Vol. 76 Monday, No. 79 April 25, 2011

Part IV

Department of Transportation

14 CFR Parts 244, 250, 253 Et al. Enhancing Airline Passenger Protections; Final Rule

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DEPARTMENT OF TRANSPORTATION taking this action to strengthen the Contingency plans for lengthy tarmac rights of air travelers in the event of delays; (2) reporting of tarmac delay Office of the Secretary oversales, flight cancellations and data; (3) customer service plans; (4) delays, ensure that passengers have contracts of carriage; (5) responding to 14 CFR Parts 244, 250, 253, 259, and accurate and adequate information to consumer problems/complaints (6) 399 make informed decisions when oversales; (7) full fare advertising; (8) [Docket No. DOT–OST–2010–0140] selecting flights, prohibit unfair and baggage and other ancillary fees; (9) deceptive practices such as post- post-purchase price increases; (10) RIN 2105–AD92 purchase price increases and contract of notification to passengers of flight status carriage choice-of-forum provisions, and changes; (11) choice-of-forum Enhancing Airline Passenger to ensure responsiveness to consumer provisions; and (12) peanut allergies. In Protections complaints. response to the NPRM, the Department AGENCY: received over 2100 comments, the vast Office of the Secretary (OST), DATES: This rule is effective August 23, Department of Transportation (DOT). 2011 except for the amendments to 14 majority of which were related to the ACTION: Final rule. CFR 399.84 which become effective proposal to address peanut allergies in October 24, 2011. air travel. SUMMARY: The Department of The Department received comments FOR FURTHER INFORMATION CONTACT: Transportation is issuing a final rule to on the NPRM from the following: U.S. Blane A. Workie, Tim Kelly or Daeleen improve the air travel environment for carriers and U.S. carrier associations; Chesley, Office of the Assistant General consumers by: Increasing the number of foreign air carriers and foreign carrier Counsel for Aviation Enforcement and carriers that are required to adopt associations; U.S. and foreign consumer Proceedings, U.S. Department of tarmac delay contingency plans and the groups; travel agents and members of Transportation, 1200 New Jersey Ave., airports at which they must adhere to organizations in the travel industry; SE., Washington, DC 20590, 202–366– the plan’s terms; increasing the number airports and various airport-related 9342 (phone), 202–366–7152 (fax), of carriers that are required to report industry groups; members of Congress; [email protected] or tarmac delay information to the embassies; peanut industry groups and [email protected] (e-mail). Department; expanding the group of allergy associations; as well as a number carriers that are required to adopt, SUPPLEMENTARY INFORMATION: of individual consumers. In addition, follow, and audit customer service plans Background the Department received a summary of and establishing minimum standards for the public discussion on the NPRM the subjects all carriers must cover in On December 30, 2009, the proposals that occurred on the such plans; adding carriers to those Department published a final rule in Regulation Room Web site, http:// required to include their contingency which it required certain U.S. air www.regulationroom.org. The plans and customer service plans on carriers to adopt contingency plans for Regulation Room site is a site where their websites; increasing the number of lengthy tarmac delays; respond to members of the public can learn about carriers that must respond to consumer consumer problems; post flight delay and discuss proposed federal complaints; enhancing protections information on their websites; and regulations and provide feedback to afforded passengers in oversales adopt, follow, and audit customer agency decision makers. To support this situations, including increasing the service plans. The rule also defined Administration’s open government maximum denied boarding chronically delayed flights and deemed initiative, the Department partnered compensation airlines must pay to them to be an ‘‘unfair and deceptive’’ with Cornell University in this pilot passengers bumped from flights; practice. The majority of the provisions project to discover the best ways to use strengthening, codifying and clarifying in that rule took effect on April 29, Web 2.0 and social networking the Department’s enforcement policies 2010. See 74 FR 68983 (December 30, technologies to increase effective public concerning air transportation price 2009). involvement in the rulemaking process. advertising practices; requiring carriers In the preamble to that final rule, the The Department has carefully to notify consumers of optional fees Department noted that it planned to reviewed and considered the comments related to air transportation and of review additional ways to further received. The commenters’ positions increases in baggage fees; prohibiting enhance protections afforded airline that are germane to the specific issues post-purchase price increases; requiring passengers and listed a number of raised in the NPRM and the carriers to provide passengers timely subject areas that it was considering Department’s responses are set forth notice of flight status changes such as addressing in a future rulemaking. On below, immediately following a delays and cancellations; and June 8, 2010, the Department published summary of regulatory provisions and a prohibiting carriers from imposing a notice of proposed rulemaking summary of the regulatory analysis. unfair contract of carriage choice-of- (NPRM), 75 FR 32318, in which it forum provisions. The Department is addressed the following areas: (1) Summary of Regulatory Provisions

Subject Final rule

Tarmac Delay Contingency Plans ...... • Requires foreign air carriers operating to or from the U.S. with at least one aircraft with 30 or more passenger seats to adopt and adhere to tarmac delay contingency plans. • Requires U.S. and foreign air carriers to not permit an international flight to remain on the tarmac at a U.S. airport for more than four hours without allowing passengers to deplane subject to safety, security, and ATC exceptions. • Expands the airports at which airlines must adhere to the contingency plan terms to include small hub and non-hub airports, including diversion airports. • Requires U.S. and foreign carriers to coordinate plans with Customs and Border Protection (CBP) and the Transportation Security Administration (TSA).

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Subject Final rule

• Requires notification regarding the status of delays every 30 minutes while aircraft is de- layed, including reasons for delay if known. • Requires notification of opportunity to deplane from an aircraft that is at the gate or another disembarkation area with door open if the opportunity to deplane actually exists.

Tarmac Delay Data ...... • Requires all carriers that must adopt tarmac delay contingency plans to file data with the Department regarding lengthy tarmac delays.

Customer Service Plans ...... • Requires foreign air carriers that operate scheduled passenger service to and from the U.S. with at least one aircraft with 30 or more passenger seats to adopt, follow and audit cus- tomer service plans. • Establishes standards for the subjects U.S. and foreign air carriers must cover in customer service plans. Examples include: • delivering baggage on time, including reimbursing passengers for any fee charged to transport a bag if the bag is lost; • where ticket refunds are due, providing prompt refunds including refund of optional fees charged to a passenger for services that the passenger was unable to use due to an oversale situation or flight cancellation; and • allowing reservations to be held at the quoted fare without payment, or cancelled with- out penalty, for at least twenty-four hours after the reservation is made if the reserva- tion is made one week or more prior to a flight’s departure date.

Posting of Customer Service Plans and Tarmac • Requires foreign carriers to post their required contingency plans, customer service plans, Delay Contingency Plans. and contracts of carriage on their websites as is already required of U.S. carriers.

Response to Consumer Problems ...... • Expands the pool of carriers that must respond to consumer problems to include foreign air carriers operating scheduled passenger service to and from the U.S. with at least one air- craft with 30 or more passenger seats (i.e., monitor the effects of irregular flight operations on consumers; inform consumers how to file a complaint with the carrier, and provide substantives responses to consumer complaints within 60 days).

Oversales ...... • Increases the minimum denied boarding compensation limits to $650/$1,300 or 200%/400% of the one-way fare, whichever is smaller. • Implements an automatic inflation adjuster for minimum DBC limits every 2 years. • Clarifies that DBC must be offered to ‘‘zero fare ticket’’ holders (e.g., holders of frequent flyer award tickets) who are involuntarily bumped. • Requires that a carrier verbally offer cash/check DBC if the carrier verbally offers a travel voucher as DBC to passengers who are involuntarily bumped. • Requires that a carrier inform passengers solicited to volunteer for denied boarding about all material restrictions on the use of transportation vouchers offered in lieu of cash.

Full Fare Advertising ...... • Enforces the full fare advertising rule as written (i.e., ads which state a price must state the full price to be paid). Carriers currently may exclude government taxes/fees imposed on a per-passenger basis. • Clarifies the rule’s applicability to ticket agents. • Prohibits carriers and ticket agents from advertising fares that are not the full fare and im- pose stringent notice requirements in connection with the advertisement of ‘‘each-way’’ fares available for purchase only on a roundtrip basis. • Prohibits opt-out provisions in ads for air transportation.

Baggage and Other Fees and Related Code- • Requires U.S. and foreign air carriers to disclose changes in bag fees/allowances on their Share Issues. homepage for three months, to include information regarding the free baggage allowance. • Requires carriers (U.S. and foreign) and ticket agents to include on e-ticket confirmations in- formation about the free baggage allowance and applicable fees for the first and second checked bag and carry-on but allows ticket agents, unlike carriers, to do so through a hyperlink. • Requires carriers (U.S. and foreign) and ticket agents to inform passengers on the first screen on which the ticket agent or carrier offers a fare quotation for a specific itinerary se- lected by a consumer that additional airline fees for baggage may apply and where con- sumers can go to see these baggage fees. • Requires U.S. and foreign air carriers to disclose all fees for optional services to consumers through a prominent link on their homepage. • Requires that the same baggage allowances and fees apply throughout a passenger’s jour- ney. • Requires the marketing carrier to disclose on its website any difference between its optional services and fees and those of the carrier operating the flight. Disclosure may be made through a hyperlink to the operating carriers’ websites that detail the operating carriers’ fees for optional services, or to a page on its website that lists the differences in policies among code-share partners.

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Subject Final rule

Post-Purchase Price Increases ...... • Bans the practice of post-purchase price increases in air transportation or air tours unless the increase is due to an increase in government-imposed taxes or fees and only if the pas- senger was provided full disclosure of the potential for the increase and affirmatively agreed to the potential for such an increase prior to purchase.

Flight Status Changes ...... • Requires U.S. and foreign air carriers operating scheduled passenger service with any air- craft with 30 or more seats to promptly notify consumers through whatever means is avail- able to the carrier for passengers who subscribe to the carrier’s flight status notification services, in the boarding gate area, on a carrier’s telephone reservation system and on its website of delays of 30 minutes or more, cancellations and diversions within 30 minutes of the carrier becoming aware of a change in the status of a flight.

Choice-of-Forum Provisions ...... • Prohibits U.S. and foreign air carriers from limiting a passenger’s forum to pursue litigation to a particular inconvenient venue.

Summary of Regulatory Analysis costs, even without considering non- period at a 7% discount rate is $14.3 quantifiable benefits. This analysis, million. At a 3% discount rate, the The regulatory analysis shows that the outlined in the table below, has present value of monetized net benefits monetized benefits of the proposed determined that the present value of is estimated to be $20.3 million. requirements exceed their monetized monetized net benefits for a 10 year

Present value (millions)

Monetized Benefits ...... 10 Years, 7% discounting ...... $45.0 10 Years, 3% discounting ...... 53.5 Monetized Costs ...... 10 Years, 7% discounting ...... 30.7 10 Years, 3% discounting ...... 33.2 Monetized Net Benefits ...... 10 Years, 7% discounting ...... 14.3 10 Years, 3% discounting ...... 20.3

A comparison of the monetized benefits so, the cost burdens and benefits of particularly with respect to diverted and costs for each of the final doing so. For example, we proposed to flights. For example, they argue that an requirements is provided in the include foreign carriers that operate airport authority is most likely to know Regulatory Analysis and Notices aircraft originally designed to have a the areas in the airport where section, set forth below, along with passenger capacity of 30 or more seats international passengers can be allowed information on additional benefits and to and from the U.S., but we invited to deplane without resulting in U.S. costs for which quantitative estimates interested persons to comment on Customs and Border Protection (CBP) or could not be developed. whether, in the event that we adopt a Transportation Security Administration rule requiring foreign carriers to have (TSA) concerns. Commenters also note Comments and Responses contingency plans, we should limit its that requiring only carriers to have a 1. Tarmac Delay Contingency Plans applicability to foreign air carriers that contingency plan unreasonably places operate large aircraft to and from the the burden of the operations of the A. Entities Covered U.S.—i.e., aircraft originally designed to entire air transport industry on carriers. The NPRM: The NPRM proposed to have a maximum passenger capacity of Consumer groups are also in favor of require any foreign air carrier that more than 60 seats. We also asked requiring airports to adopt contingency operates scheduled passenger or public whether the requirement to adopt plans. Of the airport and airport charter service to and from the U.S. tarmac delay contingency plans should industry commenters, Dallas/Fort Worth using any aircraft originally designed to apply not only to U.S. and foreign air Airport generally supports requiring have a passenger capacity of 30 or more carriers but also to U.S. airports. We U.S. airports to adopt a tarmac delay passenger seats to adopt and comply requested that proponents and contingency plan but notes that U.S. with a tarmac delay contingency plan opponents of these or other alternative airports do not have direct contact with for their flights to and from the U.S. that proposals provide arguments in support airline passengers when they are on the includes minimum assurances identical of their positions. aircraft and have no control over to those currently required of U.S. Comments: A number of U.S. and deplaning. Airports Council carriers. As proposed, it would apply to foreign airlines and airline associations International (ACI) supports the airlines’ all of a foreign carrier’s flights to and support requiring airports to develop plans being coordinated with airports from a covered U.S. airport, including their own contingency plans to address but does not support requiring airports those involving aircraft with fewer than lengthy tarmac delays but generally to adopt separate plans. ACI believes 30 seats if a carrier operates any aircraft agree that these plans should be limited that separate airport and airline originally designed to have a passenger to coordinating with airlines and contingency plans could result in capacity of 30 or more seats to or from government agencies and assisting confusion and states that it is committed the U.S. airlines during tarmac delays. Some of to supporting airlines in the We sought comment on whether the these commenters note that airports are development of their plans. requirement to have a contingency plan in the best position to address the With regard to the adoption of a should be narrowed or expanded, and if logistics associated with lengthy delays, tarmac delay contingency plan by

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foreign carriers, the views of foreign and from the United States, not merely after the December 26, 2010, blizzard carrier associations and carriers differed on flights operated by U.S. airlines. highlights the need to extend the rule to significantly from those of other Among the consumer group those carriers. commenters. In general, the foreign commenters, the Consumer Travel In order to address commenters’ carriers and foreign carrier association Alliance (CTA) supports the expansion concerns that certain European laws (or commenters object to the proposal that of the tarmac delay rules to foreign laws of other countries) may conflict they adopt tarmac delay contingency carriers, as does the Association for with this regulation, we want to clarify plans as unnecessary and note that the Airline Passenger Rights (AAPR), that the requirement to adopt and follow same issues with tarmac delays do not National Business Travel Association a plan applies only to tarmac delay arise as often with international flights (NBTA), Flyersrights.org, Consumers events that occur at a covered U.S. as they do with domestic flights. The Union and Aviation Consumer Action airport. The rule should not conflict International Air Carrier Association Project (ACAP). The American Society with EU Regulation 261/2004, the EU (IACA) states that EU Regulation 261/ of Travel Agents (ASTA) also supports rule on compensation and assistance to 2004 is an EU passenger rights provision extending the tarmac delay contingency be provided to passengers in the event to which EU carriers are subject on all plan provisions to foreign carriers and of denied boarding, flight cancellation their flights, including flights that states that the rule should cover all or long flight delays. The types of depart from U.S. airports, and that the aircraft types. assistance required under the EU rule Department’s proposals could conflict Among the airports and airport are for the most part services that would with EU laws. The International Air industry commenters, ACI supports not be available on board an aircraft Transport Association (IATA) generally requiring foreign air carriers to adopt during a tarmac delay, e.g. phone calls, supports the principle of contingency plans that include minimum assurances a hotel room, transportation between the plans, but believes such plans should be as required of U.S. airlines and strongly airport and the hotel room, and developed individually by each carrier supports extending the rule to foreign rerouting on another flight. The context according to its specific operations and air carriers operating aircraft with 30 or of the food and beverage requirement in conditions as opposed to having terms more seats. The American Association regulation 261/2004 suggests that these set by the government. The Arab Air of Airport Executives (AAAE) agrees services are to be provided in the airport Carrier Association (AACA) and the that foreign carriers should comply with terminal during a normal (i.e., non- Latin American and Caribbean Air specified contingency plans in order to tarmac) flight delay before passengers Transport Association (ALTA) concur provide equal and fair competition. The have been boarded. As such, although with IATA, as do many foreign carriers. New York State Consumer Protection EU 261/2004 applies to EU carriers The Air Transport Users Council (AUC) Board supports requiring foreign departing from or traveling to an EU and a number of European carriers point carriers to adopt tarmac delay member state and to non-EU carriers out, similar to IACA, that many of the contingency plans that provide for departing from an EU member state provisions in the NPRM are covered passengers to receive the same basic airport, we see no conflict between that under EU legislation. The National necessities that U.S. carriers are rule and this one. On a tarmac delay at Airlines Council of Canada (NACC) required to provide. a U.S. airport, EU and non-EU carriers supports the need for contingency plans DOT Response: After fully can comply with all provisions of both in the event of irregular operations but considering the comments received, the rules. states that they should be developed in Department has decided not to With regard to charter flights, we the interest of enhanced customer promulgate a requirement that airports agree with Monarch Airlines and TUI service rather than being mandated by adopt contingency plans addressing Travel that an exception should exist for government regulation. TUI Travel notes lengthy tarmac delays. The Department foreign-originating charters that operate that EU carriers must comply with EU is aware that many airports are to and from the United States but do not regulations and asks that carriers voluntarily working with U.S. carriers to pick up any U.S. originating passengers. originating outside the U.S. be excluded develop policies and procedures to Consequently, carriers will not be from the tarmac delay contingency plan address lengthy tarmac delays and to required to adopt a tarmac delay rule. Monarch Airlines commented that cooperate with U.S. carriers in the contingency plan as long as their an exception to any requirement should coordination of the carriers’ contingency operations fall within these parameters. exist for flights that do not pick up plans as required of U.S. airlines by the This is consistent with 14 CFR 382.7(d) passengers in the United States. first tarmac delay rule. As such, it is not of the DOT rule on air travel by U.S. carrier associations such as the necessary to regulate in this area at this passengers with disabilities and with Air Transport Association of America time. the minimal regulation of these flights (ATA) and National Air Carrier However, the Department thinks it is by the Department’s public charter rule Association (NACA) indicated their reasonable and necessary to require in 14 CFR part 380. support for requiring foreign air carriers foreign carriers that operate scheduled B. Time Frame for Deplaning Passengers to meet the same standards as U.S. passenger or public charter service to on International Flights carriers for adopting tarmac delay and from the U.S. to adopt and adhere contingency plans. Of the U.S. carriers to tarmac delay contingency plans. The NPRM: Under the proposed rule, that commented, Spirit Airlines International air travel is a large and a covered foreign air carrier would be supports extending the rule to foreign increasingly significant market sector, required to include in its tarmac delay carriers, while Virgin America states and customers who use non-U.S. contingency plan an assurance that it that DOT should not adopt any of the airlines deserve no less protection from will not permit an aircraft to remain on proposals related to tarmac delays. lengthy tarmac delays at U.S. airports the tarmac at a U.S. airport for more Most of the comments received from than do customers of U.S. airlines. We than a set number of hours as individuals on this issue noted that a also wish to be consistent with the determined by the carrier in its plan requirement to develop a tarmac delay application of our rules. The lengthy before allowing passengers the contingency plan should be extended to tarmac delays experienced by a number opportunity to deplane. The proposal foreign carriers because it is important of foreign carriers at John F. Kennedy included appropriate safety, security, to protect consumers on all flights to International Airport (JFK) during and and ATC exceptions. This is already

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required of U.S. carriers for their • International flights operate less DOT Response: As noted above, the international flights under the frequently and a cancellation could Department is expanding its Department’s existing rule. As for result in missed connections with requirement to adopt a tarmac delay domestic flights, U.S. carriers are serious consequences for passengers; contingency plan to foreign carriers, as required to provide an assurance that • Returning to the gate and/or a flight we believe that it is important to ensure they will not permit an aircraft to cancellation may result in the crew that passengers on these carriers are also remain on the tarmac for more than ‘‘timing-out’’ and many foreign carriers afforded protection from unreasonably three hours without deplaning do not have U.S.-based crews, which lengthy tarmac delays. With regard to a passengers subject to the same safety, could result in a delay of 24 hours or required time period for deplaning security and ATC exceptions. In the more; passengers on international flights • NPRM, we noted that there are ongoing International flights have limited operated by U.S. or foreign carriers, we questions as to whether mandating a windows of opportunity to depart due are requiring that these carriers provide specific time frame for deplaning to gate constraints at foreign airports; • an assurance that they will not permit passengers on international flights as Larger aircraft used for international an aircraft to remain on the tarmac at a currently exists for domestic flights is in flights take much longer to enplane and U.S. airport for more than four hours the best interest of the public. We asked deplane (up to 40 minutes), which can without providing passengers an for comments on whether any final rule cause even further delay; • opportunity to deplane. As in our initial that we may adopt should set a uniform International flights are often better rulemaking to enhance airline passenger equipped to meet passenger needs on- standard for the time interval after protections, this new requirement will board the aircraft; and which U.S. or foreign air carriers would allow exceptions for safety and security • Long-haul and ultra-long haul be required to allow passengers on considerations and in instances where international flights to deplane rather operations can make up time while in the air. Air Traffic Control advises the pilot-in- than allowing the carriers to set their command that returning to the gate or own tarmac delay time limit for such Some carriers, such as Air New Zealand, support a 3 hour time limit, permitting passengers to disembark flights. We also asked commenters who elsewhere would significantly disrupt support the adoption of a uniform but note that consideration should be given to crew restrictions and gate airport operations. We decided to standard to propose specific time limits impose a uniform time limit for and state why they believe these allocations, or situations where resolution of the delay is less than an deplaning passengers on international intervals to be appropriate. flights rather than allowing carriers to Comments: Of the U.S. carriers and hour away and deplaning would further delay the flight. Qantas also supports establish their own tarmac delay time carrier associations that commented, limits because we believe the ATA objects to a hard time limit on the 3 hour limit in principle, but thinks such an assurance is limited by the consistency in standard will provide tarmac delays for international flights. passengers with clearer expectations as NACA supports requiring foreign air carrier’s ability to control the circumstances. Of the travel agents and to when they would be allowed off carriers to meet the same standards as aircraft in the event of a tarmac delay. U.S. carriers for adopting tarmac delay other industry group commenters that commented on this issue, ASTA agrees A uniform standard will also make it contingency plans. clearer to the other stakeholders such as In general, the non-U.S. carriers and that a specific standard for international airports of the need to assist airlines in carrier associations object to the flights is important but supports a four deplaning passengers on international proposal as unnecessary, asserting that hour rather than three hour rule. flights before the four hour mark. the same problems with tarmac delays Among the consumer commenters, Further, the Department believes that a do not exist with international flights as the Association for Airline Passenger with domestic flights. For example, Rights (AAPR) and Flyersrights.org uniform time limit will reduce or Condor Flugdienst Airlines (Condor) strongly advocate for a maximum prevent lengthy tarmac delay incidents states that it sees no reason to enforce permissible tarmac delay of three hours such as those that occurred at JFK a mandatory deplaning requirement for for international flights. Flyersrights.org during and after the December 26, 2010, a problem that occurs only very rarely. urges that tarmac delays of over three blizzard and the resulting impact on Many of these carriers also comment hours not be permitted for international passengers traveling on those flights. that a ‘‘one size fits all’’ approach is not flights and notes that the ‘‘health and We decided to impose a four hour practical and note that there are large inconvenience problems’’ are the same time limit for lengthy tarmac delays on differences between domestic and regardless of whether the flight is international flights as opposed to the international operations, and between domestic or international. Consumer three hour limit that applies to lengthy long-haul and short-haul operations. Action, along with Consumer tarmac delays on domestic flights for a IATA and IACA object to a uniform time Federation of America, the National number of reasons. First, because limit entitling passengers to deplane. Consumers League, Public Citizen, and international flights are of much longer IACA states that the proposal may U.S. PIRG support the extensive duration on average than domestic conflict with EU passenger rights comments filed by Flyersrights.org. flights, it is possible that delays may not requirements since EU carriers must Some individual commenters also have as negative an impact on follow EU requirements on all their expressed concern about lengthy tarmac international passengers as they were flights, including flights that depart delays on international flights and already planning on spending a from U.S. airports. The Association of advocated for a uniform time limit for significant amount of time in the aircraft European Airlines (AEA) and foreign deplaning passengers. Of the and some of the time spent on the airlines’ comments are similar to commenters on ‘‘Regulation Room,’’ tarmac can be made up while in the air. IATA’s. Many object to the proposal to almost half noted, generally, that the We also reviewed the contingency plans require carriers to set a time limit to Department should apply a uniform for the U.S. carriers as they are already deplane due to various operational federal time limit on tarmac delays to all required to establish their own tarmac concerns. Specifically, a number of flights and airlines, regardless of aircraft delay time limits for international foreign industry groups and airlines size, airport size, and whether the flight flights, and found that most of these noted the following: is domestic or international. carriers have chosen to set a four hour

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time limit for deplaning passengers from Comments: With regard to the to provide advice and assistance as their international flights that provision for adequate food and water, required, but thinks the extent of this experience a tarmac delay. In addition, ATA notes that generally aircraft used requirement needs clarification. South we are persuaded by comments of the for international flights are able to African Airways expresses similar different environment in which comfortably accommodate passengers concerns as Qantas and notes that the international flights operate and the onboard for longer periods of time, with NPRM is not clear regarding what need to provide greater leeway for food service and entertainment options comprises medical attention within the international flights than we allow for often available given the type of meaning of the proposal. South African domestic flights. For these reasons, we equipment used and the expected length Airways states that while its in-flight have decided to impose a four hour time of these flights. Among the foreign air crewmembers have basic first-aid limit for deplaning passengers on carriers that commented, Condor capabilities, the carrier relies on international flights and not allow U.S. Airlines notes that when a longer delay consultations with remote medical-care and foreign carriers to establish their becomes inevitable, Condor has snacks contractors and other passengers with own longer tarmac delay time limits for and drinks available for passengers. medical training to provide good- international flights. Similarly, Qatar Airways notes that the Samaritan assistance. South African As clarified in the first rule to logistics of the ultra long-haul flights explains that it sees no practical way to enhance airline passenger protections, operated to and from the U.S. already ensure medical attention during tarmac an international flight for purposes of require that Qatar Airways provide extra delays that exceeds this basic assistance. this requirement is a nonstop flight catering and potable/bottled water to The National Airlines Council of segment that departs from the United allow for extra time beyond that Canada (NACC) states that many airlines States and lands in another country, or scheduled during which its customers are not in a position to provide adequate vice-versa, exclusive of non-traffic and crew may have to spend in the medical attention as airlines are not technical stops. For example, if a U.S. aircraft. Qatar explains that it already medical organizations and in-flight staff carrier operates a direct flight Chicago- ensures that its customers are regularly in not medical staff. As such, it believes New York-Frankfurt, with some offered water and soft drinks by cabin that such assistance is up to local Chicago-originating passengers destined crew. Qantas indicates that it too authorities to provide. Among consumer groups and for New York and others destined for provides passengers access to potable individual commenters, the AAPR urges Frankfurt, and the aircraft experiences a water and refreshments during tarmac the Department to require the tarmac tarmac delay in Chicago, then we would delays but does not consider it delay contingency plans of U.S. and consider the tarmac delay to be on a reasonable to impose a mandatory requirement to provide food to all foreign air carriers contain minimum domestic flight. This is because passengers after two hours in all cases, guidelines for accommodating Chicago-New York is a domestic flight as the commencement of a meal service passengers with disabilities. The New segment even though the final may lead to further delays and missed York State Consumer Protection Board destination of the flight is Frankfurt, opportunities for departure. The carrier states that foreign carriers should be Germany. If, on the other hand, the also thinks that the term ‘‘adequate food’’ required to adopt a plan that provides aircraft only stops for refueling or a is too broad and open to different for passengers to receive the same basic crew change in New York and the flight interpretations. South African Airways necessities that U.S. carriers are carries no Chicago-New York traffic and wants the Department to understand required to provide, i.e., adequate food no Frankfurt-bound passengers enplane that foreign airlines have significantly and water, operable lavatories, and in New York, then we would consider less flexibility than U.S. airlines to store medical attention if needed. By and the tarmac delay in Chicago to be a extra catering items onboard. In the large, individual commenters also tarmac delay on an international flight. absence of evidence that lengthy delays support the Department imposing C. Provision for Adequate Food and are a problem for passengers traveling identical requirements for foreign and Water, Operable Lavatories, and on foreign airlines, the airline believes U.S. carriers. Of those that commented Medical Attention if Needed the Department is not justified in on Regulation Room, they generally imposing the costs associated with these support the Department requiring The NPRM: As proposed in the requirements. airlines to provide working bathrooms, NPRM, the tarmac delay contingency Regarding assurance of operable water, beverages, snacks and, in some plans adopted by foreign air carriers for lavatory facilities, a number of carriers cases, meals on delayed flights. A few international flights that depart from or noted that this is a reasonable commenters also mention the need for arrive at a U.S. airport would need to requirement and that they have working adequate temperature control and the include: (1) An assurance that the lavatories and toilet serviceability is ability to walk around an aircraft during carrier will provide adequate food and maintained at the highest levels. a delay in order to stretch and use the potable water no later than two hours However, one carrier expressed concern restroom. after the aircraft leaves the gate in the about unforeseen maintenance issues. DOT Response: The Department case of departure or touches down in With regard to providing medical continues to believe that passengers the case of an arrival if the aircraft attention, Condor states that its flight stuck on an aircraft during lengthy remains on the tarmac, unless the pilot- attendants are capable of providing tarmac delays deserve to be provided in-command determines that safety or basic first aid when needed and have some type of food, potable water, security considerations preclude such access to remote medical advice for operable lavatories, and if necessary, service; (2) an assurance of operable more serious medical emergencies. medical care. It appears from the lavatory facilities while the aircraft Similarly, Qatar Airways notes that its comments that most carriers already remains on the tarmac; and (3) an cabin crews are highly trained in first have procedures to provide food and assurance of adequate medical attention aid. Qantas Airlines believes that it is water during long tarmac delays, and if needed while the aircraft remains on reasonable to require carriers to seek ensure that their lavatory facilities are the tarmac. These requirements already medical assistance for any onboard operable while the aircraft remains on apply to U.S. carriers under the current emergency and states that it engages the the tarmac. The concern expressed by rule. services of an external medical provider South African Airways about storage

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space for extra catering items seems to operational concerns affecting such Of the consumer and consumer group be based on a misconception that airports. commenters, CTA supports the extensive supplies are needed. There Comments: Of the U.S. carriers and expansion of the tarmac-delay rules to also appears to be confusion as to what carrier association commenters, ATA smaller airports. AAPR and the Department means by the term supports expanding the number of Flyersrights.org fully support increasing ‘‘adequate food.’’ The Department would airports where carriers must coordinate the number of covered airports to consider snack foods such as granola plans to include small hub and non-hub include small hub and non-hub airports. bars that carriers typically provide on airports. The Regional Airline NBTA also supports these provisions. flights to suffice as ‘‘adequate’’ food. Association (RAA) opposes extending The New York State Consumer Carriers are, of course, free to provide the rule to small-hub and non-hub Protection Board supports expanding more complete meals to passengers if airports because it believes there is no the rule to all airports, as do many they so wish. We note that the evidence that doing so is necessary or Regulation Room commenters, some of requirement to provide food and water beneficial and believes that the cost to whom state that airlines and airports within two hours would not apply if the expand tarmac delay contingency plans should be required to work together to pilot-in-command determines that to smaller airports outweighs the develop and implement tarmac delay safety or security precludes such benefits, as requiring regional and other contingency plans. service, so the commencement of a meal carriers serving small airports to DOT Response: The Department is service should not lead to further delays coordinate plans with all such airports adopting the requirement that covered or missed opportunities for departure as would require significant resources. carriers, both U.S. and foreign, include feared by at least one commenter. As for In general, non-U.S. carrier and small hub and non-hub airports in their the requirement to provide medical care carrier association commenters object to tarmac delay contingency plans and if necessary, the Department’s the proposal as unnecessary and note ensure that the plan has been expectation is that carriers would have that they have limited presence or coordinated with airport authorities at the capabilities to provide basic first aid service at these smaller airports. Air those airports. We continue to maintain assistance on the aircraft and would France and KLM specifically oppose that the same issues and discomfort to seek further medical assistance as this provision. On the other hand, passengers during an extended tarmac necessary for any onboard emergency, Alitalia supports the idea of delay are likely to occur regardless of including disembarking the passenger coordination, but believes the proposal airport size or layout. Similar to the for treatment if needed with the is extremely burdensome. Singapore expansion of the scope of the assistance of airport emergency Airlines supports coordinating requirement to adopt contingency plans personnel. contingency plans with airports to to include foreign carriers, this handle diverted flights, but states that requirement will protect a greater D. Coordination With Covered Airports the plans should focus on customer care number of passengers at more airports. The NPRM: In the initial rulemaking such as swiftly disembarking We are not convinced by commenters’ to enhance airline passenger passengers, returning baggage, concerns that requiring carriers to protections, we required U.S. carriers to accommodating passengers if necessary coordinate their plans with small hub have contingency plans for tarmac in hotels or on alternate flights, and and non-hub airports will have a delays to large-hub and medium-hub ensuring that passengers continue their significant financial impact on carriers. airports, as well as diversion airports journey. Monarch Air disagrees and U.S. carriers are already required to that the carrier serves or utilizes. In the states that coordination with airports is coordinate plans with large-hub and NPRM for the current proceeding, we not necessary, as it would let the airport medium-hub airports and should be proposed to extend this requirement to determine what is best for the customer. able to tailor existing plans to apply to small hub and non-hub airports and to Of the travel agent interests that these smaller airports. We recognize that require all covered carriers (U.S. and commented, ASTA supports expanding the requirement to coordinate foreign) to coordinate their plans with contingency plan coordination contingency plans with airports is a new each covered U.S. airport that they serve obligations to include small hub and requirement for foreign carriers, but or utilize for diversions. In making this non-hub airports. TUI Travel states that expect that it will not be overly proposal, the Department noted its coordinating contingency plans is not burdensome for foreign carriers as the belief that the same issues and necessary, as the airport can determine large-hub and medium-hub airports are discomfort to passengers during an what is in the best interest of the airline familiar with the coordination process extended tarmac delay are likely to customer and notes restrictions on gate after having worked with the U.S. occur regardless of airport size or availability that may be determined on carriers on tarmac delay contingency layout. We also noted our strong belief the day of arrival, so pre-coordination plans this past year. The need for such that it is essential that airlines involve will reduce operational flexibility. coordination was recently highlighted airports in developing their plans in Of the airport and airport industry by the events at JFK airport following order to enable them to effectively meet commenters, Dallas/Fort Worth Airport the December 26, 2010 blizzard. Also, the needs of passengers. We invited supports requiring carriers to coordinate during the past two years significant comment on whether it was workable to their contingency plans with all airports amount of work has been done through require covered carriers coordinate with that they serve and notes that important a project funded by the Federal Aviation small hub and non-hub airports to airport factors such as terminal capacity, Administration (FAA) to produce a best- which they regularly operate scheduled equipment, and government services are practice guidance document for passenger or public charter service. We taken into account during such developing coordinated contingency also asked if the rule should be coordination. ACI also supports the plans for tarmac delays at small hub and expanded to include other commercial need for airlines to coordinate with non-hub airports. U.S. airports (i.e., those with less than airports of all sizes and states that it is The benefit of airlines coordinating 10,000 annual enplanements). Finally, committed to supporting airline with airports on contingency plans we specifically solicited comments from development of contingency plans with becomes particularly clear when there airlines, airports and other industry accurate and relevant information about are flight diversions. In situations where entities on whether there are any special the airports the carriers serve. flights must be diverted from their

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intended destination airports, it is continue to do so but stresses that British Airways and other carriers assert imperative that airlines and the airports interagency coordination between CBP that CBP and the airport operator should that regularly serve as their diversion and TSA as well as coordination be responsible to ensure that passengers airports have already discussed things between the airports and CBP/TSA is can disembark the aircraft. Cathay such as locations within the airport needed in order to get diverted Pacific adds that the burden to where passengers are allowed to wait passengers who so desire off airplanes. coordinate plans should be on all the when TSA or CBP personnel are not USA3000 suggests that airports may not stakeholders, while Malaysia Airlines present and the availability of be properly staffed by CBP during does not support coordinating delay equipment to deplane/bus passengers to irregular operations and urges DOT to contingency plans with CBP and TSA, the terminal to minimize the hardship review this issue with CBP and local but thinks those agencies should design to travelers. It is essential that airlines airports. their own plans. Cathay Pacific notes involve airports in developing their The non-U.S. carrier and carrier that not all airports can handle aircraft plans to enable them to effectively meet association commenters object in carrying 300+ passengers and states that the needs of passengers. The rule on general to the proposal as unnecessary. airports not suitable for deplaning coordination with airports is also being IACA notes that tarmac delays of more international passengers should fall clarified to ensure that at airports, like than three hours are very rare and outside the scope of the proposed rules. JFK, where operations such as snow believes the NPRM imposes a Of the travel agents and other removal and gate use are managed by disproportionate burden on airlines to industry group commenters, ASTA entities other than the airport authority coordinate plans not only with airports, supports extending the rule to include (e.g., a carrier, a consortium of carriers, but with federal agencies. IATA coordination with CBP and TSA. NBTA or a contractor), carriers covered by this supports the need for the United States expresses concern that costs associated rule must also coordinate with these government to be more responsive to the with requiring coordination with TSA terminal operators. needs of airline passenger who arrive at and CBP may outweigh the benefits and airports where TSA and CBP personnel may be passed on to the business E. Coordination With CBP and TSA are not normally stationed or are not traveler. As such, NBTA thinks DOT The NPRM: As recommended by the present during off hours, but think it is should develop a clearer picture of cost- Tarmac Delay Task Force,1 we proposed the responsibility of those agencies to benefits before implementing this to require carriers to include TSA in work together to put systems in place. provision. TUI believes that it is not their coordination efforts for any large, The comments of the Association of necessary to coordinate plans with TSA medium, small, and non-hub U.S. European Airlines (AEA) and many or CBP, and is concerned that this airports, including U.S. diversion foreign airlines’ are similar to or support would add another layer of planning. airports which they regularly use. We IATA, while NACA adds that DOT Of the consumer and consumer group also proposed to require carriers to should work with CBP and other commenters, CTA supports rules being coordinate with CBP for any U.S. airport government agencies on a memorandum promulgated by CBP and TSA that will that the carrier regularly uses for its of understanding to address issues allow passengers on inbound international flights, including regarding extended tarmac delays. The international flights forced to land at a diversion airports. We proposed these National Airlines Council of Canada diversion airport to be processed, as measures as it had come to the (NACC) adds that carriers have limited does the AAPR, Flyersrights.org and the Department’s attention on more than influence over TSA and CBP, so Consumers Union. Dallas/Fort Worth one occasion that passengers on obligations should be on the U.S. Airport supports requiring carriers to international flights were held on government to ensure these agencies coordinate plans with CBP and TSA and diverted aircraft for extended periods of have their own contingency plans in states that plans should be in place to time because there were reportedly no place. The Arab Air Carrier Association deal with the process of handling means to process those passengers and (AACA) states that coordinating international passengers and allowing allow them access to terminal facilities. contingency plans with diversion them access to terminal facilities at At that time, the U.S. Department of airports as well as TSA and CBP will be small and medium size airports with no Homeland Security (TSA and CBP are very costly and suggests, along with CBP services. ACI applauds DOT for part of DHS) had advised this other commenters, that TSA and CBP proposing to expand coordination to Department that, subject to coordination should design their own contingency TSA and CBP. with CBP regional directors, passengers plans for any airport that receives DOT Response: After considering all on diverted international flights may be international flights. the comments, the Department is adopting the requirement that carriers permitted into closed/sterile terminal Some foreign carriers assert that this coordinate plans with CBP and TSA at areas without CBP screening. In the proposal is flawed because TSA and large, medium, small, and non-hub NPRM, we invited interested persons to CBP can provide only limited assistance airports that they regularly serve, comment on this proposal and asked at some airports due to limited after- including at diversion airports they plan what costs and benefits would result hours federal inspection capabilities or to utilize. Because tarmac delays are a from imposing this requirement. limited federal personnel available at Comments: Of the U.S. carriers and the smaller airports. Carriers also ask particular problem in situations where carrier associations that commented, how they can ensure that passengers flights must be diverted from their intended destination airports, this rule ATA states that carriers already will remain in one area of the airport or requires carriers to coordinate their coordinate with TSA and CBP and will that a sterile area will be available for containing such passengers. British plans with airports that serve as 1 In January 2008, the Department established a Airways supports the proposal that diversion airports for such operations. Tarmac Delay Task Force to coordinate and develop passengers on diverted international As recommended by the Tarmac Delay contingency plans to deal with lengthy delays. The flights be permitted into closed terminal Task Force, it is also important for Task Force comprising of individuals who areas without CBP screening and notes, carriers to include in their coordination represented airlines, airports and consumer groups issued a report that set forth guidelines for airlines, as do some other foreign carriers, that efforts appropriate government airports, and other stakeholders to use when these carriers generally do not have a authorities such as Customs and Border dealing with long ground delays. presence at diversion airports. As such, Protection and the Transportation

