BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

) IN THE MATTER OF: ) ) FINAL RULE ) ENHANCING AIRLINE ) Docket No. DOT-OST-2007-0022 PASSENGER PROTECTIONS ) )

REQUEST FOR AN EXEMPTION

Communications with respect to this document should be addressed to:

Jim Hnat Executive Vice President, Corporate Affairs, General Counsel & Corporate Secretary

Robert Land Senior Vice President for Government Affairs & Associate General Counsel

Joanna Geraghty Vice President & Associate General Counsel

JetBlue Airways Corporation 118-29 Queens Boulevard Forest Hills, NY 11375 (718) 709-3089 joanna.geraghty@jetblue.com robert.land@jetblue.com

March 4, 2010BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

) IN THE MATTER OF: ) ) FINAL RULE ) ENHANCING AIRLINE ) Docket No. DOT-OST-2007-0022 PASSENGER PROTECTIONS ) )

REQUEST FOR AN EXEMPTION

JetBlue Airways Corporation (“JetBlue”) submits this request for an exemption from the requirements of 14 C.F.R. § 259.4. 1 JetBlue requests this exemption for the time period that operations at John F. Kennedy International Airport (“JFK”) are disrupted by the closure of the main runway at that airport. Specifically, JetBlue requests relief from 14 C.F.R. §§ 259.4(b)(1) and (b)(2) to the extent that those sections require JetBlue to “comply and adhere to” a contingency plan pursuant to which JetBlue will not permit an aircraft to remain on the tarmac for more than three hours or, in the case of international flights, for a determined period of time. 2 JetBlue will inform passengers before boarding that significant delays may be encountered because of the Bay Runway closing and will ensure that each of its aircraft is stocked with sufficient food and beverages to accommodate any such delay. In addition, lavatories will be available and LiveTV will be provided to passengers on each aircraft. Although JetBlue has already taken several steps to minimize the impact of this closure on its JFK operations, including a voluntary and significant reduction in planned flight operations and implementing guidelines for passenger comfort and convenience in such situations that are more stringent than current law, this exemption is necessary to ensure that JetBlue is not penalized if JFK becomes gridlocked at peak operating times.

1. Background of Final Rule and Exceptions

On December 30, 2009, “in response to the many instances when passengers have been subject to delays on the airport tarmac for lengthy periods and also in response to the high incidence of flight delays and other consumer problems,” the United States Department of Transportation (“Department” or “DOT”) published its Final Rule Enhancing Airline Passenger Protections in the Federal Register (“Final Rule”), with an effective date of April 29, 2010. See

1 JetBlue’s Request for an Exemption applies to the newly enacted Part 259 which will take effect on April 29, 2010.
2 JetBlue requests this exemption for the time period during which Runway 13R-31L (“Bay Runway”) at JFK will be closed for construction. At present, this time period is estimated to be through November 2010.2 74 Fed. Reg. 68983. The Final Rule sets forth several protections designed to mitigate the effect of tarmac delays, defined as holding an aircraft on the ground before takeoff or after landing with no opportunity for its passengers to deplane. See 14 C.F.R. § 259.3(f). Under the Final Rule, carriers are required to adopt, implement, and adhere to a contingency plan as follows:

(a) Adoption of Plan . Each covered carrier shall adopt a Contingency Plan for Lengthy Tarmac Delays for its scheduled and public charter flights at each large and medium hub U.S. airport at which it operates such air service and shall adhere to its plan’s terms.

(b) Contents of Plan . Each Contingency Plan for Lengthy Tarmac Delays shall include, at a minimum, the following:

(1) for domestic flights, assurance that the air carrier will not permit an aircraft to remain on the tarmac for more than three hours unless . . . (2) for international flights that depart from or arrive at a U.S. airport, assurance that the air carrier will not permit an aircraft to remain on the tarmac at a large or medium hub U.S. airport for more than a set number of hours, as determined by the carrier and set out in its contingency plan, before allowing passengers to deplane . . . .

14 C.F.R. §§ 259.4(a), (b)(1), (b)(2).

Although the Final Rule provides certain exceptions to the foregoing requirements for safety, security, or an order by Air Traffic Control (“ATC”) ( see 14 C.F.R. § 259.4(b)), it does not provide an exception for periods during which an entire airport may be under significant construction and renovation. The Final Rule also omits any discussion of the root cause of nearly every such tarmac delay – the inability of the ATC system to process in a timely manner scheduled flights in the busiest transportation market in the nation, New York City – a market which is now slot controlled, thereby operating at the level at which the Department has determined it can safely and efficiently process scheduled flights. See generally Status of Aviation Rulemaking Committee’s 77 Initiatives for Reducing Delays in the New York Area, Federal Aviation Administration Report No. AV-2010-0003 (Oct. 21, 2009), attached as Exhibit A

. JetBlue believes that it is imperative for the Department to issue an exemption for the JFK Runway Closure to ensure that the very purpose of the rule – to enhance passenger protections – is not undermined by the application of the Final Rule to unforeseen and unaddressed circumstances. 3 Accordingly, JetBlue urges the Department to grant this request for an exemption.

