[Federal Register Volume 84, Number 207 (Friday, October 25, 2019)]
[Proposed Rules]
[Pages 57370-57378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22973]
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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: Notice of proposed rulemaking (NPRM).
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SUMMARY: This rulemaking would modify U.S. and foreign air carrier
obligations with respect to tarmac delays and conform carrier
obligations with respect to departure delays with the changes made to
the FAA Extension, Safety, and Security Act of 2016. This rulemaking
would also make changes to the notification requirements regarding the
status of the tarmac delay and the opportunity to deplane as well as
carrier tarmac delay reporting and record retention requirements.
DATES: Comments should be filed by December 24, 2019. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: You may file comments identified by the docket number DOT-
OST-2019-9144 by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m. ET,
Monday through Friday, except Federal Holidays.
Fax: (202) 493-2251.
Instructions: You must include the agency name and docket number
DOT-OST-2019-0144 or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to http://www.regulations.gov, including any
personal information provided.
Privacy Act: Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.) You may review DOT's
complete Privacy Act statement in the Federal Register published on
April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
Docket: For access to the docket to read background documents and
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Ryan Patanaphan, Senior Trial Attorney
or Blane A. Workie, Assistant General Counsel, Office of Aviation
Enforcement and Proceedings, 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:
Current Tarmac Delay Requirements
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 three hours for
domestic flights and four hours for international flights without
providing passengers the option to deplane subject to exceptions for
safety, security, and Air Traffic Control related reasons. Carriers'
plans must also contain assurances such as assurances that carriers
will provide adequate food and drinking water within two 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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Need for a Rulemaking
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, the Department's Office of
Aviation Enforcement and Proceedings (Enforcement Office) issued an
``Enforcement Policy on Extended Tarmac Delays'' (Enforcement Policy)
\2\ on November 22, 2016. The Enforcement Policy states that, as a
matter of prosecutorial discretion, the Department will not take
enforcement action against U.S. and 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 three hours for domestic flights and no later than four
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 is 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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In October 2017, the Department published a Notification of
Regulatory Review (82 FR 4570, October 2, 2017), seeking public input
on existing rules and other agency actions that are good candidates for
repeal, replacement,
[[Page 57371]]
suspension, or modification.\3\ DOT received comments from various
regulated entities regarding the Department's tarmac delay rule.\4\
Further, on January 30, 2019, the Department issued a notice inviting
the public to identify and provide input on existing guidance documents
that are good candidates for repeal, replacement, or modification.\5\
American Airlines and jointly A4A and IATA filed comments related to
the 2016 Enforcement Policy.
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\3\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-0001.
\4\ The Department received comments from Airlines For America
(A4A), United Airlines, International Air Transport Association
(IATA), Kuwait Airways, National Air Carrier Association (NACA),
Etihad Airways, Association of Asian Pacific Airlines (AAPA),
Lufthansa Group, Qantas, El Al, WestJet, Airlines Association of
Southern Africa, and Air France/KLM related to the tarmac delay
rule. In addition, the Department met with A4A and various U.S.
airlines to hear their views of the tarmac delay rule.
\5\ https://www.regulations.gov/document?D=DOT-OST-2017-0069-2855.
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The Department has reviewed these comments and is proposing certain
changes to the tarmac delay rule, primarily a new exception for
departure delays to conform the regulations to the FAA Extension Act,
provide greater flexibility to airlines, and alleviate concerns about
the existing rule's potential effects on cancellations. DOT is also
proposing several changes to reporting requirements and other carrier
obligations with respect to tarmac delays. The proposals are described
in more detail below. The Department plans to consider the comments
received on the tarmac delay rule that are not addressed in this
proposal at a later time.
Notice of Proposed Rulemaking
1. Departure Delay Exception
On July 15, 2016, the FAA Extension Act was signed. Section 2308 of
the FAA Extension Act amends 49 U.S.C. 42301 by changing the standard
for when tarmac delay violations occur with respect to departing
flights. The FAA Extension Act requires the Department to issue
regulations and take other actions necessary to carry out section 2308.
