Tarmac Delay Rule
| Published date | 03 May 2021 |
| FR Document | 2021-08850 |
| Citation | 86 FR 23260 |
| Pages | 23260-23271 |
| Section | Rules and Regulations |
| Issuer | Transportation Department |
Federal Register, Volume 86 Issue 83 (Monday, May 3, 2021)
[Federal Register Volume 86, Number 83 (Monday, May 3, 2021)]
[Rules and Regulations]
[Pages 23260-23271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08850]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Parts 244 and 259
[Docket No. DOT-OST-2019-0144]
RIN 2105-AE47
Tarmac Delay Rule
AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).
ACTION: Final rule.
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SUMMARY: The U.S. Department of Transportation (DOT or the Department)
is issuing a final rule to modify U.S. and foreign air carrier
obligations with respect to tarmac delays and to conform carrier
obligations with respect to departure delays with the changes made to
the Federal Aviation Administration (FAA) Extension, Safety, and
Security Act of 2016. The final rule also makes changes to passenger
notification requirements during tarmac delays, as well as carrier
tarmac delay reporting and record retention requirements.
DATES: This rule is effective June 2, 2021.
FOR FURTHER INFORMATION CONTACT: Ryan Patanaphan, Senior Trial
Attorney, or Blane A. Workie, Assistant General Counsel, Office of
Aviation Consumer Protection, U.S. Department of Transportation, 1200
New Jersey Ave. SE, Washington, DC 20590, 202-366-9342, 202-366-7152
(fax), [email protected] or [email protected] (email).
SUPPLEMENTARY INFORMATION:
Background
Current Rule On April 25, 2011, the Department published the ``Enhancing Airline
Passenger Protections'' rule to improve the air travel environment for
passengers.\1\ Under this rule, carriers are required to adopt and
adhere to tarmac delay contingency plans. DOT's regulations require
that these plans contain assurances that covered carriers will not
allow aircraft to remain on the tarmac for more than 3 hours for
domestic flights and 4 hours for international flights without
providing passengers the option to deplane, subject to exceptions
related to safety, security, and Air Traffic Control related reasons.
Carriers' plans must also contain assurances that carriers will provide
adequate food and drinking water within 2 hours of the aircraft being
delayed on the tarmac, provide notifications regarding the status of
the delay and the opportunity to deplane if the opportunity to deplane
exists, maintain operable lavatories and, if necessary, provide medical
attention.
--------------------------------------------------------------------------- \1\ Enhancing Airline Passenger Protections Rule, 76 FR 23110,
Apr. 25, 2011.
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FAA Extension, Safety and Security Act Section 2308 of the FAA Extension, Safety, and Security Act of
2016, Public Law 114-190 (FAA Extension Act) requires the Department to
issue regulations and take other actions necessary to carry out the
amendments made by Section 2308. These amendments include new language
requiring air carriers to begin to return an aircraft to a suitable
disembarkation point no later than 3 or 4 hours after the main aircraft
door is closed for departure. In response to the FAA Extension Act, the
Department's Office of Aviation Enforcement and Proceedings (renamed
the Office of Aviation Consumer Protection, or OACP) issued an
``Enforcement Policy on Extended Tarmac Delays'' (Enforcement Policy)
\2\ on November 22, 2016. The Enforcement Policy states that, as a
matter of enforcement discretion, the Department will not take
enforcement action against U.S. and
[[Page 23261]]
foreign air carriers with respect to departure delays if U.S. and
foreign air carriers begin to return the aircraft to a gate or another
suitable disembarkation point no later than 3 hours for domestic
flights and no later than 4 hours for international flights after the
main aircraft door has closed in preparation for departure. The
Enforcement Policy further provides that the process of beginning to
return to the gate or a suitable disembarkation point varies based on
whether the aircraft is in a carrier-controlled part of the airport or
a non-carrier-controlled part of the airport. The Enforcement Policy
was intended to be a temporary fix until the Department issues a final
rule that specifically addresses lengthy tarmac delays pursuant to the
FAA Extension Act.
--------------------------------------------------------------------------- \2\ https://www.transportation.gov/airconsumer/enforcement-policy-extended-tarmac-delays.
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Notice of Proposed Rulemaking On October 25, 2019, the Department published a notice of proposed
rulemaking (NPRM), 84 FR 57370, in which it proposed to implement
changes to the tarmac delay rule resulting from the FAA Extension Act.
The NPRM incorporated the FAA Extension Act's new departure delay
standard by proposing a new exception applicable to departure delays,
with additional proposals intended to clarify or improve the existing
tarmac delay rule. In response to the NPRM, the Department received 18
comments from U.S. and foreign air carriers, air carrier associations,
a consumer advocacy group, an individual consumer, and a data and
technology company. The comments addressed ten subjects discussed in
the NPRM: (1) Departure delay exception, (2) start of the tarmac delay,
(3) applicability of the tarmac delay rule to U.S. and foreign air
carriers, (4) diversions, (5) data reporting requirements (including
reducing duplicative reports and other adjustments to existing
requirements), (6) narrative reporting requirement, (7) status
announcements, (8) deplaning announcements, (9) tarmac delay safety
exception, and (10) provision of food and water. The Department also
received comments on issues that were not raised in the NPRM and are
outside the scope of this rule--i.e., additional exceptions to the
tarmac delay rule, methodology used to calculate tarmac delay civil
penalties, and comfortable cabin temperatures. The Department has
carefully reviewed and considered the comments received. The
commenters' positions that are germane to the specific issues raised in
the NPRM and the Department's responses are set forth below.
Comments and Responses
1. Departure Delay Exception The NPRM: Section 42301 of Title 49 of the United States Code
provides that a tarmac delay ends for an arriving and departing flight
when a passenger has the option to deplane an aircraft and return to
the airport terminal; however, for a departing flight, it is not a
violation of the assurance to permit an aircraft to remain on the
tarmac for more than three hours for domestic flights and more than
four hours for international flights if the air carrier begins to
return the aircraft to a suitable disembarkation point by those times
in order to deplane passengers. DOT proposed to amend its tarmac delay
rule by creating a new departure delay exception to reflect the
statutory changes in 49 U.S.C. 42301. To determine when the carrier
begins to return to a suitable disembarkation point, DOT proposed that
if the aircraft is in an area of the airport property that is under the
carrier's control, an aircraft would be considered to have begun to
return to a suitable disembarkation point when the pilot begins
maneuvering the aircraft to the disembarkation point. DOT also proposed
that if the aircraft is in an area that is not under the carrier's
control, then the aircraft has begun to return to a suitable
disembarkation point when a request is made to the FAA control tower,
airport authority, or other relevant authority directing the aircraft's
operations, rather than when permission is granted as was articulated
in the Enforcement Policy. The Department proposed to apply the same
standard to flights of U.S. and foreign air carriers experiencing a
tarmac delay at a U.S. airport. Comments: Carriers were generally in agreement with the adoption of
the departure delay exception, with some carriers proposing different
standards for determining when the process of beginning to return to a
suitable disembarkation point is triggered. Although many carriers
agreed with changing the trigger from ``permission granted'' to
``permission requested,'' carriers and others mostly disagreed with
varying the standard for returning to a suitable disembarkation point
depending on the location of the aircraft on the airfield. Many
carriers expressed concern about their flight crews not being aware of
whether the aircraft was in a carrier-controlled area or an area
controlled by another entity. The International Air Transport
Association (IATA) and Airlines for America (A4A), in a joint comment
joined by several other airlines, recommended adopting a performance-
based standard for determining when a carrier begins to return to a
suitable disembarkation point regardless of the location of the
aircraft. Instead of finding that an aircraft begins to return when a
request is made to the FAA or other authority, IATA, A4A, and others
proposed that the aircraft begins to return when the decision is made
to return. Air China and Xiamen Air recommended that the exception be
triggered when a request to return is made by any carrier
representative. An individual and the FlyersRights organization opposed the
adoption of a departure delay exception. The individual commented that
the permissible tarmac delay time should be shortened, not lengthened
as would occur under the NPRM. FlyersRights commented that tarmac delay
incidents have increased in number since adoption of the 2016
Enforcement Policy, which provided for a new departure delay standard.
