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[Federal Register: December 30, 2009 (Volume 74, Number 249)]
[Rules and Regulations]
[Page 68983-69004]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de09-1]
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Rules and Regulations
Federal Register
________________________________________________________________________
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[[Page 68983]]
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
Enhancing Airline Passenger Protections
AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).
ACTION: Final rule.
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SUMMARY: The Department of Transportation is issuing a final rule to
enhance airline passenger protections in the following ways: By
requiring air carriers to adopt contingency plans for lengthy tarmac
delays and to publish those plans on their Web sites; by requiring air
carriers to respond to consumer problems; by deeming continued delays
on 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, to publish those plans on
their Web sites, and audit their own compliance with their plans. The
Department took this action on its own initiative in response to the
many instances when passengers have been subject to delays on the
airport tarmac for lengthy periods and also in response to the high
incidence of flight delays and other consumer problems.
DATES: This rule is effective April 29, 2010.
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),
Daeleen.Chesley@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 the airport
tarmac. 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 the tarmac, causing the
passengers undue discomfort and inconvenience. We observed further that
passengers were also being harmed by the high incidence of less extreme
flight delays. We acknowledged that the industry and interested
observers have attributed both the lengthy tarmac waits and many of the
other flight delays to a number of factors besides weather, such as
capacity and operational constraints, for example. We also noted that
some of these issues are being addressed by the Federal Aviation
Administration (FAA) in other contexts.
Citing our authority and responsibility under 49 U.S.C. 41712, in
concert with 49 U.S.C. 40101(a)(4), 40101(a)(9) and 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
tentative proposals intended to ameliorate difficulties that passengers
experience without creating undue burdens for the carriers. The
measures on which we sought comment 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.
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.
In general, consumers and consumer associations maintained that the
Department's proposals did not go far enough, while 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 generally expressed support
for consumer protections.
On December 8, 2008, after reviewing and considering the comments
on the ANPRM, we issued a Notice of Proposed Rulemaking (NPRM). See 73
FR 74586 (December 8, 2008). The NPRM covered the following subjects:
Contingency plans for lengthy tarmac delays; carriers' responses to
consumer problems; chronically delayed flights; reporting certain
flight delay information; and customer service plans. It did not cover
complaint data on Web sites or reporting of on-time performance for
international flights, both of which were raised in the ANPRM. We
decided not to propose to require carriers to publish complaint data on
their Web sites because we believe the data would be of little or no
value to consumers since consumers already have access to a tabulation
of airline complaints filed by passengers with the Department in the
Air Travel Consumer Report. These complaints are a reliable indicator
of the types of complaints about air travel filed by passengers with
airlines. We also decided not to propose to require carriers to report
on-time performance of international flights for a number of reasons,
including concerns that a reporting requirement could make carriers
less inclined to hold flights for inbound connections resulting in
hardships for passengers in city-pairs with infrequent service.
The Department received 21 comments in response to the NPRM. Of
these, 10 comments were from members
[[Page 68984]]
of the industry and the rest came from consumers and consumer
associations. On the consumer side, eight individuals filed comments as
did three consumer advocacy organizations: Flyersrights.org (formerly
the ``Coalition for an Airline Passengers Bill of Rights'' or CAPBOR),
the Aviation Consumer Action Project (ACAP) and the Federation of State
Public Interest Research Groups (U.S. PIRG). Of the industry
commenters, two carriers (US Airways and ExpressJet Airways), and two
airport authorities (Dallas-Fort Worth International Airport and The
City of Atlanta Department of Aviation) filed comments. Three industry
associations filed comments: The National Business Travel Association
(NBTA), the Air Transport Association of America (ATA), and the
Regional Airline Association (RAA). Two travel agency associations, the
American Society of Travel Agents (ASTA) and the Interactive Travel
Services Association (ITSA), also filed comments, as did the Airports
Council International, North America (ACI-NA).
In general, the consumers and consumer associations maintain that
the Department's proposals do not go far enough and contend that
additional regulatory measures are needed to better protect consumers.
One of the consumer organizations also expressed disappointment that
the Department eliminated two of the proposals, while industry
commenters generally supported that decision. Overall, carriers and
carrier associations continue to characterize some of the proposals as
unnecessary and unduly burdensome. ATA also expressed a number of
concerns with the Department's preliminary regulatory evaluation and
suggests changes are best made by addressing weather-related and air
traffic control related issues. The airport authorities support
carriers having a contingency plan and coordination of the plans at
medium and large hub airports, while the travel agency associations
expressed support for consumer protections, with one noting a concern
with ``unfunded mandates'' on travel agents to address problems for
which they are not the cause. The commenters' positions that are
germane to the specific issues raised in the NPRM are set forth below.
The Department plans to seek comment on ways to further enhance
protections afforded airline passengers in a forthcoming notice of
proposed rulemaking by addressing the following areas: (1) Review and
approval of contingency plans for lengthy tarmac delays; (2) reporting
of tarmac delay data; (3) standards for customer service plans; (4)
notification to passengers of flight status changes; (5) inflation
adjustment for denied boarding compensation; (6) alternative
transportation for passengers on canceled flights; (7) opt-out
provisions where certain services are pre-selected for consumers at
additional costs (e.g., travel insurance, seat selection); (8) contract
of carriage venue designation provisions; (9) baggage fees disclosure;
(10) full fare advertising; and (11) responses to complaints about
charter service.
Comments and Responses
Tarmac Delay Contingency Plans
1. Covered Entities
The NPRM: Under the proposed rule, a certificated or commuter air
carrier \1\ that operates domestic scheduled passenger service or
public charter service using any aircraft with 30 or more passenger
seats \2\ would be required to develop and implement a contingency plan
for lengthy tarmac delays. As proposed, it would apply to all of a
covered U.S. carrier's flights, both domestic and international,
including those involving aircraft with fewer than 30 seats if a
carrier operates any aircraft with 30 or more passenger seats. We asked
for comments on whether the Department should limit this section's
applicability to carriers that operate large aircraft--i.e., aircraft
originally designed to have a maximum passenger capacity of more than
60 seats--and we asked proponents and opponents of this alternative to
provide arguments and evidence in support of their positions.
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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
under the authority of Part 298 and is not a commuter air carrier as
defined in that rule. 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.
\2\ We inadvertently stated ``aircraft with a design capacity of
more than 30 seats'' in several sections of the NPRM. However, our
intention had been to state ``aircraft with a design capacity of 30
or more seats.''
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Comments: We did not receive any comments from individual consumers
or consumer groups regarding which carriers should be required to
develop and implement contingency plans for lengthy tarmac delays. We
did receive comments on this point from carriers, carrier associations,
and airports.
RAA takes the position that, if the rule is adopted, it should
apply only to those carriers that hold out services to the public,
ticket passengers, offer reservation services and control decisions
regarding delays and food and beverage service. RAA states that over 90
percent of passengers flying on regional aircraft travel on flights
that are ticketed and handled by mainline carriers who schedule the
flights, and that most regional carriers have no direct interaction
with consumers in this regard. RAA also notes that these passengers'
contracts of carriage are with the major carrier, not the regional
airline, and that a regional carrier follows the contingency plan of
its mainline airline partner. RAA explains that regional airlines that
operate under agreements with more than one network partner must in
some cases comply with different contingency plans at the same airport.
According to RAA, at times multiple network carrier contingency plans
could be in effect and even in conflict on the same flight in instances
where a regional airline operates a single flight for several different
network carriers. As such, RAA contends that requiring a regional
carrier to have its own plan would increase the conflicts and
inconsistencies that could arise as it is not clear if the regional
carrier's own contingency plan would supersede the contracts of the
carriers who marketed and sold the ticket to the consumer. RAA further
asserts that as proposed the rule unfairly targets regional carriers,
which do not make scheduling and/or delay decisions and are most often
the first carriers to be subjected to FAA ground stops.
ExpressJet Airlines agrees with the comments submitted by RAA. It
emphasizes that regional carriers operate under code-share agreements
with mainline carriers and that those contracts dictate scheduling,
delay, and cancellation decisions. It asserts that, as a result of a
regional carrier having limited control over these decisions, the rule
would impose unfair burdens on regional carriers. ExpressJet comments
that, should the Department require carriers to have a contingency
plan, all Part 121 and 135 carriers should have to abide by the
regulations, not just carriers which operate aircraft having 30 or 60
seats or more, since, it is the carrier's opinion, the rule as proposed
discriminates against the larger of the small regional carriers.
ACI-NA opposes limiting the application of the rule to air carriers
that
[[Page 68985]]
operate aircraft with more than 60 seats and notes that the rule should
extend to regional airlines as they serve the vast majority of
airports. ASTA also opposes limiting the application of the rule to
carriers that operate large aircraft and asserts that the proposal
should be extended to all carriers, pointing out that the regional
airlines carried 160 million passengers in 2007.
US Airways suggests that airports, as well as other service
providers, should be held equally accountable as a fair way to share
the burden among regulated entities, and that international operations
should not be part of the proposed requirements. ATA, which strongly
opposes any requirement for hard time limits for returning to a gate
and/or deplaning passengers remotely, specifically requests that
international flights be excluded from any hard time limits, (1) due to
the difficulty associated with accommodating passengers if flights are
cancelled, (2) because those flights are better equipped to keep
passengers comfortable for longer periods of time, and (3) because the
time, costs, and planning associated with those flights is much higher.
DOT Response: After fully considering the comments received, the
Department maintains that it is reasonable to apply the requirement to
any certificated or commuter U.S. air carrier that operates passenger
service using any aircraft with a design capacity of 30 or more
passenger seats. In determining to do so, we note that, according to
RAA's own statistics, regional airlines now carry one out of every five
domestic air travelers in the United States. Moreover, most regional
flights are operated by regional carriers affiliated with a major
carrier via a code-share agreement, a fee-for-service arrangement, and/
or an equity stake in the regional carrier. DOT statistics also
demonstrate a substantial number of passengers are carried on flights
operated by aircraft with 30 through 60 seats. According to data from
the Department's Bureau of Transportation Statistics (BTS), a total of
668,476,000 domestic passengers were transported in 2008, 96,310,000 of
which were on flights using aircraft with 30 through 60 seats. The
large number of passengers carried on such aircraft accompanied by the
increase in the ``branding'' of those operations with the codes of
major carriers has blurred the distinction between small-aircraft and
large-aircraft service in the minds of many passengers. As such, it
seems appropriate to extend the rule to these operations in order to
better protect the majority of consumers.
In reaching this decision, we have concluded that we cannot agree
with RAA's reasoning that regional carriers should be treated
differently than their mainline code-share partners and not be
responsible to the passengers they transport on the vast majority of
their operations because of their relationships to those partners. We
recognize that the larger carrier's personnel may provide pre-flight
services and make most of the decisions from an operational standpoint
on code-shared flights with a regional carrier. As we pointed out in
the NPRM, however, even if the determination to cancel a flight or keep
it on the tarmac is made by the mainline carrier or results from action
by the FAA, it is the carrier operating the flight that has direct
contact with the passengers on the aircraft during a tarmac delay and
that remains directly responsible for serving them. Accordingly, we
have decided to apply the rule to both carriers in a code-share
arrangement. We expect that the mainline carriers and their regional
code-share partners will collaborate on their contingency plans to come
up with standards that suit both parties. When multiple network carrier
contingency plans are effective on a single flight operated by a
regional carrier, it would likely not be practical for the regional
carrier to apply different standards to individuals on the same flight
who bought their tickets from different mainline partners. Instead, we
expect the regional carrier to choose to use the contingency plan that
is most beneficial to all the passengers on that flight.
With regard to the international flights of U.S. carriers, while we
understand the concerns about applying hard time limits on deplaning
passengers on international flights because of the different
environment in which those flights operate, we believe that it is still
important to ensure that passengers on international flights are also
afforded protection from unreasonably lengthy tarmac delays. Therefore,
we have decided to apply the requirement to develop and implement a
contingency plan for lengthy tarmac delays to both the domestic and
international flights of each U.S. carrier operating any aircraft with
30 or more passenger seats. This requirement applies to U.S. carriers
even if they operate only international scheduled or charter service.
However, we have arrived at more flexible requirements with regard
to the content of the contingency plans for a U.S. carrier's
international flight (i.e., flexibility to determine the time limit to
deplane passengers on tarmac) as compared to its domestic flights,
recognizing that international flights operate less frequently than
most domestic flights, potentially resulting in much greater harm to
consumers if carriers cancel these international flights. Although
carriers are free to establish their own tarmac delay time limits for
international flights, and even to have different limits for different
specified situations, these limits must be included in each carrier's
contingency plan--they are not to be ad hoc decisions made during the
course of a flight delay.
An international flight for purposes of this requirement is a
nonstop flight segment that takes off in the United States and lands in
another country, or vice-versa, exclusive of non-traffic technical
stops. For example, if a U.S. carrier operates a direct flight Chicago-
New York-Frankfurt, with some Chicago-originating passengers destined
for New York and others destined for Frankfurt, and the aircraft
experiences a tarmac delay in Chicago, then we would consider the
tarmac delay to be on a domestic flight. This is because Chicago-New
York is a domestic flight segment even though the final destination of
the flight is Frankfurt, Germany. If, on the other hand, the aircraft
only stops for refueling or a crew change in New York and the airline
carries no Chicago-New York traffic, then we would consider the tarmac
delay in Chicago to be a tarmac delay on an international flight.
