8 December 2008

[Federal Register: December 8, 2008 (Volume 73, Number 236)]
[Proposed Rules]               
[Page 74585-74603]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de08-20]                         


[[Page 74585]]

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Part II





Department of Transportation





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14 CFR Parts 234, 259, and 399



Enhancing Airline Passenger Protections; Proposed Rule


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DEPARTMENT OF TRANSPORTATION

 Office of the Secretary

14 CFR Parts 234, 259, and 399

[Docket No. DOT-OST-2007-0022]
RIN No. 2105-AD72

 
Enhancing Airline Passenger Protections

AGENCY: Office of the Secretary (OST), Department of Transportation 
(DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Department of Transportation seeks comment on rules it is 
proposing to enhance airline passenger protections in the following 
ways: by requiring air carriers to adopt contingency plans for lengthy 
tarmac delays and incorporate them in their contracts of carriage, by 
requiring air carriers to respond to consumer problems, by deeming the 
continued operation of a flight that is chronically late to be unfair 
and deceptive in violation of 49 U.S.C. 41712, by requiring air 
carriers to publish information on flight delays on their Web sites, 
and by requiring air carriers to adopt customer service plans, 
incorporate these into their contracts of carriage, and audit their own 
compliance with their plans. The Department takes this action on its 
own initiative in response to the many recent instances when passengers 
have been subject to waits on airport tarmacs for very long periods and 
also in response to the ongoing high incidence of flight delays.

DATES: Comments should be filed by February 6, 2009. Late-filed 
comments will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2007-0022 by any of the following methods:
    [cir] Federal eRulemaking Portal: go to http://www.regulations.gov 
and follow the online instructions for submitting written comments. A 
standard form has been created for those who wish to use it in 
submitting comments.
    [cir] Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 
20590-0001.
    [cir] Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal Holidays.
    [cir] Fax: (202) 493-2251.
    Instructions: We strongly encourage you to use the standard form to 
submit comments. To access the form, go to http://www.regulations.gov 
and use the SEARCH DOCUMENTS field provided to input the docket number 
for this rulemaking. Then, you can search the index for ``Public 
comment standard form.'' This form may then be moved to your computer 
desktop, where you can type in your comments. You may then attach the 
form when you submit your comments to the docket.
    Using the standard form will eliminate the need for you to type a 
title, headings and questions since the form identifies the rulemaking 
on which you are commenting, sets out the headings identified in the 
SUPPLEMENTARY INFORMATION section of this document and lists the 
questions that we have asked in the NPRM. It will also make it easier 
for you, other commenters and the Department to easily search or sort 
the comments submitted on the various issues in the rulemaking.
    If you do not use the standard form, you must include the agency 
name and docket number DOT-OST-2007-0022 or the Regulatory 
Identification Number (RIN) for the rulemaking at the beginning of your 
comment. All comments received will be posted without change to http://
www.regulations.gov, including any personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received in any of our dockets by the name of the individual 
submitting the comment (or signing the comment if submitted on behalf 
of an association, a business, a labor union, etc.). You may review 
DOT's complete Privacy Act statement in the Federal Register published 
on April 11, 2000 (65 FR 19477-78), or you may visit http://
DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie, 
Office of the Assistant General Counsel for Aviation Enforcement and 
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave., 
SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax), 
betsy.wolf@dot.gov or blane.workie@dot.gov (e-mail).

SUPPLEMENTARY INFORMATION:

Background

    On November 15, 2007, the Department of Transportation (DOT or 
Department) issued an Advance Notice of Proposed Rulemaking (ANPRM) in 
Docket DOT-OST-2007-22 entitled ``Enhancing Airline Passenger 
Protections.'' This ANPRM was published in the Federal Register five 
days later. See ``Department of Transportation, Office of the 
Secretary, 14 CFR Parts 234, 253, 259, and 399 [Docket No. DOT-OST-
2007-0022], RIN No. 2105-AD72, 72 FR 65233 et seq. (November 20, 
2007).'' We announced in the ANPRM that we were considering adopting or 
amending rules to address several concerns, including, among others, 
the problems consumers face when aircraft sit for hours on airport 
tarmacs and the growing incidence of flight delays. We observed that 
beginning in December of 2006 and continuing through the early spring 
of 2007, weather problems had kept more than a few aircraft sitting for 
long hours on airport tarmacs, causing the stranded passengers undue 
discomfort and inconvenience. We observed further that passengers were 
also being harmed by the high incidence of less extreme flight delays: 
In the first seven months of 2007, only 72.23 percent of flights 
arrived on time, a lower percentage than for the same period in any of 
the previous 12 years. (On-time arrival performance remains 
problematic: It has improved only slightly since the issuance of the 
ANPRM. For the first five months of 2008, it was the second worst for 
these months in 14 years.) We acknowledged that the industry and 
interested observers have attributed both the marathon tarmac waits and 
the epidemic of flight delays to a number of factors besides weather, 
such as capacity and operational constraints, for example. Some of 
these are being addressed by the Federal Aviation Administration (FAA) 
and certain airports in other contexts, but in the meantime, we decided 
to explore the adoption of regulatory measures to address passengers' 
concerns.
    Thus, citing our authority and responsibility under 49 U.S.C. 
41712, in concert with 49 U.S.C. 40101(a)(4) and 40101(a)(9) and 49 
U.S.C. 41702, to protect consumers from unfair or deceptive practices 
and to ensure safe and adequate service in air transportation, we 
called for comment on seven potential measures. We intended these 
measures to ameliorate difficulties that passengers experience without 
creating undue burdens for the carriers. We also posed questions for 
commenters to answer and invited them

[[Page 74587]]

to suggest other measures to address the problems at issue.
    The measures proposed in the ANPRM covered the following subjects: 
Contingency plans for lengthy tarmac delays, carriers' responses to 
consumer problems, chronically delayed flights, delay data on Web 
sites, complaint data on Web sites, reporting of on-time performance of 
international flights, and customer service plans. The specifics of the 
ANPRM's proposals are set forth below in the context of the measures we 
are proposing--or not proposing--in this notice.
    We received approximately 200 comments in response to the ANPRM. Of 
these, 13 came from members of the industry--i.e., air carriers, air 
carrier associations, and other industry trade associations--and the 
rest came from consumers, consumer associations, and two U.S. Senators. 
On the consumer side, some 131 individual members of the Coalition for 
an Airline Passengers Bill of Rights (CAPBOR) filed identical or nearly 
identical comments. CAPBOR's founder and spokesperson, Kate Hanni, also 
filed comments with additional material on behalf of both CAPBOR and 
the Aviation Consumer Action Project (ACAP). Another 34 unaffiliated 
individuals filed comments, as did five other consumer associations: 
ACAP, the National Business Travel Association (NBTA), the Federation 
of State Public Interest Research Groups (US PIRG), Public Citizen, and 
the National Consumers League.
    On the industry side, four carriers filed comments: Jet Airways 
(India), Ltd., Delta Air Lines, Inc., China Eastern Airlines, and 
Virgin Atlantic Airways, Ltd. Five carrier associations filed comments: 
The Association of Asia Pacific Airlines (AAPA), the National Air 
Carrier Association (NACA), the International Air Transport Association 
(IATA), the Air Transport Association of America (ATA), and the Air 
Carrier Association of America (ACAA). Two travel agency associations, 
the American Society of Travel Agents (ASTA) and the Interactive Travel 
Services Association (ITSA) also filed comments, as did the Airport 
Council International, North America (ACI-NA).
    In general, the consumers and consumer associations maintained that 
the Department's proposals do not go far enough, while the carriers and 
carrier associations attributed the current problems mostly to factors 
beyond their control such as weather and the air traffic control system 
and tended to characterize the proposals as unnecessary and unduly 
burdensome. The travel agency associations expressed support for 
consumer protections but not at their members' expense. The commenters' 
positions that are germane to the issues raised in the ANPRM are set 
forth below in the context of the measures we are proposing--or not 
proposing--here.

Notice of Proposed Rulemaking

    Having considered the comments, we have decided to propose rules to 
do the following: (1) Require air carriers to adopt contingency plans 
for lengthy tarmac delays and to incorporate these plans in their 
contracts of carriage, (2) require air carriers to respond to consumer 
problems, (3) declare the operation of flights that remain chronically 
delayed to be an unfair and deceptive practice and an unfair method of 
competition, (4) require air carriers to publish delay data on their 
Web sites, and (5) require air carriers to adopt customer service 
plans, incorporate these in their contracts of carriage, and audit 
their adherence to their plans. We have decided not to propose rules to 
require air carriers to publish complaint data on their Web sites or to 
report on-time performance of international flights. We are proposing 
that the rules take effect 180 days after their publication.
    We invite all interested persons to comment on the proposals set 
forth in this notice. Our final action will be based on the comments 
and supporting evidence filed in this docket, on our own analysis and 
regulatory evaluation, and on the ongoing work of our National Task 
Force to Develop Model Contingency Plans to Deal with Lengthy Airline 
On-Board Ground Delays (Tarmac Delay Task Force).

Proposals

1. Contingency Plans

    The ANPRM: We stated in the ANPRM that we were considering 
requiring every certificated or commuter air carrier\1\ that operates 
domestic scheduled passenger service using any aircraft with more than 
30 passenger seats to develop and implement a contingency plan for 
lengthy tarmac delays. (This plan would apply to all of the carrier's 
flights, including those involving aircraft with 30 or fewer seats.) 
Each covered carrier would be required to incorporate its plan in its 
contract of carriage. This would enable passengers to sue for breach of 
contract in the event that a carrier fails to adhere to its plan. Each 
plan would have to include at least the following: The maximum tarmac 
delay that the carrier will permit, the amount of time on the tarmac 
that triggers the plan's terms, assurance of adequate food, water, 
lavatory facilities, and medical attention, if needed, while the 
aircraft remains on the tarmac, assurance of sufficient resources to 
implement the plan, and assurance that the plan has been coordinated 
with airport authorities at medium and large hub airports. Carriers 
would also be required to make their complete contracts of carriage, 
including contingency plans, available on their Web sites and to retain 
for two years the following information for any ground delay that 
either triggers their contingency plans or lasts at least four hours: 
The length of the delay, the cause of the delay, and the actions taken 
to minimize hardships for passengers. Our proposal did not contemplate 
that the Department would review or approve the plans, but we stated 
that the Department would consider failure to comply with any of the 
above requirements--including implementing the plan as written--to be 
an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 
and therefore subject to enforcement action.
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    \1\ A certificated air carrier is a U.S. direct air carrier that 
holds a certificate issued under 49 U.S.C. 41102 to operate 
passenger and/or cargo and mail service. Air taxi operators and 
commuter air carriers operating under 14 CFR part 298 are exempted 
from the certification requirements of 49 U.S.C. 41102. Some 
carriers that would otherwise be eligible for the air taxi or 
commuter exemption have opted to be certificated. An air taxi 
operator is an air carrier that transports passengers or property 
and is not a commuter air carrier as defined in 14 CFR part 298. A 
commuter air carrier is an air taxi operator that carries passengers 
on at least five round trips per week on at least one route between 
two or more points according to a published flight schedule, using 
small aircraft--i.e., aircraft originally designed with the capacity 
for up to 60 passenger seats. See 14 CFR 298.2.
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    The Comments: CAPBOR and its members believe that this proposal 
does not go far enough. They maintain that the Department should 
establish minimum standards for contingency plans via regulation and 
should also review and approve the plans rather than allow each carrier 
the leeway to set what might well be overly lax standards. They also 
maintain that the Department should monitor carriers' performance under 
their plans. In their view, requiring carriers to incorporate their 
contingency plans into their contracts of carriage will not protect 
passengers, because as a practical matter these contracts cannot be 
enforced. They do support publication of contingency plans in contracts 
of carriage, however, and they argue that these plans should be 
airport-specific to account for differences among airports. CAPBOR and 
its members contend that because an airport's concessions are often 
closed by the time that a flight is cancelled and passengers allowed to 
deplane, we

