[Federal Register Volume 88, Number 42 (Friday, March 3, 2023)]
[Proposed Rules]
[Pages 13389-13392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04510]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 399

[Docket No. DOT-OST-2022-0109]
RIN 2105-AF10


Enhancing Transparency of Airline Ancillary Service Fees

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

ACTION: Public hearing.

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SUMMARY: This Notice announces a virtual public hearing on certain 
issues related to the U.S. Department of Transportation's Notice of 
Proposed Rulemaking on Enhancing Transparency of Airline Ancillary 
Service Fees.

DATES: The virtual hearing will be held on March 16, 2023, from 10:00 
a.m. to 5:00 p.m. Eastern Time. The hearing is open to the public, 
subject to any technical and/or capacity limitations. Requests to 
attend the hearing must be submitted to https://usdot.zoomgov.com/webinar/register/WN_v-c7rpgUR5yvFVePlnQU_A. We encourage interested 
parties to register by Monday, March 13, 2023. Communication Access 
Real-time Translation (CART) and sign language interpretation will be 
provided during the hearing. Requests for additional accommodations 
because of a disability must be received at [email protected] by 
Monday, March 13, 2023.

ADDRESSES: The virtual hearing will be open to the public and held via 
the Zoom Webinar Platform. Virtual attendance information will be 
provided upon registration. An agenda will be available on the 
Department's Office of Aviation Consumer Protection website at https://www.transportation.gov/airconsumer/latest-news in advance of the 
hearing.

FOR FURTHER INFORMATION CONTACT: To register and attend this virtual 
hearing, please use the link: https://usdot.zoomgov.com/webinar/register/WN_v-c7rpgUR5yvFVePlnQU_A. Attendance is open to the public 
subject to any technical and/or capacity limitations. For further 
information, please contact Cristina Draguta, Attorney-Advisor, by 
email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 20, 2022, the U.S. Department of Transportation (DOT or 
Department) published in the Federal Register a notice of proposed 
rulemaking (NPRM) that proposed several disclosure requirements to 
enhance the transparency of ancillary service fees so consumers know 
the true cost of air travel early in the purchasing process. (87 FR 
63718). In the NPRM, the Department proposed to require U.S. air 
carriers, foreign air carriers, and ticket agents to clearly disclose 
passenger-specific or itinerary-specific baggage fees, change fees, and 
cancellation fees to consumers whenever fare and schedule information 
is provided to consumers for flights to, within, and from the United 
States. The Department also proposed requiring similar disclosures for 
fees for a child 13 or under to be seated adjacent to an accompanying 
adult, as well as the transactability of such seating fees. To ensure 
ticket agents could provide the proposed disclosures, the NPRM proposed 
requiring carriers to provide useable, current, and accurate 
information regarding fees to ticket agents that sell or display the 
carrier's fare and schedule information. The

[[Page 13390]]