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Security Administration, when encouraged carriers to announce to Consumers and consumer group appropriate. passengers on flights that remain at the commenters support a requirement to In adopting this requirement, we note gate with the doors open for lengthy provide updates every 30 minutes. More that more than one incident of concern periods that the passengers are allowed specifically, AAPR and Flyersrights.org to the Department has occurred at a off the aircraft if that is the case. fully support requiring carriers to diversion airport where passengers However, we noted that such an communicate with passengers during could not deplane the aircraft due at announcement is not explicitly required delays. Of the airport industry least in part to security concerns or in the existing rule. Consequently, we commenters, the AAAE agrees that issues with processing international sought comment on the benefit to essential communication with passengers. It is important to ensure that consumers of mandating such passengers is necessary. The New York there is a contingency plan in place in announcements and asked commenters, State Consumer Protection Board adds order to address the objective of including carriers and carrier that communication with passengers deplaning passengers in those associations, to address any costs and/ during a delay is important because situations. The Department is actively or operational concerns related to failure to update the flight’s status adds working with TSA and CBP to develop implementing a rule requiring such to the frustration caused by the policies and procedures in order to announcements. situation. As such, it strongly supports assist carriers with coordinating their Comments: Non-U.S. carrier and the proposal that air carriers update plans and complying with this carrier association comments generally passengers every 30 minutes during a regulation. We would consider an object to the proposal to update delay. airline to have complied with the passengers every 30 minutes during a We received various differing requirement to coordinate its plan with tarmac delay regarding the status of comments on whether carriers should CBP and TSA if the carrier submits its their flight and the reasons for the be required to announce that passengers plan to CBP’s Regional Director and tarmac delay, characterizing it as may deplane from an aircraft that is at TSA’s Federal Security Director for that unnecessary. IACA states that notifying the gate or other disembarkation area airport and considers any issues raised passengers every 30 minutes as to with the door open. Spirit Airlines in response to those agencies. reason for a tarmac delay is unnecessary opposes DOT requiring carriers to permit passenger to leave an aircraft that F. Passenger Notification overregulation. Some foreign carriers, such as Air France and KLM note that remains at the gate for a delay of less The NPRM: In the NPRM we proposed than three hours but notes that its requiring announcements every 30 to require that U.S. and foreign air practice is to permit deplaning after two minutes will have unintended carriers update passengers every 30 hours. It states that deplaning could consequences and state that keeping minutes during a tarmac delay regarding create operational problems and raise passengers informed is already the status of their flight and the reasons costs and notes that the window of time important to carriers and a regulation is for the tarmac delay. We also proposed to enplane may be small, passengers not needed. Other carriers, such as that carriers announce that passengers may be hard to locate and re-boarding Qantas and JetStar, agree that notifying have the opportunity to deplane the will be time consuming and delay passengers every 30 minutes is aircraft when the flight is delayed and departure. Spirit believes that the airline reasonable, but state that too much the doors are open. In proposing these can exercise the best judgment regarding requirements, the Department gave detail may lead to false expectations on whether passenger should be allowed to consideration to passengers’ frustration the part of the passengers. AACA deplane. with lack of communication by carrier expresses concern about the broad IATA also does not support the personnel about the reasons a flight is language regarding the format of proposal to announce that passengers experiencing a long tarmac delay. We communication and when a carrier may deplane from an aircraft with the noted that it did not seem unreasonable should be aware of information to door open and states that the option to or unduly burdensome to require provide to the passenger, and the ability deplane raises a number of issues (e.g. carriers to address this issue and of airlines to prove they have relayed removing baggage if a passenger doesn’t verbally inform passengers as to the information to the passenger. NACC travel, DHS personal data accountability flight’s operational status on a regular does not support updates every 30 issues, passenger manifest issues, length basis during a lengthy tarmac delay. We minutes as this could result in relaying of time to deplane and enplane large did not anticipate that a carrier’s flight incomplete or inaccurate information to aircraft, short windows for departure). crews will know every nuance of the the passengers. Comments of AEA and foreign airlines’ reason for the delay, but we noted our U.S. carriers and carrier association comments are similar to IATA’s. Many expectation that they inform passengers commenters generally agree that it foreign carriers object to the proposal to of the reasons of which they are aware would be beneficial for passengers to be notify passengers that they can deplane and make reasonable attempts to acquire updated frequently on flight status due to various operational concerns information about the reasons for that changes when there is a tarmac delay similar to those posited by IATA and delay. but expressed concern that carriers are other foreign carrier associations. ALTA We also invited comment on whether not always updated by FAA on a timely raises additional concerns with safety carriers should be required to announce basis. Of the travel agents and other issues, and questions who will have that passengers may deplane from an industry group commenters, ASTA control over passengers that temporarily aircraft that is at the gate or other supports the provision for carriers to deplane and, miss flights. Air France disembarkation area with a door open. make tarmac delay announcements and KLM also state that a carrier should The Department’s Office of Aviation every 30 minutes. However, TUI Travel be given the option to make the Enforcement and Proceedings had does not believe DOT should be overly announcement that passengers can previously explained that a tarmac prescriptive or detail the circumstances deplane depending on the specific delay begins when passengers no longer or time intervals upon which updates circumstances. Air Tahiti asks for have an option to get off an aircraft, on delays should be given, but agrees clarification on whether there is a which usually occurs when the doors of that information needs to be given and minimum duration an air carrier must the aircraft are closed, and has updated at regular intervals. wait for passenger to re-enplane the

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aircraft and whether deplaned they are deplaning at their own risk and flying. Among the consumer and passengers’ baggage must be deplaned. that the flight could depart at any time consumer group comments, CTA states CTA states carriers should be required without them if this is the case. that given the expansion of code-shares to communicate with passengers on a and with the antitrust immunity granted G. Code-Share Flights regular basis and agrees that carriers to airline alliances, there should be no should inform passengers during delays The NPRM: We sought comment on difference between flights operated by while the aircraft is at a loading bridge whether, in the case of a code-share U.S. or foreign carriers. AAPR supports with its doors open that they may flight, we should expand coverage of the expanding coverage of the requirement deplane at any time, to stretch their legs, requirement to adopt tarmac delay to adopt tarmac delay contingency plans to be rebooked on another flight or to contingency plans so that the obligation to the carrier under whose code the cancel their flight and get a refund. to adopt such a plan and adhere to its service is marketed if different than the NBTA also supports this provision. terms is not only the responsibility of operating carrier. DOT Response: After considering the the operating carrier but also the carrier DOT Response: After considering all comments received, the Department has under whose code the service is the comments, the Department has decided to require that carriers notify marketed, if different. decided to require that the tarmac delay passengers every 30 minutes about the Comments: Of the U.S. carrier and contingency plan of the carrier under status of a tarmac delay, including the carrier association commenters, ATA whose code the service is marketed reasons for the delay if known. In states that the operating carrier has sole governs if different from the plan of the implementing this requirement, we note operating authority and is in sole operating carrier, unless the marketing that we expect the carrier to make control of how a passenger is treated, so carrier specifies in its contract of reasonable attempts to acquire it is unreasonable to also hold the carriage that the operating carrier’s plan information about the status of the delay marketing carrier accountable, governs. In adopting this rule, we have and to provide this information to especially if the contingency plans considered the comments stating that consumers. A carrier would not be held differ or are in conflict. The U.S. carriers the operating carrier should be responsible for failing to provide a that commented on this issue concur responsible for following the terms of a status that was not known to it so long with ATA. RAA disagrees and states plan, as it is in the best position to as the carrier made reasonable efforts to that, if DOT insists that operating address passenger concerns in the event find out the status. carriers adopt contingency plans, it of a tarmac delay. However, on balance, We have also decided to require U.S. should place primary responsibility for we have concluded that the expectation and foreign air carriers to notify adoption and compliance with the plan of the types of services a passenger will passengers that they can deplane from on the marketing carrier. RAA asserts be provided is based on the information an aircraft that is at the gate or another that carriers that hold out, sell and given to him or her by the marketing disembarkation area with the door open, ticket passengers should have sole carrier, as this is the carrier that held if that is the case. The purpose of this responsibility to the Department and out, sold, and ticketed passengers for requirement is to address problems that that liability of the operating carrier the flight. It is reasonable for a have arisen since the first tarmac delay should be determined by its contract consumer to expect the marketing rule has been in effect where U.S. with the marketing carrier. carrier’s tarmac delay contingency plan carriers have asserted that the three Of the non-U.S. carrier and carrier to apply unless the marketing carrier hour clock should not yet be running association commenters, IATA believes specifies in its contract of carriage that but where passengers did not know that that only the operating carrier should be the operating carrier’s tarmac delay plan the door to the aircraft was open and responsible for the terms of the governs. Irrespective of whether the that they had the option to get off of the contingency plan. AEA and ALTA, marketing carrier’s or operating carrier’s aircraft, particularly on a departure among others, concur with IATA. Of the contingency plan governs in a particular delay at the gate or on large aircraft. We foreign carriers that commented, most situation, we intend to hold both the are not requiring carriers to provide believe that only operating carriers marketing carrier and the operating passengers the opportunity to deplane should be responsible in a code-share carrier (i.e., the carrier that sold the in less than three hours but simply to situation based on their assertion that passenger a ticket under its name as inform them that the opportunity to the operating carrier has responsibility well as the carrier that operates the deplane exists, if it does. Of course, in for how the passengers are treated. aircraft in which that passenger travels) situations where an aircraft is at the gate Some commenters also note that the legally responsible. We encourage code- with the door open and passengers are marketing carrier might not operate its share partners to the extent possible to not allowed off the aircraft, the tarmac own aircraft to all of the airports served align their tarmac delay contingency delay begins at the point when by its code-share partners and thus plans. In situations where there are passengers are no longer permitted to would not have a relationship with multiple marketing carriers on a single deplane and not when the doors of the those airport authorities. Others, such as flight and the marketing carriers have aircraft are shut. Air Tahiti and Swiss International, note not specified in their contracts of As for commenters’ concerns with that the proposed regulations fail to carriage that the operating carrier’s plan reconciling passenger manifests and consider the intricacies of the code- governs, it becomes even more critical dealing with the checked baggage of share relationship and suggest that there that the carriers’ plans are aligned. If passengers who choose to deplane, we may be issues with collusion and not, several different contingency plans are not requiring airlines to re-board a antitrust concerns in some jurisdictions. may apply to passengers on the same passenger who chooses to deplane and We received few comments from flight. therefore misses a flight, or to remove travel agents and other travel industry the checked baggage of a passenger that commenters on this issue. ASTA H. Retention of Records has deplaned. DHS/TSA also doesn’t believes that code-share partners should The NPRM: As is the case for U.S. require that passenger’s checked be responsible for harmonizing their carriers under the existing rule, the baggage be removed if the passenger is consumer protection processes so NPRM proposed to require foreign no longer on that flight. We encourage consumers don’t worry about which carriers to retain for two years the airlines to announce to passengers that carrier does the marketing, ticketing or following information on any tarmac

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delay that lasts at least three hours: the 3-hour tarmac times. The report would A few consumers and consumer length of the delay, the specific cause of be due within 15 days after the end of organization commenters believe that the delay, and the steps taken to each month being reported. the Department should go further in this minimize hardships for passengers Reporting carriers (carriers that respect. FlyersRights.org suggests that, (including providing food and water, account for at least one percent of in addition to filing reports under this maintaining lavatories, and providing domestic scheduled passenger revenue Part and complying with the record medical assistance); whether the flight which in calendar year 2009 consisted retention requirement in Part 259, the ultimately took off (in the case of a of the 16 largest U.S. carriers by Department should require carriers to departure delay or diversion) or scheduled passenger revenue plus two submit a comprehensive written report returned to the gate; and an explanation carriers that voluntarily file under Part within 14 days of the occurrence of any for any tarmac delay that exceeded three 234) already file with the Department lengthy tarmac delay. One individual hours, including why the aircraft did on-time flight performance data which commenter asserts that data should be not return to the gate by the three-hour includes all the data fields proposed to reported for tarmac delays of one hour mark. be reported here and more for their or more to reflect a better picture of the Comments: We received few domestic scheduled flights pursuant to tarmac delay problem. comments on this issue. Of the carriers 14 CFR part 234. In recognition of this Among U.S. carriers and carrier and carrier associations that did fact, the NPRM proposed that these U.S. associations that commented on this comment, they expressed concerns that carriers file tarmac delay data only for proposal, ATA states that it generally this provision would be burdensome other types of transportation covered by supports expanding the reporting carrier and time consuming. the proposed rule, i.e., their charter and pool. RAA, on the other hand, argues DOT Response: The requirement to international flights. The NPRM that all carriers that are not required to retain tarmac delay records already proposed to require other U.S. carriers report tarmac delay data under Part 234 applies to U.S. carriers. We are and foreign carriers to provide data on should be exempted from this reporting extending it here to foreign carriers tarmac delays that occurred at a U.S. requirement. RAA reasons that the new operating passenger service to and from airport and lasted for three hours or reporting requirements are not the U.S. on at least one aircraft with a more for any of their flights—scheduled necessary because most carriers, passenger capacity of 30 or more seats. and charter flights as well as domestic including carriers not covered under The tarmac delay information that the and international flights. We sought Part 234, are already required to retain Department is requiring foreign airlines comments on whether we should limit tarmac delay data for two years. Thus, to retain is not available to it through the tarmac delay reporting requirement according to RAA, the Department may other means. This information will help to U.S. and foreign air carriers that request such information for policy- the Department obtain a more complete operate large aircraft, i.e., aircraft making purpose whenever necessary. picture about lengthy tarmac delays and originally designed to have a maximum Additionally, RAA contends that the ensure carrier compliance with the passenger capacity of 60 seats or more. Department failed to provide a tarmac delay requirements. The Comments: Individual consumers or quantifiable cost/benefit analysis in the Department also believes that the consumer groups who submitted NPRM to justify such a requirement. requirement to retain tarmac delay data comments on this proposal NACA expresses its uncertainty would not be burdensome for carriers, unanimously support this proposal. regarding the purpose of requiring since we believe most carriers would as Consumers Union states that it supports smaller carriers (which it defines as a matter of good business practice, expanding the pool of reporting carriers those that operate fewer than 25 aircraft) obtain this information for their own to all U.S. and foreign carriers that to report tarmac delay data. As a purposes and, in any event, there are operate any aircraft with 30 or more compromise, NACA suggests that relatively few tarmac delays of more seats. It maintains that such a carriers should be required to file than three hours. In addition, the requirement is particularly important tarmac delay reports under any rule Department is not prescribing the because it will reach many airline only if during any given month the manner in which this information must passengers who are currently not occurrences of tarmac delays have be kept and there is no requirement that protected by these policies. One exceeded a certain threshold, e.g., more a carrier submit the information to the individual commenter states that equal than 10 incidents. Department unless specifically treatment for all carriers is necessary to Comments provided by foreign requested to do so, all of which should ensure competitive equality. Consumers carriers and carrier associations reduce any costs associated with this Union also supports requiring Part 234 generally oppose this proposal or requirement. reporting carriers to provide tarmac request that the reporting obligation be delay data for public charter and limited. Several commenters contend 2. Tarmac Delay Data international flights. that the Department has not provided The NPRM: The proposed rule would The Association for Airline Passenger justification as to how the proposed data require any U.S. or foreign carrier that Rights points out that the Department is collection from foreign carriers would operates passenger service (charter or attentive to the potential burden to address the causes of tarmac delays and scheduled) to, from or within the U.S. small carriers and has narrowed the data benefit consumers. Some commenters using any aircraft with a passenger fields it proposed to be reported for take the position that requiring foreign capacity of 30 or more seats to submit tarmac delays from the comprehensive carriers to report tarmac delay data is monthly to the Department a set of data on-time reporting scheme that exists. not necessary because international regarding tarmac delays of three hours One commenter adds that most carriers flights operate less frequently than or more at a U.S. airport to the extent already collect some of the data required domestic flights and tarmac delay that the carrier doesn’t already provide under this proposal so it should not be incidents for international flights are such data to the Department. If a overly burdensome for carriers to rare. Thus, according to these covered carrier has no flight with 3-hour comply with the requirements. Several commenters, the cost for carriers to set tarmac delays, the proposed rule would commenters from the Regulation Room up a reporting infrastructure outweighs require the carrier to submit a negative state that technology development the benefit. Furthermore, they believe it report, i.e., a report stating there are no makes compliance relatively easy. is inappropriate to require smaller

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carriers to submit and retain tarmac problem for consumers on international of flights. As such, the vast majority of delay data due to their lesser flights or charter flights. We reiterate carriers filing reports if the rule is administrative resources and the small that the causes of lengthy tarmac delays adopted as proposed would be filing a segment of the market these carriers are comprehensive and there is not a negative report for most months. serve. A number of commenters state universal solution that would cure all Although negative reports are an that tarmac delays usually occur as the problems at all airports. We continue to effective enforcement tool for ensuring result of airport infrastructure problems. believe that a more complete picture of accurate reporting of tarmac delay, we Therefore, these commenters believe lengthy tarmac delays is the first step to have decided not to require negative that the Department should require obtaining a baseline that the Department reports to be filed, in order to further airports to report this data. Likewise, can use to analyze the issue by carrier, reduce the carriers’ burden in some carriers argue that the data by region/airport, by month, or by the complying with this rule. collected from this proposal is readily type of flight, as appropriate. With respect to some foreign carriers’ available from FAA’s Air Traffic Control We note that several recent tarmac suggestion that for code-share System Command Center. A few delays that attracted significant public arrangements we should require the commenters note that the burden on attention were international arrivals. marketing carrier rather than the foreign carriers is increased if the Tarmac delays involving international operating carrier to file the report, we Department maintains the proposal that flights, although rare, tend to be are of the opinion that it is up to the negative reports must be filed when no particularly lengthy and complicated. In code-share partners to designate who reportable tarmac delay has occurred that regard, we reiterate that collecting has the responsibility to file the report. during a month. tarmac delay information for Based on each carrier’s resources and Qantas and JetStar Airways state that international flights is important. The ability, it may be more convenient for a they would not oppose a rule if it data that we are seeking to obtain here foreign carrier to use its U.S. code-share imposed the reporting responsibility on are not available to us through other partner to file the reports, but the operating carriers instead of the means. Commenters are mistaken when Department will not dictate which marketing code-share partners and they assert that the FAA has this carrier has the reporting responsibility limited the reporting fields to the information readily available. and will hold both marketing and identification of aircraft, airport, Furthermore, the publication of the operating carriers legally responsible if relevant times, and a brief explanation tarmac delay data would increase public data for a reportable tarmac delay are for the tarmac delay. They also request awareness of the issue, providing not timely or accurately filed. that easy methods of report submission incentives for airline management to Regarding some foreign carriers’ should be permitted, such as email focus on addressing tarmac delay comments on roundtrip charter services submission. problems. Virgin Atlantic raises the concern that With respect to whether the costs for between foreign points and U.S. publishing reported data may be foreign carriers to set up the reporting destinations, we agree that as long as misleading to consumers who tend to infrastructure justifies the benefits these flights carry only passengers that judge a carrier’s performance based on obtained from such reports in light of originate at a foreign point and do not raw tarmac delay records, and overlook the relatively less frequent occurrence of pick up any U.S.- originating the causes for such delay, which could tarmac delay incidents on international passengers, tarmac delays on those be factors that are not under carrier’s flights, we note that none of the flights will have minimal impact on control. Lufthansa also requests that any commenters opposing extension of the U.S. consumers. Moreover, the publication of the tarmac delay data by reporting requirement to foreign carriers Department is not applying its the Department should also include the has provided any cost/benefit analysis requirement for carriers to adopt cause of the delay. National Airlines in support of their position. We contingency plans for lengthy tarmac Council of Canada further states that understand that most data contained in delays to such operations. Therefore, we such misjudgments will cause undue the reporting fields under this proposal have decided that this reporting commercial damage to Canadian carriers are already collected by the carriers requirement should not apply to such that face the most challenging weather internally. BTS already has a system in flights. conditions, which could contribute to place to accept reports electronically. We have also considered some more tarmac delays. Reporting to the BTS would incur a one- carriers’ concern that publishing tarmac Monarch Airlines and TUI Travel time IT infrastructure setup cost and delay information may lead the public contend that foreign charter carriers that minimal maintenance expenditure. We to compare carriers’ performance quality operate roundtrip flights to limited U.S. do not expect these costs to be based on the raw data, while carriers destinations should be exempted from significant. may not be at fault for all tarmac delay the reporting requirements. In addition We have also considered some incidents. We are not convinced that to consumers and industry commenters, commenters’ suggestion that we should this will create overall false perceptions. NBTA and ACI–NA both provided not require a negative report to be filed The public is generally well informed comments in support of the when no reportable tarmac delay about the causes contributing to a Department’s proposal. occurred during a given month. Based lengthy tarmac delay, not only through DOT Response: After thoroughly on data submitted by the reporting Departmental reports and press releases, considering all the comments received, carriers, during the past six months the but also through supplemental resources the Department continues to believe that total number of tarmac delay incidents such as the media and the Internet. This the proposed data collection that lasted for two hours or more at U.S. information will normally enable the requirement is crucial to obtaining a airports was less than 0.1% of the total public to look beyond the net number of more complete picture of the tarmac domestic scheduled passenger flights tarmac delays by each carrier. Moreover, delays at U.S. airports. Without such operated by those carriers for each carriers are always free to provide the data, we do not have adequate statistical month. We agree that these data indicate public information about the cause of foundations to support a determination that international flights that experience their tarmac delays, so long as that regarding whether lengthy tarmac reportable tarmac delays will only information is correct and not delays are or will be a significant represent a fraction of the total number misleading.

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To address the suggestion of some carriers under Part 234. If a volunteer air contends that the application of consumer commenters that we should carrier ceases to file any or all reports customer service plans to the conduct of require carriers to report tarmac delays under 234, it must file tarmac delay data foreign carriers on foreign soil or in of less than three hours, we note that the for reportable flights under Part 244. As foreign airspace poses several issues three-hour standard is consistent with we have explained in the NPRM, the under U.S. and international law related the current tarmac delay contingency purpose of Part 244 is to fill in the to extraterritorial application of U.S. plan regulations and have reached the tarmac delay data gap that is not regulations. TAP Portugal makes similar conclusion that this threshold covered by Part 234. In that regard, no comments regarding extraterritorial represents the proper balance between carrier is required to file both Part 234 concerns, as do, among others, the reporting burden placed on carriers and Part 244 reports for the same flight. Lufthansa and Austrian Airlines. Other and the benefits to the public. In carriers, such as British Airways, note 3. Customer Service Plans addition, we do not believe it is that they are already subject to customer necessary to mandate that a detailed A. Entities Covered service provisions in their own countries (e.g. EU provisions) and, explanation for each tarmac delay be The NPRM: The NPRM proposed to therefore, the Department’s proposal is filed with the tarmac delay report. Such increase the protections afforded unnecessary and redundant, as well as detailed explanation is of little use to consumers in the first Enhancing potentially inconsistent with those BTS, which is a data collecting and Airline Passenger Protections rule by countries’ requirements. Singapore analysis agency. If the Department requiring foreign air carriers to adopt, Airlines adds that competition is more believes that a particular tarmac delay follow, and audit customer service effective than government mandates in warrants further investigation, its plans, as covered U.S. carriers have improving customer service, and the Aviation Enforcement Office will been required to do since April 2010. request information from the carrier, Department does not need to be We proposed to cover foreign air involved in customer service matters. which the carrier is required to retain carriers operating scheduled passenger for tarmac delays of more than 3 hours. All Nippon states that the customer service to and from the U.S. that use any service provisions should apply only to Finally, we would like to provide aircraft designed to have a passenger sales made within the U.S. Qantas states further clarification regarding the capacity of 30 or more. We noted that that it is not necessary, practical or reporting duties for carriers that are the rule would apply to all flights to and efficient to require foreign carriers to currently filing Part 234 Airline Service from the U.S. of those carriers, provide customers with additional or Quality Performance Reports. According including flights involving aircraft with different customer service plans when to BTS Technical Directive #20, issued fewer than 30 seats, if a carrier operates carriers already have such provisions in on November 5, 2010, and effective on any aircraft with 30 or more passenger place (e.g., Qantas has a Customer January 1, 2011, there are 15 U.S. seats to and from the U.S. We asked Charter on its website) and states that carriers whose domestic scheduled interested persons to comment on any requirement should be limited to passenger revenues meet the threshold whether the proposed requirement for carriers that do not already have a for mandatory filing of Part 234 reports. foreign air carriers to adopt, follow and customer service plan in place. JetStar These carriers are identified as Part 234 audit customer service plans should be essentially concurs with Qantas. JAL ‘‘reporting air carriers.’’ The carriers on narrowed in any fashion. (e.g., should makes similar comments and notes that this list may change from time to time never apply to aircraft with fewer than some of its standards are more stringent due to carriers’ revenue fluctuation and 30 seats). than the service requirements proposed corporate restructuring, and BTS Comments: Of the foreign-carrier and that foreign airlines compete on updates the list annually. In addition to industry commenters, the majority service and should determine their own the 15 reporting air carriers, Express Jet expressed their strong belief that the service standards. JAL also expresses will submit on-time data under Part 234 customer service plans requirement concern about the potential costs in 2011 as a ‘‘volunteer air carrier.’’ should not be extended to foreign associated with this provision, Although Part 234 only requires data for carriers. IACA states that DOT’s characterizes it as an intrusive service domestic scheduled passenger flights to regulatory proposals ignore the fact that regulation and states that it is not and from a large hub U.S. airport, all airlines have designed customer service justified. VivaAerobus opposes the reporting carriers, including the in a way to attract their customer and Department requiring small carriers to volunteer air carriers, are currently asserts that these provisions intervene have a customer service plan. The filing data for all domestic scheduled in the airline’s business and service Washington Aviation Assembly, flights to and from all U.S. airports, practices. IATA strongly opposes any representing 35 Embassies in the U.S., including medium, small, and non-hub customer service requirements being notes general issues with airports. As long as they continue to do imposed on foreign carriers unless those extraterritoriality, operational so, they are only required to file tarmac requirements are harmonized with the consequences for foreign airlines, and delay data for international and charter regulations of other jurisdictions. IACA the potential economic burden for flights to a U.S. airport under the new and IATA also assert that the proposals foreign airlines if they are required to reporting regulation, 14 CFR part 244. are extraterritorial in that they would comply with the customer service However, if any Part 234 reporting apply to all flights to and from the U.S. provisions. carrier decides to report only the and could be interpreted in such a way As for U.S. airlines and associations, minimum required data under Part 234, that these obligations would also cover ATA expresses concern that DOT i.e., on-time performance data for sales generated outside the U.S. AACO, requiring foreign carriers to adopt a domestic scheduled flights to and from AEA and ALTA concur with IATA. customer service plan could drive large hub U.S. airports, it must report Of the foreign air carrier commenters, foreign governments to retaliate against any tarmac delay of three hours or more LAN Airlines (LAN Ecuador, LAN Peru, U.S. carriers operating outside the U.S., for domestic scheduled flights to and LAN Argentina), Emirates, and SAS, which could create conflicting from a medium, small, or non-hub U.S. among others, oppose DOT requiring standards and unnecessarily drive airport under Part 244. The same them to adopt customer service additional costs. Among the travel rationale applies to any volunteer air provisions. Swiss International agency interests that commented, ASTA

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agrees that customer service plan rules inbound to the United States and commitments related to services to be and standards should apply equally to determined not to apply U.S. disability provided generally or services to be foreign air carriers, with no aircraft-size rules to a foreign carrier simply because provided at the ticket counter and exceptions. ITSA supports in general a foreign carrier’s flight between two boarding gate area to specify that such the Department’s efforts to provide foreign points carried passengers under action is required only at U.S. airports. passengers with the means to make a code-sharing arrangement with a U.S. Finally, we want to clarify that for better informed decisions and more carrier. The manner in which we are purposes of this section, except as informed choices in travel. applying these existing requirements to otherwise provided in individual Commenters on ‘‘Regulation Room,’’ foreign air carriers through the customer customer service provisions in this who primarily identified themselves as service commitments is not new and is section, a ‘‘flight’’ that a foreign carrier air travelers, generally support DOT’s not an extraterritorial extension of U.S. operates to and from the U.S. means a proposal. However, some of those that jurisdiction. continuous journey in the same aircraft commented oppose the regulation and We note also that several of the other or with one flight number that begins or fear the costs will be passed on to customer service commitments are ends at a U.S. airport. For example, if consumers. The consumer groups that merely reinforcing new requirements a carrier were to operate flight 100, a commented on this issue generally imposed elsewhere in this final rule, direct flight from San Francisco to supported the provision and note that i.e., 14 CFR 259.8 which addresses Singapore with a stop in Hong Kong, the passengers should have the ability to notification of delays and cancellations, customer service plan applies to both know that certain customer service 14 CFR 259.4 which addresses lengthy segments of this flight with respect to standards will be defined and met tarmac delays, and 14 CFR 259.7 which U.S.-originating passengers. It would regardless of the carrier that a passenger addresses responding to consumer not apply to any Hong Kong originating chooses to travel on. CTA notes that complaints. Concerns with passengers who board the aircraft there foreign carriers operating as members of extraterritoriality are specifically and go to Singapore. On the reverse any international airline alliance must addressed in those sections of this routing, the plan would apply to be included in these rules. AAPR, preamble that deal with those issues. In passengers who board in Singapore or Consumers Union and Flyersrights.org this final rule, for example, we explain Hong Kong and travel to the U.S.; it generally support the proposal to in the tarmac delay section that the would not apply to passengers boarding require foreign air carriers to adopt, requirement to adopt and follow a in Singapore whose destination is Hong follow, and audit customer service tarmac delay contingency plan applies Kong. Temporarily deplaning at the plans. NBTA supports extending only to tarmac delay events that occur intermediate stop on a direct flight customer service provisions to foreign at a covered U.S. airport. Likewise, we (Hong Kong in the above example) does carriers using aircraft with 30 or more clarify in the section on known delays, not break the journey for purposes of the passenger seats. cancellations and diversions that the applicability of the customer service DOT Response: After fully requirement to notify consumers of plan requirements for passengers who considering the comments, we have flight irregularities on a carrier’s website re-board and continue on that same decided to require foreign carriers that and via the carrier’s telephone flight operation. If an international operate scheduled passenger service to reservation system applies to a foreign passenger whose journey originates or and from the U.S. using any aircraft carrier only if the carrier markets to U.S. terminates in the U.S. makes a with 30 or more seats to adopt, follow consumers. We also make clear that the connection to a flight with a different and audit customer service plans. As requirement to make this information flight number, the carrier’s customer noted previously, a substantial number available in the boarding gate areas service plan applies only to the direct of passengers travel to and from the U.S. applies only to boarding gate areas at a flight to or from the U.S. In the case of on flights operated by foreign air U.S. airport. We believe that these types change of gauge, all flight segments with carriers and the Department continues of clarifications address the foreign the same flight number that begin or end to believe that it is important to protect carriers’ main objections, which are the in the U.S. are covered by the Customer these passengers, as well as to be application of the customer service plan Service Plan even if passengers must consistent with the application of our to sales made outside the U.S. and to the change aircraft due to a change of gauge. consumer protection rules to both U.S. conduct of foreign carriers on foreign As for the comments concerning the and foreign carriers. soil. cost involved in adopting customer Foreign carriers’ and others entities’ We have made similar changes to service plans, we note that a number of concerns with extraterritoriality have other customer service commitments carriers state that they already have persuaded us, however, that some that involve foreign carriers’ websites customer service plans or similar plans clarifications are needed. First, we want and reservation centers to ensure that in place and that these plans contain to point out that out of the twelve we are not applying U.S. rules to a provisions similar or more stringent customer service commitments in this foreign carrier when that carrier does than those the Department is requiring final rule, the substance of two of them not market its services to the U.S. For them to adopt, or that their governments already applies to foreign air carriers example, the customer service have similar requirements. To the extent under existing DOT rules, i.e., 14 CFR commitment to disclose, among other provisions in existing plans are more part 250 concerning passengers who are things, cancellation policies and stringent than the minimum standards ‘‘bumped’’ from flights that are oversold frequent flyer rules on the selling set in this rule, carriers are encouraged and 14 CFR part 382 which addresses carrier’s website and upon request from to continue to apply these more air travel of passengers with disabilities. the selling carrier’s telephone stringent provisions. To the extent Prior to issuing those final rules, the reservations staff or the commitment to provisions in existing plans vary from Department addressed the issue of disclose the availability of the lowest our requirements, even if they are extraterritoriality and determined how fare on a carrier’s website or through its similar to them, it does not seem overly best to apply each of these requirements reservation center will apply to a foreign burdensome for a carrier to amend those to foreign air carriers. For instance, the carrier only if it markets its services to plans with respect to flights to and from Department determined not to apply its U.S. consumers. We are also making the U.S. to comply with this rule. Also, oversales rule to international flights changes to the customer service while we understand that some foreign

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countries have rules requiring customer held at the quoted fare without those with non-refundable tickets, for service standards in air carriage, we are payment, or cancelled without penalty, flights that are canceled or significantly not aware, nor are we convinced based for at least twenty-four hours after the delayed if the passenger chooses not to on the comments received, that any of reservation is made; (5) where ticket travel as a result of the travel disruption. those rules or standards conflict with refunds are due, providing prompt In addition, we requested comment on the requirements of this provision in a refunds for credit card purchases as whether it is necessary to include as a manner that would prevent a carrier required by 14 CFR 374.3 and 12 CFR standard the requirement that when a from complying with both requirements. part 226, and for cash and check flight is cancelled carriers must refund not only the ticket price but also any B. Content of Customer Service Plan purchases within 20 days after receiving a complete refund request; (6) properly fees for optional services that were The NPRM: In the NPRM, we noted accommodating passengers with charged to a passenger for that flight that under the final rule published on disabilities as required by 14 CFR part (e.g., baggage fees, ‘‘service charges’’ for December 30, 2009, U.S. carriers are 382 and other special-needs passengers use of frequent flyer miles when the required to adopt customer service as set forth in the carrier’s policies and flight is canceled by the carrier). With plans for their scheduled flights that procedures, including during lengthy respect to notifying passengers on board address, at a minimum, the following tarmac delays; (7) meeting customers’ aircraft of delays, we sought comment service areas: (1) Offering the lowest fare essential needs during lengthy tarmac on how often updates should be available; (2) notifying consumers of delays as required by 14 CFR 259.4 and provided and whether we should known delays, cancellations, and as provided for in each covered carrier’s require that passengers be advised when diversions; (3) delivering baggage on contingency plan; (8) handling they may deplane from aircraft during time; (4) allowing reservations to be ‘‘bumped’’ passengers with fairness and lengthy tarmac delays. held or cancelled without penalty for a consistency in the case of oversales as Finally, we requested comment as to defined amount of time; (5) providing required by 14 CFR part 250 and as whether it is workable to set minimum prompt ticket refunds; (6) properly described in each carrier’s policies and standards for any of the subjects accommodating disabled and special- procedures for determining boarding contained in the customer service plans needs passengers, including during priority; (9) disclosing cancellation and invited those that oppose the notion tarmac delays; (7) meeting customers’ policies, frequent flyer rules, aircraft of the Department setting minimum essential needs during lengthy on-board configuration, and lavatory availability standards for customer service plans as ‘‘ ’’ delays; (8) handling bumped on the selling carrier’s website, and unduly burdensome to provide evidence passengers in the case of oversales with upon request, from the selling carrier’s of the costs that they anticipate. We also fairness and consistency; (9) disclosing telephone reservations staff; (10) sought comment on whether the travel itinerary, cancellation policies, notifying consumers in a timely manner Department should require airlines to frequent flyer rules, and aircraft of changes in their travel itineraries; (11) address any other subject in their configuration; (10) ensuring good ensuring good customer service from customer service plans. We specifically customer service from code-share code-share partners operating a flight, asked if mandatory disclosure to partners; (11) ensuring responsiveness including making reasonable efforts to passengers and other interested parties to customer complaints; and (12) ensure that its code-share partner(s) of past delays or cancellations of identifying the services they provide to have comparable customer service plans particular flights before ticket purchase mitigate passenger inconveniences should be a new subject area covered in or provide comparable customer service resulting from flight cancellations and customer service plans. levels, or have adopted the identified misconnections. We proposed to extend Comments: U.S. carriers and carrier the requirement to address these twelve carrier’s customer service plan; (12) associations are generally opposed to subjects in the customer service plan to ensuring responsiveness to customer the Department setting minimum foreign air carriers and requested complaints as required by 14 CFR 259.7; standards for the customer service comment on whether any of these and (13) identifying the services it plans, particularly if the Department subjects would be inappropriate if provides to mitigate passenger requires that the plans be incorporated applied to a foreign carrier. inconveniences resulting from flight into the carriers’ contracts of carriage. The NPRM also proposed to require cancellations and misconnections. ATA notes that, although U.S. carriers that U.S. and foreign carriers’ customer In addition, we invited comment on are already required under the current service plans meet minimum standards whether the minimum standards for any regulation to address each of the to ensure that the plans are specific and of the subjects contained in the proposed customer service plan topics, enforceable. The minimum standards customer service plans should be the current regulation does not mandate that we proposed are as follows: (1) modified or enhanced in some way. minimum requirements and allows Offering the lowest fare available on the With regard to delivering baggage on carriers to set their own standards for carrier’s website, at the ticket counter, time, we solicited comment on whether their customer service plans based on or when a customer calls the carrier’s we should also include as standards (1) their own particular circumstances. reservation center to inquire about a fare that carriers reimburse passengers the ATA asserts that for the Department to or to make a reservation; (2) notifying fee charged to transport a bag if that bag set the minimum standards for carriers’ consumers in the boarding gate area, on is lost or not timely delivered, as well plans would face a major change to board aircraft, and via a carrier’s as (2) the time when a bag should be existing carrier policies in areas where telephone reservation system and its considered not to have been timely U.S. carriers currently compete and website of known delays, cancellations, delivered (e.g., delivered on the same or could dampen innovation, harm and diversions; (3) delivering baggage earlier flight than the passenger, competition and reduce the flying on time, including making every delivered within 2 hours of the public’s options. Many U.S. carriers reasonable effort to return mishandled passenger’s arrival). With regard to concur with ATA. baggage within twenty-four hours and providing prompt refunds, we sought RAA is opposed not only to the compensating passengers for reasonable comment on whether we should also establishment of minimum standards expenses that result due to delay in include as a standard that carriers but also to any continued requirement delivery; (4) allowing reservations to be refund ticketed passengers, including for its members to adopt customer

