32318 Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Proposed Rules

The FAA’s authority to issue rules DEPARTMENT OF TRANSPORTATION access to air travel for the significant regarding aviation safety is found in number of individuals with peanut Title 49 of the United States Code. Office of the Secretary allergies. Subtitle I, section 106 describes the DATES: Comments should be filed by 14 CFR Parts 234, 244, 250, 253, 259, authority of the FAA Administrator. August 9, 2010. Late-filed comments and 399 Subtitle VII, Aviation Programs, will be considered to the extent describes in more detail the scope of the [Docket No. DOT–OST–2010–0140] practicable. agency’s authority. RIN No. 2105–AD92 ADDRESSES: You may file comments This rulemaking is promulgated identified by the docket number DOT– under the authority described in subtitle Enhancing Airline Passenger OST–2010–0140 by any of the following VII, part A, subpart I, section 40103. Protections methods: Under that section, the FAA is charged • Federal eRulemaking Portal: go to with prescribing regulations to assign AGENCY: Office of the Secretary (OST), http://www.regulations.gov and follow the use of the airspace necessary to Department of Transportation (DOT). the online instructions for submitting ensure the safety of aircraft and the ACTION: Notice of Proposed Rulemaking comments. efficient use of airspace. This regulation (NPRM). • Mail: Docket Management Facility, is within the scope of that authority as U.S. Department of Transportation, 1200 it would remove a colored Federal SUMMARY: The Department of New Jersey Ave., SE., Room W12–140, airway in Alaska. Transportation is proposing to improve Washington, DC 20590–0001. the air travel environment for • Hand Delivery or Courier: West Environmental Review consumers by: increasing the number of Building Ground Floor, Room W12–140, carriers that are required to adopt This proposal will be subject to an 1200 New Jersey Ave., SE., between 9 tarmac delay contingency plans and the environmental analysis in accordance a.m. and 5 p.m. ET, Monday through airports at which they must adhere to with FAA Order 1050.1E, Friday, except Federal Holidays. the plan’s terms; increasing the number • ‘‘Environmental Impacts: Policies and Fax: (202) 493–2251. of carriers that are required to report Instructions: You must include the Procedures,’’ prior to any FAA final tarmac delay information to the agency name and docket number DOT– regulatory action. Department; expanding the group of OST–2010–XXXX or the Regulatory List of Subjects in 14 CFR Part 71 carriers that are required to adopt, Identification Number (RIN) for the follow, and audit customer service plans rulemaking at the beginning of your Airspace, Incorporation by reference, and establishing minimum standards for comment. All comments received will Navigation (air). the subjects all carriers must cover in be posted without change to http:// The Proposed Amendment such plans; requiring carriers to include www.regulations.gov, including any their contingency plans and customer personal information provided. In consideration of the foregoing, the service plans in their contracts of Privacy Act: Anyone is able to search Federal Aviation Administration carriage; increasing the number of the electronic form of all comments proposes to amend 14 CFR part 71 as carriers that must respond to consumer received in any of our dockets by the follows: complaints; enhancing protections name of the individual submitting the afforded passengers in oversales comment (or signing the comment if PART 71—DESIGNATION OF CLASS A, situations, including increasing the submitted on behalf of an association, a B, C, D, AND E AIRSPACE AREAS; AIR maximum denied boarding business, a labor union, etc.). You may TRAFFIC SERVICE ROUTES; AND compensation airlines must pay to review DOT’s complete Privacy Act REPORTING POINTS passengers bumped from flights; statement in the Federal Register strengthening, codifying and clarifying published on April 11, 2000 (65 FR 1. The authority citation for part 71 the Department’s enforcement policies 19477–78), or you may visit http:// continues to read as follows: concerning air transportation price DocketsInfo.dot.gov. Authority: 49 U.S.C. 106(g), 40103, 40113, advertising practices; requiring carriers Docket: For access to the docket to 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– to notify consumers of optional fees read background documents or 1963 Comp., p. 389. related to air transportation and of comments received, go to http:// increases in baggage fees; prohibiting www.regulations.gov or to the street § 71.1 [Amended] post-purchase price increases; requiring address listed above. Follow the online instructions for accessing the docket. 2. The incorporation by reference in carriers to provide passengers timely 14 CFR 71.1 of FAA Order 7400.9T, notice of flight status changes such as FOR FURTHER INFORMATION CONTACT: Airspace Designations and Reporting delays and cancellations; and Daeleen Chesley or Blane A. Workie, Points, signed August 27, 2009, and prohibiting carriers from imposing Office of the Assistant General Counsel effective September 15, 2009, is unfair contract of carriage choice-of- for Aviation Enforcement and amended as follows: forum provisions. The Department is Proceedings, U.S. Department of proposing to take this action to Transportation, 1200 New Jersey Ave., Paragraph 6009(a)—Green Federal Airways. strengthen the rights of air travelers in SE., Washington, DC 20590, 202–366– * * * * * the event of oversales, flight 9342 (phone), 202–366–7152 (fax), cancellations and long delays, and to [email protected] or G–4 [Removed] ensure that passengers have accurate [email protected] (e-mail). Issued in Washington, DC, May 27, 2010. and adequate information to make SUPPLEMENTARY INFORMATION: informed decisions when selecting Kenneth McElroy, flights. In addition, the Department is Pilot Project on Open Government and Acting Manager, Airspace and Rules Group. considering several measures, including the Rulemaking Process [FR Doc. 2010–13609 Filed 6–7–10; 8:45 am] banning the serving of peanuts on On January 21st, 2009, President BILLING CODE 4910–13–P commercial airlines, to provide greater Obama issued a Memorandum on

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Transparency and Open Government in and disadvantages of these techniques, is not the same as commenting in the which he described how ‘‘public and report their findings and rulemaking docket. The Summary of engagement enhances the Government’s conclusions on the most effective use of discussion and any joint comments effectiveness and improves the quality social networking technologies in this prepared collaboratively on the site will of its decisions’’ and how ‘‘knowledge is area. become comments in the docket when widely dispersed in society, and public DOT and the Obama Administration they are submitted to DOT by CeRI. At officials benefit from having access to are striving to increase effective public any time during the comment period, that dispersed knowledge.’’ To support involvement in the rulemaking process anyone using Regulation Room can also the President’s open government and strongly encourage all parties submit individual views to the initiative, DOT plans to continue its interested in this rulemaking to visit the rulemaking docket through the federal partnership with the Cornell Regulation Room Web site, http:// rulemaking portal Regulations.gov, or by eRulemaking Initiative (CeRI) in a pilot www.regulationroom.org, to learn about any of the other methods identified at project, Regulation Room, to discover the rule and the rulemaking process, to the beginning of this Notice. For the best ways of using Web 2.0 and discuss the issues in the rule with other questions about this project, please social networking technologies to: (1) persons and groups, and to participate contact Brett Jortland in the DOT Office Alert the public, including those who in drafting comments that will be of General Counsel at 202–421–9216 or sometimes may not be aware of submitted to DOT. A Summary of the [email protected]. rulemaking proposals, such as discussion that occurs on the Regulation Summary of Preliminary Regulatory individuals, public interest groups, Room site and participants will have the Analysis small businesses, and local government chance to review a draft and suggest entities, that rulemaking is occurring in changes before the Summary is The preliminary regulatory analysis areas of interest to them; (2) increase submitted. Participants who want to suggests that the benefits of the public understanding of each proposed further develop ideas contained in the proposed requirements exceed its costs, rule and the rulemaking process; and (3) Summary, or raise additional points, even without considering non- help the public formulate more effective will have the opportunity to quantifiable benefits. This analysis, individual and collaborative input to collaboratively draft joint comments outlined in the table below, finds that DOT. We anticipate, over the course of that will be also be submitted to the the expected net present value of the several rulemaking initiatives, that CeRI rulemaking docket before the comment rule for 10 years at a 7% discount rate will use different Web technologies and period closes. is estimated to be $61.6 million. At a approaches to enhance public Note that Regulation Room is not an 3% discount rate, the expected net understanding and participation, work official DOT Web site, and so present value of the rule is estimated to with DOT to evaluate the advantages participating in discussion on that site be $75.7 million.

Present value (millions)

Total Quantified Benefits: 10 Years, 7% discounting ...... $87.6 10 Years, 3% discounting ...... 104.2 Total Quantified Costs: 10 Years, 7% discounting ...... 26.0 10 Years, 3% discounting ...... 28.5 Net Benefits: 10 Years, 7% discounting ...... 61.6 10 Years, 3% discounting ...... 75.7

A comparison of the estimated benefits problems; post flight delay information flight status changes; (5) inflation and costs for each of the 11 proposed on their Web sites; and adopt, follow, adjustment for denied boarding requirements is provided in the and audit customer service plans. The compensation; (6) alternative Regulatory Analysis and Notices rule also defined chronically delayed transportation for passengers on section, along with information on flights and deemed them to be an canceled flights; (7) opt-out provisions additional benefits and costs for which ‘‘unfair and deceptive’’ practice. That where certain optional services are pre- quantitative estimates could not be rule took effect on April 29, 2010. See selected for consumers at an additional developed. 74 FR 68983 (December 30, 2009). cost (e.g., travel insurance, seat Background In the preamble to the final rule, the selection); (8) contract of carriage venue Department noted that it planned to designation provisions; (9) baggage fees On December 8, 2008, the Department review additional ways to further disclosure; (10) full fare advertising; and published a Notice of Proposed enhance protections afforded airline (11) responses to complaints about Rulemaking (NPRM) on enhancing passengers and listed a number of charter service. This NPRM addresses airline passenger protections. See 73 FR subject areas that it was considering most of those issues, as well as other 74586 (December 8, 2008). After addressing in a future rulemaking. The matters that we believe are necessary to reviewing and considering the areas specifically mentioned as being ensure fair treatment of passengers. We comments on the NPRM, on December under consideration were as follows: (1) have described each proposal in this 30, 2009, the Department published a DOT review and approval of NPRM in detail below and invite all final rule in which the Department contingency plans for lengthy tarmac interested persons to comment. required certain U.S. air carriers to delays ; (2) reporting of tarmac delay adopt contingency plans for lengthy data; (3) standards for customer service tarmac delays; respond to consumer plans; (4) notification to passengers of

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Notice of Proposed Rulemaking ultimately took off (in the case of a We are proposing these regulations departure delay or diversion) or because the Department believes that it 1. Tarmac Delay Contingency Plans returned to the gate; and an explanation is important to ensure that passengers The Department’s final rule entitled for any tarmac delay that exceeded three on all international flights to and from ‘‘Enhancing Airline Passenger hours, including why the aircraft did the United States are afforded protection Protections,’’ which was published in not return to the gate by the three-hour from unreasonably lengthy tarmac the Federal Register on December 30, mark. delays. As is the case under the existing 2009 (74 FR 68983), requires, among This NPRM proposes to strengthen rule for international flights of covered other things, that U.S. carriers adopt the protections for consumers by U.S. carriers, at this time, we intend to tarmac delay contingency plans that making substantive changes in four allow foreign carriers to develop and include, at a minimum, the following: areas: Requiring foreign air carriers to implement a contingency plan for (1) An assurance that, for domestic adopt tarmac delay contingency plans, lengthy tarmac delays that has more flights, the U.S. carrier will not permit increasing the number of airports at flexible requirements than those that an aircraft at a medium or large hub- which carriers must adhere to their apply to domestic flights with regard to airport to remain on the tarmac for more plans to include U.S. small and non-hub the time limit to deplane passengers. than three hours unless the pilot-in- airports, requiring carriers to coordinate Also, as in our initial rulemaking to command determines there is a safety- their tarmac delay contingency plans enhance airline passenger protections, related or security-related impediment with all U.S. airports they serve, and this limit will allow exceptions for to deplaning passengers, or Air Traffic requiring carriers to communicate with considerations of safety, security and for Control advises the pilot-in-command passengers during tarmac delays. More instances in which Air Traffic Control that returning to the gate or permitting specifically, the NPRM proposes to advises the pilot-in-command that passengers to disembark elsewhere require any foreign air carrier that returning to the gate or permitting would significantly disrupt airport operates scheduled passenger or public passengers to disembark elsewhere operations; (2) for international flights charter service to and from the U.S. would significantly disrupt airport that depart from or arrive at a U.S. using any aircraft originally designed to operations. It is worth noting that there airport, an assurance that the U.S. have a passenger capacity of 30 or more are ongoing questions as to whether carrier will not permit an aircraft to passenger seats to adopt a tarmac delay mandating a specific time frame for remain on the tarmac for more than a set contingency plan that includes deplaning passengers on international number of hours, as determined by the minimum assurances identical to those flights is in the best interest of the carrier in its plan, before allowing currently required of U.S. carriers for public; a number of arguments have passengers to deplane, unless the pilot- the latter’s international flights. As been presented for not imposing such a in-command determines there is a proposed, it would apply to all of a limit. Most international flights operate safety-related or security-related reason foreign carrier’s flights to and from the less frequently than most domestic precluding the aircraft from doing so, or U.S., including those involving aircraft flights, potentially resulting in much Air Traffic Control advises the pilot-in- with fewer than 30 seats if a carrier greater harm to consumers if carriers command that returning to the gate or operates any aircraft originally designed cancel these international flights (e.g., permitting passengers to disembark to have a passenger capacity of 30 or passengers are less likely to be elsewhere would significantly disrupt more seats to or from the U.S. The accommodated on an alternate flight in airport operations; (3) for all flights, an NPRM also proposes to require that U.S. a reasonable period of time). We ask assurance that the U.S. carrier will and foreign air carriers coordinate their interested persons to comment on provide adequate food and potable contingency plans with all airports they whether any final rule that we may water no later than two hours after the serve (small and non-hub airports as adopt should include a uniform aircraft leaves the gate (in the case of a well as the medium and large hub standard for the time interval after departure) or touches down (in the case airports covered by the existing rule) which U.S. or foreign air carriers would of an arrival) if the aircraft remains on and with the Transportation Security be required to allow passengers on the tarmac, unless the pilot-in-command Administration (TSA) and U.S. Customs international flights to deplane. determines that safety or security and Border Protection (CBP) for any Commenters who support the adoption requirements preclude such service; (4) U.S. airport that the carrier regularly of a uniform standard should propose for all flights, an assurance of operable uses for its international flights, lavatory facilities, as well as adequate including diversion airports. specific amounts of time and state why medical attention if needed, while the Under the proposed rule, the tarmac they believe these intervals to be aircraft remains on the tarmac; (5) an delay contingency plans would cover appropriate. assurance of sufficient resources to operations at each U.S. large hub We also seek comment on the cost implement the plan; and (6) an airport, medium hub airport, small hub burdens and benefits should the assurance that the plan has been airport and non-hub U.S. airport. requirement to have a contingency plan coordinated with airport authorities at Further, the NPRM proposes to require be narrowed or expanded. For example, all medium and large hub airports that that U.S. and foreign air carriers update while we are proposing here to include the U.S. carrier serves, including passengers every 30 minutes during a foreign carriers that operate aircraft medium and large hub diversion tarmac delay regarding the status of originally designed to have a passenger airports. The final rule also requires their flight and the reasons for the capacity of 30 or more seats to and from U.S. carriers to retain for two years the tarmac delay. The regulation would the U.S., we invite interested persons to following information on any tarmac specify that the Department would comment on whether, in the event that delay that lasts at least three hours: the consider failure to comply with any of we adopt a rule requiring foreign length of the delay, the specific cause of the assurances that are required by this carriers to have contingency plans, we the delay, and the steps taken to rule to be contained in a carrier’s tarmac should limit its applicability to foreign minimize hardships for passengers delay contingency plan to be an unfair air carriers that operate large aircraft to (including providing food and water, and deceptive practice within the and from the U.S.—i.e., aircraft maintaining lavatories, and providing meaning of 49 U.S.C. 41712 and subject originally designed to have a maximum medical assistance); whether the flight to enforcement action. passenger capacity of more than 60