[[Page 74588]]

should require airports to contract with their vendors to require that 
concessions remain open during lengthy tarmac delays. They request that 
in any rule proposed or adopted, we refer to ``potable water'' and 
``operable lavatories'' rather than simply ``water'' and ``lavatory 
facilities,'' respectively, and that we include a requirement for 
adequate ventilation.
    Individual commenters make similar points. For example, they, too, 
tend to oppose allowing the carriers to set their own standards, 
particularly those involving the amount of time that triggers the 
provisions of the contingency plans or the maximum amount of time on 
the tarmac before the carrier must return to a gate and allow 
passengers to deplane.
    Of the other consumer associations, ACAP concurs with CAPBOR, as 
does U.S. PIRG. The latter suggests three hours as the maximum interval 
before passengers are allowed to deplane. Also concurring with CAPBOR 
are Public Citizen and the National Consumers League. NBTA has a 
different point of view: It contends that customer service is by nature 
market driven and that airlines are better situated than the government 
to gauge both their customers' expectations and whether putative 
protective measures afford benefits that outweigh their costs--costs 
that will inevitably be passed on to the traveling public. NBTA does 
not support requiring the carriers to develop and publish contingency 
plans, but it believes that carriers that do not do so will provide 
poorer service and thus lose business. What NBTA does support is a 
requirement that carriers provide what it calls ``baseline passenger's 
rights'' in whatever way they find most effective and cost efficient. 
NBTA's list of these rights includes access to lavatory facilities, 
access to water or other liquids, access to food for tarmac delays 
lasting more than six hours, ways for passengers with medical 
emergencies to request and receive medical attention, and cabin 
temperature suitable for normal travel attire. NBTA also supports 
requiring carriers to maintain records on lengthy tarmac delays as a 
tool for the Department and others to use for analyzing airline 
performance.
    Senators Barbara Boxer and Olympia Snowe take the position that the 
Department should set minimum standards for protecting passengers 
during lengthy tarmac delays. They believe that passengers should be 
permitted to deplane after three hours on the tarmac.
    As for members of the industry, Delta, the sole carrier that 
commented individually on this proposal, both supports the principle of 
contingency plans for lengthy tarmac delays and states that it has one 
already. Its plan does not have a time limit for tarmac delays, 
however, because in Delta's judgment passengers fare better overall if 
Delta retains the flexibility to respond to each situation as it deems 
appropriate at the time. It contends, for example, that categorically 
requiring the return of planes to the gate after a specified interval 
would probably result in more flight cancellations than occur now. 
Delta opposes mandating coordination with airport authorities in the 
preparation of a contingency plan as ``unnecessary and potentially 
unmanageable.'' Delta does not object to a record-retention 
requirement, but it believes that two years' retention is too long and 
that six months would suffice. It maintains that any such requirement 
should be triggered by a uniform delay interval, set by the Department, 
rather than be permitted to vary from carrier to carrier according to 
disparate contingency plans; Delta itself believes four hours to be a 
reasonable standard. Delta does not address whether the contingency 
plans should be incorporated into the contracts of carriage.
    Of the carrier associations that commented on this proposal, NACA 
agrees in principle that carriers should meet their passengers' needs 
for food, water, lavatories, and, if necessary, medical attention 
during extraordinary ground delays and that they should formulate 
contingency plans for achieving this goal. NACA thinks that the 
Department should work with the carriers to develop guidance on the 
following questions: What kinds of food should passengers reasonably 
expect during a long delay; what should be required on flights whose 
aircraft have limited or no kitchen resources because no food service 
is provided in normal circumstances; what should be expected of 
carriers whose aircraft lack storage capability for additional 
``emergency'' food and that have no catering facilities and no contract 
for catering services at the airport at which they are delayed; and 
what sort of medical attention and supplies can passengers reasonably 
expect? NACA opposes inclusion of carriers' contingency plans in their 
contracts of carriage, because the contracts are legally binding, so 
passengers would have a private right of action against any carrier 
that did not adhere to the provisions of its plan. ``Given the vagaries 
of what would constitute appropriate emergency services,'' NACA states, 
``and in the absence of a specific statutory mandate, we believe that 
the inclusion of such provisions within the contract of carriage 
exposes carriers to a myriad of unfounded lawsuits.'' In lieu of 
incorporation of the contingency plans in the contracts of carriage, 
NACA supports requiring that each carrier provide public notice of its 
plan--for example, by including a notice on its Web site, by posting 
notices at check-in counters, or by including a notice in its in-flight 
magazine or in other materials available to passengers on the plane. It 
suggests that the Department could require all carriers to provide it 
with copies of their plans and then itself make the plans available to 
the public. NACA's comments are endorsed by ACAA.
    ATA commented extensively on this proposal, and IATA supports ATA's 
comments. ATA prefaced its comments by asserting that the Department 
should focus on addressing the root causes of delays, which it 
characterizes as ``insufficient airspace capacity and an operating 
environment handcuffed by outdated radar technology,'' in addition to 
calling for passenger protections. ATA agrees in principle that 
carriers should have contingency plans for lengthy tarmac delays, 
provided that each air carrier is permitted to decide on the details of 
its own plan based on its own unique facilities, equipment, operating 
procedures, and network. ATA not only supports the Department's 
proposal not to prescribe the terms of carriers' contingency plans, but 
it particularly opposes a set interval of time after which an aircraft 
must be returned to the gate, claiming that such a requirement would do 
passengers more harm than good. Among the potential negative 
consequences ATA lists are the required return to the gate when the 
aircraft is next in line for takeoff, potential conflicts with 
governmental orders during a pandemic that passengers be kept on 
aircraft, and conservative decisions that result in wasting passenger, 
aircraft, and crew time and affect downstream connecting passengers 
adversely. ATA also argues that a strict requirement that aircraft 
return to the gate after a set interval would stifle competition: It 
reasons that carriers might otherwise choose alternate ways to address 
the competing passenger interests and needs that arise during a lengthy 
tarmac delay.
    ATA reports that carriers already have both general contingency 
plans and airport-specific contingency plans. It states that carriers 
do not intend to publish the latter, and it recommends that the 
Department allow them flexibility in how they notify consumers

[[Page 74589]]

of the former. Most carriers, it assumes, would post their contingency 
plans on their Web sites. ATA opposes requiring carriers to include 
their contingency plans in their contracts of carriage and in fact 
doubts that the Department has the authority to do this in the 
aftermath of deregulation. As a practical matter, ATA claims, inclusion 
of carriers' general contingency plans in their contracts of carriage 
would require the deletion of technical and operational terms that do 
not belong in a contract and the addition of qualifying statements so 
that carriers would retain the flexibility to make different 
operational decisions depending on the facts of the situation, 
including extraordinary circumstances. ATA also opposes requiring 
incorporation of contingency plans in carriers' contracts of carriage 
because this would expose them to litigation under inconsistent 
standards among the states and among foreign countries. It predicts 
that standards would fluctuate as carriers took steps to minimize their 
exposure. ATA opposes the proposed recordkeeping requirement as 
redundant of other existing and proposed regulations.
    RAA prefaced its comments by asking the Department to keep in mind, 
when proposing rules, what it characterizes as ``the unique 
relationship between most regional airlines subject to the proposals * 
* * and their passengers.'' RAA states that over 90 percent of its 
members' passengers fly under ticketing, marketing, scheduling, and 
passenger processing and handling arrangements that are controlled by 
the major-carrier partners of RAA's members--in fact, these passengers' 
contracts of carriage are with the major carrier, not the regional 
airlines. RAA states further that while its members are responsible for 
operating their flights safely and can cancel or divert them for 
reasons of safety, most delays, diversions, and cancellations are 
determined by the FAA or the regional airlines' major-carrier partners. 
RAA opposes regulations that would burden its members vis-[agrave]-vis 
the railroads and bus companies with which they compete for passengers.
    Regarding contingency plans, RAA asks the Department to let 
airlines adopt plans that reflect their own circumstances, 
capabilities, and passenger service standards. It asks the Department 
to apply requirements for contingency plans and recordkeeping only to 
the airline that has a contract of carriage with the passenger and also 
to require contingency plans of ``other critical parties such as the 
FAA and the airports.'' In RAA's view, requiring enforceable 
contingency plans would be contrary to deregulation and as a practical 
matter would prevent carriers from responding flexibly to the many 
kinds of delays that occur. It states that because contingency planning 
varies from airport to airport, requiring a contingency plan for each 
airport to be published and enforced through the contract of carriage 
would be both impracticable and burdensome. RAA opposes requiring 
carriers to retain records on delayed flights, both as redundant of 
existing requirements of the Department's Bureau of Transportation 
Statistics and as a burden that would yield little if any public 
benefit. RAA contends that its members are constrained not only by 
their major-carrier partners' control over delay decisions and their 
differing standards for passenger service but also by the capacity 
constraints of their own aircraft--aircraft with limited capacity for 
food, water, and lavatory facilities. If contingency plans are to be 
required, RAA takes the position that they should only be required of 
major carriers, with implementation to be arranged by the major carrier 
and its regional airline partners on flights operated with aircraft 
with more than 30 passenger seats. RAA opposes coverage of flights 
operated with smaller aircraft.
    ACI-NA supports this proposal and states that it recently convened 
a meeting of more than 100 officials from airports, airlines, passenger 
organizations, and the federal government to develop an outline for a 
contingency plan. Along with ``best practices'' in place at North 
American airports, this plan will be provided to the Department's 
Tarmac Delay Task Force.
    Of the travel agency associations, ASTA strongly favors requiring 
carriers to adopt contingency plans and requiring the incorporation of 
these plans in air carriers' contracts of carriage, but it believes 
that the proposal in the ANPRM does not go far enough. ASTA implies, 
without explanation, that even with the plans incorporated in the 
contracts of carriage, they will not be enforceable unless the 
Department reviews them. ASTA suggests that any rule that we adopt 
``require very specific plans in the general mode of `if this happens, 
we will take the following specific steps to assure proper care of 
passengers.' '' ASTA also supports the recordkeeping requirement and 
suggests that it be triggered by a delay of three hours. Also, ASTA 
believes that carriers should be required to coordinate not only with 
airport authorities at medium and large hub airports but with the 
authorities at ``all primary airports.'' ITSA did not address this 
proposal.
    Proposed Rule: We have decided to propose a rule along the lines 
set forth in the ANPRM, and we invite comment from all interested 
persons. Specifically, we propose to adopt a new rule, 14 CFR part 259, 
which, among other things, would require any certificated or commuter 
air carrier that operates domestic passenger service using any aircraft 
with a design capacity of more than 30 passenger seats to develop a 
contingency plan for long tarmac delays of scheduled and public charter 
flights and to adhere to this plan's terms. This plan would apply to 
all of the carrier's scheduled and public charter flights, including 
those with aircraft having a design capacity of 30 or fewer seats. We 
are not proposing that the rule cover single-entity charters and other 
charters in which consumers have some bargaining leverage. The rule 
would require each carrier to incorporate its contingency plan in its 
contract of carriage. At a minimum, each plan must include the 
following: The maximum tarmac delay that the carrier will permit, the 
amount of time on the tarmac that will trigger the plan's terms, the 
assurance of adequate food, water, and lavatory facilities, as well as 
medical attention if needed, while the aircraft remains on the ground, 
assurance of sufficient resources to implement the plan, and assurance 
that the plan has been coordinated with airport authorities at medium 
and large hub airports. The rule would require carriers to retain for 
two years the following information on any on-ground delay that either 
triggers their contingency plans or lasts at least four hours: The 
length of the delay, the cause of the delay, and the steps taken to 
minimize hardships for passengers (including providing food and water, 
maintaining lavatories, and providing medical assistance). Failure to 
do any of the above would be considered an unfair and deceptive 
practice within the meaning of 49 U.S.C. 41712 and subject to 
enforcement action, which could result in an order to cease and desist 
as well as the imposition of civil penalties.
    In adopting this approach, we are tentatively rejecting the 
suggestions of those consumers and groups who believe that the 
Department should set minimum standards for the contingency plans 
rather than allow each carrier to set its own standards based on its 
particular circumstances. We continue to be of the tentative view based 
on the information available to us that the Department should not 
substitute its judgment in this area for that of the air carriers. 
Nevertheless, we ask interested

[[Page 74590]]

