Exemption Nos. 15867 and 15869

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC 20591

 

In the matter of the petitions of 

 Regulatory Docket Nos.

AMERICAN AIRLINES, INC.

and FAA-2015-3491 

DELTA AIR LINES, INC. FAA-2015-3932

for an exemption from § 93.123(a) 

of Title 14, Code of 

Federal Regulations 

 

GRANT OF EXEMPTION;

DENIAL OF EXEMPTION

On August 11, 2015 and September 15, 2015, American Airlines, Inc. (American) and 

Delta Air Lines, Inc. (Delta), respectively, petitioned the Federal Aviation Administration (FAA) 

for an exemption from § 93.123(a) of Title 14, Code of Federal Regulations (14 C.F.R.) 

permitting the operation of one round trip flight (two slots) for service between Ronald Reagan 

Washington National Airport (DCA) and Lansing Capital Region International Airport (LAN).

The petitioners request relief from the following regulations:

Subparts K and S of 14 C.F.R. part 93 (the High Density Rule or HDR) prescribe special 

air traffic rules for high-density traffic airports, which apply to DCA. Section 93.123(a) 

limits, in relevant part, the number of instrument flight rules (IFR) operations per hour at 

DCA to 37 for air carriers, 11 for commuter carriers and 12 for other operations (such as 

general aviation).

Background

In 2004, pursuant to authority vested in the Secretary of Transportation under 49 U.S.C. 

41718(b),1 the U.S. Department of Transportation (DOT) granted two slot exemptions (AIR-21 

 1 Section 41718 of Title 49 directs the Secretary to grant up to 20 within-perimeter exemptions, 32 beyond perimeter 

exemptions, and two slot slide exemptions per hour from the slot requirements at DCA to allow flights in excess of 

the caps at 14 C.F.R. part 93. See Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), Pub. L. 106-181, Sec. 231 (Apr. 5, 2000), as amended by the Vision 100 – Century of Aviation Reauthorization 

Act of 2003, Pub. L. 108-176 (Vision 100), and FAA Modernization and Reform Act of 2012, Pub. L. 112-95, Sec. 
2

Exemptions) to Midwest Airlines (Midwest) for nonstop service between DCA and Kansas 

City.2 After Republic Airways Holdings, Inc. (the parent company of Republic Airline Inc.) 

acquired Midwest in 2009, Republic Airline Inc. (Republic) informed the Department of its 

intention to use the AIR-21 Exemptions granted to Midwest to continue DCA-Kansas City 

service.

3 DOT subsequently concluded that Midwest “improperly transferred” its AIR-21 

Exemptions to Republic, and withdrew them. DOT then initiated a competitive selection process

to reallocate the AIR-21 Exemptions. Upon conclusion of the competitive selection process, 

DOT issued Order 2010-12-16, which awarded the AIR-21 Exemptions to Sun Country, a new 

entrant at DCA, for daily nonstop service to LAN.4

 

Republic sought judicial review of DOT Order 2010-12-16. In January 2012, the U.S. 

Court of Appeals for the District of Columbia vacated DOT Order 2012-12-16 and ordered the 

AIR-21 Exemptions returned to Republic.5 In light of the D.C. Circuit Court’s ruling and 

because all available AIR-21 exemptions had been allocated, Sun Country petitioned the FAA

for an exemption from 14 C.F.R. part 93 that would allow it to continue service between DCA 

and LAN. 

The FAA may grant exemptions from part 93 when the Administrator determines that an 

exemption is in the public interest and will not adversely affect safety (14 C.F.R. § 11.81). Based 

on the unique and extraordinary circumstances surrounding Sun County’s request for an 

exemption from the FAA, in 2012, the FAA determined that the public interest was served by 

granting Sun Country an exemption to preserve the DCA-LAN service, which Sun Country had 

obtained as a new entrant at DCA.