We have decided against applying this requirement to carriers that
operate using only aircraft with fewer than 30 seats because these
entities carry a very small percentage of passenger traffic and we are
not aware of incidents of lengthy tarmac delays involving carriers that
only operate aircraft of this size (i.e., carriers that exclusively
operate aircraft with a design capacity of 29 passenger seats or less).
We note that the requirement to develop and implement contingency plans
applies to carriers who have any aircraft with 30 or more seats,
meaning that it would apply to all aircraft of those carriers,
including those with fewer than 30 seats.
2. Content of Contingency Plan
The NPRM: Under the NPRM, each plan would have been required to
include at least the following: The maximum tarmac delay that the
carrier would permit; the amount of time on the tarmac that would
trigger the plan's terms; an assurance of adequate food, water,
lavatory facilities, and medical attention, if needed, while the
aircraft remains on the tarmac; an assurance of sufficient resources to
implement the plan; and an assurance that the plan has
[[Page 68986]]
been coordinated with all of the airport authorities at medium and
large hub U.S. airports served by the carrier. We specifically asked
for comment on whether the Department should set a uniform standard for
the time interval that would trigger the terms of carriers' contingency
plans and a time interval after which carriers would be required to
allow passengers to deplane. If establishing a time interval was
recommended, we asked commenters to propose specific amounts of time
and explain why they believe those time intervals to be appropriate.
Comments: Consumer associations and individuals generally support a
stronger proposal than that proposed by the Department. For example,
Flyersrights.org continues to maintain that the Department should
establish minimum standards for contingency plans through regulation
and should also review and approve the plans rather than allow each
carrier the leeway to set what it fears might be overly lax standards.
Specifically, the organization requests that the Department set a
``three hours plus'' time limit for an aircraft to return to the gate
and deplane passengers, if the pilot determines this can be
accomplished safely. It also requests that in any rule proposed or
adopted, we refer to ``potable water'' and ``operable lavatories''
rather than simply ``water'' and ``lavatory facilities'' respectively.
Other consumer associations concur with Flyersrights.org. ACAP
asserts that this proposal is ``an unlawful delegation of DOT authority
and responsibility to regulate airlines in the public interest by
delegating this function to the airlines themselves'' and that the
proposal will lead to a multiplicity of unenforceable ``standards'' and
``plans'' that will offer fewer passenger protections. ACAP also
suggests three hours as the maximum interval before passengers are
allowed to deplane and, without being specific, suggests payments
should be made to passengers who are confined for longer periods of
time.
Individual commenters make similar points. For example, they tend
to think the Department should set minimum standards, particularly
regarding the amount of time that triggers the provisions of the
contingency plans and the maximum amount of time an aircraft can remain
on the tarmac before the carrier must return the aircraft to a gate and
allow passengers to deplane. Some comments also suggested specific
times to trigger the terms of a carrier's contingency plan and/or for
passengers to be allowed to deplane. For example, one commenter
suggested 1.5 hours and three hours, respectively.
The industry commenters expressed a different point of view. NBTA
stated that it does not support DOT requiring carriers to develop
contingency plans and specifically the content of those plans. It does
support the recommendations issued by the Tarmac Delay Task Force, but
does not believe plans should be required by regulation; rather, NBTA
contends that airlines, under marketplace constraints, are more likely
to resolve tarmac delay issues in a manner most beneficial to the
largest number of passengers.
ATA agrees in principle that carriers should have contingency plans
covering lengthy tarmac delays on domestic flights, 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 reports that carriers already have both general
contingency plans and airport-specific contingency plans that reflect
the diverse facilities, equipment and network of each carrier. ATA
notes that the Tarmac Delay Task Force recommends coordination among
air carriers, airports, and the appropriate government agencies, and
supports coordinating contingency plans with airports, but notes that a
carrier cannot force an airport to cooperate in that coordination. As
such, ATA thinks this part of the proposed rule should not be adopted,
but if it is, suggests that some changes are necessary to ensure, for
example, that a carrier is not held responsible for the airport's
failure to provide services within its control or for an airport's
failure to coordinate with a carrier in executing a plan.
ATA continues to oppose any requirement for a set interval of time
after which an aircraft must be returned to the gate, particularly on
international flights, claiming that such a requirement would do
passengers more harm than good and equate to artificial scheduling
restrictions. Among the potential negative consequences ATA lists are
potential conflicts with government agency directives governing safety
or security that could require that passengers be kept on aircraft, and
increased flight cancellations in any one place that could affect
passengers further down the line. In addition, ATA suggests that, if
the proposal is adopted, the Department should include an exception
that exempts carriers from the rule if returning to the gate would
conflict with orders of the FAA or other agencies (e.g., Customs &
Border Protection), and notes, among other things, that in weather
delay situations taxiway configurations are such that returning to the
gate may not even be possible.
In general, RAA maintains that the rule requiring contingency plans
should not be adopted because, it contends, the rule will not solve the
current delay problem and the Department should instead focus on
initiatives that increase the efficiency of the Air Traffic Control
(ATC) system. Regarding the content of contingency plans, similar to
ATA, RAA maintains that the Department should permit airlines to adopt
their own plans that allow flexibility and reflect their own
circumstances, capabilities, and passenger service standards. RAA also
asserts that the proposed requirement of providing ``adequate'' food
and water is unreasonable and impracticable for regional airlines
because most regional airlines have no catering facilities and do not
have storage room on smaller aircraft for contingency supplies. RAA
further states that regional airlines serve small community airports
that do not have vendors or facilities from which the airlines could
readily obtain supplies of food and water.
Similar to comments of the airline associations, US Airways
believes that a rule will not reduce tarmac delays, as those delays
occur due to circumstances outside a carrier's control (i.e., weather,
ATC system, etc.), and states that it already has a plan in place that
addresses how to handle a tarmac delay of longer than one hour. US
Airways states that a carrier should not be mandated to return to the
gate at a fixed time, rather this decision should be left to carrier
expertise, and that forcing an aircraft to return to the gate at a
fixed time may lead to more flight cancellations. Additionally, the
carrier notes that it has improved its own performance based on
pressure from market forces. ExpressJet Airlines, who also asserts that
most delays are beyond the direct control of carriers, thinks that a
DOT rule could have unintended consequences for the consumer, which
could lead to increased flight cancellations.
Of the airports and airport authorities that commented on this
proposal, Dallas-Fort Worth International Airport approves of the
elements of the rule that require air carriers to (1) develop and
implement contingency plans for lengthy tarmac delays, (2) include in
their plan the maximum delay that will trigger the plan's terms in
order to provide adequate warning to service providers that may be
called upon for support during the event, and (3) ensure that the plan
has been coordinated with airport authorities at large and medium hub
airports that the carrier serves. It also states that ``coordination of
each air
[[Page 68987]]
carrier's contingency plans with the airports they serve is an
important part of this process to enable shared situational awareness
and timely response to lengthy delay events in an effective manner.''
The City of Atlanta, Department of Aviation, supports the guidance
as provided by the DOT Tarmac Delay Task Force, and the Department's
proposal for carriers to coordinate contingency plans for lengthy
tarmac delays with medium and large hub airports. It states that 2
hours is an appropriate time to trigger the terms of a carrier's
contingency plan and agrees that passengers should be provided basic
services as proposed by the Department. Finally, it states that
carriers' plans should provide for communication, coordination, and
collaboration among airport operator, airlines, Federal agencies, and
other service providers.
ACI-NA supports the proposal, in general. ACI-NA opines that DOT
should not impose a maximum time limit for deplaning passengers during
lengthy tarmac delays and that airport-specific plans should not be
required, in order to give airlines flexibility, but it does support
requiring carriers to post information regarding their plans at their
ticketing and gate areas. ACI states that DOT should review the plans
prior to their implementation and that airlines should coordinate their
plans with all airports at which they provide scheduled or charter
service, not just medium and large hub airports. ACI also suggests a
template be developed that can be used to assist airlines and airports
in addressing the appropriate elements for coordination.
As for the travel agency associations, ASTA strongly supports the
notion of carriers adopting and complying with contingency plans and
believes that the DOT should review the plans to ensure they contain
specific promises that are enforceable. ASTA also supports the
imposition of a single mandatory deplanement time limit, the three
hours provided in the legislation introduced by Senators Boxer and
Snowe and Representative Mike Thompson. However, in its initial
comments, ASTA took a different position and opposed the Federal
government mandating a specific time after which passengers must be
deplaned. Rather, it suggested allowing each carrier to adopt its own
time limits for each requirement, and requiring carriers to publish
their policies in print ads and on their Web sites. ITSA did not
comment on this proposal.
DOT Response: We have decided to adopt a final rule along the lines
set forth in the NPRM, with one important exception: We are
strengthening the protections for consumers from those initially
proposed by setting time limits (1) for carriers to provide food and
water to passengers; and (2) to deplane passengers when lengthy tarmac
delays occur on domestic flights. In adopting this approach, we have
carefully considered all the comments in this proceeding and believe
that our action strikes the proper balance between permitting carriers
the freedom to make marketplace-based decisions while ensuring
consumers can count on receiving the protections they deserve in the
unlikely event of an extended tarmac delay.
The final rule requires that each plan include, at a minimum, the
following: (1) An assurance that, for domestic flights, the air carrier
will not permit an aircraft to remain on the tarmac for more than three
hours unless the pilot-in-command determines there is a safety-related
or security-related impediment to deplaning passengers (e.g.,kiiii
weather, air traffic control, a directive from an appropriate
government agency, etc.), or Air Traffic Control advises the pilot-in-
command that returning to the gate or permitting passengers to
disembark elsewhere would significantly disrupt airport operations; (2)
for international flights that depart from or arrive at a U.S. airport,
an assurance that the air carrier will not permit an aircraft to remain
on the tarmac for more than a set number of hours, as determined by the
carrier in its plan, before allowing passengers to deplane, unless the
pilot-in-command determines there is a safety-related or security-
related reason precluding the aircraft from doing so, or Air Traffic
Control advises the pilot-in-command that returning to the gate or
permitting passengers to disembark elsewhere would significantly
disrupt airport operations; (3) for all flights, an assurance that the
air carrier will provide adequate food and potable water no later than
two hours after the aircraft leaves the gate (in the case of a
departure) or touches down (in the case of an arrival) if the aircraft
remains on the tarmac, unless the pilot-in-command determines that
safety or security requirements preclude such service; (4) for all
flights, an assurance of operable lavatory facilities, as well as
adequate medical attention if needed, while the aircraft remains on the
tarmac; (5) an assurance of sufficient resources to implement the plan;
and (6) an assurance that the plan has been coordinated with airport
authorities at all medium and large hub airports that the carrier
serves, including medium and large hub diversion airports. Failure to
do any of the above would be considered an unfair and deceptive
practice within the meaning of 49 U.S.C. Sec. 41712 and subject to
enforcement action, which could result in an order to cease and desist
as well as the imposition of civil penalties.
There is little, if any dispute that passengers stuck on an
aircraft during a lengthy tarmac delay deserve to be provided some type
of food, potable water, working lavatories, and, if necessary, medical
care. We believe a two-hour time limit is a reasonable maximum time
after which carriers should ensure that passengers experiencing a
tarmac delay are provided food and potable water. Carriers, of course,
are free to establish an earlier time at which they will provide these
services. As pointed out by ATA and confirmed in reports to Congress by
the Department's Inspector General, most large carriers already have
contingency plans providing for such services. As for RAA's assertion
that most regional airlines lack the resources to provide adequate food
and water during lengthy tarmac delays, it seems to be based on a
misconception that extensive supplies are needed. The Department would
consider snack foods such as pretzels or granola bars that carriers
typically provide on flights to suffice as ``adequate'' food. We have
clarified in this rule, as suggested by at least one commenter, that
the water required under our rule must be ``potable,'' i.e., drinking
water.
We are also persuaded that the Department should require a set time
limit, in the case of domestic flights, for the point in time after
which carriers would be required to allow passengers to deplane, with
exceptions for issues related to safety, or security or other
government requirements that may arise. Passengers on flights delayed
on the tarmac have a right to know that there is a reasonable limit and
that the limit will be enforced by the Department. We conclude that a
three-hour time limit is the maximum time after which passengers must
be permitted to deplane from domestic flights given the cramped, close
conditions on aircraft and the typical scheduled time for these
flights. We have not selected a maximum delay time of less than three
hours because taxi times of an hour or more are not unusual at certain
large airports, such as the New York airports. By holding the airlines
to a bright line rule of three-hours after which passengers must be
deplaned, the Department has
[[Page 68988]]
established a tarmac delay limit that is both reasonable and easier to
enforce.
While we agree with consumers and consumer groups that passengers
should have protection from remaining on an aircraft on the tarmac for
an extended period of time, we agree with ATA and other commenters that
operational and safety-related concerns, such as ATC-related concerns
or an inability to return to the gate without delaying other aircraft,
should be taken into consideration. Thus, we have also included an
exception for safety, security, or instances where Air Traffic Control
advises the pilot-in-command that returning to the gate or permitting
passengers to disembark elsewhere would significantly disrupt airport
operations. We believe this strikes an appropriate balance between
allowing air carriers flexibility to address their operational concerns
while also providing passengers with a reasonable time after which they
can expect to return to the gate and deplane, as well as make alternate
travel arrangements, if necessary. Those arrangements could include re-
boarding the same aircraft if the carrier decides to continue the same
flight to its original destination, in which case a new three-hour
period would begin when the aircraft left the gate. The Department
views the three hour time limit as the outside limit at which time an
aircraft should have returned to the gate or another appropriate
disembarkation area in order to deplane passengers. If the carrier has
reason to know that a gate or other appropriate means by which to
deplane passengers will not be available at the three hour mark, we
expect the carrier to make reasonable attempts to deplane passengers
earlier.