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service plans. RAA explains that most outside of a carrier’s control (e.g., ‘‘good the ticket counter and via telephone regional carriers do not offer fares, take customer service’’ from a code-share reservations as appropriate. Singapore reservations, ticket passengers, receive partner). Airlines states that, if this requirement payment from passengers, provide Travel agent organizations such as is adopted, the Department should refunds to passengers, or have their own ASTA and consumer groups such as confirm that this provision is intended frequent flyer rules or cancellation AAPR, Flyersrights.org, NBTA, and CTA to conform with ATA’s Customers First policies. RAA maintains that the all support requiring carriers to adopt initiative and should make it clear that subjects to be addressed in the customer customer service plans and for those the airline does not have to offer to a service plan would be inappropriate if plans to meet the minimum standards as customer shopping via one point-of-sale applied to an airline that does not hold proposed in the NPRM. Most individual the lowest fare available in any channel. out, market, sell tickets for its commenters also support these DOT Of the U.S. carriers that commented, operations and asks that the customer proposals, but a few oppose the Spirit Airlines (Spirit) opposes a service requirements apply only to regulation as burdensome and fear the requirement that all fares available on carriers that hold out, market, sell and costs will be passed on to consumers. its website should be made available ticket air transportation. Many ‘‘Regulation Room’’ commenters through its telephone reservation Most foreign carriers and carrier want the Department to go further in service. Should DOT impose such a associations expressed strong setting minimum standards and standard, it must be limited to a carrier’s opposition both to the requirement to prohibiting certain practices. generally available fares and not apply The Department received a number of have a customer service plan and for to special sales fares because many of comments on some of the minimum that plan to meet minimum standards these lower fares cannot be purchased standards proposed to be included in set by the Department. A number of over higher-cost channels. foreign carriers such as Air Berlin and the customer service plans as well as associations such as IATA and IACA some of the questions we posed on 2. Allowing Reservations To Be Held at raised the issue of extraterritoriality and modifying or enhancing these standards the Quoted Fare argued that the Department was and we address those issues more fully A number of foreign carriers and overreaching as the customer service below. carrier industry groups also expressed requirements could be interpreted in 1. Offering the Lowest Fare Available serious concerns with the proposal to such a way as to cover sales generated allow reservations to be held at the outside the U.S. and to cover the Many foreign air carrier associations, conduct of foreign carriers on foreign including AACO and NACC, contend quoted fare without payment, or soil or in foreign airspace. There were that requiring carriers to offer the lowest cancelled without penalty, for at least also assertions that the Department’s fare on the carrier’s website, at the ticket twenty-four hours after the reservation regulatory proposals ignore the fact that counter, or when a customer calls the is made and thought this provision may airlines have designed their customer carrier’s reservation center to inquire lead to inconsistent sales policies. For service initiatives in a way to attract about a fare or make a reservation would example, Air New Zealand strongly customers and the fact that carrier interfere in airline business practices. opposes this provision because it takes customer service plan provisions are a ALTA seeks clarification on the inventory off the market for the duration way for carriers to differentiate their meaning of ‘‘offering the lowest fare of the refund period, blocking it from services. South African Airways available’’ and asserts that a ‘‘one size sale to other customers and risking that contends that prescriptive regulations fits all’’ fare will prejudice passengers by the seat may not be sold again. The should not take the place of competitive increasing fares and limiting carrier points out that passengers have forces, especially when there is no competition. the option to buy refundable fares, and evidence of market failure. Virgin Among the foreign air carriers that choosing whether to allow a passenger Atlantic, while agreeing that defining a commented, Cathay Pacific states it can to hold a reservation without payment baseline standard is acceptable, states only publish the fare at the time a is a commercial decision. Air France that forcing all carriers to be the same request is made, as fares are driven by and KLM oppose this proposal denies them the right to compete complex inventory and fare managing primarily for the reasons stated above, commercially and does not allow systems and a fare guarantee cannot be as does Qatar Airways. Alitalia opposes carriers to innovate. made. JetStar basically concurs and this proposal and thinks the airline Others raised the existence of states that the proposal fails to take should be the party that establishes customer service requirements imposed account of legitimate distribution and commercial terms and conditions with by other entities as a reason for the pricing practices. Qantas strongly its customers. Singapore Airlines states Department not to issue a rule in this opposes this requirement on the basis that it is not set up to permit reservation area. For instance, Air France and KLM that it fails to take into account the holds and reprogramming the system to state that the customer service proposals numerous possible options and fare do so is costly. It also notes that this should not be finalized as to EU carriers constructions that may be applicable to proposal interferes with the free market where they are inconsistent with or a consumer, and there may be a false and deprives other passengers of the more stringent than EU regulations. Still perception that a carrier is not quoting lowest fare, as well as compromises an other foreign carriers raised concerns the best price when the lowest priced airline’s ability to adjust to overnight that some of the minimum service levels inventory sells out. It is also concerned currency fluctuations. British Airways are impracticable for a carrier to meet that carriers will not be able to enforce notes that its current selling systems do (for example, if a carrier sells a number the proposed requirement against ticket not allow for reservations to be held of tickets via a travel agent and the agents and should not be responsible for without penalty, but passengers that passenger contact information is not ticket agent actions. British Airways book via call centers have a ‘‘24 hour passed on then the carrier may not have states that it offers the lowest fare that cooling off’’ period. It also states that that passenger’s contact information in meets customers’ needs and its website consumers that visit BA.com have order to advise them of a change in allows consumers to find the lowest several opportunities to review exactly itinerary). Some carriers also expressed fare. Similarly, JAL states that it already what they are booking and to confirm concerns that certain provisions may be offers the lowest fare on its website, at knowledge of details prior to booking.

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ATA strongly objects to a CSP policy. JetBlue explains that it does not states that cancellations may also be out proposal that would require a carrier to oversell seats on its flights and it is the of the carrier’s control. hold a reservation ‘‘at the quoted fare’’ company’s policy not to issue refunds to Lufthansa and Austrian state that, if for 24 hours for the following reasons: passengers that cancel their reservations imposed, the final rule should allow it eliminates the carrier’s ability to sell (in return for a guaranteed seat on the carriers to accommodate passengers in these seats to another willing buyer; the flight). It notes that the proposal would ways other than refunding the fare. DOT has not demonstrated a market allow customers to hold a reservation JetStar contends that it is unfair to place failure that merits this action; a without making a financial commitment the entire burden of costs of unforeseen consumer could hold a reservation and could cause lower load factors, delays and cancellations on the carriers during the last 24 hours and then which would threaten JetBlue’s business and states that mandatory refunds may cancel, resulting in a seat that will never model. ASTA supports the 24 hour result in the operation of delayed flights be sold; and this requirement would ‘‘reservation hold’’ rule applying to empty or at a net loss. The carrier also effectively prevent re-pricing, which travel agent bookings. believes that it is not unfair or deceptive ordinarily happens multiple times a for consumers to share some of the risk day. 3. Refunding the Ticket Price for Flights in return for lower priced non- Of the U.S. carriers that commented, That Are Canceled or Significantly refundable tickets, provided fare rules US Airways does not support adoption Delayed are disclosed prior to purchase. of a 24-hour standard as a rigid rule. In discussing a commitment to VivaAerobus states that it is a no frills The carrier suggests that DOT allow provide prompt refunds, we asked for ultra low-fare carrier that only sells non airlines flexibility to restrict refunds in comments on whether we should refundable tickets and its policy is certain situations in order to assure that require carriers to refund the ticket price disclosed on its website so customers the largest number of potential for flights that are canceled or can comparatively shop prior to passengers have access to seats. Spirit significantly delayed if the passenger purchase. The carrier asserts that it states this proposal is an effort to chooses not to travel as a result of the never overbooks flights and contends impose on all airlines a practice that travel disruption. ATA opposes that it cannot give refunds. was common prior to deregulation. As including as a standard in the customer Of the U.S. carriers that commented, a low cost carrier, it states that almost service plan a requirement that carriers US Airways notes that many of its all low-fare carriers require payments at automatically provide ticketed tickets are fully refundable and time of booking to guarantee the fare passengers holding non-refundable consumers that purchase non- and that making tickets non-refundable tickets a refund for flights that are refundable tickets are clearly informed is a practice that is critical to its ability canceled or significantly delayed. ATA of the risk. While the carrier supports to keep fares low. Should a consumer notes that the regulatory effort to the Department’s efforts in the NPRM to choose to, he or she can buy refundable redefine restricted tickets as fully enhance disclosure, it does not think tickets at a higher price. The carrier refundable even when cancellation is DOT should restrict options available to states that travel agents that book via desirable due to impending weather or passengers or competition among global distribution systems (GDS) can government order would impose carriers by requiring refunds of non- hold a reservation (space only) for 24 obligations not present in any other refundable tickets. Spirit Air opposes requiring carriers to make refunds to hours without penalty and Spirit offers mode of transportation. ATA adds that passengers who choose to purchase non- a 24 hour courtesy refund for bookings in most cases passengers on a cancelled refundable tickets but decide not to fly made via GDS, but no other procedure flight are accommodated soon after the because of a flight cancellation or for refunds via travel agents can be originally scheduled flight. In addition, significant delay. Rather, Spirit gives accomplished due to limited GDS ATA provides the following reasons for passengers the option of re- functions. In order to comply with this its opposition: provision, Spirit states that it would accommodation or a voucher or refund, Æ The cause of the delay could be out have to substantially change its business or a passenger can purchase travel of the carrier’s control; model and incur large IT cost. Æ insurance. Hawaiian Airlines (Hawaiian) notes Carriers often allow free rebooking Of the consumers and consumer ‘‘ ’’ ‘‘ ’’ for significant delays or cancellation; organizations that commented on this that it has on-demand or walk-up Æ flights that run on a high frequency This is a marketplace issue; issue, Flyersrights.org thinks tickets Æ basis. As proposed, this provision Imposing mandatory refunds when should be refunded if the flight is would put the carrier in the position of a passenger chooses not to fly would cancelled or significantly delayed for turning inventory over to passengers convert all tickets in cancel or delay reasons within the airline’s control. who will make several reservations for situations to fully refundable tickets; However, it is concerned about a flight (within a 24 hour time period) Æ Passengers have a choice of what passengers who don’t receive refunds of but will pay for only one of the type of ticket to buy; and taxes and fees collected by the reservations, even though Hawaiian Æ The DOT is not authorized to government for services passengers do must retain a seat for them on each interfere in the marketplace in this not receive due to cancelled flight. It notes the rule could result in manner. reservations. Some ‘‘Regulation Room’’ forcing Hawaiian to oversell flights to Of the foreign carriers and carrier commenters favor airlines providing full protect against the loss of seats and associations that commented, AACO refunds as well as reimbursement for revenue. The carrier suggests the asserts that this provision intrudes in hotel rooms and meals if there is a proposal be modified to allow business practices and raises a risk that significant flight delay. customers to hold seats for 24 hours up carriers cannot resell the seat post- With regard to defining a ‘‘significant until 72 hours before the departure of cancellation. NACC is also concerned delay’’ for purposes of ticket refunds, the flight. Similar to Hawaiian, JetBlue about this proposal. Malaysia Airlines ATA opposes any definition of suggest that the proposal be modified strongly opposes this proposal because ‘‘significant’’ delay that would create a and that the ‘‘24 hour rule’’ apply not delays are often beyond airlines’ control single government standard and later than 120 hours prior to departure and carriers already make efforts to eliminate a carrier’s latitude to create its for carriers that have a no oversales mitigate their impact. Similarly, Qantas own policies on non-refundable tickets

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that serve customer and commercial provided. Malaysia Airlines also states carrier chooses to refund a fee in all needs. It reiterates that the application that this proposal should not require instances is a matter the marketplace of non-refundable tickets and carrier refunds of fees for services already should determine. Spirit also opposes policies to re-accommodate passengers delivered. ASTA thinks mandated such a requirement although it notes during an event beyond the carrier’s refunds should include ‘‘optional fees’’ that its policy is to refund fees when control is best left to the marketplace in paid by a passenger. there is a delay in delivery. a deregulated industry, which will leave 5. Delivering Baggage on Time, Flyersright.org states that fees should be customers with more options. Of the Compensating Passengers for Expenses refunded if the bag is not delivered on foreign carriers that commented on Due To Delay in Delivery of Baggage the same flight or an earlier one. defining a ‘‘significant delay,’’ Cathay and Refunding Baggage Fees Pacific states the Department should 6. Notifying Passengers of Past Delays take into account the length of delay, Of the foreign air carriers and and Cancellations Prior to Ticket length of the flight and the industry groups that commented, AACO Purchase states that the Department needs to circumstances. The longer the flight, We already require the reporting define what ‘‘on time’’ delivery of then the greater the tolerance should be carriers (i.e., largest U.S. carriers) to baggage means and opposes any for the delay. TAP Portugal makes a provide delay and cancellation requirement that airlines bear the sole similar comment and states that the information on their websites and upon responsibility for areas of business that definition should depend on the request provide consumers on-time other parties have control over (e.g. bags duration of the flight. It also notes that performance information during oral long-haul flights can make up for delays may be handled by airport or TSA). Air Berlin notes that international baggage reservations. We asked for comment on while in the air. Some commenters on whether all carriers required to have a ‘‘ ’’ compensation is already governed by Regulation Room suggest that any customer service plan should be delay over three hours is ‘‘significant,’’ the Montreal Convention. South African Airways states that the proposal does required to disclose past delays and while others note they are willing to let cancellations of flights to consumers the Department define the term. not address Montreal or Warsaw and asks DOT to confirm that the rule does before the latter purchase a ticket. Many 4. Refunding Fees for Optional Services not apply where either Convention carriers oppose having a customer for Flights That Are Canceled controls. Singapore Airlines offers service commitment on disclosure to In discussing prompt refunds, we similar comments. Air France and KLM passengers of past delays or specifically asked for comments on state that the NPRM does not take into cancellations of particular flights before whether we should require, as part of account vast differences between long- ticket purchase and do not see the need any refund due a consumer, a refund of haul international flights and domestic for it. They assert that past performance any optional fees charged a passenger in U.S./transborder flights, and as such, is not necessarily indicative of future connection with the flight in question. returning bags within 24 hours may be performance. Swiss International also ATA opposes including as a standard in impossible due to limited frequencies to states that, if imposed, the requirement the customer service plan that when a a specific destination, absence of local to disclose past delay and cancellation flight is cancelled carriers must refund services, and/or a passenger with a information should not apply to not only the ticket price but also any multi-stop and multi-country itinerary. reservations agents via telephone fees for optional services that were Among the U.S. industry groups and because foreign carriers utilize call charged to a passenger for that flight. air carriers, US Airways believes that, centers that often work with multiple ATA states that its members object to before advancing new proposals in this carriers and the proposal is not feasible. the Department’s concept that area, DOT should articulate any Cathay Pacific does not support cancellation in itself should create a additional facts warranting action mandatory disclosure of past delays and right to the refund of optional fees. It beyond steps that the Department has cancellations before ticket purchase for urges the Department to clarify that a already taken. It asserts that it is neither international flights that have limited carrier has the opportunity to possible nor desirable to set a uniform operations, but notes that for domestic accommodate a passenger with other maximum time for delivery of delayed services operated more frequently there transportation options after a bags or to impose remedies for failure to may be value. ATA members oppose cancellation, instead of automatically make delivery within a time frame additional information notices regarding refunding a ticket and ancillary fees. because there are too many variables past flight delays or cancellations before ATA also asks the Department to clarify involved, and asks that the Department purchase of a ticket, as the Department that the proposed customer service plan seek more input from stakeholders has recently adopted new flight requirement to provide prompt refunds involved. Spirit Airlines notes that Part information requirements and in ‘‘where ticket refunds are due’’ is meant 254 already requires airlines to accordance with those rules, the public to include only those situations where compensate passengers and airlines will have access to information on flight the passenger is unable to fly due to the have incentives to locate and return delays, cancellations, and flights 30 carrier’s decision to cancel. US Airways bags. It also states that ‘‘every reasonable minutes late more than 50% of the time supports refunding fees for optional effort’’ to return bags is a vague before purchase on the largest U.S. services for flights that are canceled, but standard, and points out that there is no carriers’ websites. Of the U.S. carrier only in cases where the services in evidence that the current rules are commenters, US Airways notes, similar question are not ultimately provided inadequate or passengers are being to ATA, that this information is (e.g. baggage fees, seating fees). It asks treated unfairly or with deception. available on the carrier’s website and the Department to clarify that if the ATA notes that its members oppose that is sufficient to provide consumers services are provided, refunds are not including as a standard in the customer with information. It also asserts that mandated. Among the foreign carriers service plan that carriers reimburse historic data is unreliable, the current and carrier associations that passengers the fee charged to transport rule is new and more time is needed to commented, AACO states that fees a bag if that bag is lost or not timely see how effective it is prior to initiating should not be reimbursed for the ticket delivered. ATA states that bag fees are new rules, and DOT already decided and ancillary services that have been a competitive issue and whether a further disclosures were not required.

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7. Other Customer Service Provisions DOT Response: Having fully and may unduly discourage code- With regard to the customer service considered the comments, the sharing arrangements. We have also requirement to notify consumers of Department has decided to adopt a final decided against requiring covered itinerary changes in a timely manner, rule largely along the lines set forth in carriers to include in their customer British Airways expressed support for the NPRM, with some clarifications to service plans an assurance that they will this provision, but thinks it should be address comments received about notify consumers of past delays and limited to passengers for which the extraterritorial application of U.S. law cancellations. We are persuaded that the carrier has reliable contact information. and the appropriateness of individual current availability of data about past In situations where a passenger books customer service commitments. In delays and cancellations provided by his/her ticket through a travel agent, adopting this approach, we believe that the largest U.S. carriers on their British Airways states that the travel our action strikes a proper balance websites as a result of action of our agent and not the carrier should be held between ensuring that the traveling recent consumer rulemaking is responsible for notifying the passenger public is provided an adequate level of sufficient and additional requirements of any itinerary changes. With respect to service and is not subjected to unfair or in this area would not materially benefit disclosing aircraft configuration, among deceptive practices, while ensuring the consumers. While, as noted above, the other things, to consumers on the selling marketplace governs to the extent Department has decided to establish carrier’s website and upon request from possible. We also view our approach as striking the proper balance between minimum standards for the customer the selling carrier’s telephone protecting consumers on nearly all service plans of both U.S. and foreign reservations staff, Singapore Airlines flights to and from the United States by carriers, we are modifying or clarifying contends that there is no reason for its requiring not just U.S. carriers but also a few of these standards based on telephone reservations staff to provide foreign carriers to adopt and adhere to comments received. For example, we this information as its customers can customer service plans, while ensuring are clarifying, as requested by U.S. and find this information on the carrier’s that these requirements do not involve foreign carriers and associations, that website. With regard to responding to an extraterritorial application of U.S. the requirement to compensate consumer complaints, Air Berlin is law by limiting their application to passengers for reasonable expenses that concerned that as drafted the proposed foreign carriers to flights to and from the result due to delay in baggage delivery definition would obligate a carrier to U.S., sales made within the U.S., and to comports with 14 CFR part 254 for react to complaints from non- the conduct of foreign carriers on U.S. domestic transportation and applicable passengers. soil. international agreements for As for the requirement to ensure Under the final rule, foreign carriers international transportation. We are also ‘‘ ’’ good customer service from code- are required to address the same adding as a standard that carriers must share partners, a number of carriers and subjects in their customer service plan reimburse passengers for any fee carrier associations expressed concerns as U.S. carriers. The final rule also charged to transport a bag if the bag is with the definition of ‘‘ensuring good establishes minimum standards for the lost. We have decided against requiring customer service’’ as it relates to code- customer service plans of both U.S. and carriers to reimburse passengers for any share partners and claim that they foreign carriers. In making this decision, fee charged to transport a bag that is not cannot be held responsible for code- we note that carriers are already timely delivered. Arguably, as is the share partners’ actions. More required to address a number of the case with transporting passengers specifically, NACC contends that the subjects and comply with the minimum themselves, while delay in receiving provision to have ‘‘comparable service standards imposed for these subjects baggage may be inconvenient, once the plans’’ could be an extraterritorial through existing requirements [e.g., 14 carrier delivers a bag the service has application of law if applied to more CFR part 250, Part 254 (for U.S. been performed. Consumers may, of than flight segments to or from a U.S. carriers), and Part 382] or requirements course, seek reimbursement for damages airport. It states that the requirement to imposed by other sections of this rule caused by delay in the delivery of their have comparable service is too (e.g., 14 CFR 259.4, 259.7, and 259.8). baggage by filing a claim with the airline prescriptive and is an unwarranted Additionally, based on the comments or, if dissatisfied with the airline’s interference in commercial received, many carriers already address resolution of the matter, with an relationships, and may discourage such many of the requirements in the appropriate civil court. arrangements, leading to less flexibility customer service plans and, in some With regard to carriers’ obligation to and network connectivity. NACC also cases, their customer service notify passengers of known delays, expresses concerns that aligning commitment is more stringent than cancellations and diversions, we specify customer service plans with code-share those we are adopting. Consequently, that the minimum standard required to partners may raise anti-trust issues. we are not persuaded that it would be comply with this obligation is met JetStar does not support requiring code- unduly burdensome for carriers to adopt through compliance with a requirement share participants to adopt each other’s and adhere to these standards. imposed elsewhere in this final rule, customer service plans or align their Commenters have convinced us that it i.e., 14 CFR 259.8. Under section 259.8, service levels and states that this is an is not appropriate to require U.S. or we explain that the obligation to notify issue of competition best left to the foreign air carriers to include in their passengers of delays applies only to marketplace. It also notes that the customer service plans a commitment to delays of 30 minutes or more and that marketing carrier has the primary ensure good customer service from their the carrier has the obligation to inform relationship with the consumer. US code-share partners by making certain passengers of such delays, cancellations Airways states that DOT should not that code-share partners have and diversions within 30 minutes of the adopt rules that marketing carriers are comparable customer service plans or carrier becoming aware of a change in responsible for violations by operating provide comparable customer service the status of a flight. We also explain carriers and says that marketing carriers levels. We agree with commenters that that carriers must inform consumers of cannot control the application of the requirement for code-share partners cancellations and delays of 30 minutes uniform standards of all operating to have comparable service may or more and diversions in the boarding carriers with which they work. unnecessarily restrict the marketplace gate area at U.S. airports, on board

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aircraft, via a carrier’s telephone no longer wishes to travel. Since at least comments submitted by JetBlue and reservation system and on its website, the time of an Industry Letter of July 15, Hawaiian Airlines suggesting that a set and through whatever means made 1996 (see http://airconsumer.dot.gov/ point in time should exist after which available by the carrier for passengers rules/guidance) the Department’s carriers would no longer be required to who subscribe to the carrier’s flight Aviation Enforcement Office has hold a passenger’s reservation in order status notification services. advised carriers that refusing to refund to give the carrier a more realistic With respect to providing prompt a non-refundable fare when a flight is opportunity to sell that seat in the final refunds, we conclude that the obligation canceled and the passenger wishes to days before the flight departs. to provide such refunds applies not only cancel is a violation of 49 U.S.C. 41712 Accordingly, we are modifying this to refunding the basic price of a ticket (unfair or deceptive practices) and provision to require carriers to hold the but also to refunding optional fees would subject a carrier to enforcement reservation for twenty-four hours only if charged to a passenger for services that action. a consumer makes the reservation one the passenger is unable to use due to an We also have determined to modify week (168 hours) or more prior to a oversale situation or a flight the standard regarding the availability of flight’s scheduled departure. After that cancellation. For example, if a passenger the lowest fare from what was proposed time, a carrier is no longer required to pays for premium economy seating, but in the NPRM. In the NPRM, we hold a reservation without payment for his flight is canceled or oversold and proposed that a carrier offer the lowest any period of time. The Department that seating is not available on the flight fare available on the carrier’s website, at believes that this modification strikes that he/she has agreed to be re-rerouted the ticket counter, or when a customer the right balance between a consumer’s on, then the carrier must promptly calls the carrier’s reservation center to desire to make travel plans and shop for refund the passenger the fee paid for the inquire about a fare or to make a a fare that meets his or her needs, and premium seating. In adopting this reservation. Having taken into the carrier’s need for adequate time to requirement, the Department believes it consideration the comments received sell seats on its flights. is unfair for a carrier to refuse to provide about how this requirement could As for the remaining seven customer a refund to a passenger of fees paid for unduly interfere with airline business service requirements, we received very services not provided through no fault models by requiring airlines offer to a few comments on them and we are of the passenger. consumer shopping via one point-of- adopting them as proposed in the We continue to believe that there are sale the lowest fare available via any NPRM. These seven customer service circumstances in which passengers channel, we are modifying this would be due a refund, including a provision to require carriers to disclose requirements pertain to accommodating refund of non-refundable tickets and to consumers who contact the carrier passengers with disabilities, meeting optional fees associated with those through any of these mediums that a customers’ essential needs during tickets due to a significant flight delay. lower fare may be offered by the carrier lengthy tarmac delays, handling However, we have been persuaded by through another channel (for example, ‘‘bumped’’ passengers with fairness and industry commenters that the the carrier must reveal via its telephone consistency, disclosing cancellation Department should not adopt a strict reservation service that a lower fare may policies, frequent flyer rules, aircraft standard of what constitutes a be available on the carrier’s website if configuration, and lavatory availability, significant delay as such a delay is that is the case). Of course, wherever the notifying consumers of changes in their difficult to define. We agree with the carrier offers its lowest fare, the carrier travel itineraries, ensuring contention of carriers and carrier should not state that the lowest fare may responsiveness to customer complaints, associations that the definition of a be available elsewhere as such a and identifying the services the carrier significant delay depends on a wide statement would likely confuse provides to mitigate passenger variety of factors such as the length of consumers and could result in increased inconveniences resulting from flight the delay, length of the flight and the search time by consumers for a cancellations and misconnections. In passenger’s circumstances. The nonexistent lower fare. In sum, we are adopting these customer service Department’s Aviation Enforcement not requiring carrier personnel to offer commitments as proposed, we note our Office will continue to monitor how the lowest fare available via whatever disagreement with comments stating carriers apply their non-refundability sales channel a consumer chooses to that the requirement for carriers to provision in the event of a significant use, but to inform all of its customers notify consumers of itinerary changes change in scheduled departure or arrival and prospective customers that a lower should be limited to passengers who time, and will determine on a case by fare may be available elsewhere in the book their tickets directly with the case basis based on the facts and carrier’s systems in order to give the carrier and not apply to passengers who circumstances of the delay whether a consumer the opportunity to locate a book their tickets through a travel agent. failure to provide a refund in response lower fare offered by that carrier. A passenger has a right to know and to such a delay is an unfair and We have also decided to modify the benefit from knowing about changes in deceptive practice. customer service proposal which would his/her itinerary whether that person We reject some carriers’ and carrier require carriers to allow reservations to purchased the ticket directly from a associations’ assertions that carriers are be held at the quoted fare without carrier or from a travel agent. We also not required to refund a passenger’s fare payment, or cancelled without penalty, disagree with comments that the when a flight is cancelled if the carrier for at least twenty-four hours after the disclosure of aircraft configuration be can accommodate the passenger with reservation is made. We agree with limited to the selling carrier’s website. other transportation options after the commenters who expressed concerns While most consumers will have access cancellation. We find it to be manifestly that allowing consumers to hold a seat to the Internet and be able to obtain this unfair for a carrier to fail to provide the without payment for twenty-four hours information from carriers’ websites, we transportation contracted for and then to could result in loss of sales and revenue also see benefit in requiring that aircraft refuse to provide a refund if the by carriers and prevent other passengers configuration information be made passenger finds the offered rerouting from purchasing the seat if the seat is available upon request from the selling unacceptable (e.g., greatly delayed or not released in a timely manner prior to carrier’s telephone reservations staff, otherwise inconvenient) and he or she the flight. We find persuasive the particularly for those passengers who do

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not have access to the Internet or are not service plans is essential. As noted in rights under carriers’ customer service familiar with how to use it. With regard the first rule to enhance airline plans. As in the past, we asked to the concern expressed by a carrier passenger protections, we believe that commenters to address whether and to that it may be required to respond to requiring covered carriers to audit their what extent requiring the incorporation complaints from non-passengers, we plans annually will further ensure that of contingency plans in carriers’ want to point out that ‘‘complaint’’ is carriers will live up to their contracts of carriage might weaken defined in section 259.7 as a specific commitments. It will also enable an existing plans: that is, would the written expression of dissatisfaction airline to quickly take action if it learns requirement encourage carriers to concerning a difficulty or problem that it is not in compliance with its exclude certain key terms from their which a person experienced when using customer service plans or if it is not plans in order to avoid compromising or attempting to use an airline’s effectively implementing its plan. A their flexibility to deal with services. self-audit is essentially a system for the circumstances that can be both complex carrier to verify its compliance with its and unpredictable. C. Self-Auditing of Plan customer service plan. We are not Comments: RAA questions whether The NPRM: The NPRM proposed that requiring that such audits be conducted DOT has authority to impose a foreign air carriers audit their adherence ‘‘at similar times in the year’’ or even requirement for carriers to incorporate to their customer service plan annually that there be a single unified audit of all their tarmac delay contingency plans or and make the results of their audits the subjects covered in the customer customer service plans into their available for the Department’s review service plans, in order to allow each contracts of carriage. If the Department upon request for two years following the airline the flexibility to design an audit nevertheless adopts such a requirement, audit completion date. U.S. carriers are program that fits its particular RAA states that it should not apply to already required to self-audit their plans operational environment. regional carriers, as most regional and to make the audit results available passengers are subject to the ticketing for the Department’s review upon 4. Contracts of Carriage carrier’s contract of carriage. request for two years. The NPRM: This NPRM was the ATA contends that the Department Comments: Of the foreign carriers that second time that the Department would be exceeding its regulatory commented, TAP Portugal opposes self- proposed requirements regarding authority if it were to require that the auditing and contends that it is too incorporation of tarmac delay contingency plans and customer service burdensome to audit a dozen service contingency plans and customer service plans be incorporated into carriers’ standards, some of which involve plans into carriers’ contracts of carriage. contracts of carriage as a means of hundreds of activities performed on a In December 2008, the Department creating a private right of action. ATA daily basis. Similarly, British Airways published in the Federal Register an asserts that Congress did not create a opposes self-auditing customer service NPRM proposing to require U.S. carriers private right of action for violations of plans on the basis that the plans cover to incorporate their tarmac delay 49 U.S.C. 41712 and the Department many services and involve different contingency plans and customer service cannot substitute a different departments that are responsible for plans in their contracts of carriage, and enforcement process than the one these services, and as such would make their contracts of carriage Congress intended. ATA also states that necessitate coordination at significant available on their websites. In December the Department has failed to additional costs. Qatar Airways states 2009, the Department issued a final rule demonstrate how a carrier’s failure to that global surveys regarding customer where it decided not to require such incorporate either its tarmac delay service standards already exist and incorporation. Instead, the Department contingency plan or its customer service audits specific to a limited number of strongly encouraged carriers to plan in its contract of carriage could be international routes will not add value voluntarily incorporate the terms of viewed as an unfair and deceptive to consumers. Swiss International and their contingency plans and customer practice under 49 U.S.C. 41712 . ATA Air Tahiti note that there is no guidance service plans in their contracts of points out that if the Department is as to what a ‘‘self-audit’’ requires. carriage and required the carriers to post interested in ensuring that passengers A business travel organization their plans and their contracts of are more aware of their rights, then it supports requiring audits and states that carriage on their website. At that time, should be sufficient that both the its travel managers can provide their the Department also indicated its contingency plan and customer service clients better protection on flights to intention to address this matter again plan are available on carrier websites. and from the U.S. if they have this through rulemaking. U.S. carriers that commented information available. Of the consumer In this proceeding, the Department generally support ATA. For example, groups, Flyersrights.org supports again proposed to require carriers to US Airways, like ATA, states that there requiring foreign air carriers to audit include their tarmac delay contingency is no reason to require incorporation of customer service plans and thinks plans and customer service plans in the contingency plans or customer failure to adopt a plan, adhere to it, and their contracts of carriage, and for service plans as U.S. carriers already make audit results available should be foreign air carriers that have a website post these plans on their websites. US considered an unfair and deceptive to post their entire contract of carriage Airways speculates that only a small practice. on their website in an easily accessible percentage of visitors to its website DOT Response: We have decided to form. U.S. carriers are already required review the page containing the Contract adopt the self-auditing requirements as to post their contract of carriage on their of Carriage, suggesting that the inclusion proposed in the NPRM. The final rule website under the existing rule. of the plans in carriers’ contracts of requires each carrier to audit its own The Department again sought carriage would not increase passenger adherence to its plan annually and to comment on whether incorporation of awareness of their rights. US Airways as make the results of each audit available the contingency plans and customer well as other carriers are particularly for the Department’s review upon service plans in the contract of carriage concerned that this requirement would request for two years afterwards. The would give consumers notice of what create a private right of action and Department believes that a system for might happen in the event of a long subject airlines to a multitude of verifying compliance with the customer delay on the tarmac and of passengers’ lawsuits in a variety of jurisdictions.

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Similar to the U.S. carriers and carrier to impose this requirement. In a similar in a carrier’s customer service plan gives association, foreign carriers and carrier fashion, Lufthansa strongly opposes the consumers more certainty as to the associations strongly oppose the proposal and fully supports ATA’s and quality and types of services they can proposed requirement to incorporate IATA’s comments, as do Alitalia, British expect. In addition, these minimum plans into carriers’ contracts of carriage. Airways and various other foreign standards may make it easier for a IATA asserts that the DOT exceeds its carriers. consumer to demonstrate to the authority in proposing this requirement While most foreign air carriers are Department’s Aviation Enforcement and that it would substantially increase opposed to including the plans in their Office that a carrier has violated the law airlines’ legal costs. IATA also states contract of carriage, a number of them when that carrier does not meet its that international airlines cannot be did support the idea of placing the standard of service commitment as the expected to adopt multiple contracts of contingency plans and customer service requirements of the customer service carriage for each territory into and out plans on their respective websites or plans are more exacting than in the past. of which they fly and that contracts of state that they have already done so. For If the minimum standards are not met carriage are contracts between a carrier example, Air France and KLM agree that by a given carrier, the Department can and all of its passengers, not just those the plans could be placed on a website. determine if enforcement action is that fly into the U.S. AEA generally Virgin Atlantic states that its Conditions appropriate in a given situation. supports and agrees with IATA. IACA of Carriage are based on IATA standards and are available on its website, as does Although we are not requiring tarmac states that placing contingency and delay contingency plans and customer customer service plans in a contract of Qatar Airways. In addition, Virgin Atlantic suggests that contingency plans service plans to be incorporated in carriage will make the contracts contracts of carriage, the Department unreadable, as they are already detailed and customer service plans be provided, where there is a specific situation, to an has decided to require foreign carriers to and will result in too much information post their tarmac delay contingency for the consumer. IACA also states, affected passenger. South African Airways makes similar comments. plans, customer service plans and similar to IATA, that for many airlines contracts of carriage on their websites. U.S. flights make up only a small share Of the consumer groups that commented, CTA and AAPR generally The December 2009 rule to enhance of the total flights, so it is inappropriate airline passenger protections already to incorporate information that is valid support the proposal to include tarmac delay contingency plans and customer requires U.S. carriers to post these plans only for U.S. flights. IACA also notes on their websites. The purpose of this that EU regulations already require service plans in a carrier’s contract of carriage, or in the alternative on their requirement is to ensure that interested carriers to provide customers with consumers can easily review an airline’s details of their rights, so the proposal is websites. CTA also states that code- share rules should be included in the contract of carriage, customer service superfluous and counterproductive. contract of carriage. Flyersrights.org, plan, and/or tarmac delay contingency IACA suggests that foreign carriers be and its individual members that filed plan. By having the ability to review exempted from this requirement. comments, support the proposal that these documents, consumers can find The foreign air carriers that carriers place both the tarmac delay out an airline’s stated obligations to commented generally support IATA. contingency plans and the customer passengers and be better informed about Many carriers note that rules already service plans in their contracts of their rights and a carrier’s exist in their countries regarding carriage. The organization warns, responsibilities before purchasing customer service issues. For example, however, that requiring carriers to tickets and whenever problems occur Virgin Atlantic notes that EC Reg 261/ incorporate plans into their contracts of (for example, the passenger’s rights and 2004 already has passenger rights carriage may result in carriers excluding carrier’s responsibilities if an airline requirements covering delays and key terms from the plan so as to make delays or cancels a flight or loses a bag). oversales. Others raised concerns about the plans unenforceable and asks that The Department believes that having the extraterritoriality. More specifically, JAL the Department review and monitor the plans and contracts of carriage on and TAP Portugal note concerns about plans. websites will lead to a better informed the proposal as their Conditions of DOT Response: Having considered all consumer. The Department’s Aviation Carriage are reviewed and approved by the comments, the Department has Enforcement Office will periodically their homeland regulator and any decided not to adopt the proposal monitor carriers’ websites to ensure that changes would need to be approved by requiring U.S. and foreign carriers to the required information is available. those bodies. Qatar Airways states that include their contingency plans and there should be global harmonization of customer service plans in their contracts 5. Response to Consumer Problems different government regulatory of carriage. In making this decision, we A. Designated Advocates for Passengers’ standards before such plans are note that some carriers have voluntarily Interests incorporated in each carrier’s Contract put not only their customer service of Carriage. Various carriers also plans but also their tarmac delay The NPRM: The NPRM proposed to expressed fears about the litigation risks contingency plans into their contracts of require foreign air carriers that operate that would exist. South African Airways carriage since we issued the first rule to scheduled passenger service to and from notes that mandating terms of an enhance airline passenger protections. the United States using any aircraft with airline’s contract of carriage may We will continue to monitor whether 30 or more seats to designate an improperly create a private right of other carriers choose to do so, as well employee who will be responsible for action for minor lapses in service. Air as determine if we need to revisit this monitoring the effects of flight delays, France speculates that in order to avoid issue in the future should a problem flight cancellations and lengthy tarmac legal risks carriers may weaken plans if exist. delays on passengers. We proposed that incorporation into carrier’s contract of Further, with regard to the need to this employee have input into decisions carriage is required. Air France as well incorporate customer service plans into about which flights to cancel and which as many other carriers who object to the the contract of carriage, the Department will be delayed the longest. U.S. carriers proposal assert, similar to IATA, that believes that our decision to set must comply with this requirement the Department does not have authority minimum standards for the provisions under the existing rules.