6 Moreover, Sun Country would have lost its only access at 

DCA suffering undue harm for relying on the original DOT exemption, but for the relief 

provided under the FAA exemption. Although FAA exemptions generally are not route- or 

market-specific, the FAA found that an exemption for the DCA-LAN service was in the public 

interest because “the loss of Sun Country’s DCA-LAN service [due to the Republic Airlines 

decision] could detrimentally impact the travelling public.”7 In addition, the FAA found that an 

exemption would serve the public interest of preserving existing service at DCA;8 and that “the 

 

414 (Feb. 14, 2012). Exemptions from the Secretary must be allocated to carriers through a competitive process. If a 

carrier no longer operates the service for which the Secretary awarded exemptions, the Secretary reallocates the 

exemptions in a new competitive proceeding.

2 DOT Order 2004-4-2 (Apr. 1, 2004). 3 See DOT Order 2010-12-16 (Dec. 10, 2010) (discussing the facts surrounding Republic’s AIR-21 Exemptions 

under 49 U.S.C. 41718). 4 DOT Order 2010-12-16 (Dec. 10, 2010). Sun Country began round-trip operations between DCA and LAN 

pursuant to its AIR-21 Exemptions on April 1, 2011. 5 Republic Airlines, Inc. v. U.S. Dep’t of Transp., 669 F.3d 296 (D.C. Cir. 2012). After the Republic Airlines 

decision, DOT restored Republic’s AIR-21 Exemptions. DOT Order 2012-3-8 (Mar. 13, 2012). Republic 

surrendered its AIR 21 Exemptions in 2014, and DOT subsequently reallocated them to Southwest Airlines Co. 

DOT Order 2014-12-10 (Dec. 15, 2014). 6 FAA Exemption No. 10466. 7 Id.

8 Id.
3

flying public reasonably relied on continued DCA-LAN service.”9 Thus, by FAA Exemption No. 

10466, the FAA granted an exemption to Sun County specifically for the continuation of the 

nonstop DCA-LAN scheduled service permitted under DOT Order 2010-12-16. FAA Exemption 

No. 10466 stated that the exemption “will be rescinded if Sun County discontinues scheduled 

operations” at DCA. 

In 2014, upon petition by Sun Country, the FAA extended FAA Exemption No. 10466

through March 31, 2019, permitting the continuation of the DCA-LAN flight for an additional 

five years.10 On May 1, 2015, however, Sun Country notified FAA of its intent to cease its DCALAN service, and surrender the exemption on November 16, 2015. Sun Country discontinued 

service under the exemption effective October 1, 2015. Consequently, by its terms, FAA 

Exemption No. 10466, as extended by FAA Exemption No. 10466A, expired. 

On August 11, 2015 and September 15, 2015, respectively, American and Delta 

submitted petitions to the FAA for an exemption from part 93 to operate one nonstop round trip 

between DCA and LAN. At this time, all AIR-21 Exemptions are allocated to carriers; 

consequently, these petitions are being sought solely on the basis of the FAA’s exemption 

authority. 

The FAA published a summary of American’s and Delta’s petitions for comment in the 

Federal Register. See 80 Fed. Reg. 52359 (Aug. 28, 2015) and 80 Fed. Reg. 58529 (Sept. 29, 

2015). The comment period for American’s and Delta’s petitions closed on September 17, 2015 

and October 19, 2015, respectively. The FAA received 187 comments on American’s and two

comments on Delta’s petition.11 

The petitioners support their requests with the following information:

American’s Petition

American petitioned the FAA for an exemption to continue nonstop service between 

DCA and LAN, like that operated by Sun Country pursuant to Exemption No. 10466A.12

American indicated that its proposed service would provide even greater benefits to the MidMichigan community than that provided by Sun Country because American has the flexibility to 

add larger aircraft into the market as American recaptures LAN traffic using other airports and 

would work with the FAA to facilitate necessary trades in order to offer more convenient times 

for business travelers.13 American also pledged that it would initiate service between LAN and

 9 Id.

10 FAA Exemption No. 10466A. 11 The FAA notes that some comments were posted to the dockets for both petitions after the close of the comment 

period. The FAA has considered all comments submitted, including late-filed comments, in arriving at this decision. 12 American cites several historical FAA regulatory exemption decisions, as well as statutory exemption decisions 

and other related actions taken by DOT in support of its position. 13 American’s petition indicates it would begin service using a Bombardier CRJ-700 aircraft offering 67 seats.
4

Chicago O’Hare International Airport (ORD) if it is granted the DCA exemption it seeks.

