BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC

_____

)

Motion of )

)

AIRLINES for AMERICA (A4A) ) 

REGIONAL AIRLINE ASSOCIATION (RAA) ) Docket DOT-OST-2013-____

)

for a limited exemption from )

14 C.F.R. § 399.81(c) )

)

MOTION OF AIRLINES FOR AMERICA AND REGIONAL AIRLINE 

ASSOCIATION 

FOR A LIMITED EXEMPTION FROM 14 C.F.R. § 399.81(c) 

Communications with respect to this document should be addressed to:

DATED: May 29, 2013

DAVID A. BERG

Senior Vice President, General 

Counsel and Secretary

AIRLINES FOR AMERICA

1301 Pennsylvania Avenue, NW 

Suite 1100

Washington, DC 20004

Telephone: (202) 626-4234

dberg@airlines.org

ROGER COHEN

President

REGIONAL AIRLINE ASSOCIATION

2025 M Street, NW

Washington, DC 20036

Telephone: (202) 367-1250

Fax: (202) 367-2170

cohen@raa.org
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC

_____

)

Motion of )

)

AIRLINES for AMERICA (A4A) ) 

REGIONAL AIRLINE ASSOCIATION (RAA) )

 ) Docket DOT-OST-2013-_______

for a limited exemption from )

14 C.F.R. § 399.81(c) )

)

DATED: May 29, 2013

MOTION OF AIRLINES FOR AMERICA

AND REGIONAL AIRLINE ASSOCIATION 

FOR A LIMITED EXEMPTION FROM 14 C.F.R. § 399.81(c)

Airlines for America (“A4A”) and the Regional Airline Association (“RAA”), 

pursuant to 14 C.F.R. § 302.11 and 49 U.S.C. § 40109(c), hereby request that the 

Department grant a limited exemption from 14 C.F.R. § 399.81(c) that would 

exclude all flights in the month of April 2013 from the “chronically delayed flight” 

designation/status due to the substantial delays and disruption to air travel that 

occurred from the Federal Aviation Administration (“FAA”) decision to implement 

daily ground delays and reduce air traffic control personnel as part of its 

sequestration implementation plan adopted in response to the Budget Control Act of 

2011 and the American Taxpayer Relief Act of 2012. 

In support of this motion, A4A and RAA state the following:

1. Effective April 21, 2013, the FAA implemented several traffic 

management initiatives, (including Airspace Flow Programs and Ground Delay 

Programs) that resulted in over seven thousand delayed flights through April 28, 

2013. These delays affected virtually every region of the country to a point where 
Motion of Airlines for America and 

Regional Airline Association

Page 2

furlough delays regularly exceeded 50% of all daily delays in the National Airspace 

System (“NAS”).

1

 

2. Airlines’ flight schedules were devised and implemented in a timely 

manner and in good faith based on the airlines’ (and the traveling public’s) 

reasonable expectation that the FAA would be able to accommodate projected flight 

volumes at the affected airports and across the NAS generally. Flights were sold in 

the normal course of business months in advance of the furlough plan, planes were 

full, and the delays and flight cancellations that resulted from the FAA’s furlough 

plan caused tremendous turmoil for the traveling public. 

3. Delays were so persistent and the impacts so great that Congress

acted swiftly to pass the “Reducing Flight Delays Act of 2013” to end the significant 

flight delays induced by the FAA capacity reduction plan. The President quickly 

signed the bill into law.

2

4. The Department’s regulations regarding chronically-delayed flights, 

found at 14 C.F.R. § 399.81(c), define a chronically delayed flight as “any domestic 

flight that is operated at least 10 times a month, and arrives more than 30 minutes 

late (including cancelled flights) more than 50 percent of the time during that 

month.”3 This section deems an air carrier holding out a “chronically delayed flight”

for more than four consecutive one-month periods as an unrealistic scheduling 

 

1 See FAA OPSNET data for the April 21-28 time period.

2 Public Law 113-9, May 1, 2013.

3

The Department also considers all of a carrier's flights that are operated in a given city-pair market 

whose scheduled departure times are within 30 minutes of the most frequently occurring scheduled 

departure time to be one single flight. See 14 C.F.R. § 399.81(c)(3).
Motion of Airlines for America and 

Regional Airline Association

Page 3

practice, an unfair or deceptive practice, and an unfair method of competition within 

the meaning of 49 U.S.C. § 41712.4 

5. During the period of FAA-imposed daily ground delays, airlines were 

forced to operate in unprecedented and highly unpredictable circumstances where 

the only certainty was that delays were substantially increased. Airlines had no 

control during the furlough week of April 21-28, 2013 over where or when FAA

would impose capacity restraints in response to furlough-driven staffing shortages. 

