[Federal Register Volume 75, Number 79 (Monday, April 26, 2010)]
[Notices]
[Pages 21692-21695]
[FR Doc No: 2010-9716]

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 DEPARTMENT OF TRANSPORTATION

Office of the Secretary

[Docket No. DOT-OST-2007-0022]

Denial of Airlines' Temporary Exemption Requests from DOT's
Tarmac Delay Rules for JFK, EWR, LGA and PHL Operations

AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).

ACTION: Notice.

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SUMMARY: On March 30, 2010, the Department published a notice in the
Federal Register seeking comment on separate requests by five airlines
for a temporary exemption from a requirement that U.S. carriers adopt
contingency plans for lengthy tarmac delays. These plans must include
an assurance that a carrier will not permit an aircraft to remain on
the tarmac for more than three hours in the case of domestic flights
and for more than a set number of hours as determined by a carrier in
the case of international flights without providing passengers an
opportunity to deplane, with certain exceptions for safety, security,
or Air Traffic Control (ATC) related reasons. The requests cover
operations at John F. Kennedy International Airport (JFK), Newark
Liberty International Airport (EWR), LaGuardia Airport (LGA), and
Philadelphia International Airport (PHL). The carriers contend that
without the requested exemption covering seven months in 2010 during
which runway construction is expected to be underway at JFK, large
numbers of flights will have to be canceled at the New York area
airports and affected passengers will face significant inconveniences
and delays before being re-accommodated. The Department received
approximately 135 comments on these exemption requests, primarily from
individual consumers. After fully considering the comments submitted,
the Department is issuing this notice to announce its decision denying
each of these exemption requests as not being in the public interest
since the concerns raised by the carriers can be resolved through more
careful flight scheduling. The notice also points out that if totally
unexpected situations occur appropriate prosecutorial discretion can be
applied with respect to potential enforcement action.

FOR FURTHER INFORMATION CONTACT: Livaughn Chapman or Blane A. Workie,
Office of the Assistant General Counsel for Aviation Enforcement and
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave.,
SE., Washington, DC 20590-0001;<PHONE_NUMBER> (phone),<PHONE_NUMBER>
(fax<EMAIL_ADDRESS>or<EMAIL_ADDRESS>(e-mail).

SUPPLEMENTARY INFORMATION:

Background

    On December 30, 2009, the Department published a final rule titled
``Enhancing Airline Passenger Protections'' that sets forth numerous
measures geared toward strengthening protections afforded to air
travelers. 74 FR 68983. One of these provisions, which takes effect
April 29, 2010, requires U.S. certificated and commuter air carriers
that operate scheduled passenger service or public charter service
using any aircraft with a design capacity of 30 or more passenger seats
to adopt, implement, and adhere to contingency plans for lengthy tarmac
delays at each large and medium hub U.S. airport at which they operate
scheduled or public charter air service. For domestic flights, the rule
requires covered U.S. carriers to provide assurance that they will not
permit an aircraft to remain on the tarmac for more than three hours,
with two safety/security and an ATC-related exceptions: (1) Where the
pilot-in-command determines that an aircraft cannot leave its position
on the tarmac to deplane passengers due to a safety-related or
security-related reason (e.g. weather, a directive from an appropriate
government agency); and (2) where ATC advises the pilot-in-command that
returning to the gate or another disembarkation point elsewhere in
order to deplane passengers would significantly disrupt airport
operations. For international flights departing from or arriving at a
U.S. airport, the rule requires covered U.S. carriers to provide
assurance that the carriers will not permit an aircraft to remain on
the tarmac for more than a set number of hours, as determined by the
carriers, before deplaning passengers, with the same safety, security,
and ATC exceptions. 14 CFR Sec. Sec.  259.4(b)(1) and (b)(2). For all
flights, carriers must provide adequate food and water no later than
two hours after the aircraft leaves the gate (in the case of a
departure) or touches down (in the case of an arrival) if the aircraft
remains on the tarmac, unless the pilot-in-command determines that
safety or security requirements preclude such service. Carriers must
also ensure that lavatory facilities are operable and medical attention
is provided if needed while the aircraft remains on the tarmac.
Pursuant to 49 U.S.C. 46301, violations of 14 CFR Part 259 subject a
carrier to civil penalties of up to $27,500 per violation.
    On March 4, 2010, JetBlue requested an exemption from the
requirements not to permit an aircraft to remain on the tarmac for more
than three hours in the case of domestic flights and for more than a
set number of hours as determined by a carrier in the case of
international flights without providing passengers an opportunity to
deplane for its JFK operations for the time period that operations at
JFK are disrupted by the closure of the main runway at that airport,
i.e., March 1 through December 1, 2010. JetBlue's request for an
exemption during this period was followed by a similar request by Delta
Air Lines for its JFK operations and a request by American Airlines
that the Department grant an exemption for all carrier operations at
JFK. Continental next requested that the Department extend any relief
it grants carriers operating at JFK to carriers operating at the Newark
and LaGuardia Airports. On March 22, 2010, US Airways also filed a
request for a similar exemption for its operations at the Philadelphia
Airport.
    The carriers argue collectively that without the requested
exemptions large numbers of flights will have to be canceled at the New
York area airports and affected passengers will have to face
significant inconveniences and delays before being re-accommodated. The
basic rationale presented by Continental and US Airways in support of
exemptions for their operations at Newark, LaGuardia and Philadelphia
airports is that the delays and delay mitigation strategies at JFK
resulting from the runway construction will affect the former airports
by causing delays to spill over.
    On March 30, 2010, the Department published a notice in the Federal
Register seeking comment on whether it should act on the requests by
JetBlue, Delta, American, Continental, and US Airways by means of one
of the following four measures: (1) Deny each exemption request; (2)
grant one or more of the exemption requests in their entirety; (3)
grant a limited temporary exemption for operations at one or more of
the airports by allowing the three hour limit to be raised to four
hours during the two specific heavy construction periods (April 29 thru
June 30, 2010, and September 16 thru