persons to comment on whether any final rule that we may adopt should 
include either or both of the following: A uniform standard for the 
time interval that would trigger the terms of carriers' contingency 
plans and a uniform standard for the time interval after which carriers 
would be required to allow passengers to deplane. Commenters who 
support the adoption of either or both requirements by rulemaking 
should propose specific amounts of time and state why they believe 
these intervals to be appropriate.
    As for incorporation of the contingency plans in carriers' 
contracts of carriage, at this stage we are tentatively rejecting 
consumers' arguments that this requirement would be ineffectual, 
because no commenter has provided any support for its assertion that as 
a practical matter the contracts of carriage cannot be enforced, 
particularly where class-action litigation is available. We are also 
tentatively rejecting carriers' arguments that we should not require 
incorporation because this would subject them to the risk of 
inconsistent standards among the various jurisdictions. This risk 
exists already, since the carriers' contracts of carriage are 
enforceable in state courts, and it is not increased with the addition 
of new enforceable terms to these contracts. ATA has failed to 
establish that we lack the authority to require that contingency plans 
be incorporated in carriers' contracts of carriage. Our broad authority 
under 49 U.S.C. 41712 to prohibit unfair and deceptive practices 
encompasses this power. Indeed, 14 CFR part 253 shows that we have the 
authority not only to require that contracts of carriage include 
specified terms but also to regulate the means by which contract terms 
are disclosed to consumers. We tentatively believe that in providing 
for private enforcement of the plans as well as enforcement action by 
the Department, we are creating a stronger incentive for carriers to 
adhere to their plans. We invite interested persons to comment on the 
implications of our creating a private right of action based on a 
carrier's failure to follow the terms of its contingency plan. 
Commenters should address the potential for multiple lawsuits by 
classes as well as individual plaintiffs and the potential for 
inconsistent judicial decisions among the various jurisdictions. 
Commenters should also address whether and to what extent requiring the 
incorporation of contingency plans in carriers' contracts of carriage 
might weaken existing plans: That is, would the requirement encourage 
carriers to exclude certain key terms from their plans in order to 
avoid compromising their flexibility to deal with circumstances that 
are both multifarious and unpredictable?
    As for the other points made by consumers, we are not proposing to 
require the plans to be airport-specific, although carriers may choose 
to adopt different standards for each airport in their plans. We are 
not proposing here to require airports to provide for concessions to 
remain open during lengthy tarmac delays, in part because we doubt that 
we have the authority to do so. Our proposed rule does not refer to 
``potable water'' or ``operable lavatories,'' because water and 
lavatory facilities that are ``adequate'' are necessarily potable and 
operable, respectively. Furthermore, the quality of drinking water on 
aircraft is regulated by the Environmental Protection Agency (EPA). Our 
proposed rule does not address ventilation, because we have no basis at 
this stage to assess the adequacy of ventilation or to require 
potentially significant modifications to aircraft.
    As for the other points made by carriers, those that rank 
operational flexibility as their highest priority are free to adopt a 
relatively long interval as their standard for returning a plane to the 
gate and allowing passengers to deplane. Were a carrier to follow this 
strategy only to see its market shares declining vis-[aacute]-vis its 
competitors with shorter intervals in their contingency plans, the 
carrier could amend its plan accordingly. Conversely, were a carrier to 
decide that it wanted to amend its plan to allow itself more time 
before returning the aircraft to the gate, the proposed rule provides 
that the amended plan would only apply to flights that the carrier has 
not yet offered for sale. This condition would protect consumers who 
have booked flights under the impression that they will not be kept on 
the tarmac more than, say, three hours from the unpleasant discovery 
that by the time they actually fly the carrier has amended its 
contingency plan to make that interval six hours.
    As for RAA's requests that we treat regional carriers and their 
larger-carrier code-share partners differently, we have decided not to 
do so at this stage in the rulemaking process. The rule that we are 
proposing would apply to both partners in a code-share arrangement, 
because even if the determination to cancel a flight or keep it on the 
tarmac is made by the major carrier or results from action by the FAA, 
it is the carrier operating the flight that remains directly 
responsible for the passengers for the duration of the delay. We expect 
that the major carriers and their regional code-share partners would 
collaborate on their contingency plans to come up with standards that 
suit both parties. We recognize that the regional carriers' plans would 
reflect the limited size and capacity of their aircraft, and nothing in 
the rule would bar a regional carrier from providing differently for 
aircraft of different sizes.
    Nevertheless, while we are proposing here not to treat regional 
carriers and larger carriers differently in the rule, we invite 
interested persons to comment on whether, in the event that we adopt a 
rule requiring contingency plans, we should limit its applicability to 
carriers that operate large aircraft--i.e., aircraft originally 
designed to have a maximum passenger capacity of more than 60 seats. 
Proponents of this alternative approach should provide arguments and 
evidence in support of their position, as should opponents.

2. Response to Consumer Problems

    The ANPRM: This proposal would require every certificated and 
commuter air carrier that operates domestic scheduled passenger service 
using any aircraft with a design capacity of more than 30 passenger 
seats to address mounting consumer problems in the following ways: At 
its system operations center and at each airport dispatch center, 
designate an employee to be responsible for monitoring the effects of 
flight delays, flight cancellations, and lengthy tarmac delays on 
passengers and have input into decisions such as which flights are 
cancelled and which are subject to the longest delays; on its Web site, 
on all e-ticket confirmations, and, on request, at each ticket counter 
and gate, inform consumers how to file a complaint with the carrier 
(name of person or office, address, and telephone number); and send a 
response to each consumer complaint received within 30 days of receipt.
    The Comments: CAPBOR and its members support the proposal and take 
the position that carriers should be required to provide postal 
addresses, telephone numbers, and e-mail addresses for customer 
service, to acknowledge receipt of a complaint within 24 hours, to 
resolve the complaint within 30 days of receiving it, and to notify the 
Department if the passenger disagrees with the resolution. In addition, 
CAPBOR calls for a requirement that consumers' complaints to the 
carriers and complaints that the Department refers to the carriers be 
combined and tabulated by category, with the results made available to 
the public every month.
    Of the individual commenters, one agrees in principle with the 
proposal

[[Page 74591]]

but voices concern over the cost of creating a position at each airport 
for responding to complaints, reasoning that this would not affect 
delays. Another voices concern that not all consumers have access to 
the Internet and favors requiring travel agents to provide the 
information on where to complain as well.
    Of the other consumer associations, ACAP and U.S. PIRG concur with 
CAPBOR, Public Citizen concurs with CAPBOR and U.S. PIRG, and the 
National Consumer League concurs with U.S. PIRG. NBTA, in contrast, 
characterizes the proposal as micromanagement of airline customer 
service. NBTA maintains that most if not all carriers have customer 
service departments to address problems that arise and that poor 
responses will affect consumers' business decisions.
    Delta is again the only carrier that commented individually on this 
issue. Delta deems a regulation requiring the designation of carrier 
employees responsible for what it characterizes as responding to and 
managing extended ground delays and flight cancellations, and 
prescribing such employees' locations, to be unnecessary, because such 
a requirement is implicit if the Department mandates contingency plans. 
Delta is concerned, moreover, that the proposal could work to undermine 
carriers' ability to establish processes and management hierarchies 
that ensure compliance with their contingency plans. Delta states that 
it is committed to providing multiple customer-friendly channels for 
complaints, and given the rapid development of communication 
technologies, the carrier opposes making the use of particular channels 
mandatory. Delta opposes a 30-day requirement for responding to 
consumer complaints and posits 60 days as the current industry 
standard. It cautions that in cases involving international travel, 
particularly under code-sharing arrangements, ``coordinating the best 
solution for the customer may require more than 30 days, especially if 
a detailed investigation is needed.'' In addition, Delta is concerned 
that seasonal surges in complaint volume or unexpected events could 
mean financial hardship for a carrier that was required to increase 
staffing temporarily to respond to all complaints within 30 days.
    Of the carrier associations, NACA states that its members already 
monitor their flight operations at each airport and maintains that it 
should be up to each carrier to decide if it wants to have this be one 
employee's sole responsibility or include it with an employee's other 
responsibilities. As for responding to complaints, NACA contends that 
the Department should specify how complaints are to be lodged with the 
carriers if it is going to require a response to each complaint. 
Whether the complaint is handed to an airline agent at the airport, 
submitted via e-mail, or sent by U.S. mail, the complainant should be 
required to have proof that the carrier received the complaint. NACA 
believes 30 days to be insufficient for responding to complaints but 
would accept a 45-day requirement even though it prefers 60 days. 
NACA's comments are endorsed by ACAA.
    ATA, with IATA's endorsement, supports requiring carriers to 
respond to consumer problems and cites the voluntary commitments to do 
so that a number of carriers have long had in place. ATA states that 
its members agree that consumers should receive responses to their 
complaints within 30 days when practicable, provided that by 
``response'' the Department means notification that a complaint has 
been received and is being reviewed and that by ``complaint'' the 
Department means a passenger's complaint that raises customer service 
concerns and that is submitted to the carrier's customer relations 
department. It contends, however, that resolving complaints in only 30 
days is difficult if not impossible. ATA supports the idea of 
designating an employee at a carrier's systems operations center to 
monitor the effects of flight delays and cancellations, provided that 
the designee is a current employee who carries out other 
responsibilities as well. It does not support requiring such an 
employee at each airport dispatch center, claiming that this would 
duplicate existing procedures and would strain carriers' resources 
without lessening the problems that consumers face. ATA supports 
allowing each carrier to choose the means by which it receives 
complaints and responds to them, and it supports requiring carriers to 
post information on contacts for complaints on their Web sites. It 
opposes requiring this information on e-tickets as redundant, if the 
information is on the carriers' Web sites, and burdensome, as carriers 
would have to change the printing format for e-tickets to accommodate 
the new information. Thus, ATA argues, the benefit of including 
complaint information on e-tickets would outweigh the cost, 
particularly in the absence of any evidence that users of e-tickets are 
experiencing any difficulty in finding this information at present.
    RAA urges the Department to let carriers monitor the effects on 
passengers of flight delays, flight cancellations, and lengthy tarmac 
delays by whatever means they choose, given the wide variety of 
circumstances among all carriers and between major and regional 
carriers. It asserts that for its members, designating a single person 
rather than making all employees responsible for taking passengers' 
interests into account might be wasteful if not counterproductive given 
how they may well have little if any control over decisions on delays, 
diversions, and cancellations. As far as consumer complaints are 
concerned, RAA asserts that the best means for giving contact 
information may similarly vary among carriers and between major and 
regional carriers. Tickets for RAA's members' code-share services are 
typically sold and issued by their major-carrier partners, which often 
staff the ticket counters and gates that consumers use as well. Under 
these circumstances, RAA contends, its member carriers should not be 
held responsible for telling consumers how to file complaints. RAA 
states that when a major carrier receives a complaint that involves its 
regional carrier partner, it coordinates with the latter to gather 
facts so that it can respond to the consumer. Like ATA, RAA maintains 
that 30 days is sufficient for acknowledging receipt of a complaint but 
too little time for resolving one. Finally, RAA takes the position that 
any requirements adopted should only apply to flights operated with 
aircraft seating at least 30 passengers and not to flights operated 
with smaller aircraft.
    ACI-NA supports this proposal but did not specifically address it.
    Of the travel agency associations, ASTA agrees in principle with 
carriers' having an employee responsible for monitoring the effects of 
schedule disruptions on passengers and having input in the decisions 
made but doubts that this requires as many individuals as the proposal 
contemplates given current communications technology. ASTA supports a 
period of 30 days for responding substantively to consumer complaints. 
It opposes allowing individual carriers to choose how complaints may be 
filed, supporting instead a uniform requirement that complaints be 
accepted by telephone, by U.S. mail, and by e-mail. ITSA did not 
address this issue.
    Proposed Rule: We have decided to propose a rule along the lines 
set forth in the ANPRM, and again we invite comment from all interested 
persons. Specifically, our proposed new rule, 14 CFR part 259, includes 
a requirement

[[Page 74592]]

that every certificated and commuter air carrier that operates 
scheduled domestic passenger service using any aircraft with a design 
capacity of more than 30 passenger seats respond to consumer problems 
concerning its scheduled flights in three ways. First, at its systems 
operations center and at each airport dispatch center, the carrier 
would have to designate an employee who monitors the effects of flight 
delays, flight cancellations, and lengthy tarmac delays on passengers 
and has input into decisions on which flights to cancel and which to 
delay the longest. We anticipate that these responsibilities would be 
borne by current employees in addition to their other responsibilities; 
we do not intend for any carrier to have to hire new employees to 
comply with this regulation. Second, on its Web site, on all e-ticket 
confirmations, and, upon request, at each ticket counter and gate, the 
carrier would have to inform consumers how to file a complaint by 
providing the name, address, telephone number, and e-mail or Web-form 
address of the appropriate person or office. Carriers would be given 
180 days to modify their Web sites and reformat their e-tickets before 
this requirement would take effect. Third, for each complaint filed, 
the carrier would have to acknowledge receipt to the consumer within 30 
days and provide a substantive response within 60 days of receiving it. 
By ``substantive response,'' we mean a response that addresses the 
specific problems about which the consumer has complained. We are not 
proposing that this provision cover public charter operations. 
Complaints about public charter flights are filed not with the carrier 
but with the Public Charter Operator; also, the carriers operating 
these flights may not have employees at each airport that they serve.
    In adopting this approach, we are tentatively rejecting as 
unrealistic CAPBOR's contention that we should require acknowledgement 
of a complaint's receipt within 24 hours and a resolution of the 
complaint within 30 days. The deadlines that we are proposing represent 
standard practice in the industry and should allow carriers adequate 
time to investigate and respond appropriately. We are addressing 
carriers' opposition to hiring new employees to do work that is 
redundant by clarifying that this is not our intent. We are tentatively 
rejecting carriers' arguments that we should not make any particular 
complaint channel mandatory, because we recognize that not all 
consumers have access to the Internet. Some consumers traveling on e-
tickets purchased by a third party or by telephone may not have access 
to the Internet themselves. We are tentatively rejecting ATA's 
contention that requiring carriers to provide information on e-tickets 
regarding how to complain is redundant and burdensome, because ATA has 
not supported this contention. Under the proposed rule, an electronic 
e-ticket confirmation or itinerary may include a link to the complaint 
information in lieu of displaying the entire text. We invite ATA to 
provide evidence on the costs to carriers of changing the format for e-
tickets to accommodate the new information in its comments on this 
proposal. We are tentatively rejecting RAA's contention that its 
members should not be required to tell consumers how to file 
complaints. The rule by its terms would not require those regional 
carriers that do not have Web sites or ticket counters or issue e-
tickets to provide information on filing complaints via these channels. 
Passengers of these carriers who wish to complain should be able to 
find out at the gate how to do so. RAA provides no basis for its 
assertion that flights operated with aircraft seating fewer than 30 
passengers should be exempt from this requirement.

