AFS-10-343-E Exemption No. 10192

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In the matter of the petition of

JETBLUE AIRWAYS

CORPORATION Regulatory Docket No. FAA-2010-0751

for an exemption from § 119.3 of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated July 26, 2010, Mr. Joseph D. DeVito, Manager Flight Standards Compliance, JetBlue Airways Corporation (J etBlue), petitioned the Federal Aviation Administration (FAA) on behalf of JetB lue for an exemption from § 119.3 of Title 14, Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow JetBlue to operate f lights between the Dominican Republic and Puerto Rico as domestic operations rather than flag operations under part 121.

The petitioner requests relief from the following regulation:

Section 119.3, which defines a “domestic ope ration” as including, when specifically authorized by the Administrator, opera tions between any point within the 48 contiguous States of the United States or the District of Columbia and any specifically authorized point located outsi de the 48 contiguous States of the

United States or the District of Columbia.2

The petitioner supports its request with the following information:

The petitioner states that § 119.3 currently a llows the Administrator the flexibility to determine whether a routing outside the c ontinental United States must be conducted under “domestic” or “flag” rules. Secti on 119.3 defines a “domestic operation” as it applies to operations outside the contiguous 48 states to include, when specifically authorized by the Administrator, opera tions between any point within the 48 contiguous States of the United States or the District of Columbia and any specifically authorized point located outside the 48 contiguous United States or the

District of Columbia.

While flights from the contiguous United States to the Dominican Republic have been authorized by the Administrator, JetB lue’s flights between Puerto Rico and the Dominican Republic are not eligible for the Administrator to exer cise his discretion to allow those operations as “domestic” be cause Puerto Rico is a possession of the United States rather than a point within th e 48 contiguous States of the United States

or the District of Columbia. JetBlue belie ves this is a consequence of an unintended drafting anomaly. JetBlue seeks an exem ption to the definition of “domestic operation” that would effectively add “or Pu erto Rico” after “District of Columbia,” in paragraph (2)(iv) of the definition of “domestic operation set forth at § 119.3,” thereby permitting JetBlue, with the Admini strator’s approval, to operate flights between Puerto Rico and the Dominican Republic as “domestic.”

The rules applicable to fl ag operations are intended fo r long haul carriers, where crewmembers are frequently scheduled fo r more than 8 hours of flight during a 24-hour period due to the nature and route stru cture of the airline. By contrast, the nature of JetBlue’s operations, route struct ure, and stage lengths are such that its operations between Puerto Rico and the Dominican Republic (which currently are operated under the rules applicable to flag operations) are actually shorter in duration than its flights between the contiguous St ates of the United States and both Puerto Rico and the Dominican Republic (which ar e operated under the rules applicable to domestic operations). It is JetBlue’s belief that these short flights between Puerto Rico and the Dominican Republic simply ar e not the intended target of the rules applicable to flag operations. Therefore, JetBlue petitions the Administrator to amend the definition of domestic operation to permit the Administrator to have the discretion to allow flights between Puerto Rico and the Dominican Republic to be operated pursuant to the rules applicable to domestic operations. Such flexibility would make the flight operations of a car rier such as JetBlue more reasonable by potentially eliminating the present anomal ous situation of a s hort duration flight operating under flag rules and other much longer flights to the same destination operating under domestic rules.

JetBlue states that a grant of exemption w ould not adversely affect safety and would provide more than an equivalent level of sa fety. The petitioner be lieves that granting this exemption would increase safety by provi ding consistency in the rules that apply3

in this theater of operation and avoidi ng confusion in constantly transitioning between domestic and flag operatio ns in flights to the Caribbean.

The petitioner believes that under the rest re quirements applicable to flag operations, a pilot may be repeatedly scheduled for as little as 8 hours of rest without any compensatory rest requirement, provided th at flying does not exceed 8 hours in any 24-hour period. By contrast, under the rest requirements applicable to domestic operations, if a pilot receives less than 9 hours of rest, compensatory rest must be provided. Thus, by granting this exempti on, a pilot who conducts JetBlue’s flights between Puerto Rico and the Dominican Republic will become eligible for compensatory rest under the domestic operations rules.

A summary of the petition was pub lished in the Federal Register on August 26, 2010 (75 FR 52593). No comments were received.

