Department of Transportation, Federal Aviation Administration: Congestion Management Rule for John F. Kennedy International Airport and Newark Liberty International Airport, GAO-09-121R, October 27, 2008
The Honorable Daniel
K. Inouye
Chairman
The Honorable Kay Bailey Hutchison
Ranking Minority Member
Committee on Commerce, Science, and Transportation
The Honorable James L.
Oberstar
Chairman
The Honorable John L. Mica
Ranking Minority Member
Committee on Transportation and Infrastructure
House of Representatives
Subject: Department of Transportation, Federal Aviation Administration: Congestion
Management Rule for
Pursuant to section
801(a)(2)(A) of title 5, United States Code, this is our report on a major rule
promulgated by the Department of Transportation, Federal Aviation
Administration (FAA), entitled “Congestion Management Rule for John F. Kennedy
International Airport and Newark Liberty International Airport” (RIN: 2120-AJ28). We received the rule on
The final rule establishes procedures to address
congestion in the
Enclosed is our assessment of FAA’s compliance with the
procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with
respect to the rule. Although our review
indicates that FAA complied with the applicable procedural requirements, it is
our position that FAA does not have the requisite statutory authority to
promulgate this final rule.
Specifically, on
If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Michael R. Volpe, Assistant General Counsel, at (202) 512-8236.
signed
Robert J. Cramer
Associate General Counsel
Enclosure
cc: Nancy
Molitor
Program Analyst
Department of Transportation
ENCLOSURE
REPORT UNDER 5 U.S.C. sect. 801(a)(2)(A) ON A MAJOR
RULE
ISSUED BY THE
DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION
ENTITLED
"
(RIN: 2120-AJ28)
(i) Cost-benefit analysis
FAA concluded that the final rule “has benefits that
justify its costs.” FAA concluded that the
estimated present value of net benefits of improved slot allocation by auctions
is $272 million at John F. Kennedy International Airport (JFK) and $225 million
at
(ii) Agency actions relevant to the Regulatory
Flexibility Act, 5 U.S.C. sections 603-605, 607, and 609
FAA certified that the final rule will not have a significant impact on a substantial number of small entities under the Act.
(iii) Agency actions relevant to sections 202-205 of
the Unfunded Mandates Reform Act of 1995, 2 U.S.C. sections 1532-1535
FAA concluded that the final rule will not impose any federal mandates under the Act on state, local, or tribal governments, or on the private sector of $136.1 million in any one year.
(iv) Other relevant
information or requirements under acts and executive orders
Administrative Procedure Act, 5 U.S.C. sections 551 et seq.
The final rule was issued using the notice and comment procedures contained in
5 U.S.C. sect. 553. On
Paperwork Reduction Act, 44 U.S.C. sections 3501-3520
The final rule contains new information collection requirements. As required by the Act, the FAA has submitted these information requirements to the Office of Management and Budget for its review.
Statutory authorization for the rule
FAA cites 49 U.S.C. sect. 40103 as its authority to establish
this rule. GAO disagrees with FAA’s
assertion of its statutory authority, however, and so held in B-316796,
Executive Order No. 12,866
FAA determined that the final rule is an “economically significant” regulatory action under the Order.
Executive Order No. 13,132 (Federalism)
FAA determined that the final rule will not have a substantial direct effect on the states, on the relationship between the national government and the sates, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have federalism implications.
[1]
In addition, in August 2008, prior to the issuance of this final rule, FAA
announced that it was planning to auction two specific slots at