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seats. We also seek comment on screening. We invite interested persons delays, file tarmac delay data with the whether we should expand coverage of to comment on this proposal. What Department to the extent they are not the requirement to adopt tarmac delay costs and benefits would result from already required to file such data contingency plans so that the obligation this requirement? Is it workable to pursuant to 14 CFR part 234. Incidents to adopt such a plan and adhere to its include small and non-hub airports of lengthy tarmac delays have captured terms is not only the responsibility of served by a carrier? Should the rule be much public attention in recent years the operating carrier but also the carrier expanded to include other commercial and have been the focus of considerable under whose code the service is U.S. airports (i.e., those with less than Department attention as well. On marketed if different. In addition, 10,000 annual enplanements)? We are October 1, 2008, the Department’s should coverage be further expanded to soliciting comments from airlines, Bureau of Transportation Statistics require U.S. airports to adopt tarmac airports and other industry entities on (BTS) began collecting more detailed delay contingency plans? Proponents of whether there are any special tarmac delay information from all U.S. these or other alternative proposals operational concerns affecting such carriers that file the ‘‘On-Time Flight should provide arguments and evidence airports. Performance Report’’ (BTS Form 234) in support of their position, as should The Department has also given under 14 CFR part 234, ‘‘reporting opponents. consideration to passengers’ frustration carriers’’. The data do not, however, In the initial rulemaking to enhance with lack of communication by carrier provide a complete picture of tarmac airline passenger protections, we personnel about the reasons a flight is delays, as the reporting carriers only decided to implement a rule requiring experiencing a long tarmac delay. It submit data concerning their scheduled certain U.S. carriers to coordinate their does not seem unreasonable or unduly domestic flights as a function of their contingency plans with large-hub and burdensome to require carriers to being required to report on-time medium-hub airports, as well as address this issue and verbally inform performance data. These reporting diversion airports that the carrier serves. passengers as to the flight’s operational carriers currently constitute the 16 Those airports are the only ones covered status on a regular basis during a largest U.S. carriers by scheduled- by the current rule. We are proposing to lengthy tarmac delay. As such, the service passenger revenue, plus two extend this requirement to small and Department is proposing a rule carriers that voluntarily file the report. non-hub airports and to require all requiring carriers to announce to In addition, smaller U.S. carriers which covered carriers (U.S. and foreign) to passengers on covered flights every 30 are subject to the Department’s coordinate their plans with each U.S. minutes the reasons for the delay, and/ contingency plan rule that was effective large hub airport, medium hub airport, or the operational status of the flight. April 29, 2010, do not currently submit small hub airport and non-hub U.S. We do not anticipate that a carrier’s any tarmac delay data to the Department airport that they serve as well as TSA flight crews will know every nuance of and foreign air carriers which we are and CBP. The Department believes that the reason for the delay, but we do proposing in this NPRM adopt tarmac the same issues and discomfort to expect them to inform passengers of the delay contingency plans also do not passengers during an extended tarmac reasons of which they are aware and to submit tarmac delay data to the delay are likely to occur regardless of make reasonable attempts to acquire Department. airport size or layout. We also strongly information about the reason(s) for that believe that it is essential that airlines delay. We also invite comment on While a single incident of tarmac involve airports and appropriate Federal whether carriers should be required to delay may be attributed to one or more agencies in developing their plans to announce that passengers may deplane causes, such as air traffic congestion, enable them to effectively meet the from an aircraft that is at the gate or weather related delays, mechanical needs of passengers. As such, we are other disembarkation area with the door problems, and/or flight dispatching proposing to extend this rule to require open. The Department’s Office of logistic failures, we believe that an covered carriers to coordinate their Aviation Enforcement and Proceedings initial and essential step toward finding plans with each U.S. large hub airport, has previously explained that a tarmac solutions for the tarmac delay problem, medium hub airport, small hub airport delay begins when passengers no longer whether by government regulations and/ and non-hub U.S. airport to which they have an option to get off of the aircraft, or through voluntary actions by the regularly operate scheduled passenger which usually occurs when the doors of airlines, and monitoring the effect on or public charter service. the aircraft are closed, and encouraged consumers of lengthy tarmac delays, is As recommended by the Tarmac carriers to announce to passengers on to obtain more complete data on these Delay Task Force, we are also proposing flights that remain at the gate with the incidents. Therefore, we are tentatively to require carriers to include CBP and doors open that the passengers are of the opinion that we should expand TSA in their coordination efforts for any allowed off the aircraft if that is the case. the pool of carriers that must file U.S. diversion airport which they However, such an announcement is not information with the Department regularly use. We believe this proposal explicitly required in the existing rule. regarding tarmac delays to U.S. carriers is necessary, as it has come to the We seek comment on the benefit to and foreign carriers that operate any Department’s attention on more than consumers of mandating such aircraft originally designed with a one occasion passengers on announcements. Commenters, including passenger capacity of 30 or more international flights were held on carriers and carrier associations, should passenger seats with respect to their diverted aircraft for extended periods of also address any costs and/or operations at U.S. airports. The more time because there was no means to operational concerns related to complete picture of lengthy tarmac process those passengers and allow implementing a rule requiring such delays afforded by these new data will them access to terminal facilities. The announcements. help establish a vital platform for the Department of Homeland Security has Department’s future rulemaking and advised this Department that, subject to 2. Tarmac Delay Data policy decision-making, for FAA airport coordination with CBP regional We are proposing to require all and air traffic control infrastructure and directors, passengers on diverted carriers that must comply with 14 CFR technology modification and international flights may be permitted 259.4, which requires carriers to adopt improvement, and for system operating into closed terminal areas without CBP contingency plans for lengthy tarmac improvements and reform by the airline

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industry. Furthermore, the result of delay data to be reported each month U.S. carriers to audit their plan annually such analysis will provide the only with respect to tarmac delays of 3 and make the results of their audits Department, the industry, and the hours or more. available for the Department’s review public more precise data with which to We recognize that carriers subject to upon request. compare tarmac delay incidents by our new contingency plan rule that This NPRM proposes to increase the carrier, by airport, and by specific time went into effect April 29, 2010, are protections afforded consumers in that frame. required to retain for two years certain recent final rule by requiring foreign air This rule as proposed would apply to information regarding tarmac delays of carriers to adopt, follow, and audit all U.S. carriers that are covered by the 3 hours or more. We note that the customer service plans and establishing Department’s existing rule requiring reporting requirement proposed in this minimum standards for what must be tarmac delay contingency plans, as well notice is separate and distinct from that included in the customer service plans as foreign carriers that we are proposing, information retention requirement, with of all covered carriers (U.S. and foreign). in this NPRM, be required to adopt a different purpose. Where that rule is We are proposing to cover foreign air tarmac delay contingency plans (see focused on carrier compliance with carriers operating scheduled passenger proposed changes to 14 CFR 259.4). consumer protection-related service to and from the U.S. using any Thus, this proposal would cover tarmac requirements and requires only that aircraft originally designed to have a delays at U.S. airports by all U.S. carriers retain the information for a passenger capacity of 30 or more certificated and commuter carriers that limited period of time, we propose here passenger seats. The rule would apply operate any aircraft originally designed that carriers report monthly a set of data to all flights to and from the U.S. of to have a passenger capacity of 30 or regarding tarmac delays that will those carriers, including flights more seats. It also would cover tarmac provide the Department more complete involving aircraft with fewer than 30 delays at U.S. airports by all foreign information on lengthy tarmac delays seats if a carrier operates any aircraft carriers that operate passenger service to throughout the air transportation system with 30 or more passenger seats to and and from the U.S. using any aircraft in the U.S. The Department plans to from the U.S. We ask interested persons originally designed to have a passenger publish a summary of this information to comment on whether the proposed capacity of 30 or more seats. We seek in its Air Travel Consumer Report, a requirement for foreign air carriers to comment on whether we should limit monthly publication product of the adopt, follow and audit customer the requirement to file tarmac delay data Department of Transportation’s Office of service plan should be narrowed in to U.S. and foreign air carriers that Aviation Enforcement and Proceedings some fashion—e.g., should never apply operate large aircraft to and from the that is designed to assist consumers to aircraft with fewer than 30 seats? U.S.—i.e., aircraft originally designed to with information on the quality of Each foreign carrier’s plan would have a maximum passenger capacity of services provided by airlines. We have to address the same subjects more than 60 seats. Commenters should welcome suggestions from the public currently required of U.S. carriers in the explain why they favor such a limitation and the industry on whether there are Department’s rule to enhance airline and suggest alternate approaches to other means to further reduce the passenger protections. We are also capturing tarmac delay data. carriers’ burden yet still effectively proposing to require that foreign air We note that using just one qualifying achieve the goal of this proposal. carriers make the results of their audits aircraft (i.e., originally designed to have of their customer service plans available a passenger capacity of 30 or more 3. Customer Service Plans for the Department’s review upon passenger seats) will cause all of a U.S. Under the final rule published on request for two years following the date carrier’s flights to be covered by this December 30, 2009, U.S. carriers are any audit is completed. A carrier’s rule. The same is true of a foreign required to adopt customer service failure to adopt a customer service plan carrier’s flights that originate or plans for their scheduled flights that for its scheduled service, adhere to its terminate at a U.S. airport. For example, address, at a minimum, the following plan’s terms, audit its own adherence to if a foreign carrier operates any aircraft service areas: (1) Offering the lowest fare its plan annually or make the results of to or from the U.S. that was originally available; (2) notifying consumers of its audits available for the Department’s designed to have a passenger capacity of known delays, cancellations, and review upon request would be 30 or more seats, all of its flight taking diversions; (3) delivering baggage on considered an unfair and deceptive off or landing at a U.S. airport, time; (4) allowing reservations to be practice within the meaning of 49 U.S.C. regardless of size of aircraft and seating held or cancelled without penalty for a 41712 and subject to enforcement capacity, will be subject to the reporting defined amount of time; (5) providing action. requirements of the proposed rule. prompt ticket refunds; (6) properly A substantial number of air travelers We are mindful of the costs associated accommodating disabled and special- fly to and from the United States on with submitting data to the Department, needs passengers, including during flights operated by foreign carriers, especially in light of the relatively tarmac delays; (7) meeting customers’ whether through a code-share limited resources of smaller carriers and essential needs during lengthy on-board arrangement or by directly arranging for the relatively fewer flights to and from delays; (8) handling ‘‘bumped’’ that transportation. By requiring foreign the U.S. by foreign carriers and we do passengers in the case of oversales with carriers to adopt plans, audit their own not intend with this proposal to impose fairness and consistency; (9) disclosing compliance, and make the results of a comprehensive on-time reporting travel itinerary, cancellation policies, their audits available for us to review, scheme, as exists for the largest U.S. frequent flyer rules, and aircraft we intend to afford consumers better carriers now covered by Part 234. With configuration; (10) ensuring good protection on nearly all flights to and this concern in mind, using the Part 234 customer service from code-share from the United States, not just those of requirements as a model, we have partners; (11) ensuring responsiveness the U.S. carriers to which the rule is narrowed the data fields we propose to to customer complaints; and (12) currently applicable. The Department is be reported to those we believe are identifying the services they provide to soliciting comment on the costs and necessary for us to extract necessary mitigate passenger inconveniences benefits associated with this tarmac delay information. In addition, resulting from flight cancellations and requirement. We would like foreign we propose to require these tarmac misconnections. The rule also requires carriers to comment on whether similar

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plans already exist, and if so, how they hours and compensating passengers for flights that are canceled or significantly currently implement such plans. reasonable expenses that result due to delayed if the passenger chooses not to The Department also proposes to delay in delivery; (4) allowing travel as a result of the travel disruption. require covered carriers’ customer reservations to be held at the quoted fare The Department’s Aviation Enforcement service plans meet minimum standards without payment, or cancelled without Office has issued notices in the past to ensure that the carriers’ (U.S. and penalty, for at least twenty-four hours advising airlines that it would be an foreign) plans are specific and after the reservation is made; (5) where unfair and deceptive practice in enforceable. The Department is ticket refunds are due, providing violation of 49 USC 41712 for a carrier concerned that many carriers’ customer prompt refunds for credit card to apply its non-refundability provision service plans are not specific enough for purchases as required by 14 CFR 374.3 in the event of a significant change in a consumer to have realistic and 12 CFR part 226, and for cash and scheduled departure or arrival time, expectations of the types of services a check purchases within 20 days after whether it be due to carrier action or a carrier will provide under its plan, or receiving a complete refund request; (6) matter out of the carrier’s control, that some carriers may not be living up properly accommodating passengers including ‘‘acts of god.’’ We request to their customer service commitments. with disabilities as required by 14 CFR comment on the methodology for Based on a review of existing customer part 382 and for other special-needs defining a significant delay in the event service plans, the Department found passengers as set forth in the carrier’s such a standard is adopted. Should the that some carriers’ plans do contain policies and procedures, including Department establish a bright line rule specifics regarding the type of services during lengthy tarmac delays; (7) that any delay of 3 hours or more is a a consumer can expect (e.g., returning meeting customers’ essential needs significant delay? Should the baggage by a specified time after the during lengthy tarmac delays as determination of whether a flight has flight or holding reservations without required by 14 CFR 259.4 and as been significantly delayed be based on charge for a specific period of time), provided for in each covered carrier’s the duration of the flight (e.g., is 3 hours while others carriers’ plans are vaguely contingency plan; (8) handling a significant delay on flights of two written making it difficult for a ‘‘bumped’’ passengers with fairness and hours or less and 4 hours a significant consumer to know how a carrier will consistency in the case of oversales as delay on flights of more than two address those subjects or whether a required by 14 CFR part 250 and as hours)? carrier has fulfilled its promises. As described in each carrier’s policies and With respect to notifying passengers such, the Department believes procedures for determining boarding on board aircraft of delays, we seek establishing minimum standards for the priority; (9) disclosing cancellation comment on how often updates should plans will result in consumers being policies, frequent flyer rules, aircraft be provided and whether we should better informed and protected. As configuration, and lavatory availability require that passengers be advised when always carriers are free to set higher on the selling carrier’s Web site, and they may deplane from aircraft during standards than those mandated by the upon request, from the selling carrier’s lengthy tarmac delays. For example, we Department. We also note that all of the telephone reservations staff; (10) have received complaints from subjects for which we are proposing to notifying consumers in a timely manner passengers that their aircraft has require a standard are already required of changes in their travel itineraries; (11) returned to the gate less than three to be included in the customer service ensuring good customer service from hours after departure for emergency or mechanical reasons but they were not plans for U.S. carriers (e.g., oversales/ code-share partners operating a flight, denied boarding compensation, advised that they could deplane. including making reasonable efforts to refunds), which should minimize the Carriers may feel the 3-hour tarmac ensure that its code-share partner(s) burden on these carriers to comply with delay limit has been tolled by such a have comparable customer service plans the proposed new requirement to gate return, but passengers feel they or provide comparable customer service establish standards for those subjects. In were not truly afforded the opportunity levels, or have adopted the identified addition, when determining what to deplane within the meaning of this carrier’s customer service plan; (12) minimum standards to apply to these rule. ensuring responsiveness to customer plans, the Department reviewed As for the customer service complaints as required by 14 CFR 259.7; customer service plans as currently commitment to provide prompt refunds and (13) identifying the services it implemented by a number of carriers, where ticket refunds are due, we invite and chose the services already provided provides to mitigate passenger comment on whether it is necessary to by some carriers that appear to be ‘‘best inconveniences resulting from flight include as a standard the requirement practices.’’ cancellations and misconnections. that when a flight is cancelled carriers We seek comment on both the costs With regard to delivering baggage on must refund not only the ticket price but and benefits of requiring carriers to time, we solicit comment on whether also any optional fees charged to a adopt these minimum standards. The we should also include as standards (1) passenger for that flight (e.g., baggage minimum standards that we are that carriers reimburse passengers the fees, ‘‘service charges’’ for use of proposing are as follows: (1) Offering fee charged to transport a bag if that bag frequent flyer miles when the flight is the lowest fare available on the carrier’s is lost or not timely delivered, as well canceled by the carrier). Irrespective of Web site, at the ticket counter, or when as (2) the time when a bag should be whether such a standard is included in a customer calls the carrier’s reservation considered not to have been timely a carrier’s customer service center to inquire about a fare or to make delivered (e.g., delivered on same or commitment, the Department would a reservation; (2) notifying consumers in earlier flight than the passenger, view a carrier’s failure to provide a the boarding gate area, on board aircraft, delivered within 2 hours of the prompt refund to a passenger of the and via a carrier’s telephone reservation passenger’s arrival). With regard to ticket price and related optional fees system and its Web site of known providing prompt refunds, we seek when a flight is canceled to be an unfair delays, cancellations, and diversions; (3) comment on whether we should also and deceptive practice. We request delivering baggage on time, including include as a standard that carriers comment as to whether it is workable to making every reasonable effort to return refund ticketed passengers, including set minimum standards for any of the mishandled baggage within twenty-four those with non-refundable tickets, for subjects contained in the customer

