April 19, 2013

Kathryn B. Thomson, Esq.

Chief Counsel

Office of the Chief Counsel

Federal Aviation Administration 

800 Independence Avenue, SW

Room 900

Washington, DC 20591

Re: Request for Temporary Waiver of Minimum Operating-Authorization Usage

Requirements at EWR, LGA, and JFK

Dear Ms. Thomson:

Airlines for America (“A4A”) and the Regional Airline Association (“RAA”) hereby request that the 

Federal Aviation Administration (“FAA”) temporarily waive minimum operating-authorization usage 

requirements currently in effect at Newark Liberty International Airport (“EWR”), New York LaGuardia 

Airport (“LGA”), and New York John F. Kennedy International Airport (“JFK”) in light of the FAA’s decision 

to reduce flight operations at major U.S. airports, including EWR, LGA, and JFK, effective April 21, 2013. 

A4A and RAA request that the FAA grant such a general waiver for at least 90 days or until the FAA 

sequestration furloughs end, whichever is longer.

The FAA has informed A4A, RAA, and their member airlines that, effective April 21, 2013, the 

FAA will impose a program of severe ground delays, which will result in drastic reductions in the number 

of flights that may take off and land at some of the largest and busiest U.S. airports, including EWR, LGA, 

and JFK,

1/

during some of the busiest times of the day. The FAA’s implementation of these daily ground 

delay programs at seven major U.S. airports will result in the delay of approximately 3,800 flights daily. 

The FAA has also determined that an additional six major U.S. airports will require daily traffic 

management initiatives resulting in approximately 2,900 additional daily flights being delayed.2/ Most of 

these combined thirteen airports are major hubs for U.S. airlines and all are critical nodes in the national 

air transportation system. Therefore, the projected flight delays will wreak havoc on the carriers’ networks,

 

1/ Other airports that will be affected by delays as a result of the FAA flight-delay plan include Chicago 

O’Hare International Airport, Los Angeles International Airport, San Diego International Airport, and Fort 

Lauderdale/Hollywood International Airport. 

2/ These six airports include Philadelphia International Airport, Charlotte/Douglas International Airport, 

Hartsfield-Jackson Atlanta International Airport, Miami International Airport, Chicago Midway International 

Airport, and San Francisco International Airport.
impacting hundreds of cities across the U.S. to and from which traffic is routed through these hub airports, 

thereby delaying other flights and forcing passengers to miss connections. According to the FAA, these 

delays are a necessary part of the agency’s sequestration implementation plan and the delays will 

continue at least until the end of the current fiscal year (September 30, 2013). A4A and RAA understand

that approximately 6,700 flights per day may be subject to these delays, even assuming good weather 

and no other air traffic control-related or other issues that could affect daily operations. The potential 

amount of daily flight delays projected by the FAA is alarming, especially considering that in all of 2012, 

the most flight delays experienced on a single day in the U.S. was less than half this amount (2,994 

flights).

A4A, RAA, and their members were only notified about the FAA’s plans to impose these drastic 

delays within days of the FAA’s April 21, 2013 implementation date. Thus, the airlines have had no time 

or opportunity to identify and plan for all of the system-wide impacts of these delays. Even worse, the 

FAA is implementing this delay program at the beginning of the peak summer travel season, at a time 

when air travel demand is increasing and flights have already been heavily booked. Airlines’ existing flight 

schedules were devised and implemented in good faith based on the airlines’ (and the traveling public’s) 

reasonable expectation that the FAA would be able to accommodate certain flight volumes at the affected 

airports. The FAA’s delay plan, however, may make it impossible for airlines to operate these established 

flight schedules without substantial delays and last-minute cancellations. It is important to recognize that 

the effects of FAA-imposed delays will not be limited to a specific departure at a specific airport. Airlines 

typically operate aircraft on linear routes (from point A to point B to point C to point D to point E to point F) 

rather than on round trips (i.e., a series of flights between points A and B). Therefore, the FAA’s flightdelay plan is likely to result in the typical aircraft encountering disparate delays throughout the day at 

many airports (and not only at the 13 airports the FAA has identified as being the primary focus of flightoperation reductions), which will make delays even more unpredictable and further complicate the 

airlines’ challenges in attempting to manage the FAA's capacity reductions.

Because it is anticipated that the FAA’s flight-delay plan will continue in effect for an extended 

period of time, A4A and RAA’s member airlines will need to consider ways to reduce their schedules. In 

fact, A4A and RAA today sent a letter to FAA and the Department of Transportation (“DOT”) requesting 

that FAA/DOT convene schedule-reduction meetings with airlines for the airports that will be most 

severely affected by the FAA’s delay plan.

3/

 Those airports include EWR, LGA, and JFK. 

