[Federal Register Volume 75, Number 109 (Tuesday, June 8, 2010)]
[Proposed Rules]
[Pages 32318-32341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13572]



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DEPARTMENT OF TRANSPORTATION



Office of the Secretary



14 CFR Parts 234, 244, 250, 253, 259, and 399



[Docket No. DOT-OST-2010-0140]

RIN No. 2105-AD92




Enhancing Airline Passenger Protections



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

(DOT).



ACTION: Notice of Proposed Rulemaking (NPRM).



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SUMMARY: The Department of Transportation is proposing to improve the 

air travel environment for consumers by: increasing the number of 

carriers that are required to adopt tarmac delay contingency plans and 

the airports at which they must adhere to the plan's terms; increasing 

the number of carriers that are required to report tarmac delay 

information to the Department; expanding the group of carriers that are 

required to adopt, follow, and audit customer service plans and 

establishing minimum standards for the subjects all carriers must cover 

in such plans; requiring carriers to include their contingency plans 

and customer service plans in their contracts of carriage; increasing 

the number of carriers that must respond to consumer complaints; 

enhancing protections afforded passengers in oversales situations, 

including increasing the maximum denied boarding compensation airlines 

must pay to passengers bumped from flights; strengthening, codifying 

and clarifying the Department's enforcement policies concerning air 

transportation price advertising practices; requiring carriers to 

notify consumers of optional fees related to air transportation and of 

increases in baggage fees; prohibiting post-purchase price increases; 

requiring carriers to provide passengers timely notice of flight status 

changes such as delays and cancellations; and prohibiting carriers from 

imposing unfair contract of carriage choice-of-forum provisions. The 

Department is proposing to take this action to strengthen the rights of 

air travelers in the event of oversales, flight cancellations and long 

delays, and to ensure that passengers have accurate and adequate 

information to make informed decisions when selecting flights. In 

addition, the Department is considering several measures, including 

banning the serving of peanuts on commercial airlines, to provide 

greater access to air travel for the significant number of individuals 

with peanut allergies.



DATES: Comments should be filed by August 9, 2010. Late-filed comments 

will be considered to the extent practicable.



ADDRESSES: You may file comments identified by the docket number DOT-

OST-2010-0140 by any of the following methods:

     Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting 

comments.

     Mail: Docket Management Facility, U.S. Department of 

Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 

20590-0001.

     Hand Delivery or Courier: West Building Ground Floor, Room 

W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 

Monday through Friday, except Federal Holidays.

     Fax: (202) 493-2251.

    Instructions: You must include the agency name and docket number 

DOT-OST-2010-XXXX or the Regulatory Identification Number (RIN) for the 

rulemaking at the beginning of your comment. All comments received will 

be posted without change to http://www.regulations.gov, including any 

personal information provided.

    Privacy Act: Anyone is able to search the electronic form of all 

comments received in any of our dockets by the name of the individual 

submitting the comment (or signing the comment if submitted on behalf 

of an association, a business, a labor union, etc.). You may review 

DOT's complete Privacy Act statement in the Federal Register published 

on April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.

    Docket: For access to the docket to read background documents or 

comments received, go to http://www.regulations.gov or to the street 

address listed above. Follow the online instructions for accessing the 

docket.



FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie, 

Office of the Assistant General Counsel for Aviation Enforcement and 

Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave., 

SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax), 

[email protected] or [email protected] (e-mail).



SUPPLEMENTARY INFORMATION:



Pilot Project on Open Government and the Rulemaking Process



    On January 21st, 2009, President Obama issued a Memorandum on



[[Page 32319]]



Transparency and Open Government in which he described how ``public 

engagement enhances the Government's effectiveness and improves the 

quality of its decisions'' and how ``knowledge is widely dispersed in 

society, and public officials benefit from having access to that 

dispersed knowledge.'' To support the President's open government 

initiative, DOT plans to continue its partnership with the Cornell 

eRulemaking Initiative (CeRI) in a pilot project, Regulation Room, to 

discover the best ways of using Web 2.0 and social networking 

technologies to: (1) Alert the public, including those who sometimes 

may not be aware of rulemaking proposals, such as individuals, public 

interest groups, small businesses, and local government entities, that 

rulemaking is occurring in areas of interest to them; (2) increase 

public understanding of each proposed rule and the rulemaking process; 

and (3) help the public formulate more effective individual and 

collaborative input to DOT. We anticipate, over the course of several 

rulemaking initiatives, that CeRI will use different Web technologies 

and approaches to enhance public understanding and participation, work 

with DOT to evaluate the advantages and disadvantages of these 

techniques, and report their findings and conclusions on the most 

effective use of social networking technologies in this area.

    DOT and the Obama Administration are striving to increase effective 

public involvement in the rulemaking process and strongly encourage all 

parties interested in this rulemaking to visit the Regulation Room Web 

site, http://www.regulationroom.org, to learn about the rule and the 

rulemaking process, to discuss the issues in the rule with other 

persons and groups, and to participate in drafting comments that will 

be submitted to DOT. A Summary of the discussion that occurs on the 

Regulation Room site and participants will have the chance to review a 

draft and suggest changes before the Summary is submitted. Participants 

who want to further develop ideas contained in the Summary, or raise 

additional points, will have the opportunity to collaboratively draft 

joint comments that will be also be submitted to the rulemaking docket 

before the comment period closes.

    Note that Regulation Room is not an official DOT Web site, and so 

participating in discussion on that site is not the same as commenting 

in the rulemaking docket. The Summary of discussion and any joint 

comments prepared collaboratively on the site will become comments in 

the docket when they are submitted to DOT by CeRI. At any time during 

the comment period, anyone using Regulation Room can also submit 

individual views to the rulemaking docket through the federal 

rulemaking portal Regulations.gov, or by any of the other methods 

identified at the beginning of this Notice. For questions about this 

project, please contact Brett Jortland in the DOT Office of General 

Counsel at 202-421-9216 or [email protected].



Summary of Preliminary Regulatory Analysis



    The preliminary regulatory analysis suggests that the benefits of 

the proposed requirements exceed its costs, even without considering 

non-quantifiable benefits. This analysis, outlined in the table below, 

finds that the expected net present value of the rule for 10 years at a 

7% discount rate is estimated to be $61.6 million. At a 3% discount 

rate, the expected net present value of the rule is estimated to be 

$75.7 million.



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

                                                          Present value

                                                            (millions)

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Total Quantified Benefits:

    10 Years, 7% discounting...........................            $87.6

    10 Years, 3% discounting...........................            104.2

Total Quantified Costs:

    10 Years, 7% discounting...........................             26.0

    10 Years, 3% discounting...........................             28.5

Net Benefits:

    10 Years, 7% discounting...........................             61.6

    10 Years, 3% discounting...........................             75.7

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



A comparison of the estimated benefits and costs for each of the 11 

proposed requirements is provided in the Regulatory Analysis and 

Notices section, along with information on additional benefits and 

costs for which quantitative estimates could not be developed.



Background



    On December 8, 2008, the Department published a Notice of Proposed 

Rulemaking (NPRM) on enhancing airline passenger protections. See 73 FR 

74586 (December 8, 2008). After reviewing and considering the comments 

on the NPRM, on December 30, 2009, the Department published a final 

rule in which the Department required certain U.S. air carriers to 

adopt contingency plans for lengthy tarmac delays; respond to consumer 

problems; post flight delay information on their Web sites; and adopt, 

follow, and audit customer service plans. The rule also defined 

chronically delayed flights and deemed them to be an ``unfair and 

deceptive'' practice. That rule took effect on April 29, 2010. See 74 

FR 68983 (December 30, 2009).

    In the preamble to the final rule, the Department noted that it 

planned to review additional ways to further enhance protections 

afforded airline passengers and listed a number of subject areas that 

it was considering addressing in a future rulemaking. The areas 

specifically mentioned as being under consideration were as follows: 

(1) DOT 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 optional services are pre-selected for 

consumers at an additional cost (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. This NPRM addresses most of those 

issues, as well as other matters that we believe are necessary to 

ensure fair treatment of passengers. We have described each proposal in 

this NPRM in detail below and invite all interested persons to comment.



[[Page 32320]]



Notice of Proposed Rulemaking



1. Tarmac Delay Contingency Plans



    The Department's final rule entitled ``Enhancing Airline Passenger 

Protections,'' which was published in the Federal Register on December 

30, 2009 (74 FR 68983), requires, among other things, that U.S. 

carriers adopt tarmac delay contingency plans that include, at a 

minimum, the following: (1) An assurance that, for domestic flights, 

the U.S. carrier will not permit an aircraft at a medium or large hub-

airport 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, 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 U.S. 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 U.S. 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 U.S. carrier serves, including medium and large hub 

diversion airports. The final rule also requires U.S. carriers to 

retain for two years the following information on any tarmac delay that 

lasts at least three hours: 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 not return to the gate by the 

three-hour mark.

    This NPRM proposes to strengthen the protections for consumers by 

making substantive changes in four areas: Requiring foreign air 

carriers to adopt tarmac delay contingency plans, increasing the number 

of airports at which carriers must adhere to their plans to include 

U.S. small and non-hub airports, requiring carriers to coordinate their 

tarmac delay contingency plans with all U.S. airports they serve, and 

requiring carriers to communicate with passengers during tarmac delays. 

More specifically, the NPRM proposes to require any foreign air carrier 

that operates scheduled passenger or public charter service to and from 

the U.S. using any aircraft originally designed to have a passenger 

capacity of 30 or more passenger seats to adopt a tarmac delay 

contingency plan that includes minimum assurances identical to those 

currently required of U.S. carriers for the latter's international 

flights. As proposed, it would apply to all of a foreign carrier's 

flights to and from the U.S., including those involving aircraft with 

fewer than 30 seats if a carrier operates any aircraft originally 

designed to have a passenger capacity of 30 or more seats to or from 

the U.S. The NPRM also proposes to require that U.S. and foreign air 

carriers coordinate their contingency plans with all airports they 

serve (small and non-hub airports as well as the medium and large hub 

airports covered by the existing rule) and with the Transportation 

Security Administration (TSA) and U.S. Customs and Border Protection 

(CBP) for any U.S. airport that the carrier regularly uses for its 

international flights, including diversion airports.

    Under the proposed rule, the tarmac delay contingency plans would 

cover operations at each U.S. large hub airport, medium hub airport, 

small hub airport and non-hub U.S. airport. Further, the NPRM proposes 

to require that U.S. and foreign air carriers update passengers every 

30 minutes during a tarmac delay regarding the status of their flight 

and the reasons for the tarmac delay. The regulation would specify that 

the Department would consider failure to comply with any of the 

assurances that are required by this rule to be contained in a 

carrier's tarmac delay contingency plan to be an unfair and deceptive 

practice within the meaning of 49 U.S.C. 41712 and subject to 

enforcement action.

    We are proposing these regulations because the Department believes 

that it is important to ensure that passengers on all international 

flights to and from the United States are afforded protection from 

unreasonably lengthy tarmac delays. As is the case under the existing 

rule for international flights of covered U.S. carriers, at this time, 

we intend to allow foreign carriers to develop and implement a 

contingency plan for lengthy tarmac delays that has more flexible 

requirements than those that apply to domestic flights with regard to 

the time limit to deplane passengers. Also, as in our initial 

rulemaking to enhance airline passenger protections, this limit will 

allow exceptions for considerations of safety, security and for 

instances in which Air Traffic Control advises the pilot-in-command 

that returning to the gate or permitting passengers to disembark 

elsewhere would significantly disrupt airport operations. It is worth 

noting that there are ongoing questions as to whether mandating a 

specific time frame for deplaning passengers on international flights 

is in the best interest of the public; a number of arguments have been 

presented for not imposing such a limit. Most international flights 

operate less frequently than most domestic flights, potentially 

resulting in much greater harm to consumers if carriers cancel these 

international flights (e.g., passengers are less likely to be 

accommodated on an alternate flight in a reasonable period of time). We 

ask interested persons to comment on whether any final rule that we may 

adopt should include a uniform standard for the time interval after 

which U.S. or foreign air carriers would be required to allow 

passengers on international flights to deplane. Commenters who support 

the adoption of a uniform standard should propose specific amounts of 

time and state why they believe these intervals to be appropriate.

    We also seek comment on the cost burdens and benefits should the 

requirement to have a contingency plan be narrowed or expanded. For 

example, while we are proposing here to include foreign carriers that 

operate aircraft originally designed to have a passenger capacity of 30 

or more seats to and from the U.S., we invite interested persons to 

comment on whether, in the event that we adopt a rule requiring foreign 

carriers to have contingency plans, we should limit its applicability 

to foreign air carriers that operate large aircraft to and from the 

U.S.--i.e., aircraft originally designed to have a maximum passenger 

capacity of more than 60



[[Page 32321]]



seats. We also seek comment on whether we should expand coverage of the 

requirement to adopt tarmac delay contingency plans so that the 

obligation to adopt such a plan and adhere to its terms is not only the 

responsibility of the operating carrier but also the carrier under 

whose code the service is marketed if different. In addition, should 

coverage be further expanded to require U.S. airports to adopt tarmac 

delay contingency plans? Proponents of these or other alternative 

proposals should provide arguments and evidence in support of their 

position, as should opponents.

    In the initial rulemaking to enhance airline passenger protections, 

we decided to implement a rule requiring certain U.S. carriers to 

coordinate their contingency plans with large-hub and medium-hub 

airports, as well as diversion airports that the carrier serves. Those 

airports are the only ones covered by the current rule. We are 

proposing to extend this requirement to small and non-hub airports and 

to require all covered carriers (U.S. and foreign) to coordinate their 

plans with each U.S. large hub airport, medium hub airport, small hub 

airport and non-hub U.S. airport that they serve as well as TSA and 

CBP. The Department believes that the same issues and discomfort to 

passengers during an extended tarmac delay are likely to occur 

regardless of airport size or layout. We also strongly believe that it 

is essential that airlines involve airports and appropriate Federal 

agencies in developing their plans to enable them to effectively meet 

the needs of passengers. As such, we are proposing to extend this rule 

to require covered carriers to coordinate their plans with each U.S. 

large hub airport, medium hub airport, small hub airport and non-hub 

U.S. airport to which they regularly operate scheduled passenger or 

public charter service.

    As recommended by the Tarmac Delay Task Force, we are also 

proposing to require carriers to include CBP and TSA in their 

coordination efforts for any U.S. diversion airport which they 

regularly use. We believe this proposal is necessary, as it has come to 

the Department's attention on more than one occasion passengers on 

international flights were held on diverted aircraft for extended 

periods of time because there was no means to process those passengers 

and allow them access to terminal facilities. The Department of 

Homeland Security has advised this Department that, subject to 

coordination with CBP regional directors, passengers on diverted 

international flights may be permitted into closed terminal areas 

without CBP screening. We invite interested persons to comment on this 

proposal. What costs and benefits would result from this requirement? 

Is it workable to include small and non-hub airports served by a 

carrier? Should the rule be expanded to include other commercial U.S. 

airports (i.e., those with less than 10,000 annual enplanements)? We 

are soliciting comments from airlines, airports and other industry 

entities on whether there are any special operational concerns 

affecting such airports.