FlyersRights also commented that Congress intended the departure delay
exception to be triggered when the aircraft physically moves back to
the gate, rather than the standard articulated in the NPRM. DOT Response: After fully considering the comments received, the
Department has decided to implement the departure delay exception as
proposed in the NPRM. The 2016 FAA Extension Act requires the
Department to adopt a revised standard for tarmac delays on departing
flights. Compliance with the 2016 FAA Extension Act requires that the
Department permit carriers to keep departing flights on the tarmac for
periods longer than the 3- and 4-hour time periods currently allowed
under DOT's tarmac delay regulation, provided that the aircraft have
begun to return to a suitable disembarkation point by those times in
order to deplane passengers. The Department does not interpret its
authority under 49 U.S.C. 42301 to allow it to require a decrease in
the amount of time carriers are permitted to keep aircraft on the
tarmac, unless a carrier voluntarily chooses to lower the time-period
it will permit an aircraft to remain on the tarmac and incorporates
that lower time limit into its tarmac delay contingency plan. The Department acknowledges that commenters of multiple
perspectives suggested eliminating the dichotomy of carrier-controlled
and non-carrier-controlled areas from the analysis of whether an
aircraft has begun to return to a suitable disembarkation point. DOT
fully considered these comments and evaluated whether a single standard
could work in both situations. The Department concluded that its
approach
[[Page 23262]]
to analyzing the location of the aircraft and using a different
standard for whether the aircraft is in a carrier-controlled or non-
carrier-controlled area sufficiently balances the needs of effective
enforcement of the tarmac delay rule and the circumstances and
interests of carriers and passengers, while appreciating the complexity
of airport environments. A standard that requires carriers physically
to maneuver aircraft back to the gate regardless of the aircraft's
location, as sought by consumer advocates, may be difficult for
carriers to meet if their aircraft are in a position on the airfield
where FAA, for example, is directing the aircraft's movements and FAA
does not provide the clearance for an aircraft to physically move.
Conversely, industry commenters' suggestion that the process of
returning to the gate has begun when a decision is made to return,
lacks a measurable standard that can be easily corroborated. It could
also result in situations in which a carrier makes a decision to return
to a suitable disembarkation point, but the aircraft does not actually
begin the process to return to a suitable disembarkation point for some
time due to reasons within the carrier's control. The Department believes that the exception articulated in the NPRM
provides the best middle ground that balances the above interests. For
aircraft in an area of the airport that is not controlled by the
carrier, there are typically verifiable and objective indicia of when
an aircraft has begun the process of returning to a suitable
disembarkation point, and the Department has determined that an
appropriate trigger for this process is when the carrier makes a
request for permission from the third party directing the aircraft's
movements (e.g., FAA, airport authority, or terminal) to return to a
suitable disembarkation point. For aircraft that are in a carrier-
controlled area, the physical maneuvering of the aircraft will signal
the start of the process of returning to a suitable disembarkation
point, consistent with the standard that has been in effect since the
Department issued its 2016 Enforcement Policy. As stated in the NPRM, the Department notes that the departure
delay exception only applies when carriers begin to return to a
suitable disembarkation point in order to deplane passengers. If a
flight begins to return to a suitable disembarkation point, but does
not provide passengers an opportunity to deplane, absent one of the
safety, security, or air traffic control (ATC) exceptions provided in
the regulation, DOT would not consider the flight to have begun to
return to a suitable disembarkation point to provide passengers an
opportunity to deplane, and the departure delay exception would not
apply. For example, an aircraft that begins the process of returning to
the gate or another suitable disembarkation point for a mechanical-
related problem would not benefit from the departure delay exception if
the purpose of the return did not include providing passengers an
opportunity to deplane and passengers were not provided the option to
deplane.
2. Start of the Tarmac Delay The NPRM: The Department proposed that for departing flights, a
tarmac delay starts when the main aircraft door is closed, in line with
the language in the FAA Extension Act. The Department further proposed
to provide flexibility to carriers by taking into account circumstances
when a carrier has closed the main aircraft door for departure but the
aircraft has not left the gate. The Department proposed that, if a
carrier can show that passengers on board the aircraft have the
opportunity to deplane an aircraft, even while the aircraft doors are
closed, then the tarmac delay clock would not start until passengers no
longer have the opportunity to deplane. Absent a showing that
passengers have the opportunity to deplane while the aircraft is at the
gate with the doors closed, the Department would presume passengers do
not have an opportunity to deplane. Comments: Industry comments were generally supportive of the
proposal regarding the start of a tarmac delay for departing flights
and for the flexibility that the Department proposed for carriers. Some
carriers, as well as IATA and A4A, also preferred to use the gate
departure time as the start of the tarmac delay, in line with the data
that is submitted to the Bureau of Transportation Statistics under Form
BTS 244. Some carriers noted that many aircraft do not capture the door
closing time. Exhaustless, Inc. opposed any standard that does not
start the tarmac delay when the aircraft doors close, as provided in
the statute. FlyersRights noted that the flexibility offered in the
NPRM, in which carriers can rebut the presumption that the opportunity
to deplane ends when the aircraft doors close, negates the benefits of
the Department's proposal regarding the provision of food and water.
FlyersRights argues that, if the timer for the food and water
requirement starts when the aircraft doors close, then the timer for a
tarmac delay would not be in alignment if it starts at any time other
than the time the aircraft doors close. DOT Response: As amended by the FAA Extension Act, 49 U.S.C.
42301(b)(3) provides that ``[a] passenger shall have the option to
deplane an aircraft and return to the airport terminal when there is an
excessive tarmac delay,'' and that ``[i]n providing the option
described in subparagraph (A), the air carrier shall begin to return
the aircraft to a suitable disembarkation point'' no later than three
or four hours (depending on whether the flight is domestic or
international) ``after the main aircraft door is closed in preparation
for departure.'' Based on this statutory language, the Department
interprets the tarmac delay to start when the main aircraft door is
closed for departing flights, rather than the gate departure time
(i.e., the time the aircraft pushes back from the gate), as proposed by
some carriers. The Department expects that in most situations, the time
the aircraft door is closed is equivalent to the time passengers no
longer have the opportunity to deplane, thereby starting the tarmac
delay. However, the Department acknowledges that there may be a few
instances in which the opportunity to deplane may still exist after the
aircraft doors are closed, for example, circumstances in which the jet
bridge is still attached to the aircraft and the crew is available and
willing to open the aircraft door immediately to allow a passenger to
deplane. For this reason, this rule allows carriers to present evidence
that the opportunity to deplane exists even with the doors closed. In
such situations, evidence that the carrier made announcements that the
opportunity to deplane was available and that the aircraft doors could
be opened as soon as a passenger requested to deplane would be
sufficient to show that an opportunity existed. The Department agrees with FlyersRights regarding its comment that
flexibility in the start of the tarmac delay could create a
misalignment between the start of the tarmac delay and the start of the
food and water clock. For this reason, the Department has modified the
food and water provision in the rule, as discussed in a later section.
3. Applicability to U.S. and Foreign Carriers The NPRM: Although 49 U.S.C. 42301, which was amended by the FAA
Extension Act, only applies to U.S. carriers, the NPRM proposed to
apply the departure delay exception to both U.S. and foreign air
carriers under DOT's authority to prohibit unfair and
[[Page 23263]]
deceptive practices in 49 U.S.C. 41712. The NPRM proposed to apply the
requirements of the NPRM to both U.S. and foreign air carriers to
streamline the tarmac delay requirements and decrease confusion in the
airport environment. Comments: Commenters on this issue all agreed that adjustments to
the tarmac delay rule should be applied to U.S. and foreign air
carriers alike. DOT Response: The requirements of this final rule apply to both
U.S. and foreign air carriers, as proposed.
4. Diversions The NPRM: The NPRM proposed that diversions would be treated as
arriving flights up to the point that an opportunity to deplane is
provided to passengers. Once an opportunity to deplane is provided, the
diversion would be treated as a departing flight and after that point,
the departure delay exception could apply if carriers begin to return
to a suitable disembarkation point to deplane passengers within the
time frames specified in the exception. Comments: Industry comments were not all supportive of the NPRM's
proposed treatment of diversions. While Exhaustless, Inc. and Delta Air
Lines agreed with the proposals, Air China, the Association of Asia
Pacific Airlines (AAPA), the National Air Carrier Association, and the
Regional Airline Association (RAA), expressed their view that the
tarmac delay requirements should not apply to diversions. Many of them
noted that carriers should not be held accountable for the lack of
deplanement facilities at diversion airports, particularly during mass
diversions, or in instances in which foreign carriers do not serve the
diversion airport. AAPA also stated that passengers may not benefit
from the rule in such situations if the flights are cancelled and
passengers are stranded at an airport without carrier staff. Spirit
Airlines proposed that diversions be treated as departing flights
entirely, or to stop the tarmac delay clock when gates are not
available and the airport or air traffic control caused the delay. DOT Response: Section 42301 provides that a passenger shall have
the option to deplane from an aircraft during an excessive tarmac
delay, and that the option shall be offered to a passenger ``even if a
flight in covered air transportation is diverted to a commercial
airport other than the originally scheduled airport.'' 49 U.S.C.