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service plans and invite those that Department did require that each U.S. include foreign carriers in the oppose the notion of the Department carrier with a Web site post its entire requirement for airlines to place their setting minimum standards for customer contract of carriage on its Web site in contingency plans and customer service service plans as unduly burdensome to easily accessible form, including all plans in their contracts of carriage. The provide evidence of the costs that they updates to its contract of carriage. The Department is seeking comment on anticipate. We further invite comment Department also indicated that it would whether the incorporation of the or suggestions on the type of standards address this issue in a future rulemaking contingency plans and customer service that should be set. and take into account, among other plans in the contract of carriage gives Although the subjects we are things, whether the voluntary consumers adequate notice of what proposing that foreign air carriers incorporation of contingency plan terms might happen in the event of a long address in their customer service plans had resulted in sufficient protections for delay on the tarmac and/or of are identical to those U.S. carriers air travelers. passengers’ rights under carriers’ already are required to include in their The Department continues to believe customer service plans. As in the past, customer service plans, we request that the airlines’ incorporation of their commenters should also address comment on whether any of these contingency plans into their contracts of whether and to what extent requiring subjects would be inappropriate if carriage is an important means of the incorporation of contingency plans applied to a foreign air carrier. Why or providing notice to consumers of their in carriers’ contracts of carriage might why not? Moreover, we seek comment rights, since that information will then weaken existing plans: That is, would on whether the Department should be contained in a readily available the requirement encourage carriers to require that all airlines address any source. Carriers’ contracts of carriage are exclude certain key terms from their other subject in their customer service generally posted online and must, by plans in order to avoid compromising plans. For example, should mandatory Department rule, be available at their flexibility to deal with disclosure to passengers and other airports. Better informed consumers will circumstances that can be both complex interested parties of past delays or further improve the Department’s and unpredictable? We are also cancellations of particular flights before enforcement program as consumers are soliciting comment on the proposal to ticket purchase be a new subject area more likely to know of and report extend this provision to foreign carriers. covered in customer service plans? If so, incidents where airlines do not adhere what should be the minimum to their plans. Better consumer 5. Response to Consumer Problems timeliness/cancellation standard? In this information will also create added The recently issued final rule on regard, there is already a requirement incentive for carriers to adhere to their enhancing airline passenger protections for reporting carriers (i.e., the largest plans. Further, by placing the requires U.S. carriers that operate U.S. carriers) to post flight delay data on contingency plan terms in the U.S. scheduled passenger service using any their Web sites and for their reservation selling carrier’s contract of carriage both aircraft originally designed to have a agents to disclose to customers, upon that carrier and its foreign code share passenger capacity of 30 or more seats request, the on-time performance code partner carrier are responsible in an to designate an employee to monitor the of a flight. Should more direct and enforcement context for compliance, effects on passengers of flight delays, mandatory disclosure be required, e.g., which we view as a beneficial aspect of flight cancellations, and lengthy tarmac a required warning before the final this proposal. We also continue to be delays and to have input into decisions purchase decision is made regarding confident that we have the authority to such as which flights are cancelled and chronically late or routinely canceled require such incorporation based on our which are subject to the longest delays. flights? We also seek comment on the broad authority under 49 U.S.C. 41712 It also requires U.S. carriers to make appropriate minimum timeliness/ to prohibit unfair and deceptive available the mailing address and e-mail cancellation standard for U.S. carriers practices, and under 49 U.S.C. 41702 to or Web address of the designated and foreign air carriers that do not ensure safe and adequate transportation, department in the airline with which to report on time performance data to DOT which clearly encompasses the file a complaint about its scheduled if we were to adopt a requirement that regulation of contingency plans. service and to acknowledge receipt of airlines address notification to In the December 30, 2009, final rule each complaint regarding its scheduled consumers of past delays or cancellation to enhance airline passenger service to the complainant within 30 in their customer service plans. protections, we stated that we intended days of receiving it and to send a to closely monitor carriers’ responses to substantive response to each 4. Contracts of Carriage our efforts in this regard and that we complainant within 60 days of receiving The Department is proposing to adopt would not hesitate to revisit our it. A complaint is defined as a specific a rule requiring carriers (U.S. and decision in another rulemaking. As it written expression of dissatisfaction foreign) to include their contingency appears that many carriers are choosing concerning a difficulty or problem plans and customer service plans in not to place their contingency plans which the person experienced when their contracts of carriage. We first and/or customer service plans in their using or attempting to use an airline’s proposed this requirement in the notice contracts of carriage, or have little service. of proposed rulemaking on enhancing incentive to do so, and because we This proposal would require a foreign airline passenger protections which was believe the incorporation of airline air carrier that operates scheduled published in the Federal Register on contingency plans in contracts of passenger service to and from the December 8, 2008. Ultimately, the carriage to be in the public interest, we United States using any aircraft Department decided not to require such are again proposing the implementation originally designed to have a passenger incorporation at that time and instead of this requirement. capacity of 30 or more seats to do the strongly encouraged carriers to As stated previously, the Department same for its flights to and from the U.S. voluntarily incorporate the terms of recognizes that many passengers travel We are proposing to extend these their tarmac delay contingency plans in to and from the U.S. on flights operated provisions to foreign carriers as the their contracts of carriage, as most major by foreign carriers, and they should Department believes passengers should carriers had already done with respect have adequate passenger protections on also be afforded adequate consumer to their customer service plans. The those flights. As such, we propose to protection when issues arise with delays

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or cancellations on flights to and from cash/check DBC if the carrier verbally provide for periodic adjustments to the the U.S. operated by a foreign carrier, offers a travel voucher as DBC to minimum DBC limits using the CPI–U, and should also have an avenue to file passengers who are involuntarily similar to that applied to minimum a complaint with a foreign carrier and bumped; and (5) require that a carrier baggage liability limits pursuant to 14 to expect a timely and substantive inform passengers solicited to volunteer CFR part 254. We believe these response to that complaint. We invite for denied boarding about its principal amendments will set up the most interested persons to comment on this boarding priority rules applicable to the efficient method to ensure that the DBC proposal. What costs and/or operational specific flight and all material minimum limits, and the monetary concerns would it impose on foreign restrictions on the use of that incentive for carriers to reduce carriers and what are the benefits to transportation. involuntary denied boardings, remain consumers? In particular, we are The last time the Department revised current. Since the periodic adjustments soliciting comments on any operational the minimum DBC amounts was in a would be the product of a published difficulties U.S. and foreign airlines may proceeding that began in 2007 and mathematical formula, there would be face in responding to consumer concluded in 2008. Prior to that date, no need to engage in a notice and complaints received through social the DBC limits had not been revised comment rulemaking proceeding for networking mediums such as Facebook since 1978. In that latest proceeding, each future adjustment. or Twitter. Do airlines currently because inflation had eroded the value We seek comments on whether the communicate to customers and of the $200 and $400 limits that were proposed increase in DBC minimum prospective customers through social established in 1978, we considered limits is called for and whether any networking mediums? various methods for calculating an such increase based on the CPI–U increase in the minimum DBC limits calculation is a reasonable basis for 6. Oversales (i.e., increasing the limits on denied updating those limits or whether some Part 250 establishes the minimum boarding compensation based on the other amounts would be more standards for the treatment of airline consumer price index (CPI) or on the appropriate to adequately compensate passengers holding confirmed increase in fare yields, doubling the passengers for the inconvenience and reservations on certain U.S. and foreign current limits, eliminating the limits so financial loss brought about by carriers who are involuntarily denied there would be no cap on denied involuntary denied boarding. If not, by boarding (‘‘bumped’’) from flights that boarding compensation payments). We how much should the amounts be are oversold. In adopting the original settled on a rule under which an eligible increased, if at all? We also ask for oversales rule in the 1960s, the Civil passenger who encounters a delay of comment on whether we should Aeronautics Board (CAB), the over one hour due to the involuntary completely eliminate minimum Department’s predecessor in aviation denied boarding is entitled to compensation limits and simply require consumer matters, recognized the compensation equal to either 100% of that carriers base DBC to be paid to inherent unfairness to passengers if the passenger’s one-way fare up to $400, involuntarily bumped passengers on carriers were allowed to sell more or 200% of the fare up to $800, 100% or 200% of a passenger’s fare, confirmed seats than were available. To depending on the length of the delay without limit, and/or whether the 100% balance the inconvenience and financial caused by the involuntary denied and 200% rates need to be increased in loss to passengers against the potential boarding. Since May 2008 when the line with the proposed increase in the benefits brought about by a controlled new rule was issued, despite these $400/$800 compensation limits overbooking system, i.e., achieving higher DBC amounts, we have seen an proposed above, perhaps to 200% and higher load factors, avoiding the losses increase in involuntary denied 400% of the passenger’s fare, or higher. caused by last-minute cancellations and boardings. Load factors are also This would account for the fact that the no-shows, enabling more passengers to increasing, making it less likely that actual cost for flying is likely to have obtain a reservation on the flight of their ‘‘bumped’’ passengers are being increased while what is commonly choice, and ultimately reducing fares, conveniently accommodated on other referred to as the ‘‘fare’’ may not have the CAB prescribed a two-part oversales flights. We are therefore concerned increased as a result of the carriers’ system: Soliciting volunteers first, then about whether the current rule current practice of unbundling fares, involuntarily ‘‘bumping’’ passengers if adequately encourages carriers to seek i.e., charging extra for once-free there are not enough volunteers, with a volunteers to give up their seats and amenities, e.g., checked baggage, food, minimum standard for denied boarding whether the minimum DBC amount preferred seats, etc. compensation (DBC). This system has adequately compensates those We are also proposing to clarify that been in effect for almost half a century passengers that are involuntarily Part 250 applies to passengers who hold and we believe that its basic structure ‘‘bumped’’ from their flights. ‘‘zero fare tickets,’’ e.g., passengers who remains sound. Accordingly, we are proposing to ‘‘purchased’’ air transportation with In this NPRM, we propose to expand revise the minimum DBC amounts to frequent flyer mileage or airline travel the rule’s applicability and add, modify more accurately reflect inflation’s effect vouchers, passengers who travel on so- and clarify certain elements of the rule on those amounts since 1978, the last called ‘‘free’’ companion tickets, or as part of our continuing efforts to year those amounts were raised before passengers who hold a ‘‘consolidator’’ improve and perfect the system. the most recent rule. We propose to do ticket that does not display a monetary Specifically, we are proposing to make so by using the Consumer Price Index price. For the most part, these ticket five changes to Part 250: (1) Increase the for All Urban Consumers (CPI–U), holders have ‘‘paid’’ only government minimum DBC limits to take account of rounded to the nearest $25, with the taxes and fees and, perhaps, carrier- the increase in the Consumer Price base of $200/$400 for the maximum imposed administrative fees for Index (CPI) since 1978; (2) implement DBC amounts in the year 1978. This ticketing. In this regard, we propose to an automatic inflation adjuster for would bring the maximum DBC amend the definition of ‘‘confirmed minimum DBC limits; (3) clarify that amounts for involuntarily oversold reserved space’’ to specify that zero fare DBC must be offered to ‘‘zero fare ticket’’ passengers to $650/$1,300 as of January ticket holders have the same rights and holders who are involuntarily bumped; 1, 2010. In addition, we propose to add eligibility for DBC as any other (4) require that a carrier verbally offer a provision to Part 250 that would passenger who used cash, check or

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credit card to purchase his or her whole or in part, would be eligible to be reduced air transportation. Agents often airfare. Passengers with zero-fare tickets compensated with a voucher worth verbally advise passengers of the offer of earned those tickets in some fashion, 100% or 200% of the value of their a travel voucher and its amount. e.g. by exceeding a particular frequent- original voucher, and an appropriate Although in the case of involuntarily flyer threshold, agreeing to accept a cash payment if a portion of the ticket bumped passengers, this offer must be travel voucher as settlement of a was paid for in that manner. We also accompanied by the written notice of consumer claim or complaint, etc. seek comment on any other alternative the passenger’s right to insist on DBC by When these passengers are method of calculating DBC for zero fare cash or check, there currently is no involuntarily denied boarding, they, like ticket holders that would best quantify express requirement that this notice be passengers who paid fully in money for the financial loss and inconvenience to given verbally. We are concerned that the tickets, suffer inconvenience and/or those passengers. How should the rule these passengers who are verbally financial losses. We propose that the quantify the value of the remaining offered a travel voucher may not have basis for determining the amount of travel portion (either to the next time to read the written notice and are DBC due a passenger holding a zero fare stopover, or if none, to the final not in fact verbally told by an agent that ticket who is involuntarily bumped, i.e., destination) if the DBC were to be paid they are entitled to compensation by the ‘‘passenger’s fare,’’ be the fare of the with frequent flyer miles? cash or check. Likewise, they may not lowest priced ticket available (paid by Another area that we believe needs be adequately informed of any cash, check, or credit card) for a further improvement is the disclosure conditions or limitations placed on the comparable class of ticket on the same provisions in our current oversales rule. vouchers they are receiving. flight. For example, if an involuntarily These provisions were established Accordingly, we are proposing that in bumped passenger used frequent flyer because passengers deserve to know any case in which a carrier verbally miles to obtain a confirmed, non- about the possibility, however remote, offers an involuntarily bumped refundable roundtrip coach ticket of an oversale occurring and because passenger free or reduced-rate air having no restrictions, the basis for only a well-informed passenger can transportation as an alternative to cash calculating the DBC amount due to that make a proper choice when faced with DBC, it also must at the same time passenger would be the lowest fare that the option of volunteering to be bumped verbally advise that passenger of his or was available for a confirmed, roundtrip from a flight. We propose in this her right to insist on compensation by coach ticket on the same flight. Under proceeding to reinforce required cash or check and the actual amount of this proposal, a carrier would be disclosures to ensure that passengers such compensation that would be due required to provide the same form of will be aware of their rights when and of any conditions or restrictions DBC to zero-fare passengers as to other making decisions regarding whether to applicable to the vouchers. This passengers denied boarding volunteer for denied boarding and/or proposed requirement would not, if involuntarily, i.e. cash or check, or a whether to accept a travel voucher in adopted, alter the carriers’ responsibility travel voucher of the passenger’s choice lieu of cash or a check as DBC if they to provide the written DBC notice under the conditions described in are bumped involuntarily. required by section 250.9, nor would it The existing required disclosures can existing section 250.5(b) if the passenger require carriers in all instances to be found in sections 250.2b 250.9 and agrees. We seek comment not only on provide verbal advice to passengers. But 250.11. Section 250.2b(b) sets forth whether zero fare ticket holders should as a practical matter, verbal exchanges conditions and requirements that receive DBC under part 250, but also on between carrier agents and passengers whether the cash method described carriers must comply with when in oversale situations are the quickest above for calculating DBC to be paid soliciting volunteers on an oversold and easiest form of communication and such zero fare ticket holders is flight. Specifically, it requires that consumers are entitled to a fair reasonable and would truly capture carriers inform each passenger who is presentation of their options during these passengers’ losses due to being solicited to volunteer to be bumped such situations. Therefore, if a carrier bumped involuntarily to the same whether he or she is in danger of being chooses to offer a passenger DBC in a extent as for cash/check/credit ticket involuntarily denied boarding and the form other than cash or check and to do holders. This proposal is consistent compensation to which they would be so verbally, under this proposal it must with guidance DOT has given to carriers entitled in that event. In addition, also verbally advise the passenger about in the past. section 250.9 specifies the written A possible alternative to the above explanation of DBC and boarding the cash/check option. proposed method of compensation priorities that must be provided to Furthermore, we are proposing to would be to allow carriers to passengers involuntarily oversold, prohibit carriers from offering or compensate zero fare ticket holders which statement also must be provided providing to volunteers solicited to be using the same ‘‘currency’’ in which the to any person who requests it at any bumped, or to passengers involuntarily tickets were obtained. For instance, location a carrier sells tickets and at its bumped, free or reduced-rate air under this alternative an involuntarily boarding gates. Section 250.11 requires transportation other than on an bumped passenger who used frequent that carriers provide at each station they unrestricted basis, unless the carrier flyer miles to purchase a ticket would be or their agents sell tickets a prescribed provides direct verbal notice to such eligible to be compensated with notice advising persons of their basic passengers of any restrictions on such mileage, the currency used to obtain rights in an oversale situation and that free or reduced rate air transportation. that flight. Under the current rule, this they are entitled to detailed information While the written notice required to be would amount to 100% or 200% of the upon request. provided passengers under section amount of mileage that was used to Despite these required disclosures, we 250.9 suggests that carriers must purchase the ticket, plus a cash amount are concerned that passengers may not disclose material restrictions in any free if appropriate to account for any taxes, be aware of their rights when making or reduced rate compensation offered, fees and administrative costs paid to decisions regarding whether to the requirement is not specifically obtain the ticket. Similarly, volunteer for denied boarding and/or reflected in any section of the rule itself, involuntarily bumped passengers who accept a travel voucher because of the a shortcoming that we believe should be used a voucher to purchase a ticket, in manner in which carriers offer free or remedied. We ask for comment on our