With regard to deplaning passengers on international flights, we
are persuaded by comments that mandating a specific time frame for
deplaning passengers on these flights may be harmful to consumers
because of the different environment in which those flights operate.
Because international flights are of much longer duration on average,
it is possible that delays may not have as negative an impact on
consumers and their expectations. Also, because international flights
tend to operate less frequently than most domestic flights, flight
cancellations may result in much greater harm to consumers who are less
likely to be accommodated on an alternate flight in a reasonable period
of time. As such, while this rule requires U.S. carriers to establish
time limits for deplaning passengers who experience lengthy tarmac
delays on international operations, we are permitting carriers the
flexibility to determine this time limit. This limit will also allow
exceptions for consideration of safety, security and instances where
Air Traffic Control advises the pilot-in-command that returning to the
gate or permitting passengers to disembark elsewhere would
significantly disrupt airport operations. We note that the Department
is considering revisiting the issue of whether carriers should set
specific time limits to deplane passengers on international flights in
a supplemental notice of proposed rulemaking.
Some consumer groups and individuals requested that the Department
include in the rule a requirement that the contingency plans be filed
with and be reviewed and approved by the Department. Such a requirement
is beyond the scope of this rulemaking. Moreover, we are not convinced
that this requirement is necessary or the best use of Department
aviation consumer protection resources at this time. Carriers are
required to adhere to all Department rules, and it would be a departure
from Department practice to require carriers to file with it proof that
they have done so. The Department and its predecessor in such matters,
the Civil Aeronautics Board, have issued numerous other consumer
protection rules that detail specific requirements carriers must follow
without having carriers file with the government proof that they have
or are prepared to comply with the rule. We see some merit in approving
carrier contingency plans if the Department were to dictate more
detailed requirements regarding their contents and we plan to explore
this approach in a future rulemaking. In the meantime, we will review
the larger carriers' plans and, randomly, other carriers' plans within
a year of the rule's effective date to ensure the plans contain the
provisions as required by this rule.
With regard to coordination of plans, because tarmac delays are
particularly problematic in situations where flights must be diverted
from their intended destination airports, this rule requires carriers
to coordinate their plans not only with medium and large hub airports
to which they regularly operate, but also with airports that serve as
diversion airports for such operations. The Department is not convinced
by comments that it should remove the requirement for airlines to
coordinate with airports because a carrier cannot force an airport to
cooperate in that coordination. It is essential that airlines involve
airports in developing their plans to enable them to effectively meet
the needs of passengers. As recommended by the Tarmac Delay Task Force,
we also urge carriers to include in their coordination efforts
appropriate government authorities such as Customs and Border
Protection and the Transportation Security Administration, when
appropriate.
3. Incorporation of Contingency Plan Into Contract of Carriage
The NPRM: The NPRM proposed that each covered carrier would be
required to incorporate its plan in its contract of carriage and make
its contract of carriage available on its Web site. We also invited
interested persons to comment on the implications of a private right of
action based on a carrier's failure to follow the terms of its
contingency plan and to address the potential for multiple lawsuits by
classes as well as individual plaintiffs and the potential for
inconsistent judicial decisions among various jurisdictions.
Additionally, we asked commenters to address whether and to what extent
requiring the incorporation of contingency plans in carriers' contracts
of carriage might weaken existing plans by making carriers more
reluctant to be specific and possibly expose themselves to liability.
Comments: Flyersrights.org supports requiring carriers to
incorporate their contingency plans into their contracts of carriage in
order to provide passengers an avenue for redress for breach of
contract. ASTA also strongly supports the notion of carriers
incorporating the contingency plans into their contract of carriages in
order to enable consumers to more effectively enforce their rights.
With regard to the potential for inconsistent judicial decisions if
airlines must include their plans in their contracts of carriage, ASTA
points out that this means merely that airlines will face the same
litigation risks that all businesses face, and notes that the Task
Force recommendations can be used as a defense.
According to RAA, regional carriers should not be required to
incorporate a contingency plan into their contract of carriage because
most regional passengers are subject to the ticketing carrier's
contract of carriage. ExpressJet also states that, because a passenger
is flying under the contract of carriage of the mainline carrier, a
passenger's recourse should be against the mainline carrier, and not
the regional carrier.
ATA explains that it shares the Department's goal of enhancing
service for airline passengers but disagrees that rules are required to
achieve this goal and strongly opposes incorporation of a contingency
plan into a contract of carriage. ATA challenges the Department's legal
authority to do this
[[Page 68989]]
in the aftermath of deregulation. ATA argues that the Department may
not substitute a different enforcement process other than the one
Congress intended (i.e., there should not be a private right of action
for violations of section 41712) and states that such an imposition
would subject carriers to the vagaries of law in the fifty States.
DOT Response: The Department disagrees with the arguments of ATA
and other carrier commenters that we lack the authority to require
incorporation of contingency plans in contracts of carriage and that
such incorporation would subject carriers to the risk of inconsistent
standards among various jurisdictions. However, the Department has
decided that it will not require such incorporation at this time.
Instead, the Department strongly encourages carriers to incorporate the
terms of their contingency plans in their contracts of carriage, as
most major carriers have done voluntarily with respect to their
customer service plans. At the same time, the Department will undertake
a series of related measures to ensure the dissemination of information
regarding each airline's contingency plans. As proposed in the NPRM,
the Department requires that each air carrier with a Web site post its
entire contract of carriage on its Web site in easily accessible form,
including all updates to its contract of carriage. The Department also
requires each air carrier with a Web site that chooses not to include
their plan in its contract of carriage post the plan itself on its Web
site in easily accessible form. Finally, the Department will shortly
commence a new rulemaking proceeding addressing possible further
enhancements to airline passenger protection in which it may consider,
among other things, whether the voluntary incorporation of contingency
plan terms urged here has resulted in sufficient protection for air
travelers.
The airlines' incorporation of their contingency plans into their
contracts of carriage is an important means of providing notice to
consumers of their rights, since that information will then be
contained in a readily available source. Carriers' contracts of
carriage are generally posted online and must, by Department rule, be
available at airports. Better informed consumers will further improve
the Department's enforcement program as consumers are more likely to
know of and report incidents where airlines do not adhere to their
plans. Better consumer information will also create added incentive for
carriers to adhere to their plans. We believe the incorporation of
airline contingency plans in contracts of carriage to be in the public
interest.
For these reasons, we strongly encourage carriers to include their
contingency plans in their contracts of carriage and are requiring that
carriers with a Web site post either their contracts of carriage
containing the plans or the plans themselves (if they chose not to
include the plans in their contracts of carriage) on their Web sites in
easily accessible form. Additionally, to provide carriers with added
incentive to incorporate their plans into their contracts of carriage,
we will publicize a list of carriers that do and do not so incorporate
their plans via regular press releases, the Department's Web site, and
other means available to us. We will also be closely monitoring
carriers' responses to our efforts in this regard and will not hesitate
to revisit our decision here in the airline consumer protection
rulemaking that we plan to commence in the near future. Finally, if
necessary, we will consider using our authority to condition carrier
certificates, as required in the public interest, to ensure that our
consumer protection goals are met. See 49 U.S.C. 41109.
As noted above, while the Department has decided not to require at
this time incorporation of contingency plans in airline contracts of
carriage, we disagree with ATA's contentions that we lack the authority
to require such incorporation and that the exercise of such authority
would risk creating inconsistent standards across jurisdictions. Our
broad authority under 49 U.S.C. 41712 to prohibit unfair and deceptive
practices, and under 49 U.S.C. 41702 to ensure safe and adequate
transportation, clearly encompasses the regulation of contingency
plans. We have consistently exercised that authority for decades and
will continue to do so. Moreover, while we have chosen not to require
the incorporation of contingency plans in airline contracts of carriage
at this time, there is nothing new, or unfair to carriers, about
airlines being subject, through civil proceedings in State courts, to
action for failing to comply with their contracts of carriage for air
transportation. To the contrary, carriers have historically been
subject to such actions and, indeed, the Department has for years
published advice to consumers about pursuing claims against airlines,
if necessary, in appropriate State small claims courts precisely
because the Department has no authority to adjudicate individual claims
and make monetary awards.
4. Retention of Records
The NPRM: The NPRM proposed that covered carriers retain for two
years the following information for any tarmac 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.
Comments: ATA questions the need for the proposed record-retention
requirement covering lengthy tarmac delays, asserting that the
Department's BTS already has reporting requirements covering similar
issues, with the exception of how carriers respond to delay situations.
With regard to this category of information, ATA suggests that a record
retention requirement of six months would be sufficient and argues that
retention of record for long periods of time will impose additional and
unnecessary costs.
DOT Response: The Department does not believe that it is advisable
to remove the record-retention requirement for a number of reasons.
First, certificated U.S. carriers that account for at least one percent
of domestic scheduled passenger revenue currently provide delay data to
BTS but the requirement to retain information for lengthy tarmac delays
under this final rule would apply to additional carriers--any
certificated or commuter air carrier that operates scheduled passenger
service or public charter service using any aircraft with 30 or more
passenger seats. Second, most of the delay information that this rule
requires carriers to retain is more specific than the delay data the
largest airlines currently submit to BTS. This rule requires carriers
to retain for two years the following information on any tarmac delay
that either triggers their contingency plans or lasts at least three
hours (as opposed to four hours in the NPRM): The length of the delay,
the specific cause of the delay, and the steps taken to minimize
hardships for passengers (including providing food and water,
maintaining lavatories, and providing medical assistance); whether the
flight ultimately took off (in the case of a departure delay or
diversion) or returned to the gate; and an explanation for any tarmac
delay that exceeded three hours, including why the aircraft did
[[Page 68990]]
not return to the gate by the three-hour mark. Aside from the length of
the delay and whether the flight ultimately took off or returned to the
gate, the remaining information that this rule requires carriers to
retain is not available through data that the largest airlines submit
to BTS. As for the cause of a delay, although the largest airlines do
submit information to BTS about the nature of ground delays, this
information is very general (i.e., air carrier, extreme weather,
National Aviation System, security, and late arriving aircraft). This
rule requires carriers to retain information on the specific cause(s)
of the tarmac delay. We note that the Tarmac Delay Task Force dealt
with this issue in its report to the Secretary, and listed a number of
lengthy on-board ground delay causal factors.\3\ We recommend that
carriers use that list for examples of the types of delay causes that
the Department is looking for carriers to include in their retained
records. Third, to the extent that carriers already collect and submit
to BTS certain elements of the information that this rule requires,
then there is no real burden to them of complying with the requirement.
---------------------------------------------------------------------------
\3\ The model contingency plan is available at http://
www.regulations.gov [Docket No. DOT-OST-2007-0108-0124.2].
---------------------------------------------------------------------------
Response to Consumer Problems
1. Designated Advocates for Passengers' Interests
The NPRM: The NPRM proposed to require certificated and commuter
air carriers that operate domestic scheduled passenger service using
any aircraft with 30 or more passenger seats to designate, at its
system operations center and at each airport dispatch center, an
employee to monitor the effects on passengers of flight delays, flight
cancellations, and lengthy tarmac delays and to have input into
decisions such as which flights are cancelled and which are subject to
the longest delays.
Comments: ATA supports the idea of designating an airline employee
at a carrier's operation 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 easing the problems that consumers face. In
general, RAA thinks this provision is unnecessary as airlines have no
incentive to leave a plane full of passengers on the tarmac. RAA
further notes that regional airlines are unable to designate personnel
with responsibility for influencing delay decisions since delay
decision-making is not a function of regional airline employees. NBTA
characterizes this proposal as micromanagement of airline customer
service and unnecessary to meet the needs of its business travelers.
NBTA maintains that an air carrier's response to cancellations and
delays is a key factor by which purchasers make their buying decisions,
and opposes a mandate that airlines create new customer service
positions at each airport. FlyersRights.org defers to the Department
and the airlines to determine the best use of airline manpower to
mitigate the effects of flight delays, cancellations and lengthy tarmac
delays.
DOT Response: The Department has decided to require carriers to
designate an employee to monitor performance of their flights; however,
we are persuaded that we should not require carriers to designate an
employee at their systems operations center as well as at each airport
dispatch center, as long as whatever employee(s) are designated can
monitor flight delays and cancellations throughout the carriers'
systems and have input into decisions regarding how to best meet the
needs of passengers affected by any irregular operations. By adopting
this performance standard, the Department leaves it up to each carrier
to determine the most efficient and effective method to monitor the
effects of flight delays and cancellations (e.g., designate
individual(s) at its systems operations center, designate individual(s)
at each airport dispatch center, designate individual(s) at another
location). This rule does not require carriers to hire new employees to
comply with this provision as these responsibilities may be borne by
current employees in addition to their other responsibilities.