42301(b)(3)(B). The statute makes clear that the tarmac delay
requirements apply to diversions, and the Department is implementing
the tarmac delay rule consistent with the statute. The Department has
decided to proceed with the NPRM proposal to permit carriers to take
advantage of the departure delay exception during diversions only after
an opportunity to deplane is provided to passengers. If no opportunity
to deplane has been provided, then the diversion is still treated as an
arriving flight and the carrier must provide an opportunity for
passengers to deplane within 3 or 4 hours, depending on whether the
flight is domestic or international. The departure delay exception, as
written, is not easily applied to diverted flights before an
opportunity to deplane is provided, particularly the exception's
primary elements such as returning to a suitable disembarkation point
and doing so within 3 or 4 hours after the main aircraft door is
closed. In considering the concerns of foreign carriers who may have
limited operations at a diversion airport, the Department's Office of
Aviation Consumer Protection, the unit within the Office of the General
Counsel that enforces aviation consumer protection requirements,
already considers circumstances in which a carrier encounters
unforeseeable conditions, and for which the carrier exerts no control,
in determining whether to proceed with enforcement action and whether
to mitigate any potential sanction. The Department also notes that
carriers are required by the regulation to coordinate tarmac delay
procedures in advance with the airport authorities and government
agencies at the carrier's regular diversion airports in the United
States. If exigent circumstances require a flight to divert to an
airport that is not a regular U.S. diversion airport for the carrier,
while the tarmac delay requirements would continue to apply, the Office
of Aviation Consumer Protection would consider the totality of the
circumstances in determining whether there is a violation in such a
situation. In doing so, the Office of Aviation Consumer Protection
recognizes that carriers diverting to a non-regular diversionary
airport are not required to coordinate tarmac delay contingencies in
advance with authorities at that airport and may not have a contingency
plan with the airport, which may impact the airline's ability to
provide the opportunity to deplane in a timely manner. The Office of
Aviation Consumer Protection often affords the carrier additional
leeway when the carrier finds itself in such circumstances; however,
the tarmac delay requirements not related to the opportunity to
deplane, such as providing timely food and water or notifications,
would not be impacted when the delay occurs at a non-regular diversion
airport. The Department expects the carrier to take reasonable efforts
to prevent or mitigate tarmac delay violations given the resources
available in each respective situation.
5. Data Reporting Requirements The NPRM: The Department proposed to revise the tarmac delay
reporting requirements in 14 CFR part 244. Under existing reporting
rules in 14 CFR parts 234 and 244, reporting carriers \3\ are required
to file BTS Form 234 ``On-Time Flight Performance Report'' on a monthly
basis for all scheduled passenger domestic flights that they market
under their code to or from any U.S. large, medium, small, or non-hub
airport. The report includes information on domestic scheduled
passenger flights that experience tarmac delays at U.S. airports.
Reporting carriers are also required to file BTS Form 244 ``Tarmac
Delay Report'' on a monthly basis to report information on passenger
flights they operate that experience lengthy tarmac delays, including
domestic scheduled passenger flights that experience lengthy tarmac
delays at medium, small, or non-hub U.S. airports to the extent the
carriers do not already report on-time performance data voluntarily for
these airports under 14 CFR 234.7.\4\ The combination of 14 CFR parts
234 and 244 reporting requirements has resulted in reporting carriers
reporting tarmac delays twice at most U.S. airports. The NPRM proposed
that reports for tarmac delays on scheduled domestic passenger flights
no longer needed to be reported by reporting carriers under 14 CFR part
244, provided that such flights are reported under 14 CFR part 234.
--------------------------------------------------------------------------- \3\ ``Reporting carrier'' for air transportation taking place on
or after January 1, 2018, means an air carrier certificated under 49
U.S.C. 41102 that accounted for at least 0.5 percent of domestic
scheduled-passenger revenues in the most recently reported 12-month
period as defined by the Department's Office of Airline Information,
and as reported to the Department pursuant to part 241. Reporting
carriers will be identified periodically in accounting and reporting
directives issued by the Office of Airline Information. 14 CFR
234.2. \4\ Reporting carriers are not required to file BTS Form 244 to
report information on scheduled flights that experience lengthy
tarmac delays at large hub U.S. airports because when DOT issued its
rule for carriers to file BTS Form 244, that information was already
required to be reported for domestic scheduled flights at large hub
airports through BTS Form 234. Since then, the requirement for
reporting carriers to provide on-time performance data using BTS
Form 234 has been expanded to cover medium, small and non-hub
airports. Also, the reporting of on-time performance data for
scheduled domestic flights at medium, small, or non-hub U.S.
airports on BTS Form 234 is mandatory and no longer voluntary for
reporting carriers.
--------------------------------------------------------------------------- The Department also proposed to eliminate the requirement that
tarmac delay reports be filed under 14 CFR part
[[Page 23264]]
244 for international tarmac delays of between 3 and 4 hours in
duration. Under the proposal, the requirement to report would only be
triggered if the tarmac delay rises to the level of an ``excessive
tarmac delay,'' defined as a tarmac delay of more than 3 hours for a
domestic flight and more than 4 hours for an international flight. Comments: Commenters generally supported the proposed changes to
data reporting requirements. IATA and A4A also proposed that flights
falling under the departure delay exception be excluded from reporting
requirements, as the organizations preferred not to have such flights
included in the Department's monthly Air Travel Consumer Report. They
also proposed excluding such flights from the statutory reporting
requirement for U.S. carriers under 49 U.S.C. 42301(h). The RAA
disagreed with the NPRM proposal, and expressed the view that non-
reporting carriers should be exempt from 14 CFR part 244 reporting
requirements entirely, including when a flight is not reported by a
reporting carrier. Exhaustless, Inc. and FlyersRights opposed the
proposal that international tarmac delays of between 3 and 4 hours in
duration no longer needed to be reported under 14 CFR part 244, with
FlyersRights noting that a competitive market requires informed
consumers. DOT Response: On balance, the Department views the data reporting
requirement as serving a useful purpose in providing information to
consumers to enable them to make informed decisions. However, the
Department found that continuing to require reports for international
tarmac delays not exceeding 4 hours would serve limited value to
consumers, particularly when the Department does not publish these
underlying tarmac delays in the monthly Air Travel Consumer Report. The
data for international tarmac delays between 3 and 4 hours in duration
primarily served an academic function, without aiding consumers'
ability to make informed choices, an element of the Department's
consumer protection mission. For this reason, the Department has
decided to adopt the proposal that international tarmac delays of 4
hours or less no longer need to be reported under 14 CFR part 244. Regarding duplicative reporting, the intent of the Department on
this subject was to reduce unnecessary reporting that resulted from
recent changes to 14 CFR part 234, thereby reducing the reporting
burden for both reporting and non-reporting carriers. After reviewing
the comments, the Department continues to see no reason to delay moving
forward with the proposed changes of eliminating duplicative reporting.
The final rule makes minor adjustments and relieves non-reporting
carriers of the obligation of filing BTS Form 244 for scheduled
domestic flights if such flights are already reported by the reporting
carrier to the Department using BTS Form 234. As noted in the NPRM,
prior to this rule, tarmac delays on scheduled domestic flights
marketed but not operated by a reporting carrier were reported twice:
The reporting carrier reported the flight using BTS Form 234, and the
non-reporting carrier reported the same flight using BTS Form 244. The
final rule also relieves reporting carriers of the obligation of filing
BTS Form 244 for scheduled domestic tarmac delays that occur at small,
medium, and non-hub airports, delays which are already reported under
14 CFR part 234. Under the final rule, all covered carriers continue to
be required to file BTS Form 244 for tarmac delays occurring on
international and public charter flights, and on flights not otherwise
reported under 14 CFR part 234 (e.g., extra section flights). Non-
reporting U.S. carriers that operate flights that are not held out by
reporting carriers are still required to file BTS Form 244 for tarmac
delays on domestic and international flights. The Department was not
persuaded that non-reporting carriers should be exempt from the part
244 reporting requirement. On the contrary, such reports may serve even
greater value to consumers when they evaluate flight options from
smaller, non-reporting carriers, many of which may be less familiar to
the traveling public than larger, reporting carriers. The Department found unpersuasive commenters' suggestion that
tarmac delays meeting the departure delay exception or another
exception be excluded from reporting requirements. The Department notes
that the definition of an ``excessive tarmac delay'' under 49 U.S.C.