September 29, 2010) planned for JFK's Bay Runway; or (4) deny each
exemption request, but direct the Aviation Enforcement Office to
consider the runway closure and unexpected bad weather in deciding
whether to pursue an enforcement case against a carrier for a lengthy
tarmac delay incident that occurs at one or more of the airports. The
comment period closed on April 9, 2010.

Comments Received

    The Department received approximately 135 comments in response to
the notice, primarily from individual consumers. Nearly all of the
comments from individual consumers and advocacy organizations support
denying the request. The comments from airlines, airline associations
and airports are mixed--a few support giving priority or preferential
treatment to exemption requests for operations at JFK while most assert
that all carriers operating at JFK, LGA, EWR and possibly PHL should
receive equal relief from the tarmac delay rule. The commenters'
specific positions are set forth below.
    In supplementary comments, JetBlue contends that unlike the
requests made by Continental and US Airways, JetBlue's request is
limited to operations at JFK, and is carefully limited to the time
period that JFK operations will be disrupted by the Bay Runway
reconstruction. JetBlue argues that Continental and US Airways have
``chosen to try to jump on the bandwagon and bootstrap what they claim
are related situations at LGA, EWR and PHL in an attempt to obtain
relief'' from the three hour rule. Continental states that the
Department should focus its attention on the closure of the Bay Runway,
and requests that the Department select Option 2, granting the requests
of JetBlue, American and Delta in their entirety, and extending the
same relief to all New York area airports (i.e., JFK, LGA and EWR).
Continental takes no position on whether relief should be extended to
carriers at PHL.
    JetBlue maintains that Options 3 and 4 do not go far enough in
relieving carriers at JFK from potential unforeseen and unintended
adverse circumstances. JetBlue states that it would not dismiss Option
4; however, it argues that Option 4 leaves carriers with uncertainty as
to when and how the rule will be applied, and leaves the application of
the rule to judgment after the fact.
    JetBlue argues further that any exemption issued by the Department
should apply to both domestic and international flights. JetBlue argues
that the three hour rule already exempts foreign air carriers, and that
it is impractical for a carrier such as JetBlue to use different tarmac
delay limits for its domestic and international flights. JetBlue argues
that the only realistic way to put U.S. carriers on an equal footing
with foreign air carriers is to exempt both domestic and international
flights while the Bay Runway is closed.
    American argues that while it does not oppose relief at other
airports, such as EWR, LGA, and PHL, the Department's first priority
should be to address the operational disruption that is widely
anticipated will result from the runway closure and construction at JFK
during the peak summer travel period into November. American states
that at a minimum, the Department should grant a temporary exemption
for operations at JFK by raising the three-hour limit to four hours for
the period April 29, 2010, through November 15, 2010. In addition,
American maintains that the Department should recommend to the Aviation
Enforcement Office that it take into account the special circumstances
at JFK as well as unexpected bad weather in deciding whether to pursue
a case against a carrier for a lengthy tarmac delay incident at JFK.
    In its supplemental comments, Continental continues to assert that
all three New York metropolitan airports share airspace and arrival and
