## u.s. DEPARTMENT OF TRANSPORTATION Office ofthe Secretary [DocketNo. DOT-OST-2007-0022] Billing Code No. 4910-9X

Denial ofAirlines' Temporary Exemption Requests from DOT's Tarmac Delay Rules for JFK, EWR, LGA and PHL Operations AGENCY: Office ofthe Secretary (OST), Department ofTransportation (DOT). ACTION: Notice. SUMMARY: OnMarch 30, 2010, the Departmentpublished a notice in the Federal Register seeking comment on separate requests byfive airlines for a temporary exemption from a requirement that U.S. carriers adopt contingencyplans for lengthytarmac delays. Theseplans must include an assurance that a carrierwill notpermit an aircraft to remain on the tannac for

more than three hours in the case ofdomestic flights and for more than a set number ofhours as determined by a carrier in the case ofinternational flights withoutprovidingpassengers an opportunityto deplane, with certain exceptions for safety, security, orAir Traffic Control (ATC) related reasons. The requests cover operations at John F. Kennedy International Airport (JFK), Newark Liberty International Airport (EWR), LaGuardiaAirport (LGA), and Philadelphia International Airport (PHL). The carriers contend that without the requested exemption covering

seven months in 2010 during which runway construction is expected to be underway at JFK, large numbers offlights will have to be canceled at the New York area airports and affected passengers will face significant inconveniences and delays before being re-accommodated. The Departmentreceived approximately 135 comments on these exemption requests, primarily from

### - 2 - individual consumers. After fully considering the comments submitted, the Department is issuing this notice to announce its decision denying each ofthese exemption requests as not being in the public interest since the concerns raised bythe carriers can be resolved through more careful flight scheduling. The notice also points out that iftotally unexpected situations occur appropriate prosecutorial discretion can be applied withrespect to potential enforcement action. FOR FURTHERINFORMATION CONTACT: Livaughn Chapman orBlane A. Workie, Office ofthe Assistant General Counsel for Aviation Enforcement and Proceedings, US. Department ofTransportation, 1200 New Jersey Ave., S.E., Washington, DC 20590-0001; 202- 366-9342 (phone), 202-366-7152 (fax), livaughn.chapmanialdot.gov orblane.workieialdot.gov (e-mail). SUPPLEMENTARY INFORMATION: Background On December 30, 2009, the Department published a final rule titled "EnhancingAirline PassengerProtections" that sets forth numerous measures geared toward strengthening protections afforded to air travelers. 74 Fed. Reg. 68983. One oftheseprovisions, which takes effect April 29, 2010, requires US. certificated and commuter air carriers that operate scheduled passenger service orpublic charter service using any aircraft with a design capacity of30 or
more passenger seats to adopt, implement, and adhere to contingencyplans for lengthytarmac delays at each large and medium hub US. airport at which they operate scheduled orpublic charter air service. For domestic flights, the rule requires covered U.S. carriers to provide

assurance that they will notpermit an aircraft to remain on the tarmac for more than three hours, with two safety/security and an ATC-related exceptions: (1) where the pilot-in-command determines that an aircraft cannot leave its position on the tarmac to deplane passengers due to a- 3 - safety-related or security-related reason (e.g. weather, a directive from an appropriate government agency); and (2) where ATC advises the pilot-in-command that returning to the gate

or another disembarkation point elsewhere in orderto deplane passengers would significantly disrupt airport operations. Forinternational flights departing from or arriving at a U.S. airport, the rule requires covered U.S. carriers to provide assurance that the carriers will notpermit an aircraft to remain onthe tarmac for more than a set number ofhours, as determined bythe carriers, before deplaningpassengers, with the same safety, security, and ATC exceptions. 14 CFR §§ 259.4(b)(1) and (b)(2). For all flights, carriers mustprovide adequate food and waterno later than two hours afterthe aircraft leaves the gate (in the case ofa departure) ortouches down (in the case ofan arrival) ifthe aircraft remains on the tarmac, unless thepilot-in-command determines that safetyor securityrequirements preclude such service. Carriers must also ensure that lavatory facilities are operable and medical attention is providedifneededwhile the aircraft remains onthe tarmac. Pursuant to 49 U.S.c. § 46301, violations of 14 CFRPart 259 subject a carrierto civil penalties ofup to $27,500 perviolation. OnMarch4,2010, JetBlue requested an exemption from the requirements not to permit