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Comments: IATA, IACA, and AEA foreign carrier’s scheduled flights to and e-ticket confirmations, and, upon generally state that the proposal to from the United States, including those request, at each ticket counter and gate. designate an advocate for passenger involving aircraft with fewer than 30 Comments: As with other sections of interests intervenes too much in an seats if a carrier operates any aircraft this proposal, carrier association airline’s operation as airlines organize with 30 or more passenger seats to/from commenters, such IATA, IACA, and themselves differently to monitor the U.S. AEA, generally state that the proposal to operational issues and address customer We are not persuaded by commenters inform consumers how to complain concerns. Lufthansa opposes this that the Department is excessively unnecessarily and excessively proposal and comments that the intervening in an airline’s operation by intervenes in an airline’s operations. decision to designate an employee to requiring an employee or employees be Many foreign carriers concur. For monitor the effects of irregular designated to monitor performance of example, Qantas and JetStar state that if operations should be left to the flights and that these employees have a carrier has given a consumer discretion of each carrier. Similarly, Air input into decisions such as which reasonable access for lodging Tahiti states that requiring dedicated flights are cancelled or subject to the complaints, there is no need for the staff to monitor delays improperly longest delays. Additionally, we have Department to mandate a particular interferes with internal airline taken note of foreign carriers’ concerns form of communication. Qatar Airways, operations. JAL does not think it makes regarding the potential lack of carrier among others, notes that foreign carriers sense to designate an employee for a personnel located in the United States already offer passengers a number of non-problem and asks for additional or at specific airports where the carrier means by which to file a complaint. Foreign carriers and carrier information and clarification regarding does not have a large presence. We are associations also oppose the the employee’s responsibilities. Swiss not requiring that the employees requirement to inform consumers how International states that this proposal is responsible for monitoring irregular to complain as an extraterritorial a substantial burden and believes that flight operations be located at a U.S. application of U.S. law. IATA asserts one individual may not be effective airport. As has been permitted for that this requirement would violate the because each airport has its own issues, covered U.S. carriers, foreign carriers Chicago Convention and U.S. Open so splitting these tasks makes more can determine where its employees are sense and would result in better data. Skies Agreement as it would necessitate located, as long as the designated foreign carriers modifying procedures The carrier urges the Department to employees can monitor flight delays and require each airport to designate an and operations that take place outside cancellations for the carriers’ flights to the U.S. to meet U.S. regulatory employee responsible for monitoring and from the U.S. throughout the delays and coordinate with carriers to requirements. For example, IATA states carriers’ system and have input into that this requirement would mandate reduce delays. Air France and KLM decisions regarding how to best meet that foreign carriers modify their home oppose this requirement and explain the needs of passengers affected by any websites and foreign-issued tickets to that it has limited resources in the U.S. irregular operations. This requirement is include information mandated by the to fulfill any such new role and intended to ensure that passenger Department. contends that this requirement would interests are considered by carriers NBTA generally supports the impose substantial costs on foreign when decisions on irregular flight provisions, as do Consumers Union and carriers. Air France and KLM state that, operations are made. We are not AAPR. Flyersrights.org, in addition to if this proposal is implemented, the requiring that the designated employees supporting a requirement for foreign Department should permit foreign make themselves available to speak with airlines to make the mailing address and carriers to comply by having an off-site airport personnel or passengers and email or web address for filing a employee in a specific department who certainly are not prescribing the complaint available on their website is accessible by a specific telephone language to be used by the designated and e-ticket confirmations, thinks there number assist in such matters, and by airline employees. By adopting this should be contact information for the providing this advocacy only in the performance standard, the Department Department’s Aviation Consumer principal language of the carrier’s leaves it up to each carrier to determine Protection Division on e-ticket homeland (French for Air France, Dutch the most efficient and effective method confirmations and boarding passes. for KLM) and in English. Of the travel to monitor the effects of flight delays DOT Response: The Department is agent interests that commented, ASTA and cancellations (for example, extending this provision to foreign generally supports the proposal to have designating one or more individuals at carriers as proposed in the NPRM, with a designated employee, but does not its systems operations center). This rule some clarifications to address concerns believe the employee should have to be does not require carriers to hire new about extraterritoriality. First, we are available in the U.S. as long as he or she employees to comply with this requiring foreign carriers to inform is accessible. We received a few provision as these responsibilities may consumers how to complain, upon comments from consumers and be borne by current employees in request, at each ticket counter and consumer groups, all of whom generally addition to their other responsibilities. boarding gate at U.S. airports. We are support the proposals. not seeking to govern the activities of B. Informing Consumers How To foreign carriers outside the United DOT Response: The final rule requires Complain foreign air carriers operating scheduled States. U.S. carriers are still required to passenger service to and from the U.S. The NPRM: Under the proposed rule, inform consumers how to complain using any aircraft with 30 or more a foreign air carrier that operates upon request at all ticket counters and passenger seats to designate an scheduled passenger service to and from boarding gates staffed by the carrier or employee to monitor the effects of flight the U.S. using any aircraft with 30 or a contractor of the carrier, whether or delays, flight cancellations, and lengthy more passenger seats would be required not those locations are within the U.S. tarmac delays on passengers and to have to inform consumers how to file a We are also specifying that the input into decisions on which flights to complaint with the carrier (name of requirement to make information about cancel and which will be delayed the department, address, and email or web- how to file a complaint available on a longest. It applies to all of a covered mail address) on its website, on all carrier’s website applies to a foreign

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carrier only if its website markets to contacting carriers that are in the best such events requires a longer response U.S. consumers. Foreign carriers would position to quickly resolve problems. time. not need to modify their home websites Some carriers generally agree with the C. Responding to Consumer Complaints to ensure that they are complying with proposal or note that they respond to this requirement unless those sites The NPRM: Under the NPRM, a consumers in a shorter time period. For market to U.S. consumers. We expect foreign air carrier that operates example, Singapore Airlines states that foreign carriers to follow U.S. law in the scheduled passenger service to and from it would not oppose the Department’s U.S. when marketing within the U.S. the U.S. using any aircraft with 30 or proposal to provide a substantive and when flights are entering, operating more passenger seats would be required response in 60 days if complaints are within or departing from the U.S. to acknowledge receipt of a complaint limited to actual customers and flights Also, while we acknowledge foreign within 30 days of receiving it and send to or from the U.S. Japan Airlines states commenters’ concerns with the a substantive response to each that its response time of 14 days Department mandating avenues by complainant within 60 days of receiving surpasses the Department’s proposal which a consumer can file a complaint, it. We proposed to define a complaint as and that it has many mediums by which we believe it is important that a specific written expression of passengers can contact it. Air France consumers have more than one avenue dissatisfaction concerning a difficulty or notes that it tries to reply to complaints for registering their service-related problem which the person experienced within 28 days. Virgin Atlantic states concerns. As commenters note, since when using or attempting to use an that it already has a robust complaint some foreign carriers already provide a airline’s services. We solicited handling process and generally replies number of means by which to file a comments on any operational to all written complaints within 28 days complaint, the requirements of this rule difficulties U.S. and foreign airlines may of receipt. Air New Zealand states that should not prove overly burdensome. face in responding to such complaints the suggested timeframes to respond to As with the December 2009 rule to when received through social complaints are generous. A number of carriers expressed enhance airline passenger protections, networking mediums such as Facebook concern regarding the definition of a this rule requires carriers to only and Twitter. complaint. Swiss International states provide passengers their email or web- Comments: We received a number of that complaints need to include the form address and their mailing address. comments on this issue from foreign passenger’s name, mailing address or We did not propose and are not now carriers and carrier associations, some of email address, a copy of the ticket or requiring that carriers provide whom supported this requirement. boarding pass and the applicable flight passengers a telephone number for IATA, IACA, AEA, and many foreign number. Qatar Airways generally complaint calls because of concerns that carriers generally state that the proposal supports the principles stated in the ‘‘ ’’ telephone talk time would impose a to respond to consumer complaints NPRM, but states that it should only high cost on airlines when there are within a set timeframe excessively have to respond to complaints from other more-efficient and effective intervenes into an airline’s business passengers who use its service, i.e., the complaint processing methods practices and disregards procedures definition of a complaint should be available. Of course, in addition to carriers already have in place to respond limited to a difficulty or problem which accepting complaints through the to consumer complaints. They also the person experienced when using an Internet and postal mail, airlines are free contend that the Department has not airline’s service. Similarly, South to voluntarily accept customer shown that this type of requirement is African Airways and Condor state the complaints through other methods such needed. More specifically, British proposal as drafted is burdensome and as telephone. We also point out that, as Airways notes that the timeline is flawed because carriers would have to is currently allowed for U.S. carriers, a unnecessary and overly burdensome respond in 60 days to both customers foreign carrier can comply with the and would force carriers to divert and anyone else that ‘‘attempted’’ to use requirement to provide contact personnel to unnecessary administrative their service. They also note that the information on an e-ticket confirmation and recordkeeping functions. Qantas proposal fails to give carriers any or itinerary by including a link to a states that it does not see the need to discretion in refusing to respond to website containing the complaint single out the airline industry for repetitive or frivolous complaints. With information in lieu of displaying the mandatory requirements related to regard to complaints received through entire text of the contact information, customer response times and that the social networking mediums, U.S. and which will take up even less space on carrier already aims to provide foreign carriers and carrier associations an e-ticket and reduce cost. It is our substantive responses in less than 60 all oppose any mandate to communicate opinion that requiring complaint days. IATA suggests that, if adopted, to passengers through such mediums. contact information on e-tickets and, any final rule should include a They recommend that the definition of upon request, at each ticket counter and provision allowing an airline to stop the complaint exclude complaints sent by boarding gate instead of just on websites clock by providing a provisional passengers to carriers’ Facebook or will be beneficial to consumers since a response. Lufthansa makes a similar Twitter accounts. large number of passengers do not have suggestion that the Department allow for The consumers and consumer groups access to the Internet while traveling a ‘‘provisional’’ response to a customer’s that commented generally support and would not be able to access the concerns within the 60 day time frame requiring carriers to acknowledge and complaint contact information through in the event it cannot provide a full respond to complaints within the time the airlines’ websites. detailed response. A number of carriers frame set forth in the NPRM. We are not adopting the suggestion such as Virgin Atlantic also recommend Flyersrights.org states that U.S. that carriers be required to provide that any final rule adopted include an passengers should have an avenue to consumers information as a general exception to the time frame established file a complaint with a foreign carrier matter on how to file complaints with to respond to complaints for and to expect a timely and substantive DOT. That suggestion is beyond the extraordinary circumstances, such as response. CTA states that U.S. airline scope of the notice and is not wise since the Icelandic volcano incident, as the customer service personnel should be it might direct consumers away from volume of complaints resulting from responsible for handling any foreign

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alliance partner complaint and believes Department continues to believe that it proposed to implement an inflation there should be a clear way to contact is important that this definition include adjuster for these minimum DBC limits. foreign carriers through the Internet or not just problems which a person We sought comments on whether the by telephone number provided on the experiences when using an airline’s proposed increases in the DBC limits homepage of the airline. Very few services but also problems encountered and the periodic adjustment are called consumers or consumer groups by a person attempting to use an for and, if so, whether the increased commented on the issue of complaints airline’s services (for example, if he or amounts are reasonable. We asked sent through social networking sites. Of she had problems while attempting to whether we should completely those that did, AAPR states that social book or cancel a flight on the carrier’s eliminate the DBC limits and require networking sites are not an appropriate website). Carriers are not required to carriers to pay DBC based on 100%/ venue for filing complaints though it respond to general complaints from 200% of a passenger’s fare without supports the requirement for foreign members of the public. We are requiring limit, and whether the current 100%/ carriers to acknowledge a complaint a carrier to respond to complaints from 200% formula (depending again on the within 30 days and send a substantive individuals that had a problem when length of the bumped passenger’s delay) response within 60 days, as does the they used or attempted to use its should be increased to, for example, NBTA. services. As with other portions of this 200%/400% of a passenger’s fare. DOT Response: We have decided to section, foreign air carriers are only Comments: Eighteen individuals and require foreign carriers to acknowledge required to respond to complaints from consumer organizations, in addition to receipt of a complaint within 30 days consumers that are related to a carrier’s over 60 individuals who participated on and provide a substantive response to services being marketed in the U.S. and the Regulation Room website, provided passengers within 60 days, as is its flight to or from the U.S. comments on the oversales proposals. currently required of U.S. carriers. We We are persuaded by the commenters The majority of these commenters believe that 30 days to acknowledge a that the Department should not mandate support increasing DBC limits. Some complaint and 60 days to provide a that U.S. and foreign carriers respond to commenters, however, oppose passenger with a substantive response complaints sent through social calculating DBC amounts based on the allows carriers adequate time to networking sites. Carriers do use such passenger’s fare, arguing that it will investigate and respond appropriately. sites to invite the public to provide carriers an incentive to bump We are not convinced by arguments put communicate with them and perhaps passengers with the lowest fare. As an forth by commenters that suggest 60 even to monitor public opinion about alternative, one individual suggests that days is not enough time to provide a their practices. However, we can DBC should be based on a fixed amount. substantive response. We note that more appreciate concerns that such sites are Another commenter suggests that DBC than one carrier suggests that 60 days is not intended to be a mechanism for amounts should be based on the length a reasonable amount of time in which to handling individual consumer of delay. respond. complaints. In recognition of these A number of individual commenters We acknowledge and agree with somewhat competing interests, the final go further by suggesting that the industry commenters that it may not be rule makes it clear that U.S. and foreign Department should abandon the possible in all instances to provide a carriers need not to respond to such oversales rule and ban oversales. These final reply to a passenger within 60 complaints so long as (1) the carrier’s commenters reason that a ticket is a days. The rule speaks of a substantive primary page on that social networking contract between a passenger and a carrier and that when the carrier cannot reply, which is not necessarily a final site clearly indicates that it will not reply. By substantive response, we mean honor the ticket, it should run a bid or reply to complaints filed via that a response that addresses the specific auction by continuously increasing the medium, and (2) on that page the carrier problems about which the consumer has offer to volunteers until enough directs the consumer to the mailing complained. This type of response often volunteers come forward. Most address, e-mail address, or website but not always results in a resolution of commenters on Regulation Room location for filing written complaints. the complaint. If a carrier is actively support eliminating DBC limits though The Department believes this approach investigating a complex complaint and a number of these commenters support takes into account the difference is not able to conclude the investigation a DBC amount based on 200%/400% of between social networking sites and the within 60 days, it is still likely to know the passenger’s fare instead of the traditional one-on-one methods of text more at the 60-day point than it did current 100%/200% of the passenger’s when it acknowledged the complaint. communication (e.g. a letter, email, fare. The airline can update the complainant printed complaint form, or Internet Among the few individual with all known information prior to the complaint form) while ensuring commenters who oppose increasing 60-day mark by sending a substantive passengers know how to file a DBC limits, one commenter questions response, continue its investigation, and complaint that will result in a response whether raising DBC limits would result thereafter send the final reply later. from the carrier. in the reduction of the number of Regarding carriers’ suggestions for an 6. Oversales passengers being bumped. Another exception for complaints concerning commenter states that increasing DBC unusual events such as the Icelandic A. Denied Boarding Compensation limits to $650/$1,300 would only volcano, the Department believes that Limits, Rates, and CPI–U Adjuster benefit passengers whose fare is more such an exception is not necessary as The NPRM: We proposed to increase than the current limits (i.e., $400/$800 many consumers complain about the minimum for denied boarding one way). One commenter is concerned similar issues associated with such compensation (DBC) limits from the about the possibility that in response to events (e.g., delays, cancellations) and current amounts of $400 or $800 the raised DBC limits and amounts, carriers generally create form letters in depending on the length of the bumped carriers would increase the required which to respond substantively to most passenger’s delay to $650/$1,300 to take check-in time for the purpose of being such complaints. into account fully the increase in the eligible for DBC. As for the definition of a complaint to Consumer Price Index—All Urban We also received comments on a which carriers must respond, the Consumers (CPI–U) since 1978. We also variety of other issues. With respect to

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the proposed bi-annual adjustment on that as a result of the proposal, many Most foreign carrier commenters also DBC amounts based on CPI–U, consumers will be harmed by increased oppose the CPI-based bi-annual Consumers Union as well as several fares due to the windfall that the new adjuster, arguing that air fare changes in commenters on Regulation Room DBC proposal will provide to a small the past are not related to CPI. The expressed their full support for the number of passengers. National Airlines Council of Canada proposal. FlyersRights.org suggests that The majority of foreign carriers and argues that the proposal ignores the fact we should declare it to be a deceptive carrier associations oppose the proposed that fares paid by passengers are practice to give boarding priority to increase in the DBC limits to $650/ significantly lower than what they were passengers who checked in later but $1,300. Several commenters argue that ten or fifteen years ago, accounting for paid a higher fare. In addition, increasing DBC limits will reduce the the inflation. Qantas and JetStar FlyersRights.org recommends that we number of passengers who volunteer to Airways state that the interval for the ask carriers to increase offers to be denied boarding and in turn increase CPI–U based adjuster should be every passengers solicited to volunteer. the number of passengers who are five years instead of two years to avoid Nine U.S. carriers and carrier involuntarily bumped, a result that is excessive administrative costs to associations as well as 27 foreign counter to the goal of the oversales rule. implement the changes. carriers and carrier associations Some commenters contend that the DOT Response: With respect to the commented on the oversales proposals. Department has failed to provide DBC limits increase, we have come to ATA states that it does not oppose the evidence showing that the current DBC the conclusion that the proposed $650/ proposed increase to the DBC limits to amounts are inadequate and also failed $1,300 amounts are not only reasonable $650/$1,300 but questions the to recognize that air fares have but also necessary. We disagree with effectiveness of such an increase in decreased in ‘‘real’’ terms during the past carriers’ remarks that the increase in the reducing the number of passengers decade. IATA and several foreign DBC limits is a disincentive for being involuntarily bumped. According carriers operating long haul passengers to volunteer for denied to ATA, increasing DBC limits may international flights to and from the U.S. boarding and will result in an increase provide incentives to passengers who raise the concern that passengers on in the number or rate of passengers who would have otherwise volunteered to those flights will most likely get the are involuntarily denied boarding. To hold out, hoping to be bumped higher limit of $1,300 in an oversales the contrary, if the DBC limits are involuntarily. ATA opposes eliminating situation due to the infrequent schedule, increased, carriers will have a greater incentive to seek volunteers through the DBC limits, contending that DBC is and these passengers, according the meant to compensate passengers for the increasing the value of the commenters, will get a windfall for their loss of time only, because passengers compensation they offer to volunteers in mild inconvenience. Some long haul retain the value of the fare by accepting order to avoid the higher DBC payments carriers also insist that the Department’s alternate transportation provided by to involuntarily bumped passengers. proposal is aimed at addressing the fare carriers. Delta Air Lines does not oppose The ultimate result is that involuntary unbundling practice by most U.S. the proposed increase of DBC limits but denied boarding should decrease while carriers and these foreign carriers’ suggests that the new DBC limits should both volunteers and passengers who bundled fares would be subject to not be applied to airfare purchases that must involuntarily be denied boarding inequitable and discriminatory occur before the effective date of the will receive increased compensation treatment under this proposal. IATA final rule. On the other hand, the that more accurately reflects their Regional Airline Association (RAA) further comments that the proposed inconvenience. opposes the increase of DBC limits to $1,300 DBC limit is disproportionate to Although it is our firm belief that the $650/$1,300, asserting that these the value of time that a passenger DBC limits at the level of $400/$800 increases far exceed the costs of most denied boarding involuntarily may lose tend to be insufficient to compensate regional airfares. due to the delay. The Air Transportation the passengers who are involuntarily Southwest Airlines asserts that the Association of Canada and National denied boarding for their inconvenience current 100%/200% of one-way fare Airline Council of Canada, on the other and loss of time, we maintain that the formula works well and if the hand, argue that the increased DBC basic structure of the regulatory regime Department worries about the impact of limits will penalize foreign carriers for oversales remains sound. In that fare unbundling practices on the DBC operating short flights, as these limits regard, we are declining to adopt the value, it should require that the carriers far exceed the cost of air fare for those suggestion of some commenters that the refund all ancillary fees in the event of flights. IACA argues that the proposal Department should eliminate oversales, instead of raising the 100%/ interferes with the European Union (EU) involuntary denied boarding and 200% rates to 200%/400%. RAA avers laws and may create uncertainty for require carriers to run auctions until that the DBC limits should be 100%/ carriers and passengers. Several they obtain sufficient numbers of 200% of the fare, and any adjustment to European carriers suggest that the U.S. volunteers. As we have repeatedly DBC limits should be based on fare oversales rule should be harmonized stated in the past, the benefits to most changes. Spirit Airlines and Virgin with the EU rule. consumers of a well-controlled America both oppose the increase of The majority of foreign carrier oversales system outweigh the DBC limits, questioning the economic commenters firmly oppose eliminating inconvenience experienced by a few. By soundness of such increases. Virgin DBC limits, averring that without a contrast, an unlimited auction system America argues that the new proposal is limit, the DBC amounts would be could increase the cost of oversales to a departure from the hybrid calculation exorbitant, especially for many long- carriers to a prohibitive level, which method that the Department established haul carriers who do not unbundle would cause airlines to be much more in 2008. Virgin America also points out fares. Virgin Atlantic and Air New conservative in overbooking flights. that in 2007 the Department rejected the Zealand prefer a fixed amount for all Considering the reduced schedule proposal to implement a CPI-based involuntary denied boarding situations, frequency and capacity during recent adjuster on the DBC limits. Spirit reasoning that this approach will avoid years, such an approach would result in Airlines takes a similar position as the complexity in calculating DBC fewer affordable seats being available to Virgin America and further contends amounts based on fares. the public in general. Running an

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unlimited auction for volunteers is both the most deeply discounted fares, and cost carriers have a better chance of time-consuming and complex, and who, by virtue of the low fares, are most limiting their DBC exposure to the lower requiring such a system may impose likely to be selected as the candidates rate of 200% of the fare with a $650 other negative impacts on all for involuntary denied boarding. limit. passengers, such as causing more flight Realistic DBC rates are also a necessary To ensure that there isn’t any delays, increasing the number of incentive to encourage careful confusion as to how DBC is calculated, misconnections, and requiring earlier overbooking practices on the part of we have added a definition for ‘‘fare’’ in check-in times. carriers. Precisely for these reasons, we section 250.1. Under this definition, We are also not adopting some are raising the 100%/200% rates in the carriers do not need to take into account consumer commenters’ suggestion that involuntary DBC calculation to 200%/ any ancillary fees and/or charges for we should set a minimum standard for 400%. In our opinion, this new formula, optional service paid by passengers the amount of compensation offered to in conjunction with the raised DBC when calculating DBC amounts based passengers solicited to volunteer for limits of $650/$1,300, strikes a balance on the passenger’s fare. In relation to denied boarding. We maintain that other between permitting carriers to continue this definition, however, we emphasize than the requirement that carriers must to overbook flights, but limiting the in section 250.5 that when a passenger solicit volunteers before bumping any carriers’ financial burden from is denied boarding involuntarily, the passengers involuntarily, the procedures compensating passengers due to carrier must refund all unused ancillary for solicitation of volunteers and the oversales, and adequately protecting fees paid by that passenger. Carriers do amounts of incentive offered to passengers’ interests in oversales not have to refund any ancillary fees potential volunteers should remain situations. that will be applied to the alternate within carriers’ discretion because this transportation to the extent those same We are aware that the amended DBC aspect of the system has worked well. services are provided to the passenger. formula and limits may have a larger The Department believes that the For instance, when a passenger denied impact on carriers operating regional involuntary DBC rates and limits set by boarding involuntarily has paid for seat and international short-haul flights, the regulation are effective tools to selection and checked baggage for the because these flights’ base fares are motivate carriers to offer adequate original flight, the passenger should lower in general than the fares of long compensation for volunteers. receive a refund for the seat selection haul flights. RAA has argued in its This final rule also provides that fee if the alternate transportation carriers must pay DBC equal to 200%/ comments that the DBC amounts should arranged by the carrier does not allow 400% of the fare based on the length of be based on 100%/200% of the fare and the passenger to select his/her seat. delay experienced by passengers up to that the $650/$1,300 limits far exceed Conversely, the carrier does not need to the maximum of $650/$1,300. We are the costs of tickets on most regional refund the checked baggage fee if the unconvinced by the argument of some flights. Several Canadian carriers and passenger was able to check in the same industry commenters that the regulatory carrier associations also contended that number of bags for the substitute flight mandated DBC limits should not be the oversales rule as proposed unfairly at no additional cost. increased because airfares have not discriminates against carriers operating We are also clarifying the meaning of increased ‘‘in real terms.’’ Although the shorter flights by requiring the same the term ‘‘minimum DBC amounts’’ in ‘‘fare,’’ in terms of the dollar amount limits of compensation depending on this final rule as some commenters seem reflected on a passenger’s ticket the length of delay, regardless of the to be confused by the term. These confirmation or ticket receipt, may not length of the flights from which the commenters believe that the Department seem to be increasing over the past passengers were involuntarily denied is mistaken in referring in the NPRM decade, the actual cost for a passenger boarding. The Department has fully preamble to ‘‘minimum’’ DBC amounts to travel by air, however, has indeed considered these comments but remains when it should be referring to increased. Such increase in air travel unconvinced that the consequences of ‘‘maximum’’ DBC amounts. We cost is not reflected in the base ticket our amendment would be detrimental to recognize that the source of the prices that are used as the basis for these carriers. It is important to confusion was the term ‘‘maximum’’ calculating DBC amounts. The increase understand that the $650/$1,300 limits used in the rule text under section of the cost to passengers is evident by come into play only when the DBC 250.5. The term ‘‘minimum DBC the fact that a passenger now must pay, formula would cause a passenger’s DBC amounts’’ as used in the preamble of the in addition to the base airfare, for many to exceed the limit. To the extent the NPRM refers to the lowest amount of items that were included in the fare fare paid by a passenger is low, the new DBC that is due an involuntarily before the unbundling practice became $650/$1,300 limits have no effect. Fares oversold passenger when the DBC widespread, such as for checked in the $49–$59 range are still regularly calculation based on the passenger’s baggage, food and beverage, in-flight sold and even under the 400% one-way fare results in an amount entertainment, preferred seating, calculation formula, the DBC amounts exceeding the DBC limits (previously advance seat selection, telephone would not even come close to the $800 $400/$800 and increased to $650/$1,300 reservations, etc. It is the Department’s limit under the previous rule. in this Final Rule). For example, when view that carriers may continue to Furthermore, compared to long-haul a passenger on a domestic flight who explore other ways to further unbundle flights that are usually less frequently paid $550 one-way for a non-stop flight fares, thus leading to base ticket prices scheduled, regional and low cost is delayed for 1 hour 20 minutes due to staying flat or declining. The carriers typically have more options having been involuntary denied Department believes that DBC amounts with regard to finding alternate boarding, the initial calculation of DBC based on 100%/200% of the base fare transportation in a timely fashion for due is based on 200% of the fare, which are no longer adequate, under many passengers who are denied boarding amounts to $1,100. However, the circumstances, to address the involuntarily. Thus, passengers on these maximum amount of DBC a carrier is inconvenience and consequential short haul flights often have a better required to pay this passenger under our damages suffered by passengers who are chance of getting to their destination or rule would be $650. We continue to use denied boarding involuntarily, the next stopover without extensive the term ‘‘maximum’’ in the rule text. especially passengers who purchased delay. Consequently, regional and low Accordingly, in order to avoid further

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confusion, we have used the term ‘‘DBC the cash or check DBC payment involuntarily and to anyone else upon limits’’ instead of the term ‘‘minimum otherwise required. One issue we did request. These tables are meant to be DBC amounts’’ in the preamble of this not address in the previous rule is used by carriers as a quick reference to final rule. whether any mandatory fees, such as assist bumped passengers so they can With regard to an automatic inflation service fees, that some carriers charge better understand the DBC limits and adjustor for DBC limits, the Department for using the voucher should be taken calculations when those passengers may has decided to adopt the proposed bi- into account when considering the be confused and under time pressure annual adjustment on DBC limits. In value of the benefit of the voucher during an involuntary bumping doing so, we note our disagreement with offered. In this final rule, we clarify that situation. some carriers’ comments that such an any fees that passengers must pay in We have also added a definition for adjuster is not justified because air fares order to use the voucher for future travel ‘‘alternate transportation’’ in section do not reflect changes in the CPI–U. must be considered when determining 250.1 to capture the two components of DBC is not meant to fully compensate the value of the voucher. For instance, this term. The first component is what passengers for the loss of transportation, if the cash or check DBC payment for a was described as ‘‘comparable air because carriers are obligated to offer passenger involuntarily denied boarding transportation’’ under the previous rule. alternate transportation for the is required to be $400 under the 200%/ In order to qualify as ‘‘alternate passengers or refund the passengers’ 400% calculation, and the passenger transportation’’ and consequently allow fare; therefore, fare value change is not agrees to accept a travel voucher in lieu the carrier to limit its DBC exposure to directly relevant. DBC is meant as a of that cash or check payment and there less than the 400% rate, any air form of liquidated damages to is a service fee of $50 to redeem the transportation offered to passengers compensate passengers for their voucher, the minimum voucher value involuntarily denied boarding as a inconvenience, loss of time, and other that the carrier must offer to the substitute for the original flight must be incidental and consequential costs passenger is $450. The carrier must operated by a carrier as defined in Part associated with the delay (e.g., food, inform passengers, whether volunteers 250, i.e., a U.S. certificated or commuter lodging, ground transportation, or involuntarily oversold, of any air carrier or a foreign carrier that has communication etc.). To simplify the restrictions imposed on the use of the been duly authorized by the Department DBC calculation and to expedite the voucher. In addition, as described in to operate scheduled air services. Thus, process, the Department uses a formula detail below, it is unfair and deceptive if the carrier offered a substitute flight that is tied to the one-way airfare paid for a carrier to offer a travel voucher as operated by an air taxi operator that is by the passenger, which does not compensation, particularly in an necessarily mean DBC amounts should not a commuter carrier, that flight oversale situation, without advising the ‘‘ be changed according to the levels at would not qualify as alternate person to whom the voucher is offered ’’ which the average airfare has changed. transportation. Furthermore, in order to of any restrictions that may apply to the qualify as ‘‘alternate transportation’’ We observe that the costs for food, use of the voucher, such as service fees lodging and other accommodations and carriers must offer a confirmed to redeem the voucher, and advance reservation on that alternative flight. commodities passengers need in an notice requirements or expiration dates. oversales situation have all increased in The second component of the concept of correlation with inflation. In addition, Finally, we have made non- ‘‘alternate transportation’’ includes non- as noted in the NPRM and further substantive revisions to the text of air transportation (such as bus, rail, or discussed above, the actual total cost of sections 250.5 and 250.9 in order to taxi) and air transportation that does not flying is likely to have increased, while provide the most straightforward meet the definition above of ‘‘alternate what is commonly referred to as the explanations of the methodology transportation’’ arranged by the carrier. ‘‘fare’’ may not have increased or applicable under different In order for these modes of increased as much as a result of the circumstances for calculating DBC transportation to qualify as ‘‘alternate carriers’ current practice of unbundling amounts. In a counterintuitive way, the transportation,’’ the carrier must obtain fares, i.e., charging extra for services previous rule describes the maximum the passenger’s consent that the once provided as part of the airfare. Our DBC rate (200% at that time) and then passenger will accept the proposed form decision to adopt the bi-annual inflation states the circumstances under which of transportation in lieu of air adjustment provision for DBC limits is the DBC amount will be reduced by transportation. To further explain the also not contradictory to our decision half. We have encountered confusion on concept and application of ‘‘alternate made two years ago that we would take the part of both carriers and the public transportation,’’ we emphasize that up the issue de novo. We have indeed regarding this somewhat convoluted carriers are free to offer substitute taken a fresh look at the issue during description. In this final rule, we transportation that does not meet the this rulemaking and ultimately reached discuss the DBC calculation for definition of ‘‘alternate transportation’’ the conclusion that the bi-annual domestic flights and for international in this rule (e.g., a flight on an air taxi inflation adjustment is the most efficient flights separately. In each category, we that is not a commuter carrier, way to address the impact of inflation specify the amounts of DBC required transportation on a scheduled flight on the DBC limits. under each of the three circumstances without a confirmed reservation, or on We are also addressing the issue of based on the length of delays incurred a charter flight, or surface airline travel vouchers vis-a`-vis DBC in by a passenger using alternate transportation), but the bumped this final rule. Carriers frequently offer transportation due to the involuntary passenger has ‘‘veto rights’’ over such free or reduced-rate air transportation, denied boarding: no compensation; arrangements. If the bumped passenger most commonly in the form of airline 200% of the fare subject to the $650 declines this ‘‘non-alternate’’ travel vouchers, to passengers denied limit; and 400% of fare subject to the transportation, he or she is due DBC at boarding involuntarily as an alternative $1,300 limit. These categories and the 400% rate because the carrier did to the cash or check DBC payment classifications are summarized in the not offer ‘‘alternate transportation’’ as required by our rule. Our previous rule two tables that we added in the written defined in section 250.1. However, if the required that the value of such a notice that carriers must provide to passenger chooses to accept the carrier- voucher must be equal to or greater than passengers who are denied boarding offered transportation that does not

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qualify as ‘‘alternate transportation,’’ the include non-revenue tickets such as note that under the definition of ‘‘zero carrier is free to avail itself of the lower airline employee passes. With respect to fare ticket,’’ a passenger who paid a 200% DBC rate in the case of rerouting the form of DBC payment to zero fare nominal monetary amount in within 2/4 hours, and need not pay DBC ticket holders, several commenters are connection with a ticket may still at all if the non-alternate transportation in support of compensating those qualify as a zero fare ticket holder. accepted by the passenger will arrive at passengers in the same form of Therefore, a carrier must in those cases the passenger’s destination less than one ‘‘currency’’ that they used to acquire the treat a passenger as a zero fare hour after the planned arrival time of tickets. ATA state that carriers should ticketholder even if the passenger’s fare the passenger’s original flight. The have the discretion to pay DBC in the is not ‘‘zero’’ in a literal sense, e.g., passenger has no such veto right over same form of ‘‘currency,’’ in travel where the passenger has paid by cash or ‘‘alternate transportation.’’ If the carrier vouchers, in cash/check, or in any credit card the requisite taxes or offers alternate transportation and the combination thereof. ATA reasons that ‘‘processing fees’’ and ‘‘service fees’’ for passenger declines it, the carrier is still a mandatory cash payment requirement the redemption of travel vouchers or free to limit DBC to 200% or zero as would create problems for carriers frequent flyer miles. On the other hand, applicable. because gate agents cannot assign a cash if a passenger has paid substantial Also in section 250.1, we have deleted value to the passenger’s fare as they do monetary value for the air the definitions for ‘‘sum of the values of not have information on the lowest transportation, e.g., paid cash for an the remaining flight coupons’’ and comparable fare sold on the same flight. economy class seat and used frequent ‘‘comparable air transportation’’ as these On similar grounds, the National flyer miles to upgrade to a business terms are no longer used in the rule text. Airlines Council of Canada avers that it class seat, this passenger should not be B. Zero Fare Tickets is virtually impossible to figure out the treated as a zero fare ticket holder if value of a ticket in the comparable class bumped from the flight and the amount The NPRM: We proposed to clarify in of service ‘‘on the spot’’ as it is subject of DBC the passenger receives should be the rule text that DBC must be offered to a wide range of variables. based on the economy class fare paid by to ‘‘zero fare ticket’’ holders who are JAL opposes the inclusion of zero fare that passenger. However, the carrier involuntarily denied boarding. We ticket holders under the oversales rule, must credit the amount of frequent flyer asked the public to comment on stating that it should be left to a carriers’ miles used for an upgrade back to the whether these passengers should be commercial judgment as to whether to passenger’s account if any substitute protected by the oversales rule, and compensate zero fare ticket holders; JAL transportation provided is not in the whether the proposed calculation further states that the Department class of service that he or she used the method for their DBC amounts is should not assume that carriers’ frequent-flyer miles to acquire. reasonable (i.e., the ‘‘passenger fare’’ for decisions would be adverse to purposes of DBC would be the fare of passengers’ interests. Also in opposition With respect to the form of DBC for the lowest priced ticket paid for a to the proposal, South African Airways zero fare ticket holders, some consumer comparable class of ticket on the same states that such a requirement would commenters urge the Department to flight). We also invited the public to drastically reduce the carriers’ ability to require all DBC to be paid in cash or suggest any alternative method of offer zero fare tickets. check while many industry commenters establishing denied boarding DOT Response: The majority of either oppose paying DBC to zero fare compensation for zero fare ticket commenters from both consumer and ticket holders or at a minimum, argue holders, including whether we should industry representatives seem to agree that the Department should allow those allow carriers to compensate these that certain types of zero fare ticket passengers to be compensated by means passengers using the same ‘‘currency’’ holders should be compensated when other than cash or check. The (e.g., frequent flyer miles or vouchers) in they are denied boarding involuntarily Department has fully evaluated the which the tickets were obtained. in an oversale situation. The reasons presented by the carriers for Comments: The individual and Department agrees with most industry why we should not mandate cash or consumer organization commenters commenters that compensable zero fare check DBC payments to zero fare ticket generally support affording zero fare tickets should exclude ‘‘non-revenue’’ holders, but we have decided to apply ticket holders who are involuntarily tickets as that term has traditionally the same DBC standard by requiring denied boarding the same protection been used in the industry. In that carriers to offer DBC to these passengers and rights as passengers with other regard, we have added a definition in in the form of cash or check. DBC in tickets. Regarding the form of the final rule that defines ‘‘zero fare non-monetary forms such as frequent compensation, some commenters tickets’’ to cover only tickets acquired flyer miles would not compensate a suggest that compensation may be in the with frequent flyer miles and airline passenger for food, lodging and other same form of ‘‘currency’’ as that was travel vouchers, as well as consolidator expenses that may be associated with used in acquiring the tickets; others are tickets that are purchased with money delays caused by the denied boarding. in support of the Department’s proposal, but do not display a dollar amount on Furthermore, we reject some i.e., providing zero fare tickets holders the ticket. In our view and the view of commenters’ notion that requiring DBC in the form of cash or check based most commenters, zero fare ticket carriers to pay cash to these passengers on the lowest fare paid for a ticket on holders provided something of value in may result in harm to consumers, such the same flight for a comparable class of exchange for their air transportation and as making frequent flyer tickets more service. Some commenters support when they are bumped, they should be expensive and restrictive for consumers. payment in either form. compensated. The Department also We note that under section 250.5(c), The majority of the industry wishes to point out that, for most non- carriers may offer free or reduced rate commenters do not oppose applying the revenue tickets such as airline employee air transportation to any involuntarily oversales rule to zero fare ticket holders and employee family travel vouchers, bumped passengers, including zero fare who are involuntarily denied boarding. the terms and conditions accompanying ticket holders, in lieu of cash payment. However, these commenters are these tickets have already explicitly Carriers should not assume that zero adamant that zero fare tickets covered excluded them from any compensation fare ticket holders would almost always under the oversales rule should not for involuntarily denied boarding. We opt to receive cash or check

