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Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations 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 3 hours for domestic flights and no later than 4 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 was 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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Notice of Proposed Rulemaking On October 25, 2019, the Department published a notice of proposed rulemaking NPRM, 84 FR 57370, in which it proposed to implement changes to the tarmac delay rule resulting from the FAA Extension Act.
The NPRM incorporated the FAA
Extension Acts new departure delay standard by proposing a new exception applicable to departure delays, with additional proposals intended to clarify or improve the existing tarmac delay rule. In response to the NPRM, the Department received 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. The comments addressed ten subjects discussed in the NPRM: 1 Departure delay exception, 2 start of the tarmac delay, 3 applicability of the tarmac delay rule to U.S. and foreign air carriers, 4 diversions, 5 data reporting requirements including reducing duplicative reports and other adjustments to existing requirements, 6 narrative reporting requirement, 7
status announcements, 8 deplaning announcements, 9 tarmac delay safety exception, and 10 provision of food and water. The Department also received comments on issues that were not raised in the NPRM and are outside the scope of this rulei.e., additional exceptions to the tarmac delay rule, methodology used to calculate tarmac delay civil penalties, and comfortable cabin temperatures. The Department has carefully reviewed and considered the comments received. The commenters positions that are germane to the specific issues raised in the NPRM and the Departments responses are set forth below.

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Comments and Responses 1. Departure Delay Exception The NPRM: Section 42301 of Title 49
of the United States Code 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, 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 by those times in order to deplane passengers. DOT proposed to amend its tarmac delay rule by creating a new departure delay exception to reflect the statutory changes in 49 U.S.C. 42301. To determine when the carrier begins to return to a suitable disembarkation point, DOT proposed that if the aircraft is in an area of the airport property that is under the carriers 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. DOT also proposed that if the aircraft is in an area that is not under the carriers control, then the aircraft has begun to return to a suitable disembarkation point when a request is made to the FAA control tower, airport authority, or other relevant authority directing the aircrafts operations, rather than when permission is granted as was articulated in the Enforcement Policy. The Department proposed to apply the same standard to flights of U.S. and foreign air carriers experiencing a tarmac delay at a U.S.
airport.
Comments: Carriers were generally in agreement with the adoption of the departure delay exception, with some carriers proposing different standards for determining when the process of beginning to return to a suitable disembarkation point is triggered.
Although many carriers agreed with changing the trigger from permission granted to permission requested, carriers and others mostly disagreed with varying the standard for returning to a suitable disembarkation point depending on the location of the aircraft on the airfield. Many carriers expressed concern about their flight crews not being aware of whether the aircraft was in a carrier-controlled area or an area controlled by another entity. The International Air Transport Association IATA and Airlines for America A4A, in a joint comment joined by several other airlines, recommended adopting a performance-based standard for
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determining when a carrier begins to return to a suitable disembarkation point regardless of the location of the aircraft. Instead of finding that an aircraft begins to return when a request is made to the FAA or other authority, IATA, A4A, and others proposed that the aircraft begins to return when the decision is made to return. Air China and Xiamen Air recommended that the exception be triggered when a request to return is made by any carrier representative.
An individual and the FlyersRights organization opposed the adoption of a departure delay exception. The individual commented that the permissible tarmac delay time should be shortened, not lengthened as would occur under the NPRM. FlyersRights commented that tarmac delay incidents have increased in number since adoption of the 2016 Enforcement Policy, which provided for a new departure delay standard. FlyersRights also commented that Congress intended the departure delay exception to be triggered when the aircraft physically moves back to the gate, rather than the standard articulated in the NPRM.
DOT Response: After fully considering the comments received, the Department has decided to implement the departure delay exception as proposed in the NPRM. The 2016 FAA
Extension Act requires the Department to adopt a revised standard for tarmac delays on departing flights. Compliance with the 2016 FAA Extension Act requires that the Department permit carriers to keep departing flights on the tarmac for periods longer than the 3and 4-hour time periods currently allowed under DOTs tarmac delay regulation, provided that the aircraft have begun to return to a suitable disembarkation point by those times in order to deplane passengers. The Department does not interpret its authority under 49 U.S.C. 42301 to allow it to require a decrease in the amount of time carriers are permitted to keep aircraft on the tarmac, unless a carrier voluntarily chooses to lower the time-period it will permit an aircraft to remain on the tarmac and incorporates that lower time limit into its tarmac delay contingency plan.
The Department acknowledges that commenters of multiple perspectives suggested eliminating the dichotomy of carrier-controlled and non-carriercontrolled areas from the analysis of whether an aircraft has begun to return to a suitable disembarkation point. DOT
fully considered these comments and evaluated whether a single standard could work in both situations. The Department concluded that its approach
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