We disagree with RAA's assertion that regional carriers have no
control over decisions on delays, diversions and cancellations and thus
should not be required to designate an employee to monitor such
occurrences. We recognize that, as a rule, regional carriers' mainline
partners make most of the decisions from an operational standpoint on
code-shared flights with a regional carrier; however, this does not
lead to the conclusion that regional carriers are or should be totally
removed from the process. Even if the determination to cancel or delay
a flight or keep it on the tarmac is made by the mainline carrier, the
regional carrier as the carrier operating the flight is the entity that
knows first-hand the situation within and surrounding the aircraft,
that is responsible for passing information about that situation to the
mainline partner, and that has direct contact with the passengers and
remains the sole means for directly serving them. As such, this final
rule requires all airlines operating scheduled passenger service using
any aircraft with 30 or more passenger seats to designate an employee
to monitor the effects of flight delays, flight cancellations, and
lengthy tarmac delays on passengers and to provide input into decisions
on which flights to cancel and which will be delayed the longest. It
applies to all of a covered U.S. carrier's scheduled flights, both
domestic and international, including those involving aircraft with
fewer than 30 seats if a carrier operates any aircraft with 30 or more
passenger seats. The requirement to designate advocates for passenger
interests applies to U.S. carriers even if they operate only
international scheduled service.
2. Informing Consumers How To Complain
The NPRM: Under the proposed rule, a certificated or commuter air
carrier that operates domestic scheduled passenger service using any
aircraft with 30 or more passenger seats would be required to inform
consumers how to file a complaint with the carrier (name of person,
address, telephone number, and e-mail or Web-mail address) on its Web
site, on all e-ticket confirmations, and, upon request, at each ticket
counter and gate.
Comments: Flyersrights.org supports the proposal requiring airlines
to provide information to passengers on how to file a complaint. ACI-NA
states that consumers should be provided information regarding how to
file a complaint, which should include the appropriate contact
information, including a contact name, address, telephone number and e-
mail or Web address.
ATA supports the proposal for carriers to provide passengers
complaint contact information but contends that the Department should
not dictate the particular communication method to be used (e.g., e-
mail, carrier's Web site, traditional mail, telephone). Instead, ATA
states that the Department should allow carriers the flexibility to
choose the contact method for customer complaints, as each of these
various methods carries with them associated costs. In particular, ATA
emphasizes the expense of telephone ``talk time'' and explains that
this would impose a high cost on airlines without countervailing
benefits, given other complaint methods available to consumers. ATA
points out that all of its members already provide
[[Page 68991]]
complaint contact information on their Web sites. ATA also reiterates
its strong opposition to the proposal that would require carriers to
include complaint contact information on e-tickets. It states that this
proposal is unnecessary and costly as it believes there is no
indication that finding complaint contact information is a problem and
views e-ticket space as being limited and having significant commercial
value to the carrier and third parties. ATA estimates that the ``value
to the U.S. industry as a whole of the e-ticket space, which it asserts
the Department proposes to `confiscate' is $5 million annually,'' an
amount it claims far exceeds the DOT's estimate of the proposal's
value. ATA also suggests that the Department not require airlines to
name a specific employee contact person for complaint purposes since
airline personnel change frequently, and recommends that carriers be
required to provide a position/office so complaints are directed to the
right department.
RAA notes that most regional airlines already have systems in place
to handle passenger complaints and to coordinate those systems with
their mainline partners. If the Department adopts a proposal for
carriers to provide passengers complaint contact information, RAA
asserts that any requirement to post complaint information on airline
Web sites or e-ticketing confirmations should apply to the ticketing
carrier and not to regional airlines. According to RAA, many regional
airlines do not have their own Web sites upon which to post complaint
information and states that only the ticketing airline should have a
``legal'' responsibility to consumers claiming breach of contract. RAA
also asserts that in some cases there is no regional airline employee
at the gate, ticket counter, or elsewhere in the airport.
DOT Response: The Department rejects carriers' suggestions that it
leave completely to the discretion of each carrier the methods that
carriers must make available to consumers to contact an airline. While
generally the Department prefers specifying ends rather than means, it
is important to identify a sufficient number of contact methods for
customer complaints and require carriers to accept such complaints to
ensure that all passengers who wish to express their dissatisfaction
are able to do so easily. For example, if an airline were to only
accept complaints by e-mail then those without access to the Internet
would face significant difficulty in filing a complaint. On the other
hand, if an airline were to only accept complaints by traditional mail
then a number of individuals may decide against sending a complaint
because of the ``hassle'' they see in writing a letter, addressing an
envelope, and mailing the letter. However, we are persuaded that not
all of the contact methods for customer complaints listed in the
proposal are necessary. In this regard, we agree with ATA that we need
not require carriers to receive complaints by telephone. In reaching
this conclusion, we do not mean to imply that carriers should not have
in place some mechanism for resolving consumer problems in real time,
and failure to do so may require us to revisit this decision in the
future. We also do not see the necessity in requiring carriers to
accept complaints by fax. As a result, this rule only requires carriers
to provide passengers their e-mail or Web-form address and their
mailing address. Of course, in addition to accepting complaints by e-
mail and traditional mail, airlines are free, and we encourage them, to
accept customer complaints through other methods. This final rule also
clarifies that it is sufficient for airlines to identify the designated
department within the airline with which to file a complaint instead of
identifying a specific employee contact person.
We require that complaint contact information be provided on
carrier Web sites, on all e-ticket confirmations, and upon request at
all airline ticket counters and boarding gates. In reaching this
decision, we note that the comments do not demonstrate that including
complaint contact information on e-ticket confirmations would impose
substantial costs on airlines despite such assertions. Only a limited
amount of space on an e-ticket space is needed to provide complaint
contact information. Moreover, a carrier can comply with this
requirement for providing contact information on an electronic e-ticket
confirmation or itinerary by including a link to a Web site containing
the complaint information in lieu of displaying the entire text of the
contact information, which will take up even less space on an e-ticket.
It is our opinion that requiring complaint contact information on e-
tickets and, upon request, at each ticket counter and departure gate
would be beneficial to consumers as a large number of passengers do not
have access to the Internet while traveling and would not be able to
access the complaint contact information through the airlines' Web
sites.
In response to RAA's comment that many regional airlines do not
have their own Web sites and there is no regional airline employee at
the gate or ticket counter in some airports, we wish to make clear that
the requirement to have complaint contact information in those
locations would not apply to those airlines as the rule does not
require regional carriers that do not have Web sites or a presence at
an airport to provide information on filing complaints via these
channels. However, we see no reason to narrow the coverage of this
requirement to exclude regional airlines. Passengers who wish to
complain to regional airlines should be able to find out how to do so.
3. Response to Consumer Complaints
The NPRM: Under the NPRM, a certificated or commuter air carrier
that operates domestic scheduled passenger service using any aircraft
with 30 or more passenger seats would be required to acknowledge
receipt of each consumer complaint within 30 days of receiving it and
send a substantive response to each complainant within 60 days of
receiving it.
Comments: ASTA and Atlanta's Department of Aviation strongly
support this proposal. Atlanta's Department of Aviation states that
acknowledging a complaint within 30 days and providing a substantive
response within 60 days is reasonable considering airline concerns
about increased staffing and the need for consumers to know their
complaints have been received and concerns will be addressed.
Flyersrights.org also supports the proposal but takes the position that
carriers should be required to provide a ``proposed final resolution''
rather than a ``substantive response'' within 60 days.
Of the carrier associations, ATA 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 an acknowledgment
within 30 days after their complaints are received, and a substantive
response within 60 days, with an exception to the 30 day
acknowledgement requirement for extenuating circumstances such as mail
delivery and address problems, or when carriers need to obtain
additional information from a passenger. ATA adds that the Department
needs to clarify the term ``complaint'' as meaning a complaint that
raises customer service concerns and that is submitted to the carrier's
customer relations department. ATA notes that complaints made through
other means cannot be tracked by the carriers and the response
coordinated. ACI-NA supports the Department's proposal that carriers
should have 30 days to acknowledge a
[[Page 68992]]
complaint and 60 days to provide a passenger with a substantive
response. ACI-NA also believes the proposal should apply to all
airlines operating aircraft with more than 30 seats, including regional
carriers.
DOT Response: We have decided to adopt a rule along the lines set
forth in the NPRM. The Department believes that 30 days to acknowledge
a complaint and 60 days to provide a passenger with a substantive
response represent standard practice in the industry and should allow
carriers adequate time to investigate and respond appropriately. By
``substantive response'' we mean a response that addresses the specific
problems about which the consumer has complained. This type of response
often results in a resolution of the complaint. We are also clarifying
that by ``complaint'' we mean a specific written expression of
dissatisfaction concerning a difficulty or problem which the person
experienced when using or attempting to use an airline's services and
that contains sufficient information for the carrier to identify the
passenger. Airlines will be required to acknowledge and respond to all
such complaints even if a passenger does not submit it directly to the
carrier's customer relations department. The Department would expect,
as we find is largely already the case, that a passenger complaint sent
to the wrong office or department at an airline would be expeditiously
forwarded to the appropriate office within the airline.
Chronically Delayed Flights as Violations of 49 U.S.C. 41712
1. Covered Entities
The NPRM: Under the proposed rule, the Department would consider
any chronically delayed flight of a certificated U.S. carrier that
operates passenger service and/or cargo and mail service and that
accounts for at least one percent of domestic scheduled passenger
revenue to be an unfair and deceptive practice and an unfair method of
competition within the meaning of 49 U.S.C. 41712.
Comments: RAA takes the position that this requirement should only
apply to airlines that hold out services to the public and ticket
passengers. RAA reasons that regional airlines lack the ability to
engage in the behavior the Department is seeking to prevent since
regional airlines fly schedules established by major airlines and do
not advertise or publish flight times independent of the mainline
partner. Similarly, ExpressJet states that this requirement should not
be applied to regional carriers because they are not responsible for
making scheduling decisions. ExpressJet explains that typical regional
carriers operate under a code-share agreement with one or more larger
air carriers which agreements grant to the larger carrier the right to
make non-safety related decisions regarding the regional carrier's
schedule of flights. ACI-NA expressed disappointment that the
Department defined ``covered carrier'' as only those that account for
at least one percent of domestic scheduled passenger revenue and did
not propose to provide all consumers the same level of protection. ACI-
NA maintains that the requirement should apply not only to large
carriers but also to the operations of regional or feeder carriers.
ACI-NA points out that delays harm passengers just as much regardless
of which certificate holder operates the aircraft. ACI-NA further notes
that regional airlines operate half of the daily domestic flights and
provide the only scheduled service to approximately 70 percent of U.S.
airports.
DOT Response: The Department continues to believe that the
substantial cost burden that compliance with this requirement would
impose on the smaller carriers, which are not required to collect or
report on-time performance data, would outweigh any corresponding
public benefits. Therefore, the chronically delayed flight provision
should not apply to those smaller carriers.
Under 14 CFR Part 234, any certificated U.S. carrier that accounts
for at least 1 percent of domestic scheduled-passenger revenues is
required to file an ``On-Time Flight Performance Report'' with the
Department's Bureau of Transportation Statistics on a monthly basis,
setting forth specified information for each of its flights held out in
Official Airline Guide (OAG), in the computer reservations systems
(CRS), or in other schedule publications. As a result, the Department's
Office of Aviation Enforcement and Proceedings can obtain data from BTS
that enable the office to determine whether the schedules that the
reporting airlines cause to be listed in the OAG and CRS are indicative
of the schedules that the carriers could reasonably be expected to
achieve and whether the reporting airlines are operating flights that
we would consider to be chronically late. These data do not currently
exist in a single location for other carriers, i.e., smaller carriers,
and these carriers would incur significant costs in setting up the
infrastructure to collect, compile and report this information. Unless
the Department requires smaller carriers to also report on-time
performance data, a prohibition against smaller carriers operating
chronically delayed flights as defined in this rule would be difficult
and impractical to enforce as there is no mechanism in place for the
Department to independently determine whether such carriers are
complying with the requirement. The Department believes that the cost
of requiring smaller carriers to report on-time performance data in
order to be able to determine whether these carriers operate
chronically delayed flights outweighs the benefits to consumers in
light of the fact that the operations of the reporting carriers account
for nearly 90 percent of all domestic passenger enplanements. As such,
we will not apply this requirement to smaller carriers. We are also
clarifying that this requirement does not apply to certificated U.S.
carriers that only operate cargo and mail service as the concern about
chronically delayed flights involves passenger service. The final rule
applies to certificated U.S. carriers that operate passenger service
and that account for at least one percent of domestic scheduled
passenger revenue.
2. Definition of a Chronically Delayed Flight
The NPRM: In the NPRM, we proposed to define a chronically delayed
flight as a flight by a covered carrier 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. We
proposed that the Department would consider a chronically delayed
flight to be an unfair and deceptive practice 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. We invited 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. We also asked whether we
should adopt an even stricter definition favored by the Department's
Inspector General (IG), i.e. a flight that is delayed 30 minutes or
more, or cancelled, at least 40 percent of the time during a one month
period. We noted that we were 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
[[Page 68993]]
flight that the flight is chronically delayed. The NPRM also broadly
asked for comments on other possible chronic delay standards.
Comments: Flyersrights.org favors a stricter definition of a
chronically delayed flight than the one proposed in the NPRM,
specifically, that a chronically delayed flight should be defined as a
flight that operates at least 30 times in a calendar quarter and
arrives more than 15 minutes late more than 50 percent of the time
during that quarter. Flyersrights.org further states that it finds
woefully lax a requirement that would allow a carrier to operate a
chronically delayed flight for three consecutive calendar quarters (9
months) and asserts that carriers should not be allowed two calendar
quarters (six months) to correct chronically delayed flights. Instead,
Flyersrights.org suggests that carriers be provided one calendar
quarter (3 month period) to fix the problem. Flyersrights.org also
disagrees with the option suggested by the Department not to consider a
chronically delayed flight as an unfair and deceptive practice if all
the passengers are informed that the flight is a chronically delayed
flight before purchasing a ticket, as it allows a carrier to continue
providing poor service. It also states that DOT should provide for a
parallel regulatory approach for ``chronically cancelled'' flights as
well. Of the consumer associations that commented on this provision,
ACAP concurs with Flyersrights.org. Several individual commenters
stated that they believe a chronically delayed flight should be
considered an unfair and deceptive practice.
