OST-00-7175 / OST-00-7176 / Wendell Ford Aviation Investment and Reform Act / Answer of Queens County / May 26, 2000

In the matter of

THE WENDELL H. FORD AVIATION INVESTMENT AND REFORM ACT FOR THE 21ST CENTURY

for exemptions from 14 CFR Part 93, under U.S. C § 41716(a) and (b)

The Office of the President of the Borough of Queens in New York City hereby moves for permission to file objections to the above-referenced orders, issued by the United States Department of Transportation (DOT) in April 2000. As the highest-level elected official in Queens County, the Borough President is the best qualified elected official to speak on behalf of the two million Queens residents.

As DOT staff and anyone else involved in the aviation industry knows, the Borough President has opposed and will continue to oppose unregulated and irresponsible increases in operations at both LaGuardia Airport and John F. Kennedy International Airport ("JFK"), for the reasons stated in our proposed objections, which are annexed to this motion. While this office has, for the most part, opposed applications for slot exemptions on a case-by-case basis (we are not always notified of such applications), with the passage of The Wendell H. Ford Aviation Investment and Reform Act for the 2 1 ` Century ("Air 21 "), we are requesting permission to file an omnibus document containing our objections to the large number of recent applications made pursuant to Air 21.

The recent applications basically fall into two categories. First, some carriers are seeking to operate regional jets on a large scale. Such carriers include U.S. Airways Express, Delta

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Connection, Continental Express, American Eagle and Shuttle America. They are seeking a total of 538 regional jet slots at LaGuardia. Second, new entrant or limited incumbent airlines are seeking to increase their slots at LaGuardia. Such airlines include American Trans Air, America West, Legend, Midway, Midwest Express, Pro Air and Spirit. Combined, these airlines are seeking an additional 70 slots at LaGuardia. Thus, LaGuardia faces the possibility of an additional 600 flights daily in the foreseeable future.

In light of the extraordinary circumstances surrounding the passage and imminent implementation of Air 21, the Borough President respectfully requests that the DOT accept the annexed objections and reconsider its decision to implement Air 21 in the manner described in its orders.

Respectfully submitted,

CLAIRE SHULMAN, President

Borough of Queens

By:

Hugh B. Weinberg

Counsel to the Borough President

120-55 Queens Boulevard

Kew Gardens, NY 11424

May 26, 2000

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In recent months, airlines have filed a large number of applications for slots in response to enactment of The Wendell H. Ford Aviation Investment and Reform Act for the 2 1 " Century ("Air 21 "). The recent applications basically fall into two categories. First, some established carriers are seeking to operate regional jets on a large scale. Such carriers include U. S. Airways Express, Delta Connection, Continental Express, American Eagle and a new airline, Shuttle America. They are seeking a total of 538 regional jet slots at LaGuardia Airport. Second, other airlines are seeking to increase their slots at LaGuardia, as new entrants or limited incumbents. Such airlines include American Trans Air, America West, Legend, Midway, Midwest Express, Pro Air and Spirit. Combined, these airlines are seeking an additional 70 slots at LaGuardia. (Though this group seeks a smaller number of slots, these airlines operate larger, noisier, and often older aircraft than the regional jet operators.) Thus, LaGuardia faces the possibility of an additional 600 flights daily in the foreseeable future. /1

The President of the Borough of Queens is the highest level county-wide executive in Queens County in New York City. If all the airlines seeking a total of more than 60O.slot exemptions at LaGuardia Airport are allowed to proceed, it would have a significant adverse impact on the residents of Queens County, which is the home of both LaGuardia and John F. Kennedy International Airport, 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

1/ A list of the applicant airlines, the number of slots each airline is seeking and their applications' DOT docket numbers is attached hereto.

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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 LaGuardia, which is located in one of the most densely populated residential areas of all the airports in the nation.

For the reasons discussed herein, the Queens Borough President strongly opposes the recent orders of the United States Department of Transportation ("DOT"), enabling the addition of up to 608 additional flights at LaGuardia, and asks that DOT develop a plan to implement Air 21 in a more orderly and environmentally responsible way.

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 JFK, and eventually the congestion of the aviation system reached a crisis stage. In its 1995 Report to Congress, DOT described the problems as follows:

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The Federal Aviation Administration ("FAA") 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. /3 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. /4

Air 21 has indeed paved the way for greater access to LaGuardia and JFK by new and limited incumbent air carriers and by those carriers operating regional jets. It should be noted, however, that Air 21 also 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.

The Borough President's Office respectfully submits that DOT the regulatory body charged with making determinations affecting slots at high density airports should not simply abdicate its responsibility to ensure that Air 21 is implemented in a safe and efficient manner. Rather than throw open the doors to LaGuardia and JFK to all the competing airlines and hope that some order will result when the dust settles, DOT has a duty to affirmatively evaluate the applications to determine which proposals would bring more service to underserved markets which really need it. We believe that this approach is more consistent with the spirit of Air 2 1, makes more sense, and affords more protection to the airlines, the markets they seek to serve, and their existing and potential customers.

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

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

3/ 14 C.F.R. Part 93, Subpart K

4/ 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-97-2984, OST-97-3086, OST97-3087 (December 3, 1997).