Under section 2308 of the FAA Extension Act, a tarmac delay occurs when
passengers are on board an aircraft on the tarmac (A) awaiting takeoff
after the main aircraft door is closed in preparation for departure, or
(B) awaiting deplaning after the aircraft has landed. Under that Act,
an excessive tarmac delay is a tarmac delay that is more than three
hours long for domestic flights or more than four hours long for
international flights. Previously, an excessive tarmac delay was
defined in 49 U.S.C. 42301 as a tarmac delay that lasts for a length of
time as determined by the Department.
In its amended form, 49 U.S.C. 42301 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, under amended section 42301, 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 to deplane
passengers by those times. Unlike the amended statute, DOT's current
regulation prohibits a carrier from allowing an aircraft to remain on
the tarmac for more than three hours for domestic flights and four
hours for international flights without providing passengers the
opportunity to deplane and applies this standard to both departing and
arriving flights without consideration of the time the carrier begins
to return the aircraft to a suitable disembarkation point for departing
flights.
In the Enforcement Policy, the Department has stated that, if the
aircraft is in an area of the airport property that is not under the
carrier's control, the aircraft has begun the process of returning to a
suitable disembarkation point when permission is granted by the Federal
Aviation Administration (FAA) control tower, airport authority, or
other relevant authority directing the aircraft's operations while it
is on the tarmac. However, if the aircraft is in an area of the airport
property that is under the carrier's control, an aircraft has begun to
return to a suitable disembarkation point when the pilot begins
maneuvering the aircraft to the disembarkation point.
DOT is proposing to amend its tarmac delay regulation to reflect
its Enforcement Policy, with slight modifications. To determine when
the carrier begins to return to a suitable disembarkation point, we are
proposing 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 Federal Aviation
Administration control tower, airport authority, or other relevant
authority directing the aircraft's operations, rather than when
permission is granted as set forth in the Enforcement Policy. This
revision would ensure that carriers are not held responsible for delays
attributed to third parties and beyond the carriers' control. However,
similar to the Enforcement Policy, under this proposed rule, 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. The Department
seeks comment on this proposed standard and whether there are other
appropriate standards the Department should consider.
In addition, this rulemaking takes into account circumstances when
a carrier has closed the main aircraft door for departure but the
aircraft has not left the gate. Under the Enforcement Policy, the
tarmac delay clock for departing flights begins when the main aircraft
door has closed, even if the aircraft remains at the gate and the
carrier asserts that an opportunity to deplane still exists. This
rulemaking proposes that a tarmac delay on a departing flight begins
when the main aircraft door is closed, which generally means that
passengers on board the flight no longer have the opportunity to
deplane. If a carrier can show that passengers on board the aircraft
have the opportunity to deplane from an aircraft, even while the
aircraft doors are closed, then, under the proposal, the tarmac delay
clock has not started and will 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, there would be a presumption that passengers do not have
an opportunity to deplane. This approach allows carriers some
flexibility in determining when a tarmac delay begins, while adhering
to the standard prescribed by the statute. DOT seeks comment on this
approach to determining when a tarmac delay begins during departing
flights.
DOT believes that adopting the departure delay exception as
described in the Enforcement Policy--that a departing flight is not
considered to be in violation of the assurance not to permit an
aircraft to remain on the tarmac for more than 3 hours for domestic
flights and more than 4 hours for international flights so long as the
air carrier begins to return the aircraft to a suitable disembarkation
point--would provide covered carriers some relief in situations when
they may be unable to reduce the length of a tarmac delay for
circumstances beyond their control. While in most cases a carrier would
violate the current tarmac delay regulation if the carrier has not
provided passengers the opportunity to deplane
[[Page 57372]]
by either the three or four-hour mark, the proposed inclusion of the
departure delay exception offers carriers more flexibility and reduces
the number of tarmac delays that are subject to enforcement. This would
reduce the burden of the tarmac delay regulation on carriers in
situations that they may be unable to control, while still maintaining
important consumer protections.
Also, the proposal specifies that the exception 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, the flight would not be
considered to have begun to return to a suitable disembarkation point
to provide passengers an opportunity to deplane, and the tarmac delay
clock would continue to run. For example, an aircraft that begins the
process to return to the gate or another suitable disembarkation point
for a mechanical-related problem would have the tarmac delay time
continue accruing for the flight if the purpose of the return was not
to provide passengers an opportunity to deplane and passengers were not
provided the option to deplane.