3. Chronically Delayed Flights as Violations of 49 U.S.C. 41712

    The ANPRM: This proposal would codify the Department's 2007 
enforcement policy on chronically delayed flights. The proposed new 
text would define a chronically delayed flight as a flight by a covered 
carrier that is operated at least 45 times in a calendar quarter and 
arrives more than 15 minutes late more than 70 percent of the time. It 
would define a covered carrier as one that reports on-time performance 
data to the Department under 14 CFR part 234--i.e., a certificated U.S. 
carrier that accounts for at least one percent of domestic scheduled 
passenger revenue. The text would state that the Department considers a 
chronically delayed flight to be an unfair and deceptive practice and 
an unfair method of competition within the meaning of 49 U.S.C. 41712 
if it is not corrected before the end of the second calendar quarter 
following the one in which it is first chronically delayed.
    The Comments: CAPBOR supports this proposal but believes that 
carriers should not be allowed a full six months to correct chronically 
delayed flights and that the Department should automatically impose 
civil penalties whenever a flight becomes chronically delayed in any 
given quarter. CAPBOR also favors stricter standards than the ones that 
we proposed: Specifically, that the rule should apply to flights 
operated at least 24 times in a calendar quarter and that flights 
should be deemed chronically late if they arrive at least 15 minutes 
late more than 50 percent of the time. Ms. Hanni goes further and calls 
for an even lower threshold of 40 percent. CAPBOR wants the Department 
to make certain that carriers cannot evade the rule by changing the 
number of a flight or changing its departure time by a few minutes. Ms. 
Hanni adds that the Department should also address the problem of 
chronically cancelled flights by regulation.
    None of the individual commenters addressed this proposal. Of the 
other consumer associations, ACAP concurs with CAPBOR, as do U.S. PIRG, 
Public Citizen, and the National Consumers League. NBTA alone supports 
the proposal as drafted.
    Delta, the only carrier that commented individually on this issue, 
takes the position that the Department should use the standard proposed 
as a rebuttable presumption that a flight violates 49 U.S.C. 41712 
rather than as a rule. In Delta's view, the Department must also 
consider in each case whether the carrier has intended to deceive the 
public or compete unfairly, because flights may fail to operate on time 
for an extended period for many reasons that are beyond the carrier's 
control. For example, if a flight performs erratically due to 
unpredictable delays attributable to problems in the national air 
traffic control system, the carrier cannot solve the problem by 
extending the block time to make the flight operate on time more 
consistently: This would make the flight arrive early when the system 
functions properly, which in turn could cause disruptions and tarmac 
delays at the destination airport. Another example would be a period of 
harsh and unexpected weather arriving just when a carrier thought that 
it had solved the problems that had made a flight late. Delta warns 
that adopting a rigid standard for enforcement could result in 
carriers' cancelling flights or arbitrarily retiming them 
significantly, thus creating ``new'' flights, solely to avoid 
enforcement action and even though they might otherwise have eventually 
solved the scheduling problems. Delta warns that this approach is in 
turn likely to cause passengers more inconvenience than would 
continuing to try to address the real issues affecting a flight's 
performance. In cases where the actual individual delays of a given 
flight are relatively small--say 16 minutes, for example--passengers 
fare better if the flight is maintained than if it is cancelled 
altogether.

[[Page 74593]]

    Delta opposes expanding the definition of a chronically delayed 
flight to include international flights to and from the United States. 
It claims that any carrier's ability to adjust the timing of such 
flights is limited by time zone issues and consumers' preference to 
arrive at foreign destinations at particular times. Additionally, 
foreign laws and airport authorities may limit a carrier's ability to 
adjust schedules or address other operational factors that affect on-
time performance.
    In Delta's opinion, adopting the proposal as a rule would not 
result in improvement of on-time performance, because carriers already 
deem customer satisfaction to be critical to their success and are 
therefore already doing whatever they can to meet their schedules. 
Rather, Delta suggests, the government should use its resources to 
improve the air traffic control system. The carrier concludes that in 
any enforcement action, if a carrier can show that it has done all it 
reasonably can to resolve the problem but that the underlying primary 
cause is outside of its control, no sanction should be imposed.
    Of the carrier associations that commented, ATA, with IATA's 
endorsement, agrees with Delta that the proposed standard should only 
be a rebuttable presumption and not a rule, because in some 
circumstances a carrier may have legitimate reasons for not being able 
to comply. ATA supports the proposed definition of a chronically 
delayed flight and prefers it to the standard proposed by the 
Department's Inspector General (IG), i.e., flights arriving 30 minutes 
late 40 percent of the time. ATA opposes expanding the definition to 
include international flights.
    RAA does not oppose defining chronically delayed flights, but it 
does oppose treating them as an unfair and deceptive practice subject 
to enforcement action. RAA believes that the market will punish 
carriers that fail to satisfy consumers and that the Department should 
rely on market forces rather than enforcement. If the Department 
persists nevertheless, RAA takes the position that the rule should 
apply only to the carrier that sets the schedules and enters into 
contracts of carriage with passengers when that carrier is not the 
carrier operating the flights. In a similar vein, ACAA contends that 
any rule on chronically delayed flights should apply only to the 
largest carriers.
    ACI-NA states that chronically delayed flights can harm both 
airports and their local communities economically by causing passengers 
to lose confidence in an airport's operations. A smaller airport can 
sustain greater harm, according to ACI-NA, because even though larger 
airports may have more delayed flights, delayed flights at a smaller 
airport may constitute a larger percentage of that airport's flights. 
Also, delays at small airports whose flights feed a large carrier's hub 
are more disruptive to passengers, because they cause more missed 
connections. Regarding the proposal, ACI-NA maintains that a threshold 
of 45 flight operations per calendar quarter, or approximately four 
flights per week, will improperly exclude operations at many small 
airports and thus fail to protect their passengers. Instead, ACI-NA 
proposes a threshold of 12 flight operations per calendar quarter, or 
one flight per week. ACI-NA also maintains that a late-arrival 
threshold of more than 70 percent is too lenient to carriers and unfair 
to consumers, and it proposes a threshold of 50 percent. Finally, ACI-
NA maintains that any rule should apply not only to the major and 
national carriers that account for at least one percent of domestic 
scheduled passenger revenue but also to the operations of regional or 
feeder carriers that are affiliated with the larger carriers. ACI-NA 
reasons that delays harm passengers just as much regardless of which 
certificate holder operates the aircraft. Furthermore, with regional 
carriers now transporting one of every four domestic passengers, 
operating half of daily domestic flights, and providing the only 
scheduled service to about 70 percent of U.S. airports, ACI-NA deems it 
critical that their operations be covered by the rule.
    Of the travel agency associations, ASTA supports defining 
chronically delayed flights as an unfair and deceptive practice but 
suggests that the proposal can be improved in a number of ways. First, 
the threshold should be set at 50 percent rather than 70 percent, which 
will be a stronger incentive for airlines to adjust their schedules or 
operations. Second, rather than permitting a carrier two calendar 
quarters to correct a chronically delayed flight, correction should be 
required within the first calendar quarter following the one in which 
the flight became chronically delayed: ASTA maintains that three months 
should usually suffice, and in cases where a carrier can show why it 
should be granted additional time, the Department would have the 
discretion to accommodate it. Third, ASTA supports applying this rule 
to international scheduled passenger service by both U.S. and foreign 
carriers. ITSA did not address this issue.
    Proposed Rule: With some modification to the details, we have 
decided to propose a rule along the lines set forth in the ANPRM, and 
we invite comments from all interested persons. Specifically, we 
propose to amend 14 CFR 399.81 to define chronically delayed flights 
and to specify that the Department considers flights that continue to 
be chronically delayed for three consecutive calendar quarters to be an 
unfair and deceptive practice and an unfair method of competition 
within the meaning of 49 U.S.C. 41712 and subject to enforcement 
action. This proposal defines a flight as chronically delayed if it is 
operated at least 30 times in a calendar quarter and arrives more than 
15 minutes late more than 70 percent of the time. As far as substitute 
flights are concerned, all flights in a given city-pair market whose 
scheduled departure times are within 30 minutes of the most frequently 
occurring scheduled departure time would be considered to be one single 
flight for purposes of assessing chronic delays. The revised proposal 
reflects the Department's 2008 enforcement policy, and we tentatively 
believe that it strikes the appropriate balance between consumers' need 
to have reliable information about the real arrival time of a flight 
and the carriers' inability to control or predict the weather and 
certain other factors that can contribute to delays. In addition, for 
the reasons set forth below in support of our decision not to propose a 
rule requiring on-time reporting of international flights, we have also 
decided against proposing to include foreign air transportation--i.e., 
international flights--in the definition of a chronically delayed 
flight.
    We further invite interested persons to comment on an alternate 
definition of a chronically late flight as one that is operated at 
least 30 times in a calendar quarter and that arrives at least 30 
minutes late at least 60 percent of the time. While this latter 
approach could theoretically yield more benefits for consumers, we are 
concerned that adopting this more stringent standard could lead to a 
large number of flight cancellations and possibly even the elimination 
of service to some communities. Also, we invite comment on whether we 
should adopt an even stricter definition favored by the Department's 
Inspector General: A flight that is cancelled or delayed 30 minutes or 
more at least 40 percent of the time. The Inspector General calculated 
in 2006 that using this definition would yield 5,369 chronically 
delayed flights, a very high number (Follow-Up Review:

[[Page 74594]]

Performance of U.S. Airlines in Implementing Selected Provisions of the 
Airline Customer Service Commitment, Report Number AV-2007-012, Issued 
November 21, 2006, at page 5, footnote 8, and Attachment, page 17). 
Because we are concerned that any consequential increase in enforcement 
responsibilities might require the diversion of resources from other 
aviation compliance activities, commenters should assess both the 
benefits that this definition would engender and the costs that it 
would entail. Of course, regardless of which definition we adopt, we 
always have the authority to take enforcement action against flights 
that do not meet the definition but that appear to involve unrealistic 
scheduling and thus to constitute unfair and deceptive practices and 
unfair methods of competition within the meaning of 49 U.S.C. 41712.
    For enforcement purposes, we are considering the option of not 
treating a flight that remains chronically delayed for three 
consecutive quarters as an unfair and deceptive practice and an unfair 
method of competition if every prospective passenger using any 
available channel of purchase is informed before buying a seat on that 
flight that the flight is chronically delayed. There is no deception or 
unfairness if a consumer who knows that a flight is chronically delayed 
chooses it for travel nonetheless. We invite comment on this approach.
    We are tentatively rejecting as too draconian the consumers' 
contentions that we should not allow a full six months for the 
correction of a chronically delayed flight, that we should 
automatically impose civil penalties in the calendar quarter when a 
flight becomes chronically delayed, and that we should define 
chronically delayed flights more broadly. As we have stated above, our 
aim in proposing rules is to strike a balance between a passenger's 
need to have the best possible information about the real arrival time 
of a flight and the carriers' inability to control--or foresee--the 
weather and various other factors that can cause delays. As for 
chronically cancelled flights, the proposed rule would treat each 
flight that is cancelled within seven days of departure as a delayed 
flight for purposes of our analysis, but we decline at this time to 
consider regulating chronically cancelled flights in other respects. We 
are addressing consumers' concerns that carriers could evade the rule 
by changing a flight's number or departure time by providing for the 
treatment of substitute flights as the same flight.
    We are also tentatively rejecting the carriers' contention that we 
should use the standard we adopt as a rebuttable presumption and not a 
rule. Chronic delays are a serious problem that must be addressed, and 
we consider the standard we are proposing here to be a reasonable and 
feasible approach. We invite carriers to provide evidence to the 
contrary in their comments on this proposal. Furthermore, as the 
carriers know, the Department's enforcement procedures afford a 
potential respondent ample opportunity to show extenuating or 
mitigating circumstances and thus perhaps avoid penalty. For example, 
our enforcement procedures are sufficiently flexible for us to take 
account of the contract terms between a major carrier and its regional 
code-share partner in any investigation of the latter's delayed 
flights. As for ACAA's contention that any rule should apply only to 
the largest carriers, while ACI-NA's comments attest to the importance 
of addressing unrealistic scheduling by small and regional carriers, by 
its terms the proposed rule would not apply to any carrier that does 
not account for at least one percent of domestic scheduled passenger 
revenue. These carriers already collect and report on-time performance 
data. Their operations account for nearly 90 percent of all domestic 
passenger enplanements. In our view, the substantial cost burden that 
compliance with this proposal would impose on the smaller carriers, 
which are not required to collect or report on-time performance data, 
would outweigh any corresponding public benefits.

