On April 25, 2011, in response to a number of high profile incidents, the DOT published the “Enhancing Airline Passenger Protections” rule to put hard limits on what constitutes an acceptable tarmac delay for a loaded passenger plane.  The rule required carriers to adopt contingency plans for such delays, and limit delays to three hours for domestic flights and four hours for international flights.  For delays over that time period, the airline had to provide passengers with the option to deplane unless there were substantial security, safety or air traffic control issues.  The rule also required airlines to provide adequate food and water within two hours after the aircraft leaves the gate and maintain operable lavatories.

In 2016, Congress mandated that the DOT make changes to the rule, requiring that the aircraft proceed to a suitable disembarkation point no later than 3 or 4 hours after the main aircraft door is closed for departure.  The DOT’s response to this mandate was to issue a new enforcement policy for the old rule, stating that “as a matter of prosecutorial discretion,” the Department would not take any enforcement action for violating the rules if the aircraft began its move to a disembarkation point within the time limits.  This change in enforcement policy was only intended as a temporary fix for the issue pending an amendment to the rule.

Now, after 3 years, the DOT has been finally published its amendments to the rules, and interestingly, the changes go beyond the Congressional mandate.  Under the proposed rule, a carrier is considered to have met the requirement to begin its return to a suitable disembarkation area at the time it asks the control tower for permission to move, rather than when the permission is granted.  Essentially, the carrier is held harmless from the effect of a tarmac delay if the inability to move the aircraft is beyond the carrier’s control, regardless of how long the delay lasts.  If, however, the aircraft is in a part of the airport that is under the carrier’s control, then the aircraft has to actually begin its movement within the time period.

The DOT notes in its interpretation, however, that simply moving the plane or asking to move the plane is not enough to stop the clock from running.  For example, if the aircraft is moved to the gate or other locations to address a mechanical issue but the passengers are not given the option to deplane, then the grace period would not apply and a violation of the rule would occur.

The proposed rule also gives more lenience in determining when the disembarkation clock has started to run.  Under the old rule, the flight was considered to begin when the main aircraft door was closed.  Under the new rule, if the carrier can show that the passengers had the opportunity to deplane at the gate even though the door was closed, the time limit will not begin to run.  The DOT claims that this provision gives the carriers additional flexibility “while adhering to the standard prescribed by the statute.”

The draft rule also changes the airline’s responsibility to provide food and water in the event of a delay.  Under the existing rule, the tarmac delay timer started when the main door was closed, but the two hour timer on the requirement to provide food and water did not start until the aircraft left the gate.  Under the new rule, the food and water timer begins at the same time the tarmac delay timer starts.

Finally, the new rule no longer requires the carrier to announce to passengers that they have an opportunity to deplane every 30 minutes while the opportunity exists.  The DOT believes that only one announcement is necessary, and that “it may even be harmful to passengers for carriers to provide frequent updates when the flight crew have no new updates to share with passengers and/or when passengers may be attempting to sleep during late night delays.”

The new rule will be open for public comment through December 24, 2019, so if you have something important to say on the topic, click on this LINK, and let your voice be heard.