We note that even though the requirements in 49 U.S.C. 42301, which
were amended by the FAA Extension Act, only apply to U.S. carriers, DOT
chose to apply its Enforcement Policy to both U.S. and foreign air
carriers, under DOT's authority to prohibit unfair and deceptive
practices in 49 U.S.C. 41712. We are also proposing to apply the
requirements in the proposed rule to both U.S. and foreign air carriers
to streamline the tarmac delay requirements and decrease confusion in
the airport environment. DOT seeks comment on this approach.
DOT is not proposing to change carrier obligations with respect to
tarmac delays for arriving flights. Section 2308 of the FAA Extension
Act states that the departure delay standard applies to departing
flights, and, as such, DOT proposes to require carriers to modify their
Contingency Plan for Lengthy Tarmac Delays to include specific
assurances related to such flights.
With regard to diverting flights, this proposal would provide that
diversions are 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 is treated as a departing flight
and after that point, the departure delay exception applies if carriers
begin to return to a suitable disembarkation point in order to deplane
passengers. DOT seeks comment on this treatment of diverting flights.
2. Reporting Requirements
DOT proposes to revise the tarmac delay reporting requirements in
14 CFR part 244. Currently, reporting carriers \6\ 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 that 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.\7\ This has resulted in
duplicative reporting.
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\6\ ``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 of this
chapter. Reporting carriers will be identified periodically in
accounting and reporting directives issued by the Office of Airline
Information. 14 CFR 234.2.
\7\ 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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Today, reporting carriers are required to submit tarmac delay
information for scheduled domestic flights that they operate at medium,
small, or non-hub U.S. airports both through Form 234 and Form 244.
Also, tarmac delays on scheduled domestic flights marketed but not
operated by a reporting carrier are being reported twice: The reporting
carrier reports the flight using BTS Form 234, and the non-reporting
carrier reports the same flight using BTS Form 244. This rulemaking
would provide that tarmac delays on scheduled domestic passenger
flights need no longer be reported by reporting carriers under 14 CFR
part 244, provided that such flights are reported under 14 CFR part
234. Also, the proposed rule changes reporting requirements to relieve
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. This change
would reduce the burden on non-reporting carriers that operate flights
held out by reporting carriers. U.S. air carriers covered under 14 CFR
part 234 would still 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 would still be required to file BTS Form
244 for tarmac delays on domestic and international flights. The
Department requests comment on the above reporting changes, including
whether and how reporting requirements in 14 CFR parts 234 and 244 can
be further consolidated.
With respect to international flights, carriers are currently
required to file a report under 14 CFR part 244 for tarmac delays of
more than three hours. Under this proposed rule, 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 three hours for a domestic flight and more than four hours for an
international flight. This would reduce the number of instances in
which a carrier is required to report to the Department a tarmac delay
on an international flight. The Department solicits comment on this
approach.
3. Record Retention
DOT proposes to eliminate the tarmac delay record retention
requirement in 14 CFR 259.4(e) and replace it with a reporting
requirement. The current rule requires that U.S. and foreign air
carriers with a tarmac delay contingency plan retain for two years
specific information related to a tarmac delay. The specific
information includes, 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
[[Page 57373]]
under 14 CFR 259.4(e). Because the Department receives a written
description of lengthy tarmac delays from U.S. carriers as mandated by
statute, maintaining the record retention requirement for U.S. carriers
is duplicative and of limited or no public benefit. As such, the
Department proposes to change the record retention requirement in 14
CFR 259.4(e) to a reporting requirement, thereby eliminating the
requirement to retain certain information for two years.
The new reporting requirement would include the same information
currently required to be retained under the current Sec. 259.4(e), and
would also satisfy U.S. carrier obligations under 49 U.S.C. 42301(h).
To comply with the mandate in 49 U.S.C. 42301(h) for U.S. carriers to
submit to the Department a written description of a flight that
experiences an excessive tarmac delay and its resolution, U.S. carriers
generally provide the Department with the same information that they
are required to retain under Sec. 259.4(e): The name of the operating
carrier, the flight number, the origin and destination airports, the
location of the delay, the length of the tarmac delay, and an
explanation of the incident, including the cause of the delay and
actions taken to minimize passenger hardship. This NPRM proposes that
the same information be provided to the Department by U.S. and foreign
air carriers under 14 CFR 259.4. Although 49 U.S.C. 42301(h) applies
only to U.S. carriers, the Department is proposing to apply the same
requirement to foreign air carriers pursuant to the Department's
authority under 49 U.S.C. 41712. Accordingly, under the proposal, U.S.
and foreign air carriers would file one written description of each
excessive tarmac delay incident to the Department. As explained
earlier, the airlines would no longer be required to retain for two
years the records listed in 14 CFR 259.4(e). For both U.S. and foreign
air carriers, 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). The
Department requests comment on the above reporting and record retention
changes, including the type of information to be required for
reporting.