an aircraft to remain onthe tarmac for more than three hours in the case ofdomestic flights and for more than a set number ofhours as determined bya carrier inthe case ofinternational flights without providingpassengers an opportunity to deplane for its JFK operations for the time period that operations at JFK are disruptedbythe closure ofthe mainrunway at that airport, i.e., March 1through December 1,2010. JetBlue's request for an exemption during this period was followed by a similarrequest byDeltaAir Lines for its JFK operations and a requestby American Airlines that the Department grant an exemption for all carrieroperations at JFK. Continental next requested that the Department extend anyreliefit grants carriers operating at- 4 - JFK to carriers operating at the Newark and LaGuardiaAirports. OnMarch 22,2010, US Airways also filed a request for a similar exemption for its operations at the PhiladelphiaAirport. The carriers argue collectivelythat without the requested exemptions large numbers of flights will have to be canceled at the New York area airports and affected passengers will have to face significant inconveniences and delays before being re-accommodated. The basic rationale presentedbyContinental and US Airways in support ofexemptions for their operations at Newark, LaGuardia and Philadelphia airports is that the delays and delay mitigation strategies at JFKresulting from the runway construction will affect the former airports bycausing delays to spill over. On March 25,2010, the Department published a notice in the Federal Register seeking comment on whether it should act onthe requests byJetBlue, Delta, American, Continental, and US Airways bymeans ofone ofthe following four measures: (1) deny each exemptionrequest; (2) grant one ormore ofthe exemption requests in their entirety; (3) grant a limited temporary exemption for operations at one ormore ofthe airports byallowing the three hour limit to be raised to four hours during the two specific heavy constructionperiods (April 29 thru June 30, 2010, and September 16 thru September 29,2010) planned for JFK's BayRunway; or (4) deny each exemption request, but direct the Aviation Enforcement Office to considerthe runway closure and unexpected bad weather in deciding whetherto pursue an enforcement case against a carrier for a lengthytarmac delay incident that occurs at one ormore ofthe airports. The commentperiod closed on April 9, 2010. Comments Received The Department received approximately 135 comments in response to the notice, primarily from individual consumers. Nearly all ofthe comments from individual consumers- 5 - and advocacy organizations support denying the request. The comments from airlines, airline associations and airports are mixed

- a few support givingpriorityorpreferential treatment to exemption requests for operations at JFK while most assert that all carriers operating at JFK, LGA, EWR and possibly PHL should receive equal relieffrom the tannac delayrule. The commenters' specific positions are set forth below. In supplementary comments, JetBlue contends that unlike the requests made by Continental and US Airways, JetBlue's request is limited to operations at JFK, and is carefully limited to the time period that JFK operations will be disruptedbythe BayRunway reconstruction. JetBlue argues that Continental and US Airways have "chosento try tojump on the bandwagon and bootstrap what they claim are related situations at LGA, EWR and PHLin an attempt to obtain relief' from the three hourrule. Continental states that the Department should focus its attention on the closure ofthe BayRunway, and requests that the Department select Option 2, granting the requests ofJetBlue, American and Deltain their entirety, and extending the same reliefto all New York area airports (i.e., JFK, LGA and EWR). Continental takes no position on whether reliefshould be extended to carriers at PHL. JetBlue maintains that Options 3 and 4 do not go far enough in relieving carriers at JFK from potential unforeseen and unintended adverse circumstances. JetBlue states that it would not dismiss Option 4; however, it argues that Option 4 leaves carriers with uncertainty as to when and how the rule will be applied, and leaves the application ofthe rule tojudgment after the fact. JetBlue argues further that any exemption issued bythe Department should apply to both domestic and international flights. JetBlue argues that the three hour rule already exempts foreign air carriers, and that it is impractical for a carrier such as JetBlue to use different tannac delay limits for its domestic and international flights. JetBlue argues that the onlyrealistic way

