[Federal Register Volume 88, Number 49 (Tuesday, March 14, 2023)]
[Proposed Rules]
[Pages 15622-15624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05165]


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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. Reopen comment period.

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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. By this Notice, the virtual public hearing on this 
rulemaking, originally scheduled for March 16, 2023, is rescheduled to 
March 30, 2023. Through this notice, the Department also reopens the 
comment period for the rulemaking and will accept comments through 
April 6, 2023.

DATES: The virtual hearing will be held on March 30, 2023, from 9 a.m. 
to 5 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_MSHu2poARNCKM8vI4-q5mQ. We encourage interested parties to 
register by Monday, March 27, 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 
27, 2023.

[[Page 15623]]


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_MSHu2poARNCKM8vI4-q5mQ. Attendance is open to the public 
subject to any technical and/or capacity limitations. For further 
information, please contact Ryan Patanaphan, Senior Trial Attorney, by 
email at [email protected] or by phone at (202) 366-9180.

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 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 posted a notice 
stating that it was considering whether to grant that request and would 
publish its determination in the Federal Register (See https://www.transportation.gov/airconsumer/AncillaryFeeNPRM-Procedural-Information-January23-2023.) As discussed in Section V. of this notice, 
the Department has determined to grant the Travelers United request for 
additional time to submit comments.
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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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    By a notice dated March 3, 2023, the Department granted the 
requests for a public hearing and originally scheduled the hearing for 
March 16, 2023.\3\ The Department noted that the scope of the hearing 
would be limited to the factual issues specified in the March 3 notice. 
On March 6, 2023, Airlines for America (A4A) and the Travel Technology 
Association (Travel Tech) requested that the public hearing be 
rescheduled and for additional explanation of the hearing procedures. 
Both organizations requested that the hearing be postponed for one 
month until April 17, 2023, stating that the fifteen days' notice (or 
ten business days, per A4A's request) provided for the hearing was 
insufficient to identify speakers and to compile data responsive to the 
subjects presented in the March 3 notice. A4A also stated that it would 
have difficulty finding participants due to the hearing being scheduled 
during the Spring Break season. Both organizations also noted that a 
public hearing on the Airline Ticket Refunds and Consumer Protections 
NPRM had been scheduled for March 14,\4\ giving them inadequate time to 
prepare for the March 16 hearing on the NPRM on ancillary fees.
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    \3\ 88 FR 13389.
    \4\ 88 FR 13387.
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    A4A also reiterated its request for a neutral hearing officer to 
preside over the hearing, expressing its disagreement with the 
appointment of Blane Workie, the Department's Assistant General Counsel 
for the Office of Aviation Consumer Protection and the Department's 
designated Aviation Consumer Advocate. On March 8, 2023, the 
International Air Transport

[[Page 15624]]

Association (IATA) wrote to express support for A4A and Travel Tech's 
requests.

II. Rescheduling of Public Hearing

    After careful consideration of the points raised by A4A and Travel 
Tech, the Department has decided to reschedule its public hearing on 
the Enhancing Transparency of Airline Ancillary Service Fees NPRM to 
March 30, 2023. While the Department was surprised to learn that the 
parties that had requested the public hearing were unprepared to 
present views on the topics for which they had requested the hearing, 
the Department wants to ensure that stakeholders, including the 
petitioners, have an adequate opportunity to be heard on this 
rulemaking and for this reason, has determined that a 14-day extension 
to assist with preparation for the hearing is reasonable. As part of 
this rescheduling, the length of the hearing will also be extended to 
ensure adequate time is afforded to those who wish to comment. The 
hearing will be held from 9 a.m. to 5 p.m. ET. As noted in Section IV 
of this notice, if all participants have expressed their views prior to 
the scheduled 5 p.m. end time, the Department may end the hearing prior 
to 5 p.m.

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

    The Department has considered A4A's request for the appointment of 
a different hearing officer and has decided to retain the appointment 
of Blane Workie as the designated Hearing Officer. The Department notes 
that the Hearing Officer's role is to preside over the hearing. In that 
regard, Ms. Workie's appointment is appropriate because: (1) she is a 
career civil servant who will execute this role in a neutral, fair, and 
professional manner; (2) her responsibilities as an Aviation Consumer 
Advocate are those that she has had as an Assistant General Counsel of 
the Office of the Aviation Consumer Protection and such 
responsibilities do not make her biased; and (3) the Hearing Officer's 
role is to conduct the meeting using generally accepted meeting 
management techniques and to not serve as a decisionmaker. As stated in 
the Department's regulations in 14 CFR 399.75, the General Counsel 
considers the record of the hearing and makes 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.

IV. Public Participation and Procedures

    The March 30, 2023, hearing will begin at 9 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 the March 3 Notice and be brief so that all 
participants will have an opportunity to speak. If a meeting 
participant wishes to speak on a particular topic identified in the 
March 3, 2023 notice,\5\ the participant must register in advance to 
speak on that topic. We ask individuals requesting to speak to specify 
the length of time that they would like to have allotted to them. Based 
on the number of participants who register to speak on a particular 
topic, the Department will allot time to individual speakers in a way 
that maximizes each speaker's ability to present their views and to 
ensure a wide variety of perspectives. The Hearing Officer may ask 
clarifying questions during the hearing but will otherwise reserve 
speaking time after opening remarks for meeting participants. The 
intent of the hearing is to ensure that the Department is able to hear 
from petitioners and other interested parties regarding the issues 
raised in the petition. If the volume of requests for oral comments 
received and any additional comments, responses, and/or presentations 
that participants may wish to make is such that all participants have 
expressed their views prior to the scheduled 5 p.m. end time, the 
Department may end the hearing prior to 5 p.m.
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    \5\ 88 FR 13389, available at https://www.federalregister.gov/documents/2023/03/03/2023-04510/enhancing-transparency-of-airline-ancillary-service-fees.
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    Individual members of the public who wish to present oral comments 
must notify the Department of Transportation, no later than Monday, 
March 27 via the meeting's registration link and specify in the 
registration those topics on which they wish to provide comments. All 
written materials (e.g., PowerPoint presentations) presented at the 
hearing will be made part of the meeting's record.
    As discussed in Section V. of this notice, and consistent with the 
requirement of 14 CFR 399.75, the Department plans to reopen the 
comment period for this rulemaking. The comment period will remain open 
through April 6, 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.

V. Reopening of Public Comment Period

    Consistent with the procedural requirement under section 14 CFR 
399.75, which provides that interested parties shall be given an 
opportunity to file statements or comments after a hearing on the 
proposed regulation, and in granting the Travelers United request for 
additional time to submit comments, the Department is reopening the 
comment period for the NPRM from March 14, 2023 through April 6, 2023. 
The Department will consider any comments received from publication of 
the NPRM through April 6, 2023 to be timely filed. New comments 
submitted to the Docket may include, but need not be limited to, 
subjects discussed in the petition for hearing and during the March 30, 
2023 hearing.

VI. 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.

    Signed in Washington, DC, on this 9th day of March 2023.
John E. Putnam,
General Counsel, U.S. Department of Transportation.
[FR Doc. 2023-05165 Filed 3-13-23; 8:45 am]
BILLING CODE 4910-9X-P