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, 2010
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 

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 late 
3

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, 2010 
5

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 of 
6

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