
[Federal Register: March 30, 2010 (Volume 75, Number 60)]
[Notices]               
[Page 15765-15767]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr10-139]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

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

 
Request for Comments on Carriers' 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.

-----------------------------------------------------------------------

SUMMARY: On December 30, 2009, the Department of Transportation (DOT or 
Department) published a final rule that requires, among other things, 
that U.S. carriers adopt contingency plans for lengthy tarmac delays 
that 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-related reasons. This rule 
becomes effective on April 29, 2010. Several airlines have requested an 
exemption from these requirements for operations at John F. Kennedy 
International Airport (JFK), for seven months in 2010 during which 
runway construction is expected to be under way at that airport and the 
rule will otherwise be effective, one airline has asked that operations 
at Newark Liberty International Airport (EWR) and LaGuardia Airport 
(LGA) be similarly exempted for the same time period, and another has 
requested that Philadelphia International Airport (PHL) be included in 
any relief granted by the Department. The Department is seeking comment 
on the exemption requests to assist it in deciding whether it should 
grant or deny these requests. The Department will publish a document in 
the Federal Register regarding its decision on the exemption requests 
after it has reviewed the comments submitted.

DATES: Comments should be filed by April 9, 2010. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2007-0022 by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    Instructions: You must include the agency name and docket number 
DOT-OST-2007-0022 at the beginning of your comment. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received in any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act statement in the Federal Register published on 
April 11, 2000 (65 FR 19477-78).
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

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; 202-366-9342 (phone), 202-366-7152 
(fax), livaughn.chapman@dot.gov or blane.workie@dot.gov (e-mail).

SUPPLEMENTARY INFORMATION: 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 and 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-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 Air Traffic 
Control (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 before deplaning passengers as determined by 
the carriers, with the same safety, security, and ATC exceptions. 14 
CFR 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. 49 U.S.C. 46301.
    Jet Blue, American, and Delta recently requested an exemption from 
the tarmac delay rules for their JFK operations from March 1 through 
December 1, 2010, the period of time during which work affecting JFK's 
Runway 13R/31L (also referred to as the ``Bay Runway'') is scheduled to 
take place, or until work on the runway is completed, whichever date is 
earlier.\1\ On March 1, 2010, runway and airfield construction did in 
fact commence at JFK, and will temporarily affect operations at that 
airport. Runway 13R/31L, which is the longest and most frequently used 
of the four runways at JFK, measures 14,572 feet in length and handles 
approximately one-third of JFK's annual operations, including 
approximately half of all departures at JFK. The Port

[[Page 15766]]

Authority of New York and New Jersey (Port Authority) plans to 
resurface this runway with concrete and widen it to accommodate new 
large aircraft and to help prevent ice ingestion. The Port Authority 
also plans to install new runway lighting, electrical infrastructure, 
and a new electrical feeder system to the runway.
---------------------------------------------------------------------------

    \1\ We note at the outset that the requested exemption would 
begin March 1, 2010, although the rule does not go into effect until 
April 29, 2010.
---------------------------------------------------------------------------