NPRM also proposed an implementation and compliance period of six 
months from the date of a potential final rule.
    The NPRM provided for a comment period of 60 days after publication 
of the NPRM in the Federal Register, i.e., December 19, 2022. In 
response to a request for additional opportunity to comment, the 
Department extended the comment period for an additional 35 days to 
January 23, 2023.\1\ The Department subsequently received a request to 
further extend the comment period on the basis that the requestor was 
not able to view the January 12, 2023 meeting of the Aviation Consumer 
Protection Advisory Committee meeting when it occurred and that as of 
the time the request for extension was submitted, the meeting materials 
had not been posted to the docket. The Department declined to extend 
the comment period based on that request. (88 FR 4923 (Jan. 26, 2023)). 
The Department received another request for additional time to provide 
comments on the NPRM, based primarily on technological and interface 
issues identified by the petitioner. The Department is considering 
whether to grant that request and will publish its determination in the 
Federal Register. (See https://www.transportation.gov/airconsumer/AncillaryFeeNPRM-Procedural-Information-January23-2023.)
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    \1\ 87 FR 77765 (Dec. 20, 2022).
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    On January 23, 2023, multiple commenters petitioned the Department 
for a public hearing on the NPRM pursuant to the Department's 
regulation on rulemakings relating to unfair and deceptive practices, 
14 CFR 399.75.\2\ Airlines for America raised two questions in its 
petition: whether consumers are or are likely to be substantially 
injured or are misled by airlines' current disclosures of ancillary 
service fees; and whether disclosures of itinerary-specific ancillary 
fees at the time of first search will result in the display of 
incomplete or inapplicable ancillary fee information, cause consumer 
confusion, and distort the marketplace. The Travel Technology 
Association (Travel Tech) states in its petition that there is a 
fundamental disputed factual issue as to whether the proposed display 
requirements would benefit or harm consumers. Travel Tech also believes 
that the proposed disclosures are technically infeasible and has 
requested a hearing to discuss these concerns as well as the 
Department's proposed time frame for compliance. In its comment on the 
NPRM, Google LLC also requested a hearing based on its assertion that 
the Department's analysis was flawed and that it was deficient in 
providing its complaint-based evidence justifying the rulemaking. In 
arguing that a hearing is in the public interest pursuant to 14 CFR 
399.75, Airlines for America and Travel Tech assert that the underlying 
proposed rule depends on conclusions concerning one or more specific 
scientific, technical, economic, or other factual issues that are 
genuinely in dispute; the ordinary public comment process is unlikely 
to provide an adequate examination of the issue to permit a fully 
informed judgement; the resolution of the disputed factual issues would 
likely have a material effect on the costs and benefits of the proposed 
rule; the requested hearing on the issue would advance the 
consideration of the proposed rule and the General Counsel's ability to 
make the rulemaking determinations required by the Department's 
regulation; and a hearing will not unreasonably delay completion of 
this rulemaking.
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    \2\ See, e.g., petitions for hearing from Airlines for America, 
https://www.regulations.gov/comment/DOT-OST-2022-0109-0091, the 
Travel Technology Association, https://www.regulations.gov/comment/DOT-OST-2022-0109-0239, and Google LLC, https://www.regulations.gov/comment/DOT-OST-2022-0109-0088.
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    The Department has carefully considered the petitions for a public 
hearing consistent with 14 CFR 399.75 and is granting a public hearing 
to afford Petitioners and other stakeholders an opportunity, in 
addition to the public comment process, to present factual issues that 
they believe are pertinent to the Department's decision on the 
rulemaking.\3\ The scope of the hearing is limited to the factual 
issues specified in this notice.
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    \3\ With its comment and petition, Google LLC noted similar 
concerns as Airlines for America and Travel Tech regarding the 
substance of the NPRM's proposals. However, Google LLC's petition 
was articulated in a footnote which did not make a sufficient 
showing that a hearing would be in the public interest. See 14 CFR 
399.75(b)(2) for factors that assist in determining whether a 
petition is in the public interest. As such, we deny Google LLC's 
petition for a hearing in part to the extent the subjects of 
Google's petition are not otherwise addressed as part of the 
petitions of Airlines for America and Travel Tech.
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    The Department's proposals are set forth in the October 2022 NPRM. 
The issues identified by Petitioners concerning the Department's NPRM 
and on which they request a hearing are discussed in more detail in 
their petitions for rehearing. The information the Department is 
requesting during the hearing on these issues is summarized below.

Issue 1: Whether Consumers Are or Are Likely To Be Substantially 
Injured or Misled by Airlines' Current Disclosures of Ancillary Service 
Fees

    The Department welcomes information during the hearing on the 
following topics, to the extent it has not been provided in any written 
comments already submitted to the Docket:
     Information from consumers and others about instances in 
which they searched for and/or purchased tickets for air travel and 
were confused or surprised by the baggage fees that they would need to 
pay.
     Statistical information from carriers and ticket agents 
about the number of complaints they receive from consumers expressing 
confusion or surprise at the baggage fees they were asked or made to 
pay.
     Information from consumers and others about instances in 
which they searched for and/or purchased tickets for air travel and 
were confused or surprised by the ticket change or cancellation fees 
that they would need to pay.
     Statistical information from carriers and ticket agents 
about the number of complaints they receive from consumers expressing 
confusion or surprise at the ticket change or cancellation fees they 
were asked or made to pay.
     Information from consumers and others about instances in 
which they searched for and/or purchased tickets for air travel and 
were confused or surprised that they would need to pay a fee for a 
child age 13 or under to be seated next to an accompanying adult.
     Statistical information from carriers and ticket agents 
about the number of complaints they receive from consumers expressing 
confusion or surprise that they were asked or made to pay a fee for a 
child age 13 or under to be seated next to an accompanying adult.
     Data on the frequency with which consumers view ancillary 
fee pages on airline websites.
     Data on the frequency with which consumers using ticket 
agent websites click on links to airline ancillary fee policies 
(whether external or internal links).
     Data on the frequency with which consumers conduct 
itinerary searches on airline websites and on ticket agent websites.
     Data and information regarding whether the Department's 
proposals would require significant changes to product displays and how 
such changes could impact consumers.
     Any other factual information that is pertinent to the 
Department's determination on this proposal.

[[Page 13391]]

Issue 2: Whether Disclosures of Itinerary-Specific Ancillary Fees at 
the Time of First Search Will Result in the Display of Incomplete or 
Inapplicable Ancillary Fee Information, Cause Consumer Confusion, and 
Distort the Marketplace

