BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, DC
______) In the Matter of ) ) TARMAC DELAY RULE ) Docket DOT-OST-2019-01404 ) ______)
COMMENTS OF THE REGIONAL AIRLINE ASSOCIATION
Communications with respect to this document should be sent to:
Nobuyo Reinsch Vice President, Aviation Safety & Security Regional Airline Association 1201 15th Street, NW Suite 430 Washington, DC 20005 [email protected]
December 24, 2019
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, DC
______) In the Matter of ) ) TARMAC DELAY RULE ) Docket DOT-OST-2019-01404 ) ______)
COMMENTS OF THE REGIONAL AIRLINE ASSOCIATION
Introduction and Summary of RAA Position
The Regional Airline Association (“RAA”) appreciates the opportunity to submit these comments in response to the U.S. Department of Transportation’s (“Department” or “DOT”)
October 25, 2019, Notice of Proposed Rulemaking (“NPRM”) proposing to modify U.S. and foreign air carrier obligations with respect to tarmac delay rules (“TDR”) and to conform carriers obligations with respect to departure delays as described in the FAA Extension, Safety, and
Security Act of 2016 (“FAA Extension Act”). The Department proposes certain changes to the tarmac delay rules, specifically a new exception for departure delays. RAA and its members1 generally support the proposed changes as they will provide some flexibility to airlines and alleviate concerns about the effect of the existing rules on operations and potential flight
1 RAA Members are: Air Wisconsin Airlines, Champlain Enterprises CommutAir, Compass Airlines, Empire Airlines, Inc., Endeavor Air, Envoy Air, Inc., ExpressJet Airlines, GoJet Airlines, Grand Canyon Airlines, Horizon Air, Hyannis Air Service, Mesa Airlines, New England Airlines, Pen Air, Piedmont Airlines, PSA Airlines, Ravn Air Group, Republic Airways Holdings, Inc., Seaborne Airlines, SkyWest Airlines, Trans States Airlines Comments of the Regional Airline Association Page 2 of 11
cancellations. We offer the recommendations herein to further improve the tarmac delay framework and proposed rules. Our suggested improvements will significantly reduce the unintended consequences and significant costs that the TDR have long imposed on consumers and the airlines.
In summary, RAA recommends that the Department consider:
1. A tarmac delay stops when the carrier begins to return to a disembarkation point by requesting, regardless to whom the request is made or where the aircraft is located, to return to a disembarkation point or when starting the carrier’s return process; 2. Bureau of Transportation Statistics (“BTS”)-accepted gate departure time (commonly known as the “OUT” time) be used for the tarmac delay starting time; 3. The departure delay exception should be applied to carriers’ reporting obligations; and 4. DOT should defer to the safety and security determinations of the pilot-in- command.
I. Departure Delay Exception.
A. DOT should remove the distinction of different tarmac areas under control by different entities.
RAA generally supports the Department’s proposal to amend its tarmac delay regulation to reflect its Enforcement Policy. Under the proposed amendments, 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 (FAA) 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. At congested airports, where many tarmac delays occur, permission to return to a suitable disembarkation Comments of the Regional Airline Association Page 3 of 11
point is often not granted immediately. This is beyond the carrier’s control and, as stated in the
NPRM, carriers should not be held responsible for delays attributed to third parties. The proposed amendment acknowledges this issue and considers the aircraft is returning to a suitable disembarkation point when a request is made to the FAA ATC, airport authority, or other relevant authority directing the aircraft’s operations.
However, the proposed rule introduces a new concept: the distinction of different tarmac areas under control by different entities. This deviates from the statutory authority as the
Congress did not include such a distinction. The statutory text does not distinguish which entity has control over the area of the tarmac on which the aircraft is located. Instead, it’s focus is clear that the carrier’s first action that begins to return the aircraft to a disembarkation point ends the tarmac delay, whether it is requesting permission to move or actually maneuvering the aircraft.
From the practical point of view, it is difficult for carriers to implement and comply with this requirement as often it is not clear to a crew whether the aircraft is in an area that is or is not under the carrier’s control to move or taxi. However, even when the aircraft is in an area of the airport property that is under the carrier’s control, the aircraft almost always is required to taxi through an area that is not under the carrier’s control to return to a suitable disembarkation point.
In addition, some deicing locations have shared control between carriers and the airport.