    The Department has also given consideration to passengers' 

frustration with lack of communication by carrier personnel about the 

reasons a flight is experiencing a long tarmac delay. It does not seem 

unreasonable or unduly burdensome to require carriers to address this 

issue and verbally inform passengers as to the flight's operational 

status on a regular basis during a lengthy tarmac delay. As such, the 

Department is proposing a rule requiring carriers to announce to 

passengers on covered flights every 30 minutes the reasons for the 

delay, and/or the operational status of the flight. We do not 

anticipate that a carrier's flight crews will know every nuance of the 

reason for the delay, but we do expect them to inform passengers of the 

reasons of which they are aware and to make reasonable attempts to 

acquire information about the reason(s) for that delay. We also invite 

comment on whether carriers should be required to announce that 

passengers may deplane from an aircraft that is at the gate or other 

disembarkation area with the door open. The Department's Office of 

Aviation Enforcement and Proceedings has previously explained that a 

tarmac delay begins when passengers no longer have an option to get off 

of the aircraft, which usually occurs when the doors of the aircraft 

are closed, and encouraged carriers to announce to passengers on 

flights that remain at the gate with the doors open that the passengers 

are allowed off the aircraft if that is the case. However, such an 

announcement is not explicitly required in the existing rule. We seek 

comment on the benefit to consumers of mandating such announcements. 

Commenters, including carriers and carrier associations, should also 

address any costs and/or operational concerns related to implementing a 

rule requiring such announcements.



2. Tarmac Delay Data



    We are proposing to require all carriers that must comply with 14 

CFR 259.4, which requires carriers to adopt contingency plans for 

lengthy tarmac delays, file tarmac delay data with the Department to 

the extent they are not already required to file such data pursuant to 

14 CFR part 234. Incidents of lengthy tarmac delays have captured much 

public attention in recent years and have been the focus of 

considerable Department attention as well. On October 1, 2008, the 

Department's Bureau of Transportation Statistics (BTS) began collecting 

more detailed tarmac delay information from all U.S. carriers that file 

the ``On-Time Flight Performance Report'' (BTS Form 234) under 14 CFR 

part 234, ``reporting carriers''. The data do not, however, provide a 

complete picture of tarmac delays, as the reporting carriers only 

submit data concerning their scheduled domestic flights as a function 

of their being required to report on-time performance data. These 

reporting carriers currently constitute the 16 largest U.S. carriers by 

scheduled-service passenger revenue, plus two carriers that voluntarily 

file the report. In addition, smaller U.S. carriers which are subject 

to the Department's contingency plan rule that was effective April 29, 

2010, do not currently submit any tarmac delay data to the Department 

and foreign air carriers which we are proposing in this NPRM adopt 

tarmac delay contingency plans also do not submit tarmac delay data to 

the Department.

    While a single incident of tarmac delay may be attributed to one or 

more causes, such as air traffic congestion, weather related delays, 

mechanical problems, and/or flight dispatching logistic failures, we 

believe that an initial and essential step toward finding solutions for 

the tarmac delay problem, whether by government regulations and/or 

through voluntary actions by the airlines, and monitoring the effect on 

consumers of lengthy tarmac delays, is to obtain more complete data on 

these incidents. Therefore, we are tentatively of the opinion that we 

should expand the pool of carriers that must file information with the 

Department regarding tarmac delays to U.S. carriers and foreign 

carriers that operate any aircraft originally designed with a passenger 

capacity of 30 or more passenger seats with respect to their operations 

at U.S. airports. The more complete picture of lengthy tarmac delays 

afforded by these new data will help establish a vital platform for the 

Department's future rulemaking and policy decision-making, for FAA 

airport and air traffic control infrastructure and technology 

modification and improvement, and for system operating improvements and 

reform by the airline



[[Page 32322]]



industry. Furthermore, the result of such analysis will provide the 

Department, the industry, and the public more precise data with which 

to compare tarmac delay incidents by carrier, by airport, and by 

specific time frame.

    This rule as proposed would apply to all U.S. carriers that are 

covered by the Department's existing rule requiring tarmac delay 

contingency plans, as well as foreign carriers that we are proposing, 

in this NPRM, be required to adopt tarmac delay contingency plans (see 

proposed changes to 14 CFR 259.4). Thus, this proposal would cover 

tarmac delays at U.S. airports by all U.S. certificated and commuter 

carriers that operate any aircraft originally designed to have a 

passenger capacity of 30 or more seats. It also would cover tarmac 

delays at U.S. airports by all foreign carriers that operate passenger 

service to and from the U.S. using any aircraft originally designed to 

have a passenger capacity of 30 or more seats. We seek comment on 

whether we should limit the requirement to file tarmac delay data to 

U.S. and foreign air carriers that operate large aircraft to and from 

the U.S.--i.e., aircraft originally designed to have a maximum 

passenger capacity of more than 60 seats. Commenters should explain why 

they favor such a limitation and suggest alternate approaches to 

capturing tarmac delay data.

    We note that using just one qualifying aircraft (i.e., originally 

designed to have a passenger capacity of 30 or more passenger seats) 

will cause all of a U.S. carrier's flights to be covered by this rule. 

The same is true of a foreign carrier's flights that originate or 

terminate at a U.S. airport. For example, if a foreign carrier operates 

any aircraft to or from the U.S. that was originally designed to have a 

passenger capacity of 30 or more seats, all of its flight taking off or 

landing at a U.S. airport, regardless of size of aircraft and seating 

capacity, will be subject to the reporting requirements of the proposed 

rule.

    We are mindful of the costs associated with submitting data to the 

Department, especially in light of the relatively limited resources of 

smaller carriers and the relatively fewer flights to and from the U.S. 

by foreign carriers and we do not intend with this proposal to impose a 

comprehensive on-time reporting scheme, as exists for the largest U.S. 

carriers now covered by Part 234. With this concern in mind, using the 

Part 234 requirements as a model, we have narrowed the data fields we 

propose to be reported to those we believe are necessary for us to 

extract necessary tarmac delay information. In addition, we propose to 

require these tarmac delay data to be reported each month only with 

respect to tarmac delays of 3 hours or more.

    We recognize that carriers subject to our new contingency plan rule 

that went into effect April 29, 2010, are required to retain for two 

years certain information regarding tarmac delays of 3 hours or more. 

We note that the reporting requirement proposed in this notice is 

separate and distinct from that information retention requirement, with 

a different purpose. Where that rule is focused on carrier compliance 

with consumer protection-related requirements and requires only that 

carriers retain the information for a limited period of time, we 

propose here that carriers report monthly a set of data regarding 

tarmac delays that will provide the Department more complete 

information on lengthy tarmac delays throughout the air transportation 

system in the U.S. The Department plans to publish a summary of this 

information in its Air Travel Consumer Report, a monthly publication 

product of the Department of Transportation's Office of Aviation 

Enforcement and Proceedings that is designed to assist consumers with 

information on the quality of services provided by airlines. We welcome 

suggestions from the public and the industry on whether there are other 

means to further reduce the carriers' burden yet still effectively 

achieve the goal of this proposal.



3. Customer Service Plans



    Under the final rule published on December 30, 2009, U.S. carriers 

are required to adopt customer service plans for their scheduled 

flights that address, at a minimum, the following service areas: (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; (11) ensuring responsiveness to customer complaints; and (12) 

identifying the services they provide to mitigate passenger 

inconveniences resulting from flight cancellations and misconnections. 

The rule also requires U.S. carriers to audit their plan annually and 

make the results of their audits available for the Department's review 

upon request.

    This NPRM proposes to increase the protections afforded consumers 

in that recent final rule by requiring foreign air carriers to adopt, 

follow, and audit customer service plans and establishing minimum 

standards for what must be included in the customer service plans of 

all covered carriers (U.S. and foreign). We are proposing to cover 

foreign air carriers operating scheduled passenger service to and from 

the U.S. using any aircraft originally designed to have a passenger 

capacity of 30 or more passenger seats. The rule would apply to all 

flights to and from the U.S. of those carriers, including flights 

involving aircraft with fewer than 30 seats if a carrier operates any 

aircraft with 30 or more passenger seats to and from the U.S. We ask 

interested persons to comment on whether the proposed requirement for 

foreign air carriers to adopt, follow and audit customer service plan 

should be narrowed in some fashion--e.g., should never apply to 

aircraft with fewer than 30 seats?

    Each foreign carrier's plan would have to address the same subjects 

currently required of U.S. carriers in the Department's rule to enhance 

airline passenger protections. We are also proposing to require that 

foreign air carriers make the results of their audits of their customer 

service plans available for the Department's review upon request for 

two years following the date any audit is completed. A carrier's 

failure to adopt a customer service plan for its scheduled service, 

adhere to its plan's terms, audit its own adherence to its plan 

annually or make the results of its audits available for the 

Department's review upon request would be considered an unfair and 

deceptive practice within the meaning of 49 U.S.C. 41712 and subject to 

enforcement action.

    A substantial number of air travelers fly to and from the United 

States on flights operated by foreign carriers, whether through a code-

share arrangement or by directly arranging for that transportation. By 

requiring foreign carriers to adopt plans, audit their own compliance, 

and make the results of their audits available for us to review, we 

intend to afford consumers better protection on nearly all flights to 

and from the United States, not just those of the U.S. carriers to 

which the rule is currently applicable. The Department is soliciting 

comment on the costs and benefits associated with this requirement. We 

would like foreign carriers to comment on whether similar



[[Page 32323]]



plans already exist, and if so, how they currently implement such 

plans.

    The Department also proposes to require covered carriers' customer 

service plans meet minimum standards to ensure that the carriers' (U.S. 

and foreign) plans are specific and enforceable. The Department is 

concerned that many carriers' customer service plans are not specific 

enough for a consumer to have realistic expectations of the types of 

services a carrier will provide under its plan, or that some carriers 

may not be living up to their customer service commitments. Based on a 

review of existing customer service plans, the Department found that 

some carriers' plans do contain specifics regarding the type of 

services a consumer can expect (e.g., returning baggage by a specified 

time after the flight or holding reservations without charge for a 

specific period of time), while others carriers' plans are vaguely 

written making it difficult for a consumer to know how a carrier will 

address those subjects or whether a carrier has fulfilled its promises. 

As such, the Department believes establishing minimum standards for the 

plans will result in consumers being better informed and protected. As 

always carriers are free to set higher standards than those mandated by 

the Department. We also note that all of the subjects for which we are 

proposing to require a standard are already required to be included in 

the customer service plans for U.S. carriers (e.g., oversales/denied 

boarding compensation, refunds), which should minimize the burden on 

these carriers to comply with the proposed new requirement to establish 

standards for those subjects. In addition, when determining what 

minimum standards to apply to these plans, the Department reviewed 

customer service plans as currently implemented by a number of 

carriers, and chose the services already provided by some carriers that 

appear to be ``best practices.''

    We seek comment on both the costs and benefits of requiring 

carriers to adopt these minimum standards. The minimum standards that 

we are proposing are as follows: (1) Offering the lowest fare available 

on the carrier's Web site, at the ticket counter, or when a customer 

calls the carrier's reservation center to inquire about a fare or to 

make a reservation; (2) notifying consumers in the boarding gate area, 

on board aircraft, and via a carrier's telephone reservation system and 

its Web site of known delays, cancellations, and diversions; (3) 

delivering baggage on time, including making every reasonable effort to 

return mishandled baggage within twenty-four hours and compensating 

passengers for reasonable expenses that result due to delay in 

delivery; (4) allowing reservations to be held at the quoted fare 

without payment, or cancelled without penalty, for at least twenty-four 

hours after the reservation is made; (5) where ticket refunds are due, 

providing prompt refunds for credit card purchases as required by 14 

CFR 374.3 and 12 CFR part 226, and for cash and check purchases within 

20 days after receiving a complete refund request; (6) properly 

accommodating passengers with disabilities as required by 14 CFR part 

382 and for other special-needs passengers as set forth in the 

carrier's policies and procedures, including during lengthy tarmac 

delays; (7) meeting customers' essential needs during lengthy tarmac 

delays as required by 14 CFR 259.4 and as provided for in each covered 

carrier's contingency plan; (8) handling ``bumped'' passengers with 

fairness and consistency in the case of oversales as required by 14 CFR 

part 250 and as described in each carrier's policies and procedures for 

determining boarding priority; (9) disclosing cancellation policies, 

frequent flyer rules, aircraft configuration, and lavatory availability 

on the selling carrier's Web site, and upon request, from the selling 

carrier's telephone reservations staff; (10) notifying consumers in a 

timely manner of changes in their travel itineraries; (11) ensuring 

good customer service from code-share partners operating a flight, 

including making reasonable efforts to ensure that its code-share 

partner(s) have comparable customer service plans or provide comparable 

customer service levels, or have adopted the identified carrier's 

customer service plan; (12) ensuring responsiveness to customer 

complaints as required by 14 CFR 259.7; and (13) identifying the 

services it provides to mitigate passenger inconveniences resulting 

from flight cancellations and misconnections.

    With regard to delivering baggage on time, we solicit comment on 

whether we should also include as standards (1) that carriers reimburse 

passengers the fee charged to transport a bag if that bag is lost or 

not timely delivered, as well as (2) the time when a bag should be 

considered not to have been timely delivered (e.g., delivered on same 

or earlier flight than the passenger, delivered within 2 hours of the 

passenger's arrival). With regard to providing prompt refunds, we seek 

comment on whether we should also include as a standard that carriers 

refund ticketed passengers, including those with non-refundable 

tickets, for flights that are canceled or significantly delayed if the 

passenger chooses not to travel as a result of the travel disruption. 

The Department's Aviation Enforcement Office has issued notices in the 

past advising airlines that it would be an unfair and deceptive 

practice in violation of 49 USC 41712 for a carrier to apply its non-

refundability provision in the event of a significant change in 

scheduled departure or arrival time, whether it be due to carrier 

action or a matter out of the carrier's control, including ``acts of 

god.'' We request comment on the methodology for defining a significant 

delay in the event such a standard is adopted. Should the Department 

establish a bright line rule that any delay of 3 hours or more is a 

significant delay? Should the determination of whether a flight has 

been significantly delayed be based on the duration of the flight 

(e.g., is 3 hours a significant delay on flights of two hours or less 

and 4 hours a significant delay on flights of more than two hours)?

    With respect to notifying passengers on board aircraft of delays, 

we seek comment on how often updates should be provided and whether we 

should require that passengers be advised when they may deplane from 

aircraft during lengthy tarmac delays. For example, we have received 

complaints from passengers that their aircraft has returned to the gate 

less than three hours after departure for emergency or mechanical 

reasons but they were not advised that they could deplane. Carriers may 

feel the 3-hour tarmac delay limit has been tolled by such a gate 

return, but passengers feel they were not truly afforded the 

opportunity to deplane within the meaning of this rule.