4. Other Exceptions to Tarmac Delay Requirements
Under the Department's existing tarmac delay rule, carriers must
not allow an aircraft to remain on the tarmac for more than three hours
for domestic flights and more than four hours for international flights
before allowing passengers to deplane from an aircraft, except when the
pilot-in-command determines that there is a safety-related or security-
related reason why the aircraft cannot leave its position on the tarmac
to deplane passengers, or when air traffic control advises that
returning to a suitable disembarkation point to deplane passengers
would significantly disrupt airport operations. 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, or when air traffic
control advises that returning to a suitable disembarkation point to
deplane passengers would significantly disrupt airport operations.
Title 49 U.S.C. 42301 also references a suitable disembarkation point
when discussing deplaning passengers following a lengthy tarmac delay.
This rulemaking proposes to amend the safety and security
exceptions to the tarmac delay rule to codify the exceptions in 49
U.S.C. 42301. Under this proposal, a safety or security exception
occurs when the pilot-in-command determines that deplaning passengers
at a suitable disembarkation point would jeopardize passenger safety or
security, or when there is a safety-related or security-related reason
why the aircraft cannot leave its position on the tarmac to deplane
passengers. A suitable disembarkation point is defined as a location at
an airport where passengers have the ability to deplane from an
aircraft. The Department's Enforcement Office already considers the
exceptions provided in 49 U.S.C. 42301 and the Department's tarmac
delay rule to determine whether a violation has occurred. As such, the
Department does not anticipate that this change in language would
impact carriers or consumers. Consistent with the statute and prior
practice, under this proposal, a safety or security exception would
apply when passengers are at a suitable disembarkation point to deplane
but are unable to do so for an unavoidable safety-related reason such
as lightning. If, however, the passengers are at a suitable
disembarkation point such as a remote hardstand to deplane but are
unable to do so because of lack of buses or stairs, the safety or
security exception would not apply.
As this rulemaking would not have an effect on the safety or
security exceptions articulated in the rule and the statute, this NPRM
would not negatively impact safety.
5. Other Carrier Obligations
This rulemaking would clarify carrier obligations with respect to
the provision of food and water. Currently, carriers must provide
adequate food and potable water no later than two hours after the
aircraft leaves the gate (in the case of a departure) or touches down
(in the case of an arrival) if the aircraft remains on the tarmac,
unless the pilot-in-command determines that safety or security
considerations preclude such service. Because the obligation to provide
food and water is triggered two hours after the aircraft leaves the
gate, there are 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 starts after the main
aircraft door has closed in preparation for departure, which generally
means that passengers on board the aircraft no longer have the
opportunity to deplane. On the other hand, carriers' obligation to
provide food and water occurs within two hours of the aircraft leaving
the gate. The two start times are not always in alignment. For example,
if an aircraft remains at the gate for one hour and passengers do not
have the opportunity to deplane, and then the aircraft leaves the gate,
the flight crew must maintain two separate timers, one to monitor the
time of the tarmac delay, and the other to monitor the time since the
aircraft left the gate to determine when food and water must be
provided. This proposed rule would standardize carrier obligations such
that the food and water timer would begin at the same time a tarmac
delay begins. The proposed rule would also clarify that the food and
water obligation only applies to situations in which the aircraft
remains on the ground, both during departure and after touch-down.
The proposed rule would also change carrier obligations with
respect to notifying passengers when they have an opportunity to
deplane. Currently, carriers must provide notification to passengers
that they have the opportunity to deplane from an aircraft if the
opportunity to deplane exists. The first notification must be made
beginning 30 minutes after the scheduled departure time and every 30
minutes thereafter while the opportunity to deplane exists. This
proposed rule would 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.