42301 for U.S. carriers is unaffected by whether an exception to the
tarmac delay incident exists. Such exceptions, if applicable, would
mean that the lengthy tarmac delay incident did not violate the law,
but the exceptions do not reclassify a tarmac delay as something other
than a tarmac delay. The applicability of an exception also does not
impact whether a carrier must file a tarmac delay report under 49
U.S.C. 42301(h), and in the regulatory context, the Department views
the applicability of an exception to impact whether a carrier has
violated the tarmac delay rule, but not whether a tarmac delay has
occurred. Whether an exception to the tarmac delay incident applies,
the consumer harm of being held on an aircraft for an extended period
exists, and information concerning such incidents is important for
consumers to make informed decisions. The Department also notes that, if carriers were permitted to
exclude flights meeting a tarmac delay exception from their reporting
requirements, the result could be inconsistent reporting practices
between carriers determining whether an exception applied, thereby
adding subjectivity to the data. Moreover, reporting carriers would see
an increase in the time and resources needed to file their monthly
reports under 14 CFR part 234 because the time needed to investigate
and sort out tarmac delay exceptions from routine monthly on-time
performance reports could be significant based on the amount of time
that it currently takes airlines and the Department to make such
determinations.
6. Narrative Reporting Requirement The NPRM: The Department proposed to eliminate the tarmac delay
record retention requirement in 14 CFR 259.4(e) and replace it with a
reporting requirement. Prior to this final rule, U.S. and foreign air
carriers with a tarmac delay contingency plan were required to retain
specific information related to a tarmac delay for two years,
including, among other information, the length and cause of the delay
and an explanation of the actions taken to minimize passenger hardship.
Under 49 U.S.C. 42301(h), U.S. carriers are also required to submit a
written description of each excessive tarmac delay, which may include
the information required to be retained under 14 CFR 259.4(e). The
Department proposed that the new reporting requirement, which would
replace the record retention requirement, would include the same
information required to be retained under the existing Sec. 259.4(e),
and would also satisfy U.S. carrier obligations under 49 U.S.C.
42301(h). The Department proposed that the new reports would be due
within 30 days of the date an excessive tarmac delay occurs, which is
consistent with the time frame reports are due for U.S. carriers under
49 U.S.C. 42301(h). Comments: Comments from industry were supportive of the proposal.
The AAPA, IATA, and A4A noted that the 30-day timeframe for filing the
narrative reports as proposed in the NPRM may be insufficient,
particularly when the precise cause of the delay may take longer to
determine. The associations felt that carrier personnel may feel
uncomfortable certifying to information that may change after the
report is filed,
[[Page 23265]]
and they asked that the certification statement accompanying the report
be qualified to certify to the accuracy of the report at the time the
report is submitted. IATA and A4A expressed their view that the
Department should rely on a carrier's narrative report to the exclusion
of other evidence that the Department would otherwise seek from
carriers during the course of a tarmac delay investigation. DOT Response: After reviewing the comments, the Department has
decided to adopt the proposal in the final rule, with slight revisions
to address carrier concerns regarding the certification statement. The
Department has decided to maintain a 30-day time frame for this
narrative reporting requirement because this aligns with the narrative
reporting requirement for U.S. carriers under 49 U.S.C. 42301(h).
Because the final rule permits U.S. carriers to fulfill their section
42301(h) reporting obligation under this regulation, the time frame for
the narrative reporting requirement under this rule is consistent with
that set by the statute. The Department has considered carriers' concerns that carrier staff
may be uncomfortable with certifying to the accuracy of a report when
new information may be learned following the submission of a report.
This final rule modifies the certification language by clarifying that,
to the submitter's knowledge and belief, the submitted report is true
and correct based on information available at the time of this report's
submission. The Department expects that carriers will supplement their
reports with the Department and submit additional information or
materials, including any corrections to the previously submitted
reports, as soon as new information becomes known.
7. Status Announcements The NPRM: The Department proposed to eliminate the requirement that
carriers provide notifications regarding the status and cause of the
delay every 30 minutes to passengers on board an aircraft. Comments: Most comments were in favor of the proposal. FlyersRights
disagreed with the proposed elimination of the status announcements and
suggested that passengers on board a plane be informed of changes in
the status or cause of the delay. Air New Zealand expressed the view
that it would be more appropriate to provide passenger announcements
when new information becomes available or where there is information
specific to a change in circumstances. DOT Response: After carefully considering the comments submitted,
the Department has decided to retain a scaled-down status notification
requirement in the final rule, rather than eliminating the requirement
entirely as proposed in the NPRM. Under the final rule, each covered
carrier is required to notify passengers once regarding the status of
the delay when the tarmac delay exceeds 30 minutes. The rule clarifies
that each covered carrier may provide subsequent updates, including
flight status changes and additional information beyond the
requirements of the rule, as the carrier deems appropriate. The
Department believes that carriers should, at a minimum, provide basic
information about the status of a delay when passengers have been on
board a delayed aircraft for over 30 minutes, and the status
notification requirement in this rule enables passengers to receive
that minimum information. Such a notification may have the effect of
setting passenger expectations for the length of the delay, and may
help to mitigate passenger concerns or complaints. The Department
expects that carriers will continue to notify passengers regarding
changes in the status of the delay as changes occur, and the Department
encourages them to do so. However, the Department no longer requires
that carriers provide regular status notifications every 30 minutes. In
the NPRM, the Department noted that regular status notifications may
serve limited value to consumers if no new information is available,
particularly during overnight delays when passengers may prefer to
remain uninterrupted. Accordingly, the Department believes that
carriers are in the best position to determine what information will be
most useful and least disruptive to passengers in each situation.
8. Deplaning Announcements The NPRM: The Department proposed to change carrier obligations
with respect to notifying passengers when they have an opportunity to
deplane. Prior to this final rule, carriers were required to notify
passengers that they have the opportunity to deplane an aircraft if the
opportunity to deplane exists. The first notification was required
beginning 30 minutes after the scheduled departure time, and another
notification needed to be made every 30 minutes thereafter while the
opportunity to deplane existed. The Department proposed to eliminate
the carrier's obligation to provide additional notifications every 30
minutes, thereby reducing the burden on carrier staff, while
maintaining passengers' access to information. Under the proposal,
carriers would be obligated to make a notification when an opportunity
to deplane exists (and each time such an opportunity recurs, if, for
example, an aircraft returns to the gate after taxiing). Comments: Commenters unanimously agreed with the proposed change to
the rule. FlyersRights commented that passengers should also be
notified about the end of an opportunity to deplane. DOT Response: The obligation to provide an announcement regarding
the passengers' opportunity to deplane from an aircraft is an essential
component of the tarmac delay rule. As the Department has previously
noted, the announcement serves the critical purpose of informing all
passengers on the aircraft that the opportunity to deplane exists,
which, in many situations, will not be apparent to passengers seated in
areas that do not have a line of sight to an open aircraft door. It
prevents situations in which some passengers experience a tarmac delay
while other passengers on the same aircraft do not. Based on the comments, the Department has decided to adopt the
proposal regarding deplaning announcements, with slight clarifying
modifications, in this final rule. Under the final rule, each time the
opportunity to deplane exists at a suitable disembarkation point, each
covered carrier must timely notify the passengers on board the aircraft
that they have the opportunity to deplane. Carriers no longer have an
ongoing obligation to make deplaning announcements every 30 minutes, as
required by the existing rule, but they are required to make a timely
announcement when the opportunity to deplane arises, including in
situations in which the aircraft returns to the gate on departure, or
during a diversion when an aircraft is parked and awaiting departure to
the intended destination. In determining whether a deplaning
announcement is timely, the Office of Aviation Consumer Protection
considers various factors, such as the length of time that the
opportunity to deplane exists prior to an announcement being made and
whether a lack of a deplaning announcement had the effect of depriving
passengers of an opportunity to deplane. Carriers are not expected to
provide deplaning announcements during the boarding process or prior to
the scheduled departure time of the flight. Although the Department does not prescribe the precise content of
these announcements beyond informing passengers that they have the
[[Page 23266]]
opportunity to deplane, the Department encourages carriers to provide
passengers sufficient detail in their announcements to create a
realistic expectation of how long the opportunity to deplane will
continue to exist. This could help passengers gauge whether and when to
take advantage of the opportunity to deplane. Whether the carrier
permits a passenger to re-board the aircraft after the passenger has
taken advantage of the opportunity to deplane is an operational
decision left to the carrier for purposes of this rule. This rule does
not impact carriers' ability to announce that deplaning passengers
should stay near the gate area, or that deplaning passengers may not be
permitted to re-board the aircraft, as appropriate.