    As for the customer service commitment to provide prompt refunds 

where ticket refunds are due, we invite comment on whether it is 

necessary to include as a standard the requirement that when a flight 

is cancelled carriers must refund not only the ticket price but also 

any optional fees charged to a passenger for that flight (e.g., baggage 

fees, ``service charges'' for use of frequent flyer miles when the 

flight is canceled by the carrier). Irrespective of whether such a 

standard is included in a carrier's customer service commitment, the 

Department would view a carrier's failure to provide a prompt refund to 

a passenger of the ticket price and related optional fees when a flight 

is canceled to be an unfair and deceptive practice. We request comment 

as to whether it is workable to set minimum standards for any of the 

subjects contained in the customer



[[Page 32324]]



service plans and invite those that oppose the notion of the Department 

setting minimum standards for customer service plans as unduly 

burdensome to provide evidence of the costs that they anticipate. We 

further invite comment or suggestions on the type of standards that 

should be set.

    Although the subjects we are proposing that foreign air carriers 

address in their customer service plans are identical to those U.S. 

carriers already are required to include in their customer service 

plans, we request comment on whether any of these subjects would be 

inappropriate if applied to a foreign air carrier. Why or why not? 

Moreover, we seek comment on whether the Department should require that 

all airlines address any other subject in their customer service plans. 

For example, should mandatory disclosure to passengers and other 

interested parties of past delays or cancellations of particular 

flights before ticket purchase be a new subject area covered in 

customer service plans? If so, what should be the minimum timeliness/

cancellation standard? In this regard, there is already a requirement 

for reporting carriers (i.e., the largest U.S. carriers) to post flight 

delay data on their Web sites and for their reservation agents to 

disclose to customers, upon request, the on-time performance code of a 

flight. Should more direct and mandatory disclosure be required, e.g., 

a required warning before the final purchase decision is made regarding 

chronically late or routinely canceled flights? We also seek comment on 

the appropriate minimum timeliness/cancellation standard for U.S. 

carriers and foreign air carriers that do not report on time 

performance data to DOT if we were to adopt a requirement that airlines 

address notification to consumers of past delays or cancellation in 

their customer service plans.



4. Contracts of Carriage



    The Department is proposing to adopt a rule requiring carriers 

(U.S. and foreign) to include their contingency plans and customer 

service plans in their contracts of carriage. We first proposed this 

requirement in the notice of proposed rulemaking on enhancing airline 

passenger protections which was published in the Federal Register on 

December 8, 2008. Ultimately, the Department decided not to require 

such incorporation at that time and instead strongly encouraged 

carriers to voluntarily incorporate the terms of their tarmac delay 

contingency plans in their contracts of carriage, as most major 

carriers had already done with respect to their customer service plans. 

The Department did require that each U.S. 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 indicated that it would address this issue in a future rulemaking 

and take into account, among other things, whether the voluntary 

incorporation of contingency plan terms had resulted in sufficient 

protections for air travelers.

    The Department continues to believe that 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. Further, by placing the contingency plan terms in the U.S. 

selling carrier's contract of carriage both that carrier and its 

foreign code share partner carrier are responsible in an enforcement 

context for compliance, which we view as a beneficial aspect of this 

proposal. We also continue to be confident that we have the authority 

to require such incorporation based on 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, which clearly 

encompasses the regulation of contingency plans.

    In the December 30, 2009, final rule to enhance airline passenger 

protections, we stated that we intended to closely monitor carriers' 

responses to our efforts in this regard and that we would not hesitate 

to revisit our decision in another rulemaking. As it appears that many 

carriers are choosing not to place their contingency plans and/or 

customer service plans in their contracts of carriage, or have little 

incentive to do so, and because we believe the incorporation of airline 

contingency plans in contracts of carriage to be in the public 

interest, we are again proposing the implementation of this 

requirement.

    As stated previously, the Department recognizes that many 

passengers travel to and from the U.S. on flights operated by foreign 

carriers, and they should have adequate passenger protections on those 

flights. As such, we propose to include foreign carriers in the 

requirement for airlines to place their contingency plans and customer 

service plans in their contracts of carriage. The Department is seeking 

comment on whether the incorporation of the contingency plans and 

customer service plans in the contract of carriage gives consumers 

adequate notice of what might happen in the event of a long delay on 

the tarmac and/or of passengers' rights under carriers' customer 

service plans. As in the past, commenters should also address whether 

and to what extent requiring the incorporation of contingency plans in 

carriers' contracts of carriage might weaken existing plans: That is, 

would the requirement encourage carriers to exclude certain key terms 

from their plans in order to avoid compromising their flexibility to 

deal with circumstances that can be both complex and unpredictable? We 

are also soliciting comment on the proposal to extend this provision to 

foreign carriers.



5. Response to Consumer Problems



    The recently issued final rule on enhancing airline passenger 

protections requires U.S. carriers that operate scheduled passenger 

service using any aircraft originally designed to have a passenger 

capacity of 30 or more seats to designate 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. It 

also requires U.S. carriers to 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 and to 

acknowledge receipt of each complaint regarding its scheduled service 

to the complainant within 30 days of receiving it and to send a 

substantive response to each complainant within 60 days of receiving 

it. A complaint is defined as a specific written expression of 

dissatisfaction concerning a difficulty or problem which the person 

experienced when using or attempting to use an airline's service.

    This proposal would require a foreign air carrier that operates 

scheduled passenger service to and from the United States using any 

aircraft originally designed to have a passenger capacity of 30 or more 

seats to do the same for its flights to and from the U.S. We are 

proposing to extend these provisions to foreign carriers as the 

Department believes passengers should also be afforded adequate 

consumer protection when issues arise with delays



[[Page 32325]]



or cancellations on flights to and from the U.S. operated by a foreign 

carrier, and should also have an avenue to file a complaint with a 

foreign carrier and to expect a timely and substantive response to that 

complaint. We invite interested persons to comment on this proposal. 

What costs and/or operational concerns would it impose on foreign 

carriers and what are the benefits to consumers? In particular, we are 

soliciting comments on any operational difficulties U.S. and foreign 

airlines may face in responding to consumer complaints received through 

social networking mediums such as Facebook or Twitter. Do airlines 

currently communicate to customers and prospective customers through 

social networking mediums?



6. Oversales



    Part 250 establishes the minimum standards for the treatment of 

airline passengers holding confirmed reservations on certain U.S. and 

foreign carriers who are involuntarily denied boarding (``bumped'') 

from flights that are oversold. In adopting the original oversales rule 

in the 1960s, the Civil Aeronautics Board (CAB), the Department's 

predecessor in aviation consumer matters, recognized the inherent 

unfairness to passengers if carriers were allowed to sell more 

confirmed seats than were available. To balance the inconvenience and 

financial loss to passengers against the potential benefits brought 

about by a controlled overbooking system, i.e., achieving higher load 

factors, avoiding the losses caused by last-minute cancellations and 

no-shows, enabling more passengers to obtain a reservation on the 

flight of their choice, and ultimately reducing fares, the CAB 

prescribed a two-part oversales system: Soliciting volunteers first, 

then involuntarily ``bumping'' passengers if there are not enough 

volunteers, with a minimum standard for denied boarding compensation 

(DBC). This system has been in effect for almost half a century and we 

believe that its basic structure remains sound.

    In this NPRM, we propose to expand the rule's applicability and 

add, modify and clarify certain elements of the rule as part of our 

continuing efforts to improve and perfect the system. Specifically, we 

are proposing to make five changes to Part 250: (1) Increase the 

minimum DBC limits to take account of the increase in the Consumer 

Price Index (CPI) since 1978; (2) implement an automatic inflation 

adjuster for minimum DBC limits; (3) clarify that DBC must be offered 

to ``zero fare ticket'' holders who are involuntarily bumped; (4) 

require that a carrier verbally offer cash/check DBC if the carrier 

verbally offers a travel voucher as DBC to passengers who are 

involuntarily bumped; and (5) require that a carrier inform passengers 

solicited to volunteer for denied boarding about its principal boarding 

priority rules applicable to the specific flight and all material 

restrictions on the use of that transportation.

    The last time the Department revised the minimum DBC amounts was in 

a proceeding that began in 2007 and concluded in 2008. Prior to that 

date, the DBC limits had not been revised since 1978. In that latest 

proceeding, because inflation had eroded the value of the $200 and $400 

limits that were established in 1978, we considered various methods for 

calculating an increase in the minimum DBC limits (i.e., increasing the 

limits on denied boarding compensation based on the consumer price 

index (CPI) or on the increase in fare yields, doubling the current 

limits, eliminating the limits so there would be no cap on denied 

boarding compensation payments). We settled on a rule under which an 

eligible passenger who encounters a delay of over one hour due to the 

involuntary denied boarding is entitled to compensation equal to either 

100% of the passenger's one-way fare up to $400, or 200% of the fare up 

to $800, depending on the length of the delay caused by the involuntary 

denied boarding. Since May 2008 when the new rule was issued, despite 

these higher DBC amounts, we have seen an increase in involuntary 

denied boardings. Load factors are also increasing, making it less 

likely that ``bumped'' passengers are being conveniently accommodated 

on other flights. We are therefore concerned about whether the current 

rule adequately encourages carriers to seek volunteers to give up their 

seats and whether the minimum DBC amount adequately compensates those 

passengers that are involuntarily ``bumped'' from their flights.

    Accordingly, we are proposing to revise the minimum DBC amounts to 

more accurately reflect inflation's effect on those amounts since 1978, 

the last year those amounts were raised before the most recent rule. We 

propose to do so by using the Consumer Price Index for All Urban 

Consumers (CPI-U), rounded to the nearest $25, with the base of $200/

$400 for the maximum DBC amounts in the year 1978. This would bring the 

maximum DBC amounts for involuntarily oversold passengers to $650/

$1,300 as of January 1, 2010. In addition, we propose to add a 

provision to Part 250 that would provide for periodic adjustments to 

the minimum DBC limits using the CPI-U, similar to that applied to 

minimum baggage liability limits pursuant to 14 CFR part 254. We 

believe these amendments will set up the most efficient method to 

ensure that the DBC minimum limits, and the monetary incentive for 

carriers to reduce involuntary denied boardings, remain current. Since 

the periodic adjustments would be the product of a published 

mathematical formula, there would be no need to engage in a notice and 

comment rulemaking proceeding for each future adjustment.

    We seek comments on whether the proposed increase in DBC minimum 

limits is called for and whether any such increase based on the CPI-U 

calculation is a reasonable basis for updating those limits or whether 

some other amounts would be more appropriate to adequately compensate 

passengers for the inconvenience and financial loss brought about by 

involuntary denied boarding. If not, by how much should the amounts be 

increased, if at all? We also ask for comment on whether we should 

completely eliminate minimum compensation limits and simply require 

that carriers base DBC to be paid to involuntarily bumped passengers on 

100% or 200% of a passenger's fare, without limit, and/or whether the 

100% and 200% rates need to be increased in line with the proposed 

increase in the $400/$800 compensation limits proposed above, perhaps 

to 200% and 400% of the passenger's fare, or higher. This would account 

for the fact that the actual cost for flying is likely to have 

increased while what is commonly referred to as the ``fare'' may not 

have increased as a result of the carriers' current practice of 

unbundling fares, i.e., charging extra for once-free amenities, e.g., 

checked baggage, food, preferred seats, etc.

    We are also proposing to clarify that Part 250 applies to 

passengers who hold ``zero fare tickets,'' e.g., passengers who 

``purchased'' air transportation with frequent flyer mileage or airline 

travel vouchers, passengers who travel on so-called ``free'' companion 

tickets, or passengers who hold a ``consolidator'' ticket that does not 

display a monetary price. For the most part, these ticket holders have 

``paid'' only government taxes and fees and, perhaps, carrier-imposed 

administrative fees for ticketing. In this regard, we propose to amend 

the definition of ``confirmed reserved space'' to specify that zero 

fare ticket holders have the same rights and eligibility for DBC as any 

other passenger who used cash, check or



[[Page 32326]]



credit card to purchase his or her airfare. Passengers with zero-fare 

tickets earned those tickets in some fashion, e.g. by exceeding a 

particular frequent-flyer threshold, agreeing to accept a travel 

voucher as settlement of a consumer claim or complaint, etc.

    When these passengers are involuntarily denied boarding, they, like 

passengers who paid fully in money for the tickets, suffer 

inconvenience and/or financial losses. We propose that the basis for 

determining the amount of DBC due a passenger holding a zero fare 

ticket who is involuntarily bumped, i.e., the ``passenger's fare,'' be 

the fare of the lowest priced ticket available (paid by cash, check, or 

credit card) for a comparable class of ticket on the same flight. For 

example, if an involuntarily bumped passenger used frequent flyer miles 

to obtain a confirmed, non-refundable roundtrip coach ticket having no 

restrictions, the basis for calculating the DBC amount due to that 

passenger would be the lowest fare that was available for a confirmed, 

roundtrip coach ticket on the same flight. Under this proposal, a 

carrier would be required to provide the same form of DBC to zero-fare 

passengers as to other passengers denied boarding involuntarily, i.e. 

cash or check, or a travel voucher of the passenger's choice under the 

conditions described in existing section 250.5(b) if the passenger 

agrees. We seek comment not only on whether zero fare ticket holders 

should receive DBC under part 250, but also on whether the cash method 

described above for calculating DBC to be paid such zero fare ticket 

holders is reasonable and would truly capture these passengers' losses 

due to being bumped involuntarily to the same extent as for cash/check/

credit ticket holders. This proposal is consistent with guidance DOT 

has given to carriers in the past.

    A possible alternative to the above proposed method of compensation 

would be to allow carriers to compensate zero fare ticket holders using 

the same ``currency'' in which the tickets were obtained. For instance, 

under this alternative an involuntarily bumped passenger who used 

frequent flyer miles to purchase a ticket would be eligible to be 

compensated with mileage, the currency used to obtain that flight. 

Under the current rule, this would amount to 100% or 200% of the amount 

of mileage that was used to purchase the ticket, plus a cash amount if 

appropriate to account for any taxes, fees and administrative costs 

paid to obtain the ticket. Similarly, involuntarily bumped passengers 

who used a voucher to purchase a ticket, in whole or in part, would be 

eligible to be compensated with a voucher worth 100% or 200% of the 

value of their original voucher, and an appropriate cash payment if a 

portion of the ticket was paid for in that manner. We also seek comment 

on any other alternative method of calculating DBC for zero fare ticket 

holders that would best quantify the financial loss and inconvenience 

to those passengers. How should the rule quantify the value of the 

remaining travel portion (either to the next stopover, or if none, to 

the final destination) if the DBC were to be paid with frequent flyer 

miles?

    Another area that we believe needs further improvement is the 

disclosure provisions in our current oversales rule. These provisions 

were established because passengers deserve to know about the 

possibility, however remote, of an oversale occurring and because only 

a well-informed passenger can make a proper choice when faced with the 

option of volunteering to be bumped from a flight. We propose in this 

proceeding to reinforce required disclosures to ensure that passengers 

will be aware of their rights when making decisions regarding whether 

to volunteer for denied boarding and/or whether to accept a travel 

voucher in lieu of cash or a check as DBC if they are bumped 

involuntarily.

