of aircraft delay and congestion at LaGuardia, which have been well-documented problems for years:

Note that DOT made this observation five years ago. What was true then with respect to congestion at New York City's airports is certainly true now, a fact to which anyone who has visited LaGuardia or JFK and watched aircraft lining up or idling on the tarmac awaiting clearance for take-off can attest to. Substantial increases in the number of operations at either airport -- and especially LaGuardia -- will only exacerbate an already intolerable delay situation.

5/ Spirit Airlines Order No. 95-8-38, p. 9

Page 6 of 9

DOT and most air carriers seeking access to LaGuardia and JFK are well aware of the Borough President's long-held position with respect to additional air traffic - she is of course opposed to any substantial increases in frequency or volume of air traffic. With the passage of Air 2 1, the legal rules and regulations have changed somewhat; however, this does not mean that the rules of common sense and decency have been altered.

As discussed above, LaGuardia is a heavily utilized airport located in a densely populated part of New York City. Noise is currently a problem, as aircraft currently pass by overhead on an intermittent, though frequent basis. If, for the sake of argument, we assume an increase of operations of about 400 (the approximate number of slots being sought via several applications by several airlines), the result would be an increase in the number of daily operations of 33%. Further assuming that the airlines would continue to attempt to schedule their operations at the most desirable flight times, the Borough of Queens would be faced with a steady stream of sound -ranging in decibel levels from a hum to a roar - on a daily basis.

In addition, aircraft idling on the ground and circling overhead on an increasingly frequent basis are bound to have an adverse effect on air quality. Queens residents already complain about the negative impact they and their children suffer from fuel exhaust fumes which waft down from passing aircraft. In fact, some studies have suggested a causal link between such fumes and the onset of asthma in young children.

For these reasons, it is imperative that any significant expansion of operations at LaGuardia be preceded by comprehensive environmental assessments. As discussed earlier in this submission, such environmental review appears to be consistent with both the spirit of Air 21 and prior DOT practice, at I east with respect to JetBlue's application for significantly fewer slots at a significantly less busy airport. While such a review is pending, DOT should be able to closely scrutinize applications and allow more operations at LaGuardia to serve markets which have been deemed underserved, as needed, rather then to simply open up the floodgates. After all, the FAA has made the environment a key component of its airspace redesign project. There is no reason that the addition of large numbers of operations, which could have a profound impact on the use of this region's airspace, should not be subjected to environmental review as well.

Besides the environmental issues, the proposed increase in operations gives rise to questions of practicality. Where will up to 400 additional daily operations await clearance to take-off or land? Where will they fly? What kind of additional delays will beleaguered travellers be subjected to? The regulators at DOT surely recall that the f1igh Density Rule was initially implemented to

Page 7 of 9

address congestion at the nation's busiest airports arid the delays which resulted therefrom. Surely Congress intended to impose some kind of restraint when it decided to keep the High Density Rule in effect until 2007 at LaGuardia and JFK. In the past, as noted above, DOT has solicited input from the FAA's ATM as part of its slot exemption application review process. ATM is, of course, responsible for ensuring that the air traffic system operates in a safe and efficient manner. As was also noted above, the ATM made clear in 1995, in connection with a Spirit slot exemption application, that there should be no increase in the number of flights at LaGuardia because it would, undoubtedly increase the delays and congestion at the airport. /6 The problems described in detail in the 1995 Spirit Airlines order continue to exist at LaGuardia and JFK, but they are worse now because there are more operations at the airports than there were in 1995, The Borough President's Office specifically noted the importance of considering the cumulative impact of additional flights in its opposition to Spirit's 1995 application. In the resulting decision; DOT agreed with this office:

Many airlines will be observing the progress of this application because they too would like to have more access to New York City's airports. As stated elsewhere in this submission, approximately 400 new daily operations loom on the horizon at LaGuardia alone. While DOT is mandated to implement Congressional intent as that intent is stated in Air 2 1, DOT has an opportunity to oversee this process in a manner which will ensure some sense of order, rather than to simply open the skies and pray that chaos does not result. It should also be noted that, to the best of our knowledge, the Port Authority of New York and New Jersey, which operates LaGuardia and JFK, opposes the addition of any new slots. Indeed, if the very entity which manages the airports refuses to support this application, then DOT should not even consider granting the request for slots. After all, some deference must be accorded the Port Authority, which has to deal. with the daunting task of managing LaGuardia and JFK on a daily basis.

While safety is, of course, a primary concern for the FAA (as it should be), common sense

6/ Spirit Airlines Order No. 95-8-38, p. 9

7/ Id., p. 9

Page 8 of 9

tells us that the more aircraft there are crammed into airports and their surrounding airspace, the more likely it is that ah accident could occur. The increasing frequency of runway mishaps and near-misses in the skies is well-documented. While these incidents might not result directly from increased levels of activities, a meteoric rise in the number of operations will certainly not guarantee that airlines' operations become safer.

Safety concerns are only exacerbated at LaGuardia, which is a small airport already at or near capacity. In addition, LaGuardia has intersecting, shorter-than-average runways which could pose special challenges for pilots not familiar with the airport. It seems to us that, even if it is indeed Congress' intent to let the principles of a free market economy control the operation of our airports, it did not intend that this should happen in a vacuum, regardless of the common sense concerns discussed in this submission.

With respect to encouraging competition in the free market, it seems hardly necessary for DOT to give Delta the kind of increased access to LaGuardia which it seeks in this application, because Delta already has a strong presence in the New York market. To now give this large airline the authority to expand its activities at LaGuardia with such a large-scale operation would seem to present an opportunity for it to get a head start on and ultimately eliminate the competition in the imminent battle to control the skies above and around New York City.

The Queens Borough President's Office appreciates the need for a vital aviation industry, both in terms of providing jobs to New Yorkers and in terms of providing revenue to the economy. We also believe that a vital aviation industry should be able to thrive while giving some minimal consideration to the health, safety and general quality of life of the two million citizens of Queens County.

For all the reasons stated above, the Borough President's Office respectfully requests that Delta's application be denied, at the very least until a substantive and comprehensive environmental impact study has been conducted with respect to LaGuardia and JFK (which have to coordinate their use of air space).

Respectfully submitted,

CLAIRE SHULMAN

Hugh Weinberg

Counsel to the Borough President

120-55 Queens Boulevard

Kew Gardens, NY 11424

(718) 286-2880

April 13, 2000

Page 9 of 9