[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34620-34677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08609]



[[Page 34619]]

Vol. 89

Tuesday,

No. 84

April 30, 2024

Part IV





Department of Transportation





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14 CFR Parts 259 and 399





Enhancing Transparency of Airline Ancillary Service Fees; Final Rule

  Federal Register / Vol. 89 , No. 84 / Tuesday, April 30, 2024 / Rules 
and Regulations  

[[Page 34620]]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 259 and 399

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


Enhancing Transparency of Airline Ancillary Service Fees

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

ACTION: Final rule.

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SUMMARY: The U.S. Department of Transportation (Department or DOT) is 
issuing a final rule to strengthen protections for consumers by 
ensuring that they have access to fee information for transporting 
baggage and changing or canceling a flight before ticket purchase. 
Under the final rule, U.S. air carriers, foreign air carriers, and 
ticket agents must clearly disclose passenger-specific or itinerary-
specific fees for these services to consumers whenever fare and 
schedule information is provided for flights to, within, and from the 
United States. The Department is further requiring that carriers 
provide useable, current, and accurate information regarding fees for 
these critical ancillary services to any entity that is required to 
disclose critical ancillary service fee information to consumers. This 
final rule is in response to the Executive order on Promoting 
Competition in the American Economy, which directs the Department to 
take various actions to promote the interests of American workers, 
businesses, and consumers. The rule will ensure that consumers have the 
information they need to understand the true costs of air 
transportation that apply to them, which will create a more competitive 
market with better outcomes for consumers.

DATES: This rule becomes effective on July 1, 2024.

FOR FURTHER INFORMATION CONTACT: Heather Filemyr, Ryan Patanaphan, or 
Blane A. Workie, Office of Aviation Consumer Protection, U.S. 
Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 
20590, 202-366-9342, 202-366-7152 (fax), [email protected], 
[email protected], or [email protected] (email).

SUPPLEMENTARY INFORMATION:

A. Executive Summary

(1) Purpose of the Regulatory Action

    The purpose of this final rule is to ensure that consumers know 
upfront the fees carriers charge for transporting a first checked bag, 
a second checked bag, and a carry-on bag and for canceling or changing 
a reservation to avoid surprise fees that can add up quickly and add 
significant cost to what may, at first, look like a cheap ticket. 
Airlines \1\ have imposed separate fees for ancillary services related 
to air travel beyond passenger air transportation as part of their 
business model for many years.\2\ Ancillary service fees are not 
subject to the 7.5% airline ticket tax that is used to support the 
Aviation Trust Fund. These ancillary fees have become more complex over 
time and continue to confuse consumers, as explained in section B (2). 
Which airlines impose such fees, what services require payment of a 
fee, the amount of the fee, and whether the same fees apply to all 
passengers are in a continuous state of change. For example, during the 
Coronavirus-19 (COVID-19) public health emergency, several airlines 
advertised the elimination of ticket change fees, but despite these 
general announcements, airlines continued to impose, or later 
reimposed, change fees for certain fare types such as ``basic 
economy.'' \3\ In this context, consumer organizations have long 
advocated for more upfront disclosure of ancillary fees.\4\
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    \1\ The preamble in this final rule uses the term ``airlines'' 
to refer to ``air carriers'' and ``foreign air carriers'' as those 
terms are used in the Department's regulations. The two terms are 
defined in 49 U.S.C. 40102(a)(2) and (a)(21).
    \2\ See, e.g., Comment from the International Air Transport 
Association, p.4 (``Airlines have been separating baggage fees from 
the core transportation service for more than 14 years . . . .''), 
available at https://www.regulations.gov/comment/DOT-OST-2022-0109-0085.
    \3\ See, e.g., Delta Air Lines, Delta Eliminates Change Fees, 
Building On Commitment to Flexibility for Consumers, Aug. 31, 2020, 
Alaska Airlines, Fly with Peace of Mind: Alaska Airlines Eliminates 
Change Fees Permanently, Sept. 1, 2020, American Airlines, Wave 
Goodbye to Change Fees, Spirit Airlines, How Can I Change or Cancel 
My Reservation? (visited Feb. 29, 2024). Website screenshots 
available in docket at https://www.regulations.gov/docket/DOT-OST-2022-0109.
    \4\ See, e.g., Final Rule, Enhancing Airline Passenger 
Protections, 74 FR 68983, 68984 (Dec. 30, 2009) (noting that the 
subject of baggage fees disclosure would be included in future 
rulemaking following concerns raised by consumers and consumer 
associations). See also Final Rule, Enhancing Airline Passenger 
Protections, 76 FR 23110, 23142 (Apr. 25, 2011).
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    On July 9, 2021, the President issued E.O. 14036, ``Promoting 
Competition in the American Economy,'' \5\ which launched a whole-of-
government approach to strengthen competition across many sectors, 
including commercial aviation. Section 5, paragraph (m)(i)(F) of E.O. 
14036 directed the Department to ``consider initiating a rulemaking to 
ensure that consumers have ancillary fee information, including 
`baggage fees,' `change fees,' and `cancellation fees,' at the time of 
ticket purchase.'' This rulemaking responds to the direction in E.O. 
14036 to provide improved ancillary fee disclosures to consumers 
purchasing air transportation.\6\
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    \5\ 86 FR 36987 (https://www.federalregister.gov/documents/2021/07/14/2021-15069/promoting-competition-in-the-american-economy).
    \6\ This rulemaking also addresses section 5, paragraph 
(m)(i)(B) of E.O.14036. That section directed the Department to 
promote enhanced transparency and consumer safeguards, as 
appropriate and consistent with applicable law, including through 
potential rulemaking, enforcement actions, or guidance documents, 
with the aims of enhancing consumer access to airline flight 
information so that consumers can more easily find a broader set of 
available flights, including by new or lesser known airlines; and 
ensuring that consumers are not exposed or subject to advertising, 
marketing, pricing, and charging of ancillary fees that may 
constitute an unfair or deceptive practice or an unfair method of 
competition.
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(2) Overview of Existing Requirements