departure corridors, and delays or delay mitigating strategies at JFK
will adversely affect air carriers and passengers at EWR and LGA.
Continental argues that the Department has long treated the New York/
New Jersey airports as a single point, and states that if relief is
granted to any carrier at any New York area airport, all carriers at
all New York area airports should receive the same relief.
    Similarly, US Airways continues to argue that the Philadelphia-New
York City airspace is an intertwined web, with components that cannot
be considered in isolation, and maintains that action at one airport
creates ripple effects throughout the NY/NJ/PHL airspace. US Airways
supports the grant of waivers to carriers operating at airports in the
NY/NJ/PHL airspace, but argues that waivers must either be granted or
denied to all carriers as a whole. US Airways argues that granting an
exemption to only certain airports or carriers would be contrary to
accepted existing practice, and would provide an unfair advantage to
certain operators at the expense of others. US Airways maintains that
fundamental fairness dictates that the Department treat all carriers
equally and provide a level playing field, regardless of the
Department's decision to grant or deny the requested exemptions.
    United Airlines (United) states that it takes no position on
whether the Department should grant exemptions from the tarmac delay
rule at any or all of the airports for which exemptions have been
sought. However, United also urges the Department to extend the same
relief, if any, to all carriers at a given airport, not just to
carriers that have formal exemption requests pending. United argues
that the problems caused by runway closures, particularly when combined
with adverse weather conditions, will affect all carriers operating at
an airport, including those operating a limited number of flights, and
opposes any selective relief at any given airport. In addition, while
United maintains that it also takes no position with regard to Option
4, it states that if the Department were to adopt this approach, such
enforcement policy guidance should not be limited to the instant case,
but made applicable to any future case where the temporary closures of
any airport movement area, whether due to ongoing construction or other
causes, could lead to or exacerbate airside congestion and delays in
flight operations, especially during adverse weather conditions.
    Spirit Airlines (Spirit) supports a blanket exemption from the
tarmac delay rules for all carriers operating at JFK, LGA, and EWR.
Spirit argues that requiring carriers to comply with the new rules
during the closure and construction of the Bay Runway likely will
exacerbate the already difficult situation at JFK by necessitating
flight cancellation due to long taxi-out and taxi-in times caused by
the construction, as well the possibility of flight crew exceeding
legally permitted crew time and increased operational difficulties for
airports. Spirit argues that it and other small carriers with few
flights will face unique operational challenges because flight
cancellations by such carriers will make it difficult for passengers to
reach their destinations. Spirit maintains that, unlike legacy carriers
that have many slots and can cut back schedules during peak
construction periods, Spirit, with only a few flights, is not in a
position to scale back service. Spirit argues that granting the
requested relief will not encourage carriers to ignore the intent of
the rules, but rather will provide flexibility to carriers in
borderline delay situations in order to mitigate potential harm to
consumers when facing extraordinary adverse conditions resulting from
runway closure and construction. In addition, Spirit argues that Option
3 would not be an effective way to