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proposals here as well as on whether fare. Thus for a passenger who is in the ad, so that the consumer can there are any other forms of notice that considering rejecting the volunteer offer easily calculate the total price to be might better inform passengers being in hopes of receiving involuntary DBC, paid. The Department has consistently requested to volunteer to be bumped, or it is material to know how likely it is, prohibited sellers of air transportation those involuntarily bumped, of their if involuntarily denied boarding, that from breaking out any other fee, rights and carriers’ obligations. the passenger’s delay would exceed the including fuel surcharges, service fees, The current disclosure rule does not one/two/four hour(s) limits. We seek and taxes imposed on an ad valorem define how the carriers should describe comments on whether we should basis. This policy has been articulated to passengers who are solicited to require this disclosure to every in a number of industry letters and volunteer to be bumped the likelihood passenger the carrier solicits to guidance documents; see http:// of being involuntarily denied boarding. volunteer and if so, what form, e.g., airconsumer.dot.gov/rules/ In this NPRM, we propose to verbal or written, the disclosure should guidance.htm. specifically require that carriers must take. The Department is considering inform the solicited passengers about We are also considering expanding changing its enforcement policy their principal boarding priority rules the applicability of the oversales rule to concerning this rule to enforce the ‘‘full applicable to the specific flight. Hence, the operations of U.S. certificated and price advertising’’ provision of the rule the passengers can apply the boarding commuter carriers and foreign carriers as it is written and, consistent with priority rules to their situations and using aircraft originally designed for 19 longstanding Department enforcement more accurately estimate the likelihood or more seats. Currently, Part 250 policy, to clarify that the rule applies to of their being involuntarily denied applies to all U.S. certificated and ticket agents. This change in boarding. By ‘‘principal boarding commuter air carriers and foreign enforcement policy would also include priority rules’’ we are referring to carriers with respect to specified a requirement that all advertisers procedures such as bumping passengers scheduled flight segments using an include all mandatory fees in the involuntarily based on their fare, on aircraft originally designed to have a advertised price. Given technological when they checked in, or on whether passenger capacity of 30 or more seats. innovations and new methods of they held seat assignments. Carriers We have concerns that many carriers communication, carriers and ticket need not recite specialized priorities use code-share partners for their agents are finding new and creative such as those for unaccompanied connecting services to smaller points, ways to advertise airfares, some of minors or passengers with disabilities some of whom operate aircraft with 19– except where those priorities apply to a 29 seats. Such flight segments are not which circumvent the spirit if not the particular passenger. This information is covered by part 250, but are associated letter of the full-price advertising rule significant if a passenger is willing to with the identity of a large carrier and and Department enforcement policy. give up his or her confirmed reserved many, if not most, are ‘‘fee for service’’ Consumers now receive airfare space but could not determine whether flights under the total control of the solicitations through print to accept the volunteer compensation large carrier, which controls booking. advertisements, radio advertisements, offer or to wait until he or she would be Should we allow those flights to be internet advertisements, and involuntarily bumped. For instance, if oversold at all? If we do, should Part solicitations sent directly to consumers the carrier informs the passengers that it 250 be applicable in its entirety? via e-mail newsletters, social will use the check-in time as its networking Web sites, text messages, 7. Full Fare Advertising principal boarding priority criterion, a and applications designed for many passenger willing to give up his or her The Department is proposing to different kinds of cell phones. The ease seat on the flight in exchange for a amend its rule on price advertising (14 and speed of information sharing also sufficiently large cash compensation CFR 399.84). The Department adopted allows airfare information to be amount may choose to reject the this rule in 1984, pursuant to 49 U.S.C. presented to consumers in many volunteer compensation offer if he or 41712 (formerly section 411 of the different forms. Even in cases where she checked in at the last minute, Federal Aviation Act), which empowers those forms of advertising comply in a knowing that the chance of being denied the Department to prohibit unfair and technical sense with our enforcement boarding involuntarily is high and that deceptive practices and unfair methods policy with regard to the full-price being involuntarily bumped would of competition in air transportation and advertising rule, we are concerned that require a higher amount of its sale. The rule states that the in many cases consumers are not easily compensation in cash from the carrier. Department considers any able to determine the total cost of air Also material to the solicited advertisement that states a price for air transportation services or are deceived passengers as decision makers is the transportation that is not the total price regarding the true price. Accordingly, availability of ‘‘comparable air to be paid by the consumer to be an we believe consumers would be better transportation’’ provided to passengers unfair and deceptive practice in served if we enforce our existing full- who are involuntary denied boarding. violation of 49 U.S.C. 41712. However, price rule as written and prohibit the Under the current DBC structure, if the the Department’s enforcement policy practice of advertising fares that exclude passengers can reach their next stopover regarding this rule has permitted certain any mandatory fees or surcharges, or, if none, their final destination within government-imposed charges to be regardless of the source. In proposing one hour of the planned arrival time of stated separately from this total price. this change in policy, we do not intend the original flight, the passengers are not Under this policy, taxes and fees that to foreclose carriers and ticket agents required to be provided DBC. If the are collected by a carrier on a per- from advising the public in their fare delay for a domestic flight is more than person basis, are imposed by a solicitations about government taxes one hour but less than two hours (four government entity, and are not ad and fees, or other mandatory carrier- or hours for an international flight), the valorem in nature are allowed to be ticket agent-imposed charges applicable DBC rate is 100% of the passenger’s excluded from an advertised fare. The to their airfares. However, we no longer one-way fare. For delays that exceed existence, nature, and amount of these see a useful purpose in presenting what this two/four hour timeframe, the DBC additional taxes and fees must be clearly purportedly are ‘‘fares’’ to consumers rate is 200% of the passenger’s one-way indicated where the airfare first appears that do not include numerous required

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charges and, in our view only act to Delta Air Lines, 310 F.3d 1347 (11th consumer is deemed to have accepted confuse or deceive consumers regarding Cir.2002), Boswell v. Skywest Airlines, unless he or she affirmatively opts out the true full price and to make price Inc., 361 F.3d 1263 (10th Cir. 2004); see of the service and related charges. For comparisons difficult or improbable. also Alexander v. Sandoval 532 U.S. example, carriers may allow a consumer Our objective is to ensure that 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d to select a preferred seat or receive consumers are not be deceived or 517 (2001). priority boarding status if he or she pays confused about the total fare they must The Department invites comments on a predetermined fee. In some cases the pay, which we believe can best be its proposal to change its enforcement optional services and accompanying ensured by requiring that consumers be policy under section 399.84 from one of charges for those services is pre-selected able to see clearly the entire price of the permitting limited exceptions to and added to the total fare without the air transportation being advertised disclosing the full price in all consumer affirmatively choosing those whenever a price is displayed rather advertising of air transportation and air optional services or fees. This often is than having to wade through a myriad tours to requiring disclosure of the full accomplished on a Web site through use of footnotes and/or hyperlinks regarding price to be paid by a consumer of a small box that is pre-checked and government taxes and fees and make the whenever a price is displayed, and its must be ‘‘unchecked’’ by a consumer in full-price calculation themselves to try proposal to specify in the rule that it order to avoid the charge. This can be to establish which among many applies to ‘‘ticket agents.’’ Specific deceptive depending on the layout of displayed ‘‘fares’’ is the real fare or wait questions on which the Department the webpage and instructions until the purchase screen to see the total invites comments regarding this policy accompanying the service and charge. fare. shift include how sellers of air What can be even more problematic is The Department’s statutory authority transportation foresee this affecting the that opt-out provisions are sometimes under 49 U.S.C. 41712 to prohibit unfair methods they use to advertise fares, how included on the same webpage as opt- and deceptive practices and unfair consumers view the proposed change, in provisions, in which case it is much methods of competition applies not only and the potential cost in changing the less likely that consumers will notice to air carriers but also to ‘‘ticket agents’’ current advertising structures that the opt-out nature of certain optional which includes those persons other than carriers and ticket agents have in place services that carry additional charges. a carrier ‘‘that as a principal or agent to ensure compliance with the current The Department proposes adding a sells, offers for sale, negotiates for, or policy of the Department. paragraph (c) to section 399.84 to holds itself out as selling, providing, or Additionally, the Department is prohibit such opt-out procedures. arranging for air transportation.’’ 49 considering adding two new paragraphs Proposed paragraph (c) would provide U.S.C. 40102(a)(40). Although the to the price advertising rule. We that if a carrier offers optional services, Department’s full-price advertising rule propose adding paragraph (b) which the consumer must affirmatively opt in applies on its face to direct and indirect would codify the Department’s current to accept and purchase that product or air carriers as well as ‘‘an agent of enforcement policy on each-way airfare service before the price for that service either,’’ it has been the longstanding advertising. Currently, the Department can be added to the total airfare to be policy of the Department to consider allows sellers of air transportation to paid. No longer will carriers or ticket ticket agents as defined in title 49 to be advertise an each-way price that is agents be allowed to require that a subject to that rule. The Department contingent on a roundtrip ticket consumer opt out of purchasing such believes it appropriate to specifically purchase, so long as the roundtrip products or services in order to avoid name ‘‘ticket agents’’ as being covered by purchase requirement is clearly and being charged for them. The proposed the rule in order to ensure there is no conspicuously disclosed in a location rule, as part of the current full-price confusion about their inclusion under that is prominent and proximate to the advertising rule, would also apply to the deceptive practice prohibitions of advertised fare amount. This proposal carriers and ticket agents that advertise the rule. would codify existing enforcement tours which include air transportation. Air transportation is unlike any other policy and would also preclude carriers Examples of such opt-out procedures industry in that the Department has the from referring to such fares as ‘‘one-way’’ the Department has seen in recent years sole authority to regulate airlines’ fare fares, which they are not. The include fees for travel insurance, rental advertisements by prohibiting practices Department invites interested persons to cars, transfers between airports and that are unfair or deceptive. Congress comment on adding this paragraph on hotels, priority boarding, premium modeled section 41712 on section 5 of each-way airfare advertising policy to seats, and extra legroom. Oftentimes the the Federal Trade Commission (FTC) the price advertising rule. The consumer does not realize that the Act, 15 U.S.C.A. 45, but by its own Department also invites comment on ancillary services are included in the terms, that statute cannot be enforced by whether a rule similar to that proposed total price of the ticket due to the FTC against ‘‘air carriers and foreign air for each-way fare advertising disclosure deceptive nature of such opt-out carriers,’’ 15 U.S.C. 45(a)(2). The States should be applied to air/hotel packages provisions. The Department asks are preempted from regulating in this that advertise a single price, but are sold interested persons to comment on area (49 U.S.C. 41713, see Morales v. at that price only on a double adding the proposed subsection (c) to Trans World Airlines, 504 U.S. 374, 112 occupancy basis, i.e., where two people the existing price advertising rule. The S.Ct.2031, 119 L.Ed.2d 157 (1992)). must purchase the package in order to Department would like to hear from Thus, unlike advertising in other obtain the advertised price. both sellers of air transportation and industries, where either the States or the The second provision the Department consumers about the costs and benefits FTC, or both, can take action against proposes to add to the price advertising of prohibiting opt-out features. abusive practices, if we do not exercise rule in section 399.84 would prohibit our authority, consumers and so-called ‘‘opt-out’’ provisions in price 8. Baggage and Other Fees and Related competitors have no governmental advertising. The Department has noticed Code-Share Issues recourse against advertising that is a trend lately in the air transportation With the increasing industry-wide unfair or deceptive. Further, we do not industry to add fees for ancillary trend to ‘‘unbundle’’ fares by charging believe that 49 U.S.C. 41712 gives rise services and products to the total price fees for individual services provided in to a private right of action; see Love v. of air transportation, which charges the connection with air transportation, the

