DEPARTMENT OF TRANSPORTATION ISSUES MODIFICATION TO TARMAC DELAY RULE
June 7, 2021
On May 3, 2021, the Department of Transportation published an update on the final rule to modify the tarmac delay rule and obligations that U.S. and foreign air carriers must follow. Specifically, the new final rule includes requirements related to tarmac delays and to conform carrier obligations related to departure delays with the changes made to the Federal Aviation Administration Extension, Safety, and Security Act of 2016. The new rule includes the following changes:
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New Determination of When the Clock Stops After an Aircraft Leaves the Gate. Previously the clock stopped when the FAA control tower or airport authority approved a carrier’s request to return to a suitable disembarkation point. Now however, the clock stops as soon as a carrier submits its request to return to a suitable disembarkation point to the FAA control tower or airport.
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New Calculation Before an Aircraft Leaves the Gate — Clock Does Not Start Until Passengers No Longer Have the Opportunity to Deplane. Under the old rule, during a departure delay, the clock started as soon as the main aircraft door was closed, even if the aircraft had not left the gate. The new rule still allows the clock to start as soon as the main aircraft door is closed, but now if a carrier can show that passengers on board the aircraft had the opportunity to deplane, even when the doors were closed, then the clock does not start until passengers no longer have the opportunity to deplane. Evidence that the carrier made announcements that deplaning was possible are sufficient to show the opportunity existed.
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Tarmac Delay Reporting Only Required for Delays in Excess of Four (4) Hours. Under the previous rule, U.S. and foreign air carriers were required to submit a BTS Form 244 to DOT for all delays in excess of three (3) hours.
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Carriers No Longer Have to Retain Records Related to Delays in Excess of Three (3) Hours for Two Years. Under the new rule, a carrier must submit a written report describing the excessive tarmac delay and its resolution, including other descriptive information of the flight and delay. These reports are due within 30 days of the date an excessive tarmac delay occurs.
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Carriers Not Required to Update Passengers on Tarmac Delays and Flight Status Beyond Providing an Initial Notice at the 30-Minute Mark. Under the old rule, a carrier was required to provide passengers with tarmac delay notifications on their flight’s status and the cause of the delay every 30 minutes. Under the new rule, carriers will only be required to give an initial notice at the 30-minute mark during a delay. DOT still encourages carriers to keep passengers informed as appropriate however.
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Providing Updates Every 30 Minutes of the Opportunity to Deplane No Longer Required. Carriers are now required to provide passengers with a timely notification that they have the opportunity to deplane each time the opportunity exists at a suitable disembarkation point, e.g., when the aircraft reaches a hardstand or returns to the gate and the opportunity to deplane exists.
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Carriers Must Provide Adequate Food and Water No Later Than Two (2) Hours After the Aircraft Door Closes and Passengers Can No Longer Deplane. Under the previous rule, carriers had to provide adequate food and water no later than two 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 preclude such service.
The publication of the final rule ends a process that spanned two years and began with the FAA’s decision to create a new set of rules to define air carrier’s responsibilities to passengers in the event of a tarmac delay. The final rule will go into effect on June 2, 2021. Carriers should update their tarmac delay plans to comply with the rule’s new requirements. If you need assistance with this obligation, please let us know.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com or 202-659-6622); Drew Derco (dderco@eckertseamans.com or 202-659-6665), or Andy Orr (aorr@eckertsemans.com or 202-659-6625).
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