9. Tarmac Delay Safety and Security Exceptions The NPRM: Prior to this final rule, the tarmac delay regulations
and 49 U.S.C. 42301 had slightly different standards for the safety and
security exceptions to the tarmac delay requirements. Under the
regulation, 14 CFR 259.4, a safety or security exception existed when
the pilot-in-command determined that there was a safety related or
security related reason why the aircraft could not leave its position
on the tarmac to deplane passengers. Under 49 U.S.C. 42301, a passenger
must have the option to deplane an aircraft and return to the airport
terminal when there is a lengthy tarmac delay except when the pilot in
command determines that permitting a passenger to deplane would
jeopardize passenger safety or security. The Department proposed to
amend the safety and security exceptions to the tarmac delay rule to
incorporate the exceptions articulated in 49 U.S.C. 42301 into the
existing safety and security exceptions in the regulation. Under this
proposal, a safety or security exception would occur when the pilot-in-
command determined that deplaning passengers at a suitable
disembarkation point would jeopardize passenger safety or security, or
when there was a safety related or security related reason why the
aircraft could not leave its position on the tarmac to deplane
passengers. As the Department's Office of Aviation Consumer Protection
already considered the exceptions provided in 49 U.S.C. 42301 and the
Department's tarmac delay rule to determine whether a violation
occurred, the Department did not expect that this change in language
would impact carriers or consumers. Comments: Commenters generally agreed with the proposal, but many
carriers added that the Department should afford flight crews greater
deference and discretion in determining when a safety or security
exception exists, and that the Department should not second guess a
crewmember's decision on where to divert a flight. The RAA also
commented that the lack of buses and stairs should be considered a
safety exception to the tarmac delay rule, as the availability of such
equipment is often out of the carrier's control and is needed for
passenger safety. DOT Response: The Department has carefully considered the comments
submitted on this issue and is adopting the language of the safety and
security exceptions as articulated in the NPRM in this final rule. To
address commenters' concerns about deference to flight crews, the
Department notes that the Office of Aviation Consumer Protection
already defers generally to crew decisions not to offload passengers
for reasons that are reasonably based on safety and security concerns
when the circumstances that give rise to those safety and security
concerns are unavoidable and not precipitated by a carrier's own
actions or inactions. For example, the Office does not question a
pilot's decision about where to divert a flight because that is an
exigent, operational decision. The Office of Aviation Consumer
Protection may evaluate a carrier's decision to dispatch a flight,
however, if the carrier has reason to know that a diversion would be
likely at the time of the flight's departure. Regarding a lack of buses
and stairs, the Department does not consider the inability to offload
passengers due to the lack of deplaning equipment, absent other
factors, to create a per se safety exception to the tarmac delay rule.
If lacking a way to offload passengers were a per se exception to the
rule, the rule, which itself requires carriers to find ways to offload
passengers stranded on the tarmac, would have no effect. Consistent with current practice and Department policy, the Office
of Aviation Consumer Protection, when investigating potential tarmac
delay violations, affords the carrier the opportunity to present
evidence in support of its position, including whether the carrier
believes the rule was violated, whether an exception applies, whether
there are any mitigating circumstances, whether the consumer harm was
limited, and any other facts the carrier would like for the Office to
consider. The Office of Aviation Consumer Protection considers all the
information presented in each matter when determining whether
enforcement action and any sanction is appropriate.
10. Provision of Food and Water The NPRM: The Department proposed to clarify carrier obligations
with respect to the provision of food and water. Prior to this final
rule, carriers were required to provide adequate food and potable water
no later than 2 hours after the aircraft left the gate (in the case of
a departure) or touched down (in the case of an arrival) if the
aircraft remained on the tarmac, unless the pilot-in-command determined
that safety or security considerations precluded such service. Because
the obligation to provide food and water was triggered 2 hours after
the aircraft left the gate, there were two separate start times for
carriers' tarmac delay responsibilities. More specifically, for the
purposes of calculating the length of a tarmac delay, a tarmac delay
started after the main aircraft door was closed in preparation for
departure, which generally meant that passengers on board the aircraft
no longer had the opportunity to deplane. On the other hand, carriers'
obligation to provide food and water occurred within 2 hours of the
aircraft leaving the gate. The proposal sought to standardize carrier
obligations such that the food and water timer would begin at the same
time a tarmac delay begins. Comments: FlyersRights and several carriers agreed with the
proposal. IATA and A4A commented that the start of the food and water
timer should match the gate departure time, while Spirit Airlines
commented that starting the clock when the aircraft doors are closed
could lead to situations in which the aircraft is actively taxiing
while the food and water requirement is triggered, which could present
an unsafe situation. DOT Response: Based on the comments received, the Department has
adopted the proposal on this requirement, with slight modifications.
The language has been revised to clarify that the obligation to provide
food and water exists no later than 2 hours after the tarmac delay
begins. With this change in language, the tarmac delay clock and the
food and water clock are in alignment, addressing the concerns raised
by commenters including FlyersRights. As stated previously, a tarmac
delay for a departing flight generally starts when the main aircraft
door is closed. In some situations, this start time may also
approximate the time that the aircraft pushes back from the gate,
minimizing the potential impact of this modification to the rule in
such situations. The Department also notes that, as with the prior
iteration of the food and water requirement, safety or security
considerations may preclude
[[Page 23267]]
the provision of food and water. If 2 hours into the tarmac delay, for
example, the carrier can show that operation of the aircraft would make
the provision of food and water unsafe (e.g., the aircraft is taxiing
and approaching an active runway for takeoff), the obligation would not
be imposed at that time. The Department expects the carrier to provide
food and water at the next safe opportunity if the aircraft remains on
the ground with passengers onboard. As with prior guidance on this issue, the Department has chosen not
to define what constitutes ``adequate food'' for purposes of this rule.
The Department previously stated that a granola bar and a bottle of
water or similar snack would suffice. The Department does not expect
carriers to serve full meals, but carriers are expected to have or
obtain adequate supplies of food and drinking water for all passengers
onboard the aircraft during the delay. Carriers may provide more
substantial food or more frequent service as they deem appropriate.
Effective Date of Reporting Requirements The amended provisions of 14 CFR part 244 take effect for reports
submitted to the Department on or after the effective date of this
rule. As such, data for tarmac delays that are already reported under
14 CFR part 234 or data for tarmac delays of 4 or fewer hours in
duration on international flights are not to be included in reports
submitted to the Department on or after the effective date of the rule.
Also, part 244 reports submitted to the Department on or after the
effective date of the final rule must include the data points required
by 14 CFR 244.3(a) in the order they are listed in the regulation,
consistent with the BTS Accounting and Reporting Directive. The report
must also include the data point required by 14 CFR 244.3(b), if
applicable. Narrative reports under 14 CFR 259.4(g) are required for tarmac
delays occurring on and after the effective date of this rule. U.S.
carriers may continue to file their narrative reports at the website
https://filingtarmacdelayplan.dot.gov/, consistent with the prior
practice for reports filed under 49 U.S.C. 42301(h). Foreign carriers
may also file their narrative reports at this website after creating an
account. Alternatively, carriers may send their narrative reports to
the email address [email protected].
Statutory Authority The Department has the authority to establish minimum standards for
the emergency contingency plans of air carriers and to require
adherence to those plans, pursuant to 49 U.S.C. 42301. In addition, the
Department's authority to regulate unfair and deceptive practices in
air transportation or the sale of air transportation is found at 49
U.S.C. 41712. This final rule modifies or clarifies existing regulatory
requirements and does not declare a new practice to be unfair or
deceptive to consumers. Pursuant to 49 U.S.C. 41708, the Department has the authority to
require air carriers and foreign air carriers to file annual, monthly,
periodical, or special reports in the form and way prescribed by the
Department, and it may require such reports to be filed under oath.