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Department has decided that there is a feasibility, as well as its costs to airlines on the e-ticket confirmation will permit need to enhance protections for air and ticket agents. passengers to avoid unexpected baggage travelers by establishing rules to ensure The Department believes that effective charges to the extent possible and also adequate notice of such fees for optional disclosure of the optional nature of save time at the airport for both services to consumers. When booking services and their costs would prevent passengers and carrier personnel air travel, consumers are not always carriers from imposing hidden fees on because the passengers will be better made aware of the extra charges that a consumers and allow consumers to informed about the baggage allowance carrier may impose on them for make better informed decisions when and any charges to be incurred. additional services. Such charges may purchasing air travel. In 2008, the Proposed section 399.85(c) would include services that traditionally have Department’s Aviation Enforcement require carriers that have a Web site been included in the ticket price, such Office issued guidance concerning the accessible to the general public to as the carriage of one or two checked disclosure of baggage fees to the public. disclose all fees for optional services to bags, obtaining seat assignments in See, e.g., Notice of the Assistant General consumers through a prominent link on Counsel for Aviation Enforcement and their homepage that leads directly to a advance, in-flight entertainment, and in- Proceedings, ‘‘Guidance on Disclosure of listing of those fees. Optional services flight food and beverage service. In fact, Policies and Charges Associated with include but are not limited to the cost the Airline Tariff Publishing Company Checked Baggage,’’ May 13, 2008, of a carry-on bag, checking baggage, (ATPCO), which collects schedule and http://airconsumer.dot.gov/rules/ advance seat assignments, in-flight food fare information from airlines for use in guidance.htm. We propose to codify this and beverage service, in-flight computerized reservation systems, has guidance and also cover in the rule entertainment, blankets, pillows, or developed a list containing scores of notice of charges for services other than other comfort items, and fees for seat ancillary charges in various categories. checked baggage. upgrades. The Department feels that Due to what the Department feels is More specifically, the Department is having all of the fees for optional sometimes a lack of clear and adequate proposing to adopt three provisions in services in one place for consumers to disclosure, consumers are not always a proposed new 14 CFR 399.85. review will help ensure that consumers able to determine the full price of their Proposed section 399.85(a) would do not encounter such charges travel (the ticket price plus the price of require carriers that maintain a Web site unexpectedly and that they can more additional fees for optional services) accessible to the general public to easily compare these charges among prior to purchase. prominently disclose on the homepage competing carriers. Additionally, We also seek comment on the costs of such Web site any increase in the fee disclosure as proposed will result in and benefits of requiring that two prices for passenger baggage or any change in this important cost information being be provided in certain airfare the free baggage allowance for checked presented in a clear and concise form advertising—the full fare, including all or carry-on bags (e.g., size, weight, and reduce the prospect of delays at the mandatory charges, as well as that full number). This could be done, for airport and in-flight that can occur fare plus the cost of baggage charges that example, through direct, prominent when the consumer is unaware of traditionally have been included in the notice or through a conspicuous notice charges for optional services. The price of the ticket, if these prices differ. of the existence of such fees in a Department invites comments regarding We would regard charges for one hyperlink that takes the reader directly the proposal to have full, complete personal item (e.g., a purse or laptop to an explanation of the carrier’s disclosure of all fees for optional baggage policies and charges. The computer), one carry-on bag, and one or services on one Web page, accessible to proposed rule would require this notice two checked bags as baggage charges the consumer through a prominent to remain on the homepage of the that traditionally have been included in hyperlink. In particular, we solicit carrier’s Web site for at least three the price of a ticket. Should such a comment on whether we should limit months after the change is made. The the requirement to disclose fees to requirement for a second price, if Department invites interested persons to ‘‘significant’’ fees for optional services, adopted, be limited to the full fare plus comment on this proposal, including including comment on the definition of the cost of baggage charges? Should the whether the time period for displaying ‘‘significant fee’’ and whether it should Department require carriers to include such changes on the homepage should be defined as a particular dollar amount. in the second price all services that be greater or less than three months. The The Department seeks comment on the traditionally have been included in the Department also asks for comment on alternatives to the proposed link to the price of the ticket such as obtaining seat the best options for displaying such information on a carrier’s homepage, assignments in advance? Why or why information to the public if it were to such as disclosure of these optional fees not? In the alternative, the Department adopt a notice requirement. on e-ticket confirmations or elsewhere. is considering requiring sellers of air Proposed section 399.85(b) would The Department is also considering transportation to display on their Web require carriers that issue e-ticket requiring that carriers make all the sites information regarding a full price confirmations to passengers to include information that must be made directly including optional fees selected by the information regarding their free baggage available to consumers via proposed passenger when a prospective passenger allowance and/or the applicable fee for section 399.85 available to global conducts a query for a particular a carry-on bag or the first and second distribution systems (GDS’s) in which itinerary. In other words, passengers checked bag on the e-ticket they participate in an up-to-date fashion would be able to conduct queries for confirmation. By providing this and useful format. This would ensure their specific needs (e.g., airfare and 2 information to consumers on the e-ticket that the information is readily available checked bags; air fare, 1 checked bag, confirmation—the document that to both Internet and ‘‘brick and mortar’’ and extra legroom). The benefit of this confirms a passenger’s travel on the travel agencies and ticket agents so that approach is that consumers would be carrier—passengers will be informed it can be passed on to the many able to more easily compare airfares and well before the flight date and arrival at consumers who use their services to charges for their own particular the airport of the applicable baggage compare air transportation offers and itinerary and options. We invite rules and charges. The Department make purchases. We invite comments comment on this approach, including its believes that including this information on this proposal, including the present

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ability of carriers to meet this while others do (perhaps subject to tour packages that include air requirement, the potential costs of the varying charges and various age transportation, where an air tour requirement, including costs of restrictions), and some may not provide operator will increase the price of an air developing new software or systems to in-flight medical oxygen while others do tour before travel, ostensibly in order to deliver such information to GDS’s, if (subject to different charges). We believe pass along fuel surcharges or an increase necessary, and the benefits of this that, at a minimum, prospective in the price of a seat. Consumers are not requirement. customers for these code-share flights made aware of the potential for a price The proposed section 399.85 would should be made aware of any significant increase at the time of purchase, and apply to all U.S. and foreign air carriers differences between the ancillary therefore are deceived when the that have Web sites accessible to the services and fees of the carrier under increase is imposed and the seller uses general public in the United States whose identity their service was the terms of the contract of carriage to through which tickets are sold, as well marketed and those of the carrier justify an additional collection. as to their agents. The Department operating their flights. Comments are Moreover, most airlines and tour invites comment on alternative invited on whether such disclosure by operators will advertise and sell tickets proposals, including limiting the ticketing/marketing carriers should be or packages at a stated price nearly a applicability of the proposed section required through reservation agents, year in advance of scheduled travel. We 399.85 to all flights operated by U.S. Web sites, or e-ticket confirmations or are tentatively of the opinion that it is carriers, U.S. and foreign carriers that through each of those mechanisms. patently unfair for a carrier or tour operate any aircraft with sixty (60) or Further comment is invited on whether operator to advertise and sell air more seats, or U.S. and foreign carriers there are any ancillary services that transportation at a particular price long that operate any aircraft with thirty (30) should not be allowed to vary among before travel, with the caveat that they or more seats. In addition, we invite code-share partners, e.g., the free reserve the right to change the comment on whether the rule should baggage allowance or baggage fees. For advertised price at any time before apply to all ticket agents, as defined in example, Department policy provides travel, and in any amount. The 49 U.S.C. § 40102, which includes not that for passengers whose ultimate Department feels it is time to ban the just agents of carriers, but also others ticketed origin or destination is a U.S. practice of post-purchase price who, as a principal, ‘‘sells, offers for point, the baggage rules that apply at the increases. sale, negotiates for, or holds itself out as beginning of the itinerary apply The Department invites interested selling, providing, or arranging for air throughout the itinerary, and the parties to comment on this proposal and transportation.’’ Under proposed section ticketing carrier’s rules take precedence. on several alternatives. As indicated 399.85, the Department would consider See, e.g., Order 2009–9–20, Dockets above, the Department’s primary the failure of a carrier to give consumers OST–2008–0367 and 0370, ‘‘Agreements proposal is an outright ban on post- appropriate notice about baggage fees adopted by the Tariff Coordinating purchase price increases. One and other optional fees to be an unfair Conference of the International Air alternative the Department is and deceptive practice in violation of 49 Transport Association relating to considering would be to allow post- U.S.C. 41712. passenger baggage matters,’’ September purchase price increases, but only as The Department is also seeking 30, 2009. Information on the cost of long as the seller of air transportation comment on the need for a special rule these proposals is invited. conspicuously discloses to the relating to the disclosure of fees and consumer the potential for such an related restrictions in connection with 9. Post-Purchase Price Increases increase and the maximum amount of code-share service. It has come to the The Department is proposing a new the increase, and the consumer Department’s attention that many section in 14 CFR part 399 that would affirmatively agrees to the potential for carriers operating flights under a code- prohibit post-purchase price increases such an increase prior to purchasing the share agreement impose different fees in air transportation or air tours by ticket. Another alternative would be to and restrictions than those of the carrier carriers and ticket agents. The seller of allow post-purchase price increases, under whose identity the service is air transportation would be prohibited with full and adequate disclosure, that marketed, notwithstanding the fact that from raising the price after the the consumer agrees to in advance of as a condition for approval of consumer completes the purchase. purchasing a ticket, but to prohibit price international code-share services, the Currently, the Department allows post- increases within thirty or sixty days of Department has as a matter of policy purchase price increases as long as any the first flight in a consumer’s itinerary. required that ‘‘the carrier selling such term that permits a carrier to increase transportation (i.e., the carrier shown on the price after purchase is included in 10. Flight Status Changes the ticket) accept responsibility for the the conditions of carriage and the We are proposing to require that entirety of the code-share journey for all consumer receives direct notice of that certificated air carriers that account for obligations established in the contract of provision on or with the ticket. See 14 at least 1 percent of domestic scheduled carriage with the passenger; and that the CFR 253.7. The Department has found passenger revenues (reporting carriers) passenger liability of the operating that some sellers of air transportation promptly notify passengers in the carrier be unaffected.’’ See, Notice of the are abusing this rule by burying boarding gate area of changes to their Assistant General Counsel for Aviation provisions purporting to permit them to domestic scheduled flights resulting Enforcement and Proceedings, raise the price in the contract of carriage from delays or cancellations, promptly ‘‘Guidance on Airline Baggage Liability or conditions of travel and merely update all domestic scheduled flight and Responsibilities of Code-Share providing the consumer a hyperlink to information under their control at Partners Involving International the contract of carriage or conditions of airports regarding changes to the status Itineraries,’’ http://airconsumer.dot.gov/ travel. The consumer is unaware of the of particular flights as a result of delays rules, March 26, 2009. For example, potential for such increase until well or cancellations and promptly update they may have different free baggage after the purchase is made. Although we flight status details available on their allowances and different charges for have not seen carriers resort to this Web sites and through their telephone extra pieces and overweight bags, some problematic practice, we have often reservation systems. ‘‘Domestic may not allow unaccompanied minors found this to be the case in the sale of scheduled flight’’ for this purpose means

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a flight segment. For example, on a no later than 30 minutes after the carrier the carrier becomes aware or should direct flight from Chicago to London becomes aware or should have become have become aware of a change in the with a stop in New York, the Chicago- aware of a change in the status of the status of a flight’’—is a reasonable New York segment would be covered by flight due to a delay or cancellation. notification standard to apply in this requirement. The Department This requirement would apply to all the requiring carriers to pass along updates tentatively believes that the cost of domestic scheduled flight segments that to passengers and to the public. Does it requiring smaller carriers to provide this a reporting carrier ‘‘markets.’’ For provide consumers sufficient lead time information outweighs the benefits to example, for a code-share flight this in most cases to act to protect consumers in general in light of the fact proposed notification requirement themselves? If not, why not, and could that the operations of the reporting would be the responsibility of the carriers be expected to meet a more carriers account for nearly 90 percent of carrier whose code is used, whether or stringent standard? Is the more stringent all domestic passenger enplanements. not it is operated under a fee-for-service standard a reasonable standard for We ask for comment on whether the arrangement. carriers to meet and, if not, why not? regulation should cover a greater We note that many covered carriers In addition, we are proposing that number of carriers and operations, already voluntarily provide flight status notification be provided regarding any including operations of smaller U.S. details via the proposed methods changes that affect the planned carriers and/or international operations proposed in this notice (i.e., operation of a flight by at least 30 of U.S. and foreign carriers. announcement in boarding area, Web minutes. While shorter flight delays What would be the cost or benefit of sites, telephone reservation systems, occur more frequently, we believe they expanding coverage to those additional airport display boards). In addition, are less likely to significantly disrupt carriers? most of the largest carriers generally expectations or travel plans. We ask for It is important to passengers as well make efforts to notify passengers of comment on whether this 30-minute as persons dropping passengers off for changes to the status of their flights by standard is appropriate. Do consumers outbound flights or meeting passengers permitting passengers to subscribe to in most instances require notice of flight on incoming flights to be kept informed flight status update services via various delays that are less than 30 minutes? on a timely basis of delays and/or widely-used media, including Would changing the standard of delays cancellations affecting their flights in computer-generated telephone/ to less than 30 minutes impose order to avoid unnecessary waits at, or voicemail, text messages, and e-mails. unreasonable burdens or costs on pointless trips to, an airport. Passengers This proposal to promptly notify carriers that outweigh any benefits to also need flight status updates as soon passengers and other interested parties the public? According to data from the as they become available in order to of changes to flights as a result of delays Department’s Bureau of Transportation make decisions about alternate travel or cancellations would not impose upon Statistics (BTS), in calendar year 2009, plans. Carriers recognize the importance carriers a requirement to offer approximately 10% of departure delays of timely and accurate flight passengers the opportunity to subscribe and 11% of arrival delays were over 30 information, as evidenced by the fact to such a service but would require minutes. The majority of scheduled that many of the largest U.S. carriers carriers to the extent that they use this domestic passenger flights depart or promise through their customer service or other methods of communication to arrive 1 to 14 minutes after their plans to provide passengers all known ensure that the flight status changes are scheduled departure and arrival times, information about delays and promptly updated. respectively. cancellations as soon as they become We seek comments on whether it is We note that the requirement to aware of the issue. Failures by carriers preferable to require carriers to provide promptly update all domestic scheduled to provide timely or accurate flight prompt notification of flight status flight information under a carrier’s status information not only changes and leave it up to the carriers control at airports would cover all inconvenience passengers and other to determine how that notification is communication methods that are under members of the public but also can provided, or prescribe particular means the control of a carrier at an airport. For result in additional expenses to those by which carriers must communicate or example, flight information provided persons. must make available flight status via electronic or other display boards at Our proposals here are intended to updates. We ask for comment on the airport counters and departure gates provide additional measures to ensure four proposed means of notification: an would be covered. We are not proposing that passengers and the general public announcement in the boarding area, at this time that carriers establish new know about flight delays and carriers’ Web sites, carriers’ telephone types of flight information outlets but cancellations within a reasonable time reservation systems, and airport this requirement, if made final, would so that they can, if possible, take steps displays under carriers’ control. apply to every type of outlet a carrier to protect themselves and avoid Commenters should support their elects to use to provide flight unnecessary loss of time and expense. opinions with as much detail as information to the public at airports. We are therefore proposing that carriers possible regarding the practicality, With respect to flight status information promptly notify passengers holding costs, and benefits of any standard they outlets at an airport that are not under tickets or reservations on one of their support or oppose. We also seek a carrier’s control, e.g., flight arrival and flights as well as other interested parties comment about the cost and benefit of departure displays that are under the about changes to a flight’s status, i.e., flight status update services. It goes control of an airport authority, a delays and cancellations, which affect without saying that the quicker that carrier’s responsibility is limited to the planned operation of the flight by at changes to a flight’s status can be providing the updated flight least 30 minutes. Additional provided to passengers, the more useful information to the airport authority notifications would be required if any the information is likely to be. In within the required 30 minutes. such delayed flight was further delayed addition to seeking comment on the by 30 minutes or more. By ‘‘promptly’’ need, in general, for this proposed 11. Choice-of-Forum Provisions we mean that a carrier must provide the notification requirement, we specifically The Department is proposing to required notification regarding the ask for comment on whether the amend 14 CFR part 253, the Part that status of a flight as soon as possible but standard we propose—‘‘30 minutes after concerns notice of contract of carriage