    The existing required disclosures can be found in sections 250.2b 

250.9 and 250.11. Section 250.2b(b) sets forth conditions and 

requirements that carriers must comply with when soliciting volunteers 

on an oversold flight. Specifically, it requires that carriers inform 

each passenger who is solicited to volunteer to be bumped whether he or 

she is in danger of being involuntarily denied boarding and the 

compensation to which they would be entitled in that event. In 

addition, section 250.9 specifies the written explanation of DBC and 

boarding priorities that must be provided to passengers involuntarily 

oversold, which statement also must be provided to any person who 

requests it at any location a carrier sells tickets and at its boarding 

gates. Section 250.11 requires that carriers provide at each station 

they or their agents sell tickets a prescribed notice advising persons 

of their basic rights in an oversale situation and that they are 

entitled to detailed information upon request.

    Despite these required disclosures, we are concerned that 

passengers may not be aware of their rights when making decisions 

regarding whether to volunteer for denied boarding and/or accept a 

travel voucher because of the manner in which carriers offer free or 

reduced air transportation. Agents often verbally advise passengers of 

the offer of a travel voucher and its amount. Although in the case of 

involuntarily bumped passengers, this offer must be accompanied by the 

written notice of the passenger's right to insist on DBC by cash or 

check, there currently is no express requirement that this notice be 

given verbally. We are concerned that these passengers who are verbally 

offered a travel voucher may not have time to read the written notice 

and are not in fact verbally told by an agent that they are entitled to 

compensation by cash or check. Likewise, they may not be adequately 

informed of any conditions or limitations placed on the vouchers they 

are receiving. Accordingly, we are proposing that in any case in which 

a carrier verbally offers an involuntarily bumped passenger free or 

reduced-rate air transportation as an alternative to cash DBC, it also 

must at the same time verbally advise that passenger of his or her 

right to insist on compensation by cash or check and the actual amount 

of such compensation that would be due and of any conditions or 

restrictions applicable to the vouchers. This proposed requirement 

would not, if adopted, alter the carriers' responsibility to provide 

the written DBC notice required by section 250.9, nor would it require 

carriers in all instances to provide verbal advice to passengers. But 

as a practical matter, verbal exchanges between carrier agents and 

passengers in oversale situations are the quickest and easiest form of 

communication and consumers are entitled to a fair presentation of 

their options during such situations. Therefore, if a carrier chooses 

to offer a passenger DBC in a form other than cash or check and to do 

so verbally, under this proposal it must also verbally advise the 

passenger about the cash/check option.

    Furthermore, we are proposing to prohibit carriers from offering or 

providing to volunteers solicited to be bumped, or to passengers 

involuntarily bumped, free or reduced-rate air transportation other 

than on an unrestricted basis, unless the carrier provides direct 

verbal notice to such passengers of any restrictions on such free or 

reduced rate air transportation. While the written notice required to 

be provided passengers under section 250.9 suggests that carriers must 

disclose material restrictions in any free or reduced rate compensation 

offered, the requirement is not specifically reflected in any section 

of the rule itself, a shortcoming that we believe should be remedied. 

We ask for comment on our



[[Page 32327]]



proposals here as well as on whether there are any other forms of 

notice that might better inform passengers being requested to volunteer 

to be bumped, or those involuntarily bumped, of their rights and 

carriers' obligations.

    The current disclosure rule does not define how the carriers should 

describe to passengers who are solicited to volunteer to be bumped the 

likelihood of being involuntarily denied boarding. In this NPRM, we 

propose to specifically require that carriers must inform the solicited 

passengers about their principal boarding priority rules applicable to 

the specific flight. Hence, the passengers can apply the boarding 

priority rules to their situations and more accurately estimate the 

likelihood of their being involuntarily denied boarding. By ``principal 

boarding priority rules'' we are referring to procedures such as 

bumping passengers involuntarily based on their fare, on when they 

checked in, or on whether they held seat assignments. Carriers need not 

recite specialized priorities such as those for unaccompanied minors or 

passengers with disabilities except where those priorities apply to a 

particular passenger. This information is significant if a passenger is 

willing to give up his or her confirmed reserved space but could not 

determine whether to accept the volunteer compensation offer or to wait 

until he or she would be involuntarily bumped. For instance, if the 

carrier informs the passengers that it will use the check-in time as 

its principal boarding priority criterion, a passenger willing to give 

up his or her seat on the flight in exchange for a sufficiently large 

cash compensation amount may choose to reject the volunteer 

compensation offer if he or she checked in at the last minute, knowing 

that the chance of being denied boarding involuntarily is high and that 

being involuntarily bumped would require a higher amount of 

compensation in cash from the carrier.

    Also material to the solicited passengers as decision makers is the 

availability of ``comparable air transportation'' provided to 

passengers who are involuntary denied boarding. Under the current DBC 

structure, if the passengers can reach their next stopover or, if none, 

their final destination within one hour of the planned arrival time of 

the original flight, the passengers are not required to be provided 

DBC. If the delay for a domestic flight is more than one hour but less 

than two hours (four hours for an international flight), the DBC rate 

is 100% of the passenger's one-way fare. For delays that exceed this 

two/four hour timeframe, the DBC rate is 200% of the passenger's one-

way fare. Thus for a passenger who is considering rejecting the 

volunteer offer in hopes of receiving involuntary DBC, it is material 

to know how likely it is, if involuntarily denied boarding, that the 

passenger's delay would exceed the one/two/four hour(s) limits. We seek 

comments on whether we should require this disclosure to every 

passenger the carrier solicits to volunteer and if so, what form, e.g., 

verbal or written, the disclosure should take.

    We are also considering expanding the applicability of the 

oversales rule to the operations of U.S. certificated and commuter 

carriers and foreign carriers using aircraft originally designed for 19 

or more seats. Currently, Part 250 applies to all U.S. certificated and 

commuter air carriers and foreign carriers with respect to specified 

scheduled flight segments using an aircraft originally designed to have 

a passenger capacity of 30 or more seats. We have concerns that many 

carriers use code-share partners for their connecting services to 

smaller points, some of whom operate aircraft with 19-29 seats. Such 

flight segments are not covered by part 250, but are associated with 

the identity of a large carrier and many, if not most, are ``fee for 

service'' flights under the total control of the large carrier, which 

controls booking. Should we allow those flights to be oversold at all? 

If we do, should Part 250 be applicable in its entirety?



7. Full Fare Advertising



    The Department is proposing to amend its rule on price advertising 

(14 CFR 399.84). The Department adopted this rule in 1984, pursuant to 

49 U.S.C. 41712 (formerly section 411 of the Federal Aviation Act), 

which empowers the Department to prohibit unfair and deceptive 

practices and unfair methods of competition in air transportation and 

its sale. The rule states that the Department considers any 

advertisement that states a price for air transportation that is not 

the total price to be paid by the consumer to be an unfair and 

deceptive practice in violation of 49 U.S.C. 41712. However, the 

Department's enforcement policy regarding this rule has permitted 

certain government-imposed charges to be stated separately from this 

total price. Under this policy, taxes and fees that are collected by a 

carrier on a per-person basis, are imposed by a government entity, and 

are not ad valorem in nature are allowed to be excluded from an 

advertised fare. The existence, nature, and amount of these additional 

taxes and fees must be clearly indicated where the airfare first 

appears in the ad, so that the consumer can easily calculate the total 

price to be paid. The Department has consistently prohibited sellers of 

air transportation from breaking out any other fee, including fuel 

surcharges, service fees, and taxes imposed on an ad valorem basis. 

This policy has been articulated in a number of industry letters and 

guidance documents; see http://airconsumer.dot.gov/rules/guidance.htm.

    The Department is considering changing its enforcement policy 

concerning this rule to enforce the ``full price advertising'' 

provision of the rule as it is written and, consistent with 

longstanding Department enforcement policy, to clarify that the rule 

applies to ticket agents. This change in enforcement policy would also 

include a requirement that all advertisers include all mandatory fees 

in the advertised price. Given technological innovations and new 

methods of communication, carriers and ticket agents are finding new 

and creative ways to advertise airfares, some of which circumvent the 

spirit if not the letter of the full-price advertising rule and 

Department enforcement policy. Consumers now receive airfare 

solicitations through print advertisements, radio advertisements, 

internet advertisements, and solicitations sent directly to consumers 

via e-mail newsletters, social networking Web sites, text messages, and 

applications designed for many different kinds of cell phones. The ease 

and speed of information sharing also allows airfare information to be 

presented to consumers in many different forms. Even in cases where 

those forms of advertising comply in a technical sense with our 

enforcement policy with regard to the full-price advertising rule, we 

are concerned that in many cases consumers are not easily able to 

determine the total cost of air transportation services or are deceived 

regarding the true price. Accordingly, we believe consumers would be 

better served if we enforce our existing full-price rule as written and 

prohibit the practice of advertising fares that exclude any mandatory 

fees or surcharges, regardless of the source. In proposing this change 

in policy, we do not intend to foreclose carriers and ticket agents 

from advising the public in their fare solicitations about government 

taxes and fees, or other mandatory carrier- or ticket agent-imposed 

charges applicable to their airfares. However, we no longer see a 

useful purpose in presenting what purportedly are ``fares'' to 

consumers that do not include numerous required



[[Page 32328]]



charges and, in our view only act to confuse or deceive consumers 

regarding the true full price and to make price comparisons difficult 

or improbable. Our objective is to ensure that consumers are not be 

deceived or confused about the total fare they must pay, which we 

believe can best be ensured by requiring that consumers be able to see 

clearly the entire price of the air transportation being advertised 

whenever a price is displayed rather than having to wade through a 

myriad of footnotes and/or hyperlinks regarding government taxes and 

fees and make the full-price calculation themselves to try to establish 

which among many displayed ``fares'' is the real fare or wait until the 

purchase screen to see the total fare.

    The Department's statutory authority under 49 U.S.C. 41712 to 

prohibit unfair and deceptive practices and unfair methods of 

competition applies not only to air carriers but also to ``ticket 

agents'' which includes those persons other than a carrier ``that as a 

principal or agent sells, offers for sale, negotiates for, or holds 

itself out as selling, providing, or arranging for air 

transportation.'' 49 U.S.C. 40102(a)(40). Although the Department's 

full-price advertising rule applies on its face to direct and indirect 

air carriers as well as ``an agent of either,'' it has been the 

longstanding policy of the Department to consider ticket agents as 

defined in title 49 to be subject to that rule. The Department believes 

it appropriate to specifically name ``ticket agents'' as being covered 

by the rule in order to ensure there is no confusion about their 

inclusion under the deceptive practice prohibitions of the rule.

    Air transportation is unlike any other industry in that the 

Department has the sole authority to regulate airlines' fare 

advertisements by prohibiting practices that are unfair or deceptive. 

Congress modeled section 41712 on section 5 of the Federal Trade 

Commission (FTC) Act, 15 U.S.C.A. 45, but by its own terms, that 

statute cannot be enforced by FTC against ``air carriers and foreign 

air carriers,'' 15 U.S.C. 45(a)(2). The States are preempted from 

regulating in this area (49 U.S.C. 41713, see Morales v. Trans World 

Airlines, 504 U.S. 374, 112 S.Ct.2031, 119 L.Ed.2d 157 (1992)). Thus, 

unlike advertising in other industries, where either the States or the 

FTC, or both, can take action against abusive practices, if we do not 

exercise our authority, consumers and competitors have no governmental 

recourse against advertising that is unfair or deceptive. Further, we 

do not believe that 49 U.S.C. 41712 gives rise to a private right of 

action; see Love v. Delta Air Lines, 310 F.3d 1347 (11th Cir.2002), 

Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); see 

also Alexander v. Sandoval 532 U.S. 275, 286, 121 S.Ct. 1511, 149 

L.Ed.2d 517 (2001).

    The Department invites comments on its proposal to change its 

enforcement policy under section 399.84 from one of permitting limited 

exceptions to disclosing the full price in all advertising of air 

transportation and air tours to requiring disclosure of the full price 

to be paid by a consumer whenever a price is displayed, and its 

proposal to specify in the rule that it applies to ``ticket agents.'' 

Specific questions on which the Department invites comments regarding 

this policy shift include how sellers of air transportation foresee 

this affecting the methods they use to advertise fares, how consumers 

view the proposed change, and the potential cost in changing the 

current advertising structures that carriers and ticket agents have in 

place to ensure compliance with the current policy of the Department.

    Additionally, the Department is considering adding two new 

paragraphs to the price advertising rule. We propose adding paragraph 

(b) which would codify the Department's current enforcement policy on 

each-way airfare advertising. Currently, the Department allows sellers 

of air transportation to advertise an each-way price that is contingent 

on a roundtrip ticket purchase, so long as the roundtrip purchase 

requirement is clearly and conspicuously disclosed in a location that 

is prominent and proximate to the advertised fare amount. This proposal 

would codify existing enforcement policy and would also preclude 

carriers from referring to such fares as ``one-way'' fares, which they 

are not. The Department invites interested persons to comment on adding 

this paragraph on each-way airfare advertising policy to the price 

advertising rule. The Department also invites comment on whether a rule 

similar to that proposed for each-way fare advertising disclosure 

should be applied to air/hotel packages that advertise a single price, 

but are sold at that price only on a double occupancy basis, i.e., 

where two people must purchase the package in order to obtain the 

advertised price.

    The second provision the Department proposes to add to the price 

advertising rule in section 399.84 would prohibit so-called ``opt-out'' 

provisions in price advertising. The Department has noticed a trend 

lately in the air transportation industry to add fees for ancillary 

services and products to the total price of air transportation, which 

charges the consumer is deemed to have accepted unless he or she 

affirmatively opts out of the service and related charges. For example, 

carriers may allow a consumer to select a preferred seat or receive 

priority boarding status if he or she pays a predetermined fee. In some 

cases the optional services and accompanying charges for those services 

is pre-selected and added to the total fare without the consumer 

affirmatively choosing those optional services or fees. This often is 

accomplished on a Web site through use of a small box that is pre-

checked and must be ``unchecked'' by a consumer in order to avoid the 

charge. This can be deceptive depending on the layout of the webpage 

and instructions accompanying the service and charge. What can be even 

more problematic is that opt-out provisions are sometimes included on 

the same webpage as opt-in provisions, in which case it is much less 

likely that consumers will notice the opt-out nature of certain 

optional services that carry additional charges. The Department 

proposes adding a paragraph (c) to section 399.84 to prohibit such opt-

out procedures.

    Proposed paragraph (c) would provide that if a carrier offers 

optional services, the consumer must affirmatively opt in to accept and 

purchase that product or service before the price for that service can 

be added to the total airfare to be paid. No longer will carriers or 

ticket agents be allowed to require that a consumer opt out of 

purchasing such products or services in order to avoid being charged 

for them. The proposed rule, as part of the current full-price 

advertising rule, would also apply to carriers and ticket agents that 

advertise tours which include air transportation. Examples of such opt-

out procedures the Department has seen in recent years include fees for 

travel insurance, rental cars, transfers between airports and hotels, 

priority boarding, premium seats, and extra legroom. Oftentimes the 

consumer does not realize that the ancillary services are included in 

the total price of the ticket due to the deceptive nature of such opt-

out provisions. The Department asks interested persons to comment on 

adding the proposed subsection (c) to the existing price advertising 

rule. The Department would like to hear from both sellers of air 

transportation and consumers about the costs and benefits of 

prohibiting opt-out features.



