BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC

_____ ) Motion of ) ) AIRLINES for AMERICA (A4A) ) REGIONAL AIRLINE ASSOCIATION (RAA) ) Docket DOT

- OST

- 20 13

-

____ ) for a limited exemption from ) 14 C.F.R. § 39 9

. 8 1 (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 2 9 , 2013 DAVID A. BERG Senior Vice President, G eneral 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 Telephon e: (202) 367

- 1250 Fax: (202) 367

- 2170 cohen@raa.orgBEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC

_ ____ ) Motion of ) ) AIRLINES for AMERICA (A4A) ) REGIONAL AIRLINE ASSOCIATIO N (RAA) ) ) Docket DOT

- OST

- 2013

-

_______ for a limited exemption from ) 14 C.F.R. § 39 9

. 8 1 (c) ) )
DATED: May 2 9 , 201 3

MOTION OF AIRLINES FOR AMERICA AND REGIONAL AIRLINE ASSOCIATION FOR A LIMITED EXEMPTION FROM 14 C.F.R. § 39 9

. 8 1 (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. § 39 9

. 8 1 (c) that would exclude all flig hts in the month of April 2013 from the “chronically delayed flight” designation /status due to the substantial delay s and disruption to air travel that
occurred f rom the F ederal A viation Administration (“FAA”) decision to implement daily ground delay s 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 , A 4A and RAA state the following:
1

. Effec tive 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 eve ry region of the country to a point whereMoti on 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 ai rlines’ (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 t he 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 q uickly signed the bill into law

. 2

4

. The Department’s regulations regarding chronically

- delayed flights,
fou nd at 14 C.F.R. § 39 9

. 8 1 (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 schedu led 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).Moti on 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 substantial ly increased

. Airlines had no

c ontrol 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 f ly. According to FAA statistics, d elays 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. T he Department should grant this exemption to recognize th e significant impact that the furlough week had on each airline’s overall arrival performance for April 2013

. 7

. Strict applicatio n and enforcement of the chronically delayed flight regulations in § 39 9. 81 (c) is p articularly inappropriate in the context of the types of delays that the FAA’s program create d, which are fundamentally different from the types of delays that prompted DOT to adopt the chronically delay ed flight rule

. I n adopting the chronically delayed flight regulations, DOT took the position that

4 See 14 C

. F

. R

. § 399.81(c)(4).Moti on of Airlines for America and Regional Airline Association Page 4

airlines must schedule flights responsib ly ; the rule is aimed at prevent ing 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 oper ations at many of the busiest U.S. airports provided airlines no opportunity to adjust schedules, even if an airline
could have somehow predict ed , which it could not, where and when FAA ATC staffing would create delays. Airlines were afforded no advance p lanning opportunity concerning the widespread effects of FAA’s flight

- delay plan ; they had no way of knowing in advance how severe the delays m ight be at a particu lar airport on a particular day . Therefore, the chronically delayed flight rule basis

– airl ine 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

co ntrary, 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 fligh ts 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 o ne - month time period to begin counting consecutive months in

5 Enhancing Airline Passenger Protections, 74 Fed. Reg. 68983, 68993 (Dec. 30, 2009).Moti on 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 Departmen t grant a temporary exemption from the requirements of
14 C.F.R. § 39 9 .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 fu rlough 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 one

month 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 2 9 , 2013