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terms, by adding a new section to codify states that major life activities means requested a peanut-free flight in the policy of the Department’s Aviation functions such as caring for one’s self, advance; or (3) requiring a peanut-free Enforcement Office that choice-of-forum performing manual tasks, walking, buffer zone in the immediate area of a provisions are unfair and deceptive seeing, hearing, speaking, breathing, passenger with a medically-documented when used to limit a passenger’s legal learning, and working. Airline severe allergy to peanuts if passenger forum to a particular inconvenient passengers with severe allergies to has requested a peanut-free flight in venue. Choice-of-forum provisions peanuts have a qualifying disability as advance. We seek comment on these purport to designate the court or defined in part 382. approaches as well as the question of jurisdiction where any lawsuit against Part 382 requires airlines to change or whether it would be preferable to the carrier concerning the purchased air make an exception to an otherwise maintain the current practice of not transportation must be brought See, e.g., general policy or practice to make sure prescribing carrier practices concerning Notice of the Assistant General Counsel that a passenger with a disability can the serving of peanuts. We are for Aviation Enforcement and take the trip for which he or she is particularly interested in hearing views Proceedings, ‘‘‘Choice of Forum’ ticketed unless the change would cause on how peanuts and peanut products Contract Provisions,’’ http:// an undue burden on the airline or a brought on board aircraft by passengers airconsumer.dot.gov/rules/ fundamental alteration in its services. should be handled. How likely is it that 19960715.htm (July 15, 1996). It is the The Department has in the past told a passenger with allergies to peanuts Department’s view that for air airlines that, based on this requirement, will have severe adverse health transportation sold in the U.S., it would they must make reasonable reactions by being exposed to the be an unfair or deceptive practice for the accommodations for air travelers who airborne transmission of peanut seller to attempt to prevent a passenger are allergic to peanuts. Specifically, in particles in an aircraft cabin (as opposed from seeking legal redress in any court August 1998 the Department’s Aviation to ingesting peanuts orally)? Will taking of competent jurisdiction, including a Enforcement Office sent an industry certain specific steps to prepare for a court within the jurisdiction of the letter providing guidance on this issue. flight (e.g., carrying an epinephrine passenger’s residence, provided that the That letter suggested that, if given auto-injector in order to immediately carrier does business within that advance notice, providing a peanut-free and aggressively treat an anaphylactic jurisdiction. Consumers should not be buffer zone in the immediate area of a reaction) sufficiently protect individuals forced to litigate in a jurisdiction that passenger with a medically-documented with severe peanut allergies? Who could be thousands of miles from their severe allergy to peanuts would be a should be responsible for ensuring an United States residence. The reasonable accommodation for the epinephrine auto-injector is available on Department believes that such narrow passenger’s disability, and would not a flight—the passenger with a severe choice-of-forum provisions would constitute an undue burden on the peanut allergy or the carrier? Is there operate as a limitation on the right of a airline. recent scientific or anecdotal evidence After the issuance of the guidance consumer to bring legitimate and viable of serious in-flight medical events letter, the Department was directed by suits. We invite interested persons to related to the airborne transmission of Congress to cease issuing guidance on comment on this proposal and on the peanut particles? Should any food item this subject or face a cutoff of funding use of such choice-of-forum provisions that contains peanuts be included for its Aviation Enforcement Office. See, in contracts of carriage. within the definition of peanut products for example, section 346 of Public Law (e.g., peanut butter crackers, products 12. Peanut Allergies 106–69, (October 9, 1999)—‘‘DOT and containing peanut oil)? Is there a way of The Department is considering several Related Agencies Appropriations Act, limiting this definition? different measures to provide greater 2000,’’ which stated that none of the access to air travel for individuals with funds made available under that Act 13. Effective Date severe peanut allergies in light of the could be used to require or suggest that We propose that any final rule that we significant number of children airlines provide peanut-free buffer zones adopt take effect 180 days after its diagnosed with peanut allergies, some or otherwise restrict the distribution of publication in the Federal Register. We of whom do not fly because of health peanuts. This congressional prohibition believe this would allow sufficient time concerns related to peanut service on was to remain in effect ‘‘until 90 days for carriers to comply with the various aircraft. The Air Carrier Access Act after submission to the Congress of a proposed requirements. We invite (ACAA) prohibits discrimination by peer-reviewed scientific study that comments on whether 180 days is the U.S. and foreign air carriers against determined that there are severe appropriate interval for completing individuals with disabilities. The reactions by passengers to peanuts as a these changes. Department of Transportation defines an result of contact with very small individual with a disability in 14 CFR airborne peanut particles of the kind Regulatory Analyses And Notices part 382 (Part 382), the regulation that passengers might encounter in an A. Executive Order 12866 (Regulatory implementing the ACAA. An individual aircraft.’’ This specific congressional ban Planning and Review) and DOT with a disability is any individual who on our involvement in this issue has not has a physical or mental impairment appeared recently in any legislation. At Regulatory Policies and Procedures that, on a permanent or temporary basis, this time, we are considering the This action has been determined to be substantially limits one or more major following alternatives to provide greater significant under Executive Order 12866 life activities, has a record of such an access to air travel for individuals with and the Department of Transportation’s impairment, or is regarded as having severe peanut allergies: (1) Banning the Regulatory Policies and Procedures. It such an impairment. Generally, a person serving of peanuts and all peanut has been reviewed by the Office of with an allergy is not an individual with products by both U.S. and foreign Management and Budget under that a disability. However, if a person’s carriers on flights covered by DOT’s Order. The Regulatory Evaluation finds allergy is sufficiently severe to disability rule; (2) banning the serving that the benefits of the proposal appear substantially limit a major life activity, of peanuts and all peanut products on to exceed its costs, even without then that person meets the definition of all such flights where a passenger with considering non-quantifiable benefits. an individual with a disability. Part 382 a peanut allergy is on board and has The total present value of passenger

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benefits from the proposed requirements years at a 7% discount rate is $61.61 cost and benefit estimates. We also seek over a 10 year period at a 7% discount million. comment on how unquantified costs rate is $87.59 million and the total Below, we have included a table and benefits could be measured. More present value of costs incurred by outlining the projected costs and detail on the estimates within this table carriers and other sellers of air benefits of this rulemaking. We invite can be found in the preliminary transportation over a 10 year period at comment on the quantification of costs Regulatory Impact Analysis associated a 7% discount rate is $25.98 million. and benefits for each provision, as well with this proposed rule. The net present value of the rule for 10 as the methodology used to develop our

COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2010–2020 [Discounted at 7%/year to 2010 $ millions]

Requirement 1: Expand tarmac delay contingency plan requirements to smaller airports and require that foreign car- Total riers have a tarmac delay contingency plan.

Estimated Quantified Benefits ...... $1.99 Estimated Quantified Costs ...... $3.24

Net Benefits ...... Ø$1.25 Unquantified Benefits: • 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 Towards Carriers Unquantified Costs: • Increased Flight Cancellations • Increased Passenger Anxiety Associated with Potential Flight Cancellations

Requirement 2: Expand carriers’ reporting tarmac delay info to DOT and require reporting by foreign carriers. Total

Estimated Quantified Benefits ...... not estimated Estimated Quantified Costs ...... $2.31

Net Benefits ...... not estimated Unquantified Benefits: • Increased Efficiency of US DOT Oversight and Enforcement Office Operations • Improved Planning by Passengers • Improved Management of Flight Delays • Improved Market Competition

Requirement 3: Establish of minimum standards for carriers’ customer service plans and extend the customer serv- Total ice plan requirements to cover foreign carriers.

Estimated Quantified Benefits ...... $6.25 Estimated Quantified Costs ...... $8.58

Net Benefits ...... Ø$2.33 Unquantified Benefits: • Decreased Confusion and Uncertainty Regarding Department’s Requirements • Value of Improved Customer Service Based on Self-Auditing of Adherence to Customer Service Plans for Foreign Car- riers • Improved Customer Good Will Towards Carriers

Requirement 4: Require incorporation of tarmac delay contingency plans and customer service plans into carrier Total contracts of carriage.

Estimated Quantified Benefits ...... not estimated Estimated Quantified Costs ...... not estimated

Net Benefits ...... not estimated Unquantified Benefits: • Decreased Occurrence of Customer Complaints • Improved Resolution of Customer Complaints

Requirement 5: Extend requirements for carriers to respond to consumer complaints to cover foreign carriers. Total

Estimated Quantified Benefits ...... $0.00 Estimated Quantified Costs ...... $1.82

Net Benefits ...... Ø$1.82 Unquantified Benefits:

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COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2010–2020—Continued [Discounted at 7%/year to 2010 $ millions] • Decreased Occurrence of Conduct that Would Produce Complaints • Improved Resolution of Customer Complaints • Decreased Anger Toward Carriers During Resolution of Complaints

Requirement 6: Changes in denied boarding compensation (involuntary bumping) policy: increase minimum com- Total pensation, add inflation adjustment, greater passenger information about policies.

Estimated Quantified Benefits ...... not estimated Estimated Quantified Costs ...... $0.66

Net Benefits ...... not estimated Unquantified Benefits: • Decrease in Confusion Regarding Denied Boarding Compensation Provisions • More Accurate Compensation for those Denied Boarding • Decreased Resentment among Some Passengers Regarding Different Compensation Received

Requirement 7: Require that carriers include taxes and fees in advertising (‘‘full-fare advertising’’) and prohibit use of Total sales provisions that require purchasers to opt out of add-ons such as trip insurance.

Estimated Quantified Benefits ...... $73.50 Estimated Quantified Costs ...... $6.86

Net Benefits ...... $66.64 Unquantified Benefits: • Travelers Less Likely to Mistakenly Purchase Unwanted Services and Amenities • Improved Market Competition • Improved Customer Good Will Towards Carriers

Requirement 8: Require carriers to disclose baggage and other optional fees on their Web sites. Total

Estimated Quantified Benefits ...... not estimated Estimated Quantified Costs ...... $2.51

Net Benefits ...... not estimated Unquantified Benefits: • Decrease in Time at Check-in • Avoidance of Unfair Surprise • Improved Customer Good Will Towards Carriers • Improved Market Competition

Requirement 9: Ban the practice of post-purchase price increases. Total

Estimated Quantified Benefits ...... $5.83 Estimated Quantified Costs ...... not estimated

Net Benefits ...... not estimated Unquantified Benefits: • Improved Customer Good Will Towards Carriers • Avoidance of Unfair Surprise Unquantified Costs: • Inability to Increase Prices Based on Unanticipated or Changed Circumstances

Requirement 10: Require prompt passenger notification of flight status changes (cancellations, delays, etc.) at the Total boarding gate area, on Web site and on telephone reservation systems.

Estimated Quantified Benefits ...... not estimated Estimated Quantified Costs ...... not estimated

Net Benefits ...... not estimated Unquantified Benefits: • Reduced Passenger Anxiety • Greater Comfort and Certainty from Knowing that Information Will Be Available In Timely Manner Unquantified Costs: • Expense of Providing Notification

Requirement 11: Permit consumers to file suit wherever a carrier does business. Total

Estimated Quantified Benefits ...... not estimated Estimated Quantified Costs ...... not estimated

Net Benefits ...... not estimated Unquantified Benefits:

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COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2010–2020—Continued [Discounted at 7%/year to 2010 $ millions] • Greater compliance with DOT regulations • Improved Customer Good Will Towards Carriers Unquantified Costs: • Need to Defend Suit in Location of Consumer’s Choice

Requirements 1–11: TOTAL ...... Total

Estimated Quantified Benefits ...... $87.6 Estimated Quantified Costs ...... $26.0 Net Benefits ...... $61.6

B. Regulatory Flexibility Act instituted for covered U.S. carriers in a and responsibilities among the various The Regulatory Flexibility Act (5 previous proceeding). Each of these sets levels of government; (2) imposes U.S.C. 601 et seq.) requires an agency to of requirements may entail compliance substantial direct compliance costs on review regulations to assess their impact costs of $3,000 or more per-carrier, but State and local governments; or (3) on small entities unless the agency only the requirement to develop and preempts State law. States are already determines that a rule is not expected to implement a compliant tarmac delay preempted from regulating in this area have a significant economic impact on contingency plan is likely to involve by the Airline Deregulation Act, 49 a substantial number of small entities. single-year cost in excess of $10,000 per U.S.C. 41713. Therefore, the The regulatory initiatives discussed in carrier. There are also two small foreign consultation and funding requirements this NPRM would have some impact on carriers that operate service to and from of Executive Order 13132 do not apply. the U.S. exclusively with aircraft that some small entities, as discussed in the D. Executive Order 13084 Initial Regulatory Flexibility Analysis. have fewer than 19 seats; these two The Initial Regulatory Flexibility carriers would potentially have to This NPRM has been analyzed in Analysis determined that no more than comply with the requirements accordance with the principles and 12 independently-owned small U.S. pertaining to full fares advertising criteria contained in Executive Order carriers operating at least one aircraft (requirement to display full fares on 13084 (‘‘Consultation and Coordination with 30 or more passenger seats but Web sites and in print advertising and with Indian Tribal Governments’’). none with more than 60 passenger seats prohibition on opt-out provisions), Because none of the options on which would have to comply with the disclosure of baggage and other fees, we are seeking comment would proposed requirements relating to and prohibition on post-purchase price significantly or uniquely affect the denied boarding compensation and increases. The per-carrier compliance communities of the Indian tribal lengthy tarmac delays. These 12 U.S. costs for these two small foreign carriers governments or impose substantial carriers and an additional 35 small U.S. are expected to be similar to those for direct compliance costs on them, the carriers that only operate aircraft with U.S. carriers of the same size-class. funding and consultation requirements fewer than 30 seats would potentially It may also be necessary for some of Executive Order 13084 do not apply. have to comply with the requirements small travel agencies and tour operators E. Paperwork Reduction Act pertaining to full fare advertising to revise air travel prices displayed in (requirement to display full fares on Web site and print media advertising to This NPRM proposes three new Web sites and in print advertising and comply with the proposed requirements collections of information that would prohibition on opt-out provisions), relating to full fare advertising of air require approval by the Office of disclosure of baggage and other fees, fares. Costs for small firms to revise Web Management and Budget (OMB) under and prohibition on post-purchase price sites and update print media advertising the Paperwork Reduction Act of 1995 increases. The compliance costs are estimated at no more than $3,000 (Pub. L. 104–13, 49 U.S.C. 3501 et seq.). associated with the full fare advertising each on a per-firm basis. Finally, a Under the Paperwork Reduction Act, requirements are estimated at $6,000 or limited number of personnel at some before an agency submits a proposed less per carrier. The estimated unit costs small airports will incur time costs of a collection of information to OMB for for complying with the other few hours on average to interact with approval, it must publish a document in requirements are nominal. carriers that are required to coordinate the Federal Register providing notice of The proposed initiatives may have a tarmac contingency plans with airport the proposed collection of information more substantial impact on small authorities. We invite comment to and a 60-day comment period, and must foreign carriers that provide scheduled facilitate our assessment of the potential otherwise consult with members of the service on flights to and from the U.S. impact of these initiatives on small public and affected agencies concerning using only aircraft with 60 or less entities. the proposed collection. passenger seats. There is only one small The first collection of information C. Executive Order 13132 (Federalism) foreign carrier that operates service to proposed here is a requirement that and from the U.S. using aircraft with This Notice of Proposed Rulemaking foreign air carriers that operate more than 29 but fewer than 61 seats. has been analyzed in accordance with scheduled passenger service to or from It would be required to comply with the the principles and criteria contained in the U.S. using any aircraft originally proposed requirements described above Executive Order 13132 (‘‘Federalism’’). designed to have a passenger capacity of for U.S. carriers of this size-class, as This notice does not propose any 30 or more seats retain for two years the well as requirements relating to tarmac provision that: (1) Has substantial direct following information about any ground delay contingency plans, customer effects on the States, the relationship delay that lasts at least three hours: the service plans, and customer problems/ between the national government and length of the delay, the precise cause of complaints (these requirements were the States, or the distribution of power the delay, the actions taken to minimize