Of the carrier associations that commented, ATA supports the
proposed definition of a chronically delayed flight as a flight that
operates at least 30 times in a calendar quarter and arrives 15 minutes
late, or is cancelled, more than 70% of the time during that quarter.
ATA supports the proposal not to consider it an unfair and deceptive
practice if a passenger is informed when purchasing a ticket that a
flight is chronically delayed. RAA asserts that a prohibition on
chronically delayed flights is unnecessary as airlines are already
motivated to provide delay-free service since airlines incur costs
(e.g., must pay crews overtime, burn fuel), negative publicity and
adverse consumer reaction when on-time performance suffers. RAA
emphasizes that, rather than penalizing airlines, the Department should
focus on improving the efficiency of our nation's ATC system.
ACI-NA maintains that delays cause passengers to lose confidence in
an airport's operations, which can impact both the airport's finances
and the local community's economy. ACI-NA disagrees with the option put
forth in the rulemaking that the Department not treat a chronically
delayed flight as an unfair and deceptive practice if the passenger is
informed that a flight is chronically delayed prior to purchase, as it
questions how DOT could determine that every passenger has been
appropriately informed. ACI-NA also questions whether it is reasonable
to define a chronically delayed flight as a flight that is delayed more
than 70% of the time in a calendar quarter. ACI-NA explains that a 50%
standard is more reasonable as air travelers should be able to expect
that airlines can arrive at the promised time for at least half of
their operations. ACI-NA supports the proposal to consider chronically
delayed flights operated for three consecutive calendar quarters as an
unfair and deceptive practice.
Of the travel agency associations, ASTA, supports defining a
chronically delayed flight as an unfair and deceptive practice, but
suggests that the proposal can be improved in a number of ways. First,
ASTA argues that a chronically delayed flight should be defined as a
flight that is late more than 50 percent of the time as this is in tune
with the way most people think of this issue. As an alternative, ASTA
notes that it could also support the DOT Inspector General's
recommendation of a 40 percent factor with a 30 minute trigger. Second,
ASTA asserts that airlines should be able to cure a chronic delay
problem in three months rather than six months. ASTA notes its concern
that as proposed an airline can operate a flight that is delayed 70
percent of the time for nine months before there is a remedy. ASTA also
strongly opposes the ``option'' of excusing chronically delayed flights
from being considered an unfair and deceptive practice if a consumer is
informed of the chronic delay. ASTA explains that this option
encourages the airlines to continue operating chronically delayed
flights while shifting the cost burden onto the retail distribution
system to inform the public about the practice on a flight-by-flight
basis.
DOT Response: The Department agrees with commenters advocating the
need to strengthen the definition of a chronically delayed flight and
is adopting a more rigorous set of criteria for determining what
constitutes a chronically delayed flight in an effort to further
improve carrier performance. The final rule defines a flight as
chronically delayed if it is operated at least 10 times in a month and
arrives more than 30 minutes late (including cancelled flights) more
than 50 percent of the time during that period. We find persuasive the
comments that suggested that the Department should define a flight as
chronically delayed if it is late more than 50 percent of the time
rather than 70 percent of the time, as a flight that is delayed ``more
often than not'' is commonly viewed by consumers and the public at
large as being chronically delayed. From the standpoint of the
consumer, the offering of scheduled service and the acceptance of
reservations by a carrier give rise to the justifiable expectation that
the carrier has the intent and the capability to arrive at the promised
time. Consumers rely on carrier schedules and, to the extent they are
chronically inaccurate, consumers are seriously harmed. We are also
changing the criteria in the definition of a chronically delayed flight
related to the number of operations that must take place in a given
time period from at least 30 operations in a calendar quarter to at
least 10 operations in a month, as we believe a monthly standard is a
more precise, simplified and rigorous standard by which to determine a
chronic delay. Further, we are amending the threshold defining a flight
delay for purposes of this requirement from 15 minutes late to 30
minutes late because while no consumer likes delay, the real concern
appears to be with significant delays, the kind that result in missed
connections and other problems.
With regard to when to classify a chronically delayed flight as an
unfair and deceptive practice, the Department agrees with comments that
the proposal provided too much time for airlines to act to correct
chronically delayed flights. The final rule specifies that a flight
that remains chronically delayed for more than four consecutive one-
month periods is an unfair or deceptive practice within the meaning of
49 U.S.C. 41712 and subject to enforcement action. This more stringent
standard will better ensure that airlines do not schedule flights that
they reasonably know or should know are going to be seriously late most
of the time, thereby providing consumers more reliable information
about the actual arrival time of a flight. We also believe this
provision provides carriers adequate time to adjust their schedules.
Carriers know at the beginning of month two whether the flights they
operated during month one were chronically late. We believe that
carriers can make adjustments to their schedules within 60 days;
therefore, we expect that
[[Page 68994]]
during months two, three and four carriers would adjust their schedule
for each of their chronically late flights to make the schedule for
that flight more realistic by month five. While flight delays for
weather, mechanical, or other operational reasons occur frequently in
the airline industry, the Department considers the continued publishing
of schedules that list chronically late flights to be one form of
unrealistic scheduling and an unfair or deceptive practice and unfair
method of competition within the meaning of 49 U.S.C. 41712.
In the NPRM, we expressed some concern that if a significantly
larger number of flights are defined and identified as chronically
delayed flights then carriers may choose to cancel these flights rather
than operate them. The Department believes that the definition of
chronically delayed flight in this final rule, while more stringent
than the one proposed, will nevertheless not lead to a large number of
flight cancellations as we have found, based on calendar year 2008 data
provided by BTS, that the vast majority of the chronically delayed
flights as defined in this rule were not chronically delayed for four
or more consecutive months. This indicates that carriers were able to
ensure that these flights operated on schedule without canceling
flights.
We are not adopting the option we suggested in the NPRM of not
treating a flight that remains chronically delayed for three
consecutive quarters (now after four consecutive months) as an unfair
and deceptive practice if every prospective passenger using any
available means of purchase is informed before buying a seat on that
flight that the flight is chronically delayed. We are concerned that
this proposal could result in more chronically delayed flights and that
it would be difficult for the Department to determine if all passengers
were properly notified prior to purchasing a ticket that the flight is
a chronically delayed flight.
3. Unrealistic Scheduling of Flights (Other Than Chronically Delayed
Flights)
The NPRM: Other than an editorial change (the removal of references
to ``Board''), the proposal would not make any other changes to the
existing rule which states that unrealistic scheduling of flights by
any air carrier providing scheduled passenger air transportation or the
use of any figures, with respect to the advertising of schedule
performance, purporting to reflect schedule or on-time performance
without providing detailed information about the basis of the
calculation would be an unfair or deceptive practice and an unfair
method of competition within the meaning of 49 U.S.C. 41712.
Comments: We received only one comment on this issue. ATA opposes
the proposal to continue requiring that advertising of on-time
performance reveal the detailed information about basis of the
calculation. ATA states that the effect of requiring so many data
points will be to prevent the use of this statistic. ATA also asserts
that the Department should not adopt this proposal as there isn't any
consumer demand for this level of detail and it would create a burden
with no public benefit.
DOT Response: This rule continues to prohibit carriers providing
scheduled passenger service from engaging in unrealistic scheduling,
which can be many things beyond the Department's definition of a
chronically delayed flight that a carrier continues to hold out for
more than four consecutive months. For example, a flight that is
cancelled 30 percent of the time for a sustained period of time could
be considered to be unrealistic scheduling. The posting of unrealistic
schedules can have a significant and harmful impact on consumers. When
a carrier publishes schedules, it assumes an obligation to adhere to
those schedules insofar as is reasonable. A carrier's practice of
publishing schedules that it knows or should know it probably will not
achieve can also adversely affect competition, which ultimately
redounds to the further detriment of consumers, whose choices in air
travel may have been reduced by the carrier's artifice.
With respect to the advertising of schedule performance, this rule
continues to regard as an unfair or deceptive practice 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 system-wide operations thereby
represented and whether the figures include all scheduled flights or
only scheduled flights actually performed. We are not persuaded by
ATA's assertions that this requirement is not beneficial to consumers.
Without this requirement, a carrier's advertising of on time
performance could be very misleading and consumers would not have any
basis for determining whether a statistic provided by a carrier is
trustworthy or even relevant to their particular circumstance.
Delay Data on Carriers' Web Sites
1. Covered Entities/Scope
The NPRM: Under current rule, certificated air carriers that
account for at least 1 percent of domestic scheduled passenger revenues
(``reporting carriers'') are required to track on-time performance,
report it to DOT, and provide, during the course of reservations/
ticketing discussions or inquires about flights, the on-time
performance percentage for a flight upon request. In the NPRM, we
proposed to continue requiring reporting carriers' reservations agents
to disclose on-time performance information to consumers only upon
request although we had solicited comment in the ANPRM as to whether
reservations agents should disclose this information to consumers
without being asked and whether any disclosure requirement should be
expanded to cover more types of carriers or travel agents. In the NPRM,
we also proposed requiring reporting carriers to provide certain flight
delay data on their Web sites. We proposed to require this delay data
only for flights of reporting carriers but asked commenters if we
should in addition require the reporting carriers to post delay data on
their Web site for all their domestic code-share partners' flights,
including those carriers that are not themselves required to report on-
time performance. We decided not to propose requiring on-line travel
agencies to post delay data on their Web sites (a proposal upon which
we solicited comment in the ANPRM) because of concerns that the cost
would outweigh the benefits.
Comments: No one commented as to whether the proposal to continue
requiring reporting carriers to disclose the on-time performance code
for a flight upon request should or should not be expanded to cover
more carriers (e.g., domestic scheduled passenger service using
aircraft with 30 or more seats) or more types of flights (e.g., code-
share flights). The comments received on scope/coverage addressed only
the proposal to require carriers to publish delay data on their Web
sites. Flyersrights.org recommends that the regulation require covered
carriers to post flight delay information only for code-share flights
operated by carriers that report on-time performance, as this will
narrow the amount of information required. Flyersrights.org suggests
that the Department can expand the requirement later based on consumer
comments. ACI-NA believes that it is important for consumers to have
access to comprehensive on-time performance data and strongly supports
requiring
[[Page 68995]]
that flight delay data be made available on reporting carriers' Web
sites for all the domestic code-share flights of that carrier.
ATA states that, given the Department's proposal not to impose any
data reporting requirements on travel agents, the proposal unfairly
burdens the reporting carriers as these carriers would uniquely bear
the cost of collecting data, programming, and updating their booking
sites to reflect such data. ATA also contends that the proposal is
unfair to the approximately thirty percent of passengers who book
through carriers' Web sites as they would be burdened with having to
see performance information that they did not request and likely do not
want. ATA suggests that the ``excessive performance data display'' may
even discourage booking travel through carriers' Web sites. ATA's
comments indicate that it supports extending the requirement for
disclosure of flight delay information on Web sites to cover online
travel agencies if the Department imposes such a requirement on
reporting carriers. On the other hand, ITSA supports the preliminary
conclusions reached by the Department that the cost of imposing a
requirement for online travel agencies to post flight delay information
would vastly outweigh the benefits to consumers. ITSA urges the
Department to make final its tentative decision not to apply this
requirement to online travel companies, global distributions systems
and other third party online reservation services. ASTA notes that the
Department wisely exempts travel agencies from the requirement to
disclose flight delay information.
DOT Response: We have decided to continue to require reporting
carriers to disclose the on-time performance code for a flight upon
request as there were no comments received on this point and the rule
as is works well from the Department's perspective. The final rule
requires a reporting carrier to display on its Web site flight delay
information for each flight it operates and for each flight its U.S.
code-share partners operate for which schedule information is
available. The Department believes that requiring a reporting carrier
to display on its Web sites flight delay information for each domestic
flight it holds out as its own will help consumers make better informed
decisions when selecting flights. In adopting this approach, we are
rejecting arguments that requiring a reporting carrier to provide
flight delay information for domestic code-share flights operated by
carriers that do not report on-time performance would unduly burden
them. There are currently only 21 non-reporting U.S. carriers that
code-share with reporting carriers, and the on-time performance data
for these carriers may be collected through third party entities at a
reasonable cost. FlightStats is an example of a third party which
collects detailed on-time performance data for many airlines. Moreover,
the benefit of flight delay data to consumers does not differ based on
whether the flight is operated by a reporting carrier, its reporting
code-share partner or its non-reporting code-share partner. We note
that if more than one reporting carrier has an agreement with the same
code-share partner, each reporting carrier must display on its website
the on-time performance information for the covered flight that bears
the reporting carrier's code.
We again considered applying the requirement to publish delay data
to online travel agencies, but we continue to view the cost of
requiring on-line travel agencies to post the flight delay information
as outweighing the benefits to passengers. The cost to on-line travel
agencies of complying with such a requirement is much higher than it is
for the reporting carriers because of costs associated with
reformatting the Global Distribution Systems (booking engines used by
travel agencies) and Online Travel Companies (online agencies with
independent airline ticket booking capabilities).