4. Delay Data on Carriers' and Other Sellers' Web Sites

    The ANPRM: This proposal would require both carriers that report 
on-time performance data to the Department and online travel agencies 
to include on their Web sites, at a point before the passenger selects 
a flight for purchase, the following information on each listed 
flight's performance during the previous month: The percentage of 
arrivals that were on time, the percentage of arrivals that were more 
than 30 minutes late, special highlighting of any flight that was late 
more than 50 percent of the time, and the percentage of cancellations.
    The Comments: CAPBOR and its members support requiring carriers to 
publish delay data on their Web sites for all flights but they assert 
that flights should be defined as ``late'' if they arrive more than 15 
minutes late, not 30 minutes as proposed. CAPBOR believes that 
passengers will use this information to make better choices and that as 
a consequence, carriers with more delayed flights will have a greater 
incentive to correct their problems. CAPBOR takes the position that 
carriers should be required to provide the information not only on 
their Web sites before booking but also upon request to consumers who 
book by telephone. CAPBOR also takes the position that third-party 
reservations services should be required to provide this information as 
well and that carriers ``should be required to provide open interfaces 
for internet applications to access [these] data from their servers so 
as not to impose undue costs [on] third parties.'' CAPBOR favors 
applying this rule to the international flights of U.S. carriers and to 
all domestic scheduled passenger service using aircraft with more than 
30 passenger seats. Ms. Hanni adds that special highlighting should be 
required for any flight that is late more than 40 percent of the time. 
In her view, however, it would not be enough to require disclosure of 
the performance information by telephone only upon request. Rather, she 
maintains, we should require disclosure of information about both 
chronically delayed and chronically cancelled flights whenever a 
consumer is booking flights, be it on line, by telephone, or even in 
person.
    Those individual commenters who addressed this issue agree that 
disclosure of this information should be required for telephone sales 
as well as internet sales. They also agree that the disclosure 
requirement should apply to third-party reservations services.
    Of the other consumer associations, ACAP agrees with CAPBOR, as 
does U.S. PIRG. Public Citizen concurs with U.S. PIRG and CAPBOR; the 
National Consumers League concurs with U.S. PIRG. NBTA supports 
requiring carriers to provide on-time performance information to 
consumers ``so long as these requirements are aligned with performance 
reports that carriers must file with DOT.''
    Senators Boxer and Snowe support this proposal.
    As for members of the industry, Delta, again the only carrier that 
commented individually on this issue, agrees that giving interested 
consumers information on historical on-time performance is good 
customer service, but the carrier strongly objects to detailed 
regulation of how this information is provided. In Delta's view, 
carriers should be free to decide what to tell consumers and how. On 
its Web site, Delta currently makes available the percentage of 
operations that were on time for any flight for which it is required to 
file on-time performance data with the Department. Once a consumer has 
selected dates and

[[Page 74595]]

routes, the screen for flight availability and pricing provides access 
to the following information via a click on the flight number: 
equipment type, flight duration and distance, and on-time performance 
for the previous month. In Delta's view, its practice meets consumers' 
reasonable wishes for information on a flight's historical performance, 
and the other categories of information that the Department proposes to 
require are unnecessary. Delta also contends that requiring carriers to 
change their Web sites to provide this additional information would 
impose substantial costs without yielding offsetting benefits for 
consumers. Unlike on-time performance data, Delta maintains, the data 
needed to deliver the additional information are not already collected, 
and Delta's existing software would not support collecting them or 
displaying and highlighting the results.
    Delta also contends that the additional information that the 
proposal would require is of little relevance to consumers when 
purchasing air transportation. First, it reasons, a flight's 
performance over a month does not predict its performance today, 
tomorrow, or in three months, because reasons for delays can vary with 
seasons and from week to week or day to day according to weather, 
special events, or infrastructure problems (e.g., ATC system failures, 
runway or taxiway closures). Delta states that it is constantly 
identifying and analyzing flights that perform poorly and taking 
measures to improve their performance by adjusting schedules and block 
times, crew rotations, maintenance schedules, and other operational 
factors. As a result, Delta states, a flight that performs poorly in 
one month rarely performs poorly the next month, and it is even less 
likely to perform poorly several months in the future. Second, Delta 
states that it has monitored customer calls at the rate of about 5,000 
per month and that between March and September of 2007 it did not 
observe even one request for information on on-time performance.
    Delta maintains that the percentages of its arrivals that are more 
than 30 minutes late and the percentage of its cancellations would be 
``statistically insignificant'' (Delta estimates that just over ten 
percent of its flights system wide arrive more than 30 minutes late and 
states that in November of 2007 its completion rate was 99.3 percent), 
but it claims that collecting the underlying data to comply with the 
proposal would ``require substantial infrastructure modifications.'' 
Delta also maintains that about 40 percent of all cancellations result 
from mechanical problems, which are not specific to flight, route, or 
schedule, and therefore, providing this information during the booking 
process would not alert consumers to problematic flights.
    Delta objects to requiring reservations agents to disclose on-time 
performance at the time of booking without being asked. It states that 
this would increase call times and call wait times and the costs 
associated with each. The delays, it states, would irritate callers who 
do not seek this information--i.e., in Delta's experience, most 
callers. Consumers would not benefit, Delta contends, because historic 
performance is a poor predictor of performance when the passenger plans 
to fly.
    Of the carrier associations that commented on this proposal, ATA, 
with IATA's support, favors the disclosure of delay information on 
carriers' Web sites or via a link to a third-party Web site only when 
consumers request this information. Stating that carriers already have 
commercial incentives to provide information that is of interest to 
consumers and that many already post on-time data on their Web sites, 
ATA contends that requiring the disclosure of data that consumers 
demand only occasionally would waste resources by increasing 
programming costs and consuming valuable screen space. Such a 
requirement would also waste the time of those consumers who do not 
find the information useful.
    Like Delta, ATA strongly opposes requiring carriers' reservations 
agents to disclose on-time information without being asked, because the 
high cost of compliance would outweigh its speculative benefit. 
Furthermore, ATA maintains, requiring carriers' reservations agents to 
provide this information but not requiring the same of travel agents 
would prejudice competition between the two channels by imposing the 
added costs only on the carriers. ATA estimates the cost of compliance 
at $0.50 per call, which would translate into an additional $25 million 
per year for a carrier that receives over 50 million calls at its 
reservations center just for agents' time and not including training 
and programming costs. ATA also maintains that Computer Reservations 
Systems' (CRSs') displays currently have no space to show the extra on-
time information covered by the proposal. The costs of modifying the 
displays would be high but the benefits few, ATA argues, because 
carriers' reservation centers account for only about 20 percent of all 
bookings. This requirement would also waste the time of those 
passengers who do not want the additional information. At the FAA's 
valuation of passenger time at about $30 per hour, the waste could run 
to tens of millions of dollars each year.
    ATA also maintains that requiring ``special highlighting'' of 
flights would entail high costs for extensive reprogramming of internal 
carrier software and extensive changes to carriers' Web sites but would 
yield benefits that are dubious at best. ATA does not believe that the 
proposed disclosures would give consumers better information or help 
them make better choices, because historic performance data do not 
predict future performance.
    RAA believes that this proposal would burden the reservation 
process and Web sites by giving passengers information that they may 
not want and by cluttering display screens so that they could not 
accommodate as many flights as they do now. RAA agrees with Delta and 
ATA that historic performance information may well have no predictive 
value for a consumer's flight, given variations in weather, for 
example. RAA argues that ``subjecting passengers to information 
overload could only further confuse them, lengthen the time required 
for booking a flight, substantially increase the workloads of 
reservation agents and webmasters and lengthen customer wait times, all 
to the detriment of the passenger.'' RAA maintains that passengers who 
want information on their flights' past performance can find it in the 
Department's reports and can also use this source to compare the 
performance of flights in the same city-pair offered by competing 
carriers. It states that most carriers' Web sites already offer 
performance information on the previous and current day's flights, and 
it opines that this is the information that consumers find most useful 
as their travel days draw near. In addition, some historic performance 
information is already available from reservations agents on request. 
RAA suggests that carriers could offer those passengers who want 
additional information a link to the Department's Web site, a solution 
it deems superior to ``imposing unwanted information on travelers who 
would rather expedite their bookings.'' Finally, RAA observes that 
regional airlines that operate services for major carrier code-share 
partners and that do not offer their own reservations and ticketing 
services would not be covered by this proposal.
    ACI-NA supports the proposal but did not specifically address it.
    Of the travel agency associations, ASTA opposes this proposal as 
unworkable and unhelpful to consumers. Noting that current

[[Page 74596]]

technology could not deliver on-time data for display by online travel 
agencies until the first week of the month following the deadline for 
reporting the data to the Department, which itself is 15 days after the 
applicable reporting month, ASTA maintains that ``[w]hat happened on a 
flight two months ago (on average) is not particularly instructive for 
what flights will do today, especially if the seasonality factor is 
considered.'' ASTA agrees with Delta and ATA that the costs of 
reprogramming to comply with the proposal would be significant and that 
the reprogramming could complicate the web displays of all online 
sellers of air transportation. If the Department does adopt a rule 
requiring disclosure of flights that are late more than a certain 
percentage of time, ASTA believes that the percentage should be the 
same as the percentage the Department uses to define flights that are 
chronically delayed. In addition, ASTA believes that if the Department 
uses enforcement aggressively against chronically late flights, 
carriers may be expected to take steps to avoid enforcement, which in 
turn would lower the incidence of late flights and make the proposed 
rule superfluous.
    ITSA opposes this proposal, taking the position that the 
publication of flight-specific on-time performance data should be left 
to the marketplace. In ITSA's view, vendors should be allowed to 
exercise their business judgment to determine the extent to which 
consumers demand this information and whether and how to present it. 
ITSA contends that consumers who use its members' services would not 
hesitate to let these vendors know if they wanted to have the historic 
performance data covered by the proposal when they book flights, and it 
asserts that so far they have not done so, not even in surveys and 
focus groups conducted by vendors. ITSA agrees with the other industry 
parties who contend that historic flight data have little if any 
predictive value. ITSA points out that the proposal's requirements 
would affect not only online reservations services, including those of 
the carriers, but also the CRSs on which all vendors rely. If, over 
ITSA's objections, the Department does propose a rule requiring 
disclosure of historic on-time performance, ITSA seeks clarification of 
whether all, some, or none of the rule's provisions would apply to 
third-party vendors as well as to the carriers. ITSA also raises the 
issue of liability for performance data's accuracy and asks the 
Department to specify that online vendors and CRSs rely entirely on 
carriers for these data.
    Proposed Rule: We have decided to propose a rule mostly along the 
lines set forth in the ANPRM, and we invite comment from all interested 
persons. Specifically, we propose to amend 14 CFR 234.11 to require air 
carriers that report on-time performance to publish the following 
information on their web sites for each listed flight regarding its 
performance during the latest reported month: the percentage of 
arrivals that were on time (i.e., within 15 minutes of scheduled 
arrival time), the percentage of arrivals that were more than 30 
minutes late, with special highlighting if the flight was late more 
than 50 percent of the time, and the percentage of cancellations. 
Carriers will be able to comply with the rule in one of the following 
ways: by showing the percentage of on-time arrivals on the initial 
listing of flights and disclosing the remaining information on a later 
page at some stage before the consumer buys a ticket, or by showing all 
of the required information via a hyperlink on the page with the 
initial listing of flights. To ensure that all carriers are posting 
information covering the same month, we are proposing to require that 
they load the information for the previous month into their internal 
reservations systems between the 20th and the 23rd days of the current 
month. (This latter requirement would also apply to Sec.  234.11(a), 
the existing requirement that carriers disclose on-time performance 
information during reservation calls, ticketing discussions or 
transactions, or flight inquiries.) We invite comment from carriers on 
whether they would find it more convenient to load the information 
overnight on the third Saturday of the month than between the 20th and 
23rd days as proposed.
    In adopting this approach, we are tentatively rejecting consumers' 
request for disclosure of the percentage of arrivals that were more 
than 15 minutes late and special highlighting of flights that are late 
more than 40 percent of the time as excessive and unnecessary. We also 
tentatively reject the contention that the same disclosures should be 
required during telephone bookings. Section 234.11 already requires 
disclosure of on-time performance when requested during live 
discussions, transactions, or inquiries. We tentatively agree with the 
carriers that the costs of providing this and other information to all 
callers whether requested or not would be unduly burdensome and of 
dubious benefit, especially given that the rule will give consumers 
access to this information on the carriers' web sites. We are 
tentatively rejecting the arguments that flight performance data are 
irrelevant to consumers: the consumers' comments show otherwise. We 
invite those who file comments in opposition to this proposal to 
support their arguments with data on the costs of modifying their web 
sites to comply with the proposed disclosure requirements.
    We have tentatively decided not to propose requiring on-line travel 
agencies to post the same information. For one thing, the costs of 
doing so would probably far outweigh the benefits for at least several 
years. Our preliminary economic analysis indicates that the costs to 
on-line travel agencies of complying with this proposed rule would run 
to $53.4 million in the first year and that benefits to passengers in 
this first year would amount to only $3.4 million. (Initial Regulatory 
Impact Analysis of Proposed Rulemaking on Enhanced Airline Passenger 
Protections at 56.) Applying the requirement only to carriers would 
cost the carriers $1.9 million in the first year while conferring 
benefits of $2.8 million on passengers. (Id. at 53.)
    We would also like commenters to address one additional question: 
should we require covered carriers to provide the required information 
for domestic code-share flights, and if so, should this requirement 
apply to all domestic code-share flights or only to those operated by 
carriers that report on-time performance?