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to put U.S. carriers on an equal footing with foreign air carriers is to exemptboth domestic and international flights while the BayRunway is closed. American argues that while it does not oppose reliefat other airports, such as EWR, LGA, and PHL, the Department's first priority should be to address the operational disruption that is widely anticipated will result from the runway closure and construction at JFK during the peak summer travel period into November. American states that at a minimum, the Department should grant a temporary exemption for operations at JFKbyraising the three-hour limit to four hours for the period April 29, 2010, through November 15,2010. Inaddition, American maintains that the Department shouldrecommend to the Aviation Enforcement Office that it take into account the special circumstances at JFK as well as unexpectedbad weather in deciding whetherto pursue a case against a carrier for a lengthytarmac delay incident at JFK. Inits supplemental comments, Continental continues to assert that all three New York metropolitan airports share airspace and arrival and departure corridors, and delays or delay mitigating strategies at JFKwill adversely affect air carriers and passengers at EWR and LGA. Continental argues that the Departmenthas long treated the New YorkINew Jersey airports as a single point, and states that ifreliefis granted to any carrier at anyNew York area airport, all carriers at all New York area airports should receive the same relief. Similarly, US Airways continues to argue that the Philadelphia-New York City airspace is an intertwined web, with components that cannot be considered in isolation, and maintains that action at one airport creates ripple effects throughout the NY 

### INJ/PHL airspace. US Airways supports the grant ofwaivers to carriers operating at airports in the NY

### INJ/PHL airspace, but argues that waivers must eitherbe granted ordenied to all carriers as a whole. US Airways argues that granting an exemption to only certain airports or carriers would be contraryto- 7 - accepted existingpractice, and would provide an unfair advantage to certain operators at the expense ofothers. US Airways maintains that fundamental fairness dictates that the Department treat all carriers equally and provide a level playing field, regardless ofthe Department's decision to grant or deny the requested exemptions. United Airlines (United) states that it takes no position on whetherthe Department should grant exemptions from the tarmac delayrule at any or all ofthe airports for which exemptions have been sought. However, United also urges the Department to extend the same relief, ifany, to all carriers at a given airport, notjustto carriers that have formal exemptionrequests pending. United argues that the problems caused byrunway closures, particularlywhen combined with adverse weatherconditions, will affect all carriers operating at an airport, including those operating a limited number offlights, and opposes any selective reliefat any given airport. In addition, while United maintains that it also takes no position withregard to Option 4, it states that ifthe Departmentwere to adopt this approach, such enforcement policy guidance should not be limited to the instant case, but made applicable to any future case where the temporary closures ofany airport movement area, whether due to ongoing construction orother causes, could lead to or exacerbate airside congestion and delays in flight operations, especiallyduring adverse weather conditions. Spirit Airlines (Spirit) supports a blanket exemption from the tarmac delay rules for all carriers operating at JFK, LGA, and EWR. Spirit argues that requiring carriers to complywith the new rules during the closure and construction ofthe BayRunway likely will exacerbate the already difficult situation at JFKbynecessitating flight cancellation due to long taxi-out and taxi-in times caused bythe construction, as well the possibilityofflight crew exceeding legally permitted crew time and increased operational difficulties for airports. Spirit argues that it and- 8

- other small carriers with few flights will face unique operational challenges because flight cancellationsby such carriers will make it difficult for passengers to reach their destinations. Spirit maintains that, unlike legacy carriers that have many slots and can cut back schedules during peak constructionperiods, Spirit, with only a few flights, is not in a position to scale back service. Spirit argues that granting the requested reliefwill not encourage carriers to ignore the intent ofthe rules, butrather will provide flexibility to carriers inborderline delay situations in orderto mitigate potential harm to consumers when facing extraordinary adverse conditions resulting from runway closure and construction. In addition, Spirit argues that Option 3 would notbe an effective wayto alleviate the problems associated withthe runwayreconstruction, and argues that enforcement should notbe left to the discretion ofthe Aviation Enforcement Office. The Air Carrier Association ofAmerica (ACAA) asserts that all carriers operating at JFK, LGA, EWR, and PHL should receive equal relieffrom the tarmac delayrule. The ACAA argues that ifthe Department approves tarmac delay exemptions for carriers operating at these airports, it should waive the tarmac delayrequirements for all carriers at JFK, LGA, EWR, and PHL and for all carriers at any other airport where an exemption from the tarmac delayrule is granted. In addition, ACAA suggests that the Department also look into the impact that significant delays at JFK, LGA, EWR, and PHLwill have on other airports in the New York

