The U.S. Department of Transportation (DOT) has issued a notice of proposed rulemaking (NPRM) 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. 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 food and drinking water during a tarmac delay, updates on the flight’s status, access to lavatories, and medical attention, if required.

In 2016, Congress enacted the FAA Extension, Safety, and Security Act, which changed the standard for determining tarmac delay violations for departing flights. The NPRM seeks to conform DOT’s regulations to the Act’s requirements. The NPRM includes the following proposed changes to DOT’s current regulations and enforcement policies.

Departure Delay Exception

The NPRM proposes that, for U.S. 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 DOT’s existing regulations/policy). If the aircraft is in an area controlled by the carrier, the tarmac delay clock will stop when the aircraft begins maneuvering to the disembarkation point. Additionally, for a departing aircraft, the tarmac delay clock will start when the main aircraft door is closed.

Carrier Reporting Requirements

The NPRM proposes to eliminate double reporting of tarmac delays by U.S. carriers under 14 C.F.R. Part 244 and 14 C.F.R. Part 234. Specifically, DOT would eliminate the need to report certain tarmac delay information under Part 244 where that information is already 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. DOT also proposes to modify the reporting requirement in 14 C.F.R. section 259.4(e) so that U.S. and foreign carriers are only required to report tarmac delays that exceed the three- and four-hour thresholds for domestic and international flights, respectively. (Under the currently effective version of that 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.

Record Retention

DOT proposes to eliminate the requirement (under 14 C.F.R. section 259.4(e)) for U.S. and foreign carriers to retain for two years records relating to a tarmac delay carriers. DOT views this record retention requirement as redundant in light of the reporting requirements for tarmac delays.

Other Proposed Changes

The NPRM would clarify how DOT determines when the clock starts for purposes of calculating when two hours have elapsed and carriers must provide food and water. Specifically, under 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 (for example, if the aircraft door closes but the aircraft does not leave the gate for some time). The NPRM would standardize carrier obligations such that the food and water timer would begin at the same time a tarmac delay begins.

The NPRM also would only obligate carriers to notify passengers about the existence of an opportunity to deplane when it arises (as opposed to having to make successive notifications every 30 minutes). In addition, the NPRM proposes to eliminate the need for airlines to provide updates to passengers about the status and cause of a delay every 30 minutes.

Comments on the NPRM must be filed with DOT by December 24, 2019.