8. Baggage and Other Fees and Related Code-Share Issues



    With the increasing industry-wide trend to ``unbundle'' fares by 

charging fees for individual services provided in connection with air 

transportation, the



[[Page 32329]]



Department has decided that there is a need to enhance protections for 

air travelers by establishing rules to ensure adequate notice of such 

fees for optional services to consumers. When booking air travel, 

consumers are not always made aware of the extra charges that a carrier 

may impose on them for additional services. Such charges may include 

services that traditionally have been included in the ticket price, 

such as the carriage of one or two checked bags, obtaining seat 

assignments in advance, in-flight entertainment, and in-flight food and 

beverage service. In fact, the Airline Tariff Publishing Company 

(ATPCO), which collects schedule and fare information from airlines for 

use in computerized reservation systems, has developed a list 

containing scores of ancillary charges in various categories. Due to 

what the Department feels is sometimes a lack of clear and adequate 

disclosure, consumers are not always able to determine the full price 

of their travel (the ticket price plus the price of additional fees for 

optional services) prior to purchase.

    We also seek comment on the costs and benefits of requiring that 

two prices be provided in certain airfare advertising--the full fare, 

including all mandatory charges, as well as that full fare plus the 

cost of baggage charges that traditionally have been included in the 

price of the ticket, if these prices differ. We would regard charges 

for one personal item (e.g., a purse or laptop computer), one carry-on 

bag, and one or two checked bags as baggage charges that traditionally 

have been included in the price of a ticket. Should such a requirement 

for a second price, if adopted, be limited to the full fare plus the 

cost of baggage charges? Should the Department require carriers to 

include in the second price all services that traditionally have been 

included in the price of the ticket such as obtaining seat assignments 

in advance? Why or why not? In the alternative, the Department is 

considering requiring sellers of air transportation to display on their 

Web sites information regarding a full price including optional fees 

selected by the passenger when a prospective passenger conducts a query 

for a particular itinerary. In other words, passengers would be able to 

conduct queries for their specific needs (e.g., airfare and 2 checked 

bags; air fare, 1 checked bag, and extra legroom). The benefit of this 

approach is that consumers would be able to more easily compare 

airfares and charges for their own particular itinerary and options. We 

invite comment on this approach, including its feasibility, as well as 

its costs to airlines and ticket agents.

    The Department believes that effective disclosure of the optional 

nature of services and their costs would prevent carriers from imposing 

hidden fees on consumers and allow consumers to make better informed 

decisions when purchasing air travel. In 2008, the Department's 

Aviation Enforcement Office issued guidance concerning the disclosure 

of baggage fees to the public. See, e.g., Notice of the Assistant 

General Counsel for Aviation Enforcement and Proceedings, ``Guidance on 

Disclosure of Policies and Charges Associated with Checked Baggage,'' 

May 13, 2008, http://airconsumer.dot.gov/rules/guidance.htm. We propose 

to codify this guidance and also cover in the rule notice of charges 

for services other than checked baggage.

    More specifically, the Department is proposing to adopt three 

provisions in a proposed new 14 CFR 399.85. Proposed section 399.85(a) 

would require carriers that maintain a Web site accessible to the 

general public to prominently disclose on the homepage of such Web site 

any increase in the fee for passenger baggage or any change in the free 

baggage allowance for checked or carry-on bags (e.g., size, weight, 

number). This could be done, for example, through direct, prominent 

notice or through a conspicuous notice of the existence of such fees in 

a hyperlink that takes the reader directly to an explanation of the 

carrier's baggage policies and charges. The proposed rule would require 

this notice to remain on the homepage of the carrier's Web site for at 

least three months after the change is made. The Department invites 

interested persons to comment on this proposal, including whether the 

time period for displaying such changes on the homepage should be 

greater or less than three months. The Department also asks for comment 

on the best options for displaying such information to the public if it 

were to adopt a notice requirement.

    Proposed section 399.85(b) would require carriers that issue e-

ticket confirmations to passengers to include information regarding 

their free baggage allowance and/or the applicable fee for a carry-on 

bag or the first and second checked bag on the e-ticket confirmation. 

By providing this information to consumers on the e-ticket 

confirmation--the document that confirms a passenger's travel on the 

carrier--passengers will be informed well before the flight date and 

arrival at the airport of the applicable baggage rules and charges. The 

Department believes that including this information on the e-ticket 

confirmation will permit passengers to avoid unexpected baggage charges 

to the extent possible and also save time at the airport for both 

passengers and carrier personnel because the passengers will be better 

informed about the baggage allowance and any charges to be incurred.

    Proposed section 399.85(c) would require carriers that have a Web 

site accessible to the general public to disclose all fees for optional 

services to consumers through a prominent link on their homepage that 

leads directly to a listing of those fees. Optional services include 

but are not limited to the cost of a carry-on bag, checking baggage, 

advance seat assignments, in-flight food and beverage service, in-

flight entertainment, blankets, pillows, or other comfort items, and 

fees for seat upgrades. The Department feels that having all of the 

fees for optional services in one place for consumers to review will 

help ensure that consumers do not encounter such charges unexpectedly 

and that they can more easily compare these charges among competing 

carriers. Additionally, disclosure as proposed will result in this 

important cost information being presented in a clear and concise form 

and reduce the prospect of delays at the airport and in-flight that can 

occur when the consumer is unaware of charges for optional services. 

The Department invites comments regarding the proposal to have full, 

complete disclosure of all fees for optional services on one Web page, 

accessible to the consumer through a prominent hyperlink. In 

particular, we solicit comment on whether we should limit the 

requirement to disclose fees to ``significant'' fees for optional 

services, including comment on the definition of ``significant fee'' 

and whether it should be defined as a particular dollar amount. The 

Department seeks comment on the alternatives to the proposed link to 

the information on a carrier's homepage, such as disclosure of these 

optional fees on e-ticket confirmations or elsewhere.

    The Department is also considering requiring that carriers make all 

the information that must be made directly available to consumers via 

proposed section 399.85 available to global distribution systems 

(GDS's) in which they participate in an up-to-date fashion and useful 

format. This would ensure that the information is readily available to 

both Internet and ``brick and mortar'' travel agencies and ticket 

agents so that it can be passed on to the many consumers who use their 

services to compare air transportation offers and make purchases. We 

invite comments on this proposal, including the present



[[Page 32330]]



ability of carriers to meet this requirement, the potential costs of 

the requirement, including costs of developing new software or systems 

to deliver such information to GDS's, if necessary, and the benefits of 

this requirement.

    The proposed section 399.85 would apply to all U.S. and foreign air 

carriers that have Web sites accessible to the general public in the 

United States through which tickets are sold, as well as to their 

agents. The Department invites comment on alternative proposals, 

including limiting the applicability of the proposed section 399.85 to 

all flights operated by U.S. carriers, U.S. and foreign carriers that 

operate any aircraft with sixty (60) or more seats, or U.S. and foreign 

carriers that operate any aircraft with thirty (30) or more seats. In 

addition, we invite comment on whether the rule should apply to all 

ticket agents, as defined in 49 U.S.C. Sec.  40102, which includes not 

just agents of carriers, but also others who, as a principal, ``sells, 

offers for sale, negotiates for, or holds itself out as selling, 

providing, or arranging for air transportation.'' Under proposed 

section 399.85, the Department would consider the failure of a carrier 

to give consumers appropriate notice about baggage fees and other 

optional fees to be an unfair and deceptive practice in violation of 49 

U.S.C. 41712.

    The Department is also seeking comment on the need for a special 

rule relating to the disclosure of fees and related restrictions in 

connection with code-share service. It has come to the Department's 

attention that many carriers operating flights under a code-share 

agreement impose different fees and restrictions than those of the 

carrier under whose identity the service is marketed, notwithstanding 

the fact that as a condition for approval of international code-share 

services, the Department has as a matter of policy required that ``the 

carrier selling such transportation (i.e., the carrier shown on the 

ticket) accept responsibility for the entirety of the code-share 

journey for all obligations established in the contract of carriage 

with the passenger; and that the passenger liability of the operating 

carrier be unaffected.'' See, Notice of the Assistant General Counsel 

for Aviation Enforcement and Proceedings, ``Guidance on Airline Baggage 

Liability and Responsibilities of Code-Share Partners Involving 

International Itineraries,'' http://airconsumer.dot.gov/rules, March 

26, 2009. For example, they may have different free baggage allowances 

and different charges for extra pieces and overweight bags, some may 

not allow unaccompanied minors while others do (perhaps subject to 

varying charges and various age restrictions), and some may not provide 

in-flight medical oxygen while others do (subject to different 

charges). We believe that, at a minimum, prospective customers for 

these code-share flights should be made aware of any significant 

differences between the ancillary services and fees of the carrier 

under whose identity their service was marketed and those of the 

carrier operating their flights. Comments are invited on whether such 

disclosure by ticketing/marketing carriers should be required through 

reservation agents, Web sites, or e-ticket confirmations or through 

each of those mechanisms. Further comment is invited on whether there 

are any ancillary services that should not be allowed to vary among 

code-share partners, e.g., the free baggage allowance or baggage fees. 

For example, Department policy provides that for passengers whose 

ultimate ticketed origin or destination is a U.S. point, the baggage 

rules that apply at the beginning of the itinerary apply throughout the 

itinerary, and the ticketing carrier's rules take precedence. See, 

e.g., Order 2009-9-20, Dockets OST-2008-0367 and 0370, ``Agreements 

adopted by the Tariff Coordinating Conference of the International Air 

Transport Association relating to passenger baggage matters,'' 

September 30, 2009. Information on the cost of these proposals is 

invited.



9. Post-Purchase Price Increases



    The Department is proposing a new section in 14 CFR part 399 that 

would prohibit post-purchase price increases in air transportation or 

air tours by carriers and ticket agents. The seller of air 

transportation would be prohibited from raising the price after the 

consumer completes the purchase. Currently, the Department allows post-

purchase price increases as long as any term that permits a carrier to 

increase the price after purchase is included in the conditions of 

carriage and the consumer receives direct notice of that provision on 

or with the ticket. See 14 CFR 253.7. The Department has found that 

some sellers of air transportation are abusing this rule by burying 

provisions purporting to permit them to raise the price in the contract 

of carriage or conditions of travel and merely providing the consumer a 

hyperlink to the contract of carriage or conditions of travel. The 

consumer is unaware of the potential for such increase until well after 

the purchase is made. Although we have not seen carriers resort to this 

problematic practice, we have often found this to be the case in the 

sale of tour packages that include air transportation, where an air 

tour operator will increase the price of an air tour before travel, 

ostensibly in order to pass along fuel surcharges or an increase in the 

price of a seat. Consumers are not made aware of the potential for a 

price increase at the time of purchase, and therefore are deceived when 

the increase is imposed and the seller uses the terms of the contract 

of carriage to justify an additional collection. Moreover, most 

airlines and tour operators will advertise and sell tickets or packages 

at a stated price nearly a year in advance of scheduled travel. We are 

tentatively of the opinion that it is patently unfair for a carrier or 

tour operator to advertise and sell air transportation at a particular 

price long before travel, with the caveat that they reserve the right 

to change the advertised price at any time before travel, and in any 

amount. The Department feels it is time to ban the practice of post-

purchase price increases.

    The Department invites interested parties to comment on this 

proposal and on several alternatives. As indicated above, the 

Department's primary proposal is an outright ban on post-purchase price 

increases. One alternative the Department is considering would be to 

allow post-purchase price increases, but only as long as the seller of 

air transportation conspicuously discloses to the consumer the 

potential for such an increase and the maximum amount of the increase, 

and the consumer affirmatively agrees to the potential for such an 

increase prior to purchasing the ticket. Another alternative would be 

to allow post-purchase price increases, with full and adequate 

disclosure, that the consumer agrees to in advance of purchasing a 

ticket, but to prohibit price increases within thirty or sixty days of 

the first flight in a consumer's itinerary.



10. Flight Status Changes



    We are proposing to require that certificated air carriers that 

account for at least 1 percent of domestic scheduled passenger revenues 

(reporting carriers) promptly notify passengers in the boarding gate 

area of changes to their domestic scheduled flights resulting from 

delays or cancellations, promptly update all domestic scheduled flight 

information under their control at airports regarding changes to the 

status of particular flights as a result of delays or cancellations and 

promptly update flight status details available on their Web sites and 

through their telephone reservation systems. ``Domestic scheduled 

flight'' for this purpose means



[[Page 32331]]



a flight segment. For example, on a direct flight from Chicago to 

London with a stop in New York, the Chicago-New York segment would be 

covered by this requirement. The Department tentatively believes that 

the cost of requiring smaller carriers to provide this information 

outweighs the benefits to consumers in general in light of the fact 

that the operations of the reporting carriers account for nearly 90 

percent of all domestic passenger enplanements. We ask for comment on 

whether the regulation should cover a greater number of carriers and 

operations, including operations of smaller U.S. carriers and/or 

international operations of U.S. and foreign carriers.

    What would be the cost or benefit of expanding coverage to those 

additional carriers?

    It is important to passengers as well as persons dropping 

passengers off for outbound flights or meeting passengers on incoming 

flights to be kept informed on a timely basis of delays and/or 

cancellations affecting their flights in order to avoid unnecessary 

waits at, or pointless trips to, an airport. Passengers also need 

flight status updates as soon as they become available in order to make 

decisions about alternate travel plans. Carriers recognize the 

importance of timely and accurate flight information, as evidenced by 

the fact that many of the largest U.S. carriers promise through their 

customer service plans to provide passengers all known information 

about delays and cancellations as soon as they become aware of the 

issue. Failures by carriers to provide timely or accurate flight status 

information not only inconvenience passengers and other members of the 

public but also can result in additional expenses to those persons.

    Our proposals here are intended to provide additional measures to 

ensure that passengers and the general public know about flight delays 

and cancellations within a reasonable time so that they can, if 

possible, take steps to protect themselves and avoid unnecessary loss 

of time and expense. We are therefore proposing that carriers promptly 

notify passengers holding tickets or reservations on one of their 

flights as well as other interested parties about changes to a flight's 

status, i.e., delays and cancellations, which affect the planned 

operation of the flight by at least 30 minutes. Additional 

notifications would be required if any such delayed flight was further 

delayed by 30 minutes or more. By ``promptly'' we mean that a carrier 

must provide the required notification regarding the status of a flight 

as soon as possible but no later than 30 minutes after the carrier 

becomes aware or should have become aware of a change in the status of 

the flight due to a delay or cancellation. This requirement would apply 

to all the domestic scheduled flight segments that a reporting carrier 

``markets.'' For example, for a code-share flight this proposed 

notification requirement would be the responsibility of the carrier 

whose code is used, whether or not it is operated under a fee-for-

service arrangement.

    We note that many covered carriers already voluntarily provide 

flight status details via the proposed methods proposed in this notice 

(i.e., announcement in boarding area, Web sites, telephone reservation 

systems, airport display boards). In addition, most of the largest 

carriers generally make efforts to notify passengers of changes to the 

status of their flights by permitting passengers to subscribe to flight 

status update services via various widely-used media, including 

computer-generated telephone/voicemail, text messages, and e-mails. 

This proposal to promptly notify passengers and other interested 

parties of changes to flights as a result of delays or cancellations 

would not impose upon carriers a requirement to offer passengers the 

opportunity to subscribe to such a service but would require carriers 

to the extent that they use this or other methods of communication to 

ensure that the flight status changes are promptly updated.