2. Disclosure of Flight Delay Information by Airline Reservation Agents
The NPRM: This proposal would not make any changes to the existing
rule which requires covered carriers to disclose upon request the on-
time performance of a flight during the course of reservations/
ticketing discussions, transactions, or inquires about flights between
a carrier's employees and the public. We decided not to propose that
the carrier reservations agents be required to disclose a carrier's on-
time performance at the time of booking without being asked (an issue
upon which we solicited comment in the ANPRM) because of concerns that
the costs of providing this information to all callers, whether
requested or not, would be unduly burdensome to carriers and of dubious
benefit to consumers, particularly if the rule provides for flight
delay information on the carriers' Web sites.
Comments: Flyersrights.org states its continued belief that
passengers would like to be told, without having to ask, about the past
on-time performance of the flight they are discussing on the phone or
in person with a carrier employee or travel agent. ATA did not comment
on this provision of the NPRM. However, at the ANPRM stage, ATA
expressed its strong opposition to requiring carriers' reservations
agents to disclose on-time information without being asked, because of
its belief that the high cost of compliance would outweigh its
speculative benefit.
DOT Response: We have decided to issue a rule along the lines set
forth in the NPRM. Specifically, the final rule requires a reporting
carrier to disclose upon request the on-time performance of a flight
during the course of reservations discussions or inquires about
flights. We note that requiring carriers to provide passengers on-time
performance data during discussions, transactions or inquires, even if
not requested, would be burdensome to a degree and of dubious benefit.
We note that the rule has been amended to clarify that the requirement
to provide on time performance data upon request applies whether a
member of the public is speaking with a carrier's employee or
contractor.
3. Disclosure of Flight Delay Information on Web Site
The NPRM: This proposal would require covered carriers to include
for each listed flight in the flight inquiry/booking stream on their
Web sites, at a point before the passenger selects a flight for
purchase, the following information for the flight for the most recent
calendar month for which the carrier has reported on-time performance
data to DOT: (1) The percentage of arrivals that were on time (within
15 minutes of scheduled arrival time); (2) the percentage of arrivals
that were more than 30 minutes late; (3) special highlighting of any
flight that was late (i.e., arrived more than 15 minutes past scheduled
arrival time) more than 50 percent of the time; and (4) the percentage
of cancellations. We proposed that this information be provided by
either 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 a consumer buys a ticket, or by making
available all the required information via a hyperlink on the page with
the initial listing of flights. We also proposed to require that
carriers load the delay information for the previous month into their
internal reservations systems between the 20th and 23rd day of the
current month to ensure that all carriers are posting information
covering the same period.
Comments: In general, individual commenters (as opposed to
organizations) who addressed this issue agree that carriers should be
required to
[[Page 68996]]
disclose flight delay information on their Web sites. One commenter
notes that she has concerns that the cost to modify and provide delay
information on a carrier's Web site may be too burdensome and,
consequently, may be passed on to consumers. FlyersRights.org urges
that airlines be required to post the on-time performance data for all
their flights rather than just the nonperforming flights.
ATA supports requiring disclosure of on-time arrival percentages
for each flight on a carrier's Web site for the most recent reported
calendar month as this information is already reported to BTS. However,
ATA objects to a requirement for carriers to report and display any
flight delay data not currently required by BTS. ATA asserts that
collecting and reporting on the data categories proposed by the
Department in its NPRM would be expensive and overly burdensome because
it would require substantial efforts to capture this information,
significant reprogramming of internal software, rebuilding of portions
of Web sites and delay of other critical technology projects. ATA also
contends that the requirement does not have any offsetting benefits.
ATA reiterates its comment to the ANPRM that past delay information is
unlikely to predict future performance because of variations in
seasonal weather. It notes that 70 percent of delays and cancellations
are due to weather, which makes performance data from previous periods
a poor predictor of the passenger's probable flight experience. ATA
also states that the additional data that the Department is proposing
carriers make available on their Web sites would provide little
additional consumer benefit since many carriers already post on-time
data on their Web sites. ATA further expresses concern that flight on-
time statistics can be misinterpreted by passengers and provides an
example of a passenger erroneously assuming a flight will be delayed in
September because it was delayed in August and arriving late for the
flight and missing that flight.
Similar to ATA, NBTA supports requiring carriers to provide on-time
performance information to consumers only ``so long as these
requirements are aligned with performance reports that carriers must
file with DOT.'' ASTA states that it is not ``convinced of the
efficacy'' of the publication of delay data on a carrier's Web site.
ITSA thinks this is a matter best left to the marketplace, and concurs
with ATA that data will be of no use due to the unpredictability of
weather-related delays. As such, ITSA does not support inclusion of
this proposal in the final rule.
DOT Response: The final rule requires that covered carriers provide
on their Web sites the following on-time performance information: (1)
Percentage of arrivals that were on time--i.e., within 15 minutes of
scheduled arrival time; (2) the percentage of arrivals that were more
than 30 minutes late (including special highlighting if the flight was
late more than 50 percent of the time); and (3) the percentage of
flight cancellations if 5 percent or more of the flight's operations
were canceled in the month covered. The Department recognizes that
industry representatives support only the requirement to post on-time
(within 15 minutes of scheduled arrival time) arrival percentages for
each flight on a carrier's Web site because this information is already
reported to BTS. However, the Department views the posting of the
percentage of arrivals that were more than 30 minutes late as important
because consumers are particularly interested in significant delays as
these delays are the kind that are likely to result in missed
connections and other serious problems. The Department is also
requiring special highlighting of flights if they are late more than 30
minutes of scheduled arrival time more than 50 percent of the time to
enable consumers to make more informed travel decisions. For example,
chronic lengthy delays on short flights may result in passengers
choosing other modes of transportation, choosing earlier flights or
selecting a different airline. Without a requirement for carriers to
publish such information, knowing which flights are often late can be
difficult for passengers to determine, which can lead to frustration
and confusion. Similarly, without a requirement for carriers to post
information about flights that are cancelled more than 5% of the time,
consumers would be unaware prior to purchasing a ticket on that flight
that it is regularly cancelled. We agree with carriers that publishing
data on the percentage of cancellations for all flights is an
unnecessary burden and may result in too much ``clutter'' on the Web
site.
With regard to the manner in which this information must be posted
on carriers' Web sites, we have amended the rule so carriers must show
all the delay data on the initial listing of flights or by a hyperlink
on the page with the initial listing of flights. We were concerned that
if we permitted carriers to simply display flight delay information at
any stage before a consumer buys a ticket it could result in passengers
not having access to that information until just before they click the
``Buy Now'' button. By providing flight delay data to consumers at an
earlier stage, they can choose during the browsing/shopping phase
whether or not to abandon consideration of a given flight that is
canceled regularly or has a high percentage of delays longer than 30
minutes. To ensure that all carriers are posting flight delay
information covering the same month, the final rule maintains the
language in the proposal that carriers load data for the previous month
into their internal reservation systems between the 20th and 23rd day
of the current month.
Carriers' Adherence to Customer Service Plans
1. Covered Entities
The NPRM: This proposal would require carriers covered by 14 CFR
Part 234 (``Airline Service Quality Performance Reports'')--i.e.,
certificated air carriers that account for at least one percent of
domestic scheduled passenger revenue (``reporting carriers'')--to adopt
customer service plans for their scheduled service and for public
charter flights that they sell directly to the public and audit their
adherence to their plans annually. We explained in the NPRM that we are
proposing that the rule include public charter flights because the
operating carrier is the party responsible for ensuring that charter
passengers receive many of the promised services in those customer
service plans. The NPRM did not provide an explanation as to the reason
that the Department tentatively decided not to cover all U.S. airlines
that operate scheduled passenger service using any aircraft with 30 or
more passenger seats as proposed in the ANPRM.
Comments: ATA believes that the Department should require all
carriers to adopt customer service plans, not just U.S. airlines that
account for at least one percent of scheduled domestic passenger
revenue. ACI-NA also supports imposing this requirement on all
carriers, as it does not believe there is any justification for
protecting only a portion of the traveling public. RAA identifies six
regional carriers that account for at least one percent of scheduled
domestic passenger revenue and argues that this requirement should not
apply to any of them since none of them offer their own reservations
services and do not ticket passengers for the vast majority of their
services. ExpressJet also filed comments contending that the
requirement for customer service plans should not apply to regional
carriers operating as code-
[[Page 68997]]
share partners of mainline airlines because these carriers do not sell
or hold out transportation to customers, as their mainline partners do.
DOT Response: In response to comments, the Department has changed
the types of carriers that are covered by this requirement. We agree
with commenters that the benefits afforded consumers by airlines'
customer service plans should be expanded beyond consumers who purchase
tickets for flights on U.S. airlines that account for at least one
percent of scheduled domestic passenger revenue. A substantial number
of domestic air travelers in the United States are carried on flights
using aircraft with 30 through 60 seats. As mentioned earlier, in 2008,
according to data received from BTS, a total of 668,476,000 domestic
passengers were transported, 96,310,000 of which were on flights using
aircraft with 30 through 60 seats. Many of these were carried by non-
reporting carriers. Because of the use of smaller aircraft to carry a
significant number of domestic passengers, we conclude that it is
appropriate to extend the rule to these operations in order to better
protect the majority of consumers. Moreover, in a Final Report on
Airline Customer Service Commitments issued on February 12, 2001, the
Department's IG recommended that all U.S. carriers be required to adopt
customer service plans. Subsequently, in a Status Report on Actions
Underway to Address Flight Delays and Improve Airline Customer Service
issued on April 9, 2008, the IG recommended that U.S. airlines that
provide domestic scheduled service using any aircraft with more than 30
passenger seats be required to self-audit such plans.
With regard to the comments from RAA and ExpressJet that this
requirement should not apply to regional carriers when conducting
operations under code-share agreements with larger carriers, we
disagree. We recognize that regional or other airlines that code-share
with mainline carriers generally do not offer their own reservations
and ticketing services or directly perform certain other customer
service elements. However, we cannot agree that they should not be
responsible at all to the passengers they transport during many of
their operations because of their relationships to those larger
airlines. Instead, we have decided to apply the requirement to adopt
and audit customer service plans in a more flexible manner, as
described below, that takes into account their role, including the fact
that certain carriers that may not hold out and sell air transportation
to consumers. Consequently, this final rule requires U.S. airlines that
operate scheduled passenger service using any aircraft with 30 or more
passenger seats (including carriers that code-share with mainline
carriers) to adopt and audit a customer service plan, and to publish
this plan on their Web sites. It is important to note that this
requirement applies to all of a covered U.S. carrier's scheduled
flights, both domestic and international, including those involving
aircraft with fewer than 30 seats if a carrier operates any aircraft
with 30 or more passenger seats. The requirement to adopt and audit a
customer service plan, and to publish this plan on the Web site applies
to U.S. carriers even if they operate only international scheduled
service.
2. Content of Customer Service Plan
The NPRM: We proposed in the NPRM that, at a minimum, each plan
would have to address the same subjects as the customer service
elements adopted from the ATA's Customers First initiative: (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, including
during tarmac delays; (7) meeting customers' essential needs during
lengthy on-board delays; (8) handling ``bumped'' passengers in the case
of oversales 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 responsiveness to customer complaints. We
solicited 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 cause of the
cancellations or missed connections were within their control.
Comments: Flyersrights.org and its members support the proposal and
take the position that the Department should also establish minimum
standards for carriers to meet their obligations under the plans,
review the plans for adequacy, and approve them if appropriate. ASTA
also recommends that the Department undertake to review the customer
plans at least for the purpose of a preliminary determination of
whether they are sufficiently specific and enforceable. NBTA thinks
that customer service is best left to market forces, but a baseline
standard for passengers' rights should exist. ATA supports the proposal
that carriers adopt and adhere to their customer service plans and
states that its members adopted customer service plans in 2000 and have
made these plans available to the public. In response to the
Department's question as to whether it should require carriers to
describe in customer plans the services a carrier provides to mitigate
passenger inconveniences resulting from cancellations and
misconnections, ATA states that carriers need flexibility to take
action that will minimize the impact of delays. In this regard, ATA
explains that carriers should not be required to provide a list of
services, as it would ultimately diminish passenger satisfaction due to
the loss of flexibility to deal with specific situations. ATA also
notes that services can be very specific, change over time, and include
competitively sensitive information.
RAA contends that many of the subjects proposed to be addressed in
a customer service plan would be inappropriate if applied to an airline
that does not hold out, market, sell or ticket its services. RAA states
that most regional carriers do not offer fares, take reservations,
ticket passengers, receive payment from passengers, provide refunds to
passengers, or have their own frequent flyer rules or cancellation
policies. ExpressJet asks that the Department eliminate elements in the
customer service commitments, such as the requirement that a customer
service plan ``ensure good customer service from code-share partners,''
that it asserts has no applicability to carriers that do not hold out
and sell air transportation to individuals.
DOT Response: The Department agrees with comments from RAA and
ExpressJet that some of the subjects proposed to be addressed in the
customer service plan would only apply in the context of the
relationship between a seller of the air transportation and a buyer,
and it would thus not be appropriate to mandate that carriers that do
not offer their own reservation services or ticket passengers adopt a
plan for addressing these elements. More specifically, we view the
customer service elements concerning offering the lowest fare
available, allowing reservations to be held or cancelled without
penalty for a defined amount of time, and providing prompt ticket
refunds as having no applicability to an airline that does not hold
out, market,
[[Page 68998]]
sell or ticket its services. Similarly, the commitment concerning
disclosing travel itinerary, cancellation policies, frequent flyer
rules and aircraft configuration would also not be applicable to an
airline that does not sell or ticket its services to the extent these
travel-related disclosures are made at the point of sale. We are
further persuaded that only an airline that sells air transportation to
individual customers should be required to adopt a plan ensuring good
customer service from its code-share partners. As such, airlines that
do not offer their own reservations and ticketing services may comply
with the provisions of the customer service elements that address
functions they do not perform by including in their customer service
plan under each of these elements an explanation that this service is
not provided by them and identifying the airline that provides the
service. With regard to the other required elements in a customer
service plan, including the promise to handle overbooked passengers
with fairness and consistency, we believe that the covered airlines,
whether or not they sell air transportation to passengers, have
responsibilities in this area and must fully address these subjects in
their customer service plans.
