Winter has arrived … are you prepared for tarmac delays?
December 1, 2014
Under the U.S. Department of Transportation’s (DOT) Enhancing Airline Passenger Protections rule all carriers that operate to the U.S. must develop and implement a Contingency Plan for Lengthy Tarmac Delays. 14 C.F.R. 259.4. Pursuant to Section 259.4, carriers must coordinate their Plan with the Transportation Security Administration (TSA), Customs and Border Protection (CBP), and the relevant airport authority at all of the U.S. airports to which they operate.
Notwithstanding the above, when the snow starts to fall and airports begin to close, minimal coordination efforts will in most cases not help carriers avoid a lengthy tarmac delay. We therefore recommend you take the time now to discuss and implement internal procedures with your airport staff, station managers, and ground handlers to determine what actions will be taken when a flight is diverted or delayed due to inclement weather. For instance, documentation of all communications and other efforts with CBP, the airport and/or terminals to deplane the passengers are crucial to a successful defense of a DOT tarmac delay investigation. These extra efforts are very important, as DOT has the statutory ability to fine carriers up to $27,500 per passenger in the event that a tarmac delay exceeds three or four hours (for U.S. and international carriers, respectively).
In addition to the rule’s general prohibition against tarmac delays, carriers are also required to file a BTS Form 244 “Tarmac Delay Report” on a monthly basis for any covered flights that experienced a tarmac delay of more than three (3) hours, including diverted flights and cancelled flights on which passengers were boarded and subsequently deplaned. The reports are due within 15 days after the end of the month in which the delay occurred, and each report must contain seventeen specific pieces of data, including: (1) carrier code; (2) flight number; (3) departure airport (three letter code); (4) arrival airport (three letter code); and (5) day of flight operation (year/month/day).
Please note that Tarmac Delay Reports are required when a covered carrier experiences a tarmac delay of more than three (3) hours. This three hour requirement applies to U.S. and foreign carriers alike. Carriers are not, however, required to submit “negative” reports (reports that no tarmac delays occurred). It is important to note that this reporting requirement is not applicable to foreign air carriers operating charter flights to the U.S. that do not pick up U.S. originating passengers. In code-share situations, it is up to the carriers to determine whether the operating carrier or the marketing carrier files the Tarmac Delay Report.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).