Additionally, 49 U.S.C. 42301 requires air carriers to submit to the
Department a written description of an excessive tarmac delay within 30
days of the incident. A different statute, 49 U.S.C. 46301, gives the Department the
authority to issue civil penalties for violations of sections 41708,
41712, 42301, or for any regulation issued under the authority of those
sections.
Regulatory Notices
A. Executive Order 12866 (Regulatory Planning and Review) This action has been determined to be not significant under
Executive Order 12866 (``Regulatory Planning and Review''), as
supplemented by Executive Order 13563 (``Improving Regulation and
Regulatory Review''). Accordingly, the Office of Management and Budget
(OMB) has not reviewed it under that order.
B. Executive Order 13132 (Federalism) This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
rule does not contain any provision that (1) has substantial direct
effects on the States, the relationship between the National Government
and the States, or the distribution of power and responsibilities among
the various levels of government, (2) imposes substantial direct
compliance costs on State and local governments, or (3) preempts State
law. States are already preempted from regulating in this area by the
Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation
and funding requirements of Executive Order 13132 do not apply.
C. Executive Order 13084 This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because none of the
provisions in the final rule significantly or uniquely affect the
communities of the Indian tribal governments or impose substantial
direct compliance costs on them, the funding and consultation
requirements of Executive Order 13084 do not apply.
D. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
A direct air carrier or foreign air carrier is a small business if it
provides air transportation only with small aircraft (i.e., aircraft
with up to 60 seats/18,000 pound payload capacity). See 14 CFR 399.73.
Nearly all the provisions in this rule generate minimal cost savings or
are clarifications (which would result in no economic impact). This
rule is expected to result in cost savings or benefits that are minimal
and difficult to quantify. A small number of tarmac delays occur on
flights operated by small entities, and the impact on the small
entities is expected to be minimal. Accordingly, the Department does
not believe that the final rule would have a significant impact on a
substantial number of small entities. In addition, the Department did
not receive comments to the NPRM that suggested that the rule would
have a significant economic impact on a substantial number of small
entities.
E. Paperwork Reduction Act Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) (PRA),
no person is required to respond to a collection of information unless
it displays a valid Office of Management and Budget (OMB) control
number. As required by the PRA, the Department has submitted the
Information Collection Request (ICR) abstracted below to OMB. Before
OMB decides whether to approve those proposed collections of
information that are part of this final rule and issue a control
number, the public must be provided 30 days to comment. Organizations
and individuals desiring to submit comments on the information
collection requirements should direct them to the Office of Management
and Budget, Attention: Desk Officer for the Office of the Secretary of
Transportation, Office of Information and Regulatory Affairs,
Washington, DC 20503, and should also send a copy of their comments to:
[[Page 23268]]
Department of Transportation, Office of Aviation Consumer Protection,
Office of the General Counsel, 1200 New Jersey Avenue SE, Washington,
DC 20590. OMB is required to make a decision concerning the collection
of information requirements contained in this rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The Department may
not impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required. The Department intends to renew the OMB control number for
the information collection requirements resulting from this rulemaking
action. The OMB control number, when renewed, will be announced by
separate notice in the Federal Register. The 60-day notice for this
information collection was previously published in the Federal Register
as part of the NPRM. See 84 FR 57370. The Department invited interested
parties to comment on the information collection requirements contained
in the NPRM and did not receive comments regarding the estimated
burdens that would be imposed by the proposed changes to collection
requirements and that were referenced in the NPRM. However, commenters
generally supported the changed reporting obligations and the reduction
in burdens, as noted above. This final rule modifies existing information collection
requirements under OMB control number 2105-0561. OMB control number
2105-0561 addresses five information collections: (1) Retention of
tarmac delay data, (2) adoption and audit of tarmac delay plans, (3)
display of on-time performance data on carrier websites, (4) reporting
of tarmac delay data, and (5) posting of customer service plans and
contracts of carriage on carrier websites. The changes implemented by
this rule modify information collections 1 and 4 in the above list.
This rule does not replace, change, or discontinue the other
information collections that are addressed in OMB control number 2105-
0561. This rule changes two parts of the Department's regulations: 14 CFR
parts 244 (reporting tarmac delay data) and 259, specifically Sec.
259.4(e) (retention of records related to tarmac delays). It eliminates
reports for tarmac delays between 3 and 4 hours on international
flights, eliminates duplicative reporting of domestic tarmac delays
that are already reported under 14 CFR part 234, and changes a record
retention requirement in 14 CFR 259.4(e) into a descriptive tarmac
delay reporting requirement. For each of the information collections proposed for 14 CFR part
244 and 14 CFR 259.4, the title, a description of the respondents, and
an estimate of the burdens are set forth below:
1. Requirement That Carriers Report Certain Tarmac Delay Data to BTS
for Tarmac Delays Exceeding 3 Hours (for Domestic Flights) and
Exceeding 4 Hours (for International Flights) on a Monthly Basis Title: Reporting Tarmac Delay Data to BTS for Tarmac Delays
Exceeding 3 Hours (for Domestic Flights) and 4 Hours (for International
Flights). Respondents: U.S. carriers that operate scheduled passenger service
or public charter service using any aircraft with 30 or more seats, and
foreign air carriers that operate scheduled passenger or public charter
service to and from the United States using any aircraft with 30 or
more seats. Number of Respondents: 61 U.S. and 70 foreign carriers (estimated).
Due to the changes in the rule, it is expected that, in nearly all
cases, tarmac delays that would be reportable under 14 CFR part 244
would be on international flights, as nearly all tarmac delays on
domestic flights would be reported under 14 CFR part 234.\5\ Based on
data submitted by airlines to BTS from 2012 to 2019, the final rule
would result in an average of 27 tarmac delays on international flights
to be reported through BTS Form 244 in a given year.
--------------------------------------------------------------------------- \5\ The rule would not affect the reporting of tarmac delays on
domestic flights if those flights are not already reported under 14
CFR part 234 (i.e., those flights that are neither held out or
operated by carriers that file reports under 14 CFR part 234);
however, such tarmac delays are generally uncommon.
--------------------------------------------------------------------------- Estimated Annual Burden on Respondents: Based on the highest and
lowest number of reports submitted by each individual carrier in the
years 2012 through 2019, the rule's requirements would result in each
U.S. air carrier filing 0 to 18 reports annually under 14 CFR part 244,
and each foreign air carrier filing 0 to 7 reports annually under 14
CFR part 244. The ranges reflect the highest number of reportable
tarmac delays on international flights experienced in a year by
carriers during the period. At 30 minutes of burden per report filed,
the rule would result in a burden of between 0.0 hours and 9.0 hours
for each U.S. carrier, and between 0.0 and 3.5 hours for each foreign
air carrier. Estimated Total Annual Burden: This rule would result in an
estimated 27 reports filed under 14 CFR part 244 each year, with a
total annual burden of 13.5 hours. This total reflects a reduction in
existing burdens that would result from the rule's changes to existing
regulations, including (1) eliminating reports for tarmac delays
between 3 and 4 hours on international flights, and (2) eliminating
duplicative reporting for domestic tarmac delays that are already
reported under 14 CFR part 234. The rule's requirement for an
additional data point for certain tarmac delay reports (when the length
of the tarmac delay is not reflected in the required data points
reported on BTS Form 244) would not result in any measurable effect on
burden.
2. Eliminating Tarmac Delay Record Retention Requirement and Adding a
Narrative Reporting Requirement Title: Changing Tarmac Delay Record Retention Requirement into a
Narrative Reporting Requirement That Complies with 49 U.S.C. 42301(h). Respondents: U.S. carriers that operate scheduled passenger service
or public charter service using any aircraft with 30 or more seats, and
foreign air carriers that operate scheduled passenger or public charter
service to and from the United States using any aircraft with 30 or
more seats. Number of Respondents: 61 U.S. air carriers and 70 foreign air
carriers (estimated). Based on reports submitted by carriers to BTS
between 2012 and 2019, the Department expects an average of 150
reportable tarmac delays to occur in a given year, with an average of
134 delays on flights operated by U.S. air carriers and an average of
14 delays on flights operated by foreign air carriers (out of an
average of 27 annual tarmac delays occurring on international flights
operated by both U.S. and foreign carriers).\6\ Under the final rule,
carriers no longer need to retain for 2 years the records related to
these tarmac delays. Instead, carriers are required to file a report
with a written description of the tarmac delay incident to the
Department's Office of Aviation Consumer Protection. Because U.S.
carriers already file such reports pursuant to 49 U.S.C. 42301(h), U.S.
carriers do not encounter any additional reporting burdens under the
rule's changes to 14 CFR 259.4, and would experience a net burden
decrease as a result of the proposed elimination of the
[[Page 23269]]
record retention requirement. For purposes of calculating total
burdens, the Department has decided to incorporate the U.S. carrier
reporting burden under 49 U.S.C. 42301(h) into this information
collection, thereby combining the burden calculation for both U.S. and
foreign carrier narrative reports under this rule. U.S. carriers file
narrative reports for the 134 average annual tarmac delays they
experience, while the 14 average annual tarmac delays operated by
foreign air carriers would result in new reports being filed under 14
CFR 259.4. These reports replace the record retention that was required
of carriers prior to this final rule.