American pointed out that Delta maintains a fairly dominant position in Michigan and that 

American would provide “new competition” for the state and region. 

In further support of its request, American asserted that its proposal offered the same 

benefits to the Mid-Michigan community as identified by the Department in support of its 

decision to grant Sun Country the AIR-21 Exemptions, and, also, that supported the FAA’s 

decision to maintain Sun Country’s access to DCA pursuant to an exemption after the D.C. 

Circuit’s decision in Republic Airlines. American contended an exemption would generate 

significant benefit in the public interest and that “[i]t would be unfair and greatly injurious to its 

economy if Mid-Michigan were to lose a service first awarded to...Sun Country by the DOT

over four years ago.” American also noted its service proposal would “maintain[] the only 

[nonstop] service Mid-Michigan has to [any of] the three airports in the Washington, DC region; 

. . .; and, allow[] the Mid-Michigan region to continue to rely upon service it has supported for 

the past four years.” Moreover, American noted that there would be no net increase in operations 

at DCA if the relief requested is granted, and an exemption would not adversely affect aviation 

safety. 

American requested that the FAA either grant them a new exemption or amend FAA 

Exemption No. 10466A to substitute American for Sun Country. American also asked that the 

FAA grant American’s request for an exemption by September 10, 2015 or grant it pendente lite

(i.e. temporary) authority that would enable American to begin service as soon as possible after 

Sun Country’s cessation of service while the FAA considered its application.

Delta’s Petition

Although Delta questioned whether “the exemption relief granted by FAA to Sun 

Country as a new entrant at DCA is available to DCA incumbents,” Delta similarly petitioned the 

FAA for an exemption that would permit it or its “Delta Connection” partners to provide nonstop 

DCA-LAN service. Delta asserted that “[t]o the extent FAA is willing to consider such 

applications, Delta would be the superior public interest choice.” Delta “urge[d] the FAA, in 

conjunction with [DOT], to establish a carrier selection case for the allocation of this DCA 

capacity, should it be available.”

In support of its petition, Delta stated that “due to its limited slot holdings...it cannot 

commence Lansing services without unacceptable harm to its current DCA network” and 

because “Delta and its partners operate 49 daily departures at DCA, compared to 235 for 

American..., Delta is in much greater need of exemption authority than American....” Delta 

noted that it “has a strong commitment to Lansing...” and its “proposal provides well-timed 

services to meet the needs of DCA-Lansing travelers.” Delta also contended that “unlike 

American, virtually 100 percent of Delta’s DCA-LAN capacity will be dedicated to local 

passengers who reap the most important benefits of nonstop service.” Delta included a service 

proposal for use of the slot authority, should an exemption be available.
5

Comments on American’s and Delta’s Petition14

All of the commenters except one (JetBlue) supported the continuation of the DCA-LAN 

service initiated through the AIR-21 Exemptions and continued by the FAA exemption. JetBlue 

Airways Corporation (JetBlue) was the only air carrier to submit an answer to both American’s 

and Delta’s petitions for relief, and opposed both petitions. Delta and American also each 

submitted comments opposing the other’s petition. The Lansing Regional Chamber of 

Commerce characterized the loss of nonstop service between LAN and DCA as “a serious blow”

to the greater Lansing business community. The City of Lansing’s Mayor, Virg Bernero, 

commented that “[i]t is critical that our government leaders, employers and workforce have easy 

and direct access to the nation’s capital.” The Capital Region Airport Authority (CRAA) 

emphasized that “[d]efined [c]ommunity [n]eed” was the basis for DOT’s original award of Sun 

Country’s statutory slot exemption for service to LAN. The CRAA stated that “the loss of airport 

revenue from the Sun Country service to DCA, is creating a significant financial challenge” for 

the airport and the related “loss of airline competition out of Lansing is predicted to greatly 

increase air fares out of Lansing to DC...further reducing [LAN] use and [LAN] revenues.”

Of the comments submitted in response to American’s and Delta’s petitions, the 

overwhelming majority expressed strong support for American. The CRAA requested the 

immediate “approval of the continuation of the LAN-DCA service as proposed by American.”

