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December 13, 2011 

BY U.S. MAIL 

Samuel Podberesky, Esq. 

Assistant General Counsel 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

RE: Enhancing Airline Passenger Protections I and II 

Dockets OST-2007-0022 and OST-2010-0140 

Memorandum October 26, 2011 

Dear Mr. Podberesky: 

Thank you for your response dated October 26, 2011 to our memorandum 

expressing concerns regarding tarmac delay limits for domestic and international 

flights. We have attached your response to our memorandum for your 

convenience. We sincerely appreciate the time taken to review and respond to 

our letter. We felt it imperative to respond on several key points raised. We 

hope that our constructive feedback is helpful to you and the Department. 

First, we note your use of the term "unintended consequences" in your 

response. While the Department may not have intended to inconvenience 

millions of passengers annually stranded by cancelled flights, the consequence 

was predicted long in advance of the rule. In addition to airlines, we filed 

comments during the tarmac rule rulemaking period stating the "havoc that will be 

placed on the flying public by this rule is totally predictable." 

Second, your response states the tarmac rule "has virtually eliminated 

instances on covered carriers from being stuck on the tarmac for hours on end." 

Declaring victory in the face of obvious harm from the tarmac rule is arrogant and 

premature. Such comments demonstrate a fundamental lack of understanding of 

airline operations and how best to serve the consumer. As the October 2011 ontime data show, numerous long tarmac delays still occur, even in the face of 

huge fines. The combination of severe weather, FAA management and 

operational failures, and deficient contingency planning by airports forces an 

4833 Rugby Avenue, Suite 301 • Bethesda, Maryland 20814 

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approach that encourages cooperation, and does not rely on punitive fines on 

airlines to force collaboration by airports, DHS and FAA. 

We are encouraged by initial progress made at the November 30, 2011 

forum led by DOT, but information sharing alone is not nearly enough to address 

the core problems in the tarmac rule. Fundamental change to both the rule itself 

and to enforcement must occur. 

Third, we urge the Department to consult academic and statistical experts 

to understand the methods and results of the GAO study on tarmac delays. The 

GAO report answered the core trade-offs of the tarmac rule. In the main body of 

their report, GAO used non-technical terms to explain the relationship between 

the tarmac rule and flight cancellations in form understandable to Congress and 

policy makers. However, GAO provided full detail on their models and 

methodology in the Appendix to their report. GAO's two models demonstrate, 

beyond a reasonable doubt, a relationship between the rule and elevated 

cancellations that is statistically grounded and isolate the impact of the rule 

versus the myriad factors that also influence cancellations. Your response 

fundamentally misinterprets GAO's work. 

Your position has also been directly challenged by GAO. The GAO report 

criticizes the Department's statements that cancellations have not increased, 

writing that your "analysis is limited" because "it includes only a portion of all 

flights, considers the total number of cancellations instead of the rate of 

cancellation, and does not control for other factors that can affect cancellations." 

Because of this, your estimates and standards do not meet the standards set by 

the Office of Management and Budget. (GAO p31) If DOT disagrees with GAO's 

models and conclusions, all industry stakeholders await a rebuttal that identifies 

failures in GAO's analysis and demonstrates, conclusively, what specific factors 

actually caused the notable increase in flight cancellation rates. 

Fourth, your letter states that we "mistakenly assert that Econometrica is 

not independent" in conducting an independent review of the tarmac rule. We 

respectfully remind you that on Page 6 of the Regulatory Impact Analysis for the 

international tarmac delay rule, Econometrica wrote (emphasis added): 

[An] analysis we recently conducted for the Department 

indicates that while the cancellation rate for domestic flights 

experiencing tarmac delays of 2 1;2 hours or more (the time limit at 

which a decision to return to the gate must typically be made) has 

increased since the EAPP1 Rule requirements took effect, the 

number of cancellations among this cohort of flights has actually 

decreased relative to the number for the same time period in 

previous years ... The impact on cancellations of international flights 

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operated by foreign carriers (for which tarmac delays of 4 hours 

trigger the contingency plan) is also projected to be minimal. 

Econometrica has publicly confirmed its role in supporting and justifying the 

Department's tarmac rule statements. They are not independent. Their 

methodology was defective and criticized by GAO in its report. We encourage 

you to engage neutral parties for the GAO-recommended review. That would be 

both comprehensive and honest. We suggest the Department contact the 

Transportation Research Board and provide them with all materials, exhibits, 

analysis, and models developed in conjunction with Econometrica for external, 

independent validation by neutral academics. 

Fifth, in regards to your comments about introduction of a fifth cancellation 

code related to tarmac events, we are amused that inconsistency in airline 

procedures now stops the Department from collecting data. We have 

commented multiple times on rulemaking dockets this year where the 

Department seeks to standardize reporting procedures across a wide range of 

data. We urge the Department to remain vigilant of airline inconsistencies and 

halt rulemaking that imposes similar burdens on airlines as the fifth cancellation 

code, including ancillary revenue reporting and changes to Part 234 baggage 

metrics. 

Sixth, we note you did not respond to our comments on enforcement. 

Threats of punitive fines cause airlines to cancel more flights than needed to 

avoid even the remotest possibility of a tarmac delay. As GAO has stated, 

airlines operate under the assumption that DOT will prosecute violations of the 

rule on a per-passenger basis. This assumption has been proven correct based 

on DOT's recent consent order with American Eagle Airlines that clearly stated: 

"Because the purpose of section 259.4 is to protect individual 

passengers from being forced to remain on aircraft for more than 3 

hours in the case of domestic flights without the opportunity to 

deplane, the Office of Aviation Enforcement and Proceedings 

(Enforcement Office) takes the position that a separate violation 

occurs for each passenger who is forced to remain on board an 

aircraft ~or longer than the set amount of time without the 

opportunity to deplane. Pursuant to 49 U.S.C. § 46301, violations of 

14 CFR Part 259 or 49 U.S.C. § 41712 subject a carrier to civil 

penalties of up to $27,500 per violation." 