    The Department welcomes the following information during the 
hearing to the extent it has not been provided in any written comments 
already submitted to the Docket:
     Information on whether and how ancillary fee information 
is currently displayed to consumers as they use airline or ticket agent 
online booking systems to purchase tickets.
     Information or data on the proportion of airlines and 
ticket agents that employ online booking systems that do not display 
specific ancillary fees on the itinerary search results page of the 
booking process but do display specific ancillary fees on other pages 
of the booking process prior to the consumer executing a purchase or 
reservation.
     Data or information on whether and to what extent the lack 
of ancillary fee information at the time of itinerary and fare 
selection results in higher total trip costs to consumers compared to 
alternatives or higher time spent on the ticket purchase process.
     Information from consumers and others about the time spent 
searching for ancillary fee information on an airline or ticket agent 
website.
     Information from consumers and others about the added time 
spent, if any, from restarting an itinerary search due to a lack of 
ancillary fee information being displayed upfront.
     Information from consumers and others about added costs 
and/or time spent on searching airline and/or ticket agent websites to 
find fees for baggage, changes and cancellations, and family seating.
     Information from consumers and others about added costs 
and/or time spent on calculating the total price of a ticket to include 
baggage fees and family seating fees.
     Data and information regarding any potential for consumer 
confusion from overcrowded displays or information overload that could 
result from the Department's proposal, particularly on mobile or other 
devices with smaller displays.
     Any other information that is pertinent to the 
Department's determination on this proposal.

Issue 3: Whether Requiring Fee Disclosures on the First Page of the 
Itinerary Search Selection Process Would Be Technically Infeasible

    The Department welcomes the following information during the 
hearing to the extent it has not been provided in any written comments 
already submitted to the Docket:
     Factual information or data on the proportion of consumers 
that search for and/or purchase tickets for air travel using mobile 
devices (e.g., mobile phones and tablets), and the proportion of ticket 
searches and/or purchases that are conducted using each type of mobile 
device.
     Factual information or data on the impact of additional 
disclosure requirements on web page and booking engine load times.
     Factual or demonstrative information on alternatives to 
the proposed disclosure requirements, as well as how the proposed 
disclosure requirements would be represented and used on mobile 
displays.
     Information on whether additional time for compliance with 
the proposal would mitigate the above concerns.

II. Agenda, Hearing Officer, and Post-Hearing Actions

    During the March 16, 2023, hearing, the Department will hear 
information from the public on the three subjects described above. The 
Department's tentative positions on these subjects are articulated in 
the NPRM. The Department does not expect to provide further summary or 
explanation on its positions.
    The Department is appointing Blane Workie, Assistant General 
Counsel, Office of Aviation Consumer Protection, as the Hearing Officer 
presiding over the hearing. The Department's regulations at 14 CFR 
399.75 specify that the General Counsel shall arrange for a hearing 
officer to preside over the hearing. The regulations further provide 
that after the hearing process is complete, the General Counsel must 
consider the record of the hearing and make a reasoned determination 
whether to terminate the rulemaking, proceed with the rulemaking as 
proposed, or modify the proposed rule. The regulations further require 
the General Counsel to explain, in an appropriate rulemaking document 
published in the Federal Register, the rationale for the post-hearing 
decision made by the General Counsel. The rationale for the post-
hearing decision made by the General Counsel will be explained in any 
final rule or other appropriate rulemaking document issued by the 
Department for this action.

III. Public Participation

    The March 16, 2023, hearing will begin at 10:00 a.m. ET, and the 
Department will provide time for opening remarks by the Hearing 
Officer. The meeting will then transition to public comments and 
presentations. Any oral comments presented should be limited to the 
subjects described in this Notice and be brief so all participants will 
have an opportunity to speak. Depending on the volume of request for 
oral comments that we receive and the time available, we may be able to 
accommodate additional comments and/or presentations that speakers wish 
to add. Individual members of the public who wish to present oral 
comments must notify the Department of Transportation, no later than 
Monday, March 13 via email at [email protected] that they wish to 
present oral comments. The email should (1) identify specific 
subject(s) on which you wish to provide comments; and (2) state the 
organization or entity you are representing or that you are speaking as 
a member of the public. All written materials (e.g., PowerPoint 
presentations) presented at the hearing will be made part of the 
meeting's record.
    Consistent with the requirement of 14 CFR 399.75, the Department 
plans to reopen the comment period for this rulemaking on March 16, 
2023, the date of the hearing, and the comment period will remain open 
for seven (7) days, closing on March 23, 2023. Interested parties who 
wish to file statements or comments that are specifically related to 
the subject(s) discussed at the hearing may submit their written 
comments electronically to the NPRM Docket (DOT-OST-2022-0109).
    After the hearing and after the record of the hearing is closed, 
the hearing officer will place on the rulemaking docket minutes of the 
hearing reflecting the evidence and arguments presented on the issues.

IV. Viewing Documents

    Documents associated with the NPRM on Enhancing Transparency of 
Airline Ancillary Service Fees may be accessed in the rulemaking Docket 
(DOT-OST-2022-0109). Dockets may be accessed at https://www.regulations.gov. After entering the relevant docket number click 
the link to ``Open Docket Folder'' and choose the document to review.


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    Signed in Washington, DC, on this 28th day of February 2023.
John E. Putnam,
General Counsel, U.S. Department of Transportation.
[FR Doc. 2023-04510 Filed 3-2-23; 8:45 am]
BILLING CODE 4910-9X-P