[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Rules and Regulations]
[Pages 68983-69004]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30615]



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  Federal Register / Vol. 74, No. 249 / Wednesday, December 30, 2009 / 
Rules and Regulations  

[[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.

-----------------------------------------------------------------------

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), 
[email protected] or [email protected] (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.
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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

[[Page 69003]]

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

[[Page 69004]]

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