Tarmac delays have long been a problem for the aviation industry, with the possibility of substantial fines in cases where there is a long delay in returning to the gate. Congress, heeding the complaints from the industry, implemented new language in the FAA reauthorization act, making it easier for airlines to avoid enforcement action in the case of departure delays. As a result, DOT has now issued new enforcement guidance that takes these changes into account.
Under DOT's existing tarmac delay rule, 14 CFR 259.4, a tarmac delay is defined as the "holding of an aircraft on the ground either before taking off or after landing with no opportunity for passengers to deplane." Thus, once the last passenger door shuts, the clock begins and continues to tick until a door is opened allowing passengers to deplane. However, earlier this year, Congress included a revision in the FAA reauthorization statute that stated that a tarmac delay begins "after the main aircraft door is closed in preparation for departure" and ends when a U.S. carrier "begin[s] to return the aircraft to a suitable disembarkation point." As a result, the regulatory standard did not match the newly stated Congressional language, requiring a new rulemaking by DOT.
In the interim, and in light of the anticipated rulemaking, DOT has now stated that it will not pursue enforcement action against "covered carriers" (which includes both U.S carriers and foreign carriers, even though the statute only covers U.S. carriers) whom do not comply with its existing tarmac delay regulations, with respect to departure delays, so long as covered carriers begin to return aircraft to the gate or another place for disembarkation no later than three hours for domestic flights and no later than four hours for international flights.
With respect to arriving flights at an airport, including diverted flights, DOT will continue to apply its tarmac delay rule as written—carriers must allow passengers to deplane within three hours for domestic flights and four hours for international flights. Furthermore, carriers must continue to abide by the remaining obligations and assurances under DOT's rule, such as providing food and water to passengers within two hours of a delay, etc. (14 CFR 259.4(b)(3)-(10)).
The amendment to the tarmac delay statute also codifies the length of tarmac delays in 49 U.S.C. § 42301 by defining an "excessive tarmac delay" as a tarmac delay of more than three hours for a domestic flight and more than four hours for an international flight. This is not a major change because DOT's existing regulations currently define tarmac delays as three and four hours, but now there is no discretion, as the length of time is codified.
Bottom line get your passengers off the plane before three or four hours ... or in the case of a departure delay, start turning yourself around to a gate!
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