--------------------------------------------------------------------------- \6\ Due to rounding, the average number of annual tarmac delays
by U.S. and foreign carriers does not add up to the total average
number of annual tarmac delays (150).
--------------------------------------------------------------------------- Estimated Annual Burden on Respondents: The Department expects that
the burden on carriers to file descriptive tarmac delay reports is 2
hours per report for U.S. carriers and 4 hours per report for foreign
carriers. The expected burden per U.S. carrier is between 0 and 84
reports per year, and the expected burden per foreign carrier is
between 0 and 7 reports per year (based on the highest annual number of
tarmac delays experienced by a single U.S. and foreign carrier between
2012 and 2019), or 0.0 to 168.0 hours of burden per U.S. carrier and
0.0 to 28.0 hours of burden per foreign carrier. Estimated Total Annual Burden: This information collection would
result in an estimated annual burden of 134 reports for U.S. carriers
and 14 reports for foreign carriers, or a total of 324 hours (134
reports multiplied by 2 hours per report for U.S. carriers, and 14
reports multiplied by 4 hours per report for foreign carriers)
F. Unfunded Mandates Reform Act The Department has determined that the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply to this final
rule.
G. National Environmental Policy Act The Department has analyzed the environmental impacts of this final
rule pursuant to the National Environmental Policy Act of 1969 (42
U.S.C. 4321, et seq.) (NEPA) and has determined that it is
categorically excluded pursuant to DOT Order 5610.1C, Procedures for
Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979) available
at https://www.transportation.gov/office-policy/transportation-policy/procedures-consideringenvironmental-impacts-dot-order-56101c).
Categorical exclusions are actions identified in an agency's NEPA
implementing procedures that do not normally have a significant impact
on the environment and, therefore, do not require either an
environmental assessment (EA) or environmental impact statement (EIS).
See 40 CFR 1508.1(d). In analyzing the applicability of a categorical
exclusion, the agency must also consider whether extraordinary
circumstances are present that would warrant the preparation of an EA
or EIS. Id. Paragraph 4(c)(6)(i) of DOT Order 5610.1C provides that
``actions relating to consumer protection, including regulations'' are
categorically excluded. The purpose of this rulemaking is primarily to
amend obligations of carriers during tarmac delays. The Department does
not anticipate any environmental impacts, and there are no
extraordinary circumstances present in connection with this final rule.
As this action relates to airline consumer protection regulations, the
action is categorically excluded under the order.
List of Subjects
14 CFR Part 244 Administrative practice and procedure, Airports, Consumer
protection.
14 CFR Part 259 Air carriers, Consumer protection, Reporting and recordkeeping
requirements. For the reasons stated in the preamble, 14 CFR chapter II,
subchapter A, is amended as follows:
PART 244--REPORTING TARMAC DELAY DATA
0
1. Revise the authority citation for part 244 to read as follows: Authority: 49 U.S.C. 40101(a)(4), 40101(a)(9), 40113(a), 41702,
41708, 41712, and 42301.
0
2. Amend Sec. 244.1 by removing the definition of ``Arrival time'',
adding definitions for ``Excessive tarmac delay'' and ``Gate arrival
time'' in alphabetical order, and revising the definition for ``Tarmac
delay'' to read as follows:
Sec. 244.1 Definitions.
* * * * * Excessive tarmac delay means a tarmac delay of more than three
hours for a domestic flight and more than four hours for an
international flight.
* * * * * Gate arrival time is the instant when the pilot sets the aircraft
parking brake after arriving at the airport gate or passenger unloading
area. If the parking brake is not set, record the time for the opening
of the passenger door. Also, for purposes of Sec. 244.3 carriers using
a Docking Guidance System (DGS) may record the official ``gate-arrival
time'' when the aircraft is stopped at the appropriate parking mark.
* * * * * Tarmac delay means the period of time when an aircraft is on the
ground with passengers and the passengers have no opportunity to
deplane.
0
3. Revise Sec. 244.2 to read as follows:
Sec. 244.2 Applicability. (a) Covered operations. Except as provided in paragraph (b) of this
section, this part applies to U.S. certificated air carriers, U.S.
commuter air carriers and foreign air carriers that operate passenger
service to or from a U.S. airport with at least one aircraft that has
an original manufacturer's design capacity of 30 or more seats. Covered
carriers must report all passenger operations that experience an
excessive tarmac delay at a U.S. airport. (b) Exceptions. (1) For foreign air carriers that operate charter
flights from foreign airports to U.S. airports, and return to foreign
airports, and do not pick up any new passengers in the United States,
the charter flights are not flights subject to the reporting
requirements of this part. (2) For U.S. air carriers whose flights are reported under 14 CFR
part 234 (Airline Service Quality Performance Reports), their scheduled
domestic flights are not subject to the reporting requirements of this
part.
0
4. Revise Sec. 244.3 to read as follows:
Sec. 244.3 Reporting of tarmac delay data. (a) Each covered carrier shall file BTS Form 244 ``Tarmac Delay
Report'' with the Office of Airline Information of the Department's
Bureau of Transportation Statistics setting forth the information for
each of its covered flights that experienced an excessive tarmac delay
at a U.S. airport, including diverted flights and cancelled flights on
which the passengers were boarded and then deplaned before the
cancellation. The reports are due within 15 days after the end of any
month during which the carrier experienced the excessive tarmac delay.
The reports shall be made in the form and manner set forth in
accounting and reporting directives issued by the Director, Office of
Airline Information, and shall contain the following information: (1) Carrier code. (2) Flight number. (3) Departure airport (three letter code). (4) Arrival airport (three letter code). (5) Date of flight operation (year/month/day). (6) Gate departure time (actual) in local time.
[[Page 23270]] (7) Wheels-off time (actual) in local time. (8) Wheels-on time (actual) in local time. (9) Gate arrival time (actual) in local time. (10) Aircraft tail number. (11) Total ground time away from gate for all gate return/fly
return at origin airports including cancelled flights. (12) Longest time away from gate for gate return or canceled
flight. (13) Three letter code of airport where flight diverted. (14) Wheels-on time at diverted airport. (15) Total time away from gate at diverted airport. (16) Longest time away from gate at diverted airport. (17) Wheels-off time at diverted airport. (b) Covered carriers that experience an excessive tarmac delay at a
U.S. airport and are filing a form under this section must also report
the length of the excessive tarmac delay to the Office of Airline
Information of the Department's Bureau of Transportation Statistics, if
the length of the excessive tarmac delay experienced is not otherwise
represented by the data points listed in paragraph (a) of this section
(e.g., the pilot sets the aircraft parking brake after arriving at the
passenger unloading area, but passengers are not provided an
opportunity to deplane at that time). (c) The same information required by paragraphs (a)(13) through
(17) of this section must be provided for each subsequent diverted
airport landing.
PART 259--ENHANCED PROTECTIONS FOR AIRLINE PASSENGERS
0
5. The authority citation for part 259 is revised to read as follows: Authority: 49 U.S.C. 40101(a)(4), 40101(a)(9), 40113(a), 41702,
41708, 41712, and 42301.
0
6. Revise Sec. 259.2 to read as follows:
Sec. 259.2 Applicability. This part applies to all the flights of a certificated or commuter
air carrier if the carrier operates scheduled passenger service or
public charter service using any aircraft originally designed to have a
passenger capacity of 30 or more seats, and to all flights to and from
the U.S. of a foreign air carrier if the carrier operates scheduled
passenger service or public charter service to and from the U.S. using
any aircraft originally designed to have a passenger capacity of 30 or
more seats, except as otherwise provided in this part. This part does
not apply to foreign air carrier charters that operate to and from the
United States if no new passengers are picked up in the United States.