- Philadelphia area and on airports in otherparts ofthe country. The Port Authority supports Option 4, stating that the Department should denythe blanket requests and that the Aviation Enforcement Office should considerthe runway closure together with the unexpected circumstances such as weatherconditions that would preclude full

use ofthe remaining JFKrunways in deciding whether to pursue an enforcement case against a given carrier. The Port Authority states that because airline schedules have alreadybeen reduced

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- and use-or-Iose penalties for schedule reductions at JFKhave been suspended bythe FAAwith the support ofthe Port Authority, important passengerprotections should not be waived on a wholesale basis because ofthe BayRunwayreconstruction. Comments were also submittedbythe CityofPhiladelphia (Philadelphia), the owner and operator ofPHL. Philadelphia agrees with Continental's comment that delays and delay mitigation strategies at one New York Area airport adversely affect and inconvenience air carriers and passengers at otherNew York Area airports. Philadelphia states that at certain times, the efficiencyofaircraft operations at PHL is closely tied to that ofthose at EWR, JFK, and LGA. Philadelphia argues that exemption from the application ofthe tarmac delays rules for carriers at onlyone selectedmajor airport within the New York AirRoute Traffic Control Center (New York ARTCC) wouldbe fundamentally unfair and provide a competitive and operational advantage for operations at those selected points. Philadelphia states that each ofthe airports are subjected to the same airspace, shared departure and arrival routes and common control bythe New York ARTCC, and their interdependence ofoperations dictates that theybetreated in a similar and fair manner. Philadelphia states that it does not wish to opine onthe four options proposed bythe Department, butbelieves that equal treatment ofairports and the carriers operating at these airports shouldbe paramount in the Department's ultimate decision. Philadelphia argues that, should the Department grant the individual or collective requests of carriers for exemptions from the tarmac delays rules at JFK, EWR and LGA, fundamental fairness and the public interest dictate that carriers operating at PHL be similarly exempted. Comments were also submitted to the Department byU.S. Senators Barbara Boxer and OlympiaJ. Snowe. In ajoint submission, they argue that granting the requested exemptions is unnecessary and would undermine important consumerprotections for the flying pUblic. They- 10- further contend that the exemptionrequested bythese airlines would render the rule ineffective and maintain an unacceptable status quo. They state that, while the requested exemption may appear to be targeted toward the closure ofJFK's main runway, allowing an exemptionwould create a dangerous precedent. Theyreason that construction and otherdisruptions at airports frequently cause minor delays throughout America's airports, and that nothing exceptional or unexpected exists about this particularcase that warrants a blanket exemption. Theymaintain that, in the ordinary course, airlines modify flight schedules to account for construction and other disruptions, and this time should be no different. They argue that it has been clear for a decade that airlines refuse to hold themselves accountable to the voluntary standards they agreed to and that Federal action to compel airlines to recognize passengers' rights is not only long overdue, butthe onlymeans available to ensure these rights are protected. In additional comments, FlyersRights.org argues that the petitioning airlines are trying to nullify the three hourrule so they can continue to over-schedule flights at congested airports without risk ofpenalty. FlyersRights.org argues that the petitioning carriers are seeking regulatoryrelieffrom the consequences oftheir chronic over-scheduling ofdaily flights in

excess ofrunway capacity. The organization states that when airport capacity is temporarily reduced due to runway construction, carrier schedules must be reduced and carriers must use larger aircraft to make up the difference for the reduction in the frequency offlights. FlyersRights.org maintains that over-scheduling exists because the FAAhas not required the airlines serving JFK to reduce their scheduled operations at that airport to avoid multi-hour departure delays before takeoffduring the BayRunwayreconstruction period, and that a grant of the exemption requests would set a bad precedent. FlyersRights.org argues that the Department has existing regulatory authorityto considermitigating factors in deciding whetherto pursue an- 11

