On November 22, 2016, the US Department of Transportation ("DOT") issued a new enforcement policy on extended tarmac delays in light of the FAA Extension, Safety, and Security Act of 2016 ("2016 FAA Extension").
As a matter of background, on July 15, 2016, the President signed the 2016 FAA Extension, which changed the way that excessive tarmac delays are measured in the case of departure delays for US carriers. Specifically, under Section 2308, a tarmac delay begins "after the main aircraft door is closed in preparation for departure" and ends when a US carrier "begin[s] to return the aircraft to a suitable disembarkation point." Departure tarmac delays previously were found to have begun after passengers were boarded and were no longer free to deplane and to have ended only after such time that passengers were allowed to disembark the aircraft.
Section 2308 of the 2016 FAA Extension specifically defines "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. Previously, that determination was within the discretion of the DOT (which had set the same timeframes). Finally, the 2016 FAA Extension requires the DOT to issue regulations and take other actions necessary to carry out Section 2308, which it currently is pursuing through the rulemaking process.
The DOT has issued this enforcement policy while the rulemaking process is ongoing. Pursuant to this policy, the DOT Enforcement Office will not take enforcement action against US and foreign airlines for lengthy tarmac delays on departing flights, so long as airlines begin to return their aircraft to the 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.
Of particular note is that with respect to flights arriving at an airport, including diverted flights, the Enforcement Office will continue to apply the Department's tarmac delay rule in 14 CFR §259.4 Finally, covered carriers must continue to adhere to the assurances in their contingency plans for lengthy tarmac delays and to report their on-time performance and tarmac delay data as previously required.
For more information, please contact Daniel Correll, Clyde & Co, New York.
US Department of Transportation Issued Enforcement Policy on Extended Tarmac DelaysThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