    We seek comments on whether it is preferable to require carriers to 

provide prompt notification of flight status changes and leave it up to 

the carriers to determine how that notification is provided, or 

prescribe particular means by which carriers must communicate or must 

make available flight status updates. We ask for comment on the four 

proposed means of notification: an announcement in the boarding area, 

carriers' Web sites, carriers' telephone reservation systems, and 

airport displays under carriers' control. Commenters should support 

their opinions with as much detail as possible regarding the 

practicality, costs, and benefits of any standard they support or 

oppose. We also seek comment about the cost and benefit of flight 

status update services. It goes without saying that the quicker that 

changes to a flight's status can be provided to passengers, the more 

useful the information is likely to be. In addition to seeking comment 

on the need, in general, for this proposed notification requirement, we 

specifically ask for comment on whether the standard we propose--``30 

minutes after the carrier becomes aware or should have become aware of 

a change in the status of a flight''--is a reasonable notification 

standard to apply in requiring carriers to pass along updates to 

passengers and to the public. Does it provide consumers sufficient lead 

time in most cases to act to protect themselves? If not, why not, and 

could carriers be expected to meet a more stringent standard? Is the 

more stringent standard a reasonable standard for carriers to meet and, 

if not, why not?

    In addition, we are proposing that notification be provided 

regarding any changes that affect the planned operation of a flight by 

at least 30 minutes. While shorter flight delays occur more frequently, 

we believe they are less likely to significantly disrupt expectations 

or travel plans. We ask for comment on whether this 30-minute standard 

is appropriate. Do consumers in most instances require notice of flight 

delays that are less than 30 minutes? Would changing the standard of 

delays to less than 30 minutes impose unreasonable burdens or costs on 

carriers that outweigh any benefits to the public? According to data 

from the Department's Bureau of Transportation Statistics (BTS), in 

calendar year 2009, approximately 10% of departure delays and 11% of 

arrival delays were over 30 minutes. The majority of scheduled domestic 

passenger flights depart or arrive 1 to 14 minutes after their 

scheduled departure and arrival times, respectively.

    We note that the requirement to promptly update all domestic 

scheduled flight information under a carrier's control at airports 

would cover all communication methods that are under the control of a 

carrier at an airport. For example, flight information provided via 

electronic or other display boards at airport counters and departure 

gates would be covered. We are not proposing at this time that carriers 

establish new types of flight information outlets but this requirement, 

if made final, would apply to every type of outlet a carrier elects to 

use to provide flight information to the public at airports. With 

respect to flight status information outlets at an airport that are not 

under a carrier's control, e.g., flight arrival and departure displays 

that are under the control of an airport authority, a carrier's 

responsibility is limited to providing the updated flight information 

to the airport authority within the required 30 minutes.



11. Choice-of-Forum Provisions



    The Department is proposing to amend 14 CFR part 253, the Part that 

concerns notice of contract of carriage



[[Page 32332]]



terms, by adding a new section to codify the policy of the Department's 

Aviation Enforcement Office that choice-of-forum provisions are unfair 

and deceptive when used to limit a passenger's legal forum to a 

particular inconvenient venue. Choice-of-forum provisions purport to 

designate the court or jurisdiction where any lawsuit against the 

carrier concerning the purchased air transportation must be brought 

See, e.g., Notice of the Assistant General Counsel for Aviation 

Enforcement and Proceedings, ```Choice of Forum' Contract Provisions,'' 

http://airconsumer.dot.gov/rules/19960715.htm (July 15, 1996). It is 

the Department's view that for air transportation sold in the U.S., it 

would be an unfair or deceptive practice for the seller to attempt to 

prevent a passenger from seeking legal redress in any court of 

competent jurisdiction, including a court within the jurisdiction of 

the passenger's residence, provided that the carrier does business 

within that jurisdiction. Consumers should not be forced to litigate in 

a jurisdiction that could be thousands of miles from their United 

States residence. The Department believes that such narrow choice-of-

forum provisions would operate as a limitation on the right of a 

consumer to bring legitimate and viable suits. We invite interested 

persons to comment on this proposal and on the use of such choice-of-

forum provisions in contracts of carriage.



12. Peanut Allergies



    The Department is considering several different measures to provide 

greater access to air travel for individuals with severe peanut 

allergies in light of the significant number of children diagnosed with 

peanut allergies, some of whom do not fly because of health concerns 

related to peanut service on aircraft. The Air Carrier Access Act 

(ACAA) prohibits discrimination by U.S. and foreign air carriers 

against individuals with disabilities. The Department of Transportation 

defines an individual with a disability in 14 CFR part 382 (Part 382), 

the regulation implementing the ACAA. An individual with a disability 

is any individual who has a physical or mental impairment that, on a 

permanent or temporary basis, substantially limits one or more major 

life activities, has a record of such an impairment, or is regarded as 

having such an impairment. Generally, a person with an allergy is not 

an individual with a disability. However, if a person's allergy is 

sufficiently severe to substantially limit a major life activity, then 

that person meets the definition of an individual with a disability. 

Part 382 states that major life activities means functions such as 

caring for one's self, performing manual tasks, walking, seeing, 

hearing, speaking, breathing, learning, and working. Airline passengers 

with severe allergies to peanuts have a qualifying disability as 

defined in part 382.

    Part 382 requires airlines to change or make an exception to an 

otherwise general policy or practice to make sure that a passenger with 

a disability can take the trip for which he or she is ticketed unless 

the change would cause an undue burden on the airline or a fundamental 

alteration in its services. The Department has in the past told 

airlines that, based on this requirement, they must make reasonable 

accommodations for air travelers who are allergic to peanuts. 

Specifically, in August 1998 the Department's Aviation Enforcement 

Office sent an industry letter providing guidance on this issue. That 

letter suggested that, if given advance notice, providing a peanut-free 

buffer zone in the immediate area of a passenger with a medically-

documented severe allergy to peanuts would be a reasonable 

accommodation for the passenger's disability, and would not constitute 

an undue burden on the airline.

    After the issuance of the guidance letter, the Department was 

directed by Congress to cease issuing guidance on this subject or face 

a cutoff of funding for its Aviation Enforcement Office. See, for 

example, section 346 of Public Law 106-69, (October 9, 1999)--``DOT and 

Related Agencies Appropriations Act, 2000,'' which stated that none of 

the funds made available under that Act could be used to require or 

suggest that airlines provide peanut-free buffer zones or otherwise 

restrict the distribution of peanuts. This congressional prohibition 

was to remain in effect ``until 90 days after submission to the 

Congress of a peer-reviewed scientific study that determined that there 

are severe reactions by passengers to peanuts as a result of contact 

with very small airborne peanut particles of the kind that passengers 

might encounter in an aircraft.'' This specific congressional ban on 

our involvement in this issue has not appeared recently in any 

legislation. At this time, we are considering the following 

alternatives to provide greater access to air travel for individuals 

with severe peanut allergies: (1) Banning the serving of peanuts and 

all peanut products by both U.S. and foreign carriers on flights 

covered by DOT's disability rule; (2) banning the serving of peanuts 

and all peanut products on all such flights where a passenger with a 

peanut allergy is on board and has requested a peanut-free flight in 

advance; or (3) requiring a peanut-free buffer zone in the immediate 

area of a passenger with a medically-documented severe allergy to 

peanuts if passenger has requested a peanut-free flight in advance. We 

seek comment on these approaches as well as the question of whether it 

would be preferable to maintain the current practice of not prescribing 

carrier practices concerning the serving of peanuts. We are 

particularly interested in hearing views on how peanuts and peanut 

products brought on board aircraft by passengers should be handled. How 

likely is it that a passenger with allergies to peanuts will have 

severe adverse health reactions by being exposed to the airborne 

transmission of peanut particles in an aircraft cabin (as opposed to 

ingesting peanuts orally)? Will taking certain specific steps to 

prepare for a flight (e.g., carrying an epinephrine auto-injector in 

order to immediately and aggressively treat an anaphylactic reaction) 

sufficiently protect individuals with severe peanut allergies? Who 

should be responsible for ensuring an epinephrine auto-injector is 

available on a flight--the passenger with a severe peanut allergy or 

the carrier? Is there recent scientific or anecdotal evidence of 

serious in-flight medical events related to the airborne transmission 

of peanut particles? Should any food item that contains peanuts be 

included within the definition of peanut products (e.g., peanut butter 

crackers, products containing peanut oil)? Is there a way of limiting 

this definition?



13. Effective Date



    We propose that any final rule that we adopt take effect 180 days 

after its publication in the Federal Register. We believe this would 

allow sufficient time for carriers to comply with the various proposed 

requirements. We invite comments on whether 180 days is the appropriate 

interval for completing these changes.



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 under that Order. The Regulatory Evaluation finds that the 

benefits of the proposal appear to exceed its costs, even without 

considering non-quantifiable benefits. The total present value of 

passenger



[[Page 32333]]



benefits from the proposed requirements over a 10 year period at a 7% 

discount rate is $87.59 million and the total present value of costs 

incurred by carriers and other sellers of air transportation over a 10 

year period at a 7% discount rate is $25.98 million. The net present 

value of the rule for 10 years at a 7% discount rate is $61.61 million.

    Below, we have included a table outlining the projected costs and 

benefits of this rulemaking. We invite comment on the quantification of 

costs and benefits for each provision, as well as the methodology used 

to develop our cost and benefit estimates. We also seek comment on how 

unquantified costs and benefits could be measured. More detail on the 

estimates within this table can be found in the preliminary Regulatory 

Impact Analysis associated with this proposed rule.



    Comparison of Requirement-Specific Benefits and Costs, 2010-2020

               [Discounted at 7%/year to 2010 $ millions]

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

 

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

Requirement 1: Expand tarmac delay                       Total

 contingency plan requirements to smaller

 airports and require that foreign carriers

 have a tarmac delay contingency plan.

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

Estimated Quantified Benefits................  $1.99

Estimated Quantified Costs...................  $3.24

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

    Net Benefits.............................  -$1.25

Unquantified Benefits:

     Improved Management of Flight

     Delays

     Decreased Anxiety with Regard to

     Flying

     Reduced Stress among Delayed

     Passengers and Crew

     Improved Overall Carrier

     Operations

     Improved Customer Good Will

     Towards Carriers

Unquantified Costs:

     Increased Flight Cancellations

     Increased Passenger Anxiety

     Associated with Potential Flight

     Cancellations

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

Requirement 2: Expand carriers' reporting                Total

 tarmac delay info to DOT and require

 reporting by foreign carriers.

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

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

Estimated Quantified Costs...................  $2.31

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

    Net Benefits.............................  not estimated

Unquantified Benefits:

     Increased Efficiency of US DOT

     Oversight and Enforcement Office

     Operations

     Improved Planning by Passengers

     Improved Management of Flight

     Delays

     Improved Market Competition

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

Requirement 3: Establish of minimum standards            Total

 for carriers' customer service plans and

 extend the customer service plan

 requirements to cover foreign carriers.

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

Estimated Quantified Benefits................  $6.25

Estimated Quantified Costs...................  $8.58

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

    Net Benefits.............................  -$2.33

Unquantified Benefits:

     Decreased Confusion and

     Uncertainty Regarding Department's

     Requirements

     Value of Improved Customer

     Service Based on Self-Auditing of

     Adherence to Customer Service Plans for

     Foreign Carriers

     Improved Customer Good Will

     Towards Carriers

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

Requirement 4: Require incorporation of                  Total

 tarmac delay contingency plans and customer

 service plans into carrier contracts of

 carriage.

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

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

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

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

    Net Benefits.............................  not estimated

Unquantified Benefits:

     Decreased Occurrence of Customer

     Complaints

     Improved Resolution of Customer

     Complaints

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

Requirement 5: Extend requirements for                   Total

 carriers to respond to consumer complaints

 to cover foreign carriers.

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

Estimated Quantified Benefits................  $0.00

Estimated Quantified Costs...................  $1.82

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

    Net Benefits.............................  -$1.82

Unquantified Benefits:



[[Page 32334]]



 

     Decreased Occurrence of Conduct

     that Would Produce Complaints

     Improved Resolution of Customer

     Complaints

     Decreased Anger Toward Carriers

     During Resolution of Complaints

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

Requirement 6: Changes in denied boarding                Total

 compensation (involuntary bumping) policy:

 increase minimum compensation, add inflation

 adjustment, greater passenger information

 about policies.

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

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

Estimated Quantified Costs...................  $0.66

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

    Net Benefits.............................  not estimated

Unquantified Benefits:

     Decrease in Confusion Regarding

     Denied Boarding Compensation Provisions

     More Accurate Compensation for

     those Denied Boarding

     Decreased Resentment among Some

     Passengers Regarding Different

     Compensation Received

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

Requirement 7: Require that carriers include             Total

 taxes and fees in advertising (``full-fare

 advertising'') and prohibit use of sales

 provisions that require purchasers to opt

 out of add-ons such as trip insurance.

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

Estimated Quantified Benefits................  $73.50

Estimated Quantified Costs...................  $6.86

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

    Net Benefits.............................  $66.64

Unquantified Benefits:

     Travelers Less Likely to

     Mistakenly Purchase Unwanted Services

     and Amenities

     Improved Market Competition

     Improved Customer Good Will

     Towards Carriers

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

Requirement 8: Require carriers to disclose              Total

 baggage and other optional fees on their Web

 sites.

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

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

Estimated Quantified Costs...................  $2.51

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

    Net Benefits.............................  not estimated

Unquantified Benefits:

     Decrease in Time at Check-in

     Avoidance of Unfair Surprise

     Improved Customer Good Will

     Towards Carriers

     Improved Market Competition

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

Requirement 9: Ban the practice of post-                 Total

 purchase price increases.

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

Estimated Quantified Benefits................  $5.83

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

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

    Net Benefits.............................  not estimated

Unquantified Benefits:

     Improved Customer Good Will

     Towards Carriers

     Avoidance of Unfair Surprise

Unquantified Costs:

     Inability to Increase Prices

     Based on Unanticipated or Changed

     Circumstances

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

Requirement 10: Require prompt passenger                 Total

 notification of flight status changes

 (cancellations, delays, etc.) at the

 boarding gate area, on Web site and on

 telephone reservation systems.

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

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

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

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

    Net Benefits.............................  not estimated

Unquantified Benefits:

     Reduced Passenger Anxiety

     Greater Comfort and Certainty

     from Knowing that Information Will Be

     Available In Timely Manner

Unquantified Costs:

     Expense of Providing

     Notification

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

Requirement 11: Permit consumers to file suit            Total

 wherever a carrier does business.

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

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

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

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

    Net Benefits.............................  not estimated

Unquantified Benefits:



[[Page 32335]]



 

     Greater compliance with DOT

     regulations

     Improved Customer Good Will

     Towards Carriers

Unquantified Costs:

     Need to Defend Suit in Location

     of Consumer's Choice

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

Requirements 1-11: TOTAL.....................            Total

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

Estimated Quantified Benefits................  $87.6

Estimated Quantified Costs...................  $26.0

    Net Benefits.............................  $61.6

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



B. Regulatory Flexibility Act



    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 

agency to review regulations to assess their impact on small entities 

unless the agency determines that a rule is not expected to have a 

significant economic impact on a substantial number of small entities. 

