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Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
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opportunity to deplane, the Department encourages carriers to provide passengers sufficient detail in their announcements to create a realistic expectation of how long the opportunity to deplane will continue to exist. This could help passengers gauge whether and when to take advantage of the opportunity to deplane. Whether the carrier permits a passenger to re-board the aircraft after the passenger has taken advantage of the opportunity to deplane is an operational decision left to the carrier for purposes of this rule. This rule does not impact carriers ability to announce that deplaning passengers should stay near the gate area, or that deplaning passengers may not be permitted to re-board the aircraft, as appropriate.
9. Tarmac Delay Safety and Security Exceptions The NPRM: Prior to this final rule, the tarmac delay regulations and 49 U.S.C.
42301 had slightly different standards for the safety and security exceptions to the tarmac delay requirements. Under the regulation, 14 CFR 259.4, a safety or security exception existed when the pilot-in-command determined that there was a safety related or security related reason why the aircraft could not leave its position on the tarmac to deplane passengers. 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. The Department proposed to amend the safety and security exceptions to the tarmac delay rule to incorporate the exceptions articulated in 49 U.S.C.
42301 into the existing safety and security exceptions in the regulation.
Under this proposal, a safety or security exception would occur when the pilotin-command determined that deplaning passengers at a suitable disembarkation point would jeopardize passenger safety or security, or when there was a safety related or security related reason why the aircraft could not leave its position on the tarmac to deplane passengers. As the Departments Office of Aviation Consumer Protection already considered the exceptions provided in 49 U.S.C.
42301 and the Departments tarmac delay rule to determine whether a violation occurred, the Department did not expect that this change in language would impact carriers or consumers.
Comments: Commenters generally agreed with the proposal, but many carriers added that the Department should afford flight crews greater
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deference and discretion in determining when a safety or security exception exists, and that the Department should not second guess a crewmembers decision on where to divert a flight. The RAA also commented that the lack of buses and stairs should be considered a safety exception to the tarmac delay rule, as the availability of such equipment is often out of the carriers control and is needed for passenger safety.
DOT Response: The Department has carefully considered the comments submitted on this issue and is adopting the language of the safety and security exceptions as articulated in the NPRM
in this final rule. To address commenters concerns about deference to flight crews, the Department notes that the Office of Aviation Consumer Protection already defers generally to crew decisions not to offload passengers for reasons that are reasonably based on safety and security concerns when the circumstances that give rise to those safety and security concerns are unavoidable and not precipitated by a carriers own actions or inactions. For example, the Office does not question a pilots decision about where to divert a flight because that is an exigent, operational decision. The Office of Aviation Consumer Protection may evaluate a carriers decision to dispatch a flight, however, if the carrier has reason to know that a diversion would be likely at the time of the flights departure. Regarding a lack of buses and stairs, the Department does not consider the inability to offload passengers due to the lack of deplaning equipment, absent other factors, to create a per se safety exception to the tarmac delay rule. If lacking a way to offload passengers were a per se exception to the rule, the rule, which itself requires carriers to find ways to offload passengers stranded on the tarmac, would have no effect.
Consistent with current practice and Department policy, the Office of Aviation Consumer Protection, when investigating potential tarmac delay violations, affords the carrier the opportunity to present evidence in support of its position, including whether the carrier believes the rule was violated, whether an exception applies, whether there are any mitigating circumstances, whether the consumer harm was limited, and any other facts the carrier would like for the Office to consider. The Office of Aviation Consumer Protection considers all the information presented in each matter when determining whether enforcement action and any sanction is appropriate.

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10. Provision of Food and Water The NPRM: The Department proposed to clarify carrier obligations with respect to the provision of food and water. Prior to this final rule, carriers were required to provide adequate food and potable water no later than 2 hours after the aircraft left the gate in the case of a departure or touched down in the case of an arrival if the aircraft remained on the tarmac, unless the pilot-in-command determined that safety or security considerations precluded such service.
Because the obligation to provide food and water was triggered 2 hours after the aircraft left the gate, there were 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 started after the main aircraft door was closed in preparation for departure, which generally meant that passengers on board the aircraft no longer had the opportunity to deplane. On the other hand, carriers obligation to provide food and water occurred within 2 hours of the aircraft leaving the gate. The proposal sought to standardize carrier obligations such that the food and water timer would begin at the same time a tarmac delay begins.
Comments: FlyersRights and several carriers agreed with the proposal. IATA
and A4A commented that the start of the food and water timer should match the gate departure time, while Spirit Airlines commented that starting the clock when the aircraft doors are closed could lead to situations in which the aircraft is actively taxiing while the food and water requirement is triggered, which could present an unsafe situation.
DOT Response: Based on the comments received, the Department has adopted the proposal on this requirement, with slight modifications.
The language has been revised to clarify that the obligation to provide food and water exists no later than 2 hours after the tarmac delay begins. With this change in language, the tarmac delay clock and the food and water clock are in alignment, addressing the concerns raised by commenters including FlyersRights. As stated previously, a tarmac delay for a departing flight generally starts when the main aircraft door is closed. In some situations, this start time may also approximate the time that the aircraft pushes back from the gate, minimizing the potential impact of this modification to the rule in such situations. The Department also notes that, as with the prior iteration of the food and water requirement, safety or security considerations may preclude
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