When discussing the process of beginning to return to the gate or a suitable disembarkation point, distinguishing those areas that are carrier-controlled or non-carrier- controlled parts of the airport would only add unnecessary complexity. Given the significant variation in tarmac control among airports, RAA recommends removing the distinction between different tarmac areas under control by different entities. Instead, the aircraft should be considered returning to a suitable disembarkation point when the decision is made, prior to Comments of the Regional Airline Association Page 4 of 11
returning the aircraft to the disembarkation point regardless of the location of the aircraft. In fact, requiring a carrier to maneuver the aircraft to stop the tarmac delay clock is contrary to the statute because the return process actually begins when the carrier makes the decision to return the aircraft to the disembarkation point, which always occurs before the pilot requests clearance to return to the disembarkation point or the aircraft is maneuvered. Moreover, carriers can begin the return process in many ways. The method may differ by carrier, airport, and circumstance, but it always begins before the crew begins to maneuver the aircraft. For many regional carriers who operate for a mainline carrier, there is a complicating factor as the mainline carrier may have control of, or influence over certain areas of the airport and the regional operator must include them in the decision-making process. In summary, the carrier begins to return to a disembarkation point when the crew or carrier’s operations authority requests, regardless to who the request is made: (i) to return to a disembarkation point or (ii) to start the carrier’s return process.
B. Closing the main aircraft door should not start the tarmac delay clock for departing flights.
Under the current 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. This rulemaking proposes that 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 the tarmac delay clock has not started and will not start until passengers no longer have the opportunity to deplane. RAA generally supports the DOT’s approach to allow carriers some flexibility in determining when a tarmac delay begins. However, we believe that closing the main aircraft door should not start the tarmac delay clock for departing flights. Comments of the Regional Airline Association Page 5 of 11
First, not all fleets are equipped with a system that captures the time when the main aircraft door closes. Additionally, the Department has not considered the costs or performed a cost-benefit analysis to require equipage of systems that capture the main door closing time. For any current reporting requirements, carriers do not use the main aircraft door closure time.
Specifically for on-time reporting and tarmac delay reporting, “gate departure time” is used; the
BTS defines “gate departure time” as “the instance when the pilot releases the aircraft parking brake after passengers have loaded and aircraft doors have been closed ready for aircraft movement”
Second, it is common at many large and mid-size airports that regional carriers use a remote stand for boarding and deplaning. There are instances when the crew may decide to close the aircraft door immediately after all passengers are onboard. Such occasions include but are not limited to extreme hot or cold or otherwise inclement weather.
RAA believes that closing the main aircraft door should not start the tarmac delay clock for departing flights. Instead, we recommend that as an alternative to the main aircraft door closing time, BTS-accepted gate departure time (commonly known as the “OUT” time) be used for the tarmac delay starting time.
C. Exceptions should be considered for arriving or diverted flights.
In the case of departing flights, aircraft may remain at the gate with aircraft doors closed.
However, arrival flights may not have a gate or disembarkation location due to airport congestion or lack of U.S. Customs and Border Protection (CBP) availability for international arrivals. Especially, regarding a diverted flight, the flight may need to land at an airport where the carrier does not have regular operations. Comments of the Regional Airline Association Page 6 of 11
Flights divert mainly for safety or security reasons or in the case of inflight emergencies.
For any diversion, but in particular for emergencies, immediate landing of the aircraft may be required at the closest suitable available airport whether the airport has the carrier’s own ground staff, regular ground equipment (e.g. passenger boarding bridges and stairs), or transportation means (e.g. buses or walkways) between the aircraft and the terminal. These factors should not hinder or dictate the flight crew’s decision-making process when determining which airport is the safest available to land at for aircraft and passenger emergencies. RAA believes that the safety of the flight and passengers should come first, and additional exceptions should be considered for diverted flights. Carriers should not be held responsible for the tarmac delays for unavoidable circumstances.
II. Reporting Requirements.
A. Any carrier not currently subject to Part 234 reporting should also be exempt from tarmac delay data reporting requirements.
We support DOT’s decisions to: (i) reduce the carriers’ reporting burden by eliminating the reporting requirement under 14 C.F.R. part 244, provided that such flights are reported under
14 C.F.R. part 234; (ii) reduce the reporting for international flights to those that experience an
“excessive tarmac delay” of more than four hours; and (iii) eliminate the record retention requirements in 14 C.F.R. § 259.4. 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. RAA supports the proposed changes to the reporting requirements as this change would reduce the burden on non- reporting carriers that operate flights held out by reporting carriers. Comments of the Regional Airline Association Page 7 of 11
However, this proposal does not change the requirements that 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. As stated previously, in its comments submitted in response to DOT-OST-2010-0140-0015, RAA continues to believe that any carrier not currently subject to Part 234 reporting should be exempt from tarmac delay data reporting requirements, whether or not it is required to implement a tarmac delay contingency plan.