5. Complaint Data on Carriers' Web Sites

    The ANPRM: This proposal would require certificated and commuter 
carriers that operate domestic scheduled passenger service using any 
aircraft with more than 30 passenger seats to publish complaint data on 
their Web sites. Each carrier would have to disclose the number of 
consumer complaints it has received within a defined time frame 
concerning subjects such as tarmac delays, missed connections, and the 
failure to provide amenities to passengers affected by a flight that is 
delayed or canceled.
    The Comments: CAPBOR and its members support the proposal and favor 
requiring carriers to publish complaint data on the following 
categories: involuntary bumping, baggage issues, frequent flyer miles, 
unaccompanied minors, delays, tarmac strandings, and disabilities. In 
Ms. Hanni's opinion, the complaints submitted only to the Department 
give an incomplete picture of the state of the industry.
    Of the individual commenters, one does not think that consumers 
would use this information to make booking

[[Page 74597]]

decisions, because they base their decisions on price, availability, 
and schedule. This commenter also does not think that the proposal 
would lessen flight delays. Another individual agrees in general with 
the proposal but is concerned that the same information should be 
available to consumers who do not use the Internet.
    Of the other consumer associations, ACAP concurs with CAPBOR, as do 
US PIRG, Public Citizen, and the National Consumers League. NBTA does 
not support this proposal. It argues that despite the desirability of 
transparency in general, the benefits to consumers of carriers' 
highlighting their complaints would be dubious. NBTA also cautions that 
many complaints are not sufficiently clear-cut to fall into simple 
categories and that the proposal makes no distinction between problems 
under carriers' control and problems resulting from uncontrollable 
factors such as the weather.
    As for members of the industry, Delta, again the sole carrier to 
comment individually, strongly opposes this proposal. First, it 
maintains that carriers' communications on their Web sites are 
protected by the First Amendment and that there are constitutional 
restrictions on the government's ability to force carriers to 
communicate content on their Web sites with which they disagree and 
which does not show themselves in a positive light. Second, it asserts 
that consumers who would like to know other consumers' views of any 
carrier's customer service record can consult other sources, such as 
the Department's complaint data and a variety of third-party Web sites. 
Third, it contends, the proposal would be impossible to enforce, 
because carriers would inevitably adopt disparate standards. Fourth, it 
claims that the information would not be useful to consumers, because 
the carriers would not be able to indicate whether complaints were 
reasonable, how serious they were, or how they were handled.
    Of the carrier associations that commented on this proposal, NACA, 
with ACAA's endorsement, opposes it. Like Delta, NACA believes that the 
subjective coding of complaint letters would render the cumulative 
numbers that would be published meaningless and devoid of context. Also 
like Delta, NACA contends that the proposal represents overreaching by 
the government. NACA states that the government does not force private 
businesses in any other industry to disclose their customer service 
results. NACA predicts, moreover, that the costs of collecting and 
disseminating the complaint data would be particularly onerous for the 
smaller carriers that do not file delay and baggage data with the 
Department and are not included in the Department's Air Travel Consumer 
Report.
    ATA, with IATA's support, also opposes this proposal, because 
complaint data are already available from the Department and other 
online sources, because the information would not be useful to 
consumers, and because the Department provides no support for its 
implicit assumption that complaint data reflect a carrier's actual 
performance. ATA also maintains that compliance with the proposal would 
be costly, and, like NACA, it asserts that in no other industry are 
firms required to publish complaint data. In addition, ATA agrees with 
Delta that the proposal may well run afoul of the First Amendment.
    RAA opposes this proposal as well, suggesting as an alternative 
that the Department encourage carriers to inform consumers on their Web 
sites of, and perhaps provide links to, the Department's Aviation 
Consumer Protection Division's Web site. This approach, it states, 
would give consumers standardized information that would be more 
helpful to them and would avoid burdening consumers with additional 
screen clutter and carriers with data storage and retrieval 
requirements.
    ACI-NA supports this proposal but did not specifically address it.
    Of the travel agency associations, ASTA opposes this proposal for 
the same reasons that it opposes requiring delay data on sellers' Web 
sites, and it questions the value of complaint data to consumers. ITSA 
opposes requiring online vendors to publish complaint data.
    No Proposal: We have decided not to propose a rule requiring the 
publication of complaint data. Both the comments and our own further 
consideration have persuaded us that these data would be of little or 
no value to consumers. Specifically, consumers have access to a 
tabulation of complaints filed with the Department in the Air Travel 
Consumer Report, available on our Aviation Consumer Protection 
Division's Web site (http://airconsumer.ost.dot.gov/). In our 
experience with disability and discrimination complaints, consumers' 
complaints to the Department provide a reliable indication both of the 
types of complaints that individual carriers receive and, in relative 
terms, of which carriers receive the most complaints. Also, although 
carriers may receive 20 or 30 times as many complaints as the 
Department does, the Department's consumer complaint data are not 
subject to the disparate and subjective counting and coding that would 
inevitably occur under the original proposal.

6. International Flights' On-Time Performance

    The ANPRM: This proposal would require U.S. carriers that report 
on-time performance to the Department and the largest foreign carriers 
to report on-time performance for international flights to and from the 
United States.
    The Comments: CAPBOR and its members support a requirement that on-
time performance be reported for all domestic and international 
scheduled passenger service using aircraft with more than 30 passenger 
seats. ACAP, U.S. PIRG, Public Citizen, and the National Consumers 
League concur. NBTA supports requiring U.S. and foreign carriers to 
report on-time performance for international flights as ``a reasonable 
mechanism to bring greater transparency to a growing market of 
[increasing] significance to NBTA and its international partners.'' It 
believes that the requirement should be comparable to that for domestic 
flights and that its implementation should be cost effective.
    As for the industry commenters, of the carriers, Jet Airways 
generally supports initiatives to protect passengers without imposing 
unreasonable or unbalanced burdens on carriers, and it deems this 
proposal to be reasonable. Jet Airways suggests that to determine ``the 
largest foreign carriers'' the Department should consider the number of 
weekly flights a foreign carrier operates to U.S. airports and the 
concentration of international flights a single foreign carrier 
operates at each international gateway: for example, any foreign 
carrier that operates at least 70 flights a week to and from the United 
States could be included, as could any foreign carrier that accounts 
for at least 10 percent of scheduled international departures at a U.S. 
gateway.
    Delta opposes the proposal. It believes on-time performance 
information to be of little use to consumers as a predictor of any 
given flight's performance on any given day, and it reports that 
consumers almost never request it. Delta doubts that on-time 
performance information for international flights will be useful to the 
Department for enforcement purposes, particularly flights to the United 
States, because factors that affect performance are often beyond a 
carrier's control, and because carriers often have little leeway to 
adjust schedules due to local airport restrictions, time zones, and 
other features of international aviation. In addition, Delta contends

[[Page 74598]]

that it would be unfair to impose the proposed requirement on U.S. 
carriers without holding foreign carriers to the same standards, which 
in turn would pose a risk that foreign authorities would retaliate by 
imposing burdensome requirements on U.S. carriers operating abroad, 
thus raising the costs of international flights.
    China Eastern also opposes the proposal. It maintains that any 
benefits to consumers would be far outweighed by the costs to foreign 
carriers of devising the means to comply, especially those carriers 
that do not operate multiple daily flights to the United States. China 
Eastern also states that the information at issue is already available 
to consumers on Web sites such as http://www.flightstats.com. China 
Eastern cautions that if the Department adopts this proposal, other 
countries could impose similar requirements, resulting in ``a global 
patchwork of reporting requirements, imposing significant costs on 
foreign carriers and their customers.'' If the Department does adopt 
the proposal, China Eastern endorses Jet Airways' approach to defining 
``the largest foreign carriers.'' China Eastern adds that if data are 
collected, the reasons for delays, such as the holding of flights for 
connecting passengers, weather, and airport congestion and traffic, 
should be clearly stated in conjunction with the delay statistics.
    Virgin Atlantic opposes the proposal, stating that it is not 
required to supply on-time performance data to the UK or the EU and 
that producing such data and providing them to the Department would be 
a significant regulatory burden with questionable benefits for 
consumers. Virgin Atlantic contends that many factors affecting on-time 
performance are beyond any carrier's control. Virgin Atlantic also 
expresses concern over how to determine which foreign carriers are 
``large,'' given that Virgin itself, like most foreign carriers, serves 
most of its international destinations only once or twice per day.

    AAPA, a trade association of 17 major international carriers, 
states that it needs clarification from the Department on how it would 
use the on-time performance data, the level of detail the rule would 
require, and who would have access to the data before it can assess the 
costs involved with complying with this proposal. As for how to define 
``large foreign airline,'' AAPA proposes that the definition be based 
on flight frequency to and from the U.S. rather than on carrier 
revenues.
    IATA opposes the proposal. It states that sufficient on-time 
performance data are available through Web sites such as http://
www.flightstats.com to give consumers all the information they might 
want or need. It maintains that any benefits the proposal might yield 
would be outweighed by its costs. In IATA's experience, consumers of 
international air transportation are swayed more by price and route 
convenience than by on-time performance. IATA's foreign-carrier members 
have not been required to report on-time performance data and would 
therefore incur significant costs in setting up the infrastructure to 
comply with the proposal. IATA contends that these costs would be 
especially onerous for the many foreign carriers that serve the United 
States infrequently. Like other industry commenters, IATA expresses 
concern that the proposal could prompt other governments to establish 
their own multifarious on-time performance reporting requirements, with 
each such requirement imposing another new set of costs, and with all 
of them together causing additional confusion for consumers. IATA notes 
that carriers sometimes delay long-haul international flights to 
accommodate delayed connecting passengers and cautions that the 
proposal could discourage this practice if carriers had to consider the 
consequences of poorer on-time performance results. This in turn would 
harm consumers, because frequently a carrier will only operate one such 
flight per day, so those passengers who missed it would have to stay 
overnight at their departure gateway.
    ATA opposes the proposal for some of the same reasons as IATA. 
First, carriers frequently hold international flights for passengers 
who are delayed on inbound connecting flights, because an international 
flight may be a carrier's only operation to the foreign destination for 
that day or even for the week. These delays avoid stranding passengers, 
and ATA contends that carriers should not be penalized by having to 
report them. Second, ATA states that wind speeds tend to be stronger 
over the oceans, causing significant delays when carriers have to fly 
against prevailing winds. Third, ATA maintains that while equity and 
fairness would require the Department to impose the same requirements 
on foreign carriers as on U.S. carriers, the proposal would nonetheless 
place U.S. carriers at a competitive disadvantage, since they report 
all of their domestic flights as well as international flights, while 
most foreign airlines would report only a few flights per day, and 
``[t]his severe disparity in the data would result in skewed and 
misleading information to consumers.'' Fourth, the proposal could 
subject U.S. carriers to new foreign regulations country by country. 
Fifth, the burden the proposal would impose on many foreign carriers 
would outweigh any theoretical benefit to consumers. ATA asserts that 
if the Department adopts the proposal over its objections, it should 
take care to ensure that domestic on-time performance data and 
international on-time performance data are kept separate in any source 
seen by consumers.
    RAA opposes the proposal, fearing new reporting requirements on the 
part of foreign governments and the associated cost burdens. If the 
Department does adopt the proposal, however, RAA favors requiring 
reports only of the largest airlines in the largest markets.
    ACI-NA supports the proposal but did not specifically address it.
    Of the travel agency associations, ITSA takes the position that any 
reporting requirement for international flights ``should be carefully 
harmonized with the home nations of any such carriers, or through any 
appropriate multinational body, in advance, in order to avoid 
[responsive] additional and potentially inconsistent requirements on 
U.S. carriers'' which ``could lead to additional and possibly 
inconsistent publishing requirements for [online vendors, CRSs,] and 
others from multiple nations.'' ASTA did not address this issue.
    No proposal: We have decided for several reasons not to propose a 
rule requiring the reporting of on-time performance for international 
flights. First, as some carriers report, this information is already 
available on the internet. Second, many international flights involve 
slot-controlled airports, which means that the carriers operating them 
already have an incentive to meet their schedules. Third, we do not 
have sufficient evidence of a problem to justify the costs of reporting 
on-time performance of international flights, and on the many 
international routes that are only served by one carrier, access to on-
time performance data would not affect consumers' choices. Fourth, as 
some carriers contend, a reporting requirement could make carriers less 
inclined to hold flights for incoming connections, which would create 
hardships for passengers in city-pairs served once a day or less. 
Fifth, the operating environment for international flights is much less 
homogeneous than that for domestic flights: For example, a variety of 
transoceanic weather patterns and long stage lengths can affect 
operating times. Finally, a reporting requirement, particularly one 
based on

[[Page 74599]]

carrier size, could raise issues regarding carriers' ``fair and equal 
opportunity to compete'' if the requirement differentiated between U.S. 
and foreign carriers or among foreign carriers.