The regulatory initiatives discussed in this NPRM would have some 

impact on some small entities, as discussed in the Initial Regulatory 

Flexibility Analysis.

    The Initial Regulatory Flexibility Analysis determined that no more 

than 12 independently-owned small U.S. carriers operating at least one 

aircraft with 30 or more passenger seats but none with more than 60 

passenger seats would have to comply with the proposed requirements 

relating to denied boarding compensation and lengthy tarmac delays. 

These 12 U.S. carriers and an additional 35 small U.S. carriers that 

only operate aircraft with fewer than 30 seats would potentially have 

to comply with the requirements pertaining to full fare advertising 

(requirement to display full fares on Web sites and in print 

advertising and prohibition on opt-out provisions), disclosure of 

baggage and other fees, and prohibition on post-purchase price 

increases. The compliance costs associated with the full fare 

advertising requirements are estimated at $6,000 or less per carrier. 

The estimated unit costs for complying with the other requirements are 

nominal.

    The proposed initiatives may have a more substantial impact on 

small foreign carriers that provide scheduled service on flights to and 

from the U.S. using only aircraft with 60 or less passenger seats. 

There is only one small foreign carrier that operates service to and 

from the U.S. using aircraft with more than 29 but fewer than 61 seats. 

It would be required to comply with the proposed requirements described 

above for U.S. carriers of this size-class, as well as requirements 

relating to tarmac delay contingency plans, customer service plans, and 

customer problems/complaints (these requirements were instituted for 

covered U.S. carriers in a previous proceeding). Each of these sets of 

requirements may entail compliance costs of $3,000 or more per-carrier, 

but only the requirement to develop and implement a compliant tarmac 

delay contingency plan is likely to involve single-year cost in excess 

of $10,000 per carrier. There are also two small foreign carriers that 

operate service to and from the U.S. exclusively with aircraft that 

have fewer than 19 seats; these two carriers would potentially have to 

comply with the requirements pertaining to full fares advertising 

(requirement to display full fares on Web sites and in print 

advertising and prohibition on opt-out provisions), disclosure of 

baggage and other fees, and prohibition on post-purchase price 

increases. The per-carrier compliance costs for these two small foreign 

carriers are expected to be similar to those for U.S. carriers of the 

same size-class.

    It may also be necessary for some small travel agencies and tour 

operators to revise air travel prices displayed in Web site and print 

media advertising to comply with the proposed requirements relating to 

full fare advertising of air fares. Costs for small firms to revise Web 

sites and update print media advertising are estimated at no more than 

$3,000 each on a per-firm basis. Finally, a limited number of personnel 

at some small airports will incur time costs of a few hours on average 

to interact with carriers that are required to coordinate tarmac 

contingency plans with airport authorities. We invite comment to 

facilitate our assessment of the potential impact of these initiatives 

on small entities.



C. Executive Order 13132 (Federalism)



    This Notice of Proposed Rulemaking has been analyzed in accordance 

with the principles and criteria contained in Executive Order 13132 

(``Federalism''). This notice does not propose any 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. States are already preempted 

from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 

41713. Therefore, the consultation and funding requirements of 

Executive Order 13132 do not apply.



D. Executive Order 13084



    This NPRM has been analyzed in accordance with the principles and 

criteria contained in Executive Order 13084 (``Consultation and 

Coordination with Indian Tribal Governments''). Because none of the 

options on which we are seeking comment would significantly or uniquely 

affect the communities of the Indian tribal governments or impose 

substantial direct compliance costs on them, the funding and 

consultation requirements of Executive Order 13084 do not apply.



E. Paperwork Reduction Act



    This NPRM proposes three new collections of information that would 

require approval by the Office of Management and Budget (OMB) under the 

Paperwork Reduction Act of 1995 (Pub. L. 104-13, 49 U.S.C. 3501 et 

seq.). Under the Paperwork Reduction Act, before an agency submits a 

proposed collection of information to OMB for approval, it must publish 

a document in the Federal Register providing notice of the proposed 

collection of information and a 60-day comment period, and must 

otherwise consult with members of the public and affected agencies 

concerning the proposed collection.

    The first collection of information proposed here is a requirement 

that foreign air carriers that operate scheduled passenger service to 

or from the U.S. using any aircraft originally designed to have a 

passenger capacity of 30 or more 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



[[Page 32336]]



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 second information collection is a requirement that any foreign 

air carrier that operates scheduled passenger service to and from the 

U.S. using any aircraft originally designed to have a passenger 

capacity of 30 or more seats adopt a customer service plan, audit its 

adherence to the plan annually, and retain the results of each audit 

for two years. The Department plans to review the audits to monitor 

carriers' compliance with their plans and take enforcement action when 

appropriate.

    The third is a requirement that U.S. carriers and foreign carriers 

that operate any aircraft originally designed to have a passenger 

capacity of 30 or more seats report monthly tarmac delay data to the 

Department with respect to their operations at a U.S. airport for any 

tarmac delay exceeding three hours or more, including diverted flights 

and cancelled flights. This requirement would apply to reporting 

carriers under 14 CFR part 234 only with respect to their public 

charter service and international service. Reporting carriers already 

submit tarmac delay data to the Department for their domestic scheduled 

passenger service. The Department plans to use this information to 

obtain more precise data to compare tarmac delay incidents by carrier, 

by airport, and by specific time frame, for use in making future policy 

decisions and developing rulemakings.

    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: Foreign air carriers that operate passenger service to 

and from the U.S. using any aircraft originally designed to have a 

passenger capacity of 30 or more seats.

    Estimated Annual Burden on Respondents: 0 to 1 hour per respondent.

    Estimated Total Annual Burden: 15 hours and 25 minutes for all 

respondents.

    Frequency: One information set to submit per three hour plus tarmac 

delay for each respondent .

    2. Requirement that carrier retain for two years the results of its 

annual self-audit of its compliance with its Customer Service Plan.

    Respondents: Foreign air carriers that operate scheduled passenger 

service to and from the U.S. using any aircraft originally designed to 

have a passenger capacity of 30 or more seats.

    Estimated Annual Burden on Respondents: 15 minutes per year for 

each respondent.

    Estimated Total Annual Burden: A maximum of 22 hours for all 

respondents.

    Frequency: One information set to retain per year for each 

respondent.

    3. Requirement that carrier report certain tarmac delay data to the 

Department on a monthly basis.

    Respondents: U.S. carriers that operate passenger service using any 

aircraft with 30 or more seats, and foreign air carriers that operate 

passenger service to and from the United States using any aircraft 

originally designed to have a passenger capacity of 30 or more seats.

    Estimated Annual Burden on Respondents: 5 to 160 hours per 

respondent in the first year (average of 40 hours) and no more than 3 

hours in subsequent years per respondent.

    Estimated Total Annual Burden: 5,200 hours in the first year and no 

more than 390 hours in subsequent years for all respondents.

    Frequency: One information set to submit per month for each 

respondent.

    The Department invites 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. Comments submitted in response to 

this notice will be summarized or included, or both, in the request for 

OMB approval of these information collections.



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 NPRM.



List of Subjects



14 CFR Parts 234, 250, and 259



    Air carriers, Consumer protection, Reporting and recordkeeping 

requirements.



14 CFR Part 244



    Air carriers, Consumer protection, and Tarmac delay data.



14 CFR Part 253



    Air carriers, Consumer protection, and Contract of carriage.



14 CFR Part 399



    Administrative practice and procedure, Air carriers, Air rates and 

fares, Air taxis, Consumer protection, Small businesses.



    Issued June 2, 2010 in Washington, DC.

Ray LaHood,

Secretary of Transportation.



    For the reasons set forth in the preamble, the Department proposes 

to amend title 14 CFR Chapter II as follows:



PART 234--[AMENDED]



    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.



    2. Section 234.11 is amended by revising paragraph (d) and adding 

paragraph (e) to read as follows:





Sec.  234.11  Disclosure to consumers.



* * * * *

    (d) For each scheduled domestic flight segment, including domestic 

segments of a code-share flight operated by another carrier, a 

reporting carrier shall promptly provide to passengers who are ticketed 

or hold reservations, and to other interested persons information about 

a change in the status of a flight, defined for this purpose as 

cancellation of a flight or a delay of 30 minutes or more in the 

planned operation of a flight, including additional delays of 30 

minutes or more to flights for which notification has already been 

provided. This information must at a minimum be provided in the 

boarding gate area, via a carrier's telephone reservation system and on 

the homepage of a carrier's Web site.

    (1) With respect to any carrier that permits passengers to 

subscribe to flight status notification services, the reporting carrier 

shall deliver such notification to such passengers, by whatever means 

is available to the carrier and of the passenger's choice, within 30 

minutes after the carrier becomes aware or should have become aware of 

a change in the status of a flight.

    (2) The reporting carrier shall incorporate such notification 

service commitment into its Customer Service Plan as specified in 

section 259.5 of this chapter.



[[Page 32337]]



    (e) Each reporting carrier shall update all flight status displays 

and other sources of flight information that are under the carrier's 

control at airports with information on each flight delay of 30 minutes 

or more or flight cancellation, within 30 minutes after the carrier 

becomes aware or should have become aware of a change in the status of 

a flight.

    3. A new part 244 is added to read as follows:



PART 244--REPORTING TARMAC DELAY DATA



Sec.

244.1 Definitions.

244.2 Applicability.

244.3 Reporting of tarmac delay data.





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

and 41712.





Sec.  244.1  Definitions.



    For the purposes of this part:

    Arrival time is the instant when the pilot sets the aircraft 

parking brake after arriving at the airport gate or passenger unloading 

area. If the parking brake is not set, record the time for the opening 

of the passenger door. Also, carriers using a Docking Guidance System 

(DGS) may record the official ``gate-arrival time'' when the aircraft 

is stopped at the appropriate parking mark.

    Cancelled flight means a flight operation that was not operated, 

but was listed in an air carrier or a foreign air carrier's computer 

reservation system within seven calendar days of the scheduled 

departure.

    Certificated air carrier means a U.S. air carrier holding a 

certificate issued under 49 U.S.C. 41102 to conduct passenger service 

or holding an exemption to conduct passenger operation under 49 U.S.C. 

40109.

    Commuter air carrier means a U.S. commuter air carrier as described 

in 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.

    Covered carrier means a certificated carrier, a commuter carrier, 

or a foreign air carrier operating to and from or within the United 

States, conducting scheduled passenger service or public charter 

service with at least one aircraft originally designed to have a 

passenger capacity of 30 or more seats.

    Diverted flight means a flight which is operated from the scheduled 

origin point to a point other than the scheduled destination point in 

the carrier's published schedule.

    Foreign air carrier means a carrier that is not a citizen of the 

United States as defined in 49 U.S.C. 40102(a) that holds a foreign air 

carrier permit issued under 49 U.S.C. 41302 or an exemption issued 

under 49 U.S.C. 40109 authorizing direct foreign air transportation.

    Gate departure time is the instant when the pilot releases the 

aircraft parking brake after passengers have been boarded and aircraft 

doors have been closed. In cases where the flight returned to the 

departure gate before wheels-off time and departed a second time, the 

reportable gate departure time is the last gate departure time before 

wheels-off time. In cases of an air return, the reportable gate 

departure time is the last gate departure time before the gate return. 

If passengers were boarded without the parking brake being set, the 

reportable gate departure time is the time that the passenger door was 

closed. Also, the official ``gate-departure time'' may be based on 

aircraft movement for carriers using a Docking Guidance System (DGS). 

For example, one DGS records gate departure time when the aircraft 

moves more than 1 meter from the appropriate parking mark within 15 

seconds. Fifteen seconds is then subtracted from the recorded time to 

obtain the appropriate out time.

    Gate return means that the aircraft leaves the boarding gate only 

to return to a gate for the purpose of allowing passengers to disembark 

from the aircraft.

    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.  244.2  Applicability.



    (a) This part applies to U.S. certificated air carriers, U.S. 

commuter air carriers and foreign air carriers that operate passenger 

service to a U.S. airport with an aircraft originally designed to have 

a passenger capacity of 30 or more seats. Carriers must report all 

passenger operations that experience a tarmac time of 3 hours or more 

at a U.S. airport.

    (b) If a U.S. or a foreign air carrier has no 3-hour tarmac times 

in a given month, it still must submit a monthly report stating there 

were no 3-hour tarmac times.

    (c) U.S. carriers that submit Part 234 Airline Service Quality 

Performance Report must only submit 3-hour tarmac information for 

public charter flights and international passengers flights as the 

domestic scheduled passenger flight information is already being 

collected in part 234 of this chapter.





Sec.  244.3  Reporting of tarmac delay data.



    (a) Each covered carrier shall file BTS Form 244 ``Tarmac Delay 

Report'' with the Office of Airline Information of the Department's 

Bureau of Transportation and Statistics on a monthly basis, setting 

forth the information for each of its flights that experienced a tarmac 

delay of three hours or more, including diverted flights and cancelled 

flights on which the passengers were boarded and then deplaned before 

the cancellation. The reports are due within 15 days of the end of each 

month and shall be made in the form and manner set forth in accounting 

and reporting directives issued by the Director, Office of Airline 

Statistics, and shall contain the following information:

    (1) Carrier code.

    (2) Flight number.

    (3) Departure airport (three letter code).

    (4) Arrival airport (three letter code).

    (5) Date of flight operation (year/month/day).

    (6) Gate departure time (actual) in local time.

    (7) Gate arrival time (actual) in local time.

    (8) Wheels-off time (actual) in local time.

    (9) Wheels-on time (actual) in local time.

    (10) Aircraft tail number.

    (11) Total ground time away from gate for all gate return/fly 

return at origin airports including cancelled flights.

    (12) Longest time away from gate for gate return or canceled 

flight.

    (13) Three letter code of airport where diverted flight.

    (14) Wheels-on time at diverted airport.

    (15) Total time away from gate at diverted airport.

    (16) Longest time away from gate at diverted airport.

    (17) Wheels-off time at diverted airport.

    (b) The same information required by paragraph (a)(13) through 

(a)(17) of this section must be provided for each subsequent diverted 

airport landing.



PART 250--[AMENDED]



    4. The authority citation for 14 CFR part 250 continues to read as 

follows:



    Authority: 49 U.S.C. chapters 401, 411, 413 and 417.



    5. Section 250.1 is amended by removing the definition of ``sum of 

the values of the remaining flight coupons'' and adding a definition of 

``confirmed reserved space'' to read as follows:





Sec.  250.1  Definitions.



* * * * *



[[Page 32338]]



    Confirmed reserved space means space on a specific date on a 

specific flight and class of service of a carrier which has been 

requested by a passenger, including a passenger with a ``zero fare 

ticket'' (e.g., consolidator ticket that does not show a fare amount on 

the ticket, frequent-flyer award ticket, or ticket obtained using a 

travel voucher), and which the carrier or its agent has verified, by 

appropriate notation on the ticket or in any other manner provided 

therefore by the carrier, as being reserved for the accommodation of 

the passenger.

* * * * *

    6. Section 250.2b is amended by revising paragraph (b) and adding 

paragraph (c) to read as follows:





Sec.  250.2b  Carriers to request volunteers for denied boarding.