The CRAA also commissioned and submitted a study by Trillion Aviation, Inc. analyzing 

American’s and Delta’s proposals’ relative benefits to the Mid-Michigan travelling public. The 

study concluded that American’s proposal for LAN service provided the greatest benefit to the 

Lansing area.

15 Additionally, the Lansing Regional Chamber of Commerce fully supported 

American’s proposal, allowing continuation of service to one of the top destinations for air travel 

in the Mid-Michigan business community. Several Mid-Michigan businesses, including PNC 

Bank, Caddis Insurance Service, and the Farm Bureau Insurance of Michigan, supported

increased service offerings at LAN, stating their belief that American’s service proposal would

offer an “improved schedule for those travelers who wish to make the DCA round trip in one 

day.” 

Delta and JetBlue opposed American’s petition based, in large part, on American’s 

already dominant position at DCA and on the unique circumstances of the FAA’s decision to 

 14 Comments were submitted by private businesses in the Mid-Michigan region; Michigan governmental and 

educational institutions; the Capital Region Airport Authority and other airport operators in Michigan; city, state and 

federal officials, including United States Senator Gary Peters (D – Michigan) and United States Representatives 

Michael Bishop (R – 8th District of Michigan), Tim Walberg (R – 7th District of Michigan), and John Moolenaar (R 

– 4th District of Michigan); and 133 individuals. One comment included a petition with over 1,000 signatures in 

support of American’s petition. 

15 Among the aspects of the service proposals considered in calculating the economic benefits was American’s offer 

to operate “almost 4x as many seats [as Delta], offering service to [two] hubs,” specifically DCA and ORD. See

Trillion Aviation, Inc. LAN-DCA Route Analysis: American Airlines vs. Delta Air Lines Proposals (September 18, 

2015) available at http://www.regulations.gov/#!documentDetail;D=FAA-2015-3491-0208.
6

grant Sun Country’s exemption. Delta questioned whether providing such exemption relief to 

large DCA incumbent carriers would be in the public interest. JetBlue also suggested that an 

exemption for American to operate LAN-DCA service would deviate from FAA precedent, 

which only involved exemptions for carriers that lost slots due to circumstances beyond the

carriers’ control. JetBlue further stated that “Delta has recently sold some slots at DCA,” and yet 

it remains “the second largest carrier at DCA.” Therefore, from JetBlue’s perspective, both 

American and Delta have adequate slot holdings to operate LAN-DCA service without the 

FAA’s grant of an exemption. In its response, American generally asserted that FAA’s sole 

concern should be the need to preserve the established air service for the travelling public of 

Mid-Michigan, and noted that the public would also benefit from increased competition at LAN. 

With respect to comments that American has sufficient slot holdings at DCA to establish service 

to LAN without an exemption, American replied that “[i]ncumbency does not reflect the 

availability of a slot.” 

JetBlue and American commented on Delta’s petition. JetBlue opposed Delta’s petition

for the same reasons cited in its comments opposing the American petition. American reiterated 

that its proposal for service would provide the greatest benefit to the traveling public. The MidMichigan Business Travel Coalition also commented on Delta’s proposal to express their 

preference for the service proposed by American, while noting that they appreciate Delta’s 

commitment to the Lansing community and indicated their interest in working with Delta to 

expand Delta’s service offerings at LAN.

The FAA's analysis is as follows:

Both American and Delta petitioned the FAA for an exemption from 14 C.F.R. part 93 

for nonstop DCA-LAN service. We note that, by its terms, FAA Exemption No. 10466A expired 

when Sun Country ceased operation of its DCA-LAN service. FAA Exemption No. 10466A was 

not transferable16 and the operations authorized by the exemption are not part of the pool of 

permanent slots available at DCA. Therefore, to the extent that either American or Delta has 

petitioned to be substituted as the exemption holder in FAA Exemption No. 10466A and assume 

the terms of FAA Exemption No. 10466A, the relief requested is not available. 

