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13 November 2019
The US Department of Transportation (DOT) has issued a notice of proposed rulemaking to amend its regulations governing situations in which an aircraft remains on the airport tarmac without an opportunity for passengers to deplane for an extended period. The DOT's regulations will continue to prohibit tarmac delays that exceed three hours for domestic flights and four hours for international flights. The regulations also will continue to require that airlines provide passengers with:
In 2016 Congress enacted the Federal Aviation Administration (FAA) Extension, Safety, and Security Act, which changed the standard for determining tarmac delay violations for departing flights. The notice of proposed rulemaking seeks to conform the DOT's regulations with the act's requirements.
The notice of proposed rulemaking proposes the following changes to the DOT's current regulations and enforcement policies.
The notice of proposed rulemaking proposes that, for US and foreign air carriers, a departing aircraft located in an area of the tarmac not under the carrier's control will be considered to have begun to return to a suitable disembarkation point (stopping the tarmac delay clock) 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 is the case under the DOT's existing regulations and policy). If the aircraft is in an area controlled by the carrier, the tarmac delay clock will stop when the aircraft begins manoeuvring to the disembarkation point. In addition, for a departing aircraft, the tarmac delay clock will start when the main aircraft door is closed.
The notice of proposed rulemaking proposes to eliminate the need for US carriers to double report tarmac delays under 14 CFR Part 244 and 14 CFR Part 234. Specifically, the DOT would eliminate the need to report certain tarmac delay information under Part 244 where that information has already been reported under Part 234. Carriers would still be required to file Form 244 reports for flights involving tarmac delays that are not otherwise reported under Part 234. The DOT also proposes to modify the reporting requirement in 14 CFR Section 259.4(e) so that US and foreign carriers must report only tarmac delays that exceed the three and four-hour thresholds for domestic and international flights, respectively. Under the current regulation, carriers must report all flights that exceed a three-hour tarmac delay. These reports would be due within 30 days of the date of the tarmac delay.
The DOT proposes to eliminate the requirement (under 14 CFR Section 259.4(e)) for US and foreign carriers to retain records relating to a tarmac delay carriers for two years. The DOT views this record retention requirement as redundant in light of the reporting requirements for tarmac delays.
The notice of proposed rulemaking would clarify how the DOT determines when the clock starts for purposes of calculating when two hours have elapsed and when carriers must provide food and water. Specifically, under the DOT's current rules, carriers must provide 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 a safety or security exception applies. However, the tarmac delay clock begins after the main aircraft door has closed in preparation for departure. As a result, carriers may be required to track two separate start times (eg, if the aircraft door closes but the aircraft does not leave the gate for some time). The notice of proposed rulemaking would standardise carrier obligations so that the food and water timer would begin at the same time as the tarmac delay.
The notice of proposed rulemaking would also oblige carriers to notify passengers about the existence of an opportunity to deplane only when it arises (as opposed to having to make successive notifications every 30 minutes). In addition, the notice of proposed rulemaking eliminates the need for airlines to provide updates to passengers about the status and cause of a delay every 30 minutes.
Comments on the notice of proposed rulemaking must be filed with the DOT by 24 December 2019.
For further information on this topic please contact David Heffernan or Rachel Welford at Cozen O'Connor by telephone (+1 202 912 4800) or email (email@example.com or firstname.lastname@example.org). The Cozen O'Connor website can be accessed at www.cozen.com.
Katie Sobotta also assisted in the preparation of this article.
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