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compensation, as the cash or check DBC the oversales rule in writing and orally result in inaccurate or incomplete amount is calculated with the lowest prior to the negotiation, and providing information being passed on to comparable fare as the base amount. We them information on whether they will consumers, causing further confusion. also disagree with some carriers’ receive confirmed seats and when they DOT Response: As we have stated in suggestion that procedurally paying are expected to arrive at the destination the NPRM, we believe disclosure in an DBC in cash or by check based on the on the alternative flight. CTA also oversales situation is essential for the lowest comparable fare is unworkable recommends that carriers provide their passengers to fully understand their because the gate agents may not have boarding priority rules to the passengers rights and options. After thoroughly the lowest fare information ‘‘on the when soliciting volunteers. evaluating all the comments, we have spot.’’ Just as is permitted for DBC FlyersRights.org suggests that carriers decided to adopt some but not all of our payment to passengers who purchased should be required to publish their proposals in this regard. We will discuss their tickets with money, carriers are principal boarding priority rules on each proposal individually. being afforded up to 24 hours after the their websites and inform passengers of With respect to the requirement that involuntary denied boarding occurred to their risks of being bumped before ticket carriers must verbally offer the cash tender a check to the affected sales. Comments posted on the website option when they verbally advise passengers. We believe the 24-hour of Regulation Room generally support passengers bumped involuntarily that a window is sufficient for the carriers to our proposal of requiring carriers to carrier voucher as a form of DBC is obtain necessary fare information and verbally inform passengers of the cash available, we have reached the calculate the appropriate DBC amount or check option for DBC payment if conclusion that this requirement is in for the zero fare ticket holders. carriers verbally offer these passengers fact critical to ensuring that passengers In calculating the DBC amounts for travel vouchers as DBC. These are fully informed when they are given zero fare ticket holders, we clarify in the commenters also support the proposal the opportunity to choose what form of rule text as well as here that the that both passengers solicited as DBC they are willing to take. Although applicable lowest comparable fare paid volunteers and passengers denied the cash option is clearly stated in the by cash, check, or credit card refers to boarding involuntarily should be clearly written notice that carriers are required the fare in the same class of service as informed of their options, the amount of to provide to passengers denied the zero fare ticket. By adding a new compensation they can receive, and boarding involuntarily, it is likely that definition for ‘‘class of service,’’ we details of alternative flights. They also due to the time pressure and occasional explain that we are referring to the recommend enhancing disclosures confusion associated with involuntarily lowest fare within the same service class regarding oversales prior to and at the denied boarding, passengers may not or cabin such as first class, business time of ticket sales, such as requiring have the opportunity to fully review the class, economy/coach class, or economy carriers to ask whether a passenger is written notice before they choose the plus (premium economy) class. For willing to be bumped at the time of form of DBC that they are willing to instance, when a passenger holding a making the reservation and to provide accept. Thus, it is the Department’s zero fare ticket in economy plus class is notice to all passengers 24 hours before view that when carriers verbally offer a bumped, as the base fare for DBC the departure if the flight is oversold. voucher option but omit (either calculation purposes, the carrier should ASTA supports the idea of disclosing inadvertently or intentionally) identify the lowest fare paid by cash, oversales rule at the time of ticket mentioning the cash option, it is unfair check, or credit card in the economy purchase and advising passengers of the and deceptive to the passengers. plus class on that flight, not the risk involved if they do not secure a seat Furthermore we consider that to the economy class. assignment. ASTA also recommends extent carriers are willing to explain to that carriers be prohibited from ‘‘gaming passengers their option of receiving C. Disclosure Requirements the system’’ by making it impossible to carrier vouchers as DBC payment, the The NPRM: In the NPRM we proposed obtain seat assignments. ASTA points additional time needed to add a few to require that (1) carriers offer cash/ out that all disclosures regarding words about the cash/check option check DBC options verbally if they oversales should be made earlier should not be substantial. In any event, verbally offer a travel voucher as DBC to because providing an explanation to if carriers are concerned about the passengers who are involuntarily denied passengers at the gate is time consuming additional time needed to verbally boarding, and (2) carriers inform and it may create chaos and passenger inform passengers of all options, it is passengers solicited to volunteer for confusion. permissible to not verbally advise denied boarding about their principal Most carrier and carrier association passengers of DBC options at all. They boarding priority rules applicable to that commenters oppose all the proposed can simply hand the passengers a specific flight, the availability of verbal disclosure requirements. These written notice. alternate transportation, and all material commenters are generally concerned On similar grounds we have decided restrictions on the use of any about the additional time they assert to adopt the proposed requirement that transportation vouchers that may be would be needed for gate agents to carriers must disclose any material offered as compensation for giving up comply with the various verbal restrictions on airline travel vouchers the passenger’s reservation. We asked notification requirements, arguing that offered to both passengers solicited to be whether there are any other forms of these requirements would impose volunteers and passengers denied disclosure that may better inform hardship on the agents who are under boarding involuntarily. Some carriers passengers being solicited to volunteer time pressure to board passengers and argue that the process of informing or those involuntarily bumped of their close out the flight. These commenters passengers is too time-consuming. The rights and carriers’ obligations. also contend that this information is Department disagrees although we note Comments: Most consumer advocacy available in the written notice and assert that the more time-consuming such a groups and associations support that verbal notification is not necessary notice is, the more restrictions must imposing more disclosure rules and may be hard to enforce. Some apply to the voucher, necessitating more regarding oversales. CTA proposes more carriers also point out that if the gate than ever that notice of such restrictions disclosure to passengers solicited as agents are not familiar with the be provided. To provide a brief volunteers, such as informing them of oversales rule, verbal notification may summary covering all the material

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restrictions on vouchers should not take considering all the comments in this the last person to be bumped from an more than a few moments. For example, regard, we are convinced that these oversold flight. We do agree that when the carrier announces at the gate proposals, as well as some other passengers seeking the lowest fare on a that it needs volunteers who will disclosure measures not proposed by us flight are most likely budget-conscious receive a roundtrip voucher for any but recommended by consumer consumers and are most likely to be the destination within the continental U.S., commenters, may not achieve the ones bumped by some carriers. In this to add a description of conditions on the expected goal. Although we disagree final rule, we have adopted provisions use of vouchers such as ‘‘the vouchers with some carriers’ comments that to increase the DBC limits and rates are not transferrable, subject to certain providing such information will only based on the passengers’ fare which blackout dates and service charges and assist some passengers to ‘‘game’’ the should help them. will expire after two years * * *’’ would system to the detriment of the majority With respect to the proposal to not require more than a few moments, of other passengers, we note that require disclosure of the availability of and carriers may encourage anyone who providing such information at the gate alternate transportation at the time of wants to learn more details to speak to is time consuming and carriers’ volunteer solicitation, we have come to the gate agent directly. Typical principal boarding priority rules can be the conclusion that such a requirement examples of material restrictions and found in the written notice prescribed is unworkable under most conditions are expiration dates, in section 250.9, as well as on most circumstances. The availability of blackout dates, advance booking carriers’ websites and/or in the contracts alternate transportation is a fluid issue requirements, transferability of carriage. We conclude that the burden and is subject to many variables. Due to restrictions, administrative fees and on carriers of verbally providing such these variables, what carriers may offer flight choice restrictions. We emphasize information at the boarding gates at the time of volunteer solicitation that this is not an exhaustive list and by outweighs the benefits. Furthermore, we could change by the time the alternate the term ‘‘material’’ we refer to all the reject some commenters’ suggestions transportation is provided to the restrictions and conditions that might that all passengers should be informed volunteer. Should such change occur, reasonably be expected to affect a of the carriers’ principal boarding the expectation created by the earlier passenger’s decision regarding whether priority rules and whether a particular information may cause passengers to accept the voucher. flight was oversold at the time they further confusion and frustration. Thus, Since the substance of any restrictions make their reservations. We note that we are not going to require such and conditions on the airline vouchers oversales might not occur until close to information to be provided at the time varies by carrier and is not incorporated the departure time or date and, due to of volunteer solicitation. in the general written notice mandated no-shows, many overbooked flights will D. Covered Entities and Other by section 250.9, we require that any not be oversold on the day of departure. Miscellaneous Issues verbal offer of a travel voucher by We believe requiring carriers to provide carriers, either to passengers solicited to The NPRM: The oversales rule these two types of information through currently covers scheduled passenger volunteer or to passengers denied their reservation systems may not be boarding involuntarily, must be service using aircraft with 30 or more beneficial to consumers yet will seats. We solicited comments on accompanied by a verbal explanation of increase the operational costs of any material restrictions and conditions whether the oversales rule should be carriers, depress revenues and limit seat expanded, either in its entirety or imposed on that voucher. In the event availability. These costs and restrictions carriers make a written offer of travel partially, to cover scheduled services ultimately will be borne by the vouchers, but no verbal offer, carriers using aircraft with 19–29 seats and consumers. should provide a written explanation of whether we should allow these flights to the restrictions and conditions on travel Related to the boarding priority rule be oversold at all. vouchers, along with the general written disclosure proposal, FlyersRights.org Comments: CTA believes that the notice required by section 250.9. and some other consumer commenters oversales rule should apply to all flights In adopting these disclosure also suggested that we should not allow of major carriers, regardless of the size requirements, we clarify that we do not carriers to set their boarding priority of the aircraft. Comments from intend to require carriers to give every rules based on the amounts of RegulationsRoom.org generally support passenger who is in danger of being passengers’ fares. FlyersRights.org went applying the oversales rule to all aircraft denied boarding involuntarily a further to urge the Department to sizes. Some of these commenters urge ‘‘personal presentation’’ of their rights. declare that bumping a passenger who the Department to ban oversales on The Department’s goal is to ensure that checked in earlier but who paid a lower small aircraft, arguing that being when carriers opt to verbally provide fare is an unfair and deceptive practice. bumped from those flights is more any information to the passengers, the We cannot agree. With the exception of disruptive and costly to passengers. information is not presented in a unlawful discrimination, the ASTA supports extending the oversales misleading manner regarding any Department has traditionally allowed rule to aircraft with 19–29 seats, stating material terms. carriers extensive flexibility to set their that involuntary denied boarding on In the NPRM, we also proposed to boarding priority rules based on several short-haul flights operated by small require carriers to inform passengers criteria, including passengers’ fares. We aircraft has drastic effects on passengers solicited to volunteer of their principal believe affording carriers such flexibility who are connecting to long-haul flights boarding priority rules and the is an important marketplace tool and and these passengers are often surprised availability of comparable air permits carriers to proactively control after being bumped to discover they transportation. Our intention in the costs of oversales so they are able to have no protection from the proposing these two requirements was continue to offer the maximum numbers Department’s oversales rule. to provide passengers more information of seats to the traveling public. It makes On the carriers’ side, ATA supports upon which they would be able to perfect sense that passengers who pay maintaining the status quo, i.e., determine whether volunteering to give more for a ticket to get the last available allowing overbooking on flights up their confirmed reservations would seat and the right to obtain a full refund operated with aircraft with 19–29 seats be in their best interests. After also want to be assured that they will be and not applying the oversales rule to

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these flights. ATA argues that banning standard that is similar to the approach passengers denied boarding oversales on these flights will threaten taken in the EU oversales rule for flights involuntarily, and to do so up to 24 the existence of small community air of non-EU carriers. Thus, passengers are hours after the denied boarding services and imposing the oversales rule clear that when they are denied occurred. The check may be mailed to on these flights would be too costly to boarding at a U.S. airport, the U.S. the address that a passenger has carriers. RAA also opposes banning oversales rule applies. The carriers have provided. Therefore, it is not required oversales on regional flights, arguing the responsibility to train their staffs to that carriers maintain large amounts of that such a ban would eliminate the be familiar with rules of the cash at airports. We acknowledge the ability of carriers to serve small jurisdictions to and from which they convenience and security features communities, as carriers would not be operate. We note that the EU oversales offered by electronic funds, but have not able to bear the costs of running flights rule has an exception for denied had the opportunity to fully examine with empty seats. RAA also contends boardings that are subject to the benefits and limitations of using this that the denied boarding risk is low on compensation requirements of other procedure as an alternative to cash/ regional flights operated by small jurisdictions. To the extent that flights check DBC payments in this rulemaking aircraft because regional carriers’ load of EU carriers from the U.S. to an EU proceeding. We may further explore this factors lag behind large aircraft state may also be subject to the EU issue in future rulemaking. operators. oversales rule, those carriers should be Finally, we have decided not to adopt DOT Response: The Department has able to comply with both the U.S. and Delta’s recommendation that the revised been persuaded that it should not EU rules (e.g., by paying the higher oversales rule should be applied only to extend the oversales rule to flights compensation amount if the required tickets purchased on or after the operated with aircraft with 19–29 seats. amounts differ). effective date of the final rule. Such Aircraft of this size make up a small and CTA and FlyersRights.org both application would inevitably result in diminishing portion of scheduled- suggest that the Department should not the situation where passengers bumped service operations, particularly in the exempt carriers from complying with from the same flight will be subject to case of the code-share partners that were the oversales rule when the involuntary different rules. Additional delays may the predicate for this proposal. After denied boarding is caused by an occur at the boarding gates when the being bumped from a short-haul equipment change due to factors that are gate agents have to spend additional segment, the cost of paying DBC based within carriers’ control, e.g., crew time to determine the purchase dates of on the fare to a passenger’s downline schedule or maintenance issues. We the tickets in order to determine which destination — up to 400% of the fare have carefully examined this suggestion rule applies. For this reason, we will and $1,300 under the final rule — but are not convinced that this proposal require that all denied boardings and would be an unreasonable burden for is consistent with the underlying other DBC-related processes covered by operators of 19–29-seat aircraft. These rationale of our oversales rule. The this rule that occur on or after the carriers are most likely to be the very Department’s longstanding policy of effective date of the final rule must small entities to which the Regulatory exempting carriers from paying DBC comply with the new rule, regardless of Flexibility Act requires federal agencies when an involuntary denied boarding the transaction dates of the ticket sales. to afford special consideration in was caused by equipment change is We note that this final rule also rulemaking. Based on similar rationale, based on the grounds that in this includes a technical amendment we have also decided that it is not in the situation, the resulting denied boardings concerning reporting of oversales. We best interests of the public to ban were not caused by overbooking, a are correcting a technical inconsistency oversales on these flights because doing practice that absent compensation is in the oversales reporting requirements so will further reduce the capacity of fundamentally unfair to the passengers in section 250.10. One sentence in that flights serving smaller airports and who have paid for confirmed seats but section states ‘‘The reporting basis shall communities and cause price increases. are not permitted to board the flight be flights originating or terminating at or Although not proposed in the NPRM, because their promised seat was sold to serving, a point within the United there are several issues raised by the another person. Accordingly, we will States.’’ The last sentence of that section commenters that the Department feels it not change our rule involving oversales reads: ‘‘No reports need be filed for is important to address in order to that result from substitution of inbound international flights on which clarify what appears to be confusion equipment of lesser capacity. the protections of this part do not associated with the oversales rule. First, Also raised by several foreign carriers apply.’’ Apparently, when the rule was several foreign carriers urge the is the issue of an alternative to ‘‘cash’’ amended many years ago to remove Department to harmonize its oversales payment of DBC. These carriers are applicability to international flights rule with the rules of other jurisdictions, under the impression that in order to inbound to the United States, the such as the European Union. The comply with our rule, they must keep a second sentence quoted above was Department agrees in principle that the large amount of cash (currency) at the added but the first sentence was not U.S. oversales rule should not conflict U.S. airports they serve for the purpose revised to remove the reference to with the rules of other jurisdictions. The of making cash payments to passengers flights ‘‘terminating in’’ or ‘‘serving a Department has worked diligently to denied boarding involuntarily. These point within’’ the United States. The that end, and sees no direct conflict carriers assert that such a cash reserve intent and the practice has been not to between our oversales rule and the rules at their stations in U.S. airports, many include international flights that of other jurisdictions. We disagree with of which are staffed by third-party terminate in the U.S. (i.e., inbound some commenters’ claim that the rule as contractors, imposes security concerns. international flights) in these Form 251 proposed and finalized here will cause Thus, these carriers urge the Department data. This has been clear in paragraphs confusion among carrier staff and to allow them to tender DBC payments (A) and (E) in the instructions to the passengers. With respect to both to passengers in the form of a debit card form (see http://www.bts.gov/programs/ domestic and international flights, the or other forms of electronic funds. The airline_information/forms/pdf/ U.S. rule applies only to denied Department wishes to clarify that under form_251.pdf). We are not aware of any boardings that occur at a U.S. airport, a our rule, carriers are permitted to tender instances in which data for inbound relatively straightforward applicability a check, in lieu of cash payment, to international flights have been

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inadvertently included in Form 251 expressed similar sentiments, noting notes that the complexity of non-airline reports. how they have been surprised by the charges makes listing a full fare with ‘‘all total amount to be paid at the end of a mandatory fees’’ difficult, and would 7. Full Fare Advertising purchase online and their preference to only confuse air travel consumers A. Change in Enforcement Policy know the total amount to be paid because this complexity prevents a true The NPRM: The Department’s price earlier. Some consumers and consumer fare comparison as the actual fare is advertising rule (14 CFR 399.84) states groups go further by suggesting that the obscured by the additional government- that any advertised price for air Department should require that the true imposed taxes and fees. IATA also notes transportation, an air tour or an air tour cost of travel, including ancillary fees, that passengers are made fully aware of component must be the entire price to be disclosed earlier in the booking the purchase price before purchase. be paid by the customer for that process. For example, CTA states that Most foreign airlines support IATA’s transportation, tour or tour component. even if the price advertising rule comments. Some foreign carriers, such requires the disclosure of all mandatory as Singapore Airlines, Qatar Airways, However, the Department’s enforcement fees, consumers may still have trouble and Jetstar Airways, support the policy with regard to this rule has finding out the true cost of travel due to proposed mandate that advertisements permitted sellers of air transportation to the proliferation of many kinds of state the total price to be paid by the state separately from the advertised ancillary fees for optional services. consumer. Many of these airlines state price government-imposed taxes and U.S. carriers and carrier associations that they already advertise the total fees, provided that they are not ad generally oppose the Department price to be paid by consumers due to valorem in nature, are collected by the changing its enforcement policy to regulations of other governments. Some seller on a per-passenger basis, and their enforce the full price advertising rule as foreign carriers expressed concerns existence and amount are clearly written. ATA states that its members about the applicability of this rule to indicated in the advertisement so that support fare transparency, but notes that advertisements on websites that are not the consumer can determine the full the Department declined to revise its domiciled in the United States or price to be paid. The Department has full-fare rule four years ago and directed to United States customers. prohibited sellers of air transportation contends that the airfare advertising Among other industry interests that from breaking out any other seller landscape has not changed since that commented, ASTA and ITSA support imposed fees, including fuel surcharges time in a manner that would justify a this policy shift and note that full fare and service fees, and taxes imposed on change in 25 years of enforcement disclosure is the best way to eliminate an ad valorem basis. policy. ATA notes that several other passenger confusion and ensure that In the NPRM, the Department industries advertise without including passengers understand the total cost of proposed enforcing the price adverting government-imposed taxes and fees, and their air travel. ASTA asserts that the rule as it is written. This proposal states that the air transportation full fare displayed in advertisements would change the existing enforcement industry should not be treated should include all mandatory fees, policy by ending the practice of differently. It asserts that this policy regardless of their source. The United permitting sellers to exclude shift would suppress valuable States Tour Operators Association government taxes and fees from the information to consumers about how (USTOA) disagrees and states that the advertised price, and would instead much of their total price consists of proposed change will place costly require that the price advertised include government-imposed taxes and fees. In burdens on travel agents while doing all mandatory fees. The Department addition, ATA argues that this policy very little to ease customer confusion in invited comments on how sellers of air shift would negatively impact airline pricing. USTOA contends, as transportation foresee this change in competition because government- does ATA and many U.S. airlines, that enforcement policy affecting the imposed taxes and fees vary from ending the practice of permitting sellers methods they use to advertise fares and airport to airport and routing to routing. to exclude government taxes and fees how consumers view the change. The ATA contends that this means that an from the advertised price is not justified Department also requested comment on airline that has a competitive fare, but because the airfare advertising the potential cost of changing the also has a routing that subjects the fare landscape has not changed since the current advertising structures that to higher taxes and fees, will be Department last declined to revise the carriers and ticket agents have in place disadvantaged if it is required to include full-fare advertising rule. USTOA states in order to adhere to the proposed those taxes and fees in the advertised that tour operators would be especially policy shift. price. It remarks that this could negatively affected by this shift in Comments: Individuals and consumer negatively impact service to smaller policy because government-imposed organizations such as Flyersrights.org, communities. ATA also raised concerns fees vary widely depending on where in addition to individuals who about the cost implications of the the consumers choose to start their trip, participated on Regulation Room, proposal, because the proposal would and therefore a tour operator would not support the proposal that require airlines to perform additional be able to advertise a tour effectively advertisements for air transportation route pricing analysis, programming since the purchaser usually has the state the total price to be paid by the changes, website changes, and auditing option of a number of gateways. consumer. Some commenters and testing of changes. Many U.S. DOT Response: The Department has participating in discussions through carriers raise similar points. decided to adopt the proposed policy Regulation Room reported that there The views of foreign carriers and change in relation to the full-fare were occasions when they thought they associations varied, with many advertising rule. We disagree with were going to pay one price for air opposing the proposed mandate that the comments that the Department has not transportation, but the final price was advertised fare be the full fare to be paid shown true harm to consumers in not much higher due to additional taxes and by the customer but some supporting it. having the full price quoted to them up fees. Regulation Room commenters also IATA believes that there is no evidence front. On the contrary, comments from stated that the current advertising of widespread advertising deception to individual commenters and persons method borders on bait-and-switch justify a change in the Department’s participating in Regulation Room show tactics. Some individual commenters enforcement policy. Additionally IATA consumers feel deceived when the total

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price, including taxes and fees, is not well as mandatory carrier-imposed transportation may have pop-ups or quoted to them after an initial fare charges, including booking fees if the links adjacent to an advertised price to inquiry. Many consumers feel that only way the consumer can obtain the take the consumer to a listing of such advertising fares that exclude air transportation is by paying the charges, or they may display these mandatory charges is a ‘‘bait and switch’’ booking fee. While a carrier or ticket charges on the same page in fine print tactic by travel sellers. The Department agent generally is not required to if they prefer. Such charges must has also received complaints regarding include a booking fee in its advertised accurately reflect the actual costs to the fare advertising, some of which fare if there are other means for the carrier of the service or matter covered, specifically mention feeling deceived passenger to obtain the air be displayed on a per passenger basis, when they are not quoted the full price transportation (e.g., a booking fee only and be displayed in a manner that to be paid after an initial inquiry. applies for tickets that are purchased otherwise does not deceive consumers. Also, contrary to the assertions of over the telephone), where airfares are Consequently, the rule requires that any some commenters, the Department has advertised via an Internet site that such listing not be displayed seen changes in the advertising methods permits consumers to purchase fares, prominently and be presented in used by sellers of air transportation the fares advertised on the site must significantly smaller type than the since the Department declined to revise include all charges required to make the listing of the total price to ensure that its full-fare rule in 2006. Sellers are now purchase on the site. For example, it consumers are not confused about the marketing air transportation through a would be unfair and deceptive to hold total price they must pay. Also, we are variety of methods that they were not out on such an Internet site a fare that prohibiting the presentation of any using then. For example, some carriers can be purchased only at airport ticket ‘‘total’’ fares in advertising that exclude have started to sell tickets through counters but that excludes a taxes, fees or other charges since the Facebook and some have Twitter feeds convenience fee that is applied to major impact of such presentations is to dedicated solely to advertising sale Internet sales. confuse and deceive consumers. fares. Additionally, in recent years, In regard to the costs related to this carriers are increasingly unbundling the change, online travel agencies that will B. Explicit Inclusion of Ticket Agents cost of air travel, which further obscures face many of the same marketing and The NPRM: The Department proposed the total fare to be paid by the programming challenges as carriers do, to explicitly apply the price adverting consumer. Carriers and online travel if not more, feel that the operational rule to ticket agents. We have for years agencies have also started to offer more costs of adhering to the rule will be considered ticket agents to be subject to complicated routings with multiple overly burdensome. Sellers of air the price advertising rule since the connections in order to provide the transportation are constantly updating Department’s statutory authority to ‘‘lowest’’ airfare to consumers. However, their fare matrices and the methods by prohibit unfair and deceptive practices with these changes in routings, taxes which they display fares. In addition, and unfair methods of competition and fees can increase and become a we believe many carriers may already applies to both carriers and ticket significant portion of the price to be have programs in place to accommodate agents. However, the Department’s price paid by consumers. In those cases, this policy shift, as some foreign advertising rule doesn’t specifically consumers need a full picture of the governmental entities such as Australia indicate that ticket agents are covered total price to be paid in order to and the European Union already require by the rule. compare fares and routings. In order to the total price to be shown to Comments: Comments received from understand the true cost of travel, consumers. We note also that the airlines, travel agents, consumer groups consumers need to be able to see the requirement for advertisements to state and others all supported the inclusion entire price they need to pay to get to the total price is limited to of ticket agents in the price advertising their destination the first time the advertisements published in the United rule. Air New Zealand and Qantas airfare is presented to them. States, including via the Internet if indicate that their support for including We also are not persuaded by accessible in the U.S. Further, ticket agents in the rule is contingent on argument that the Department should recognizing the amount of print airlines not being responsible for the not require that the advertised price for advertising slated for use by tour compliance of ticket agents. air transportation, a tour or tour operators that would need to be pulled DOT Response: The final rule component be the total price to be paid thereby increasing costs of print explicitly includes ticket agents in the by the customer for that transportation, advertising revision, we have decided price advertising rule. This is consistent tour or tour component because other that the new full fare adverting with longstanding Department policy industries advertise without including requirements will not take effect until and we did not receive any adverse government-imposed taxes and fees. 180 days after the publication of this comments. This inclusion will ensure Airfares are different from products in final rule in the Federal Register. This that consumers are more fully protected. other industries for a variety of reasons, should reduce the costs related to this With regard to the Air New Zealand and including the multitude of methods of requirement. Qantas comment, airlines have always advertising that sellers of air Some airlines were concerned that been legally responsible along with their transportation employ and the various passengers would not know how much agents for their agents’ advertising taxes and government fees that apply. of their total price consists of violations and they will continue to be We believe that consumers are deceived government imposed taxes and fees. We under the revised rule. when presented with fares that do not want to assure these carriers that include numerous required charges and, nothing in this rule prohibits them from C. Each-Way Advertising in our view, air travelers will be better making this information available to The NPRM: The Department proposed able to make price comparisons when consumers. This final rule allows to codify its enforcement policy on they can see the entire price of the air carriers to advise the public in their fare each-way airfare advertising. Under this transportation, tour or tour component solicitations about government taxes policy, advertisement of an each-way being advertised. The advertised fare and fees, or other mandatory carrier or airfare that is contingent on a round-trip under this policy shift must include all ticket agent imposed charges applicable purchase is an unfair and deceptive government-imposed taxes and fees as to their airfares. Sellers of air practice unless the airfare is advertised

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as ‘‘each way’’ and the round-trip advertised fare. This codification of discussion on Regulation Room stated purchase requirement is clearly and longstanding enforcement policy allows that all optional services should be conspicuously disclosed in a location sellers of air transportation to be flexible presented to consumers as an ‘‘opt-in’’ that is prominent and proximate to the in the way they advertise round-trip choice. Individual consumers recounted advertised fare amount. The Department fares while still requiring all pertinent how they were sometimes faced with invited interested parties to comment on disclosures to consumers. While the paying for travel insurance they did not this proposal and on whether the Department understands that some need or a seat selection fee they were Department should adopt a similar rule consumers would prefer the full round- not aware of because those options were for air/hotel packages that advertise a trip price to be displayed, the ‘‘pre-selected’’ by the seller of air single price but are sold at that price on Department has not found that the transportation. a double occupancy basis, i.e., two current regime has led to consumer Many industry commenters, though individuals must purchase the package confusion or deception and it does not all, also agree with a prohibition on to obtain the advertised fare. permit certain types of advertising that ‘‘opt-out’’ features in advertising. ATA Comments: Individual consumers and are beneficial. We note also that this and most U.S. carriers, such as US consumer groups had divergent views final rule specifically prohibits referring Airways and Delta Air Lines, support on whether the Department should to such an airfare as ‘‘one way’’ even if this proposal. American Airlines states allow each-way airfare advertising even the round-trip purchase requirement is that non-aviation services should be if the round-trip purchase requirement clearly disclosed, which should offered on an ‘‘opt in’’ basis, but that is clearly and conspicuously disclosed minimize or prevent consumer aviation services that most consumers proximately and prominently to the confusion. In response to ATA’s request expect as part of their travel should be advertised fare. Flyersrights.org opposes for clarification, we agree that ‘‘one way’’ pre-selected. American notes that this this proposal, believing that disclosure advertising is allowed when purchase of will allow consumers to customize their of the full round-trip purchase price is that fare is not contingent on a round- travel options. IATA does not oppose most helpful to consumers. Consumers trip purchase. We are deferring to a later the prohibition on opt-out provisions. Union and AAPR support the proposed date any requirement regarding double AEA notes that EU Regulation 1008/ regulation, as long as the round-trip occupancy advertisements as we 2008 already has an opt-in requirement. purchase requirement is clear and received few comments on this matter. Qantas Airlines opposes this regulation, conspicuous. Most of the commenters We do not have enough information at stating that it feels customers appreciate on Regulation Room and individual this point to determine if consumers feel pre-selected options. ASTA supports a commenters generally support this deceived by double occupancy rates, prohibition on ‘‘opt-out’’ features in proposal but some, like Flyersrights.org, and consequently we will not formulate price advertising. suggest the Department require that the a specific regulation regarding the DOT Response: The Department has full round-trip purchase price be methods of such advertising at this time. decided to prohibit the use of opt-out disclosed. Airlines, airline associations ‘‘Double occupancy’’ advertising will provisions by carriers and ticket agents. and travel agency groups express still be subject to the general provisions The fact that consumers often don’t support for the each-way advertising of 49 U.S.C. 41712. realize that optional services are regulation. ATA requests clarification as included in the total price of the ticket to whether ‘‘one way’’ advertising would D. Opt-Out Provisions due to the deceptive nature of such opt- be allowed if there was no round-trip The NPRM: The Department proposed out provisions, is borne out by purchase requirement. ASTA supports to prohibit ‘‘opt-out’’ provisions by consumer comments. Many industry this proposal as well, noting that sellers of air transportation. ‘‘Opt-out’’ organizations also support prohibiting specifically prohibiting the use of ‘‘one provisions involve situations where a opt-out provisions. In addition, this way’’ to advertise fares that are consumer is purchasing air travel or an action will align the United States with contingent on round-trip purchases will air tour package online and certain fees the consumer protection laws of other allow consumers to better comparison for ancillary services or products are jurisdictions which prohibit opt-out shop among fare quotes. pre-selected for the consumer and provisions, including the European We received relatively few comments added to the total price to be paid by the Union through its regulation 1008/2008. on whether the Department should consumer at the end of the transaction. We do not agree with airline comments adopt a rule requiring specific The consumer is deemed to have that consumers like having certain disclosure for air/hotel packages that selected these services (and the charges airline related services preselected for advertise a single price but are sold at for them) unless the consumer convenience sake so that they can see that price only on a double occupancy ‘‘unchecks’’ the pre-selected box or the total cost of travel with those basis. Some commenters participating in boxes for the relevant services. The services. We believe that having opt-in the Regulation Room discussion state NPRM proposed prohibiting this selections achieves the same goals of that clear and conspicuous disclosure practice as unfair and deceptive in allowing travelers to customize their air concerning occupancy-related rates violation of 49 U.S.C. 41712 and transportation packages to their travel should be required. ASTA comments allowing carriers and ticket agents to needs and see the total cost of travel that double occupancy rates should still add an optional service to the total with those service while eliminating the be allowed, as long as the ‘‘per person’’ airfare to be paid by the consumer only unfair and deceptive practice of pre- requirement is disclosed. if the consumer affirmatively ‘‘opts in’’ selecting items that the consumer has DOT Response: The Department is to accept and purchase that service. not selected and does not necessarily codifying existing enforcement policy Comments: There was wide support realize are pre-selected until late in the allowing sellers of air transportation to among individual commenters and process — sometimes after a purchase is advertise an each-way price that is consumer groups for a prohibition complete. This rule would prohibit opt- contingent on a round-trip ticket against opt-out provisions. A few out provisions for any ancillary fee for purchase so long as the round-trip individual commenters noted that this an optional service such as seat purchase requirement is clearly and prohibition will allow consumers to selection, seat upgrades, pre-boarding, conspicuously disclosed in a location avoid unwanted fees. All of the travel insurance, rental cars, and that is prominent and proximate to the individuals commenting through the transfers to and from the airport. Under

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this rule, an optional service can be be applied to ticket agents because the to GDSs. Therefore, unlike the case for added to the total airfare to be paid by airlines are updating and changing fees U.S. and foreign air carriers, this final the consumer only if the consumer constantly, and the cost to agents to rule does not require ticket agents to affirmatively agrees to pay a fee for such ensure that the various airline fees they disclose on their website information service, i.e. by checking a box for that display are correct would be about changes in baggage fees or service or other concrete action. burdensome. USTOA proposes that allowances or to list on their website all instead ticket agents simply be required of the airlines’ fees for optional services. 8. Baggage and Other Fees and Related to inform consumers on their websites The final rule does, however, require Code-Share Issues and on e-ticket confirmations that ticket agents (and carriers) to inform A. Covered Entities baggage and other charges may apply by passengers on the first screen in which ‘‘ The NPRM: In the NPRM, the stating that airline fees for baggage and the ticket agent or carrier offers a fare Department proposed to require all U.S. other optional services may apply to quotation for a specific itinerary your journey; please consult with your selected by a consumer that additional and foreign air carriers that have airline for information on those fees.’’ airline fees for baggage may apply and websites accessible to the general public USTOA further states that in the event where consumers can go to see these in the United States through which that the Department concludes that baggage fees. This notification on the tickets are sold to provide notice to additional specific information should website must be clear, conspicuous and consumers about baggage fees and be provided by ticket agents, it should prominent. To comply with this allowances and other ancillary fees that allow ticket agents to provide requirement, ticket agents can choose the carrier may charge. More hyperlinks to the locations on the between referring consumers to their specifically, the NPRM proposed: (1) airline websites where specific own site where the baggage fees are Disclosure on the homepage for at least information may be obtained. ITSA does displayed or to the airline websites three months of any increase in the fee not object to extending the requirements where specific information may be for passenger baggage or any change in to disclose baggage and other fees to obtained. This requirement is consistent the free baggage allowance for checked ticket agents, but notes that if the with prior guidance provided by the or carry-on baggage; (2) notice on e- information is not provided to the GDSs, Department’s Aviation Enforcement ticket confirmations regarding the free the costs associated with agencies Office. See, Notice of the Assistant baggage allowance for that flight and constantly updating information are General Counsel for Aviation any applicable fee for the first and high and the possibility exists that the Enforcement and Proceedings, Guidance second checked bag and carry-on bag; information may not be accurate. ASTA on Disclosure of Policies and Charges and (3) disclosure of all fees for optional takes a similar position to ITSA in Associated with Checked Baggage, May services in one central place on the regards to applying the disclosure 13, 2008, http://airconsumer.dot.gov/ seller’s website. The Department noted requirements to ticket agents. rules/guidance.htm. The final rule also that the recent trend to unbundle DOT Response: The Department has requires ticket agents (and carriers) to services and charge separate fees for decided that the requirements to include on e-ticket confirmations services that may have once been provide specific notice to consumers information about the free baggage included in the cost of a ticket has led about baggage fees and allowances and allowance and the applicable fee for the to consumers having difficulty other ancillary fees shall apply to all first and second checked bag and carry- determining the total price they must U.S. and foreign carriers that advertise on but allows ticket agents, unlike pay to travel by air. The Department or sell air transportation in the U.S. We carriers, to do so through a hyperlink. requested comment on whether these are not limiting the applicability of the We also want to make clear that when requirements to disclose baggage and disclosure requirements to flights of using the term ‘‘ticket agents’’ we are other fees should apply to ticket agents only U.S. carriers, as the harm to the referring not only to agents of the as well as carriers. We also invited consumer is the same whether the lack carriers but also others who meet the comment on alternative proposals, of information about baggage and other definition of ‘‘ticket agent’’ contained at including whether the Department ancillary fees involve flights operated by 49 U.S.C. 40102 (a)(40), i.e., one who as should limit the applicability of the a U.S. carrier or a foreign carrier. We are a principal sells, offers for sale, disclosure requirements to all flights also not limiting the applicability of negotiates for or holds itself out as operated by U.S. carriers, U.S. and these requirements based on the size of selling, providing or arranging for air foreign carriers that operate any aircraft the aircraft that carriers operate as we transportation. with 60 or more seats, or U.S. and believe that disclosure of add-on fees is foreign air carriers that operate any an issue of sufficient significance to B. Disclosure of Baggage Fees aircraft with or 30 or more seats. warrant application of this requirement The NPRM: In 2008, the Department’s Comments: Many consumers state to aircraft of all sizes. Consumers want Aviation Enforcement Office issued that the type of fee disclosures to be informed of the fees that they will guidance concerning the disclosure of contemplated in the proposed rule be required to pay for optional services baggage fees to the public. In that notice, should apply to all sellers of air regardless of the size of the aircraft on the office stated that it views a carrier’s transportation. Some consumers relayed which they travel. failure to clearly disclose significant experiences where they felt fees were The Department also believes that it is conditions applicable to air fares, such hidden when booking on online travel important to ensure that consumers are as baggage fees, to be an unfair and agency websites. CTA and BTC state alerted to airline-imposed fees that may deceptive practice and unfair method of that this section should apply to ticket be applicable to itineraries purchased competition in violation of 49 U.S.C. agents as well as carriers, but they both through ticket agencies. However, we 41712. It described steps that carriers note that the agents need accurate and are persuaded by USTOA and others to should take to ensure that they are up to date information from the airlines apply a more limited requirement to providing prominent and timely notice via the GDSs in order to provide ticket agents, particularly since the of their baggage policies and charges. accurate information to consumers. Department is deferring decision on For example, the office suggested USTOA contends that the disclosure whether to require U.S. and foreign carriers place a notice on the home page requirements, as proposed, should not carriers to give ancillary fee information of their website highlighting new