alleviate the problems associated with the runway reconstruction, and
argues that enforcement should not be left to the discretion of the
Aviation Enforcement Office.
    The Air Carrier Association of America (ACAA) asserts that all
carriers operating at JFK, LGA, EWR, and PHL should receive equal
relief from the tarmac delay rule. The ACAA argues that if the
Department approves tarmac delay exemptions for carriers operating at
these airports, it should waive the tarmac delay requirements for all
carriers at JFK, LGA, EWR, and PHL and for all carriers at any other
airport where an exemption from the tarmac delay rule is granted. In
addition, ACAA suggests that the Department also look into the impact
that significant delays at JFK, LGA, EWR, and PHL will have on other
airports in the New York-Philadelphia area and on airports in other
parts of the country.
    The Port Authority supports Option 4, stating that the Department
should deny the blanket requests and that the Aviation Enforcement
Office should consider the runway closure together with the unexpected
circumstances such as weather conditions that would preclude full use
of the remaining JFK runways in deciding whether to pursue an
enforcement case against a given carrier. The Port Authority states
that because airline schedules have already been reduced and use-or-
lose penalties for schedule reductions at JFK have been suspended by
the FAA with the support of the Port Authority, important passenger
protections should not be waived on a wholesale basis because of the
Bay Runway reconstruction.
    Comments were also submitted by the City of Philadelphia
(Philadelphia), the owner and operator of PHL. Philadelphia agrees with
Continental's comment that delays and delay mitigation strategies at
one New York Area airport adversely affect and inconvenience air
carriers and passengers at other New York Area airports. Philadelphia
states that at certain times, the efficiency of aircraft operations at
PHL is closely tied to that of those at EWR, JFK, and LGA. Philadelphia
argues that exemption from the application of the tarmac delays rules
for carriers at only one selected major airport within the New York Air
Route Traffic Control Center (New York ARTCC) would be fundamentally
unfair and provide a competitive and operational advantage for
operations at those selected points. Philadelphia states that each of
the airports are subjected to the same airspace, shared departure and
arrival routes and common control by the New York ARTCC, and their
interdependence of operations dictates that they be treated in a
similar and fair manner. Philadelphia states that it does not wish to
opine on the four options proposed by the Department, but believes that
equal treatment of airports and the carriers operating at these
airports should be paramount in the Department's ultimate decision.
Philadelphia argues that, should the Department grant the individual or
collective requests of carriers for exemptions from the tarmac delays
rules at JFK, EWR and LGA, fundamental fairness and the public interest
dictate that carriers operating at PHL be similarly exempted.
    Comments were also submitted to the Department by U.S. Senators
Barbara Boxer and Olympia J. Snowe. In a joint submission, they argue
that granting the requested exemptions is unnecessary and would
undermine important consumer protections for the flying public. They
further contend that the exemption requested by these airlines would
render the rule ineffective and maintain an unacceptable status quo.
They state that, while the requested exemption may appear to be
targeted toward the closure of JFK's main runway, allowing an exemption
would create a dangerous precedent. They reason that construction and
other disruptions at airports frequently cause minor delays throughout
America's airports, and that nothing exceptional or unexpected exists
about this particular case that warrants a blanket exemption. They
maintain that, in the ordinary course, airlines modify flight schedules
to account for construction and other disruptions, and this time should
be no different. They argue that it has been clear for a decade that
airlines refuse to hold themselves accountable to the voluntary
standards they agreed to and that Federal action to compel airlines to
recognize passengers' rights is not only long overdue, but the only
means available to ensure these rights are protected.
    In additional comments, FlyersRights.org argues that the
petitioning airlines are trying to nullify the three hour rule so they
can continue to over-schedule flights at congested airports without
risk of penalty. FlyersRights.org argues that the petitioning carriers
are seeking regulatory relief from the consequences of their chronic
over-scheduling of daily flights in excess of runway capacity. The
organization states that when airport capacity is temporarily reduced
due to runway construction, carrier schedules must be reduced and
carriers must use larger aircraft to make up the difference for the
reduction in the frequency of flights. FlyersRights.org maintains that
over-scheduling exists because the FAA has not required the airlines
serving JFK to reduce their scheduled operations at that airport to
avoid multi-hour departure delays before takeoff during the Bay Runway
reconstruction period, and that a grant of the exemption requests would
set a bad precedent. FlyersRights.org argues that the Department has
existing regulatory authority to consider mitigating factors in
deciding whether to pursue an enforcement case where a violation of the
three hour rule exists, and to negotiate the amount of any civil
penalty. Therefore, FlyersRights.org argues no exemptions should be
granted.
    Approximately 125 individuals submitted comments on the carriers'
requests for exemption. All but two of these consumers oppose the
carriers' requests for an exemption from the three hour tarmac delay
rule. Many consumers who oppose the carriers' requests support the
position taken by FlyersRights.org, and many argue that the government
must step in to protect the public because airlines too often mistreat
and take advantage of their customers. One commenter, who supports the
carriers' request for an exemption, argues that management science
supports not having the tarmac delay rule at all, and that the rule
regarding fines for three hour tarmac delays may negatively impact the
flying public. The commenter suggests that the Department revoke the
option of imposing a fine from its final ruling.

