As we originally reported back in 2019, the FAA has been working on a new set of rules defining an air carrier’s responsibilities to its passengers in the event of a tarmac delay. That process has finally ended, with the publication yesterday of the new rules in the Federal Register.
The primary purpose of the rulemaking was to provide guidance on how air carriers should comply with the Congressional mandates contained in Section 2308 of the FAA Extension, Safety, and Security Act of 2016, Public Law 114–190. The proposed rules were open for public comment between October 25, 2019 and December 24, 2019. The Department of Transportation received only 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.”
Under the rules, if a tarmac delay exceeds three hours for domestic flights and four hours for international flights, the carrier must comply with a number of requirements. For departing flights, a tarmac delay is presumptively considered to start when the aircraft cabin door is closed. However, if the carrier can show that the passengers still had the ability to disembark the aircraft even though the doors were closed, then the delay clock does not run. For arriving flights, the delay timer starts when the aircraft lands.
Under the old rules, a carrier was required to provide notifications to passengers every 30 minutes regarding the flight’s status and the cause of the delay. Under the modified rule, the carrier is only required to give an initial notice at the 30-minute mark. While the DOT encourages the carrier to keep passengers informed as appropriate, they are not required to do so. Similarly, the DOT also changed the carrier’s obligation to inform passengers when they have the ability to deplane. Rather than making the announcement every 30-minutes, the carrier only has to make one announcement at the 30-minute mark “and each time such an opportunity recurs, if, for example, an aircraft returns to the gate after taxiing.”
One of the issues that received substantive comments was how diverted flights should be handled. Industry commenters argued that either the tarmac delay rules should not apply to diversions, or that the delay clock should not run for diverted flights when the aircraft is unable to move due to the lack of a gate or the orders of air traffic control. The DOT disagreed, noting that Congress specifically included diverted aircraft in the underlying statute. To ameliorate some of these issues, the new rule treats diverted aircraft as an arriving flight. Once the passengers have been given an opportunity to deplane, then the diverted flight will be subject to the tarmac delay rules for departures. The DOT also noted that, to the extent the inability to deplane passengers is truly out of the control of the carrier, the Office of Aviation Consumer Protection would take that into account in any enforcement action.
The rulemaking also harmonized existing requirements in several areas. For example, duplicative reporting requirements for both domestic and international carriers were eliminated. Similarly, the old requirement that an air carrier had to provide adequate food and water within two hours after the aircraft left the gate has been changed to requiring the carrier to do so within two hours after the tarmac delay begins, making it consistent with the other tarmac delay rules.
The one thing this rulemaking shows, is that delays are not limited to the tarmac. This rule was not particularly complicated. Much of what was required is spelled out in the statute. The rulemaking also was not very controversial. There were only 18 comments received, and in many places, the comments agreed with the rule. Despite this, Congress mandated this rulemaking in 2016, the DOT proposed the rule in 2019, and the final rule appeared five years later, in 2021. Slow and steady may win the race, but it makes it also makes the race rather tedious.