* * * * *

    (b) Every carrier shall advise each passenger solicited to 

volunteer for denied boarding, no later than the time the carrier 

solicits that passenger to volunteer, whether he or she is in danger of 

being involuntarily denied boarding (in doing so, the carrier must 

fully disclose the boarding priority rules that the carrier will apply 

for that specific flight), and the compensation the carrier is 

obligated to pay if the passenger is involuntarily denied boarding. If 

an insufficient number of volunteers come forward, the carrier may deny 

boarding to other passengers in accordance with its boarding priority 

rules.

    (c) If a carrier offers free or reduced rate air transportation as 

compensation to volunteers, the carrier must disclose all material 

restrictions on the use of that transportation before the passenger 

decides whether to give up his or her confirmed reserved space on that 

flight in exchange for the free or reduced rate transportation.

    7. Section 250.5 is revised to read as follows:





Sec.  250.5  Amount of denied boarding compensation for passengers 

denied boarding involuntarily.



    (a) Subject to the exceptions provided in Sec.  250.6, a carrier to 

whom this part applies as described in Sec.  250.2 shall pay 

compensation to passengers denied boarding involuntarily from an 

oversold flight at the rate of 200 percent of the fare (including any 

surcharges and air transportation taxes) to the passenger's next 

stopover, or if none, to the passenger's final destination, with a 

maximum of $1,300. However, the compensation shall be one-half the 

amount described above, with a $650 maximum, if the carrier arranges 

for comparable air transportation [see Sec.  250.1], or other 

transportation used by the passenger that, at the time either such 

arrangement is made, is planned to arrive at the airport of the 

passenger's next stopover, or if none, the airport of the passenger's 

final destination, not later than 2 hours after the time the direct or 

connecting flight from which the passenger was denied boarding is 

planned to arrive in the case of interstate air transportation, or 4 

hours after such time in the case of foreign air transportation.

    (b) Carriers may offer free or reduced rate air transportation in 

lieu of the cash due under paragraph (a) of this section, if:

    (1) The value of the transportation benefit offered is equal to or 

greater than the cash payment otherwise required;

    (2) The carrier fully informs the passenger of the amount of cash 

compensation that would otherwise be due and that the passenger may 

decline the transportation benefit and receive the cash payment; and

    (3) The carrier fully discloses all material restrictions on the 

use of such free or reduced rate transportation before the passenger 

decides to give up cash payment in exchange for such transportation.

    (c) For the purpose of calculating the denied boarding compensation 

for a passenger with a ``zero fare ticket'', the requirements in 

paragraph (a), (b), and (c) of this section apply. The fare paid by 

these passengers for purpose of this calculation shall be the lowest 

cash, check, or credit card payment charged for a comparable class of 

ticket on the same flight.

    (d) The Department of Transportation will review the maximum denied 

boarding compensation amounts prescribed in this part every two years. 

The Department will use the Consumer Price Index for All Urban 

Consumers (CPI-U) as of July of each review year to calculate the 

revised maximum compensation amounts. The Department will use the 

following formula:



Current Denied Boarding Compensation multiplied by (a/b) rounded to the 

nearest $25 where:



    a = July CPI-U of year of current adjustment

    b = the CPI-U figure in July 2010 when the inflation adjustment 

provision was added to Part 250.



    8. Section 250.9 is amended by revising the section heading and 

paragraph (c) to read as follows:





Sec.  250.9  Written explanation of denied boarding compensation and 

boarding priorities, and verbal notification of denied boarding 

compensation.



* * * * *

    (c) In addition to furnishing passengers with the carrier's written 

statement as specified in paragraphs (a) and (b) of this section, if 

the carrier orally advises involuntarily bumped passengers that they 

are entitled to receive free or discounted transportation as denied 

boarding compensation, the carrier must also orally advise the 

passengers of any restrictions or conditions applicable to the free or 

discounted transportation and that they are entitled to choose cash or 

check compensation instead.



PART 253--[AMENDED]



    9. The authority citation for 14 CFR part 253 continues to read as 

follows:



    Authority:  49 U.S.C. 40113; 49 U.S.C. Chapters 401, 415 and 

417.



    10. Section 253.7 is revised to read as follows:





Sec.  253.7  Direct notice of certain terms.



    A passenger shall not be bound by any terms restricting refunds of 

the ticket price or imposing monetary penalties on passengers unless 

the passenger receives conspicuous written notice of the salient 

features of those terms on or with the ticket.

    11. Section 253.9 is revised to read as follows:





Sec.  253.9  Notice of contract of carriage choice-of-forum provisions.



    The Department considers any contract of carriage provision 

containing a choice-of-forum clause that attempts to preclude a 

passenger from bringing a consumer-related claim against a carrier in 

any court of competent jurisdiction, including a court within the 

jurisdiction of the passenger's residence in the United States, 

provided that the carrier does business within that jurisdiction, to be 

an unfair and deceptive practice prohibited by 49 U.S.C. 41712.



PART 259--[AMENDED]



    12. The authority citation for 14 CFR part 259 continues to read as 

follows:



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

and 41712.



    13. Section 259.2 is revised to read as follows:





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



[[Page 32339]]



a passenger capacity of 30 or more seats, and to all the flights to and 

from the U.S. of a foreign carrier if the carrier operates scheduled 

passenger service or public charter service to and from the U.S. using 

any aircraft originally designed to have a passenger capacity of 30 or 

more seats, with the exception that Sec.  259.5 and Sec.  259.7 do not 

apply to charter service.

    14. Section 259.3 is revised to read as follows:





Sec.  259.3.  Definitions.



    For the purposes of this part:

    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.

    Covered carrier means a certificated carrier, a commuter carrier, 

or a foreign air carrier operating to and from or within the United 

States, conducting scheduled passenger service or public charter 

service with at least one aircraft originally designed to have a 

passenger capacity of 30 or more seats.

    Foreign air carrier means a carrier that is not a citizen of the 

United States as defined in 49 U.S.C. 40102(a) that holds a foreign air 

carrier permit issued under 49 U.S.C. 41302 or an exemption issued 

under 49 U.S.C. 40109 authorizing direct foreign air transportation.

    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.

    Non-hub airport means an airport with 10,000 or more annual 

enplanements but less than 0.05 percent of the country's annual 

passenger boardings.

    Small hub airport means an airport accounting for at least 0.05 

percent but less than 0.25 percent of the total enplanements in the 

United States.

    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.

    15. Section 259.4 is revised to read as follows:





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 U.S. hub airport, medium hub airport, 

small hub airport and non-hub 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 covered U.S. air 

carrier will not permit an aircraft to remain on the tarmac for more 

than three hours before allowing passengers to deplane 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 operated by covered carriers that 

depart from or arrive at a U.S. airport, assurance that the carrier 

will not permit an aircraft to remain on the tarmac at a 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 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 

considerations preclude such service;

    (4) For all flights, assurance of operable lavatory facilities, as 

well as adequate medical attention if needed, while the aircraft 

remains on the tarmac;

    (5) For all flights, assurance that the passengers on the delayed 

flight will receive notifications regarding the status of the tarmac 

delay every 30 minutes while the plane is delayed, including the 

reasons for the tarmac delay;

    (6) Assurance of sufficient resources to implement the plan; and

    (7) Assurance that the plan has been coordinated with airport 

authorities at each U.S. large hub airport, medium hub airport, small 

hub airport and non-hub airport that the carrier serves, as well as its 

regular U.S. diversion airports;

    (8) Assurance that the plan has been coordinated with U.S. Customs 

and Border Protection (CBP) at each large U.S. hub airport, medium hub 

airport, small hub airport and non-hub airport that is regularly used 

for that carrier's international flights, including diversion airports; 

and

    (9) Assurance that the plan has been coordinated with the 

Transportation Security Administration (TSA) at each large U.S. hub 

airport, medium hub airport, small hub airport and non-hub airport that 

the carrier serves, including diversion airports.

    (c) Amendment of plan. At any time, a 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. A 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 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. A carrier's failure to comply 

with the assurances required by this rule and as contained in its 

Contingency Plan for



[[Page 32340]]



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.

    16. Section 259.5 is revised to read as follows:





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 address the 

following subjects and comply with the minimum standards set forth:

    (1) Offering the lowest fare available on the carrier's Web site, 

at the ticket counter, or when a customer calls the carrier's 

reservation center to inquire about a fare or to make a reservation;

    (2) Notifying consumers in the boarding gate area, on board 

aircraft and via a carrier's telephone reservation system and its Web 

site of known delays, cancellations, and diversions;

    (3) Delivering baggage on time, including making every reasonable 

effort to return mishandled baggage within twenty-four hours and 

compensating passengers for reasonable expenses that result due to 

delay in delivery;

    (4) Allowing reservations to be held at the quoted fare without 

payment, or cancelled without penalty, for at least twenty-four hours 

after the reservation is made;

    (5) Where ticket refunds are due, providing prompt refunds for 

credit card purchases as required by Sec.  374.3 of this chapter and 12 

CFR part 226, and for cash and check purchases within 20 days after 

receiving a complete refund request;

    (6) Properly accommodating passengers with disabilities as required 

by Part 382 of this chapter and for other special-needs passengers as 

set forth in the carrier's policies and procedures, including during 

lengthy tarmac delays;

    (7) Meeting customers' essential needs during lengthy tarmac delays 

as required by Sec.  259.4 of this chapter and as provided for in each 

covered carrier's contingency plan;

    (8) Handling ``bumped'' passengers with fairness and consistency in 

the case of oversales as required by Part 250 of this chapter and as 

described in each carrier's policies and procedures for determining 

boarding priority;

    (9) Disclosing cancellation policies, frequent flyer rules, 

aircraft configuration, and lavatory availability on the selling 

carrier's Web site, and upon request, from the selling carrier's 

telephone reservations staff;

    (10) Notifying consumers in a timely manner of changes in their 

travel itineraries;

    (11) Ensuring good customer service from code-share partners, 

including making reasonable efforts to ensure that its code-share 

partner(s) have comparable customer service plans or provide comparable 

customer service levels, or have adopted the identified carrier's 

customer service plan;

    (12) Ensuring responsiveness to customer complaints as required by 

section 259.7 of this chapter; and

    (13) Identifying the services it provides to mitigate passenger 

inconveniences resulting from flight cancellations and misconnections.

    (c) Self-auditing of Plan and retention of records. Each 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.

    17. Section 259.6 is revised to read as follows:





Sec.  259.6  Contract of carriage.



    (a) Each U.S. and foreign air carrier that is required to adopt a 

contingency plan for lengthy tarmac delays shall incorporate this plan 

into its contract of carriage.

    (b) Each U.S. and foreign air carrier that is required to adopt a 

customer service plan shall incorporate this plan in its contract of 

carriage.

    (c) Each U.S. and foreign air carrier that has a Web site shall 

post its entire contract of carriage on its Web site in easily 

accessible form, including all updates to its contract of carriage.

    18. Section 259.7 is revised to read as follows:





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 or a contractor of 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]



    19. The authority citation for 14 CFR part 399 continues to read as 

follows:



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



    20. Section 399.84 is revised to read as follows:





Sec.  399.84  Price advertising and opt-out provisions.



    (a) The Department considers any advertising or solicitation by a 

direct air carrier, indirect air carrier, an agent of either, or a 

ticket agent, for passenger air transportation, a tour (e.g., a 

combination of air transportation and ground accommodations), or a tour 

component (e.g., a hotel stay) that states a price for such air 

transportation, tour, or tour component to be an unfair and deceptive 

practice in violation of 49 U.S.C. 41712, unless the price stated is 

the entire price to be paid by the customer to the carrier, or agent, 

for such air transportation, tour, or tour component. Although separate 

charges included within the total price (e.g., taxes or a fuel 

surcharge) may be stated in fine print or through links or ``pop ups'' 

on Web sites, fares that exclude any required charges may not be 

displayed in advertising or solicitations.

    (b) The Department considers any advertising by the entities listed 

in paragraph (a) of this section of an each-way airfare that is 

available only when purchased for round-trip travel to be an unfair and 

deceptive practice in violation of 49 U.S.C. 41712, unless such airfare 

is advertised as ``each way'' and in such a way so that the disclosure 

of the round trip purchase requirement is clearly and conspicuously 

noted in the advertisement and is stated prominently and proximately to 

the each-way fare amount. Each-way fares may not be referred to as 

``one-way'' fares.

    (c) When offering a ticket for purchase by a consumer, for 

passenger air transportation or for an air tour or air tour component, 

a direct air carrier, indirect air carrier, an agent of either, or



[[Page 32341]]



a ticket agent, may not include ``opt-out'' provisions for additional 

optional services in connection with air transportation, an air tour, 

or air tour component that will automatically be added to the purchase 

if the consumer takes no other action. The consumer must affirmatively 

``opt in'' (i.e., agree) to such a fee for the services before that fee 

is added to the total price for the air transportation-related 

purchase. The Department considers the use of ``opt-out'' provisions to 

be an unfair and deceptive practice in violation of 49 U.S.C. 41712.

    21. A new Sec.  399.85 is added to read as follows:





Sec.  399.85  Notice of baggage fees and other fees.



    (a) If a U.S. or foreign air carrier has a Web site accessible for 

ticket purchases by the general public, the carrier must promptly and 

prominently disclose any increase in its fee for carry-on or checked 

baggage and any change in the checked baggage allowance for a passenger 

on the homepage of the carrier's Web site. Such notice must remain on 

the homepage for at least three months after the change becomes 

effective.

    (b) On all e-ticket confirmations for air transportation within, to 

or from the United States, including the summary page at the completion 

of an online purchase and a post-purchase e-mail confirmation, a U.S. 

or foreign air carrier must include information regarding the free 

passenger's baggage allowance and/or the applicable fee for a carry-on 

bag and the first and second checked bag.

    (c) If a U.S. or foreign air carrier has a Web site where it 

advertises or sells air transportation, on its Web site the carrier 

must disclose information on fees for optional services that are 

charged to a passenger purchasing air transportation. Such disclosure 

must be clear, with a conspicuous link from the air carrier's homepage 

to the fee disclosure. For purposes of this section, the term 

``optional services'' is defined as any service the airline provides 

beyond the provision of passenger air transportation. Such fees 

include, but are not limited to, charges for checked or carry-on 

baggage, advance seat selection, in-flight beverages, snacks and meals, 

and seat upgrades.

    (d) The Department considers the failure to give the appropriate 

notice described in paragraphs (a), (b), and (c) of this section to be 

an unfair and deceptive practice within the meaning of 49 U.S.C. 41712.

    22. A new Sec.  399.87 is added to read as follows:





Sec.  399.87  Prohibition on post-purchase price increase.



    It is an unfair and deceptive practice within the meaning of 49 

U.S.C. 41712 for any seller of scheduled air transportation, or of a 

tour or tour component that includes scheduled air transportation to 

increase the price of that air transportation to a consumer, including 

but not limited to increase in the price of the seat, increase in the 

price for the carriage of passenger baggage, or increase in an 

applicable fuel surcharge, after the air transportation has been 

purchased by the consumer.



[FR Doc. 2010-13572 Filed 6-7-10; 8:45 am]

BILLING CODE 4910-9X-P