The Department has decided to require carriers to describe in
customer plans the services a carrier provides to mitigate passenger
inconvenience resulting from cancellations and misconnections.
Consumers deserve to know up front what to expect in such an event. We
believe that carriers already note in their contracts of carriage many
of the services they will provide to mitigate passenger inconveniences
due to flight irregularities. Moreover, our requirement here is in no
way a limitation on carriers. They always retain the flexibility to
provide additional services, when necessary.
The Department also agrees with commenters that there should be
some baseline standard in place to ensure that the carriers' customer
service plans are specific and enforceable. The NPRM, however, did not
propose to establish such standards. Consequently, the Department plans
to seek comment about establishing standards for ensuring compliance
with customer service plans in a forthcoming notice of proposed
rulemaking. The preamble to that NPRM will discuss this issue in more
detail.
3. Incorporation of Customer Service Plan Into Contract of Carriage
The NPRM: The NPRM proposed that each covered carrier be required
to incorporate its customer service plan in its contract of carriage
and make its contract of carriage available on its Web site. As in the
case of contingency plans for lengthy tarmac delays, we invited
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.
Comments: Flyersrights.org notes that incorporating customer
service plans into a contract of carriage is important as it provides
an avenue for individual passengers to enforce airline promises.
Flyerrights.org also supports providing contract of carriage
information on a carrier's Web site, stating that it provides
passengers an opportunity to educate themselves on the carrier's stated
obligations. ACAP and U.S. PIRG agree with the views of
Flyersrights.org. ASTA also supports incorporating the customer service
plans into the contract of carriage, but has concerns about its
effectiveness because DOT does not plan to review the plans to ensure
sufficient specificity and enforceability. ATA opposes a requirement
that these plans be incorporated in carriers' contracts of carriage.
ATA challenges the Department's legal authority to do this in the
aftermath of deregulation and argues that the Department cannot
substitute Congress's chosen enforcement mechanism which precludes
private judicial enforcement with one of its own creation. ATA also
expresses concern that litigation costs would increase dramatically
over current levels if each customer service commitment were
incorporated into airlines' contracts of carriage.
DOT Response: Although we agree with the commenters about the
benefits of customer service plans being incorporated into a carrier's
contract of carriage, we will not in this final rule make such
incorporation a mandatory requirement of covered carriers, for the same
reasons as stated in our discussion of contingency plans. The
Department has determined that for now it should strongly encourage
carriers to voluntarily incorporate the terms of their customer service
plans in their contracts of carriage. At the same time, the Department
will undertake a series of related measures to ensure the dissemination
of information regarding each airline's customer service plans. The
Department believes that incorporation of the customer service plans
into carriers' contracts of carriage provides individuals notice of
their rights and carrier responsibilities in a readily available source
and will help improve compliance with the matters so incorporated.
However, as stated in our discussion of contingency plans, we believe
that incentives exist for carriers to include their customer service
plans in their contracts of carriage and, as pointed out by the
Department's Inspector General in his 2006 report, most major airlines
already do so.
As discussed above, the Department will require each air carrier
that has a Web site to post its entire contract of carriage on its Web
site in easily accessible form, including all updates to its contract
of carriage. The Department will also require each air carrier with a
Web site that chooses not to include their customer service plan in its
contract of carriage to post the plan itself on its Web site in easily
accessible form.
Many airlines already post their contract of carriage, including
their customer service plan, on their Web site. An airline's contract
of carriage is also available for public inspection at airports and
ticket offices. The purpose of this requirement is to ensure that
interested consumers can easily review an airline's contract of
carriage, which as of the effective date of the rule may include the
customer service plan of airlines that choose to incorporate such a
plan. By reviewing an airline's contract of carriage, consumers can
find out an airline's stated legal obligations to passengers and be
better informed about their rights and a carrier's responsibilities
when problems occur (for example, the passenger's rights and carrier's
responsibilities if an airline delays or cancels a flight or loses a
bag).
This rule also requires each covered carrier that has a Web site to
post its entire contract of carriage on its site in easily accessible
form. Many airlines already post their contract of carriage on their
Web site. An airline's contract of carriage is also available for
public inspection at airports and ticket offices. The purpose of this
requirement is to ensure that interested consumers can easily review an
airline's contract of carriage, which as of the effective date of rule
may include the customer service plan of airlines that are required to
have such a plan. By reviewing an airline's contract of carriage,
consumers can find out an airline's stated legal obligations to
passengers and be better informed about their rights and a carrier's
responsibilities when problems occur (for example, the passenger's
rights and carrier's responsibilities if an
[[Page 68999]]
airline delays or cancels a flight or loses a bag).
4. Audit of Customer Service Plans
The NPRM: The NPRM proposed that each covered carrier audit its own
adherence to its plan annually and make the results of its audits
available for the Department's review for two years. We rejected
carriers' arguments in comments to the ANPRM against requiring audits
and invited carriers that oppose self-auditing as unduly burdensome to
provide evidence of the costs that they anticipate. We also rejected
consumers' arguments that the Department should set standards for the
audits, review all audits, or have them done by our IG.
Comments: NBTA favors giving the Department's IG the resources to
conduct audits of carriers' customer service plans, and suggests that
these audits be conducted not more frequently than once every three
years and at similar times in the year to provide accurate comparative
information. ATA agrees with the self-auditing proposal because
internal auditors are more familiar with the industry, and it saves
time and training costs associated with outside auditors. ASTA notes
that self-auditing is unlikely to improve the situation because the
``promises'' carriers make in their customer service plans are likely
to be aspirational, lacking in substance and unenforceable.
DOT Response: The rule requires each carrier to audit its own
adherence to its plan annually and to make the results of each audit
available for the Department's review for two years afterwards. The
Department believes that a system for verifying compliance with
customer service plans is essential. We believe that requiring covered
carriers to audit their plans annually will further influence carriers
to live up to their commitments. We agree with ATA that self-auditing
is preferable as internal auditors are familiar with the industry and
the cost of external audits can be avoided. The Department's IG, in
several reports, also recommended that airlines conduct internal audits
to measure their compliance with their customer service plans. Some
airlines are already doing so, but most are not. We disagree with the
suggestion that the IG, rather then the airlines, conduct routine
audits. In the past, in response to Congressional requests, the IG has
conducted audits of the customer service commitments that ATA member
carriers voluntarily adopted; however, these audits, which were costly,
lengthy and resource intensive, were not routine annual audits.
Instead, the audits focused on the effectiveness of the plans and the
extent to which each airline met the provisions under its plan for the
purpose of making recommendations for improving accountability,
enforcement and consumer protections afforded to air travelers.
The Department believes that audits of customer service plans
should be conducted at least once a year to enable an airline to
quickly take action if it learns that it is not in compliance with its
customer service plans or if it is not effectively implementing its
plan. If audits are conducted once every three years as suggested by
one commenter, an airline may not be properly implementing its customer
service plans for quite some time before it becomes aware of the
problem. We are also not requiring that the audits be conducted ``at
similar times in the year'' or even that there be a single unified
audit of all the subjects covered in the customer service plans, in
order to allow each airline the flexibility to design an audit program
that fits its particular operational environment.
Retroactive Applicability of Amendments to Contracts of Carriage
The NPRM: In the NPRM, we proposed to adopt 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 asked for
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.
Comments: NBTA states that customers on the same flight should be
governed under the same contract of carriage, and last minute business
travelers should not be subject to different contracts than other
passengers. ATA also opposes this measure, and notes that carriers need
flexibility and such a requirement will discourage carriers from making
improvements in customer service due to the difficulty of dealing with
differing customer service standards as applied to passengers depending
on the time of purchase. ASTA thinks the Department should prohibit
retroactive changes to the contract of carriage, as the contract is
formed at the moment of purchase. ASTA states that it would be unfair
to the airlines to allow consumers to take retroactive advantage of
improvements that were not in effect when they bought their tickets and
equally unfair to consumers to permit an airline to change the bargain
that existed when the ticket was purchased.
DOT Response: As we believe that consumers have the right to
receive accurate information at the time of purchase about the terms in
the contract of carriage that are applicable to them and to which they
will be held, this final rule prohibits carriers from retroactively
applying any material amendment to their contracts of carriage that has
any significant negative implications for consumers who have already
bought tickets. We believe that it would be unfair, for example, for a
passenger to purchase a non-refundable ticket in March for a flight in
May and to learn later that the carrier added a significant fee in
April that the passenger would be subject to and that may have affected
his/her purchase decision had he/she been aware of it. This provision
is included in the rule as a new section 253.9 in Part 253.
Effective Date of Rule
The NPRM: In the NPRM, we proposed that the final rule take effect
180 days after its publication in the Federal Register in order to
afford carriers sufficient time to adopt their plans, modify their
computer systems, and take other necessary steps to be able to comply
with the new requirements before we begin enforcing them. We invited
comments on whether 180 days is an appropriate interval for completing
these changes.
Comments: We received few comments on this issue. Flyersrights.org
suggested that the rules should become effective after 120 days. NBTA
thinks a ``reasonable date should be established after determining the
impact the final rule will have on carriers.'' ACI-NA supports the DOT
proposal to make the final rule effective 180 days after publication in
the Federal Register but suggests a tiered implementation schedule
providing an extra 120 days to small and non-hub airports if the
Department adopts its suggestion that airlines be required to
coordinate their plans with all airports at which they provide service.
ATA recommends a ``significant implementation period'' as the rule
would require substantial software and operational changes.
DOT Response: We agree with ATA and NBTA that carriers should have
sufficient time to implement these changes. We also agree with
Flyerrights.org that four months is adequate time for carriers to
implement the necessary changes. Consequently, for the reasons stated
above the rule will go into effect 120 days after it is published in
the Federal Register.
[[Page 69000]]
Regulatory Analyses and 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. The final Regulatory Evaluation has concluded that the benefits
of the final rule exceed its costs, even without considering non-
quantifiable benefits. The total present value of benefits over a 20
year period at a 7% discount rate is $169.7 million and the total
present value of costs over a 20 year period at a 7% discount rate is
$100.6 million. The net present value of the rule for 20 years at a 7%
discount rate is $69.1 million. A copy of the final Regulatory
Evaluation has been placed in the docket.
B. 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.
An air carrier is a small business if it provides air transportation
only with small aircraft (i.e., aircraft with up to 60 seats/18,000
pound payload capacity). See 14 CFR 399.73. Our analysis identified 19
small businesses potentially affected by the requirements of the final
rule. However, although certain elements of this rule impose new
requirements on these small air carriers, the Department believes that
the economic impact will not be significant based on its examination
because for those carriers identified as small businesses (and for
which data on receipts was readily available) annualized total costs of
the rule are estimated to be one tenth of one percent or less of annual
receipts per firm. More specifically, annualized total costs as a
percent of annual receipts ranged from 0.09% to 0.0006%. On the basis
of this examination, the Department certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. A copy of the Regulatory Flexibility Analysis has been placed
in docket.
C. Executive Order 13132 (Federalism)
This Final Rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule does not include any provision that: (1) 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; (2) imposes
substantial direct compliance costs on State and local governments; or
(3) preempts State law. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
D. Executive Order 13084
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not 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.
E. Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995, DOT has
submitted the Information Collection Requests (ICRs) abstracted below
to the Office of Management and Budget (OMB). Before OMB decides
whether to approve these proposed collections of information and issue
a control number, the public must be provided 30 days to comment.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Attention: Desk Officer for the Office of the
Secretary of Transportation, Office of Information and Regulatory
Affairs, Washington, DC 20503, and should also send a copy of their
comments to: Department of Transportation, Office of Aviation
Enforcement and Proceedings, Office of the General Counsel, 1200 New
Jersey Avenue, SE., Washington, DC 20590. OMB is required to make a
decision concerning the collection of information requirements
contained in this rule between 30 and 60 days after publication of this
document in the Federal Register. Therefore, a comment to OMB is best
assured of having its full effect if OMB receives it within 30 days of
publication.
We will respond to any OMB or public comments on the information
collection requirements contained in this rule. OST may not impose a
penalty on persons for violating information collection requirements
which do not display a current OMB control number, if required. OST
intends to obtain current OMB control numbers for the three new
information collection requirements resulting from this rulemaking
action. The OMB control number, when assigned, will be announced by
separate notice in the Federal Register.
The ICRs were previously published in the Federal Register as part
of NPRM (73 FR 74587) and the Department invited interested persons to
submit comments on any aspect of each of these three 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.
The final rule contains three new information collection
requirements. The first is a requirement that certificated and commuter
air carriers that operate passenger service using any aircraft with 30
or more passenger seats retain for two years the following information
about any ground delay that lasts at least three hours: the length of
the delay, the precise cause of the delay, the actions taken to
minimize hardships for passengers, whether the flight ultimately took
off (in the case of a departure delay or diversion) or returned to the
gate; and an explanation for any tarmac delay that exceeded 3 hours.