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baggage policies and charges. See, carriers because the models allow note that it already provides most of this Notice of the Assistant General Counsel travelers to customize their trips. The information. Condor Flugdienst notes its for Aviation Enforcement and individual commenters who were not objection to requiring changes to Proceedings, Guidance on Disclosure of opposed to unbundling fees generally baggage allowances to be posted on the Policies and Charges Associated with support more disclosure of fees to the homepage, stating that failure to provide Checked Baggage, May 13, 2008, http:// consumer before purchase. notice of a change is a violation of 49 airconsumer.dot.gov/rules/ ATA and most U.S. carriers support U.S.C. § 41712 under Department guidance.htm. more disclosure regarding changes in guidance and that there is no need, In the instant proceeding, the baggage fees. ATA supports the proposal therefore, for the Department to codify Department proposed to codify this to put notice of fee changes on a this requirement. Air France and KLM guidance document by requiring carriers carrier’s homepage and states that the contend that having the information that maintain a website that is best method for providing this notice is regarding baggage fee changes stand accessible to the general public to to put a hyperlink on the homepage. alone on the homepage would be costly. prominently disclose on the homepage ATA notes that three months is a long Those carriers suggest that this of that website for at least three months enough time to require the information information’s location on the website any increase in the fee for passenger on the change to be on the website. Most should be left to the airline’s discretion baggage or any change in the free U.S. carriers submitted comments and that a time period of one to two baggage allowance for checked or carry- similar to ATA’s on the proposal to months would be enough time for on baggage. The Department proposed disclose baggage fee changes. Virgin consumers to be aware of the change. that this notice could appear in its America states, however, that the With regard to disclosure of baggage entirety on the home page or could be Department should refrain from information on e-ticket confirmations, accomplished through a prominent, establishing too much specificity or as with the proposal to disclose such conspicuous hyperlink (e.g., ‘‘Revised detail because such a regulation would information on carriers’ websites, most Baggage Fees’’) that leads to an detract from competitive market forces individual consumers and consumer explanation of the carrier’s baggage on how airlines design and set up their groups support any provision that policies and fees. The Department own websites. Furthermore, Virgin provides the consumer with more invited comment on this proposal, America notes that many carriers are information and prevents consumers including comment on how long the developing mobile applications where from being surprised about hidden fees. notice should remain on the page and screen space is limited. Allegiant Some individuals specifically contend the best options for displaying the Airlines opposes what it sees as that baggage allowance disclosures information to consumers. attempts by the Department to should also include information The NPRM also proposed to require micromanage how websites appear and regarding excess weight and excess carriers that issue e-ticket confirmations how information is shared with baggage charges. Many consumers feel to include information on that consumers in the absence of a clear that the disclosure of baggage fees confirmation regarding the free baggage attempt by carriers to deceive should occur earlier in the process, not allowance for that flight and the consumers. after purchasing the ticket. One applicable fee for the first and second Foreign carriers and carrier commenter noted that e-ticket checked bag and carry-on bag. The goal associations generally were not in favor confirmations are not required, and that of this proposed rule was to provide the of what they view as increased U.S. some carriers still use paper tickets. specific information regarding a government regulation of the This commenter noted that any particular consumer’s baggage appearance of websites that are not requirement for disclosure of baggage allowance well before that consumer maintained in the United States. IATA fees on an e-ticket confirmation would arrives at the airport with bags packed. warns that this proposal could be an not help consumers who are provided The Department invited comment on extraterritorial application of U.S. law. paper tickets because those consumers this proposed section. IATA further states that most carriers would not have that information. This Comments: Most individual already have baggage fee information commenter believes that the Department commenters and commenters from readily available on their website, and should clearly define what a ticket is, consumer groups did not address this most carriers do not charge for one or and then require baggage fee disclosures proposal specifically, but two checked pieces of baggage to or to be in the same method as the overwhelmingly commented that, in from the United States, so adding extra purchaser receives the ticket. general, they supported more notice and advertising requirements to a ATA and most U.S. airlines do not disclosures. Individual commenters, carrier’s website would increase costs have an objection to this requirement, as through the Docket and through greatly. The National Airlines Council many carriers currently provide this Regulation Room, noted how they are of Canada agrees with disclosure of fees information in the e-ticket confirmation. sometimes surprised by additional on websites, but disagrees with the US Airways and Delta Air Lines support baggage fees when they check-in at the requirement to place a link to the baggage disclosures on e-tickets. Spirit airport. CTA states that two out of three disclosure on the homepage. Jetstar Airlines supports baggage fee travelers responding to their survey Airways opposes posting notice about disclosures on e-tickets through a were surprised by fees upon checking in the change directly on the homepage of hyperlink to baggage information. IATA for a flight at the airport. Many the carrier, asserting that space issues is not opposed to a provision requiring commenters wanted the Department to could limit airlines’ ability to clearly airlines to include information limit the carrier’s ability to unbundle disclose the changes and advertise regarding optional services in e-tickets certain fees from the base fare, products and services. Qantas raises after a purchase is complete. AEA also particularly baggage fees for the first similar concerns, noting that the states that it is not opposed to providing checked bag. These commenters feel Department should not dictate the this information on an e-ticket. AEA that carriers are ‘‘nickel and diming’’ content of a carrier’s website or points out that EU Regulation 1008/ passengers instead of trying to improve homepage. Lufthansa believes that the 2008 mandates that optional price service. Other commenters found value Department did not establish why these supplements be communicated in a in the a la carte pricing models of disclosure rules are necessary, but does ‘‘clear, transparent and unambiguous

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way.’’ Some foreign carriers assert that and that the information should only notes that carriers are already providing requiring the information on the e-ticket remain active on the website for one or this information to consumers in confirmation is regulatory overkill, as a two months. Changes that occur need to compliance with existing enforcement consumer cannot complete a purchase be posted on the website for a sufficient policies. We disagree with the assertion without becoming aware of the fees due time in order to allow consumers to by some carriers that consumers cannot to other government regulations. Other review the changes not only prior to complete a purchase without first carriers state that due to the abundance choosing a flight but also after they becoming aware of the applicable of disclosure prior to completion of chose a flight and are preparing to baggage fees. Given the advent of new purchase, a carrier should not be travel. The Department believes that fees, such as fees for carry-on bags, the required to provide all of the allowing carriers to decide where the differing price for first and second information in full on an e-ticket as that notice should be given may result in checked bags, and the price difference would be costly. All Nippon Airways some carriers placing the information in that sometimes exists if a consumer expressed concerns about the costs of an inconspicuous location on the checks his or her bag online versus redesigning their e-ticket confirmations, website. If such information is difficult checking the bag in at the airport, the noting that a recent overhaul cost for consumers to find, they may not be Department believes that it is not a upwards of $145,000. Some carriers, aware of the change until after arrival at simple matter for consumers to such as Air France and KLM, note that the airport and the consumer cannot determine the total price to transport they already have a system in place to evaluate the impact of the change in their baggage. Additionally, the provide information about baggage on baggage fees and allowances on his or Department disagrees with airlines that the e-boarding pass issued via Internet her scheduled transportation, which assert that the disclosure requirements check-in. limits consumer choice. are burdensome, as most carriers DOT Response: The Department has The Department has also determined already provide this information in one decided to require U.S. and foreign that there is value in providing a form or another. carriers that advertise or sell air consumer information regarding baggage transportation in the United States to C. Disclosure of all Ancillary Fees fees and allowances after the consumer promptly and prominently disclose any completes a purchase for air travel. The NPRM: The Department proposed increase in its fees for carry-on or Therefore, the final rule requires U.S. to require carriers that have a website checked baggage and any change in the carriers and foreign carriers and ticket accessible to the general public to checked baggage allowance for a agents that advertise or sell air disclose all fees for optional aviation passenger on the carrier’s homepage. services in one central place on their Such notice must remain on the transportation in the United States to provide information on e-ticket website, so that consumers have an homepage for at least three months after easily accessible reference guide for the the change becomes effective. This rule confirmations regarding the passenger’s free baggage allowance and/or the cost of these services. This disclosure is consistent with current enforcement was proposed to be made through a link policies regarding the disclosure of applicable fee for a carry-on bag and the from the carrier’s homepage directly to changes in baggage fees. Additionally, first and second checked bag. By a listing of those fees. The Department the Department feels that this rule will ‘‘applicable fee,’’ we mean the baggage invited general comment on this prevent passenger surprise about fee information provided on the e-ticket proposal. We also asked for comment on changes in baggage fees or allowances. confirmation cannot simply be a range whether only ‘‘significant’’ fees for We agree with consumers and consumer of fees but must include information optional services should have to be groups, who advocate that greater about any price that may exist for a listed and, if so, how to define a disclosure of fees, and particularly carry-on bag and the first and second ‘‘significant fee.’’ The Department also baggage fees, is needed. Recognizing the checked bag and any differing price that asked for suggestions for alternatives to concerns raised by carriers, particularly may exist depending on the passenger’s foreign carriers, about space on a status (e.g., frequent flyer, military the easily accessible link from the carrier’s homepage and a carrier’s personnel), on when the payment for homepage for this disclosure. legitimate need to be able to design a the bag is made, or and on whether a Comments: Generally, the majority of website that is competitive and presents consumer checks his or her bag online consumers and consumer groups agreed information in a clear way, the rather than at the airport. As explained with requiring carriers to disclose Department will allow carriers to fulfill in the section on covered entities, ancillary fees on their website. They the notice requirements by providing a because they may not know the most contend that airlines hide their fees, and link from the homepage directly to a recent carrier baggage policies, ticket that requiring disclosure will benefit pop-up or a place on another webpage agents may provide details on where to consumers’ ability to comparison shop that details the change in baggage obtain this information by a hyperlink and avoid surprise fees. Many consumer allowance or fees and the effective dates to the locations on the airline websites commenters urge the Department to of such changes. The link on the where specific information may be require that the listing of optional fees homepage needs to be descriptive, clear obtained since the airlines often update on carriers’ websites be standardized. and conspicuous, i.e., easy for a and change fees. The Department notes However, some commenters, consumer to locate. The link need only that this requirement will benefit commenting through the discussion on remain on the homepage for a period of consumers because it will reduce Regulation Room, expressed concern three months after the change becomes confusion over whether, and, if so, how that a large fee table could be confusing effective. Most commenters agreed that much they will have to pay to check or to inexperienced or unsavvy casual three months is a long enough time to carry-on bags. Additionally, this will travelers. Some consumers and ensure that consumers are aware of any save the time of both consumers and consumer organizations assert that change in baggage fees or allowances. airline employees at the airport, because requiring the disclosure of ancillary fees The Department disagrees with Air consumers will be notified in advance does not go far enough and ask that the France and KLM, which suggest that the of check-in what the applicable fees are Department establish a list of ancillary carriers be allowed to decide where on for a carry-on bag and the first and services for which airlines are their website to display the information second checked bags. The Department prohibited from charging a fee.

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ATA generally supports the proposal meals, on-board entertainment, Internet unexpected charge. It should also requiring airlines to disclose fees for connections, pillows, blankets, enhance competition, as consumers will ancillary services on a carrier’s website advanced or upgraded seating be better able to compare costs among through a link, but feels that disclosure assignments, telephone reservations, carriers for the trip that they plan to take of such fees on e-ticket confirmations early boarding, canceling or changing with the services that they would like to would be burdensome. ATA contends reservations, unaccompanied minors, have. With regard to commenters who that some fees vary based on the flight and pet transportation. ATPCO has wanted the Department to mandate and itinerary, such as food and beverage identified more than a hundred optional certain ancillary items that must be free, items. ATA, as well as industry groups services and assigned each of those the law does not provide us the such as ASTA and ITSA, do not see a services a code. While the ATPCO list authority to do so. reason why the disclosure should be may not be an exhaustive list of services D. Global Distribution Systems limited to significant fees. US Airways that are now offered or that will in the generally supports this proposal, but future be offered, the Department The NPRM: The Department stated in requests sufficient lead time to fully suggests that carriers may wish to use the NPRM that it was considering implement the website changes required the ATPCO list of charges as a reference requiring carriers to make information to list the fee information. US Airways in developing a list of all optional about charges for optional services notes that if the Department requires services and fees to put on their available to global distribution systems disclosure of these fees earlier in the websites. (GDSs). The Department considered this process, the programming costs would The Department understands the proposal due to the fact that a increase to cover the complexity of new carriers’ concern that the availability significant portion of consumers programming, and sufficient lead time and price of some items vary depending purchase their air travel and air tours would be required. Delta states that it on a number of factors such as the type though travel agencies, both online and already has a page that lists these fees, of aircraft being used, the frequent flyer traditional brick-and-mortar agencies. and does not object to a requirement elite status of a passenger, the flight on The Department invited comments on that all carriers maintain such pages. which a passenger is booked, or the time the ability of carriers to provide this DOT Response: The Department has at which a passenger pays for the information in a usable format and the decided to require U.S. and foreign optional service. For non-baggage potential costs and benefits associated carriers to have one, central webpage on related optional services, carriers can with providing this information to their website, linked from the carrier’s provide a range of fees, acknowledging GDSs. homepage, which lists all ancillary fees. that they vary based on those types of Comments: ATA and most of its The reason for this requirement is that factors. For example, if food and members strongly oppose a requirement Department considers it too difficult beverage service prices vary among that forces airlines to provide ancillary currently for consumers to effectively flights, an airline can state that meals or fee information to GDSs. First, ATA comparison shop and determine the snacks are available for purchase, and notes that this is a competitive issue and total cost for travel, including ancillary then give a range of prices for such would interfere with ongoing fees for optional services. Not all meals and snacks. negotiations among carriers, GDSs, and carriers provide information regarding This use of a range of fees would not, travel agents, and would inject charges for various services, such as seat however, be acceptable under the rule government regulation into private assignments, extra leg room, priority with regard to fees in connection with market decision making. ATA notes that boarding, telephone reservations, and checked or carry-on baggage, which are GDSs already have a great share of the seat upgrades in a centralized location so fundamental to air travel and have market for air transportation bookings, so that it is easily accessible for the until relatively recently been included and warns that fares could increase to consumer to review prior to purchase. in the price paid for travel on all cover the charges the GDSs would likely The Department considers it to be unfair carriers. With regard to those fees, we levy on carriers that are required to and deceptive to charge an ancillary fee are specifically requiring that carriers, at provide this information to them. ATA to a consumer, when that consumer had a minimum, provide information about also questions the existence of any no simple, practical, and reasonable (1) any differing price that may exist for unfair or deceptive practice this way of knowing about the fee prior to the first, second, third, or more checked requirement would prevent. purchasing the ticket. Having a single and carry-on bag or overweight/ Most U.S. carriers agree with ATA’s listing of all of the ancillary fees that a oversized bag and (2) any differing price position. US Airways does not believe carrier charges for optional services and allocation (e.g., whether or not a bag the Department should mandate allows the consumer access to greater checked for free counts toward overall disclosure in a particular format, seeing information without unduly burdening allowance) that may exist for each bag this as interference with market forces. the carrier or stifling the carrier’s need depending on the passenger’s status Delta Air Lines believes that this rule to compete on such services. (e.g., frequent flyer, military personnel), would affect its bargaining position with The Department agrees with on when the payment for the bag is the GDSs and their ability to explore commenters that state that all fees made, or whether a consumer checks his different options for sharing of this should be listed. We believe that there or her bag online versus checking the information with the GDSs. American is no practical way to identify what is bag at the airport. If an airline offers Airlines contends that a carrier should ‘‘significant,’’ as each traveler, and even discounted baggage fees through status have the ability and power to decide airline, might differ over what is as a member in a paid or unpaid how to market its ancillary services. significant. Therefore, the Department membership ‘‘club,’’ information American states that requiring believes that to ensure adequate regarding these programs should be disclosure would unfairly bolster the protection of consumers, as well as to offered as well. The Department GDS market power. In a joint filing, ensure a level playing field among believes that listing the fees in one place American Airlines, Continental airlines, it is best to require carriers to will allow consumers greater access to Airlines, Delta Air Lines, United Air list all fees. This includes, but is not information, prevent the problem of Lines, and US Airways reiterate the limited to, fees for checked baggage, hidden fees, and prevent confusion at carriers’ commitment to providing fee carry-on baggage, overweight bags, the airport or in-flight due to an information to consumers, but assert

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that interfering in market negotiations Department not mandate the method of Travizon, Inc., and individual travel would harm competition and ultimately disclosure. It notes that this information agents that commented in the docket would harm consumers. These airlines is most effective when presented to the support the proposal to require that note that providing fee information customer within the flow of the carriers provide ancillary fee about optional services to consumers is transaction, as Air Canada does on its information to GDSs. good for the airlines because airlines are website. Some carriers, such as Jetstar Many third party commenters in the business of selling tickets and Airways and Qantas, oppose providing submitted comments related to selling these ancillary services. They the fees for optional services to providing ancillary fee information to assert that carriers should be allowed to consumers via a static webpage, stating GDSs. Several members of Congress market their services how they see fit that it is more helpful for consumers wrote in support of a requirement and to decide how to provide their and airlines to focus ancillary fee obligating carriers to submit their customers with the greatest access to information to a particular booking. ancillary fee information to GDSs. A information and choice. The carriers Other carriers, such as Virgin Atlantic, member of the European Parliament also reiterate ATA’s point that requiring note that they already file this expressed his support for issuing a rule airlines to furnish this information to information with ATPCO, thus allowing so that passengers booking through a GDSs would harm consumers by for access by GDSs. GDS system are aware of the total price increasing airline distribution costs, The vast majority of consumers and of the ticket before purchase. The New arguing that GDSs would charge the consumer groups (e.g., BTC, CTA, York State Consumer Protection Board airlines fees to upload the information Flyersrights.org) support the states a similar position that information into the GDS system. The carriers note Department requiring airlines to about fees should be distributed to that many travel agents, including disclose their ancillary fee information consumers through a wide variety of online travel agents, already have access to the GDSs. BTC and CTA urge the channels, not just through a link on the to and disclose fee information, Department to establish uniform carrier’s website. referring to the Expedia website which standards for fee disclosures, on the Farelogix, a third party distribution has a chart of baggage fees. The carriers basis that airlines may add new fees in and management technology firm, contend that the GDS distribution the future. Both of those organizations opposes the proposal to require that the system is anti-competitive and not state that airlines artificially deflate the carriers provide information to GDSs. efficient, and that requiring the airlines cost of a fare so that they can tack on Farelogix believes that GDSs should to provide fee information will further high ancillary fee charges that are coordinate directly with the airline. The bolster the market power of the GDSs hidden from the consumer during an firm does not think that the GDSs without allowing for substantive initial fare search. should be able to mandate the format of competition from third-party vendors. ITSA and ASTA implore the the information. Farelogix notes that the Two U.S. carriers did not object to Department to require airlines to share GDSs are resistant to third party providing ancillary fee information to ancillary fees with the GDSs. ITSA notes technology to transfer information in GDSs. Spirit Airlines does not oppose that a passenger who wants to search for order to preserve their place in the the proposal, unless it would impose a fare that includes a checked bag and travel market, and states that this significant costs on carriers to change a pre-assigned seat will have to spend proposed requirement will further limit the format the carriers already use to a great deal of time and have to be third parties from entering the travel provide the information to the GDSs. especially computer savvy to find the technology marketplace. An airline Southwest Airlines supports limited total amount he or she would have to consultant makes several similar points. transmittal of fee information to GDSs in pay for their travel because the fees are This consultant points out that if the order to provide information to all hidden on carriers’ websites. ITSA, Department requires carriers to provide consumers, regardless of how they book representing GDSs, states that at least information about fees for optional their flights. Southwest states, however, 50% and possibly as high as 60% of the services to GDSs, the airlines’ that the requirement should only traveling public relies on travel agents bargaining leverage is eroded and the obligate carriers to furnish this to comparison shop for fares. ITSA higher distribution costs the airlines information to existing GDS partners. argues that without this information will face will be passed on to Southwest opposes allowing GDSs to from GDSs, brick and mortar travel consumers. The consultant notes that charge fees for collecting data on agencies and online travel agencies negotiations to sell ancillary services are ancillary services. Southwest notes that cannot adequately state the total cost of working in some respects, using carrier participation in GDSs and other travel to their clients. ITSA notes that examples of United Airlines selling distribution channels for selling air the Department already requires Economy Plus service through Sabre, transportation is a strategic business information beyond the base fare to be Midwest Airlines selling seat decision by each carrier. The carrier also provided to the GDSs such as code- assignments through Sabre, and Finnair supports a provision that would require share information and change of gauge selling ancillary services through all carrier-imposed surcharges, such as information. ITSA asserts that the costs Amadeus. This individual believes that seasonal fare adjustments, to be of this requirement would be low as it these fees are not hidden, and notes that included in the fare information believes the technology is already in most of these fees are not charged until provided to GDSs. place to distribute the fee information. check-in or onboard the flight. A IATA and most of the other foreign air ITSA further adds that the Department’s professor at Harvard Business School carrier organizations oppose requiring mandate to prevent unfair and deceptive comments that compelling airlines to carriers to provide ancillary fee practices trumps claims that disclosure provide fee information to GDSs will information to GDSs as well, although should be left to private market have far-reaching and unintended they support carriers providing negotiations. ITSA believes that merely consequences on existing contractual information about ancillary fees and requiring carriers to post the fee structures between airlines and GDSs. services on carrier websites. The information on a webpage is not He believes that if a requirement to National Airlines Council of Canada adequate to alleviate the problems of provide fees for optional services is agrees with the disclosure of fees in hidden fares or reduce the time it takes adopted, the GDSs will mark up prices general, but recommends that the to comparison shop. Uniglobe Travel, considerably because airlines will be

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forced to disclose pursuant to E. Display of Two Fares in Advertising different, so the second fare would be government rule. The Airline Tariff The NPRM: The Department asked for confusing or of little help to many Publishing Company (ATPCO), without comment on the costs and benefits of consumers. taking a position on the merits of the displaying two fares in airfare IATA contends that a two-fare display proposal, notes that it has systems in advertising. The first price would be the system could be confusing and should place that could help implement any full fare (i.e., fare with all mandatory not be mandated, as many carriers requirement regarding carriers sharing charges) and the second price would be already have an established online fee information with GDSs. that full fare plus the cost of baggage advertising regime that includes an DOT Response: We have decided to charges that traditionally have been online menu of optional services defer final action on this proposal. The included in the price of the ticket, if presented to the consumer through the Department’s goal to protect consumers these prices differ. The Department course of their purchase. IATA asserts from hidden and deceptive fees and to asked whether the second fare should that requiring a two-fare model would allow consumers to price shop for air only include the price of baggage be an unwarranted government transportation in an effective manner charges or whether it should also intrusion on business practices. The remains paramount. The Department’s include other services traditionally Arab Air Carriers Organization states goal is to provide all air travel included in air travel such as obtaining that a two-fare model would be consumers with easy access to a seat assignment in advance. The unworkable and prohibitively Department also solicited comment on information about fares and optional expensive, as most carriers’ reservations the cost and feasibility of requiring fees, particularly baggage fees. As systems would have to be reworked to sellers of air transportation to allow discussed earlier, this final rule requires accommodate a two-fare requirement. consumers to conduct fare queries for U.S. and foreign carriers to disclose on their specific needs (e.g., airfare and two Many individual foreign carriers echoed their website information about changes checked bags, or airfare, one checked the sentiments of IATA, including in baggage fees or allowances and to list bag and extra legroom) and select the South African Airways and Lufthansa, on their website all of the airlines’ fees services they wish to include in the which note that a carrier can always for optional services. The final rule also price of the travel. choose to adopt a two-fare system. requires both carriers and ticket agents Comments: Individual consumers and British Airways states that if this to provide information on the first consumer groups are divided on the proposal were to become a requirement, screen in which the ticket agent or helpfulness of any requirement for a the requirement should only apply to carrier offers a fare quotation for a carrier to display two fares in response fares that do not include one checked specific itinerary selected by a to a fare inquiry. Some commenters and bag, and this requirement should apply consumer that additional airline fees for groups assert that this type of fare to GDSs and travel agents as well as baggage may apply and where display system could be helpful for carriers. ITSA is not opposed to a two- consumers can go to access these comparison shopping. Commenters who fare system, as long as the Department baggage fees. In addition, ticket agents participated in the discussion on the is clear about what would be included and carriers must include on e-ticket Regulation Room site were divided. in the price. ATPCO notes that it has confirmations information about the free Some state that such a dual fare display technology that could implement any baggage allowance and the applicable could be helpful, but others claim it required two-fare pricing model or a fee for the first and second checked bag would be confusing. Individuals consumer self-selection model. and carry-on. We believe that these commenting to the docket expressed DOT Response: The Department steps partially address the problem of similar opinions. Most were in favor of agrees with the commenters who feel hidden and deceptive fees and allow more robust disclosure, especially that a ‘‘two-fare’’ display system would regarding baggage fees. Many who consumers to price shop for air be too confusing for travelers. We agree favored a dual fare disclosure disagreed, transportation. The Department is that each traveler is unique with regard however, on what should be included in cognizant that some parties feel that to what ancillary services he or she the second fare of a two-fare display requiring carriers to provide information needs or wants on a particular flight, system. Some state that just the cost of on their ancillary fees to GDSs would be and therefore one ‘‘all-inclusive’’ price baggage should be included. Others a reasonable way, if not the best way, to that includes baggage and a seat ensure consumers can easily contend that baggage, blankets, pillow, and a seat assignment should also be assignment may not be helpful to most comparison shop for air fares. We included. The idea that consumers passengers. The Department will also cannot at this time agree that it is in the could select the ancillary services they not require, at this time, that sellers of public interest to mandate that step, wished before receiving a fare quote had air transportation revise their online since we lack information critical to a many supporters. CTA supports the systems to allow consumers to conduct decision on the issue. Thus, in order to approach to airfare searching that would queries for specific optional services permit us time to obtain additional allow a consumer to select the services and the fees for those services before information about costs, benefits and and fees they wish to be included in displaying a price. Although the consequences of requiring U.S. and their travel. Department understands that some Web foreign carriers to provide ancillary fee ATA does not support the two-fare sites may exist that have these information to GDSs, including those model. ATA states it would be capabilities and that some carriers involving competition, the Department confusing for passengers. It adds that utilize online menus for consumers is deferring final action on this matter. the Department does not have enough from which to choose services during The Department wants to ensure that information to impose this requirement. the booking process, the Department any action it takes does not have ATA and certain U.S. carriers note that does not have enough information unintended consequences, particularly there are questions and ambiguities as to regarding the costs of implementing given the sensitive nature of the market what is ‘‘traditionally included in the such a system to require that every and the negotiations currently taking price of a ticket.’’ As many U.S. carriers carrier implement such an online place between carriers and the GDSs. noted, each passenger’s needs are system.

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F. Services Provided by Code-Share IATA states that requiring the itineraries include sectors where the Partners marketing carrier to disclose fees of baggage rules differ, notwithstanding operating carriers is consistent with the the fact that the passenger was traveling The NPRM: The Department sought Department’s policy regarding code- on a single, code-share or interline comments as to whether in a code-share share situations. IATA believes this ticket, service that carriers continue to situation the marketing/ticketing carrier notice can be accomplished through a tout as ‘‘seamless.’’ should be required to disclose through hyperlink to the code-share partner’s This final rule requires that for reservation agents, Web sites, and/or e- website that details their fees. Singapore passengers whose ultimate ticketed ticket confirmations any differences in Airlines notes that it already provides origin or destination is a U.S. point, the services and fees applicable to a information to consumers regarding baggage allowances and fees that apply consumer between the marketing carrier significant differences in services and at the beginning of the itinerary apply and the operating carrier. The fees among partners. It states that the throughout the itinerary. In the case of Department also asked whether there best way to accomplish this is to code-share flights that form part of an were any ancillary fees for services that provide a link to the partner’s listing. itinerary whose ultimate ticketed origin should not be permitted to vary among The carrier also notes that its call center or destination is a point in the U.S., the code-share partners, such as the agents are trained to provide this final rule requires that the baggage allowances and charges for baggage. The information. However, Singapore allowances and fees of the marketing Department noted that its policy states Airlines states that if the Department carrier apply throughout the itinerary to that, for passengers whose ultimate proposes a harmonized scheme it the extent that they differ between the ticketed origin or destination is a U.S. should incorporate reasonable and marketing carrier and the operating point, the baggage rules that apply at the commercially viable allowances and carrier. The Department is aware that beginning of the itinerary apply fees. Qatar Airways refers the these requirements may result in the throughout the itinerary and provides Department to IATA Resolution 302 situation foreseen by ATA and US that the marketing carrier’s rules take (‘‘Baggage Provisions Selection Criteria’’) Airways of consumers on the same precedence. which will go into effect in April 2011. flight being subject to different baggage Comments: Most individual The carrier states that under this allowances or fees. The Department commenters and consumer groups, resolution, there will be no standard does not find anything unfair or including Flyersrights.org, favor a rule baggage allowances or charges, and each deceptive about passengers on the same that would require the marketing or carrier will publish its own rules. Qatar flight being subject to different baggage ticketing carrier’s fees to apply for the Airways notes that in the event of a provisions — just as many passengers whole trip. Some commenters, through conflict between baggage allowances, on the flight would have typically paid Regulation Room, expressed the opinion the provision of the ‘‘Most Significant different fares. Further, we believe this that the lesser of the two fees should Carrier,’’ as determined by the method of determining baggage rules is apply if the marketing carrier’s fees Resolution, would apply. Qatar Airways consistent with Department policy and differ from the operating carrier’s fees. urges the Department to adopt a similar affords the greatest protection to Most commenters support greater notice proposal. Many foreign carriers such as consumers from unfair application of requirements regarding differing fee Qantas, Air France, and KLM oppose a baggage rules throughout their structures between code-share partners. Department rule that would prohibit itineraries. The Department also believes these requirements align with Some commenters on Regulation Room differences in baggage fees between the the goals of IATA Resolution 302, which specifically felt that the marketing marketing and operating carrier, but do was adopted by IATA members to bring carrier should provide greater support disclosure of any differences transparency and clarity to baggage information, especially if the operating between the carriers. rules on code-share and interline carrier has more stringent or restrictive DOT Response: After considering the luggage requirements. itineraries. comments regarding the differences As to whether in the case of code- ATA believes that disclosure of fees between the ancillary services and fees share flights whether the marketing/ between code-share partners can be between code-share and interline ticketing carrier should be required to accomplished effectively through a carriers, the Department has decided not disclose all of the operating carrier’s hyperlink on the marketing carrier’s to require code-share carriers to fees for optional services, we have website directly to the operating standardize their optional services and decided to require the marketing carrier carrier’s fee list. It opposes any attempt fees but to specify with respect to to disclose on its website any difference by the Department to standardize baggage which carrier’s allowances and between its optional services and fees optional fees amongst code-share fees apply. We believe that baggage and those of the carrier operating the partners. ATA notes that attempts at rules and fees should be treated flight. This disclosure may be made standardization would be counter to the differently from fees for other optional through providing a hyperlink to the goals of deregulation and could be anti- services, as variations in baggage fees operating carriers’ websites that detail competitive. It further states that among code-share and interline partners the operating carriers’ fees for optional standardization of fees could be are likely to result in significant services, or to a page on its website that impractical and costly for flights that inconvenience and confusion for many lists the differences in policies amongst have multiple code-share partners passengers. The Department has code-share partners. A marketing/ selling tickets on the same flight. US received complaints from consumers ticketing carrier may also choose to Airways comments that applying the who have been faced with multiple, make this information available to marketing carrier’s rule is not feasible differing, and uncertain baggage consumers through notice on its own and would create different classes of allowances and charges on both code- website of differences between its passengers on the same aircraft. Delta share and interline flights. Passengers optional services and fees and those of states that ancillary fees should not be experience significant difficulties when the carrier operating the flight. We are uniform amongst carriers and code- the baggage allowances and fees that not requiring disclosure of the fees for share partners as that requirement apply at the beginning of their trip differ optional services of the operating carrier would stifle competition. from what is applied later because their through reservation agents or e-ticket

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confirmations because we believe the One commenter asserts that the practice in government taxes and fees, provided costs to carriers of providing this of increasing the price after purchase is that the consumer is made aware of information in those formats far egregious, especially in the case of tour such a potential increase. USTOA outweigh the benefit to consumers, operators that raise prices due to fuel points out that the tour operators have particularly since this final rule already surcharges. Another commenter asks for no control over the increase of the price requires U.S. and foreign carriers to list clarification on what an increase in the of scheduled air transportation. USTOA on their website all of their fees for price of the ticket means, because the supports the alternatives, but believes optional services. Further, of all the fees commenter is concerned about change that sellers should not be required to for optional services charged by airlines, fees being applied to an already state the maximum amount of a price consumers are generally most interested purchased ticket. Most commenters increase because the tour operator will in fees charged for baggage and the final participating in Regulation Room favor not know the maximum amount. rule already requires ticket agents and an outright ban, rejecting the ASTA contends that in order to carriers to disclose baggage fees and alternatives that allow for conspicuous protect all sellers, a post-purchase price allowances on e-ticket confirmations. As disclosure of a potential price increase. increase should only be applied on discussed earlier, the final rule also A small number felt that the proposed ticketed reservations, contracted group requires carriers and ticket agents to alternative of requiring conspicuous travel arrangements, and business to inform passengers on the first screen in notice of a potential maximum amount business transactions between tour which the ticket agent or carrier offers of an increase would adequately protect operators and airlines. ASTA states that a fare quotation for a specific itinerary consumers. a travel agent does not impose the selected by a consumer that additional We also received comments from additional increases in price; rather, the airline fees for baggage may apply and carriers and carrier organizations government or carriers impose taxes, where consumers can go to see these regarding this proposal. ATA and its fees and fuel surcharges. ASTA prefers baggage fees. members support the primary proposal the first alternative which allows a post- to ban post-purchase price increases purchase price increase with specific 9. Post-Purchase Price Increase outright, and do not feel that any notice of the increase and a maximum The NPRM: The Department proposed alternative is necessary. ATA states that amount of such increase identified to to revise its current regulation in 14 CFR this is consistent with industry practice. the consumer. ASTA suggests modifying 253.7 which allows post purchase price IATA and many foreign carriers are not the first alternative so that the sellers of increases as long as the consumer opposed to this proposal, but they do air transportation also identify when receives direct notice on or with the request that an exception be made for they have imposed such post-purchase ticket of any contract of carriage term post-purchase imposition of price increases in the past. that allows a carrier to increase the price government-imposed taxes and fees. DOT Response: After fully after purchase. Under the proposed rule, AEA, ALTA, and AACO all support a considering the comments received, the the Department would prohibit all post- limited exception to a complete ban in Department has decided to adopt the purchase price increases by carriers, the case of an increase in government- rule as proposed, but allow for an tour operators, or other sellers of air imposed taxes and fees. IACA states that exception related to an increase in transportation, tours or tour an outright ban on post-purchase government-imposed taxes and fees. components. The seller would be increases is not consistent with the Although taxes and fees are not prohibited from increasing the price European Union regulations which retroactively applied in the United after the consumer completes the allow post-purchase price increases in States, the Department is aware that purchase. The Department asked for limited circumstances and with certain government-imposed taxes and fees comment on the proposal to ban post- disclosures. IACA seems to support one levied by entities outside of the United purchase price increases as well as two of the alternatives which would allow States might be applied retroactively to alternatives. The first proposed some increase in the purchase price a completed ticket purchase. As these alternative would allow post-purchase after purchase is completed. fees and taxes are outside of the control price increases, as long as the seller of Air France, KLM and Qantas generally of the seller of air transportation, the air transportation conspicuously support the proposal with the exception Department agrees with ASTA and disclosed to the consumer the potential of government-imposed taxes and fees. foreign carriers that sellers should be for such an increase and the maximum Additionally Air France, KLM and protected from having to absorb the amount of such increase before the Qantas ask for clarification on when a costs imposed by retroactive application consumer purchased the air ‘‘purchase’’ is complete. Both airlines of government taxes and fees. This transportation, and the consumer suggest that a booking that is being exception to a total ban on post- affirmatively agreed to such an increase ‘‘held’’ by the airline but has not been purchase price increases is limited to prior to the completion of the purchase. purchased should not be a completed government-imposed taxes and fees The second alternative would allow purchase for purposes of this rule. Air imposed on a per-passenger basis. It post-purchase price increases (with New Zealand further comments that does not include increases in fuel disclosure) that the consumer agrees to change fees should be allowed because surcharges or other carrier or ticket in advance of purchasing the ticket, but those apply when a consumer is agent imposed charges. The Department would prohibit such an increase within purchasing a new ticket and not recognizes that changes may be thirty or sixty days of the first flight in traveling on the same ticket. necessary in the way a tour operator the purchased itinerary. USTOA is against the proposal for an prices or advertises packages to comply Comments: Individual travelers and outright ban without some contingency with the prohibition on post-purchase consumer organizations representing built into the rule regarding tax prices increases with an exception only travelers support the proposal to ban increases and partial customer for government-imposed taxes and fees post-purchase price increases in air payments. USTOA views a purchase as imposed on a per-passenger basis. transportation or tours by carriers and being complete if the consumer has paid The final rule also requires sellers of ticket agents. Most consumer in full. USTOA also states that an air transportation to disclose the commenters state that an outright ban exception to a ban on post-purchase potential for a post-purchase price on post-purchase price increases is fair. increases should be made for increases increase related to an increase in a