Advance planning was impossible and airlines had to respond to furlough-induced 

delays on the fly. According to FAA statistics, delays during the furlough week on 

most days accounted for more than 50% of all delays, and on one day, April 26, 

accounted for at least 89% of all delays.

6. Flights pushed below the 50% arrival time threshold due to an unusual 

but significant event like sequester furloughs are not “chronically” delayed, but are

delayed for a specific and unique government cause. The Department should grant 

this exemption to recognize the significant impact that the furlough week had on 

each airline’s overall arrival performance for April 2013. 

7. Strict application and enforcement of the chronically delayed flight 

regulations in § 399.81(c) is particularly inappropriate in the context of the types of 

delays that the FAA’s program created, which are fundamentally different from the 

types of delays that prompted DOT to adopt the chronically delayed flight rule. In 

adopting the chronically delayed flight regulations, DOT took the position that 

 

4 See 14 C.F.R. § 399.81(c)(4).
Motion of Airlines for America and 

Regional Airline Association

Page 4

airlines must schedule flights responsibly; the rule is aimed at preventing airlines 

from “scheduling flights that they reasonably know or should know are going to be 

seriously late most of the time.”5 By contrast, the FAA’s abrupt and sudden

implementation of severe restrictions on flight operations at many of the busiest 

U.S. airports provided airlines no opportunity to adjust schedules, even if an airline 

could have somehow predicted, which it could not, where and when FAA ATC

staffing would create delays. Airlines were afforded no advance planning 

opportunity concerning the widespread effects of FAA’s flight-delay plan; they had

no way of knowing in advance how severe the delays might be at a particular airport 

on a particular day. Therefore, the chronically delayed flight rule basis – airline 

scheduling practices – does not support applying this rule to furlough-induced flight 

arrival delays.

8. To be clear, A4A and RAA are not proposing that DOT suspend the 

effectiveness of the chronically delayed flight regulations in general. On the 

contrary, our requested exemption is narrowly tailored to only the month of April. 

Specifically, all delays in the month of April should not be counted towards the four 

consecutive one-month periods under 14 C.F.R. § 399.81(c). In addition, excluding 

flights in April from the chronically delayed determination because of furlough 

delays necessarily breaks the 14 C.F.R. § 399.81(c)(4) prohibition on holding out 

allegedly chronically delayed flights for consecutive four one-month periods; 

resetting the four one-month time period to begin counting consecutive months in 

 

5 Enhancing Airline Passenger Protections, 74 Fed. Reg. 68983, 68993 (Dec. 30, 2009).
Motion of Airlines for America and 

Regional Airline Association

Page 5

May 2013. This exemption request includes only the rules concerning chronically 

delayed flights. 

WHEREFORE, for the reasons set forth above, A4A and RAA respectfully 

request that the Department grant a temporary exemption from the requirements of 

14 C.F.R. § 399.81(c) for the month of April 2013. The exemption should determine 

there are no “chronically delayed flights” in April 2013 because of the extensive 

flight delays caused by the FAA’s furlough plan. Exempting flights from the

“chronically delayed flight” status for this limited time would exclude the month of 

April from the determination of whether a flight is delayed for four consecutive onemonth periods in § 399.81(c)(4) and reset the four one-month time period to begin 

counting consecutive months in May 2013. 

Respectfully submitted,

________________________ ____________________________

DAVID A. BERG

Senior Vice President, General Counsel 

and Secretary

AIRLINES FOR AMERICA

1301 Pennsylvania Avenue, NW 

Suite 1100

Washington, DC 20004

Telephone: (202) 626-4234

Fax: (202) 626-4139

dberg@airlines.org

ROGER COHEN

President

REGIONAL AIRLINE 

ASSOCIATION

2025 M Street, NW

Washington, DC 20036

Telephone: (202) 367-1250

Fax: (202) 367-2170

cohen@raa.org

DATED: May 29, 2013