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 assumptions upon which the calculations for this
requirement are based have not changed; however, we have modified the
information collection burden hours to take into account the fact that
the final rule requires covered carriers to retain information about
any ground delay that last at least three hours as opposed to ground
delays that last at least four hours as proposed in the NPRM. Also,
rather than using data about the total number of tarmac delays in 2007
as we did in the NPRM, we use the total number of tarmac delays
averaged in 2007-2008. The second is a requirement that any
certificated and commuter air carrier that operates scheduled passenger
service using any aircraft with 30 or more passenger seats adopt a
customer service plan, audit its adherence to the 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. We have revised the information
collection burden hours for this requirement because it applies not
[[Page 69001]]
only to the reporting carriers as proposed in the NPRM but to all U.S.
airlines that operate domestic scheduled passenger service using any
aircraft with 30 or more passenger seats. The third is a requirement
that each reporting carrier display on its Web site information on each
listed flight's on-time performance for the previous month for both its
flights and those of its non-reporting code-share carriers. This
information will help consumers to select their flights. The
assumptions upon which the calculations for this requirement are based
have changed significantly. Initially, we had estimated that the one-
time programming cost for displaying flight delay data on each covered
carrier's Web sites would be $20,000. Based on industry comments
received, we have revised the on-time programming cost from $20,000 to
$400,000 for each covered carrier. The median hourly wage for computer
programmers has decreased from $33.47 to $32.73.
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 Lasts at Least Three Hours
Respondents: Certificated and commuter air carriers that operate
domestic passenger service using any aircraft with 30 or more passenger
seats.
Estimated Annual Burden on Respondents: From 0 to 21 hours and 15
minutes (1275 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 three hours per respondent (from 0 to 85
incidents, averaged in 2007-2008).
Estimated Total Annual Burden: A maximum of 207 hours and 15
minutes (12,435 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 three hours in calendar years 2007-2008
(averaged) for the reporting carriers (748) and adding the product of
the estimated time to retain information about one ground delay (15
minutes) multiplied by 11 percent of the total number of ground delay
incidents lasting at least three hours in calendar years 2007-2008
(averaged) for the reporting carriers (82.28). (The reporting carriers
accounted for 89 percent of domestic scheduled passenger service, so we
have assumed that nearly all of the remaining 11 percent was provided
by other certificated and commuter carriers using aircraft with more
than 30 passenger seats.)
Frequency: From 0 to 85 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 three hours in a given year,
while some larger air carriers could experience as many as 85 in a
given year according to data on ground delays in the average of
calendar years 2007 and 2008.)
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: Certificated and commuter air carriers that operate
domestic scheduled passenger service using any aircraft with 30 or more
passenger seats (42 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 10 hours and 30 minutes
(630 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 (42).
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, the Percentage of Arrivals That Were More Than 30 Minutes Late
(With Special Highlighting if the Flight Was More Than 30 Minutes Late
More Than 50 Percent of the Time), and the Percentage of Flight
Cancellations if the Flight Is Cancelled More Than 5% of the Time. We
Are Adding a Requirement That a Marketing/Reporting Carrier Display
Delay Data for Its Non-Reporting Code-Share Carrier(s)
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 (9 carriers).
Estimated Annual Burden on Respondents: 11,964 hours (717,780
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 (11,951 hours [717,060
minutes], the quotient of a one-time programming cost of $400,000
divided by $33.47, 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: 107,667 hours (6,460,020 minutes) in
the first year and no more than 108 hours (6,480 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 (11,951 hours) by the number
of covered carriers (9) and adding the product of the number of hours
per year for management of data links (12) and the number of covered
carriers (9). 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 requiring action to come into
compliance (9).
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.
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 rule.
Issued this 18th day of December 2009 in Washington, DC.
Ray LaHood,
Secretary of Transportation.
List of Subjects
14 CFR Parts 234 and 259
Air carriers, Consumer protection, Reporting and recordkeeping
requirements.
14 CFR Part 253
Air carriers, Consumer protection, Contract of carriage.
14 CFR Part 399
Administrative practice and procedure, Air carriers, Air rates and
[[Page 69002]]
fares, Air taxis, Consumer protection, Small businesses.
0
For the reasons set forth in the preamble, the Department amends 14 CFR
Chapter II as follows:
PART 234--[AMENDED]
0
1. The authority citation for 14 CFR Part 234 continues to read as
follows:
Authority: 49 U.S.C. 329 and chapters 401 and 417.
0
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
or contractors 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 domestic flight for which schedule information is
available on its Web site, including domestic code-share flights, 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, the percentage of arrivals that were more
than 30 minutes late (including special highlighting if the flight was
late more than 30 minutes of scheduled arrival time more than 50
percent of the time), and the percentage of flight cancellations if 5
percent or more of the flight's operations were canceled in the month
covered. The information must be provided by showing all of the
required information on the initial listing of flights or by showing
all of the required information via a prominent hyperlink in close
proximity to each flight 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 day of the month after the
month for which the information is being provided.
PART 253--[AMENDED]
0
3. The authority citation for 14 CFR Part 253 is revised to read as
follows:
Authority: 49 U.S.C. 40113; 49 U.S.C. Chapters 401, 415 and 417.
0
4. A new Sec. 253.9 is added to read as follows:
Sec. 253.9 Retroactive Changes to Contracts of Carriage
An air carrier may not retroactively apply to persons who have
already bought a ticket any material amendment to its contract of
carriage that has significant negative implications for consumers.
0
5. 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 Plans
259.6 Notice and 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 the flights of a certificated or commuter
air carrier if the carrier operates scheduled passenger service or
public charter service using any aircraft originally designed to have a
passenger capacity of 30 or more seats, with the following exceptions:
Sec. Sec. 259.5 and 259.7 do not apply to charter service.
Sec. 259.3. Definitions.
Certificated air carrier means a U.S. air carrier that holds a
certificate issued under 49 U.S.C. 41102 to operate passenger service
or an exemption from 49 U.S.C. 41102.
Commuter air carrier means a U.S. air carrier as established by 14
CFR 298.3(b) that is authorized to carry 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.
Large hub airport means an airport that accounts for at least 1.00
percent of the total enplanements in the United States.
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.
Small aircraft means any aircraft originally designed to have a
maximum passenger capacity of 60 or fewer seats or a maximum payload
capacity of 18,000 pounds or less.
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 covered carrier shall adopt a
Contingency Plan for Lengthy Tarmac Delays for its scheduled and public
charter flights at each large and medium hub U.S. airport at which it
operates such air service and shall adhere to its plan's terms.
(b) Contents of Plan. Each Contingency Plan for Lengthy Tarmac
Delays shall include, at a minimum, the following:
(1) For domestic flights, assurance that the air carrier will not
permit an aircraft to remain on the tarmac for more than three hours
unless:
(i) The pilot-in-command determines there is a safety-related or
security-related reason (e.g. weather, a directive from an appropriate
government agency) why the aircraft cannot leave its position on the
tarmac to deplane passengers; or
(ii) Air traffic control advises the pilot-in-command that
returning to the gate or another disembarkation point elsewhere in
order to deplane passengers would significantly disrupt airport
operations.
(2) For international flights that depart from or arrive at a U.S.
airport, assurance that the air carrier will not permit an aircraft to
remain on the tarmac at a large or medium hub U.S. airport for more
than a set number of hours, as determined by the carrier and set out in
its contingency plan, before allowing passengers to deplane, unless:
(i) The pilot-in-command determines there is a safety-related or
security-related reason why the aircraft cannot leave its position on
the tarmac to deplane passengers; or
(ii) Air traffic control advises the pilot-in-command that
returning to the gate or another disembarkation point elsewhere in
order to deplane passengers would significantly disrupt airport
operations.
(3) For all flights, assurance that the air carrier will provide
adequate food and potable water no later than two hours after the
aircraft leaves the gate (in the case of departure) or touches down (in
the case of an arrival) if the aircraft remains on the tarmac, unless
the pilot-in-command determines that safety or security considerations
preclude such service;
(4) For all flights, assurance of operable lavatory facilities, as
well as
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adequate medical attention if needed, while the aircraft remains on the
tarmac;
(5) Assurance of sufficient resources to implement the plan; and
(6) Assurance that the plan has been coordinated with airport
authorities at all medium and large hub airports that the carrier
serves, including medium and large hub diversion airports.
(c) Amendment of plan. At any time, an air carrier may amend its
Contingency Plan for Lengthy Tarmac Delays to decrease the time for
aircraft to remain on the tarmac for domestic flights covered in
paragraph (b)(1) of this section, for aircraft to remain on the tarmac
for international flights covered in paragraph (b)(2) of this section,
and for the trigger point for food and water covered in paragraph
(b)(3) of this section. An air carrier may also amend its plan to
increase these intervals (up to the limits in this rule), 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 tarmac delay that lasts at
least three hours:
(1) The length of the delay;
(2) The precise cause of the delay;
(3) The actions taken to minimize hardships for passengers,
including the provision of food and water, the maintenance and
servicing of lavatories, and medical assistance;
(4) Whether the flight ultimately took off (in the case of a
departure delay or diversion) or returned to the gate; and
(5) An explanation for any tarmac delay that exceeded 3 hours
(i.e., why the aircraft did not return to the gate by the 3-hour mark).
(e) Unfair and Deceptive Practice. An air carrier's failure to
comply with the assurances required by this rule and as contained in
its Contingency Plan for Lengthy Tarmac Delays will be considered an
unfair and deceptive practice within the meaning of 49 U.S.C. 41712
that is subject to enforcement action by the Department.
Sec. 259.5 Customer Service Plan.
(a) Adoption of Plan. Each covered carrier shall adopt a Customer
Service Plan applicable to its scheduled flights 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 without payment or cancelled
without penalty for a defined amount of time;
(5) Providing prompt ticket refunds;
(6) Properly accommodating passengers with disabilities and other
special-needs, including during tarmac delays;
(7) Meeting customers' essential needs during lengthy tarmac
delays;
(8) Handling ``bumped'' passengers with fairness and consistency in
the case of oversales;
(9) Disclosing travel itinerary, cancellation policies, frequent
flyer rules, and aircraft configuration;
(10) Ensuring good customer service from code-share partners;
(11) Ensuring responsiveness to customer complaints; and
(12) Identifying the services it provides to mitigate passenger
inconveniences resulting from cancellations and misconnects.
(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. Carriers shall make the results
of their audits available for the Department's review upon request for
two years following the date any audit is completed.
Sec. 259.6 Notice and Contract of Carriage.
(a) Each air carrier that is required to adopt a Contingency Plan
for Lengthy Tarmac Delays or a Customer Service Plan may include such
plans in their Contract of Carriage.
(b) Each air carrier that has a Web site shall post its Contract of
Carriage on its Web site in easily accessible form, including all
updates to its Contract of Carriage.
(c) Each air carrier that is required to adopt a Contingency Plan
for Lengthy Tarmac Delays shall, if it has a Web site but does not
include such Contingency Plan for Lengthy Tarmac Delays in its Contract
of Carriage, post its Contingency Plan for Lengthy Tarmac Delays on its
Web site in easily accessible form, including all updates to its
Contingency Plan for Lengthy Tarmac Delays.
(d) Each air carrier that is required to adopt a Customer Service
Plan shall, if it has a Web site but does not include such Customer
Service Plan in its Contract of Carriage, post its Customer Service
Plan on its Web site in easily accessible form, including all updates
to its Customer Service Plan.
Sec. 259.7 Response to consumer problems.
(a) Designated Advocates for Passengers' Interests. Each covered
carrier shall designate for its scheduled flights an employee 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
will be delayed the longest.
(b) Informing consumers how to complain. Each covered carrier shall
make available the mailing address and e-mail or Web address of the
designated department in the airline with which to file a complaint
about its scheduled service. This information shall be provided on the
carrier's Web site (if any), on all e-ticket confirmations and, upon
request, at each ticket counter and boarding gate staffed by the
carrier.
(c) Response to complaints. Each covered carrier shall acknowledge
receipt of each complaint regarding its scheduled service to the
complainant within 30 days of receiving it and shall send a substantive
response to each complainant within 60 days of receiving the complaint.
A complaint is a specific written expression of dissatisfaction
concerning a difficulty or problem which the person experienced when
using or attempting to use an airline's services.
PART 399--[AMENDED]
0
6. The authority citation for 14 CFR Part 399 continues to read as
follows:
Authority: 49 U.S.C. 40101 et seq.
0
7. Section 399.81 is revised to read as follows:
Sec. 399.81 Unrealistic or deceptive scheduling.
(a) The unrealistic scheduling of flights by any air carrier
providing scheduled passenger air transportation is 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
an unfair or deceptive practice and an unfair method of competition to
use 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 system-wide
operations thereby represented and whether the figures include all
scheduled flights or only scheduled flights actually performed.
(c) Chronically delayed flights. (1) This section applies to any
air carrier that is a ``reporting carrier'' as defined in Part 234 of
Department regulations (14 CFR Part 234).
(2) For the purposes of this section, a chronically delayed flight
means any domestic flight that is operated at least
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10 times a month, and arrives more than 30 minutes late (including
cancelled flights) more than 50 percent of the time during that month.
(3) For purposes of this paragraph, the Department considers all of
a carrier's flights that are operated 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) The holding out of a chronically delayed flight for more than
four consecutive one-month periods represents one form of unrealistic
scheduling and is an unfair or deceptive practice and an unfair method
of competition within the meaning of 49 U.S.C. 41712.
[FR Doc. E9-30615 Filed 12-29-09; 8:45 am]
BILLING CODE 4910-9X-P