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government-imposed tax or fee in a of air transportation to impose any fee it to the carriers to determine what clear and conspicuous manner to the on a consumer to change a travel means they prefer to use. With respect consumer. The consumer must itinerary unless this possibility was to the timeliness standard, we invited affirmatively agree to the potential for disclosed to the consumer prior to the public to comment on whether such an increase prior to the purchase, purchase. Additionally, to address the ‘‘within 30 minutes after the carrier for example by checking a box on the comments about the applicability of this becomes aware or should have become final page prior to purchase. After section to tickets marketed and sold in aware’’ is a reasonable standard. We also purchase, the seller of air transportation Europe, the final rule specifies that with sought public opinion on whether the can only impose an increase due to respect to ticket agents and foreign air proposed requirement that updated government-imposed taxes or fees if carriers, these requirements only apply information should be provided for such an increase applies to that to advertising or selling in the United flight delays of 30 minutes or more is an particular consumer (e.g., the increase States of air transportation or tours. appropriate standard. cannot be collected from consumers to Comments: Comments from 10. Flight Status Change whom a general increase did not apply consumers and consumer rights because they had purchased and fully The NPRM: In the NPRM we proposed advocacy groups overwhelmingly paid for their ticket months earlier, and/ to require U.S. carriers that account for support our proposal for the largest U.S. or because an increase has been at least 1 percent of domestic scheduled carriers to promptly notify passengers of announced but is not yet in effect). For passenger revenues (reporting carriers) changes in the status of particular flights purposes of this section, a purchase is to promptly provide passengers and as a result of delays or cancellations. not deemed to have occurred until the other interested parties notice of flight The New York State Consumer full amount agreed upon has been paid status changes, defined as a cancellation Protection Board, AAPR, by the consumer. Therefore, in the of a flight or a delay of 30 minutes or FlyersRights.org, Consumers Union, and context of a tour that contains an air more, for their domestic scheduled most commenters on component, a purchase is complete passenger flights. We proposed to RegulationRoom.org support expanding when the consumer tenders the entire require that this notification take place the requirements to cover smaller U.S. amount paid for the tour to the tour within 30 minutes after the carrier carriers and international operations of operator. The Department finds it to be becomes aware or should have become U.S. and foreign carriers. ACI–NA unfair for consumers to bear the brunt aware of the status change. A carrier suggests that the rule should include of any increase in price after they have would be required to provide such small carriers that serve small and non- paid the full amount agreed upon for air information updates at boarding gate hub airports, arguing that the impact of transportation or a tour. areas, on airport display boards that are delays and cancellation occurring at To further protect consumers, the under a carrier’s control, on the those airports may have great adverse final rule requires sellers of air homepage of a carrier’s websites and effect on larger connection hubs. transportation, tours or tour components through a carrier’s telephone reservation Several foreign carriers specifically to notify a consumer of the potential for systems. To the extent that carriers oppose applying the notification a price increase that could take place permit passengers and other interested requirements to foreign carriers. IACA prior to the time that the full amount persons to subscribe to receive flight states that the proposed rule may agreed upon has been paid by the information updates, we proposed that potentially be an extraterritorial consumer, including but not limited to carriers provide those updates in a application of U.S. law to activities in an increase in the price of the seat, an timely fashion, i.e., providing the a foreign jurisdiction. Qantas and JetStar increase in the price for the carriage of information and subsequent updates Airways aver that the rule should not passenger baggage, an increase in an within 30 minutes after the carrier apply to foreign marketing code-share applicable fuel surcharge, or an increase becomes aware or should have become partners, as the operating carriers are in in a government-imposed tax or fee. aware of such information. the best position to notify passengers of These entities must provide the We sought comments on whether any flight status changes. ATA, on the consumer an opportunity to decline the these flight status notification other hand, states that the marketing purchase without penalty or requirements should be extended to carrier should have the responsibility to affirmatively agree to the potential for smaller U.S. carriers and/or update flight information up until the such an increase prior to making any international operations of U.S. and date of flight departure, at which point payment for the scheduled air foreign carriers, particularly since we the operating carrier should be transportation, or tour or tour proposed to require U.S. and foreign air responsible for the notification. ANA component that includes scheduled air carriers conducting scheduled passenger raises the issue of technical difficulties transportation. The Department believes service with at least one aircraft with 30 faced by foreign carriers in complying that such a disclosure will provide or more seats to adopt a customer with the electronic notification rule consumers with important information service plan that pledged to notify when they must conduct extensive to help them determine whether they consumers in the boarding gate area, on automation modifications including want to purchase the air transportation board aircraft, via a carrier’s telephone sharing data with code-share partners. or tour and if so, the appropriate time reservation system and on a carrier’s Many carriers contend that when to make payment. website of known delays, cancellations information is not timely transmitted to With regard to the comments relating and diversions. We specifically asked carriers by FAA, carriers should not be to change fees, the Department agrees for information about the cost or benefit held liable. TUI Travel asks that foreign with commenters that change fees do of applying these requirements to leisure travel charter operators be not constitute an increase in the price of smaller carriers. We also asked for exempted from the rule based on its an already-purchased ticket, as comments on whether the proposed assertion that there are already technically the consumer is purchasing means of notification, i.e., website, established communication channels a new ticket for new travel. However, telephone reservation system, airport between passengers and carriers through the Department considers it to be an display boards under carriers’ control, the tour operators. unfair and deceptive practice within the and boarding area, should be With respect to the means of meaning of 49 U.S.C. 41712 for a seller mandatory, or whether we should leave notification, many commenters from the

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consumer side urge the Department to passengers for any flight delays that are by carriers to communicate with mandate all four methods (i.e., at gate expected to last for 30 minutes or more, passengers and other interested parties boarding areas, on airport display both consumers and carrier commenters who seek and obtain information about boards that are under carrier’s control, are supportive of this standard. ATA the status of the schedules for their and through carriers’ website and also recommends that the Department flights. telephone reservation systems). The require the airports to update display These varied flight status notification New York State Consumer Protection boards under the airports’ control every methods make it more likely that Board also recommends that we require 30 minutes when a flight’s status passengers and other interested parties carriers to offer passengers the changes. ASTA supports ATA’s position will be able to access this information opportunity to subscribe to flight status and states that it is important that the when they need it. For example, service updates via voicemail and information provided by the carriers individuals who do not have access to electronic media. Industry commenters, and airports be current in order to avoid the Internet may call a carriers’ however, argue that the Department passenger confusion. reservation telephone system to learn should provide carriers flexibility in DOT Response: The final rule requires about delays, cancellations, or choosing what means they use. ATA U.S. and foreign carriers conducting diversions. Notification at the airports specifically requests that the scheduled passenger service to and from through the airport display boards and Department not require any new the U.S. with any aircraft with 30 or in the boarding gate area is also technology or program that is not more seats to make information essential when passengers are already at currently implemented by the carriers. available to passengers and other the airports. Regarding notification at ATA raises concern that our proposal interested parties about a change in the boarding gate area, the responsibility on flight status change notification may flight status. It is important for of a carrier to notify passengers does not conflict with the Federal passengers as well as persons dropping begin until the gate is staffed for the Communication Commission (FCC)’s passengers off for outbound flights or specific flight in question. With respect Telephone Consumer Protection Act meeting passengers on incoming flights to notification provided through rule. In a March 2010 NPRM, the FCC to stay informed on a timely basis of carriers’ telephone reservation systems, proposed to require consumers’ prior delays, diversions or cancellations we clarify that such notification is only written consent for prerecorded calls, affecting their flights in order to avoid required upon the request by a eliminating the exemption for parties unnecessary waits at, or pointless trips consumer. that have already established business to, an airport. The need for, and In addition to these four methods, we relationships (75 FR 13471, March 22, importance of timely notification are also requiring carriers that offer 2010). If adopted, the FCC rule would regarding flight delays, diversions and passengers the opportunity to subscribe prohibit carriers from leaving cancellations exists whether it is a U.S. to a flight status update service to prerecorded telephone messages or foreign carrier operating the flight ensure that required information is concerning flight delays and and whether it is a non-reporting or provided promptly and accurately. We cancellations with any passengers from reporting carrier operating the flight. On note that many carriers already have in whom carriers do not have prior written code-shares, the final rule leaves it up place subscription services for consent. to the carriers to determine whether the passengers to receive flight status Regarding the proposed timeliness marketing or operating carrier will notifications through various widely standard, the New York State Consumer provide the required notification about used media, including computer- Protection Board states that the 30- change in flight status. We expect that generated telephone/voicemail, text minute standard is good but urges the foreign carriers and non-reporting U.S. messages and emails. To the extent such Department to adopt a more stringent carriers will work with their code-share services are offered to the public, this standard that requires notification to be reporting-carrier partners, most of final rule requires that the notifications provided ‘‘no later than 20 minutes’’ which already have the necessary be delivered to the passenger by after the carrier is aware or should have systems in place, to comply with the whatever means is available to the become aware of the flight status notification requirements contained in carrier and of the passenger’s choice change. Other commenters from the this final rule. For enforcement within 30 minutes after the carrier consumer side generally welcome the purposes, the Department’s Aviation becomes aware of a change in the status 30-minute standard as being reasonable Enforcement Office will hold both the of a flight. We do not believe, as and not too burdensome to the carriers. code-share marketing carrier and the asserted by some commenters, that Among the carriers and carrier operating carrier responsible, jointly applying this standard will dissuade associations that commented on this and severally, for failure to comply with carriers from voluntarily providing such proposal, there is little objection to the this rule. subscription services for fear of the ‘‘30 minutes after the carrier becomes The final rule mandates that the flight potential enforcement consequences. aware’’ requirement. However, most of status notifications be provided through We are confident that market forces and those commenters are concerned about the four methods proposed: at the competition will continue to be the the ‘‘30 minutes after the carrier should boarding gate area, on carriers’ websites, driving force for carriers to improve the have become aware of the flight status through carriers’ telephone reservations quality of their customer care. change’’ standard. IATA asks the systems, and by airport display boards In response to ATA’s concern that the Department to clarify the meaning of that are under the carriers’ control. If an Department’s flight status notification this standard, and ATA argues that this airport-controlled display system requirement may conflict with the FCC’s is a subjective standard that makes accepts flight status updates from rule, the Department wishes to provide compliance difficult. Southwest carriers, covered carriers must furnish the following clarification. The Airlines supports ATA’s position and this information to that airport within Department has submitted comments on states that this standard is too vague and the timeframes provided in this rule. We the FCC’s rulemaking, requesting the is likely to be inconsistently applied do not believe mandating all four FCC to maintain its current ‘‘established and enforced. methods is burdensome to carriers as it business relationship’’ exemption to the Regarding the proposal that is our opinion that these four methods extent necessary to permit carriers to notification should be provided to represent the most common ways used notify their customers of flight status

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changes through telephone messages passengers and the costs incurred by the many foreign airlines, expressed without obtaining each customer’s prior carriers associated with providing such concerns about this provision’s written consent. To the extent FCC information. Consequently, the final applicability to foreign airlines and adopts a final rule as it proposed, the rule maintains this standard. We interference with European rules Department does not see a direct emphasize that this is a minimum governing the forum for claims. The Air conflict between the FCC rule and our standard and carriers are free to and Transport Association of Canada does rule. In this final rule, we do not require urged to provide notification about not feel the use of choice-of-forum carriers to call each passenger on the briefer delays, as many already have restrictions should be banned and feels affected flight to notify them about the done for their subscription services. that making clear the forum in which flight status change. Likewise we do not Under the final rule, the ‘‘30 minutes consumers must litigate consumer mandate subscription services. after the carrier becomes aware of the complaints is helpful to consumers. Therefore, if carriers choose to provide flight status change’’ standard also DOT Response: The Department has subscription services, they could either applies to any information updates decided to adopt the rule as proposed, eliminate the voice message choice from provided to passengers who have i.e., to prohibit a U.S. carrier from the choices of contact available to already received previous notification including language in its contract of subscribers, or obtain the subscribers’ regarding the status change of their carriage precluding a passenger from written consent at the time of flights. We disagree with some bringing a consumer-related claim subscription. commenters’ contention that updating involving a domestic flight against the Most carriers that commented on the flight status change every 30 minutes if carrier in any court of competent proposals objected to the ‘‘30 minutes the flight is delayed again is not jurisdiction. The Department feels that after the carrier should have become necessary if it is close to the scheduled if a carrier reaches out to do business in aware of flight status change’’ standard departure time and passengers are a particular jurisdiction, i.e., reaches out for notifying consumers about the flight already at the airport. This information to solicit business within that irregularity, arguing that it is vague and is important for passengers whose jurisdiction, and sells tickets in a subjective. The Department agrees with flights downline depend on the jurisdiction, then it is fair and the concerns expressed that this schedule of aircraft used for the flight reasonable to expect that the carrier can standard may become challenging to experiencing the irregularity, as well as defend itself against litigation brought comply with and enforce. Therefore, we for persons who may be meeting by a consumer who resides in that are removing the ‘‘should have become passengers on the affected flight. jurisdiction. The cost of this proposal is aware’’ standard from the final rule. Finally, we note that the Department minimal, as most U.S. carriers already With respect to the ‘‘30 minutes after the does not directly have the authority to face litigation throughout the United carrier becomes aware’’ standard, we require airports to provide flight status States. As a point of clarification, the believe further clarification is necessary. information to consumers as some forum for consumer claims related to For enforcement purpose, we consider commenters suggested. travel on international flights to or from that the carrier has become aware of the the United States is governed by the 11. Choice-of-Forum Provisions flight status change as soon as the Montreal Convention or Warsaw carrier’s system operation control center The NPRM: The Department proposed Convention, depending on the type of (SOCC) or equivalent facility, if it goes to codify the policy of the Department’s flight and its origination/destination. by another name, learns of it. We Aviation Enforcement Office that Additionally this change does not apply recognize that carriers cancel, delay and choice-of-forum provisions are unfair to charter flights. The choice of forum divert flights based on information from and deceptive for air transportation sold for charter flights can be addressed in many sources, both internal as well as in the U.S. when used to limit a the individual contracts between the from third parties, such as FAA and passenger’s legal forum to a particular charter operator and the participant. airports. Whatever the source of inconvenient venue. The proposed rule 12. Peanut Allergies information leading to the decision for would specifically permit consumers to a flight status change, it is the carrier’s file suit where they live provided that The NPRM: In the NPRM, the sole responsibility to distribute the the carrier does business within that Department described various measures information, within 30 minutes, to the jurisdiction. The Department requested to provide greater access to air travel for downstream operational staff, such as comments on this proposal and on the individuals with severe peanut allergies. webmasters, airport station managers, use of such choice-of-forum provisions The Department solicited comment on reservation system managers, and gate in contracts of carriage. several alternatives to accommodate air agents. A carrier has an affirmative duty Comments: Consumer groups and travelers with severe peanut allergies at all times to keep track of flight status individual consumers support this including (1) banning the serving of changes and maintain open channels of proposal. Flyersrights.org, while peanuts and all peanut products by both communication. We consider it an supporting the proposal, does not think U.S. and foreign carriers on flights unfair and deceptive practice when the the proposal goes far enough to address covered by the Department’s disability carrier’s failure to obtain and pass on to the real barrier to legal relief for rule; (2) banning the serving of peanuts consumers up-to-date and accurate consumers in court, which they say is and all peanut products on all such information is caused by the carrier’s Federal preemption of state laws. ATA flights where a passenger with a peanut own procedural shortcomings. and most carriers support this proposal, allergy is on board and has requested a Much less contested is our proposed most noting that they do not have such peanut-free flight in advance; or (3) standard that carriers notify passengers restrictive choice-of-forum provisions in requiring a peanut-free buffer zone in and other interested parties regarding their contracts of carriage. Spirit the immediate area of a passenger with flight delays of 30 minutes or more. Airlines opposes this provision. Spirit a medically documented severe allergy Many consumer and industry believes small carriers should not have to peanuts if the passenger has commenters agree that this is a to face the costs and burdens associated requested a peanut-free flight in reasonable standard that strikes a with litigating complaints in advance. The Department asked several balance between providing the most jurisdictions far from their headquarters questions associated with useful and accurate update to the location. IATA and IACA, in addition to accommodating passengers who have a

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severe peanut allergy on flights. For time, address whether a passenger Related Agencies Appropriations Act of instance, we asked about the likelihood would have a severe adverse reaction by 2000, Public Law 106–69—Oct. 9, 1999. of a person with a severe allergy being exposed to airborne peanut This law states: experiencing a serious adverse health particles but notes that airborne Hereafter, none of the funds made available reaction due to exposure to airborne reactions have been anecdotally under this Act, or any other Act, may be used peanut particles onboard an aircraft. reported. FAAN, and other allergy to implement, carry out, or enforce any The Department asked about steps a support organizations, believe that the regulation issued under section 41705 of title person with a severe peanut allergy most practical solution is for carriers not 49, United States Code, including any could take to prepare for a flight. We to serve packaged peanut snacks on regulation contained in Part 382 of title 14, also asked about how we should define flights. FAAN acknowledges that many Code of Federal Regulations, or any other provision of law (including any Act of a peanut product if we chose to take carriers, both U.S. and foreign, are Congress, regulation, or Executive order or action on the issue. already taking this approach. FAAN is any official guidance or correspondence Comments: Most of the comments opposed to the creation of ‘‘buffer zones’’ thereto), that requires or encourages an air regarding accommodations for persons as it believes that to be effective the carrier (as that term is defined in section with peanut allergies were from seats in a buffer zone would need to be 40102 of title 49, United States Code) to, on individual consumers who favor a total peanut-free for all flights on a particular intrastate or interstate air transportation (as ban on peanuts and peanut products on aircraft. those terms are defined in section 40102 of aircraft, including peanut products that Twenty-five members of the U.S. title 49, United States Code)—(1) provide a other passengers bring on board aircraft. House of Representatives submitted a peanut-free buffer zone or any other related peanut-restricted area; or (2) restrict the Most of these consumers either suffer joint letter expressing their opposition distribution of peanuts, until 90 days after from a peanut allergy or are related to to any ban on peanuts and peanut submission to the Congress and the Secretary someone with an allergy. A smaller products and requesting that the of a peer-reviewed scientific study that number of individual commenters Department not proceed with a determines that there are severe reactions by oppose any ban on peanut products rulemaking or any other anti-peanut passengers to peanuts as a result of contact while others support prohibiting measures pending the completion of a with very small airborne peanut particles of carriers from serving peanuts or peanut peer-reviewed study as described in the kind that passengers might encounter in products on aircraft. Commenters who Public Law 106–69. Senator Christopher an aircraft. oppose a ban on peanut and peanut Dodd also commented, stating that a At this time, given the provisions of products as well as commenters who complete ban on peanuts and tree nuts Public Law 106–69, the Department will favor only a service ban on peanut and would be the most direct solution but decline to take action due to a lack of peanut products contend that a total ban that this step is drastic in nature and the peer-reviewed study referred to in on peanuts and peanut products is impractical. Senator Dodd suggests that the law. impractical and unenforceable because DOT encourage a focus on further 13. Effective Date of Rule there is no way to stop passengers from education and training for airline bringing peanut products into the cabin. employees regarding passengers with The NPRM: In the NPRM, we There was also disagreement as to peanut allergies as well as a consistent proposed that the final rule take effect whether peanut-free flights or peanut application of policies by individual 180 days after its publication in the buffer zones are a viable option. Many airlines. Federal Register. We stated that we commenters assert that neither peanut- ATA, the Air Transport Association of believe 180 days would allow sufficient free flights nor peanut buffer zones are Canada, and IACA are against a ban on time for carriers to comply with the a feasible option since the peanut peanuts, stating that carriers cannot various proposed requirements and protein could be present in the buffer ensure that other passengers will not invited comment on whether 180 days zones or on the ‘peanut free’ flight as bring their own peanut products on is the appropriate interval for residue from previous flights. These board for consumption. ATA and IACA completing the changes. consumers state that it is unreasonable also state that carriers have adopted Comments: We received few to expect, and unlikely, that a carrier their own policies and procedures to comments on the effective date of the would thoroughly clean the aircraft handle accommodations for peanut final rule. Among carrier and carrier between each flight to ensure that all allergies. In general, individual carriers association commenters, RAA states that peanut residue is removed from the have deferred this topic to their its members need a minimum of 180 cabin. respective trade organizations. However, days to implement the new rule. On the The peanut trade organizations, led by some carriers such as Southwest and consumer side, AAPR supports the the American Peanut Council (APC), Delta point out that they already have Department’s 180-day proposal. Peanut & Tree Nut Processors voluntarily adopted policies regarding FlyersRights.org and its supporters Association (PTNPA) and the Western buffer-zones for peanut allergy sufferers. suggest that the effective date should be Peanut Growers Association (WPGA), Some foreign carriers, such as no longer than 120 days after the final oppose any Department action that Lufthansa, Air France and KLM, state rule’s publication date. CTA believes would limit the availability of peanuts that a service ban on peanut products is the rule should become effective 120– on commercial aircraft. All three not efficient and would create increased 150 days after the publication date so it organizations point out the Department burdens and costs for airlines. will become effective before the summer is restricted from issuing any regulation Additionally Lufthansa points out that travel season starts. One consumer regarding the service of peanuts on the creation of a service ban on peanut stated that 180 days is reasonable for aircraft per Public Law 106–69, which is products could give a passenger the implementing most items but carriers discussed below. APC also states that false impression that the flight is totally may need additional time for some of research indicates that a severe safe and free of peanuts. the proposed changes. anaphylactic reaction to peanuts can DOT Response: On June 25, 2010, DOT Response: Based on our only occur when there is oral ingestion. DOT published a clarification notice experience in implementing the The Food Allergy & Anaphylaxis stating that the Department will comply December 2009 final rule, which Network (FAAN) states that the with the requirements of the became effective on April 29, 2010, we scientific literature does not, at this Department of Transportation and believe that 120 days is sufficient for

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U.S. and foreign carriers to implement Regulatory Analyses And Notices passengers. The final Regulatory the various requirements in this final Evaluation concludes that the A. Executive Order 12866 (Regulatory monetized benefits of the final rule rule, with the exception of the Planning and Review), DOT Regulatory exceed its monetized costs, even requirements pertaining to full-fare Policies and Procedures, and Executive without considering non-quantifiable advertising. The new full fare Order 13563 (Improving Regulation and benefits. The expected present value of advertising requirements will not take Regulatory Review) effect until 180 days after the monetized passenger benefits from the publication of this final rule in the This action has been determined to be final rule over a 10 year period using a Federal Register to mitigate the costs of significant under Executive Order 12866 7% discount rate is estimated at $45.0 print advertising revision by reducing and the Department of Transportation’s million and the expected present value the amount of advertising slated for use Regulatory Policies and Procedures. It of monetized costs incurred by carriers that will have to be pulled. We are has been reviewed by the Office of and other sellers of air transportation to Management and Budget in accordance comply with the final rule over a 10 imposing a 120-day effective date for the with Executive Order 12866 (Regulatory year period using a 7% discount rate is other requirements in the final rule to Planning and Review) and Executive $30.7 million. The present value of enable consumers to begin benefiting Order 13563 (Improving Regulation and monetized net benefits over a 10 year from these requirements as soon as Regulatory Review) and is consistent period at a 7% discount rate is $14.3 possible. with the requirements in both orders. million. Executive Order 13563 refers to Below, we have included a table nonquantifiable values, including equity outlining the costs and benefits of the and fairness. This rule promotes such requirements in this final rule. A copy values by improving transparency, and of the final Regulatory Evaluation has by preventing unexpected charges to been placed in the docket.

COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2012–2021 [Discounted at 7 percent annually to 2012 $ millions]

Total

Area 1: Expansion of tarmac contingency plan requirements and extension of EAPP1 requirements to cover foreign carriers: Monetized Benefits ...... $1.2 Monetized Costs ...... 3.0 Monetized Net Benefits ...... ¥1.8 Additional unquantifiable benefits and costs that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: Improved Management of Flight Delays Decreased Anxiety With Regard to Flying Reduced Stress Among Delayed Passengers and Crew Improved Overall Carrier Operations Improved Customer Good Will Toward Carriers Additional Gate Return Costs Incurred by Carriers Time Required for Airport/Terminal Authorities, CBP/TSA to Coordinate Plans Area 2: Expanded tarmac delay reporting and application to foreign carriers: Monetized Benefits* ...... 0.0 Monetized Costs ...... 0.8 Monetized Net Benefits ...... ¥0.8 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Increased Efficiency of US DOT Oversight and Enforcement Office Operations Improved Management of Flight Delays Area 3: Establishment of minimum standards for customer service plans (CSPs) and extension of EAPP1 Final Rule Areas to cover foreign carriers: Monetized Benefits ...... 7.7 Monetized Costs ...... 7.4 Monetized Net Benefits ...... 0.3 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Decreased Confusion and Uncertainty Regarding Department CSP Requirements Improved Customer Service From Foreign Carrier Self-Auditing of Adherence to CSPs Improved Customer Good Will Toward Carriers Area 4: Foreign carrier posting of tarmac delay contingency plans, CSPs, and contracts of carriage on websites: Monetized Benefits* ...... 0.0 Monetized Costs ...... 1.0 Monetized Net Benefits ...... ¥1.0 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Decreased Occurrence of and Improved Resolution of Customer Complaints Area 5: Extension of EAPP1 Final Rule Areas for carriers to respond to consumer complaints to cover foreign carriers: Monetized Benefits ...... 0.0 Monetized Costs ...... 1.9 Monetized Net Benefits ...... ¥1.9 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs:

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COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2012–2021—Continued [Discounted at 7 percent annually to 2012 $ millions]

Total

Decreased Anger Toward Carriers During Resolution of Complaints Area 6: Changes in denied boarding compensation (DBC) requirements: Monetized Benefits* ...... 0.0 Monetized Costs ...... 1.0 Monetized Net Benefits ...... ¥1.0 Additional unquantifiable benefits and costs that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: Decreased Confusion Regarding DBC Provisions Decreased Resentment Among Some Passengers Regarding Different Compensation Received Programming and Training Costs for Foreign Carriers Area 7: Full-fare advertising and prohibition on opt-out provisions: Monetized Benefits ...... 29.0 Monetized Costs ...... 6.8 Monetized Net Benefits ...... 22.2 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Travelers Less Likely to Mistakenly Purchase Unwanted Services and Amenities Improved Customer Good Will Toward Carriers Area 8: Expanded disclosure of baggage and other optional fees: Monetized Benefits* ...... 0.0 Monetized Costs ...... 7.9 Monetized Net Benefits ...... ¥7.9 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Decreased Time at Check-in Improved Customer Good Will Toward Carriers Area 9: Limitations on post-purchase price increases: Monetized Benefits ...... 7.2 Monetized Costs ...... 1.1 Monetized Net Benefits ...... 6.1 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Improved Customer Good Will Toward Carriers Area 10: Prompt passenger notification of flight status changes: Monetized Benefits* ...... 0.0 Monetized Costs* ...... 0.0 Monetized Net Benefits ...... 0.0 Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Depart- ment has determined justify the costs: Greater Comfort and Certainty From Knowing That Information Will Be Available in Timely Manner Area 11: Limitations on venue provisions in contracts of carriage: Monetized Benefits* ...... 0.0 Monetized Costs* ...... 0.0 Monetized Net Benefits ...... 0.0 Additional unquantifiable benefits and costs that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: Improved Customer Good Will Toward Carriers Reduced Costs for Consumers to File/Adjudicate Claims Increased Costs for Carriers to Settle/Adjudicate Claims Requirement Areas 1–11 Total: Monetized Benefits ...... 45.0 Monetized Costs ...... 30.7 Monetized Net Benefits ...... 14.3 * Monetized estimates could not be developed from the information available on the record.

B. Regulatory Flexibility Act passengers), 50 small airports (i.e., affected by the requirements of the final The Regulatory Flexibility Act (5 privately-owned airports that have rule. While most regulation of the air U.S.C. 601 et seq.) requires an agency to annual revenues of no more than $7 transportation sector is concerned with review regulations to assess their impact million or publicly-owned airports carriers, certain elements of this final on small entities unless the agency owned by jurisdictions with less than rule impose new requirements on small determines that a rule is not expected to 50,000 inhabitants), as many as 11,625 travel agents and tour operators. Small have a significant economic impact on small travel agencies (i.e., travel U.S. carriers will need to comply with a substantial number of small entities. agencies with no more than $3.5 million additional requirements relating to Our analysis identified a total of 50 in annual revenues) and as many as coordination of tarmac contingency small U.S. air carriers (i.e., carriers that 2,720 small tour operators (i.e., tour plans, reporting tarmac delays, specific provide air transportation exclusively operators with no more than $7.0 customer service plan provisions, with aircraft that seat no more than 60 million in annual revenues) potentially denied boarding compensation,

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advertising of air fares, and disclosure of Because this final rule does not collected, and (4) ways to minimize the baggage and other optional fees. Small significantly or uniquely affect the burden of collection without reducing travel agents and tour operators will communities of the Indian Tribal the quality of the collected information. have to comply with the requirements governments or impose substantial The final rule contains three new relating to advertising of air fares, direct compliance costs on them, the information collection requirements. disclosure of baggage and other optional funding and consultation requirements The first is a requirement that foreign air fees, and pre-purchase disclosures on of Executive Order 13084 do not apply. carriers that operate passenger service price increases. (scheduled and charter) to or from the The Department believes that the E. Paperwork Reduction Act U.S. using any aircraft with 30 or more economic impact will not be significant As required by the Paperwork seats collect and retain for two years the for a number of reasons. First, most Reduction Act of 1995, DOT has following information about any ground small U.S. air carriers operate passenger submitted the Information Collection delay that lasts at least three hours: the service exclusively with aircraft that Requests (ICRs) abstracted below to the length of the delay, the precise cause of have fewer than 30 seats. The Office of Management and Budget the delay, the actions taken to minimize requirements relating to tarmac (OMB). Before OMB decides whether to hardships for passengers, whether the contingency plans, reporting tarmac approve those proposed collections of flight ultimately took off (in the case of delays, specific customer service plan information that are part of this final a departure delay or diversion) or provisions, and denied boarding rule and issue a control number, the returned to the gate; and an explanation compensation will not apply to these public must be provided 30 days to for any tarmac delay that exceeded 3 carriers. In addition, the per-carrier and comment. Organizations and hours. The Department plans to use the per-ticket agent compliance costs individuals desiring to submit information to investigate instances of estimated in the final regulatory comments on the collection information long delays on the ground and to analysis for the remaining requirements requirements should direct them to the identify any trends and patterns that are very small—less than $17,000 per Office of Management and Budget, may develop. The assumptions upon affected small carrier operating aircraft Attention: Desk Officer for the Office of which the calculations for this with between 30 and 60 seats, less than the Secretary of Transportation, Office requirement are based as well as the $4,500 per small carrier operating of Information and Regulatory Affairs, information collection burden hours aircraft with fewer than 30 seats, and Washington, DC 20503, and should also have changed. We have increased our about $3,500 per small travel agent or send a copy of their comments to: estimate for the maximum number of tour operator with online booking Department of Transportation, Office of tarmac delays that a single carrier may capability to achieve compliance during Aviation Enforcement and Proceedings, experience. the first year the final rule takes effect Office of the General Counsel, 1200 New The second is a requirement that U.S. and no more than a few hundred dollars Jersey Avenue, SE., Washington, DC carriers and foreign carriers that operate to maintain compliance in subsequent 20590. OMB is required to make a any aircraft originally designed to have years. On the basis of this examination, decision concerning the collection of a passenger capacity of 30 or more seats the Department certifies that this rule information requirements contained in report monthly tarmac delay data to the will not have a significant economic this rule between 30 and 60 days after Department with respect to their impact on a substantial number of small publication of this document in the operations at a U.S. airport for any entities. A copy of the Final Regulatory Federal Register. Therefore, a comment tarmac delay of three hours or more, Flexibility Analysis has been placed in to OMB is best assured of having its full including diverted flights. This docket. effect if OMB receives it within 30 days requirement would apply to reporting of publication. carriers under 14 CFR part 234 only C. Executive Order 13132 (Federalism) We will respond to any OMB or with respect to their public charter This Final Rule has been analyzed in public comments on the information service and international service, as accordance with the principles and collection requirements contained in reporting carriers already submit tarmac criteria contained in Executive Order this rule. OST may not impose a penalty delay data to the Department for their 13132 (‘‘Federalism’’). This final rule on persons for violating information domestic scheduled passenger service. does not include any provision that: (1) collection requirements which do not The Department plans to use this Has substantial direct effects on the display a current OMB control number, information to obtain more precise data States, the relationship between the if required. OST intends to renew to compare tarmac delay incidents by national government and the States, or current OMB control numbers for the carrier, by airport, and by specific time the distribution of power and three new information collection frame, for use in making future policy responsibilities among the various requirements resulting from this decisions and developing rulemakings. levels of government; (2) imposes rulemaking action. The OMB control We have modified the information substantial direct compliance costs on number, when renewed, will be collection burden hours for this State and local governments; or (3) announced by separate notice in the requirement because carriers are not preempts State law. States are already Federal Register. required to file negative reports as preempted from regulating in this area The ICRs were previously published proposed in the NPRM. Covered carriers by the Airline Deregulation Act, 49 in the Federal Register as part of NPRM will only need to submit the report if U.S.C. 41713. Therefore, the (75 FR 32318, June 8, 2010) and the one or more flights experience delays consultation and funding requirements Department invited interested persons that exceed 3 hours. of Executive Order 13132 do not apply. to submit comments on any aspect of The third is a requirement that any each of these three information foreign air carrier that operates D. Executive Order 13084 collections, including the following: (1) scheduled passenger service to and from This final rule has been analyzed in The necessity and utility of the the U.S. using any aircraft with 30 or accordance with the principles and information collection, (2) the accuracy more seats adopt a customer service criteria contained in Executive Order of the estimate of the burden, (3) ways plan, audit its adherence to the plan 13084 (‘‘Consultation and Coordination to enhance the quality, utility, and annually, and retain the results of each with Indian Tribal Governments’’). clarity of the information to be audit for two years. The Department

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plans to review the audits to monitor Estimated Annual Burden on within seven calendar days of the carriers’ compliance with their plans Respondents: 15 minutes per year for scheduled departure. and take enforcement action when each respondent. Certificated air carrier means a U.S. appropriate. Although we have made Estimated Total Annual Burden: A carrier holding a certificate issued under some modest changes to the customer maximum of 25 hours and 15 minutes 49 U.S.C. 41102 to conduct passenger service plan requirements from what for all respondents. service or holding an exemption to was proposed in the NPRM, these Frequency: One information set to conduct passenger operations under 49 changes do not impact the assumption retain per year for each respondent. U.S.C. 40109. Commuter air carrier means a U.S. upon which the calculations for F. Unfunded Mandates Reform Act retaining the results of each audit are carrier that has been found fit under 49 based. The information collection The Department has determined that U.S.C. 41738 and is authorized to carry burden hours have increased slightly as the requirements of Title II of the passengers on at least five round trips our estimate of the number of carriers Unfunded Mandates Reform Act of 1995 per week on at least one route between covered by this requirement has do not apply to this notice. two or more points according to a changed. Issued this 18th day of April 2011, in published flight schedule using small For each of these information Washington, DC. aircraft as defined in 14 CFR 298.2. Covered carrier means a certificated collections, the title, a description of the Ray LaHood, carrier, a commuter carrier, or a foreign respondents, and an estimate of the Secretary of Transportation. air carrier operating to, from, or within annual recordkeeping and periodic List of Subjects the United States, conducting scheduled reporting burden are set forth below: passenger service or public charter 14 CFR Parts 250 and 259 1. Requirement to retain for two years service with at least one aircraft having information about any ground delay Air carriers, Consumer protection, a designed passenger seating capacity of that lasts at least three hours. Reporting and recordkeeping 30 or more seats. Respondents: Foreign air carriers that requirements. Diverted flight means a flight which is operate passenger service to and from operated from the scheduled origin 14 CFR Part 244 the U.S. using any aircraft originally point to a point other than the designed to have a passenger capacity of Air carriers, Consumer protection, scheduled destination point in the 30 or more seats. Tarmac delay data. carrier’s published schedule. For Estimated Annual Burden on 14 CFR Part 253 example, a carrier has a published Respondents: A maximum of 54 hours schedule for a flight from A to B to C. per respondent. Air carriers, Consumer protection, If the carrier were to actually fly an A Estimated Total Annual Burden: Contract of carriage. to C operation, the A to B segment is a 2,226 hours for all respondents. 14 CFR Part 399 diverted flight, and the B to C segment Frequency: One information set to is a cancelled flight. The same would Administrative practice and apply if the flight were to operate from retain per three hour plus tarmac delay procedure, Air carriers, Air rates and for each respondent. A to an airport other than B or C. fares, Air taxis, Consumer protection, Foreign air carrier means a carrier that 2. Requirement that carrier report Small businesses. certain tarmac delay data for tarmac is not a citizen of the United States as For the reasons set forth in the defined in 49 U.S.C. 40102(a) that holds delays exceeding 3 hours to the preamble, the Department amends 14 Department on a monthly basis. a foreign air carrier permit issued under CFR Chapter II as follows: 49 U.S.C. 41302 or an exemption issued Respondents: U.S. carriers that ■ 1. Add part 244 to read as follows: under 49 U.S.C. 40109 authorizing operate passenger service using any direct foreign air transportation. aircraft with 30 or more seats, and PART 244—REPORTING TARMAC Gate departure time is the instant foreign air carriers that operate DELAY DATA when the pilot releases the aircraft passenger service to and from the parking brake after passengers have United States using any aircraft Sec. boarded and aircraft doors have closed. originally designed to have a passenger 244.1 Definitions. In cases where the flight returned to the capacity of 30 or more seats. 244.2 Applicability. 244.3 Reporting of tarmac delay data. departure gate before wheels-off time Estimated Annual Burden on and departs a second time, the Respondents: 0.5 to 10 hours per Authority: 49 U.S.C. 40101(a)(4), 40101(a)(9), 40113(a), 41702, and 41712. reportable gate departure time for domestic respondent and 0.5 to 4.5 purposes of this Part is the last gate hours per foreign respondent. § 244.1 Definitions. departure time before wheels-off time. Estimated Total Annual Burden: 134 Arrival time is the instant when the In cases of a return to the gate after 4 hours for all respondents. pilot sets the aircraft parking brake after wheels-off time, the reportable gate Frequency: One information set to arriving at the airport gate or passenger departure time is the last gate departure submit per month for each respondent unloading area. If the parking brake is time before the gate return. If passengers that experiences a tarmac delay of more not set, record the time for the opening were boarded without the parking brake than 3 hours at a U.S. airport. of the passenger door. Also, for being set, the reportable gate departure 3. Requirement that carrier retain for purposes of section 244.3 carriers using time is the time that the last passenger two years the results of its annual self- a Docking Guidance System (DGS) may door was closed. Also, the official ‘‘gate- audit of its compliance with its record the official ‘‘gate-arrival time’’ departure time’’ may be based on aircraft Customer Service Plan. when the aircraft is stopped at the movement for carriers using a Docking Respondents: Foreign air carriers that appropriate parking mark. Guidance System (DGS). For example, operate scheduled passenger service to Cancelled flight means a flight one DGS records gate departure time and from the U.S. using any aircraft operation that was not operated, but was when the aircraft moves more than 1 originally designed to have a passenger listed in an air carrier or a foreign air meter from the appropriate parking capacity of 30 or more seats. carrier’s computer reservation system mark within 15 seconds. Fifteen