Decision

    After carefully taking into account all of the information
available to us at this time and fully considering the comments we
received, the Department finds that inadequate justification exists for
granting JetBlue, Delta, American, Continental, and US Airways the
requested exemption from the tarmac delay requirements in 14 CFR
259.4(b)(1) and (b)(2) for their operations at JFK, LGA, EWR, and PHL
airports, during the period of time that work affecting JFK's Bay
Runway is scheduled to take place, or until work on that runway is
complete. In these exemption requests, it was incumbent on the
petitioners to demonstrate that the requested actions are necessary and
in the public interest. They have failed to meet this burden and we are
not convinced that it is in the public interest to grant the carriers
the requested exemptions from the requirements of 14 CFR 259.4(b)(1)
and (b)(2).

    JetBlue maintains in its petition and the other petitioning
carriers appear to agree that granting relief from 14 CFR 259.4(b)(1)
and (b)(2) is critical so that the purpose of the tarmac delay rule--
enhancing passenger protections--is not undermined by unforeseen
circumstances. JetBlue argues that a rigid and inflexible application
of the rule will cause carriers to cancel flights rather than risk
substantial penalties to the detriment of passengers who want to reach
their destinations.
    We find this argument flawed and unpersuasive. JetBlue's argument
suggests that it would better serve the public interest to hobble the
very protections that the tarmac delay rule affords consumers by
permitting carriers to force passengers to remain on an aircraft for
more than three hours (as opposed to giving consumers the option to
deplane after three hours, or permitting them to choose some other form
of transportation, or not to travel at all). We strongly disagree. We
cannot lose sight of the fact that passengers on flights delayed on the
tarmac have a right to know that they will not be ``held hostage'' for
an unreasonable length of time on the tarmac.
    It is also important to note that the Department's Federal Aviation
Administration (FAA) predicts that the delays resulting from the runway
closure at JFK will be workable, i.e., similar to those seen during
peak summer months. The FAA expects that flights can be rerouted or
rescheduled in a way that will allow the other three runways to absorb
the extra traffic. Airlines have already taken steps to adjust their
schedules and operations to help mitigate the expected delays and they
should further adjust them, if necessary. We believe that the concerns
raised by the petitioning carriers can be resolved through further
adjustment of schedules as appropriate, and that the public interest
would be better served by keeping the full protections of the tarmac
delay rule in place. In addition, we note that since 14 CFR 259.4(b)(2)
permits U.S. carriers to establish any tarmac delay limit for their
international flights that they choose, we believe there is no
substantial reason to grant an exemption from this provision of the
rule. Moreover, while in the event of a violation, as always, the
Department's Aviation Enforcement Office will consider a number of
factors including, for example, the harm to consumers caused by the
violation and the specific impact of the runway closure in determining
whether to pursue an enforcement case and the civil penalty it would
seek in such an enforcement proceeding, it is incumbent on carriers to
adjust their schedules to reflect the reality of the runway
construction. Therefore, based on the foregoing, we find that granting
the requested exemption from the tarmac delay rule is not in the public
interest, and we deny the requests of JetBlue, Delta, American,
Continental, and US Airways, for an exemption from the requirements of
14 CFR 259.4(b)(1) and (b)(2) for their operations at JFK, LGA, EWR,
and PHL airports, during the period of time that work affecting JFK's
Runway 13R/31L is scheduled to take place, or until work on that runway
is complete.

    Issued this April 22, 2010, at Washington, DC.
Ray LaHood,
Secretary of Transportation.
[FR Doc. 2010-9716 Filed 4-23-10; 8:45 am]
BILLING CODE 4910-9X-P