Carriers would be obligated to make a notification when an opportunity
to deplane exists (and each time such an opportunity recurs, if, for
[[Page 57374]]
example, an aircraft returns to the gate after taxiing).
This rulemaking also proposes 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. The
Department believes that the current rule, specifically the required
frequency of notifications, provides no or limited value to passengers.
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 Department seeks comment on the elimination of
this requirement.
Regulatory Notices
A. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This action has been determined to be nonsignificant 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. It is also not significant
under the Department of Transportation's Regulatory Policies and
Procedures.
Nearly all the provisions in this proposed rule are deregulatory in
nature, which would generate cost savings, or clarifications, which
would result in no economic impact. Minimal costs may be associated
with three provisions consisting of a requirement for carriers to: (1)
Report the length of the excessive tarmac delay if the length is not
otherwise represented by the data listed under 14 CFR 244.3(a); (2)
collect a new data point for the start time of a tarmac delay for
enforcement purposes for departing flights, which would be the time the
main aircraft door closes; and (3) collect a new data point for the
time carriers begin to return the aircraft to a suitable disembarkation
point to deplane passengers on departing flights. The primary purpose
of this proposed rule is to implement changes to the FAA Extension Act
regarding carrier obligations during an excessive tarmac delay. In
general, we expect the rule to generate cost savings and benefits to
carriers and consumers due primarily to the new standard for departure
delays. This rulemaking also includes provisions to make conforming
changes to carrier tarmac delay reporting and record keeping
requirements. The changes to record retention and reporting
requirements would reduce the burden on carriers. However, these cost
savings and benefits are minimal and difficult to quantify as annual
tarmac delays are becoming relatively rare since the implementation of
the 2009 Tarmac Delay rule. In particular, domestic tarmac delays have
already been reduced to 193 in 2017 from 1,642 in 2007, or 2.2 delays
dropping to 0.3 delays per 10,000 flights. Details are provided in the
preliminary regulatory evaluation which is available in the docket.
B. Executive Order 13132 (Federalism)
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This NPRM
does not propose any regulation 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 NPRM 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
options on which we are seeking comment would 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 proposed rule are deregulatory in
nature (which would generate cost savings) or clarifications (which
would result in no economic impact). This NPRM's proposals are 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 NPRM
would have a significant impact on a substantial number of small
entities. However, we invite comment on the potential impact of this
rulemaking on 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 OMB control number. This NPRM proposes a revision
to the existing information collection burdens under OMB control number
2105-0561. Under the PRA, before an agency seeks OMB approval for a
proposed collection of information, it must first publish a document in
the Federal Register providing 60-day notice to the public to allow for
comment. The Department invites interested parties to comment on the
information collection requirements contained in this document. As
prescribed by the PRA, the requirement will not go into effect until
OMB has approved them after a 30-day notice is issued and the
Department has published a notice announcing the effective date of the
revised information collection requirements.
This NPRM proposes to modify existing information collection
requirements under OMB control number 2105-0561. This NPRM proposes
changes to two parts of the Department's regulations: 14 CFR part 244
(reporting tarmac delay data) and part 259, specifically Sec. 259.4(e)
(retention of records related to tarmac delays). It would eliminate
reports for tarmac delays between 3 and 4 hours on international
flights, eliminate duplicative reporting of domestic tarmac delays that
are already reported under 14 CFR part 234, and change 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
[[Page 57375]]
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 proposed by this NPRM, 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.\8\ Based on
data submitted by airlines to BTS from 2014 to 2018, we expect the
NPRM's proposals to result in an average of 37 tarmac delays on
international flights to be reported through BTS Form 244 in a given
year.
---------------------------------------------------------------------------
\8\ The NPRM 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 2014-2018 data,
the NPRM's proposals would result in 0 to 18 reports being filed under
14 CFR part 244 by U.S. air carriers each year, and 0 to 7 reports
being filed under 14 CFR part 244 by foreign air carriers each year.
This range reflects the lowest and highest number of reportable tarmac
delays on international flights experienced by U.S. and foreign air
carriers during the 2014-2018 period. At 30 minutes of burden per
report filed, this proposal 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 foreign air carriers.