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seconds is then subtracted from the passenger flights to or from any U.S. ■ 3. Section 250.1 is amended by recorded time to obtain the appropriate medium hub airport, small hub airport removing the definition of ‘‘sum of the ‘‘out’’ time. and non-hub airport to the extent they values of the remaining flight coupons’’ Gate Return time means the time that do not report such information under 14 and ‘‘comparable air transportation,’’ an aircraft that has left the boarding gate CFR 234.7. revising the definition for ‘‘confirmed returns to a gate or other position at an reserved space,’’ and adding a definition airport for the purpose of allowing § 244.3 Reporting of tarmac delay data. for ‘‘alternate transportation,’’ ‘‘class of passengers the opportunity to disembark (a) Each covered carrier shall file BTS service,’’ ‘‘fare,’’ and ‘‘zero fare ticket’’ to from the aircraft. Form 244 ‘‘Tarmac Delay Report’’ with read as follows: Large hub airport means an airport the Office of Airline Information of the that accounts for at least 1.00 percent of Department’s Bureau of Transportation § 250.1 Definitions. the total enplanements in the United Statistics on a monthly basis, setting * * * * * States. forth the information for each of its Alternate transportation means air Medium hub airport means an airport covered flights that experienced a transportation with a confirmed accounting for at least 0.25 percent but tarmac delay of three hours or more, reservation at no additional charge, less than 1.00 percent of the total including diverted flights and cancelled operated by a carrier as defined below, enplanements in the United States. flights on which the passengers were or other transportation accepted and Non-hub airport means an airport boarded and then deplaned before the used by the passenger in the case of with 10,000 or more annual cancellation. The reports are due within denied boarding. enplanements but less than 0.05 percent 15 days after the end of the month * * * * * of the total enplanements in the United during which the carrier experienced Class of service means seating in the States. any tarmac delay of three hours or more. same cabin class such as First, Business, Small hub airport means an airport The reports shall be made in the form or Economy class, or in the same seating accounting for at least 0.05 percent but and manner set forth in accounting and zone if the carrier has more than one less than 0.25 percent of the total reporting directives issued by the seating product in the same cabin such enplanements in the United States. Director, Office of Airline Information, as Economy and Premium Economy Tarmac delay means the holding of an and shall contain the following class. aircraft on the ground either before information: Confirmed reserved space means taking off or after landing with no (1) Carrier code space on a specific date and on a opportunity for its passengers to (2) Flight number specific flight and class of service of a deplane. (3) Departure airport (three letter carrier which has been requested by a code) passenger, including a passenger with a § 244.2 Applicability. (4) Arrival airport (three letter code) ‘‘zero fare ticket,’’ and which the carrier (a) Except as provided in paragraph (5) Date of flight operation (year/ or its agent has verified, by appropriate (b) of this section, this part applies to month/day) notation on the ticket or in any other U.S. certificated air carriers, U.S. (6) Gate departure time (actual) in manner provided therefore by the commuter air carriers and foreign air local time carrier, as being reserved for the carriers that operate passenger service to (7) Gate arrival time (actual) in local accommodation of the passenger. or from a U.S. airport with at least one time Fare means the price paid for air aircraft that has an original (8) Wheels-off time (actual) in local transportation including all mandatory manufacturer’s design capacity of 30 or time taxes and fees. It does not include more seats. Covered carriers must report (9) Wheels-on time (actual) in local ancillary fees for optional services. all passenger operations that experience time (10) Aircraft tail number * * * * * a tarmac time of 3 hours or more at a Zero fare ticket means a ticket U.S. airport. (11) Total ground time away from gate for all gate return/fly return at origin acquired without a substantial monetary (b) For foreign air carriers that operate payment such as by using frequent flyer charter flights from foreign airports to airports including cancelled flights (12) Longest time away from gate for miles or vouchers, or a consolidator U.S. airports, and return to foreign ticket obtained after a monetary airports, and do not pick up any new gate return or canceled flight (13) Three letter code of airport where payment that does not show a fare passengers in the U.S., the charter amount on the ticket. A zero fare ticket flights are not flights subject to the flight diverted (14) Wheels-on time at diverted does not include free or reduced rate air reporting requirements of this part. transportation provided to airline (c) U.S. carriers that submit Part 234 airport employees and guests. Airline Service Quality Performance (15) Total time away from gate at diverted airport ■ 4. Section 250.2b is amended by Reports must submit 3-hour tarmac adding paragraph (c) to read as follows: delay information for public charter (16) Longest time away from gate at flights and international passenger diverted airport § 250.2b Carriers to request volunteers for (17) Wheels-off time at diverted flights to or from any U.S. large hub denied boarding. airport airport, medium hub airport, small hub (b) The same information required by * * * * * airport and non-hub airport. These (c) If a carrier offers free or reduced paragraph (a)(13) through (17) of this carriers are already required to submit rate air transportation as compensation section must be provided for each such information for domestic to volunteers, the carrier must disclose subsequent diverted airport landing. scheduled flights to or from U.S. large all material restrictions, including but hub airports under art 234 of this PART 250—OVERSALES not limited to administrative fees, chapter. These carriers that are covered advance purchase or capacity by part 234 need only submit ■ 2. The authority citation for 14 CFR restrictions, and blackout dates information for flights with tarmac Part 250 continues to read as follows: applicable to the offer before the delays of more than 3 hours under this Authority: 49 U.S.C. chapters 401, 411, passenger decides whether to give up part 244 for domestic scheduled 413 and 417. his or her confirmed reserved space on

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that flight in exchange for the free or arrive at the airport of the passenger’s (1) Current Denied Boarding reduced rate transportation. first stopover, or if not, the airport of the Compensation limit in section ■ 5. Section 250.5 is revised to read as passenger’s final destination more than 250.5(a)(2) multiplied by (a/b) rounded follows: one hour but less than four hours after to the nearest $25 where: the planned arrival time of the § 250.5 Amount of denied boarding a = July CPI–U of year of current adjustment compensation for passengers denied passenger’s original flight; and b = the CPI–U figure in August, 2011 when boarding involuntarily. (3) Compensation shall be 400% of the inflation adjustment provision was the fare to the passenger’s destination or added to Part 250. (a) Subject to the exceptions provided first stopover, with a maximum of in § 250.6, a carrier to whom this part (2) The Denied Boarding $1,300, if the carrier does not offer applies as described in § 250.2 shall pay Compensation limit in § 250.5(a)(3) alternate transportation that, at the time compensation in interstate air shall be twice the revised limit for the arrangement is made, is planned to transportation to passengers who are § 250.5(a)(2). arrive at the airport of the passenger’s denied boarding involuntarily from an (f) In addition to the denied boarding first stopover, or if not, the airport of the oversold flight as follows: compensation specified in this part, a (1) No compensation is required if the passenger’s final destination less than carrier shall refund all unused ancillary carrier offers alternate transportation four hours after the planned arrival time fees for optional services paid by a that, at the time the arrangement is of the passenger’s original flight. passenger who is voluntarily or made, is planned to arrive at the airport (c) Carriers may offer free or reduced involuntarily denied boarding. The of the passenger’s first stopover, or if rate air transportation in lieu of the cash carrier is not required to refund the none, the airport of the passenger’s final or check due under paragraphs (a) and ancillary fees for services that are destination not later than one hour after (b) of this section, if— provided with respect to the passenger’s the planned arrival time of the (1) The value of the transportation alternate transportation. passenger’s original flight; benefit offered, excluding any fees or ■ 6 . In § 250.9, the section heading and (2) Compensation shall be 200% of other mandatory charges applicable for paragraph (b) are revised and paragraph the fare to the passenger’s destination or using the free or reduced rate air (c) is added to read as follows: first stopover, with a maximum of $650, transportation, is equal to or greater if the carrier offers alternate than the cash/check payment otherwise § 250.9 Written explanation of denied transportation that, at the time the required; boarding compensation and boarding (2) The carrier fully informs the priorities, and verbal notification of denied arrangement is made, is planned to boarding compensation. arrive at the airport of the passenger’s passenger of the amount of cash/check first stopover, or if none, the airport of compensation that would otherwise be * * * * * the passenger’s final destination more due and that the passenger may decline (b) The statement shall read as than one hour but less than two hours the transportation benefit and receive follows: the cash/check payment; and after the planned arrival time of the Compensation for Denied Boarding passenger’s original flight; and (3) The carrier fully discloses all (3) Compensation shall be 400% of material restrictions, including but not If you have been denied a reserved seat on the fare to the passenger’s destination or limited to, administrative fees, advance (name of air carrier), you are probably entitled to monetary compensation. This first stopover, with a maximum of purchase or capacity restrictions, and blackout dates applicable to the offer, on notice explains the airline’s obligation and $1,300, if the carrier does not offer the passenger’s rights in the case of an alternate transportation that, at the time the use of such free or reduced rate oversold flight, in accordance with the arrangement is made, is planned to transportation before the passenger regulations of the U.S. Department of arrive at the airport of the passenger’s decides to give up the cash/check Transportation. payment in exchange for such first stopover, or if none, the airport of Volunteers and Boarding Priorities the passenger’s final destination less transportation. than two hours after the planned arrival (d) The requirements of this section If a flight is oversold (more passengers hold confirmed reservations than there are seats time of the passenger’s original flight. apply to passengers with ‘‘zero fare ’’ available), no one may be denied boarding (b) Subject to the exceptions provided tickets. The fare paid by these against his or her will until airline personnel in § 250.6, a carrier to whom this part passengers for purposes of calculating first ask for volunteers who will give up their applies as described in § 250.2 shall pay denied boarding compensation shall be reservation willingly, in exchange for compensation to passengers in foreign the lowest cash, check, or credit card compensation of the airline’s choosing. If air transportation who are denied payment charged for a ticket in the same there are not enough volunteers, other boarding involuntarily at a U.S. airport class of service on that flight. passengers may be denied boarding from an oversold flight as follows: (e) The Department of Transportation involuntarily in accordance with the (1) No compensation is required if the will review the maximum denied following boarding priority of (name of air carrier offers alternate transportation boarding compensation amounts carrier): (In this space the carrier inserts its boarding priority rules or a summary thereof, that, at the time the arrangement is prescribed in this part every two years in a manner to be understandable to the made, is planned to arrive at the airport except for the first review, which will average passenger.) of the passenger’s first stopover, or if take place in 2012 in order to put the not, the airport of the passenger’s final reviews specified in this section on the Compensation for Involuntary Denied destination not later than one hour after same cycle as the reviews of domestic Boarding the planned arrival time of the baggage liability limits specified in 14 If you are denied boarding involuntarily, passenger’s original flight; CFR 254.6. The Department will use any you are entitled to a payment of ‘‘denied (2) Compensation shall be 200% of increase in the Consumer Price Index boarding compensation’’ from the airline unless: the fare to the passenger’s destination or for All Urban Consumers (CPI–U) as of (1) you have not fully complied with the first stopover, with a maximum of $650, July of each review year to calculate the airline’s ticketing, check-in and if the carrier offers alternate increased maximum compensation reconfirmation requirements, or you are not transportation that, at the time the amounts. The Department will use the acceptable for transportation under the arrangement is made, is planned to following formula: airline’s usual rules and practices; or

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(2) you are denied boarding because the the passenger’s original flight; and (3) 400% § 250.10 Report of passengers denied flight is canceled; or of the fare to the passenger’s destination or confirmed space. (3) you are denied boarding because a first stopover, with a maximum of $1,300, if Every reporting carrier as defined in the carrier does not offer alternate smaller capacity aircraft was substituted for § 234.2 of this chapter and any carrier safety or operational reasons; or transportation that is planned to arrive at the (4) on a flight operated with an aircraft airport of the passenger’s destination or first that voluntarily submits data pursuant having 60 or fewer seats, you are denied stopover less than four hours after the to § 234.7 of this chapter shall file, on boarding due to safety-related weight/balance planned arrival time of the passenger’s a quarterly basis, the information restrictions that limit payload; or original flight. specified in BTS Form 251. The (5) you are offered accommodations in a reporting basis shall be flight segments section of the aircraft other than specified in 0 to 1 hour arrival No compensation. originating in the United States. The your ticket, at no extra charge (a passenger delay. reports are to be submitted within 30 seated in a section for which a lower fare is 1 to 4 hour arrival 200% of one-way fare days after the end of the quarter covered charged must be given an appropriate delay. (but no more than refund); or $650). by the report. The calendar quarters end (6) the airline is able to place you on Over 4 hours arrival 400% of one-way fare March 31, June 30, September 30 and another flight or flights that are planned to delay. (but no more than December 31. ‘‘Total Boardings’’ on Line reach your next stopover or final destination $1,300). 7 of Form 251 shall include only within one hour of the planned arrival time passengers on flights for which of your original flight. Alternate Transportation confirmed reservations are offered. Data Amount of Denied Boarding Compensation ‘‘Alternate transportation’’ is air shall not be included for inbound transportation with a confirmed reservation international flights. Domestic Transportation at no additional charge (by any scheduled Passengers traveling between points within airline licensed by DOT), or other PART 253—NOTICE OF TERMS OF the United States (including the territories transportation accepted and used by the CONTRACT OF CARRIAGE and possessions) who are denied boarding passenger in the case of denied boarding. involuntarily from an oversold flight are ■ 8. The authority citation for 14 CFR entitled to: (1) No compensation if the carrier Method of Payment Part 253 continues to read as follows: offers alternate transportation that is planned Except as provided below, the airline must to arrive at the passenger’s destination or first give each passenger who qualifies for Authority: 49 U.S.C. 40113; 49 U.S.C. stopover not later than one hour after the involuntary denied boarding compensation a Chapters 401, 415 and 417. planned arrival time of the passenger’s payment by cash or check for the amount ■ 9. Section 253.7 is revised to read as original flight; (2) 200% of the fare to the specified above, on the day and at the place follows: passenger’s destination or first stopover, with the involuntary denied boarding occurs. If a maximum of $650, if the carrier offers the airline arranges alternate transportation § 253.7 Direct notice of certain terms. alternate transportation that is planned to for the passenger’s convenience that departs A carrier may not impose any terms arrive at the passenger’s destination or first before the payment can be made, the restricting refunds of the ticket price, payment shall be sent to the passenger within stopover more than one hour but less than imposing monetary penalties on two hours after the planned arrival time of 24 hours. The air carrier may offer free or the passenger’s original flight; and (3) 400% discounted transportation in place of the passengers, or raising the ticket price of the fare to the passenger’s destination or cash payment. In that event, the carrier must consistent with § 399.87 of the chapter, first stopover, with a maximum of $1,300, if disclose all material restrictions on the use of unless the passenger receives the carrier does not offer alternate the free or discounted transportation before conspicuous written notice of the transportation that is planned to arrive at the the passenger decides whether to accept the salient features of those terms on or airport of the passenger’s destination or first transportation in lieu of a cash or check with the ticket. stopover less than two hours after the payment. The passenger may insist on the ■ 10. Section 253.10 is added to read as cash/check payment or refuse all planned arrival time of the passenger’s follows: original flight. compensation and bring private legal action. Passenger’s Options § 253.10 Notice of contract of carriage 0 to 1 hour arrival No compensation. choice-of-forum provisions. Acceptance of the compensation may delay. relieve (name of air carrier) from any further No carrier may impose any contract of 1 to 2 hour arrival 200% of one-way fare liability to the passenger caused by its failure carriage provision containing a choice- delay. (but no more than to honor the confirmed reservation. However, of-forum clause that attempts to $650). the passenger may decline the payment and Over 2 hours arrival 400% of one-way fare preclude a passenger, or a person who seek to recover damages in a court of law or purchases a ticket for air transportation delay. (but no more than in some other manner. $1,300). on behalf of a passenger, from bringing (c) In addition to furnishing a claim against a carrier in any court of International Transportation passengers with the carrier’s written competent jurisdiction, including a Passengers traveling from the United States statement as specified in paragraphs (a) court within the jurisdiction of that to a foreign point who are denied boarding and (b) of this section, if the carrier passenger’s residence in the United involuntarily from an oversold flight orally advises involuntarily bumped States (provided that the carrier does originating at a U.S. airport are entitled to: (1) passengers that they are entitled to business within that jurisdiction). No compensation if the carrier offers receive free or discounted transportation alternate transportation that is planned to as denied boarding compensation, the PART 259—ENHANCED arrive at the passenger’s destination or first carrier must also orally advise the PROTECTIONS FOR AIRLINE stopover not later than one hour after the passengers of any material restrictions PASSENGERS planned arrival time of the passenger’s or conditions applicable to the free or original flight; (2) 200% of the fare to the ■ discounted transportation and that they 11. The authority citation for 14 CFR passenger’s destination or first stopover, with Part 259 continues to read as follows: a maximum of $650, if the carrier offers are entitled to choose a check instead alternate transportation that is planned to (or cash if that option is offered by the Authority: 49 U.S.C. 40101(a)(4), arrive at the passenger’s destination or first carrier). 40101(a)(9), 40113(a), 41702, and 41712. stopover more than one hour but less than ■ 7. Section 250.10 is revised to read as ■ 12. Section 259.2 is revised to read as four hours after the planned arrival time of follows: follows:

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§ 259.2 Applicability. Tarmac delay means the holding of an (4) For all flights, assurance of This part applies to all the flights of aircraft on the ground either before operable lavatory facilities, as well as a certificated or commuter air carrier if taking off or after landing with no adequate medical attention if needed, the carrier operates scheduled passenger opportunity for its passengers to while the aircraft remains on the tarmac; service or public charter service using deplane. (5) For all flights, assurance that the any aircraft originally designed to have ■ 14. Section 259.4 is revised to read as passengers on the delayed flight will a passenger capacity of 30 or more seats, follows: receive notifications regarding the status and to all flights to and from the U.S. of the delay every 30 minutes while the § 259.4 Contingency Plan for Lengthy aircraft is delayed, including the reasons of a foreign carrier if the carrier operates Tarmac Delays. scheduled passenger service or public for the tarmac delay, if known; charter service to and from the U.S. (a) Adoption of Plan. Each covered (6) For all flights, assurance that the using any aircraft originally designed to carrier shall adopt a Contingency Plan passengers on the delayed flight will be have a passenger capacity of 30 or more for Lengthy Tarmac Delays for its notified beginning 30 minutes after seats, except as otherwise provided in scheduled and public charter flights at scheduled departure time (including this part. This part does not apply to each U.S. large hub airport, medium any revised departure time that foreign carrier charters that operate to hub airport, small hub airport and non- passengers were notified about before and from the United States if no new hub airport at which it operates or boarding) and every 30 minutes passengers are picked up in the United markets such air service and shall thereafter that they have the opportunity States. adhere to its plan’s terms. to deplane from an aircraft that is at the ■ 13. Section 259.3 is revised to read as (b) Contents of Plan. Each gate or another disembarkation area follows: Contingency Plan for Lengthy Tarmac with the door open if the opportunity to Delays shall include, at a minimum, the deplane actually exists; § 259.3 Definitions. following: (7) Assurance of sufficient resources Certificated air carrier means a U.S. (1) For domestic flights, assurance to implement the plan; and carrier holding a certificate issued under that the covered U.S. air carrier will not (8) Assurance that the plan has been 49 U.S.C. 41102 to conduct passenger permit an aircraft to remain on the coordinated with airport authorities service or holding an exemption to tarmac for more than three hours before (including terminal facility operators conduct passenger operations under 49 allowing passengers to deplane unless: where applicable) at each U.S. large hub U.S.C. 41102. (i) The pilot-in-command determines airport, medium hub airport, small hub Commuter air carrier means a U.S. there is a safety-related or security- airport and non-hub airport that the carrier that has been found fit under 49 related reason (e.g. weather, a directive carrier serves, as well as its regular U.S. U.S.C. 41738 and is authorized to carry from an appropriate government agency) diversion airports; passengers on at least five round trips why the aircraft cannot leave its (9) Assurance that the plan has been per week on at least one route between position on the tarmac to deplane coordinated with U.S. Customs and two or more points according to a passengers; or Border Protection (CBP) at each large published flight schedule using small (ii) Air traffic control advises the U.S. hub airport, medium hub airport, aircraft as defined in 14 CFR 298.2. pilot-in-command that returning to the small hub airport and non-hub airport Covered carrier means a certificated gate or another disembarkation point that is regularly used for that carrier’s carrier, a commuter carrier, or a foreign elsewhere in order to deplane international flights, including air carrier operating to, from or within passengers would significantly disrupt diversion airports; and the United States, conducting scheduled airport operations. (10) Assurance that the plan has been passenger service or public charter (2) For international flights operated coordinated with the Transportation service with at least one aircraft having by covered carriers that depart from or Security Administration (TSA) at each a designed seating capacity of 30 or arrive at a U.S. airport, assurance that U.S. large hub airport, medium hub more seats. the carrier will not permit an aircraft to airport, small hub airport and non-hub Foreign air carrier means a carrier that remain on the tarmac at a U.S. airport airport that the carrier serves, including is not a citizen of the United States as for more than four hours before allowing diversion airports. defined in 49 U.S.C. 40102(a) that holds passengers to deplane, unless: (c) Code-Share Responsibility. The a foreign air carrier permit issued under (i) The pilot-in-command determines tarmac delay contingency plan of the 49 U.S.C. 41302 or an exemption issued there is a safety-related or security- carrier under whose code the service is under 49 U.S.C. 40109 authorizing related reason why the aircraft cannot marketed governs, if different from the direct foreign air transportation. leave its position on the tarmac to operating carrier, unless the marketing Large hub airport means an airport deplane passengers; or carrier specifies in its contract of that accounts for at least 1.00 percent of (ii) Air traffic control advises the carriage that the operating carrier’s plan the total enplanements in the United pilot-in-command that returning to the governs. States. gate or another disembarkation point (d) Amendment of plan. At any time, Medium hub airport means an airport elsewhere in order to deplane a carrier may amend its Contingency accounting for at least 0.25 percent but passengers would significantly disrupt Plan for Lengthy Tarmac Delays to less than 1.00 percent of the total airport operations. decrease the time for aircraft to remain enplanements in the United States. (3) For all flights, assurance that the on the tarmac for domestic flights Non-hub airport means an airport carrier will provide adequate food and covered in paragraph (b)(1) of this with 10,000 or more annual potable water no later than two hours section, for aircraft to remain on the enplanements but less than 0.05 percent after the aircraft leaves the gate (in the tarmac for international flights covered of the country’s annual passenger case of a departure) or touches down (in in paragraph (b)(2) of this section, and boardings. the case of an arrival) if the aircraft for the trigger point for food and water Small hub airport means an airport remains on the tarmac, unless the pilot- covered in paragraph (b)(3) of this accounting for at least 0.05 percent but in-command determines that safety or section. A carrier may also amend its less than 0.25 percent of the total security considerations preclude such plan to increase these intervals (up to enplanements in the United States. service; the limits in this rule), in which case the

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amended plan shall apply only to cancelled without penalty, for at least contingency plan on its website in departures that are first offered for sale twenty-four hours after the reservation easily accessible form. after the plan’s amendment. is made if the reservation is made one (b) Each U.S. air carrier that has a (e) Retention of records. Each carrier week or more prior to a flight’s website and each foreign air carrier that that is required to adopt a Contingency departure; has a website marketed to U.S. Plan for Lengthy Tarmac Delays shall (5) Where ticket refunds are due, consumers, and that is required to adopt retain for two years the following providing prompt refunds, as required a customer service plan, shall post its information about any tarmac delay that by 14 CFR 374.3 and 12 CFR part 226 current customer service plan on its lasts more than three hours: for credit card purchases, and within 20 website in easily accessible form. (1) The length of the delay; days after receiving a complete refund (c) Each U.S. air carrier that has a (2) The precise cause of the delay; request for cash and check purchases, website and each foreign air carrier that (3) The actions taken to minimize including refunding fees charged to a has a website marketed to U.S. hardships for passengers, including the passenger for optional services that the consumers shall post its current contract provision of food and water, the passenger was unable to use due to an of carriage on its website in easily maintenance and servicing of lavatories, oversale situation or flight cancellation; accessible form. and medical assistance; (6) Properly accommodating ■ 17. Section 259.7 is revised to read as (4) Whether the flight ultimately took passengers with disabilities, as required follows: off (in the case of a departure delay or by part 382 of this chapter, and other § 259.7 Response to consumer problems. diversion) or returned to the gate; and special-needs passengers as set forth in (a) Designated advocates for (5) An explanation for any tarmac the carrier’s policies and procedures, passengers’ interests. Each covered delay that exceeded 3 hours (i.e., why including during lengthy tarmac delays; the aircraft did not return to the gate by (7) Meeting customers’ essential needs carrier shall designate for its scheduled the 3-hour mark). during lengthy tarmac delays as flights an employee who shall be (f) Unfair and deceptive practice. A required by § 259.4 of this chapter and responsible for monitoring the effects of carrier’s failure to comply with the as provided for in each covered carrier’s flight delays, flight cancellations, and assurances required by this rule and contingency plan; lengthy tarmac delays on passengers. contained in its Contingency Plan for (8) Handling ‘‘bumped’’ passengers This employee shall have input into Lengthy Tarmac Delays will be with fairness and consistency in the decisions on which flights to cancel and considered to be an unfair and case of oversales as required by part 250 which will be delayed the longest. (b) Informing consumers how to deceptive practice within the meaning of this chapter and as described in each complain. Each covered carrier shall of 49 U.S.C. 41712 that is subject to carrier’s policies and procedures for make available the mailing address and enforcement action by the Department. determining boarding priority; ■ 15. Section 259.5 is revised to read as (9) Disclosing cancellation policies, e-mail or web address of the designated follows: frequent flyer rules, aircraft seating department in the airline with which to file a complaint about its scheduled § 259.5 Customer Service Plan. configuration, and lavatory availability on the selling carrier’s website, and service. This information shall be (a) Adoption of Plan. Each covered upon request, from the selling carrier’s provided on the U.S. carrier’s website (if carrier shall adopt a Customer Service telephone reservations staff; any) and the foreign carrier’s website (if Plan applicable to its scheduled flights (10) Notifying consumers in a timely marketed to U.S. consumers), on all e- and shall adhere to the plan’s terms. manner of changes in their travel ticket confirmations and, upon request, (b) Contents of Plan. Each Customer itineraries; at each ticket counter and boarding gate Service Plan shall address the following (11) Ensuring responsiveness to staffed by the carrier or a contractor of subjects and comply with the minimum consumer problems as required by the carrier. standards set forth: § 259.7 of this chapter; and (c) Response to complaints. Each (1) Disclosing on the carrier’s website, (12) Identifying the services it covered carrier shall acknowledge in at the ticket counter, or when a provides to mitigate passenger writing receipt of each complaint customer calls the carrier’s reservation inconveniences resulting from flight regarding its scheduled service to the center to inquire about a fare or to make cancellations and misconnections. complainant within 30 days of receiving a reservation, that the lowest fare (c) Self-auditing of plan and retention it and shall send a substantive written offered by the carrier may be available of records. Each carrier that is required response to each complainant within 60 elsewhere if that is the case; to adopt a Customer Service Plan shall days of receiving the complaint. A (2) Notifying consumers of known audit its own adherence to its plan complaint is a specific written delays, cancellations, and diversions as annually. Carriers shall make the results expression of dissatisfaction concerning required by 14 CFR 259.8 of this of their audits available for the a difficulty or problem which the person chapter; Department’s review upon request for experienced when using or attempting (3) Delivering baggage on time, two years following the date any audit to use an airline’s services. (d) Social networking sites. Each including making every reasonable is completed. effort to return mishandled baggage ■ 16. Section 259.6 is revised to read as covered carrier that uses a social within twenty-four hours, compensating follows: networking site (e.g. Facebook, Twitter) passengers for reasonable expenses that and that does not intend for that site to result due to delay in delivery, as § 259.6 Posting of Contracts of Carriage, be a vehicle for receipt of written required by 14 CFR part 254 for Tarmac Delay Contingency Plans and consumer complaints subject to this domestic flights and as required by Customer Service Plans on websites. section shall clearly indicate on the applicable international agreements for (a) Each U.S. air carrier that has a carrier’s primary page on that social international flights, and reimbursing website and each foreign air carrier that networking site that it will not reply to passengers for any fee charged to has a website marketed to U.S. consumer complaints on that site and transport a bag if that bag is lost; consumers, and that is required to adopt shall direct consumers to the carrier’s (4) Allowing reservations to be held at a contingency plan for lengthy tarmac mailing address and e-mail or website the quoted fare without payment, or delays, shall post its current location for filing written complaints.

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■ 18. Section 259.8 is added to read as ■ 20. Effective October 24, 2011, service is automatically added to the follows: § 399.84 is revised to read as follows: consumer’s purchase if the consumer takes no other action, i.e., if the § 259.8 Notify passengers of known § 399.84 Price advertising and opt-out consumer does not opt out. The delays, cancellations, and diversions. provisions. consumer must affirmatively ‘‘opt in’’ (a) Each covered carrier for its (a) The Department considers any (i.e., agree) to such a service and the fee scheduled flights to, from or within the advertising or solicitation by a direct air for it before that fee is added to the total U.S. must promptly provide to carrier, indirect air carrier, an agent of price for the air transportation-related passengers who are ticketed or hold either, or a ticket agent, for passenger air purchase. The Department considers the reservations, and to the public, transportation, a tour (i.e., a use of ‘‘opt-out’’ provisions to be an information about a change in the status combination of air transportation and unfair and deceptive practice in of a flight within 30 minutes after the ground or cruise accommodations) or violation of 49 U.S.C. 41712. carrier becomes aware of such a change tour component (e.g., a hotel stay) that ■ 21. Section 399.85 is added to read as in the status of a flight. A change in the must be purchased with air follows: status of a flight means, at a minimum, transportation that states a price for such air transportation, tour, or tour § 399.85 Notice of baggage fees and other cancellation of a flight, a delay of 30 fees. minutes or more in the planned component to be an unfair and operation of a flight, or a diversion. The deceptive practice in violation of 49 (a) If a U. S. or foreign air carrier has a website accessible for ticket purchases flight status information must at a U.S.C. 41712, unless the price stated is by the general public in the U.S., the minimum be provided in the boarding the entire price to be paid by the carrier must promptly and prominently gate area for the flight at a U.S. airport, customer to the carrier, or agent, for disclose any increase in its fee for carry- on the carrier’s website, and via the such air transportation, tour, or tour on or first and second checked bags and carrier’s telephone reservation system component. Although charges included any change in the first and second upon inquiry by any person. within the single total price listed (e.g., government taxes) may be stated checked bags or carry-on allowance for (1) With respect to any U.S. carrier or separately or through links or ‘‘pop ups’’ a passenger on the homepage of that foreign air carrier that permits on websites that display the total price, website (e.g., provide a link that says passengers to subscribe to flight status such charges may not be false or ‘‘changed bag rules’’ or similarly notification services, the carrier must misleading, may not be displayed descriptive language and takes the deliver such notification to such prominently, may not be presented in consumer from the homepage directly to passengers, by whatever means is the same or larger size as the total price, a pop-up or a place on another webpage available to the carrier and of the and must provide cost information on a that details the change in baggage passenger’s choice, within 30 minutes per passenger basis that accurately allowance or fees and the effective dates after the carrier becomes aware of such reflects the cost of the item covered by of such changes). Such notice must a change in the status of a flight. the charge. remain on the homepage for at least (2) The U.S. carrier or foreign air (b) The Department considers any three months after the change becomes carrier shall incorporate such advertising by the entities listed in effective. notification service commitment into its paragraph (a) of this section of an each- (b) If a U.S. carrier, a foreign air Customer Service Plan as specified in way airfare that is available only when carrier, an agent of either, or a ticket section 259.5 of this chapter. purchased for round-trip travel to be an agent has a website accessible for ticket (b) For its scheduled flights to, from unfair and deceptive practice in purchases by the general public in the or within the U.S, within 30 minutes violation of 49 U.S.C. 41712, unless U.S., the carrier or agent must clearly after the carrier becomes aware of a such airfare is advertised as ‘‘each way’’ and prominently disclose on the first flight cancellation, a flight delay of 30 and in such a manner so that the screen in which the agent or carrier minutes or more, or a flight diversion, disclosure of the round-trip purchase offers a fare quotation for a specific each covered carrier must update all requirement is clearly and itinerary selected by a consumer that flight status displays and other sources conspicuously noted in the additional airline fees for baggage may of flight information that are under the advertisement and is stated prominently apply and where consumers can see carrier’s control at U.S. airports with and proximately to the each-way fare these baggage fees. An agent may refer information on that flight irregularity. amount. The Department considers it to consumers to the airline websites where (c) If an airport-controlled display be an unfair and deceptive practice to specific baggage fee information may be system at a U.S. airport accepts flight advertise each-way fares contingent on obtained or to its own site if it displays status updates from carriers, covered a round-trip purchase requirement as airlines’ baggage fees. carriers must provide flight irregularity ‘‘one-way’’ fares, even if accompanied by (c) On all e-ticket confirmations for air information to that airport for the prominent and proximate disclosure of transportation within, to or from the carrier’s scheduled flights to, from or the round trip purchase requirement. United States, including the summary within the U.S. within 30 minutes after (c) When offering a ticket for purchase page at the completion of an online the carrier becomes aware of such a by a consumer, for passenger air purchase and a post-purchase email change in the status of a flight. Flight transportation or for a tour (i.e., a confirmation, a U.S. carrier, a foreign air irregularity refers to flight cancellations, combination of air transportation and carrier, an agent of either, or a ticket flight delays of 30 minutes or more, and ground or cruise accommodations) or agent that advertises or sells air diversions. tour component (e.g., a hotel stay) that transportation in the United States must must be purchased with air include information regarding the PART 399—STATEMENTS OF transportation, a direct air carrier, passenger’s free baggage allowance and/ GENERAL POLICY indirect air carrier, an agent of either, or or the applicable fee for a carry-on bag a ticket agent, may not offer additional and the first and second checked bag. ■ 19. The authority citation for 14 CFR optional services in connection with air Carriers must provide this information Part 399 continues to read as follows: transportation, a tour, or tour in text form in the e-ticket confirmation. Authority: 49 U.S.C. 40101 et seq. component whereby the optional Agents may provide this information in

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text form in the e-ticket confirmations or that lists the differences in policies ground or cruise accommodations), or through a hyperlink to the specific among code-share partners. tour component (e.g., a hotel stay) that location on airline websites or their own (f) The Department considers the includes scheduled air transportation website where this information is failure to give the appropriate notice within, to or from the United States, displayed. The fee information provided described in paragraphs (a) through (e) must notify a consumer of the potential for a carry-on bag and the first and of this section to be an unfair and for a post-purchase price increase due to second checked bag must be expressed deceptive practice within the meaning an increase in a government-imposed as specific charges taking into account of 49 U.S.C. 41712. tax or fee and must obtain the any factors (e.g., frequent flyer status, ■ 22. Section 399.87 is added to read as consumer’s written consent to the early purchase, and so forth) that affect follows: potential for such an increase prior to those charges. § 399.87 Baggage allowances and fees. purchase of the scheduled air (d) If a U.S. or foreign air carrier has transportation, tour or tour component For passengers whose ultimate that includes scheduled air a website marketed to U.S. consumers ticketed origin or destination is a U.S. where it advertises or sells air transportation. Imposition of any such point, U.S. and foreign carriers must increase without providing the transportation, the carrier must apply the baggage allowances and fees consumer the appropriate notice and prominently disclose on its website that apply at the beginning of a without obtaining his or her written information on fees for all optional passenger’s itinerary throughout his or consent of the potential increase services that are available to a passenger her entire itinerary. In the case of code- constitutes an unfair and deceptive purchasing air transportation. Such share flights that form part of an practice within the meaning of 49 U.S.C. disclosure must be clear, with a itinerary whose ultimate ticketed origin 41712. conspicuous link from the carrier’s or destination is a U.S. point, U.S. and ■ 24. Section 399.89 is added to read as homepage directly to a page or a place foreign carriers must apply the baggage follows: on a page where all such optional allowances and fees of the marketing services and related fees are disclosed. carrier throughout the itinerary to the § 399.89 Disclosure of potential for price For purposes of this section, the term extent that they differ from those of any increase before payment. ‘‘optional services’’ is defined as any operating carrier. Any seller of scheduled air service the airline provides, for a fee, ■ 23. Section 399.88 is added to read as transportation within, to or from the beyond passenger air transportation. follows: United States, or of a tour (i.e., a Such fees include, but are not limited § 399.88 Prohibition on post-purchase combination of air transportation and to, charges for checked or carry-on price increase. ground or cruise accommodations), or baggage, advance seat selection, in-flight (a) It is an unfair and deceptive tour component (e.g., a hotel stay) that beverages, snacks and meals, pillows practice within the meaning of 49 U.S.C. includes scheduled air transportation and blankets and seat upgrades. In 41712 for any seller of scheduled air within, to or from the United States, general, fees for particular services may transportation within, to or from the must notify a consumer of the potential be expressed as a range; however, United States, or of a tour (i.e., a for a price increase that could take place baggage fees must be expressed as combination of air transportation and prior to the time that the full amount specific charges taking into account any ground or cruise accommodations), or agreed upon has been paid by the factors (e.g., frequent flyer status, early tour component (e.g., a hotel stay) that consumer, including but not limited to purchase, and so forth) that affect those includes scheduled air transportation an increase in the price of the seat, an charges. within, to or from the United States, to increase in the price for the carriage of (e) For air transportation within, to or increase the price of that air passenger baggage, an increase in an from the United States, a carrier transportation, tour or tour component applicable fuel surcharge, or an increase marketing a flight under its identity that to a consumer, including but not limited in a government-imposed tax or fee and is operated by a different carrier, to an increase in the price of the seat, must obtain the consumer’s written otherwise known as a code-share flight, an increase in the price for the carriage consent to the potential for such an must through its website disclose to of passenger baggage, or an increase in increase prior to accepting any payment consumers booked on a code-share an applicable fuel surcharge, after the for the scheduled air transportation, or flight any differences between its air transportation has been purchased tour or tour component that includes optional services and related fees and by the consumer, except in the case of scheduled air transportation. Imposition those of the carrier operating the flight. an increase in a government-imposed of any such increase without providing This disclosure may be made through a tax or fee. A purchase is deemed to have the consumer the appropriate notice and conspicuous notice of the existence of occurred when the full amount agreed obtaining his or her written consent to such differences on the marketing upon has been paid by the consumer. the potential increase constitutes an carrier’s website or a conspicuous (b) A seller of scheduled air unfair and deceptive practice within the hyperlink taking the reader directly to transportation within, to or from the meaning of 49 U.S.C. 41712. the operating carrier’s fee listing or to a United States or a tour (i.e., a [FR Doc. 2011–9736 Filed 4–20–11; 8:45 am] page on the marketing carrier’s website combination of air transportation and BILLING CODE P

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