We fully agree that Congress authorized enforcement of 14 CFR Part 259 

under 49 U.S.C. § 46301. Yet 49 USC 46301 (a)(2) states unequivocally that a 

separate violation occurs "for each day" or "if applicable, for each flight involving 

the violation". Neither 49 USC 46301 (a) nor 14 CFR 259.4 discusses violations 

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in a "passenger" context. All references are to a "flight". The Office of Aviation 

Enforcement and Proceedings has pursued enforcement action beyond its 

statutory authority. If you disagree, we welcome a common-sense explanation 

that connects the Enforcement Office's position to specific authority and 

precedent. 

The negative consumer implications of your enforcement actions are 

significant. In September, GAO noted "increases in cancellations may be at least 

partly due to airlines' assumptions about the significant enforcement penalties 

that could result from a violation of the rule." (GAO p59) They note that while your 

office "could issue guidance on their penalty structure" your team "has chosen 

not to in order to maintain flexibility". There is no dispute that flight cancellation 

rates have soared since the rule was effective, and GAO places partial blame on 

your unwillingness to set thorough and unambiguous guidance for airlines. 

Finally, we appreciate your invitation to provide information for your review. 

We are confident that both the Department and Econometrica are familiar with 

our analysis. Secretary LaHood has repeatedly referred to our study findings on 

radio, television and on the Internet. Specifically, he dismissed us by writing we 

had "cooked up a report" demonstrating the rule's impact and then citing, 

incorrectly, our figures showing the impact on flight cancellations. Econometrica 

directly cited our analysis in its RIA for EAPP-2. We recognize that the Office of 

the General Counsel may not have been provided our studies, exhibits and 

supporting materials that were reviewed by the Secretary and by Econometrica. 

If so, all are available at www.tarmaclimits.com. We remain available to answer 

any questions or concerns your office or economic contractors may have. 

Thank you for your consideration. 

Sincerely, 

Darryl Jenkins 

Chairman 

djenkins@ aviationinstitute.org 

Joshua Marks 

Executive Director 

jmarks@aviationinstitute.org 

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U.S. Department 

of Transportation 

Office of the Secretary 

of Transportation 

Darryl Jenkins, Chairman 

Joshua Marks, Executive Director 

American Aviation Institute 

4833 Rugby Avenue, Suite 301 

Bethesda, Maryland 20814 

Dear Mr. Jenkins and Mr. Marks: 

GENERAL COUNSEL 1200 New Jersey Avenue, SE 

Washington, DC 20590 

October 26, 2011 

Secretary LaHood has asked that I respond to your letter of October 3, 2011, concerning 

the impact of the Department's rule prohibiting U.S. airlines operating domestic flights from 

permitting an aircraft to sit on the tarmac for more than three hours without providing passengers 

an opportunity to deplane subject to exceptions for safety, security or Air Traffic Control (ATC) 

related reasons. As you know, this rule has virtually eliminated instances on covered carriers of 

passengers being stuck on the tarmac for hours on end. The Department is also committed to 

monitoring the effects of the tarmac delay rule to ensure that there are no unintended 

consequences and that the benefits of the rule exceed any costs. 

With regard to your contention that an unintended consequence of this rule is a 

significant increase in airline flight cancellation rates, our initial analysis of the effect of the rule 

found no basis to conclude the rule is the cause of increased flight cancellations. The GAO's 

review of the flight cancellations for limited periods before and after the rule became effective 

also did not find a causal effect and recommended that the Department "fully assess the impact 

ofthe tarmac delay rule, including the relationship between the rule and any increase in 

cancellations." The Department has already selected a contractor and has begun work on a 

comprehensive independent review and analysis of the impact ofthe tarmac delay rule. This 

review and analysis needs to be completed to determine how the three hour tarmac delay rule 

affects passengers and whether any modification or clarification of the rule's requirements is 

needed. 

I emphatically disagree with your accusation that the Department is "more interested in 

covering past mistakes and re-hashing defective analysis than openly addressing the impact of 

the rule" because of its selection of Econometrica as the entity to conduct this independent 

review. You mistakenly assert that Econometrica is not independent in this matter as it 

produced the economic analysis accompanying the Department's rule establishing the three hour 

tarmac delay rule. HDR and not Econometrica developed the economic analysis for the three 

hour tarmac delay rule. Also, Econometrica is not using HDR as its subcontractor on this 

project as you allege in your October 3rd letter. 
As for your suggestion that the Department introduce a fifth cancellation code to Airline 

Service Quality Performance (ASQP) reports to track cancellations from the rule, our discussions 

with various large airlines on how they determine whether a cancellation was related to the three 

hour tarmac delay rule has further convinced us that such a code would be of limited use. The 

airlines do not use any objective standard to determine whether a cancellation is a result of the 

tarmac delay rule. Moreover, there are differences not only among airlines but also among 

employees within individual airlines on whether a particular cancellation was a result of the 

tarmac delay rule. 

Finally, I want to personally assure you that we at the Department are acutely aware of 

the importance of conducting a comprehensive and honest analysis of the impact of the threehour tarmac delay rule, and we are working hard to do so. Our review will consider all relevant 

information to assess the rule's impact on flight delays, cancellations, and consumers. To the 

extent you believe you have information that could assist in that review, we invite you to provide 

it to our contractors. 

Sincerely, 

Aviation Enforcement and Proceedings