Estimated Total Annual Burden: As the proposals in this NPRM would
result in an estimated 37 reports filed under 14 CFR part 244 each
year, the total annual burden would be 1110 minutes (18.5 hours). This
reflects a reduction in existing burdens that would result from the
NPRM's proposals, including (1) elimination of reports for tarmac
delays between 3 and 4 hours on international flights, and (2)
elimination of duplicative reporting for domestic tarmac delays that
are already reported under 14 CFR part 234. The NPRM's proposal to
require 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 New Descriptive Reporting Requirement for Foreign Air Carriers.
Title: Changing Tarmac Delay Record Retention Requirement into a
Descriptive 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 2014 and 2018, we expect an average of 148 reportable tarmac
delays to occur in a given year, with 128 operated by U.S. air carriers
and 20 by foreign air carriers. Based on the NPRM's proposals, carriers
would no longer need to retain for two years the records related to
these tarmac delays. Instead, carriers would be required to file a
report with a written description of the tarmac delay incident to the
Department's Aviation Consumer Protection Division. Because U.S.
carriers already file such reports pursuant to 49 U.S.C. 42301(h), U.S.
carriers would not encounter any additional reporting burdens under the
NPRM's proposed changes to 14 CFR 259.4, and would experience a net
burden decrease as a result of the proposed elimination of the record
retention requirement. Only the 20 tarmac delays operated by foreign
air carriers would result in new reports being filed under 14 CFR
259.4.
Estimated Annual Burden on Respondents: We expect 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. As the
NPRM only results in a new reporting burden for foreign air carriers,
the expected burden per respondent is between 0 and 7 reports per year
(based on the highest annual number of tarmac delays experienced by a
single foreign carrier between 2014 and 2018), or 0.0 to 28.0 hours of
burden per respondent. There will be no new burdens on U.S. air
carriers under this information collection, due to U.S. air carriers'
existing reporting requirement under 49 U.S.C. 42301(h).
Estimated Total Annual Burden: This information collection would
result in an estimated annual burden of 20 reports, or 80 hours. This
reflects a reduction in burden for U.S. carriers based on the
elimination of the record retention burden required by 14 CFR 259.4(e).
The Department invites interested persons to submit comments on any
aspect of each of these information collections, including the
following: (1) The necessity and utility of the information collection,
(2) the accuracy of the estimate of the burden, (3) ways to enhance the
quality, utility, and clarity of the information to be collected, and
(4) ways to minimize the burden of collection without reducing the
quality of the collected information. Comments submitted in response to
this NPRM will be summarized or included, or both, in the request for
OMB approval of these information collections.
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 NPRM.
G. National Environmental Policy Act
The Department has analyzed the environmental impacts of this
proposed action pursuant to the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) 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).
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
1508.4. 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 the definition of excessive tarmac delay. The Department does not
anticipate any environmental impacts, and there are no extraordinary
circumstances present in connection with this rulemaking.
List of Subjects
14 CFR Part 244
Administrative practice and procedure, Airports, Consumer
protection.
[[Page 57376]]
14 CFR Part 259
Air carriers, Consumer protection, Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, DOT proposes to amend 14
CFR chapter II, subchapter A, 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,
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 U.S., the
charter flights are not flights subject to the reporting requirements
of this part.
(2) For U.S. air carriers that submit Airline Service Quality
Performance Reports under 14 CFR part 234, their scheduled domestic
flights are not flights subject to the reporting requirements of this
part to the extent part 234 reports are submitted for those flights.
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.
(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,
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 considered the main aircraft door.
* * * * *
Suitable disembarkation point means a location at an airport where
[[Page 57377]]
passengers have the ability to 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 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 if the aircraft remains on the tarmac, each
covered carrier must provide adequate food and potable water no later
than two hours after the main aircraft door is closed (in the case of a
departure) or touches down (in the case of an arrival), 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, when the opportunity to deplane exists at a
suitable disembarkation point, each covered carrier must notify the
passengers on board the aircraft that they have the opportunity to
deplane;
(7) 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
(8) 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.
(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 Aviation Consumer Protection Division 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
[[Page 57378]]
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 (Air Carrier Name), certify that the
enclosed report is, to the best of my knowledge and belief, true and
correct.
Date:
Signature:
Name (Please Print or Type):
(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 15th day of October, 2019, in Washington, DC.
Elaine L. Chao,
Secretary of Transportation.
[FR Doc. 2019-22973 Filed 10-24-19; 8:45 am]
BILLING CODE 4910-9X-P