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hardships for passengers, whether the 2. Requirement that carrier retain for 14 CFR Part 244 flight ultimately took off (in the case of two years the results of its annual self- Air carriers, Consumer protection, a departure delay or diversion) or audit of its compliance with its and Tarmac delay data. returned to the gate; and an explanation Customer Service Plan. for any tarmac delay that exceeded 3 Respondents: Foreign air carriers that 14 CFR Part 253 hours. The Department plans to use the operate scheduled passenger service to Air carriers, Consumer protection, information to investigate instances of and from the U.S. using any aircraft and Contract of carriage. long delays on the ground and to originally designed to have a passenger identify any trends and patterns that capacity of 30 or more seats. 14 CFR Part 399 may develop. Estimated Annual Burden on Administrative practice and The second information collection is Respondents: 15 minutes per year for procedure, Air carriers, Air rates and a requirement that any foreign air carrier each respondent. fares, Air taxis, Consumer protection, that operates scheduled passenger Estimated Total Annual Burden: A Small businesses. service to and from the U.S. using any maximum of 22 hours for all Issued June 2, 2010 in Washington, DC. aircraft originally designed to have a respondents. Ray LaHood, passenger capacity of 30 or more seats Frequency: One information set to Secretary of Transportation. adopt a customer service plan, audit its retain per year for each respondent. adherence to the plan annually, and For the reasons set forth in the 3. Requirement that carrier report preamble, the Department proposes to retain the results of each audit for two certain tarmac delay data to the years. The Department plans to review amend title 14 CFR Chapter II as Department on a monthly basis. follows: the audits to monitor carriers’ Respondents: U.S. carriers that compliance with their plans and take operate passenger service using any PART 234—[AMENDED] enforcement action when appropriate. aircraft with 30 or more seats, and The third is a requirement that U.S. foreign air carriers that operate 1. The authority citation for 14 CFR carriers and foreign carriers that operate passenger service to and from the part 234 continues to read as follows: any aircraft originally designed to have United States using any aircraft Authority: 49 U.S.C. 329 and chapters 401 a passenger capacity of 30 or more seats originally designed to have a passenger and 417. report monthly tarmac delay data to the capacity of 30 or more seats. 2. Section 234.11 is amended by Department with respect to their Estimated Annual Burden on revising paragraph (d) and adding operations at a U.S. airport for any Respondents: 5 to 160 hours per paragraph (e) to read as follows: tarmac delay exceeding three hours or respondent in the first year (average of more, including diverted flights and 40 hours) and no more than 3 hours in § 234.11 Disclosure to consumers. cancelled flights. This requirement subsequent years per respondent. * * * * * would apply to reporting carriers under Estimated Total Annual Burden: (d) For each scheduled domestic flight 14 CFR part 234 only with respect to segment, including domestic segments their public charter service and 5,200 hours in the first year and no more than 390 hours in subsequent of a code-share flight operated by international service. Reporting carriers another carrier, a reporting carrier shall already submit tarmac delay data to the years for all respondents. Frequency: One information set to promptly provide to passengers who are Department for their domestic ticketed or hold reservations, and to scheduled passenger service. The submit per month for each respondent. The Department invites interested other interested persons information Department plans to use this about a change in the status of a flight, information to obtain more precise data persons to submit comments on any aspect of each of these three information defined for this purpose as cancellation to compare tarmac delay incidents by of a flight or a delay of 30 minutes or carrier, by airport, and by specific time collections, including the following: (1) The necessity and utility of the more in the planned operation of a frame, for use in making future policy flight, including additional delays of 30 decisions and developing rulemakings. information collection, (2) the accuracy of the estimate of the burden, (3) ways minutes or more to flights for which For each of these information notification has already been provided. collections, the title, a description of the to enhance the quality, utility, and clarity of the information to be This information must at a minimum be respondents, and an estimate of the provided in the boarding gate area, via annual recordkeeping and periodic collected, and (4) ways to minimize the burden of collection without reducing a carrier’s telephone reservation system reporting burden are set forth below: and on the homepage of a carrier’s Web 1. Requirement to retain for two years the quality of the collected information. Comments submitted in response to this site. information about any ground delay (1) With respect to any carrier that notice will be summarized or included, that lasts at least three hours. permits passengers to subscribe to flight or both, in the request for OMB approval Respondents: Foreign air carriers that status notification services, the of these information collections. operate passenger service to and from reporting carrier shall deliver such the U.S. using any aircraft originally F. Unfunded Mandates Reform Act notification to such passengers, by designed to have a passenger capacity of whatever means is available to the The Department has determined that 30 or more seats. carrier and of the passenger’s choice, the requirements of Title II of the Estimated Annual Burden on within 30 minutes after the carrier Unfunded Mandates Reform Act of 1995 Respondents: 0 to 1 hour per becomes aware or should have become do not apply to this NPRM. respondent. aware of a change in the status of a Estimated Total Annual Burden: 15 List of Subjects flight. hours and 25 minutes for all (2) The reporting carrier shall 14 CFR Parts 234, 250, and 259 respondents. incorporate such notification service Frequency: One information set to Air carriers, Consumer protection, commitment into its Customer Service submit per three hour plus tarmac delay Reporting and recordkeeping Plan as specified in section 259.5 of this for each respondent . requirements. chapter.

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(e) Each reporting carrier shall update defined in 49 U.S.C. 40102(a) that holds § 244.3 Reporting of tarmac delay data. all flight status displays and other a foreign air carrier permit issued under (a) Each covered carrier shall file BTS sources of flight information that are 49 U.S.C. 41302 or an exemption issued Form 244 ‘‘Tarmac Delay Report’’ with under the carrier’s control at airports under 49 U.S.C. 40109 authorizing the Office of Airline Information of the with information on each flight delay of direct foreign air transportation. Department’s Bureau of Transportation 30 minutes or more or flight Gate departure time is the instant and Statistics on a monthly basis, cancellation, within 30 minutes after the when the pilot releases the aircraft setting forth the information for each of carrier becomes aware or should have parking brake after passengers have its flights that experienced a tarmac become aware of a change in the status been boarded and aircraft doors have delay of three hours or more, including of a flight. been closed. In cases where the flight diverted flights and cancelled flights on 3. A new part 244 is added to read as returned to the departure gate before which the passengers were boarded and follows: wheels-off time and departed a second then deplaned before the cancellation. The reports are due within 15 days of PART 244—REPORTING TARMAC time, the reportable gate departure time the end of each month and shall be DELAY DATA is the last gate departure time before wheels-off time. In cases of an air made in the form and manner set forth Sec. return, the reportable gate departure in accounting and reporting directives 244.1 Definitions. time is the last gate departure time issued by the Director, Office of Airline 244.2 Applicability. before the gate return. If passengers Statistics, and shall contain the 244.3 Reporting of tarmac delay data. were boarded without the parking brake following information: (1) Carrier code. Authority: 49 U.S.C. 40101(a)(4), being set, the reportable gate departure 40101(a)(9), 40113(a), 41702, and 41712. time is the time that the passenger door (2) Flight number. was closed. Also, the official ‘‘gate- (3) Departure airport (three letter § 244.1 Definitions. departure time’’ may be based on aircraft code). For the purposes of this part: movement for carriers using a Docking (4) Arrival airport (three letter code). Arrival time is the instant when the Guidance System (DGS). For example, (5) Date of flight operation (year/ pilot sets the aircraft parking brake after one DGS records gate departure time month/day). arriving at the airport gate or passenger when the aircraft moves more than 1 (6) Gate departure time (actual) in unloading area. If the parking brake is meter from the appropriate parking local time. not set, record the time for the opening mark within 15 seconds. Fifteen (7) Gate arrival time (actual) in local of the passenger door. Also, carriers seconds is then subtracted from the time. (8) Wheels-off time (actual) in local using a Docking Guidance System (DGS) recorded time to obtain the appropriate time. may record the official ‘‘gate-arrival out time. time’’ when the aircraft is stopped at the (9) Wheels-on time (actual) in local appropriate parking mark. Gate return means that the aircraft time. Cancelled flight means a flight leaves the boarding gate only to return (10) Aircraft tail number. operation that was not operated, but was to a gate for the purpose of allowing (11) Total ground time away from gate listed in an air carrier or a foreign air passengers to disembark from the for all gate return/fly return at origin carrier’s computer reservation system aircraft. airports including cancelled flights. within seven calendar days of the Tarmac delay means the holding of an (12) Longest time away from gate for scheduled departure. aircraft on the ground either before gate return or canceled flight. Certificated air carrier means a U.S. taking off or after landing with no (13) Three letter code of airport where air carrier holding a certificate issued opportunity for its passengers to diverted flight. under 49 U.S.C. 41102 to conduct deplane. (14) Wheels-on time at diverted passenger service or holding an airport. exemption to conduct passenger § 244.2 Applicability. (15) Total time away from gate at operation under 49 U.S.C. 40109. (a) This part applies to U.S. diverted airport. Commuter air carrier means a U.S. certificated air carriers, U.S. commuter (16) Longest time away from gate at commuter air carrier as described in 14 air carriers and foreign air carriers that diverted airport. CFR 298.3(b) that is authorized to carry operate passenger service to a U.S. (17) Wheels-off time at diverted passengers on at least five round trips airport with an aircraft originally airport. per week on at least one route between designed to have a passenger capacity of (b) The same information required by two or more points according to a 30 or more seats. Carriers must report all paragraph (a)(13) through (a)(17) of this published flight schedule using small passenger operations that experience a section must be provided for each aircraft. tarmac time of 3 hours or more at a U.S. subsequent diverted airport landing. Covered carrier means a certificated airport. carrier, a commuter carrier, or a foreign PART 250—[AMENDED] (b) If a U.S. or a foreign air carrier has air carrier operating to and from or 4. The authority citation for 14 CFR within the United States, conducting no 3-hour tarmac times in a given part 250 continues to read as follows: scheduled passenger service or public month, it still must submit a monthly charter service with at least one aircraft report stating there were no 3-hour Authority: 49 U.S.C. chapters 401, 411, 413 originally designed to have a passenger tarmac times. and 417. capacity of 30 or more seats. (c) U.S. carriers that submit Part 234 5. Section 250.1 is amended by Diverted flight means a flight which is Airline Service Quality Performance removing the definition of ‘‘sum of the operated from the scheduled origin Report must only submit 3-hour tarmac values of the remaining flight coupons’’ point to a point other than the information for public charter flights and adding a definition of ‘‘confirmed scheduled destination point in the and international passengers flights as reserved space’’ to read as follows: carrier’s published schedule. the domestic scheduled passenger flight Foreign air carrier means a carrier that information is already being collected in § 250.1 Definitions. is not a citizen of the United States as part 234 of this chapter. * * * * *

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Confirmed reserved space means comparable air transportation [see § 250.9 Written explanation of denied space on a specific date on a specific § 250.1], or other transportation used by boarding compensation and boarding flight and class of service of a carrier the passenger that, at the time either priorities, and verbal notification of denied which has been requested by a such arrangement is made, is planned to boarding compensation. passenger, including a passenger with a arrive at the airport of the passenger’s * * * * * ‘‘zero fare ticket’’ (e.g., consolidator next stopover, or if none, the airport of (c) In addition to furnishing ticket that does not show a fare amount the passenger’s final destination, not passengers with the carrier’s written on the ticket, frequent-flyer award later than 2 hours after the time the statement as specified in paragraphs (a) ticket, or ticket obtained using a travel direct or connecting flight from which and (b) of this section, if the carrier voucher), and which the carrier or its the passenger was denied boarding is orally advises involuntarily bumped agent has verified, by appropriate planned to arrive in the case of passengers that they are entitled to notation on the ticket or in any other interstate air transportation, or 4 hours receive free or discounted transportation manner provided therefore by the after such time in the case of foreign air as denied boarding compensation, the carrier, as being reserved for the transportation. carrier must also orally advise the accommodation of the passenger. passengers of any restrictions or (b) Carriers may offer free or reduced conditions applicable to the free or * * * * * rate air transportation in lieu of the cash 6. Section 250.2b is amended by discounted transportation and that they due under paragraph (a) of this section, are entitled to choose cash or check revising paragraph (b) and adding if: paragraph (c) to read as follows: compensation instead. (1) The value of the transportation § 250.2b Carriers to request volunteers for benefit offered is equal to or greater than PART 253—[AMENDED] denied boarding. the cash payment otherwise required; 9. The authority citation for 14 CFR * * * * * (2) The carrier fully informs the part 253 continues to read as follows: (b) Every carrier shall advise each passenger of the amount of cash Authority: 49 U.S.C. 40113; 49 U.S.C. passenger solicited to volunteer for compensation that would otherwise be Chapters 401, 415 and 417. denied boarding, no later than the time due and that the passenger may decline the carrier solicits that passenger to 10. Section 253.7 is revised to read as the transportation benefit and receive follows: volunteer, whether he or she is in the cash payment; and danger of being involuntarily denied § 253.7 Direct notice of certain terms. boarding (in doing so, the carrier must (3) The carrier fully discloses all material restrictions on the use of such A passenger shall not be bound by fully disclose the boarding priority rules any terms restricting refunds of the that the carrier will apply for that free or reduced rate transportation before the passenger decides to give up ticket price or imposing monetary specific flight), and the compensation penalties on passengers unless the the carrier is obligated to pay if the cash payment in exchange for such transportation. passenger receives conspicuous written passenger is involuntarily denied notice of the salient features of those boarding. If an insufficient number of (c) For the purpose of calculating the terms on or with the ticket. volunteers come forward, the carrier denied boarding compensation for a 11. Section 253.9 is revised to read as may deny boarding to other passengers passenger with a ‘‘zero fare ticket’’, the follows: in accordance with its boarding priority requirements in paragraph (a), (b), and rules. (c) of this section apply. The fare paid § 253.9 Notice of contract of carriage (c) If a carrier offers free or reduced by these passengers for purpose of this choice-of-forum provisions. rate air transportation as compensation calculation shall be the lowest cash, The Department considers any to volunteers, the carrier must disclose check, or credit card payment charged contract of carriage provision containing all material restrictions on the use of for a comparable class of ticket on the a choice-of-forum clause that attempts that transportation before the passenger same flight. to preclude a passenger from bringing a decides whether to give up his or her consumer-related claim against a carrier confirmed reserved space on that flight (d) The Department of Transportation in any court of competent jurisdiction, in exchange for the free or reduced rate will review the maximum denied including a court within the jurisdiction transportation. boarding compensation amounts of the passenger’s residence in the 7. Section 250.5 is revised to read as prescribed in this part every two years. United States, provided that the carrier follows: The Department will use the Consumer does business within that jurisdiction, Price Index for All Urban Consumers to be an unfair and deceptive practice § 250.5 Amount of denied boarding (CPI–U) as of July of each review year prohibited by 49 U.S.C. 41712. compensation for passengers denied to calculate the revised maximum boarding involuntarily. compensation amounts. The Department PART 259—[AMENDED] (a) Subject to the exceptions provided will use the following formula: in § 250.6, a carrier to whom this part 12. The authority citation for 14 CFR applies as described in § 250.2 shall pay Current Denied Boarding Compensation part 259 continues to read as follows: multiplied by (a/b) rounded to the compensation to passengers denied Authority: 49 U.S.C. 40101(a)(4), boarding involuntarily from an oversold nearest $25 where: 40101(a)(9), 40113(a), 41702, and 41712. flight at the rate of 200 percent of the a = July CPI–U of year of current 13. Section 259.2 is revised to read as fare (including any surcharges and air adjustment follows: transportation taxes) to the passenger’s b = the CPI–U figure in July 2010 next stopover, or if none, to the § 259.2 Applicability. when the inflation adjustment passenger’s final destination, with a This rule applies to all the flights of provision was added to Part 250. maximum of $1,300. However, the a certificated or commuter air carrier if compensation shall be one-half the 8. Section 250.9 is amended by the carrier operates scheduled passenger amount described above, with a $650 revising the section heading and service or public charter service using maximum, if the carrier arranges for paragraph (c) to read as follows: any aircraft originally designed to have