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least, additional analysis would be required before DOT could grant any exemptions beyond the 30 sanctioned in the report.

It is the understanding of the Borough President's Office that at least 30 slot exemptions were awarded at LaGuardia by DOT after 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 the less crowded JFK (over three years). Thus, no significant number of 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 airlines propose to add such a high number of flights. /5

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 the applicant airlines, in reckless disregard of any environmental considerations.

The Borough President believes strongly that DOT must conduct or commission to be conducted an unbiased and 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 daily number of slots (more than 50% if all pending slot request are acted upon), and because of LaGuardia's location, in a densely populated part of Queens County, New York. The lives of millions could be affected by DOT's actions.

5/ Note that 600 additional daily operations at LaGuardia would represent an increase in flight activity of more than 50% over current daily activity levels.

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In a 1995 order, DOT denied a request by Spirit Airlines for more flights at LaGuardia. DOT specifically addressed LaGuardia's congestion and delay problems. While 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 at LaGuardia -- will only exacerbate an already intolerable delay situation. While the Borough President's Office's positions are well-known when it comes to air traffic and the problems that go with it, we recognize the great importance of the airports to the economy of New York City; however, we believe that the airline industry can still run its business in such a way that LaGuardia does not become a totally undesirable airport for travellers. The Borough President's Office is therefore concerned about the continued viability of LaGuardia as a

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

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functioning airport. As the world knows, LaGuardia is the preferred airport of business travellers (although JFK and Newark International Airports serve the New York City market as well); however, with US Airways, Continental Express, Delta Connections, American Eagle, and the other, smaller airlines all clamoring for more access at LaGuardia, in order to provide service to markets for which there is only minimal demand or to provide connecting service to other destinations, LaGuardia will soon become merely another hub airport. Delays and congestion will be exacerbated beyond the point of toleration for travellers, especially business travellers. Note that many of the destinations listed by one carrier are more than duplicated by others. The smaller airlines are in some cases seeking to add flights to already well-travelled destinations such as Chicago, which would not particularly enhance competition or serve the public interest. It is our understanding that current operations to some of those destinations do not run at even 50% capacity. Now, amazingly, the airlines seek to increase the number and frequency of their flights to some of those destinations. These airlines, particularly those operating regional jets, should not be permitted to file applications which contain wish lists or which overstate their true objectives in order to attempt to gain an advantage against their competitors; rather, they should be required to file legitimate business plans which DOT should review prior to approving them.

As stated above, 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 21, 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 more than 600 (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 over 50%. Further assuming that the airlines would continue to attempt to schedule their operations at the most desirable travel 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

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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 least 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 more than 600 additional daily operations await clearance to take-off or land? Where will they fly? Where will they find the requisite gate space? What kind of additional delays will beleaguered travellers be subjected to? The regulators at DOT surely recall that the High Density Rule was initially implemented to address congestion at the nation's busiest airports and 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. /7 The problems described in detail in the 1995 Spirit Airlines order continue to exist at LaGuardia, but they are worse now because there are more operations at the airport 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:

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

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the timing of the operation. /8

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, more than 600 new daily operations loom on the horizon at LaGuardia alone. While DOT might be mandated to implement Congressional intent as that intent is stated in Air 2 1, DOT has an obligation 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 a substantial number of new slots. Indeed, if the very entity which manages the airports refuses to support the airlines' applications, then DOT should not even consider granting additional 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 tells us that the more aircraft that are crammed into airports and their surrounding airspace, the more likely it is that an 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.

In addition to the other concerns addressed in this document, the Borough President has concerns about the types of aircraft sought to be used by the airlines. For a while, it seemed the trend in the aviation industry was towards the use of larger aircraft and fewer flights. While Air 21 encourages the use of aircraft of less then 71 seats, most available regional jets appear to have between 30 and 40 seats. This would indicate a need to operate ever more flights, given the limited number of seats. Perhaps DOT should at least await availability of 70-seat regional jets before proceeding with implementation of Air 2 1. Also, with respect to the regional jet carriers, it should be noted that Shuttle America seeks to operate turboprop aircraft, which, we believe, are not meant to be covered as "regional jets" under Air 21.

8/ Id., p. 9

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Concerning the new and limited incumbent carriers, many of them seek to use older, noisier hush-kitted aircraft or first generation Stage 3 aircraft (such as the MD-80 series) for their operations. While the use of such noisy, environmentally unsound aircraft might be permitted under the law, we believe DOT should encourage the use of newer aircraft, in light of the circumstances described herein.

With respect to encouraging competition in the free market, it seems hardly necessary for DOT to give US Airways or Delta or Continental the kind of increased access to LaGuardia which they seek in their applications, because each already has a strong presence in the New York market. To now give these large airlines the authority to expand their activities at LaGuardia with such large-scale operations would seem to present an opportunity for them 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 DOT reconsider its plans for implementation of Air 2 1, in light of the circumstances described herein, 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, President Borough of Queens

By:

Hugh B. Weinberg

Counsel to the Borough President

120-55 Queens Boulevard

Kew Gardens, NY 11424

May 26, 2000

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