- enforcement case where a violation ofthe three hourrule exists, and to negotiate the amount of any civil penalty. Therefore, FlyersRights.org argues no exemptions should be granted. Approximately 125 individuals submitted comments onthe carriers' requests for exemption. All but two ofthese consumers oppose the carriers' requests for an exemption from the three hourtarmac delayrule. Many consumers who oppose the carriers' requests support the position taken byFlyersRights.org, and manyargue that the government must step in to protect the public because airlines too often mistreat and take advantage oftheircustomers. One commenter, who supports the carriers' request for an exemption, argues that management science supports not havingthe tarmac delayrule at all, and that the rule regarding fines for three hourtarmac delays maynegatively impact the flying pUblic. The commenter suggests that the Departmentrevoke the option ofimposing a fine from its final ruling. Decision After carefullytaking into account all ofthe information available to us at this time and fully considering the comments we received, the Department finds that inadequatejustification exists for granting JetBlue, Delta, American, Continental, and US Airways the requested exemption from the tarmac delayrequirements in 14 CFR §§ 259.4(b)(1) and (b)(2) for their operations at JFK, LGA, EWR, and PHL airports, during the period oftime that work affecting JFK's BayRunway is scheduled to take place, oruntil work on that runway is complete. In these exemptionrequests, it was incumbent on the petitioners to demonstrate that the requested actions are necessary and in the public interest. Theyhave failed to meet this burden and we are not convinced that it is in the public interest to grant the carriers the requested exemptions from the requirements of 14 CFR §§ 259.4(b)(1) and (b)(2).- 12

- JetBlue maintains in its petition and the otherpetitioning carriers appearto agree that granting relieffrom 14 CFR 

### § § 259.4(b)(1) and (b)(2) is critical so that the purpose ofthe tarmac delayrule

- enhancing passengerprotections

- is not underminedbyunforeseen circumstances. JetBlue argues that a rigid and inflexible application ofthe rule will cause carriers to cancel flights rather than risk substantial penalties to the detriment ofpassengers who want to reach their destinations. We find this argument flawed and unpersuasive. JetBlue's argument suggests that it would better serve the public interest to hobble the veryprotections that the tarmac delayrule affords consumers bypermitting carriers to force passengers to remain on an aircraft for more than three hours (as opposed to giving consumers the option to deplane after three hours, or permitting them to choose some other form oftransportation, ornot to travel at all). We strongly disagree. We cannot lose sight ofthe fact that passengers on flights delayed onthe tarmac have

a right to know that theywill notbe "heldhostage" for an unreasonable length oftime onthe tarmac.Itis also important to note that the Department's Federal Aviation Administration (FAA) predicts that the delays resulting from the runway closure at JFKwill beworkable, i.e., similarto those seen during peak summermonths. The FAA expects that flights can bererouted or rescheduled in a waythat will allow the otherthree runways to absorb the extra traffic. Airlines have alreadytaken steps to adjust their schedules and operations to help mitigate the expected delays and they should further adjust them, ifnecessary. We believe that the concerns raised by the petitioning carriers canbe resolved through further adjustment ofschedules as appropriate, and that the public interest would bebetter served bykeeping the full protections ofthe tarmac delayrule in place. In addition, we note that since 14 CFR § 259.4(b)(2) permits U.S. carriers- 13

- to establish any tannac delay limit for their international flights that they choose, we believe there is no substantial reason to grant an exemption from this provision ofthe rule. Moreover, while in the event ofaviolation, as always, the Department's Aviation Enforcement Office will consider a numberoffactors including, for example, the hann to consumers caused bythe violation and the specific impact ofthe runway closure in detennining whetherto pursue an enforcement case and the civil penalty it would seek in such an enforcementproceeding, it is incumbent oncarriers to adjust their schedules to reflect the reality ofthe runway construction. Therefore, based on the foregoing, we find that granting the requested exemption from the tannac delayrule is not in the public interest, and we denythe requests ofJetBlue, Delta, American, Continental, and US Airways, for an exemption from the requirements of14 CFR §§ 259.4(b)(I) and (b)(2) for their operations at JFK, LGA, EWR, and PHL airports, during the period oftime that work affecting JFK's Runway 13R/31L is scheduled to take place, oruntil work on that runway is complete.

ISSUED THIS 22 DAY OF APRIL

ay LaHood SecretaryofTra