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a passenger capacity of 30 or more seats, § 259.4 Contingency plan for lengthy receive notifications regarding the status and to all the flights to and from the tarmac delays. of the tarmac delay every 30 minutes U.S. of a foreign carrier if the carrier (a) Adoption of Plan. Each covered while the plane is delayed, including operates scheduled passenger service or carrier shall adopt a Contingency Plan the reasons for the tarmac delay; public charter service to and from the for Lengthy Tarmac Delays for its (6) Assurance of sufficient resources U.S. using any aircraft originally scheduled and public charter flights at to implement the plan; and designed to have a passenger capacity of each large U.S. hub airport, medium (7) Assurance that the plan has been 30 or more seats, with the exception that hub airport, small hub airport and non- coordinated with airport authorities at § 259.5 and § 259.7 do not apply to hub airport at which it operates such air each U.S. large hub airport, medium charter service. service and shall adhere to its plan’s hub airport, small hub airport and non- 14. Section 259.3 is revised to read as terms. hub airport that the carrier serves, as follows: (b) Contents of Plan. Each well as its regular U.S. diversion Contingency Plan for Lengthy Tarmac airports; § 259.3. Definitions. Delays shall include, at a minimum, the (8) Assurance that the plan has been For the purposes of this part: following: coordinated with U.S. Customs and (1) For domestic flights, assurance Border Protection (CBP) at each large Certificated air carrier means a U.S. that the covered U.S. air carrier will not U.S. hub airport, medium hub airport, air carrier that holds a certificate issued permit an aircraft to remain on the small hub airport and non-hub airport under 49 U.S.C. 41102 to operate tarmac for more than three hours before that is regularly used for that carrier’s passenger service or an exemption from allowing passengers to deplane unless: international flights, including 49 U.S.C. 41102. (i) The pilot-in-command determines diversion airports; and Commuter air carrier means a U.S. air there is a safety-related or security- (9) Assurance that the plan has been carrier as established by 14 CFR 298.3(b) related reason (e.g. weather, a directive coordinated with the Transportation that is authorized to carry passengers on from an appropriate government agency) Security Administration (TSA) at each at least five round trips per week on at why the aircraft cannot leave its large U.S. hub airport, medium hub least one route between two or more position on the tarmac to deplane airport, small hub airport and non-hub points according to a published flight passengers; or airport that the carrier serves, including schedule using small aircraft. (ii) Air traffic control advises the diversion airports. Covered carrier means a certificated pilot-in-command that returning to the (c) Amendment of plan. At any time, carrier, a commuter carrier, or a foreign gate or another disembarkation point a carrier may amend its Contingency air carrier operating to and from or elsewhere in order to deplane Plan for Lengthy Tarmac Delays to within the United States, conducting passengers would significantly disrupt decrease the time for aircraft to remain scheduled passenger service or public airport operations. on the tarmac for domestic flights charter service with at least one aircraft (2) For international flights operated covered in paragraph (b)(1) of this originally designed to have a passenger by covered carriers that depart from or section, for aircraft to remain on the capacity of 30 or more seats. arrive at a U.S. airport, assurance that tarmac for international flights covered the carrier will not permit an aircraft to Foreign air carrier means a carrier that in paragraph (b)(2) of this section, and remain on the tarmac at a U.S. airport is not a citizen of the United States as for the trigger point for food and water for more than a set number of hours as defined in 49 U.S.C. 40102(a) that holds covered in paragraph (b)(3) of this determined by the carrier and set out in a foreign air carrier permit issued under section. A carrier may also amend its its contingency plan, before allowing 49 U.S.C. 41302 or an exemption issued plan to increase these intervals (up to passengers to deplane, unless: under 49 U.S.C. 40109 authorizing the limits in this rule), in which case the (i) The pilot-in-command determines direct foreign air transportation. amended plan shall apply only to those there is a safety-related or security- flights that are first offered for sale after Large hub airport means an airport related reason why the aircraft cannot the plan’s amendment. that accounts for at least 1.00 percent of leave its position on the tarmac to (d) Retention of records. Each carrier the total enplanements in the United deplane passengers; or that is required to adopt a Contingency States. (ii) Air traffic control advises the Plan for Lengthy Tarmac Delays shall Medium hub airport means an airport pilot-in-command that returning to the retain for two years the following accounting for at least 0.25 percent but gate or another disembarkation point information about any tarmac delay that less than 1.00 percent of the total elsewhere in order to deplane lasts at least three hours: enplanements in the United States. passengers would significantly disrupt (1) The length of the delay; Non-hub airport means an airport airport operations. (2) The precise cause of the delay; with 10,000 or more annual (3) For all flights, assurance that the (3) The actions taken to minimize enplanements but less than 0.05 percent carrier will provide adequate food and hardships for passengers, including the of the country’s annual passenger potable water no later than two hours provision of food and water, the boardings. after the aircraft leaves the gate (in the maintenance and servicing of lavatories, case of a departure) or touches down (in Small hub airport means an airport and medical assistance; the case of an arrival) if the aircraft (4) Whether the flight ultimately took accounting for at least 0.05 percent but remains on the tarmac, unless the pilot- off (in the case of a departure delay or less than 0.25 percent of the total in-command determines that safety or diversion) or returned to the gate; and enplanements in the United States. security considerations preclude such (5) An explanation for any tarmac Tarmac delay means the holding of an service; delay that exceeded 3 hours (i.e., why aircraft on the ground either before (4) For all flights, assurance of the aircraft did not return to the gate by taking off or after landing with no operable lavatory facilities, as well as the 3-hour mark). opportunity for its passengers to adequate medical attention if needed, (e) Unfair and deceptive practice. A deplane. while the aircraft remains on the tarmac; carrier’s failure to comply with the 15. Section 259.4 is revised to read as (5) For all flights, assurance that the assurances required by this rule and as follows: passengers on the delayed flight will contained in its Contingency Plan for

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Lengthy Tarmac Delays will be (10) Notifying consumers in a timely boarding gate staffed by the carrier or a considered an unfair and deceptive manner of changes in their travel contractor of the carrier. practice within the meaning of 49 U.S.C. itineraries; (c) Response to complaints. Each 41712 that is subject to enforcement (11) Ensuring good customer service covered carrier shall acknowledge action by the Department. from code-share partners, including receipt of each complaint regarding its 16. Section 259.5 is revised to read as making reasonable efforts to ensure that scheduled service to the complainant follows: its code-share partner(s) have within 30 days of receiving it and shall comparable customer service plans or send a substantive response to each § 259.5 Customer Service Plan. provide comparable customer service complainant within 60 days of receiving (a) Adoption of Plan. Each covered levels, or have adopted the identified the complaint. A complaint is a specific carrier shall adopt a Customer Service carrier’s customer service plan; written expression of dissatisfaction Plan applicable to its scheduled flights (12) Ensuring responsiveness to concerning a difficulty or problem and shall adhere to this plan’s terms. customer complaints as required by which the person experienced when (b) Contents of Plan. Each Customer section 259.7 of this chapter; and using or attempting to use an airline’s Service Plan shall address the following (13) Identifying the services it services. subjects and comply with the minimum provides to mitigate passenger standards set forth: inconveniences resulting from flight PART 399—[AMENDED] (1) Offering the lowest fare available cancellations and misconnections. on the carrier’s Web site, at the ticket 19. The authority citation for 14 CFR (c) Self-auditing of Plan and retention part 399 continues to read as follows: counter, or when a customer calls the of records. Each carrier that is required carrier’s reservation center to inquire to adopt a Customer Service Plan shall Authority: 49 U.S.C. 40101 et seq. about a fare or to make a reservation; audit its own adherence to its plan 20. Section 399.84 is revised to read (2) Notifying consumers in the annually. Carriers shall make the results as follows: boarding gate area, on board aircraft and of their audits available for the via a carrier’s telephone reservation § 399.84 Price advertising and opt-out Department’s review upon request for provisions. system and its Web site of known two years following the date any audit (a) The Department considers any delays, cancellations, and diversions; is completed. (3) Delivering baggage on time, 17. Section 259.6 is revised to read as advertising or solicitation by a direct air including making every reasonable follows: carrier, indirect air carrier, an agent of effort to return mishandled baggage either, or a ticket agent, for passenger air within twenty-four hours and § 259.6 Contract of carriage. transportation, a tour (e.g., a compensating passengers for reasonable (a) Each U.S. and foreign air carrier combination of air transportation and expenses that result due to delay in that is required to adopt a contingency ground accommodations), or a tour delivery; plan for lengthy tarmac delays shall component (e.g., a hotel stay) that states (4) Allowing reservations to be held at incorporate this plan into its contract of a price for such air transportation, tour, the quoted fare without payment, or carriage. or tour component to be an unfair and cancelled without penalty, for at least (b) Each U.S. and foreign air carrier deceptive practice in violation of 49 twenty-four hours after the reservation that is required to adopt a customer U.S.C. 41712, unless the price stated is is made; service plan shall incorporate this plan the entire price to be paid by the (5) Where ticket refunds are due, in its contract of carriage. customer to the carrier, or agent, for providing prompt refunds for credit (c) Each U.S. and foreign air carrier such air transportation, tour, or tour card purchases as required by § 374.3 of that has a Web site shall post its entire component. Although separate charges this chapter and 12 CFR part 226, and contract of carriage on its Web site in included within the total price (e.g., for cash and check purchases within 20 easily accessible form, including all taxes or a fuel surcharge) may be stated days after receiving a complete refund updates to its contract of carriage. in fine print or through links or ‘‘pop request; 18. Section 259.7 is revised to read as ups’’ on Web sites, fares that exclude (6) Properly accommodating follows: any required charges may not be passengers with disabilities as required displayed in advertising or solicitations. by Part 382 of this chapter and for other § 259.7 Response to consumer problems. (b) The Department considers any special-needs passengers as set forth in (a) Designated advocates for advertising by the entities listed in the carrier’s policies and procedures, passengers’ interests. Each covered paragraph (a) of this section of an each- including during lengthy tarmac delays; carrier shall designate for its scheduled way airfare that is available only when (7) Meeting customers’ essential needs flights an employee who shall be purchased for round-trip travel to be an during lengthy tarmac delays as responsible for monitoring the effects of unfair and deceptive practice in required by § 259.4 of this chapter and flight delays, flight cancellations, and violation of 49 U.S.C. 41712, unless as provided for in each covered carrier’s lengthy tarmac delays on passengers. such airfare is advertised as ‘‘each way’’ contingency plan; This employee shall have input into and in such a way so that the disclosure (8) Handling ‘‘bumped’’ passengers decisions on which flights to cancel and of the round trip purchase requirement with fairness and consistency in the which will be delayed the longest. is clearly and conspicuously noted in case of oversales as required by Part 250 (b) Informing consumers how to the advertisement and is stated of this chapter and as described in each complain. Each covered carrier shall prominently and proximately to the carrier’s policies and procedures for make available the mailing address and each-way fare amount. Each-way fares determining boarding priority; e-mail or web address of the designated may not be referred to as ‘‘one-way’’ (9) Disclosing cancellation policies, department in the airline with which to fares. frequent flyer rules, aircraft file a complaint about its scheduled (c) When offering a ticket for purchase configuration, and lavatory availability service. This information shall be by a consumer, for passenger air on the selling carrier’s Web site, and provided on the carrier’s Web site (if transportation or for an air tour or air upon request, from the selling carrier’s any), on all e-ticket confirmations and, tour component, a direct air carrier, telephone reservations staff; upon request, at each ticket counter and indirect air carrier, an agent of either, or

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a ticket agent, may not include ‘‘opt-out’’ § 399.87 Prohibition on post-purchase Commerce, Constitution Avenue and provisions for additional optional price increase. 14th Street, NW., Washington, DC services in connection with air It is an unfair and deceptive practice 20230. transportation, an air tour, or air tour within the meaning of 49 U.S.C. 41712 • E-mail: Comments may be component that will automatically be for any seller of scheduled air submitted electronically via e-mail to added to the purchase if the consumer transportation, or of a tour or tour [email protected]. Please takes no other action. The consumer component that includes scheduled air reference ‘‘IA ACCESS Pilot Comments’’ must affirmatively ‘‘opt in’’ (i.e., agree) to transportation to increase the price of in the subject line of the e-mail. such a fee for the services before that fee that air transportation to a consumer, FOR FURTHER INFORMATION CONTACT: is added to the total price for the air including but not limited to increase in Evangeline Keenan, Acting APO/ transportation-related purchase. The the price of the seat, increase in the Dockets Unit Director, Import Department considers the use of ‘‘opt- price for the carriage of passenger Administration, APO/Dockets Unit, out’’ provisions to be an unfair and baggage, or increase in an applicable Room 1870, U.S. Department of deceptive practice in violation of 49 fuel surcharge, after the air Commerce, Constitution Avenue and U.S.C. 41712. transportation has been purchased by 14th Street, NW., Washington, DC 21. A new § 399.85 is added to read the consumer. 20230; telephone: (202) 482–9157. as follows: [FR Doc. 2010–13572 Filed 6–7–10; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 4910–9X–P § 399.85 Notice of baggage fees and other Background fees. (a) If a U.S. or foreign air carrier has The Department is undertaking a a Web site accessible for ticket DEPARTMENT OF COMMERCE review of its regulations in AD and CVD purchases by the general public, the proceedings governing the submission carrier must promptly and prominently International Trade Administration of information to the Department, disclose any increase in its fee for carry- currently 19 CFR part 351, subpart C, on or checked baggage and any change 19 CFR Part 351 with a view to the adoption of rules and in the checked baggage allowance for a [Docket No. 100602237–0237–01] procedures that will implement an passenger on the homepage of the electronic filing system, which will be carrier’s Web site. Such notice must Import Administration IA ACCESS Pilot entitled Import Administration’s remain on the homepage for at least Program Antidumping and Countervailing Duty three months after the change becomes Centralized Electronic Service System AGENCY: Import Administration, effective. (IA ACCESS). The Department’s current (b) On all e-ticket confirmations for International Trade Administration, rules on the submission of information air transportation within, to or from the Department of Commerce. in AD and CVD proceedings, at 19 CFR United States, including the summary ACTION: Public notice and request for 351.303(c)(1), require that parties page at the completion of an online comments. submit six paper copies of each purchase and a post-purchase e-mail submission to the Department. In SUMMARY: The Department of Commerce confirmation, a U.S. or foreign air developing IA ACCESS, the Department (the Department) is creating a pilot seeks to expand the public’s access to carrier must include information program to test an electronic filing regarding the free passenger’s baggage the Department’s AD and CVD system in certain antidumping (AD) and proceedings by making all publicly filed allowance and/or the applicable fee for countervailing duty (CVD) proceedings. a carry-on bag and the first and second documents available on the internet and In addition, the Department is to facilitate the electronic submission of checked bag. requesting comments from parties on (c) If a U.S. or foreign air carrier has documents to the Department in AD and this pilot program. a Web site where it advertises or sells CVD proceedings by allowing interested air transportation, on its Web site the DATES: Effective Date: The pilot program parties to file documents electronically. carrier must disclose information on will be in effect from July 1, 2010, The Department envisions that such a fees for optional services that are through September 30, 2010. system will create efficiencies in both charged to a passenger purchasing air Comments Due Date: Comments on the process and costs associated with transportation. Such disclosure must be the Department’s conduct of the pilot filing and maintaining documents clear, with a conspicuous link from the program for electronic filing should be pertaining to AD and CVD proceedings. air carrier’s homepage to the fee submitted either electronically or The pilot program will implement IA disclosure. For purposes of this section, manually no later than 30 days after the ACCESS on a small scale to allow the the term ‘‘optional services’’ is defined publication of this notice in the Federal Department to evaluate and gain as any service the airline provides Register. experience with operating an electronic beyond the provision of passenger air ADDRESSES: Written comments may be filing system. Implementation of the full transportation. Such fees include, but submitted by any of the following electronic filing system will be are not limited to, charges for checked methods: accomplished through a later or carry-on baggage, advance seat • Federal eRulemaking Portal: http:// rulemaking that will amend the selection, in-flight beverages, snacks www.Regulations.gov. All comments Department’s regulations; the and meals, and seat upgrades. must be submitted into Docket Number Department also intends to provide (d) The Department considers the ITA–2010–XXXX. All comments should more detailed procedures for IA failure to give the appropriate notice refer to RIN 0625–AA84. ACCESS in a document separate from described in paragraphs (a), (b), and (c) • Mail or Hand Delivery/Courier: the regulations, which the Department of this section to be an unfair and Please submit the original and two intends to publish on its Web site prior deceptive practice within the meaning copies of comments to the Secretary of to issuing regulations creating IA of 49 U.S.C. 41712. Commerce, Attn: Evangeline Keenan, ACCESS. IA ACCESS will be 22. A new § 399.87 is added to read Import Administration, APO/Dockets implemented in three separate phases, as follows: Unit, Room 1870, U.S. Department of or releases, with each phase

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