American also requested that the FAA grant pendente lite authority to allow it to 

temporarily operate DCA-LAN service until the FAA decided its petition for exemption. The 

FAA has not historically granted such authority. Generally (consistent with 14 C.F.R. part 11 and 

subject to certain exceptions), the FAA publishes petitions for exemption in the Federal Register

and considers all comments submitted before arriving at a decision. 14 C.F.R. §§ 11.85-11.87.

 16 Delta’s opposition to American’s petition acknowledged this outcome when it noted that FAA Exemption No. 

10466A was specific to Sun Country. 
7

Public Interest

Petitioners seeking an exemption from the FAA must show (1) why granting the request 

would be in the public interest and (2) why granting the request would not adversely affect safety 

or would provide an equivalent level of safety.17 Safety generally is not at issue in FAA 

exemptions from part 93, because air traffic control procedures ensure the safety of operations 

conducted at the airport within the context of the total number of operations authorized.

As an initial matter, given the unique circumstances surrounding the DCA-LAN service 

at issue in these exemption petitions, the FAA finds granting an exemption to American for 

DCA-LAN service is in the public interest. The FAA generally does not consider service to 

particular markets in its slot decision-making,18 and prior exemption decisions have refrained

from finding that benefits that may accrue to a particular community from the operation of a 

specific route qualify as the “public interest.”19 The history of this particular service, however, is 

extraordinary. The unusual circumstances surrounding Mid-Michigan’s gain, and subsequent 

loss by D.C. Circuit Court decision, of the only nonstop access to the Washington, D.C. area

from LAN factored into the FAA’s finding20 that FAA Exemption No. 10466 was in the public

interest, in part, because of the travelling public’s reliance on the service and the harm to the 

travelling public that could result from its cessation.21

With respect to the petitions before us, the FAA finds that granting an exemption to 

American to reinstate the DCA-LAN service is in the public interest consistent with the original 

rationale for FAA Exemption No. 10466 granted to Sun Country. The travelling public has come 

to rely on the DCA-LAN service and an exemption will mitigate hardship on the travelling 

public resulting from Sun Country’s cessation of its DCA-LAN service that the community had 

expected to continue until 2019. See FAA Exemption No. 10466 (granting an exemption to 

prevent a “detrimental impact [on] the travelling public”). Furthermore, a grant of an exemption 

will not increase operations at DCA above the level that existed prior to Sun Country’s cessation 

of its DCA-LAN service.

 17 14 C.F.R. § 11.81. 18 See FAA Exemption No. 7370 (noting that FAA does not consider marketplace when allocating permanent slots, 

except as needed for Essential Air Service).

19 See e.g., FAA Exemption No. 8112, 8139, and 8589. 20 See FAA Exemption No. 10466 (noting that DOT has specific authority to grant exemptions to provide increased 

market access at DCA under 49 U.S.C. § 41718, but finding that “this authority does not override the FAA’s 

authority...to grant exemptions from its rules when those exemptions are in the public interest”). 21 Given LAN’s central location within the state of Michigan, it serves individuals far outside of the immediate 

Lansing area. LAN is “within a 90-minute drive of an overwhelming majority of the State’s entire population and is 

an important economic center within the DCA perimeter.” DOT Order 2010-12-16. 
8

We cannot conclude, however, that granting multiple exemptions for DCA-LAN service 

would be in the public interest. 22 While the public interest supports an exemption to continue 

DCA-LAN service, any additional public interest that might accrue from granting multiple 

exemptions does not outweigh the strong public interest in maintaining the integrity of the slot

rules and accompanying limitations, which are important to the efficient operation of the national 

airspace system as a whole. This is particularly true given that more than one exemption would 

increase operations at DCA above the level that existed prior to Sun Country’s cessation of 

service.

23

Having found that an exemption for DCA-LAN service is in the public interest, the FAA 

must consider whether the exemption should be granted in reply to American’s or Delta’s 

petitions. Both carriers proposed one daily nonstop round trip from DCA to LAN using 

comparably sized aircraft that would depart LAN in the early morning and return in the evening. 

American’s petition, however, had the overwhelming support of the commenters. In fact, all 

commenters,

24 except Delta and JetBlue, strongly endorsed American’s petition. The support of 

the travelling public is vital to fulfillment of the public interest upon which this exemption will 

be granted. Here, the community has clearly expressed its support for American’s DCA-LAN 

service, a factor that was not present with respect to Delta’s proposal. Thus, the FAA finds that 

American’s petition should be granted, and, therefore, Delta’s petition must be denied. 