The FAA’s analysis is as follows:

The FAA has considered the petitioner’s re quest and finds that a grant of exemption would not be in the public inte rest and would not provide a level of safety equivalent to the current regulations.

JetBlue requests an exemption from “sect ion 119.3, definition of domestic operation, to allow the Administrator authority to permit JetBlue to operate flights between Puerto Rico and the Dominican Republic...unde r the rules applicab le to domestic operations” rather than flag operations under part 121. While JetBlue’s flights between the 48 contiguous States and Pu erto Rico and flights between the 48 contiguous States and the Do minican Republic have been specifically authorized by

the Administrator and defined as domestic operations, JetBlue’s flights between Puerto Rico and the Dominican Republic are “flag operations” as defined in paragraph (2)(i) of § 119.3. A ccordingly, JetBlue should be requesting an exemption from the definition of flag operation in para graph (2)(i) of § 119.3 so that it will not be required to operate its flights between Puerto Rico and the Dominican Republic under the rules applicable to flag operations in part 121 but inst ead can operate under rules applicable to domestic operations.

The FAA finds that JetBlue’s discussion regarding exceeding 8 hours within a 24-hour period in a mix of domestic and flag operations neglected to reference the 18 hours rest requirement if operations exceed 8 hours within a 24-hour period under flag rules. If the exemption were granted, relief from this rest requirement could be considered significant for an operato r conducting mixed do mestic and flag operations. The FAA finds that granting th is exemption would provide JetBlue with a unique concession. JetBlue contends th e flights between Puerto Rico and the Dominican Republic would be a better f it under domestic oper ations given their relatively short duration a nd granting the exemption would increase safety by providing consistency in the rules and avoiding confusing when transitioning between domestic and flag operations. JetBlue has not, howev er, provided any4

justification or rationale of how it is unique from other similarly situated operators that must comply with the regulations. In addition, by granting this exemption, JetBlue would have exclusive rights to operate under domestic operations for its flights between Puerto Rico and the Dominican Republic.

JetBlue believes that the Administrator s hould be allowed to ex ercise his discretion to allow flights between Puerto Rico and the Dominican Republic to be conducted as domestic operations since “Puerto Rico is a possession of the United States” and the term “Puerto Rico” was omitted from the definition of domestic operation due to an “unintended drafting anomaly.” The FAA disagrees this was a drafting oversight since the definition of flag operation sp ecifically references “any territory or possession of the United States” (emphasis added). See § 119.3 (definition of “flag operation”). Accepting the claim that th e term “Puerto Rico” was unintentionally omitted from the definition of domestic operation due to a drafting anomaly would directly contradict the definition of flag operation. Moreover, the use of the term “possession of the United States” in the definition of domestic operation indicates that the agency was aware of such entities, including Pu erto Rico, when it drafted

that definition.

The FAA also recognizes that JetBlue is advocating for a rule change by “petition[ing] the Administrator to ame nd the definition of domestic operation to permit the Administrator to have the discre tion to allow flights on this route to be operated pursuant to the rules applicable to domestic operations. ” JetBlue proposes to amend paragraph (2)(iv) of § 119.3 defin ition of “domestic opera tion” to read as

follows:

when specifically authorized by the Ad ministrator, operations between any point within the 48 contiguous States of the United States, the District of Columbia or Puerto Rico and any sp ecifically authorized point located outside the contiguous States of the Unite d States, the District of Columbia or

Puerto Rico.

This request is better handled through a petition for rulemaking. Additionally, the United States Congress has mandated the FAA to address fatigue issues through Public Law 111.216 under Sec. 212, Pilot Fatigue -Flight and Duty Time Regulations of the “Airline Safety and Federal Avia tion Administration Extension Act of 2010.” On September 14, 2010, the FAA published a notice of proposed rulemaking titled “Flightcrew Member Duty a nd Rest Requirements” (75 FR 55852). It would be inappropriate for the FAA to issue an exemp tion to rules associated with flight and duty during ongoing rulemaking that will substa ntially alter the flight and duty time regulations.5

The FAA’s Decision:

In consideration of the foregoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 40113 and 44701, delegated to me by the Administra tor, the petition of JetBlue Airways Corporation for an exemption from 14 CFR § 119.3 is hereby denied.

Issued in Washington, D.C., on January 10, 2011.

/s/ Raymond Towles Acting Director, Flight Standards

Service