7. Carriers' Adherence to Customer Service Plans

    The ANPRM: This proposal would require certificated and commuter 
carriers that operate domestic scheduled passenger service using any 
aircraft with more than 30 passenger seats to audit their own adherence 
to their customer service plans. We stated that in conjunction with 
this proposal we are considering requiring any covered carrier that 
does not already have a customer service plan in place to adopt one 
and, and we called for comments on what provisions should be mandatory 
in such plans.
    The Comments: CAPBOR and its members support the proposal and take 
the position that carriers should be required to audit their customer 
service plans every three years and submit the results of the audits to 
the Department for approval.
    Of the two individuals who commented on this issue, one supports 
the proposal and believes that carriers should all be required to have 
customer service plans and that audits should be standardized. The 
other also supports the proposal but believes that the Department 
should review a percentage of the audits every year.
    Of the other consumer associations, ACAP endorses CAPBOR's comments 
but adds its view that customer service plans are at present ``largely 
illusory exercises in public relations rather than genuine, 
enforceable, and measurable standards for customer service'' and 
concludes that therefore self-auditing of these plans would be 
meaningless. ACAP maintains that any auditors should be independent, 
that they should use the standards required for financial audits, and 
that the audits themselves should be ``reviewed and audited by [the 
Department] on a statistically significant sample basis to determine 
their effectiveness and validity.'' US PIRG concurs with CAPBOR; Public 
Citizen concurs with US PIRG and CAPBOR, and the National Consumers 
League concurs with US PIRG.
    NBTA doubts that self-audits of customer service plans would make 
these plans credible, so it favors giving the Department's IG the 
resources to conduct audits of carriers' customer service, whether or 
not they have adopted specific plans, and to make the results public. 
NBTA suggests that these audits be conducted every three years or more 
and ``at similar times in the year to provide accurate comparative 
information.''
    As for members of the industry, Delta, again the only carrier to 
comment individually, opposes the proposal as unnecessary. It contends 
that compliance with public customer service plans represents good 
business, particularly given the highly competitive state of the 
aviation marketplace at present. It contends that conducting a single, 
unified audit of compliance may not make sense, and it states that it 
has audit processes and controls in place within each of the business 
units involved in meeting its own service commitments. Rather than 
performing one comprehensive audit of all twelve points of its plan, 
Delta runs continuous quality assurance and performance management 
programs and has done so for many years. The carrier adapts these 
programs as appropriate to achieve its customer service goals. Delta 
therefore believes that a unified audit would be redundant and 
unnecessary. Delta also contends that aside from compliance with 
customer service plans being good business, a carrier's failure to 
comply with its plan is subject to enforcement by the Department. 
Audits are thus not necessary to give carriers a strong incentive to 
comply.
    Of the carrier associations that addressed this issue, NACA, with 
ACAA's endorsement, opposes independent auditing as an unnecessary 
added cost. ATA, with IATA's support, objects to external auditing but 
not to self-auditing. Also, ATA believes that the Department should 
require all carriers to adopt customer service plans, but it opposes a 
requirement that these plans be incorporated in carriers' contracts of 
carriage on the same grounds as those on which it opposes requiring 
incorporation in the contracts of carriage of contingency plans for 
lengthy tarmac delays.
    RAA is opposed to requiring all carriers operating any aircraft 
with more than 30 seats to adopt customer service plans reviewed by the 
Department and to audit their own compliance with these plans. The 
audits, it maintains, would impose significant expenses on the smaller 
carriers that are least able to afford them. RAA contends that many of 
the commitments in existing customer service plans would be 
inappropriate if applied to carriers that neither market nor sell air 
transportation directly to passengers and that do not enter into 
contracts of carriage with them. Moreover, it states that the major 
carriers that belong to ATA have already undertaken in their 
``Customers First 12-Point Customer Service Commitment'' to ensure good 
customer service by their code share partners.
    ACI-NA supports the proposal but did not specifically address it.
    Of the travel agency associations, ASTA asserts that carriers have 
a history of not living up to their customer service commitments and 
that therefore some form of auditing should be mandatory. It maintains, 
however, that auditing assumes specific standards by which performance 
can be empirically measured and tested, and ASTA does not see clearly 
how this could work in the context of customer service commitments. 
ASTA does not think that rulemaking is the appropriate means for 
devising auditing standards. ITSA did not address this issue.
    Proposed Rule: We have decided to propose a rule along the lines 
set forth in the ANPRM but with one significant addition, and again we 
invite comment from all interested persons. Specifically, our proposed 
new rule, 14 CFR part 259, would require every U.S. air carrier that 
accounts for at least one percent of domestic scheduled passenger 
revenue to adopt a customer service plan for its scheduled service and 
any public charter flights that it sells directly to the public and to 
adhere to this plan's terms, but unlike the proposal in the ANPRM, this 
proposed rule would require carriers to incorporate their customer 
service plans in their contracts of carriage. This incorporation would 
enable passengers to sue for breach of contract in the event that a 
carrier failed to adhere to its plan. We are proposing that this rule 
include public charter flights because the operating carrier is the 
party responsible for ensuring that charter passengers receive 
necessary and promised services. The rule would require each carrier to 
audit its own adherence to its plan annually and to make the results of 
its audits available for the Department's review for two years. At a 
minimum, each plan would have to address the same subjects as ATA's 
Customers First Customer Service Commitment (http://www.airlines.org/
customerservice/passengers/Customers_First.htm): Offering the lowest 
fare available, notifying consumers of known delays, cancellations, and 
diversions, delivering baggage on time, allowing reservations to be 
held or cancelled, providing prompt ticket refunds, properly 
accommodating disabled and special-needs passengers, meeting customers' 
essential needs during long on-aircraft delays, handling ``bumped'' 
passengers in cases of oversales with fairness and consistency, 
disclosing travel itinerary, cancellation policies, frequent flyer 
rules, and aircraft configuration,

[[Page 74600]]

ensuring good customer service from code-share partners, and improving 
response to customer complaints. The provision on meeting customers' 
essential needs during long on-aircraft delays would be required at 
least to refer to the carrier's contingency plan for lengthy tarmac 
delays. Failure to do any of the above would be considered an unfair 
and deceptive practice within the meaning of 49 U.S.C. 41712 and 
subject to enforcement action.
    In adopting this approach, we are tentatively rejecting consumers' 
arguments that the Department should set standards for the audits, 
review all audits, or even have them done by our IG. The comments do 
not persuade us that we are more qualified than the carriers to carry 
out audits. We are also tentatively rejecting carriers' arguments 
against requiring audits. We are concerned that some carriers may not 
be living up to their customer service commitments. By requiring the 
relevant carriers to adopt plans, incorporate them in their contracts 
of carriage, audit their own compliance, and make the results of their 
audits available for us to review, we intend to afford consumers better 
protection than they have experienced up to now. The plans would be 
enforceable not only by the Department under 49 U.S.C. 41712 but also 
by individual consumers or classes of consumers under state contract 
law. The auditing requirement should bring further pressure to bear on 
carriers to live up to their commitments. As in the case of the 
contingency plans for lengthy tarmac delays, we invite interested 
persons to comment on the implications of our creating a private right 
of action here, particularly potential benefits to passengers, 
potential negative consequences, and the costs to carriers. Would 
requiring incorporation lead to carriers' weakening their existing 
plans? We also invite those carriers that oppose self-auditing as 
unduly burdensome to provide evidence of the costs that they 
anticipate. We further invite comment on whether we should also require 
carriers to describe in their customer service plans the services they 
provide to mitigate passengers' inconvenience resulting from flight 
cancellations and missed connections and to specify whether they 
provide these services in all circumstances or only when the 
cancellations and missed connections have been within their control.

8. Retroactive Applicability of Amendments to Contracts of Carriage
    Although we are not proposing specific regulatory language on 
amendments to contracts of carriage here, we are considering adopting a 
rule to prohibit carriers from retroactively applying any material 
amendment to their contracts of carriage with significant negative 
implications for consumers to people who have already bought tickets. 
We would like commenters to address the implications of a carrier's 
being held to different contract terms vis-[agrave]-vis different 
passengers on the same flight if some bought their tickets before the 
contract of carriage was amended and some afterwards.

9. Effective Date

    We propose that any final rules that we adopt take effect 180 days 
after its publication in the Federal Register. We intend to afford 
carriers sufficient time to adopt their plans, modify their computer 
programs, and take other necessary steps to be able to comply with the 
new requirements before we begin enforcing them. We invite comments on 
whether 180 days is the appropriate interval for completing these 
changes.

Regulatory Notices

A. Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This action has been determined to be significant under Executive 
Order 12866 and the Department of Transportation's Regulatory Policies 
and Procedures. It has been reviewed by the Office of Management and 
Budget under that Order. A preliminary discussion of the proposed 
solutions to enhance airline passenger protections without creating 
undue burdens for the carriers is presented above and in the 
accompanying Regulatory Evaluation. On the cost side, we recognize that 
many of the measures suggested in this NPRM would impose costs for both 
implementation and operation on the entities that its proposed 
requirements would cover. The benefits we seek to achieve entail 
relieving consumers of the burdens they now face due to lengthy ground 
delays, chronically delayed flights, and other problems discussed in 
the NPRM. The benefits would be achieved by affording consumers 
significantly more information than they have now about delayed and 
cancelled flights and about how carriers will respond to their needs in 
the event of lengthy ground delays. Making this information accessible 
should not only alleviate consumers' difficulties during long delays 
but also enable them to make better-informed choices when booking 
flights. The Regulatory Evaluation has concluded that the benefits of 
the proposal appear to exceed its costs. A copy of the Regulatory 
Evaluation has been placed in the docket.

B. Executive Order 13132 (Federalism)

    This Notice of Proposed Rulemaking has been analyzed in accordance 
with the principles and criteria contained in Executive Order 13132 
(``Federalism''). This notice does not propose any regulation that has 
substantial direct effects on the States, the relationship between the 
national government and the States, or the distribution of power and 
responsibilities among the various levels of government. It does not 
propose any regulation that imposes substantial direct compliance costs 
on State and local governments. It does not propose any regulation that 
preempts state law, because states are already preempted from 
regulating in this area under the Airline Deregulation Act, 49 U.S.C. 
41713. Therefore, the consultation and funding requirements of 
Executive Order 13132 do not apply.

C. Executive Order 13084

    This notice has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because none of the 
options on which we are seeking comment would significantly or uniquely 
affect the communities of the Indian tribal governments or impose 
substantial direct compliance costs on them, the funding and 
consultation requirements of Executive Order 13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
The regulatory initiatives discussed in this NPRM would have some 
impact on some small entities, as is discussed in the Regulatory 
Evaluation, but I certify that it would not have a significant economic 
impact on a substantial number of small entities. We invite comment to 
facilitate our assessment of the potential impact of these initiatives 
on small entities.

E. Paperwork Reduction Act

    This NPRM proposes three new collections of information that would 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13, 49 U.S.C. 3501 et 
seq.)

[[Page 74601]]

Under the Paperwork Reduction Act, before an agency submits a proposed 
collection of information to OMB for approval, it must publish a 
document in the Federal Register providing notice of and a 60-day 
comment period on, and otherwise consult with members of the public and 
affected agencies concerning, each proposed collection of information.
    This NPRM proposes three new collections of information. The first 
is a requirement that certificated and commuter air carriers that 
operate domestic scheduled passenger service using any aircraft with 
more than 30 passenger seats retain for two years the following 
information about any ground delay that either triggers their 
contingency plans for lengthy tarmac delays or lasts at least four 
hours: the length of the delay, the cause of the delay, and the actions 
taken to minimize hardships for passengers. The Department plans to use 
the information to investigate instances of long delays on the ground 
and to identify any trends and patterns that may develop. The second is 
a requirement that each air carrier that accounts for at least one 
percent of scheduled domestic passenger revenue audit its own adherence 
to its Customer Service Plan annually and retain the results for two 
years. The Department plans to review the audits to monitor carriers' 
compliance with their plans and take enforcement action when 
appropriate. The third is a requirement that each air carrier that 
accounts for at least one percent of scheduled domestic passenger 
revenue and maintains a web site display information on each listed 
flight's on-time performance for the previous month. This information 
will help consumers to select their flights.
    For each of these information collections, the title, a description 
of the respondents, and an estimate of the annual recordkeeping and 
periodic reporting burden are set forth below:
    1. Requirement to retain for two years information about any ground 
delay that triggers the respondent's contingency plan for lengthy 
tarmac delays or lasts at least four hours.
    Respondents: Certificated and commuter air carriers that operate 
domestic scheduled passenger service using any aircraft with more than 
30 passenger seats.
    Estimated Annual Burden on Respondents: 0 to 9 hours and 50 minutes 
(570 minutes) per year for each respondent. The estimate was calculated 
by multiplying the estimated time to retain information about one 
ground delay (15 minutes) by the total number of ground delay incidents 
lasting at least four hours per respondent (0 to 38 incidents).
    Estimated Total Annual Burden: A maximum of 73 hours and 35 minutes 
(4,401 minutes) for all respondents. The estimate was calculated by 
multiplying the estimated time to retain information about one ground 
delay (15 minutes) by the total number of ground delay incidents 
lasting at least four hours in calendar year 2007 for the reporting 
carriers (276) and adding the product of the estimated time to retain 
information about one ground delay (15 minutes) multiplied by 6.3 
percent of the total number of ground delay incidents lasting at least 
four hours in calendar year 2007 for the reporting carriers (17.4). 
(The reporting carriers accounted for 93.7 percent of domestic 
scheduled passenger service, so we have assumed that nearly all of the 
remaining 6.3 percent was provided by other certificated and commuter 
carriers using aircraft with more than 30 passenger seats.)
    Frequency: 0 to 38 ground delay information sets to retain per year 
for each respondent. (N.b. Some air carriers may not experience any 
ground delay incident of at least four hours in a given year, while 
some larger air carriers could experience as many as 38 in a given year 
according to data on ground delays in calendar year 2007.)
    2. Requirement that each covered carrier retain for two years the 
results of its annual self-audit of its compliance with its Customer 
Service Plan.
    Respondents: Every U.S. air carrier that accounts for at least one 
percent of scheduled domestic passenger revenue (18 carriers).
    Estimated Annual Burden on Respondents: 15 minutes per year for 
each respondent. The estimate was calculated by multiplying the 
estimated time to retain a copy of the carrier's self-audit of its 
compliance with its Customer Service Plan by the number of audits per 
carrier in a given year (1).
    Estimated Total Annual Burden: A maximum of 4 hours and 30 minutes 
(270 minutes) for all respondents. The estimate was calculated by 
multiplying the time in a given year for each carrier to retain a copy 
of its self-audit of its compliance with its Customer Service Plan (15 
minutes) by the total number of covered carriers (18).
    Frequency: One information set to retain per year for each 
respondent.
    3. Requirement that each covered carrier display on its Web site, 
at a point before the consumer selects a flight for purchase, the 
following information for each listed flight regarding its on-time 
performance during the last reported month: the percentage of arrivals 
that were on time (with special highlighting if the flight was late 
more than 50 percent of the time), the percentage of arrivals that were 
more than 30 minutes late, and the percentage of flight cancellations.
    Respondents: Every U.S. carrier that accounts for at least one 
percent of scheduled passenger revenue, maintains a Web site, and is 
not already displaying the required information (15 carriers).
    Estimated Annual Burden on Respondents: 623 hours (37,380 minutes) 
in the first year and no more than 12 hours (720 minutes) in subsequent 
years for each respondent. The estimate for the first year was 
calculated by adding the estimated number of hours per respondent for 
developing its Web site for data posting (611 hours [36,660 minutes], 
the quotient of a one-time programming cost of $20,000 divided by 
$32.73, the median hourly wage for computer programmers) to the 
estimated number of hours for management of data links (12 hours [720 
minutes], estimated at one hour per month).
    Estimated total annual burden: 9,345 hours (560,700 minutes) in the 
first year and no more than 180 hours (10,800 minutes) in subsequent 
years for all respondents. The estimate for the first year was 
calculated by multiplying the number of hours per respondent for 
developing its Web site for data posting (611 hours) by the number of 
covered carriers (15) and adding the product of the number of hours per 
year for management of data links (12) and the number of covered 
carriers (15). The estimate for subsequent years was calculated by 
multiplying the number of hours per year for management of data links 
(12) by the number of covered carriers (12).
    Frequency: Development of Web site for data posting: 1 time for 
each respondent. Updating information for each flight listed on Web 
site: 12 times per year (1 time per month) for each respondent.
    The Department invites interested persons to submit comments on any 
aspect of each of these two information collections, including the 
following: (1) The necessity and utility of the information collection, 
(2) the accuracy of the estimate of the burden, (3) ways to enhance the 
quality, utility, and clarity of the information to be collected, and 
(4) ways to minimize the burden of collection without reducing the 
quality of the collected information. Comments submitted in response to 
this notice will be summarized or included, or both, in the request for 
OMB approval of these information collections.