Section 259.4 does not apply to a flight that diverts to the United
States when the flight is operated by a foreign air carrier and
scheduled to operate between two foreign points.
0
7. Amend Sec. 259.3 by adding definitions for ``Main aircraft door''
and ``Suitable disembarkation point'' in alphabetical order and
revising the definition of ``Tarmac delay'' to read as follows:
Sec. 259.3 Definitions.
* * * * * Main aircraft door means the door used for boarding. In situations
in which there are multiple doors that can be used for boarding, the
last door closed is the main aircraft door.
* * * * * Suitable disembarkation point means a location at an airport where
passengers can deplane from an aircraft. Tarmac delay means the period of time when an aircraft is on the
ground with passengers and the passengers have no opportunity to
deplane.
0
8. Revise Sec. 259.4 to read as follows:
Sec. 259.4 Contingency Plan for Lengthy Tarmac Delays. (a) Adoption of plan. Each covered carrier, as defined by Sec.
259.3, shall adopt a Contingency Plan for Lengthy Tarmac Delays for its
scheduled and public charter flights at each U.S. large hub airport,
medium hub airport, small hub airport, and non-hub airport at which it
operates or markets such air service, except as specified in Sec.
259.2, and shall adhere to its plan's terms. (b) Contents of plan. Each Contingency Plan for Lengthy Tarmac
Delays shall include, at a minimum, assurances that the covered carrier
shall comply with the requirements set forth in paragraph (c) of this
section. (c) Requirements. Covered carriers must comply with the following
requirements: (1) For all domestic flights, each covered U.S. air carrier shall
provide a passenger on a flight experiencing a tarmac delay at a U.S.
airport the opportunity to deplane before the tarmac delay exceeds
three hours in duration, subject to the exceptions in paragraph (c)(3)
of this section; (2) For all international flights, each covered carrier shall
provide a passenger on a flight experiencing a tarmac delay at a U.S.
airport the opportunity to deplane before the tarmac delay exceeds four
hours in duration, subject to the exceptions in paragraph (c)(3) of
this section; (3) A covered U.S. carrier that experiences a tarmac delay at a
U.S. airport must comply with paragraphs (c)(1) and (2) of this
section, and a covered foreign air carrier must comply with paragraph
(c)(2) of this section, unless: (i) For departing flights, the flight begins to return to a
suitable disembarkation point no later than three hours (for domestic
flights) or four hours (for international flights) after the main
aircraft door is closed in order to deplane passengers. If the aircraft
is in an area that is not under the carrier's control, the aircraft has
begun to return to a suitable disembarkation point when a request is
made to the Federal Aviation Administration control tower, airport
authority, or other relevant authority directing the aircraft's
operations. If the aircraft is in an area that is under the carrier's
control, the aircraft has begun to return to a suitable disembarkation
point when the pilot begins maneuvering the aircraft to a suitable
disembarkation point; (ii) The pilot-in-command determines that deplaning passengers at a
suitable disembarkation point would jeopardize passenger safety or
security, or there is a safety related or security related reason why
the aircraft cannot leave its position on the tarmac to deplane
passengers; or (iii) Air traffic control advises the pilot-in-command that
returning to a suitable disembarkation point to deplane passengers
would significantly disrupt airport operations; (4) For all flights during a tarmac delay, each covered carrier
must provide adequate food and potable water no later than two hours
after the start of the tarmac delay, unless the pilot-in-command
determines that safety or security considerations preclude such
service; (5) For all flights, each covered carrier must ensure operable
lavatory facilities, as well as adequate medical attention if needed,
during a tarmac delay; (6) For all flights, each covered carrier must notify the
passengers on board the aircraft during a tarmac delay regarding the
status of the delay when the tarmac delay exceeds 30 minutes, and
thereafter each covered carrier may provide subsequent updates,
including flight status changes, as the carrier deems appropriate; (7) For all departing flights and diversions, each time the
opportunity to deplane exists at a suitable disembarkation point, each
covered carrier must timely notify the passengers on board the aircraft
that the
[[Page 23271]]
passengers have the opportunity to deplane; (8) Each covered carrier must ensure that it has sufficient
resources to implement its Contingency Plan for Lengthy Tarmac Delays,
as set forth in paragraphs (a) and (b) of this section; and (9) Each covered carrier must ensure that its Contingency Plan for
Lengthy Tarmac Delays, as set forth in paragraphs (a) and (b) of this
section, has been coordinated with the following entities: (i) Airport authorities (including terminal facility operators
where applicable) at each U.S. large hub airport, medium hub airport,
small hub airport, and non-hub airport that the carrier serves, as well
as its regular U.S. diversion airports; (ii) U.S. Customs and Border Protection (CBP) at each large U.S.
hub airport, medium hub airport, small hub airport, and non-hub airport
that is regularly used for that carrier's international flights,
including regular U.S. diversion airports; and (iii) The Transportation Security Administration (TSA) at each U.S.
large hub airport, medium hub airport, small hub airport, and non-hub
airport that the carrier serves, including regular U.S. diversion
airports. (d) Diversions. For purposes of this section, a diverted flight is
treated as an arriving flight up to the point that an opportunity to
deplane is provided to passengers. Once an opportunity to deplane is
provided, the diversion is treated as a departing flight, and after
that point, the departure delay exception in paragraph (c)(3)(i) of
this section applies if the carrier begins to return to a suitable
disembarkation point in order to deplane passengers as required by the
exception. (e) Code-share responsibility. The tarmac delay contingency plan of
the carrier under whose code the service is marketed governs, if
different from the operating carrier, unless the marketing carrier
specifies in its contract of carriage that the operating carrier's plan
governs. (f) Amendment of plan. At any time, a carrier may amend its
Contingency Plan for Lengthy Tarmac Delays to decrease the time for
aircraft to remain on the tarmac for domestic flights covered in
paragraph (c)(1) of this section, for aircraft to remain on the tarmac
for international flights covered in paragraph (c)(2) of this section,
for aircraft to begin to return to a suitable disembarkation point
covered in paragraph (c)(3)(i) of this section, and for providing food
and water covered in paragraph (c)(4) of this section. A carrier may
also amend its plan to increase these intervals (up to the limits in
this part), in which case the amended plan shall apply only to
departures that are first offered for sale after the plan's amendment. (g) Written reports. (1) Each covered operating carrier subject to
this part shall submit to the Office of Aviation Consumer Protection of
the U.S. Department of Transportation a written description of each of
the flights it operates that experiences a tarmac delay of more than
three hours (on domestic flights) and more than four hours (on
international flights) at a U.S. airport no later than 30 days after
the tarmac delay occurs. (2) The written description referenced in paragraph (g)(1) of this
section shall include, at a minimum, the following information: (i) The name of the operating carrier, the name of the marketing
carrier if the operating carrier is not the marketing carrier, and the
flight number; (ii) The originally scheduled origin and destination airports of
the flight; (iii) The airport at which the tarmac delay occurred and the date
it occurred; (iv) The length of the tarmac delay that occurred; and (v) An explanation of the incident, including the precise cause of
the tarmac delay, the actions taken to minimize hardships for
passengers (including the provision of food and water, the maintenance
and servicing of lavatories, and medical assistance), and the
resolution of the incident. (3) The written description referenced in paragraph (g)(1) of this
section shall be accompanied by a signed certification statement that
reads as follows: I, (Name) and (Title), of (Carrier Name), certify that the enclosed
report has been prepared under my direction, and affirm that, to the
best of my knowledge and belief, the report is true and correct, based
on information available at the time of this report's submission. Date: Signature: Email address and phone number: (4) A U.S. air carrier that submits a report in accordance with
paragraph (g) of this section is in compliance with the reporting
mandate for U.S. air carriers in 49 U.S.C. 42301(h) with respect to the
excessive tarmac delay reported. (h) Unfair and deceptive practice. A carrier's failure to comply
with the assurances required by this part and contained in its
Contingency Plan for Lengthy Tarmac Delays will be considered to be an
unfair and deceptive practice within the meaning of 49 U.S.C. 41712
that is subject to enforcement action by the Department. Issued this 23rd day of April, 2021, in Washington, DC under
authority delegated in 49 CFR 1.27(n):
John E. Putnam,
Acting General Counsel.
[FR Doc. 2021-08850 Filed 4-30-21; 8:45 am]
BILLING CODE 4910-9X-P
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