    The construction project is proposed to occur in six phases, and 
will render Runway 13R/31L unavailable from March 1 to June 30, 2010. 
The western two-thirds of the runway is planned to reopen on July 1, 
but its use will be limited under some weather and operating 
conditions, primarily because some high-speed runway turnoffs and 
navigational aids (NAVAIDS) will be unavailable until later in the 
construction period. On September 15, Runway 4L/22R will close until 
September 30 to resurface its intersection with Runway 13R/31L. Runway 
13R/31L and its associated NAVAIDS is planned to reopen in its entirety 
and be fully functional in mid-November 2010.
    JetBlue asserts that it is imperative for the Department to issue 
it an exemption from the tarmac delay rules because of the JFK runway 
construction to ensure that the very purpose of the rule--to enhance 
passenger protections--is not undermined by the application of the 
final rule to unforeseen and unaddressed circumstances. More 
specifically, JetBlue requests relief from 14 CFR Sec. Sec.  
259.4(b)(1) and (b)(2), which prohibit carriers from permitting an 
aircraft to remain on the tarmac for more than 3 hours for domestic 
flights and for more than a set period of time as determined by the 
carrier for international flights without providing passengers an 
opportunity to deplane. JetBlue reasons that disruptive events, such as 
airport construction, often have a significant, domino-like impact upon 
multiple flights because the interconnecting resources required for 
each flight--aircraft, flight deck crew and flight attendant crew--each 
may compound the problem. JetBlue asserts that one late flight may 
delay three additional flights if the resources connect differently, 
and two or more late flights JetBlue argues may delay several more 
flights. JetBlue avers that once the final rule takes effect on April 
29, 2010, the potential for disruption will be further compounded 
because at the three-hour mark, flights must return to the gate and 
offer passengers the opportunity to deplane, thereby further delaying 
that flight (if not resulting in a cancellation). JetBlue asserts that 
such incidents will have a subsequent ripple effect on the following 
flights that require use of the same aircraft, cockpit crew or flight 
attendant crew.
    If the Department grants JetBlue its requested exemption, JetBlue 
states, it will inform passengers before boarding that significant 
delays may be encountered because of the Bay Runway closing, and will 
ensure that each of its aircraft is stocked with sufficient food and 
beverages to accommodate any such delay. In addition, JetBlue states 
that its lavatories will be available and its LiveTV service will be 
provided to passengers on each aircraft. JetBlue avers that it has 
already taken several steps to minimize the impact of this closure on 
its JFK operations, including voluntarily and significantly reducing 
planned flight operations and implementing guidelines for passenger 
comfort and convenience in such situations that are more stringent than 
current law requires.
    Delta supports JetBlue's request for a temporary exemption and 
further requests that identical relief from the tarmac delay 
contingency planning provisions be extended to Delta, and to other 
similarly situated carriers at JFK. Delta states that it has already 
trimmed its JFK schedule in anticipation of the Bay Runway 
reconstruction, and will take all reasonable measures to minimize 
inconvenience to passengers. Delta states that it agrees with JetBlue's 
argument that rigid and inflexible application of the new tarmac delay 
rule would have the unintended and undesirable effect of exacerbating 
passenger inconvenience and disruption by forcing the cancellation of 
flights that could otherwise be operated. Delta avers that airline 
recovery and reaccommodation efforts will be further hampered by the 
reduced capacity of the airport. Delta states that it is willing to 
abide by the same terms and conditions proposed by JetBlue, including 
informing passengers of the likelihood of delays, and ensuring that it 
provides adequate food, beverage, and sanitary facilities.
    American agrees with arguments by JetBlue and Delta that 
application of the new tarmac delay rule during the JFK runway 
reconstruction project could have unintended adverse impacts on 
passengers by causing carriers to cancel flights in lieu of incurring 
large civil penalties. American supports the exemption requests of both 
JetBlue and Delta, provided that the Department extends relief to all 
carriers operating at JFK, rather than limit such relief to JetBlue and 
Delta. American argues that any scenario under which some but not all 
carriers at JFK would be subject to the tarmac delay rule would be 
unworkable, unfair, and confusing to consumers.
    Continental argues that the problems caused by the runway closure 
and construction at JFK described by Delta and JetBlue in their 
exemption requests are not limited to JFK. Continental states that the 
airports in the New York Metropolitan area share the same air space and 
arrival and departure corridors. Consequently, Continental contends, 
delays or delay mitigating strategies at JFK will adversely affect air 
carriers and passengers at EWR and LGA as well. Therefore, Continental 
takes the position that to the extent the Department grants Delta and 
JetBlue temporary relief from the tarmac delay rules fundamental 
fairness dictates that airlines serving EWR and LGA receive the same 
relief.
    Comments on these carriers' requests have been filed by 
FlyersRights.org. FlyersRights.org opposes each of the exemption 
requests. FlyersRights.org argues that those carriers are requesting 
permission to keep their passengers stranded for more than three hours 
on taxiways at JFK because airlines have overscheduled operations 
beyond the capacity of the JFK runway system during this temporary 
period. Flyersrights.org asserts 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. 
Flyersrights.org argues that ATC should prohibit airlines from pushing 
aircraft back from gates at congested airports, such as JFK, when a 
lengthy tarmac delay is inevitable. Flyersrights.org maintains that 
airlines have had months to plan for the reconstruction of the Bay 
Runway, and argues that a grant of the exemption requests would set a 
bad precedent.\2\
---------------------------------------------------------------------------

    \2\ Interested persons can read the carriers' exemption requests 
and comments on these requests in their entirety in this docket.
---------------------------------------------------------------------------

    Most recently, on March 22, 2010, US Airways also filed a request 
for an exemption from the tarmac delay rules. US Airways states in its 
petition that it fully supports Continental's request that all carriers 
serving the three major New York City airports be granted relief from 
the tarmac delay rules under the same terms and conditions contained in 
JetBlue's petition, provided that the Department grants the same relief 
for Philadelphia's airport (PHL). US Airways argues that PHL should be 
included because PHL shares the same airspace with JFK, LGA and EWR, is 
part of the same air traffic control

[[Page 15767]]

center, and has the same congestion challenges as those airports.
    The Department is 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 3-hour limit to be raised to 4 
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.
    We invite interested persons to comment on these proposed courses 
of action. What are the potential costs or benefits of each measure? 
Are there other alternative measures that the Department should 
consider? How likely are the proposed measures to succeed in protecting 
passengers from lengthy tarmac delays? Should carriers' requests for an 
exemption for their JFK operations be treated differently than the 
request for an exemption for the operations at LGA, EWR and PHL? Should 
any course of action apply to all carriers at JFK or only specific 
carriers (e.g., carriers with more significant presence at JFK)? Since 
carriers can establish any tarmac delay limits for international 
flights in their contingency plans, is there any reason that an 
exemption is needed for such flights? Commenters should explain their 
reasons for supporting or not supporting a particular measure or 
method.

    Issued this 25th day of March 2010, at Washington, DC.
Ray LaHood,
Secretary of Transportation.
[FR Doc. 2010-7198 Filed 3-29-10; 8:45 am]
BILLING CODE 4910-9X-P