[[Page 74602]]

F. Unfunded Mandates Reform Act

    The Department has determined that the requirements of Title II of 
the Unfunded Mandates Reform Act of 1995 do not apply to this notice.

List of Subjects:

14 CFR Parts 234 and 259

    Air carriers, Consumer protection, Reporting and recordkeeping 
requirements.

14 CFR Part 399

    Administrative practice and procedure, Air carriers, Air rates and 
fares, Air taxis, Consumer protection, Small business.

    For the reasons set forth in the preamble, the Department proposes 
to amend title 14, chapter II, subchapters A and F as follows:

PART 234--[AMENDED]

    1. The authority citation for part 234 continues to read as 
follows:

    Authority: 49 U.S.C. 329 and chapters 401 and 417.

    2. Section 234.11 is revised to read as follows:


Sec.  234.11  Disclosure to consumers.

    (a) During the course of reservations or ticketing discussions or 
transactions, or inquiries about flights, between a carrier's employees 
and the public, the carrier shall disclose upon reasonable request the 
on-time performance code for any flight that has been assigned a code 
pursuant to this part.
    (b) For each flight for which schedule information is available on 
its Web site, a reporting carrier shall display the following 
information regarding the flight's performance during the most recent 
calendar month for which the carrier has reported on-time performance 
data to the Department: the percentage of arrivals that were on time--
i.e., within 15 minutes of scheduled arrival time (including special 
highlighting if the flight was late more than 50 percent of the time), 
the percentage of arrivals that were more than 30 minutes late, and the 
percentage of flight cancellations. The information may be provided in 
either of the following ways:
    (1) By showing the percentage of on-time arrivals on the initial 
listing of flights and disclosing the remaining information on a later 
page at some stage before the consumer buys a ticket, or
    (2) By showing all of the required information via a hyperlink on 
the page with the initial listing of flights.
    (c) Each carrier shall load the information whose disclosure is 
required under paragraphs (a) and (b) of this section into its internal 
reservation system between the 20th and 23rd days of the month after 
the month for which the information is being provided.
    3. A new part 259 is added to read as follows:

PART 259--ENHANCED PROTECTIONS FOR AIRLINE PASSENGERS

Sec.
259.1 Purpose.
259.2 Applicability.
259.3 Definitions.
259.4 Contingency plan for lengthy tarmac delays.
259.5 Customer service plan.
295.6 Contract of carriage.
259.7 Response to consumer problems.

    Authority: 49 U.S.C. 40101(a)(4), 40101(a)(9), 40113(a), 41702, 
and 41712.


Sec.  259.1  Purpose.

    The purpose of this part is to mitigate hardships for airline 
passengers during lengthy tarmac delays and otherwise to bolster air 
carriers' accountability to consumers.


Sec.  259.2  Applicability.

    This rule applies to all certificated and commuter air carriers 
that operate domestic scheduled passenger service or public charter 
service using any aircraft with a design capacity of more than 30 
passenger seats, with the following exceptions:
    (a) Section 259.5 only applies to U.S. air carriers that account 
for at least one percent of domestic scheduled passenger revenue, and
    (b) Section 295.7 does not apply to charter service.


Sec.  259.3.  Definitions.

    (a) Certificated air carrier means a U.S. direct air carrier that 
holds a certificate issued under 49 U.S.C. 41102 to operate passenger 
service and/or cargo and mail service or an exemption from 49 U.S.C. 
41102.
    (b) Commuter air carrier means an air carrier as established by 14 
CFR 298.3(b) that carries passengers on at least five round trips per 
week on at least one route between two or more points according to 
published flight schedules and uses small aircraft.
    (c) Large hub airport means an airport that accounts for at least 
1.00 percent of the total enplanements in the United States.
    (d) Medium hub airport means an airport accounting for at least 
0.25 percent but less than 1.00 percent of the total enplanements in 
the United States.
    (e) Small aircraft means any aircraft originally designed to have a 
maximum passenger capacity of up to 60 seats.
    (f) Tarmac delay means the holding of an aircraft on the ground 
either before taking off or after landing with no opportunity for its 
passengers to deplane.


Sec.  259.4  Contingency plan for lengthy tarmac delays.

    (a) Adoption of plan. Each certificated air carrier and each 
commuter air carrier that operates scheduled domestic passenger service 
using any aircraft with a design capacity of more than 30 seats shall 
adopt a contingency plan for lengthy tarmac delays for its scheduled 
and public charter flights and shall adhere to this plan's terms.
    (b) Contents of plan. Each contingency plan for lengthy tarmac 
delays shall include, at a minimum, the following:
    (1) Assurance of the maximum amount of time that the air carrier 
will permit the aircraft to remain on the tarmac before proceeding to a 
gate and allowing passengers to deplane,
    (2) Assurance of adequate food, water, and lavatory facilities, as 
well as medical attention if needed, while the aircraft remains on the 
tarmac,
    (3) The amount of time on the tarmac that triggers the provision of 
the services enumerated in paragraph (b)(2) of this section,
    (4) Assurance of sufficient resources to implement the plan, and
    (5) Assurance that the plan has been coordinated with airport 
authorities at all medium and large hub airports that the carrier 
serves.
    (c) Amendment of plan. At any time, an air carrier may amend its 
contingency plan for lengthy tarmac delays to decrease the time 
intervals covered in paragraphs (b)(1) and (b)(3) of this section. An 
air carrier may also amend its plan to increase these intervals, in 
which case the amended plan shall apply only to those flights that are 
first offered for sale after the plan's amendment.
    (d) Retention of records. Each air carrier that is required to 
adopt a contingency plan for lengthy tarmac delays shall retain for two 
years the following information about any on-ground delay that either 
triggers its contingency plan or lasts at least four hours:
    (1) The length of the delay,
    (2) The cause of the delay, and
    (3) The actions taken to minimize hardships for passengers, 
including the provision of food and water, the maintenance and 
servicing of lavatories, and medical assistance.

[[Page 74603]]

Sec.  259.5  Customer service plan.

    (a) Adoption of plan. Each U.S. air carrier that accounts for at 
least one percent of scheduled domestic passenger revenue shall adopt a 
customer service plan for its scheduled flights and any public charter 
flights that it sells directly to the public and shall adhere to this 
plan's terms.
    (b) Contents of plan. Each customer service plan shall, at a 
minimum, address the following subjects:
    (1) Offering the lowest fare available,
    (2) Notifying consumers of known delays, cancellations, and 
diversions,
    (3) Delivering baggage on time,
    (4) Allowing reservations to be held or cancelled without penalty 
for a defined amount of time,
    (5) Providing prompt ticket refunds,
    (6) Properly accommodating disabled and special-needs passengers 
(At a minimum, this provision must refer to the air carrier's 
contingency plan for lengthy tarmac delays.),
    (7) Meeting customers' essential needs during long on-aircraft 
delays,
    (8) In the case of oversales, handling ``bumped'' passengers with 
fairness and consistency,
    (9) Disclosing travel itinerary, cancellation policies, frequent 
flyer rules, and aircraft configuration,
    (10) Ensuring good customer service from code-share partners, and
    (11) Improving response to customer complaints.
    (c) Self-auditing of plan and retention of records. Each air 
carrier that is required to adopt a customer service plan shall audit 
its own adherence to its plan annually and shall make the results of 
its audits available for the Department's review upon request for two 
years.


Sec.  259.6  Contract of Carriage.

    (a) Each air carrier that is required to adopt a contingency plan 
for lengthy tarmac delays shall incorporate this plan into its contract 
of carriage.
    (b) Each air carrier that is required to adopt a customer service 
plan shall incorporate this plan in its contract of carriage.
    (c) Each air carrier that has a Web site shall post its entire 
contract of carriage on this site.


Sec.  259.7  Response to consumer problems.

    (a) Designated advocates for passengers' interests. Each 
certificated air carrier and each commuter air carrier that operates 
scheduled domestic passenger service using any aircraft with a design 
capacity of more than 30 passenger seats shall designate an employee at 
its system operations center and at each airport dispatch center who 
shall be responsible for monitoring the effects of flight delays, 
flight cancellations, and lengthy tarmac delays on passengers. This 
employee shall have input into decisions on which flights to cancel and 
which to delay the longest.
    (b) Informing consumers how to complain. Each certificated air 
carrier and each commuter air carrier that operates scheduled domestic 
passenger service using any aircraft with more than 30 passenger seats 
shall provide the name, address, telephone number, and e-mail or web-
mail address of the person with whom or the office with which to file a 
complaint on its Web site, on all e-ticket confirmations, and, upon 
request, at each ticket counter and gate.
    (c) Response to complaints. Each certificated air carrier and each 
commuter carrier that operates scheduled domestic passenger service 
using any aircraft with a design capacity of more than 30 passenger 
seats shall acknowledge receipt of each complaint to the complainant 
within 30 days of receiving it and shall send a substantive response 
within 60 days of receiving it.

PART 399--[AMENDED]

    4. The authority citation for part 399 continues to read as 
follows:

    Authority: 49 U.S.C. 40101 et seq.

    5. Section 399.81 is revised to read as follows:


Sec.  399.81  Unrealistic or deceptive scheduling.

    (a) It is the policy of the Department to consider unrealistic 
scheduling of flights by any air carrier providing scheduled passenger 
air transportation to be an unfair or deceptive practice and an unfair 
method of competition within the meaning of 49 U.S.C. 41712.
    (b) With respect to the advertising of schedule performance, it is 
the policy of the Department to regard as an unfair or deceptive 
practice or an unfair method of competition the use of any figures 
purporting to reflect schedule or on-time performance without 
indicating the basis of the calculation, the time period involved, and 
the pairs of points or the percentage of systemwide operations thereby 
represented and whether the figures include all scheduled flights or 
only scheduled flights actually performed.
    (c) Chronically delayed flights.
    (1) This paragraph applies to each U.S. direct air carrier that 
holds a certificate issued under 49 U.S.C. 41102 to operate passenger 
service and/or cargo and mail service and that accounts for at least 
one percent of domestic scheduled passenger revenue.
    (2) It is the policy of the Department to consider any domestic 
flight that is operated at least 30 times in a calendar quarter and 
arrives more than 15 minutes late or is cancelled more than 70 percent 
of the time during that quarter to be chronically delayed.
    (3) For purposes of this paragraph, the Department considers all 
flights in a given city-pair market whose scheduled departure times are 
within 30 minutes of the most frequently occurring scheduled departure 
time to be one single flight.
    (4) It is the policy of the Department to consider any flight that 
is chronically delayed for three consecutive calendar quarters to be 
unrealistic or deceptive scheduling within the meaning of paragraph (a) 
of this section.

    Issued this 17th, day of November 2008, at Washington, DC.
Michael W. Reynolds,
Acting Assistant Secretary for Aviation and International Affairs.
[FR Doc. E8-28527 Filed 12-5-08; 8:45 am]

BILLING CODE 4910-9X-P