The FAA recognizes, though, that American has extensive slot holdings at DCA, and 

further, that an FAA exemption is not meant to support the public’s reliance on a route 

indefinitely. Upon the expiration of this exemption as provided below, American must use its 

own slot holdings (rather than an exemption) if it wishes to continue DCA-LAN service.

25 

 22 JetBlue asserted that the FAA must forestall consideration of American’s and Delta’s pending proposals while we 

solicit proposals from any other party that may be interested in providing DCA-LAN service. While Delta argued 

that the FAA must “weigh the merits of the mutually exclusive competing applications.” American’s and Delta’s 

petitions were publicly available in dockets at www.regulations.gov and public comment was solicited. 14 C.F.R.

§ 11.85. As evidenced by Delta’s petition, any carrier could have submitted a petition for exemption for DCA-LAN 

service upon seeing American’s petition. Furthermore, the record in this matter involves various pleadings, and 

responsive pleadings, from the petitioners, and almost two hundred public comments. The FAA has consolidated its 

consideration of the respective proposals of American and Delta, and carefully assessed all of the submissions in the 

record for this matter. Nothing further is required. See, e.g., Western Radio Services Co, Inc. v. Glickman, 123 F.3d 

1189, 1193 (noting that Ashbacker requires “consolidated consideration of mutually exclusive license applications”);

Exemption No. 8112 (Aug. 14, 2003). 23 The FAA notes that neither American nor Delta, nor any of the commenters voiced support for granting both 

petitions. 

24 Except for American, Delta, and JetBlue, all of the commenters were civil officials, businesses, and individuals. 25 Going forward, the travelling public and American have clear notice of the limited nature of this exemption. The 

two-year term of this exemption will afford American time to reassess its DCA operations should it wish to continue 

the LAN-DCA service upon expiration of this exemption. It also permits Lansing time to assess alternative 

operations that would not require a slot exemption. Thus, the FAA does not believe that the public interest would 

continue to support an exemption from part 93 for DCA-LAN service upon expiration of this exemption.
9

The FAA’s Decision:

In consideration of the foregoing, and pursuant to the authority contained in 49 U.S.C. 

106(f), 40113, and 44701, delegated to me by the Administrator, Delta’s petition for an 

exemption from 14 C.F.R. § 93.123 is hereby denied.

In further consideration of the foregoing, I find that a grant of exemption to American is in 

the public interest and would not adversely affect safety. Pursuant to the authority contained in 

49 U.S.C. 106(f), 40113, and 44701, delegated to me by the Administrator, American is granted 

an exemption from 14 C.F.R. § 93.123(a) for the period beginning June 29, 2016, and 

terminating June 29, 2018, unless sooner superseded or rescinded, subject to the following 

conditions and limitations:

(1) A maximum of two total daily air carrier operations may be conducted under this 

exemption.

(2) Operations authorized by this grant of exemption may be conducted only in the 

following local hours: 1000 and 1100. The time periods of each operation may be 

adjusted by the FAA if necessary for air traffic control purposes.

(3) This exemption authorizes operations only by American (including its regional 

partners), but by no other carrier.

(4) American must use this exemption for nonstop DCA-LAN scheduled service. 

American must contact the FAA Slot Administration Office to confirm the scheduled 

operations and their frequencies under this exemption. The Slot Administration 

Office will then provide slot identification numbers.

(5) This exemption will be rescinded if American discontinues DCA-LAN scheduled 

operations.

(6) The operations authorized under this exemption are not part of the pool of permanent 

slots at the airport. However, these operations, while in effect, are subject to the 

provisions of 14 C.F.R. part 93, subparts K and S, except that the authority may not 

bought, sold, leased, or otherwise transferred, except through air carrier merger or 

acquisition. American may engage in temporary one-for-one trades of the authority to 

meet operational needs subject to the reporting requirements of subparts K and S.

Issued in Washington, DC, on March 31, 2016.

/s/

Reginald C. Govan

Chief Counsel