Tarmac Delay Rule, 23260-23271 [2021-08850]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[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.
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    \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.
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    \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.
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    \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.
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    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