Under the FAA’s order limiting scheduled operations at EWR, LGA, and JFK, operating 

authorizations (“OAs”) must be used at least 80 percent of the time they are allocated or the FAA will 

withdraw them.4/ However, the order also states that the FAA may waive the minimum-usage requirement 

“in the event of a highly unusual and unpredictable condition which is beyond the control of the carrier 

and which affects carrier operations for a period of five consecutive days or more.”5/This case clearly 

satisfies the FAA’s own criteria for granting a waiver from the “use or lose” rule. The FAA’s flight-delay 

plan, and the manner in which the FAA is implementing it at very short notice and with the imposition of 

drastic delays without any specific information quantifying those delays with respect to specific flights at 

specific airports, unquestionably creates a “highly unusual and unpredictable condition” that is “beyond 

the control of” the carriers and is expected to last for considerably longer than the minimum five-day 

period stipulated in the FAA’s order. Thus, good cause exists to grant the requested waiver. 

As the FAA is aware, there are clear precedents for the waiver requested here. See, e.g., 66 Fed. 

Reg. 51718 (October 10, 2001); 67 Fed. Reg. 10249 (March 6, 2002). As the FAA stated in granting the 

blanket waiver from the minimum slot usage requirement after the September 11, 2001 terrorist attacks, 

 

3/

See letter to Department of Transportation Secretary Ray LaHood and Federal Aviation Administration 

Administrator Michael P. Huerta, April 19, 2013.

4/

See 76 Fed. Reg.18618, 18619 (Apr. 4, 2011); 74 Fed. Reg. 51650 (Oct. 7, 2009); 73 Fed. Reg. 3510 (Jan. 

18, 2008), 73 Fed. Reg. 29550 (May 21, 2008).

5/

See 76 Fed. Reg.18618, 18619 (Apr. 4, 2011); 74 Fed. Reg. 51650 (Oct. 7, 2009). 
- 2 -

“the agency finds it necessary to take [this] action to assist carriers in managing their operations at the 

high density traffic airports as a result of the recent extraordinary events.” 66 Fed. Reg. at 51718. That 

same rationale applies now.6/ 

As a policy matter, the requested waiver is grounded in common sense and would clearly serve 

the public interest. The FAA has not provided detailed information about the specific impacts of its delay 

plan at specific airports. Rather, to date, the FAA has merely advised the airlines that substantial delays 

are inevitable at affected airports. However, the effects of those delays will quickly be felt not only at the 

directly affected airports but across the airlines’ networks as individual flights fail to reach their 

destinations on schedule, thereby delaying other flights and forcing passengers to miss connections. The 

national air transportation network is an extremely complex and interconnected system that involves more 

than 22,000 flights per day. As a national (and indeed a global) system, it is inevitable that the effects of 

any delays or other adverse operational impacts imposed at any one airport (particularly a major hub) will 

not be isolated; on the contrary, the effects magnify as they ripple out across the system. In short, the 

FAA’s flight-delay plan not only poses a threat of major disruptions at the 13 primarily targeted airports, 

but across the entire air transportation system, potentially affecting passengers whose itineraries do not 

even include any of the directly affected airports.

In these exigent circumstances, it is in the common interest of the airlines, the traveling public, 

and the FAA that airline operations continue at the affected airports in an orderly manner. This will require 

an orderly reduction in airlines’ flight schedules, but an essential predicate to such action is that the FAA 

grant the requested waiver. In order for airlines to reduce their schedules and manage the effects of the 

FAA’s delay plan, it is imperative that airlines not face the risk of having to forfeit OAs at EWR, LGA, and 

JFK. Unless the FAA issues the requested waiver, however, airlines may be deterred from acting 

promptly to reduce their schedules out of fear of forfeiting valuable OAs. In light of the unprecedented 

circumstances created by the FAA’s delay plan – which after all is a government-created problem that is 

beyond the airlines’ control – the proposed waiver constitutes a modest request that will promote and 

facilitate the airlines’ task of rationalizing their schedules in response to the severe delays that the FAA 

plans to impose. 

For these reasons, A4A and RAA respectfully request that the FAA temporarily waive the 

minimum operating-authorization usage requirements currently in effect at EWR, LGA, and JFK for at 

least 90 days or until the Federal Aviation Administration (“FAA”) sequestration furloughs end, whichever 

is longer. For all of the reasons set forth above, A4A and RAA believe that good cause exists for the FAA 

to grant this relief immediately without the need for notice and comment.

Respectfully submitted, 

 

____________________________________

David A. Berg

Senior Vice President, General Counsel 

and Secretary

Airlines for America

____________________________________

Roger Cohen

President

Regional Airline Association

 

6/

See also 75 Fed. Reg. 32987 (June 10, 2010 (granting waiver of minimum-use requirements at EWR and 

JFK following the disruption to air travel caused by ash from an eruption of a volcano in Iceland); 77 Fed. Reg. 

68196 (Nov. 15, 2012) (granting waiver of minimum-use requirements at JFK, LGA, and EWR following Hurricane 

Sandy). The FAA has also waived the minimum-use requirements in situations where, similar to the case at hand, 

capacity at an airport was severely impacted due to on-site operational issues. See 77 Fed. Reg. 1549 (Jan. 10, 2012) 

and 74 Fed. Reg. 52838 (Oct. 14, 2009) (waivers granted due to runway construction).