3 Disruptive events such as airport construction often have a significant, domino-like impact upon multiple flights because the interconnecting resources required for each flight – aircraft, cockpit crew and flight attendant crew – each may compound the problem. One late3 2. Background of JFK Bay Runway Closure

JFK has seven operating airline terminals. “One third of the Nation’s air traffic goes in, out, or over New York airspace every day – accounting for-three quarters of all chronic airline delays.” See The Port Authority of New York and New Jersey, December 2009 Traffic Report

, attached as Exhibit B . More than 125 aircraft gates serve these terminals. In 2009, JFK accommodated over 47 million enplanements, making it the one of the busiest airports in the nation. Id. During that time, JetBlue served approximately 42% of all JFK passengers:

JFK is served by four runways. According to the Current Pavement Condition Index and RSA, the Bay Runway requires rehabilitation. The Bay Runway is the second longest commercial landing strip in the country. It handles 41% of JFK’s total traffic . It is the preferred east-west runway, and the impact of its complete closure cannot be discounted. According to the construction schedule, the Port Authority of New York and New Jersey (“PANYNJ”) anticipates that the Bay Runway will be closed for a 120-day period in the Spring and Summer of 2010.

flight may delay three additional flights if the resources connect differently, and two or more late flights may delay several more flights. Once the Final Rule takes effect, the potential for disruption will be further compounded because at the three-hour mark, flights must return to the gate and offer passengers the opportunity to deplane, thereby further delaying that flight (if not resulting in a cancellation). Such incidents will have a subsequent ripple effect on the following flights that require use of the same aircraft, cockpit crew or flight attendant crew.4 The proposed construction schedule comprises six phases, begun earlier this week, which are set out below:

1. Present

2. March 1, 2010-June 30, 2010

3. July 1, 2010-September 15, 20105 4. September 16, 2010-September 29-2010

5. September 30, 2010-November 15, 2010

6. November 16, 2010

The Federal Aviation Administration (“FAA”) anticipates that the arrival rates at JFK will be reduced due to runway unavailability while the Bay Runway is under construction. See Order Limiting Scheduled Operations at John F. Kennedy International (released Oct. 6, 2009), attached as Exhibit C . In addition, large and long haul aircraft will be further affected due to operational complexity and required separation rules that apply to their usage. In the case of6 strong easterly or westerly winds, planes would be left with only one runway option for both take offs and landings thereby increasing the likelihood of significant delays.

Although the FAA, PANYNJ and air carriers are working together to mitigate the anticipated effects of the Bay Runway closure on operations at JFK (including delaying the starts of busier summer schedules until July 1, 2010, rerouting flights and adhering to surface ground metering), JetBlue expects significant delays from the Bay Runway closure. The Final Rule will further compound these delays and their effect on carriers. As the FAA has acknowledged, “NY airports continue to face challenges, with nearly 36 percent of all flights delayed or cancelled in the first 6 months of 2009.” See Exhibit A at 1. For example, in 2009, the airport authority at Minneapolis St-Paul International Airport (“MSP”) closed one runway for renovation. Despite significant flight reductions and the closing of the runway during the less-busy late summer/early fall off-peak period, the resulting delays were significant. Since delays at JFK impact the entire national airspace system ( see Exhibit A ) and therefore will likely have an even greater impact on flights than the impact caused by the runway closure at MSP, JetBlue strongly urges the Department to issue it an exemption to the Final Rule during the Bay Runway closure period.

Acknowledging the significant disruptive impact the Bay Runway closure will have at JFK, on October 6, 2009, the FAA issued a temporary waiver of the minimum usage requirements for the Operating Authorizations at JFK from March 1, 2010 through November 14, 2010. Specifically, the FAA determined that “the projected operational, congestion, and delay impacts of the 2010 runway and airfield construction program meet the requirements for a temporary waiver of the minimum usage requirements.” Exhibit C at 3. In granting this waiver, the FAA expressly recognized that the public interest supports a reduction in operations in order to minimize delays and improve on-time performance. Id. at 4.

3. Requested Relief

JetBlue acknowledges and applauds the Department’s efforts to ensure that passengers are not stranded on tarmacs for extended periods of time. Since early 2007, JetBlue has had the industry leading Customer Bill of Rights, pursuant to which it issues compensation to passengers who experience long onboard tarmac delays on JetBlue’s flights. JetBlue’s Customer Bill of Rights includes guidelines for passenger comfort and convenience in such situations that are more stringent than legally required. In addition, JetBlue’s Operations Manager on Duty monitors aircraft on the tarmac at JFK at all times and uses JFK’s Aerobahn tool (which creates a visual display of surface movement of aircraft at the airport) to track aircraft movement and location on the tarmac. JetBlue also has a contingency plan in place as a precautionary measure for situations requiring the deplaning of passengers when all gates are occupied at JFK (in Terminal 5, which JetBlue utilizes).

Nevertheless, it is critical that 14 C.F.R. §§ 259.4(a), (b)(1) and (b)(2) do not apply to JetBlue’s operations at JFK during the Bay Runway construction period, as application of those sections during that time would run counter to the intent of those regulations. JetBlue’s request for an exemption from those regulations is not intended to allow it to avert its responsibility under the Final Rule but rather to provide JetBlue with additional flexibility when faced with the extraordinarily adverse conditions expected from the Bay Runway closure.

# EXHIBIT A

# EXHIBIT B

# EXHIBIT C

# EXHIBIT D