B. The Department should apply the departure delay exception to carriers’ reporting obligations.
In addition, RAA supports Airlines for America’s (“A4A”s) recommendation to further reduce the reporting burden for flights that do not violate the passengers’ option to deplane and return to the airport terminal when there is an excessive tarmac delay. As stated in A4A’s comments, under the current proposal, “carriers would continue to be obligated to report departing flights that experienced a tarmac delay, even when the carrier begins to return the aircraft to a suitable disembarkation point before the excessive tarmac delay time, qualifying for the proposed departure delay exception in proposed rule 14 C.F.R. § 259.4(c)(3)(i).” The
Department should recognize the departure delay exception for carriers’ reporting obligations under the statutory reporting requirement and proposed 14 C.F.R. § 259.4(g). Specifically,
Congress defined a tarmac delay as “the period which passengers are on board an aircraft on the tarmac-(A) awaiting takeoff after the aircraft doors have been closed. . .”2 However, Congress amended the statute to effectively recognize that an aircraft is no longer awaiting takeoff and the tarmac delay clock stops after the carrier begins to return the aircraft to a suitable disembarkation
2 49 U.S.C. § 42301(i)(3). Comments of the Regional Airline Association Page 8 of 11
point.3 RAA believes that in those circumstances, carriers should not have to report tarmac delays as they do not violate passengers’ option to deplane and return to the airport terminal whenever the tarmac delay clock is stopped before the three-or four-hour time mark respectively.
III. Record Retention.
RAA supports the Department’s proposal to eliminate the tarmac delay record retention requirement in 14 CFR 259.4(e). Since air carriers already furnish required information including, (1) the length of the delay; (2) the precise cause of the delay; (3) the actions taken to minimize hardships for passengers, including the provision of food and water, the maintenance and servicing of lavatories, and medical assistance; (4) whether the flight ultimately took off (in the case of a departure delay or diversion) or returned to the gate; and (5) an explanation for any tarmac delay that exceeded 3 hours, the proposed reporting requirement itself has a minimal impact.
IV. Other Exceptions to Tarmac Delay Requirements: The Department should defer to
the safety and security determinations of the pilot-in-command.
RAA and its regional carriers generally support the proposal to codify the safety and security exceptions in 49 U.S. C. 42301. We agree that the pilot-in-command should be the one to determine 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.
3 See 49 U.S.C. § 42301(b)(3)(C). Comments of the Regional Airline Association Page 9 of 11
However, RAA and its regional carriers strongly disagree that the safety or security exception would not apply if the passengers are at a suitable disembarkation point such as a remote hardstand to deplane but are unable to do so because of a lack of buses or stairs.
Depending on the airport design and layout, regional flights are often parked at embarkation/disembarkation spots on the tarmac and in some cases, buses are used to transport passengers between the aircraft and the terminal. For passengers’ safety and security, the pilot- in-command will not deplane the passengers if external circumstances such as weather and ramp conditions are unsafe for passenger disembarkation until suitable transportation is made available. The availability of buses or stairs are contributing factors in the pilot’s decision- making process when determining the safety and security of aircraft and passengers: therefore, it should not be excluded from the safety and security exception. In most cases, the availability of buses and stairs is beyond the carrier’s control; consequently, air carriers should not be held responsible for the tarmac delay.
This is no different to the principle applied by the pilot-in-command on a routine basis when determining the safety of all aspect of a flight operation. In addition, it should be understood that decisions taken in the interests of passenger safety, are developed in conjunction with the carriers’ operations and airport operations authority before final decisions are made.
V. Other Carrier Obligation: Carriers already provide frequent tarmac delay updates.
Under the current rules, the time when a tarmac delay starts and the time when carriers’ obligation to provided food and water within two hours of the aircraft leaving the gate are not always in alignment. RAA generally supports this proposed amendment to standardize carrier obligations such that the food and water timer would begin at the same time a tarmac delay Comments of the Regional Airline Association Page 10 of 11
begins. As stated in the earlier section, RAA strongly recommends that the Department adopts a standard that allows carriers to use the BTS-accepted gate departure time for the time when a tarmac delay starts and the time to determine when food and water must be provided.
The proposed rule would also change carriers’ obligations with respect to notifying passengers when they have an opportunity to deplane by eliminating the carrier’s obligation to provide additional notifications every 30 minutes, thereby reducing the burden on carrier staff, while maintaining passengers’ access to information. RAA supports this proposal. As stated in its comments in response to DOT-OST-2010-0140-0015, RAA did not believe there was a need to include this requirement in the regulation. Because of the dynamic nature of the impact of external circumstances on flight status, to our knowledge it has been the best practice of regional carriers’ flight crews and flight attendants to provide tarmac delay updates as needed and on a timely basis, often more frequently than any specified or regulated interval.
Comments of the Regional Airline Association Page 11 of 11
Conclusion
RAA and its members generally support the amendments proposed by DOT. We appreciate the opportunity to provide additional improvements what would mitigate the negative impact of the TDR on passengers and carriers. RAA strongly recommends that the Department continuously assess the effectiveness of the TDR and amend them as necessary to further reduce the unintended consequences and significant costs that the TDR have long imposed on consumers and the airlines.
Respectfully submitted,
______
Nobuyo Reinsch Vice President, Aviation Safety & Security Regional Airline Association 1201 15th Street, NW Suite 430 Washington, DC 20005 [email protected]
Dated: December 24, 2019