    In 2011, the Department issued a final rule titled, ``Enhancing 
Airline Passenger Protections,'' \7\ that sought to address consumer 
concerns regarding the proliferation of ancillary fees. In the rule, 
the Department added several disclosure requirements for airlines: (1) 
a disclosure on the homepage for at least three months of any increase 
in the fee for passenger baggage or any change in the free baggage 
allowance for checked or carry-on baggage; (2) a notice on the first 
screen with a fare disclosure that additional airline fees for baggage 
may apply and where consumers can go to access these baggage fees; (3) 
a notice on e-ticket confirmations regarding the free baggage allowance 
for that flight and any applicable fee for the first and second checked 
bag and carry-on bag; and (4) a disclosure of all fees for optional 
services in one central place on the seller's website, with non-baggage 
fees permitted to be expressed as ranges. Under the 2011 rule, the 
Department determined that checked and carry-on baggage were 
``fundamental'' to air travel, and the Department required that fees 
for such services be expressed as specific charges on a central place 
on the airline's website (alongside other ancillary fees), with 
information about any differing prices and allowances based on the 
passenger's status. Based on ticket agent concerns that the rule would 
be costly to ticket agents as airlines are ``updating and changing fees 
constantly,'' \8\ the Department applied fewer or modified disclosure 
requirements to ticket agents.
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    \7\ 76 FR 23110, supra.
    \8\ Id. at 23145.
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    Based on continued feedback by various stakeholders and advisory

[[Page 34621]]

committees (further discussed below), the Department explored further 
changes to ancillary fee disclosure requirements in a 2014 notice of 
proposed rulemaking (NPRM) \9\ and a 2017 supplemental notice of 
proposed rulemaking (SNPRM).\10\ These efforts are further described in 
section B below, though neither resulted in changes to the regulation.
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    \9\ 79 FR 29970 (May 23, 2014).
    \10\ 82 FR 7536 (Jan. 19, 2017).
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(3) Summary of Major Provisions

    This final rule increases the protections provided to consumers as 
set forth in the summary table below.

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           Subject                            Requirement
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Covered Entities.............  The final rule applies to U.S. air
                                carriers, foreign air carriers, and
                                ticket agents (excluding corporate
                                travel agents) that advertise or sell
                                air transportation directly to
                                consumers.
                               The Department defers for a later
                                rulemaking the determination of whether
                                metasearch sites that do not sell
                                airline tickets but display airline
                                flight search options directly to
                                consumers are ticket agents that must
                                disclose ancillary fee information
                                required by this rule.
Critical Ancillary Services..  The rule defines critical ancillary
                                services as any ancillary service
                                critical to consumers' purchasing
                                decisions. The ancillary services that
                                this final rule identifies as critical
                                to consumers are as follows: (1)
                                transporting a first checked bag, second
                                checked bag, and carry-on bag; and (2)
                                changing or canceling a reservation.
                               Any other service may also be determined,
                                after notice and opportunity to comment,
                                to be critical by the Secretary.
Disclosure of Fees and         The final rule requires airlines and
 Policies for Critical          ticket agents to disclose fees for
 Ancillary Services.            critical ancillary services during the
                                itinerary search process at the first
                                point where a fare and schedule is
                                provided in connection with a specific
                                flight itinerary. The fee disclosure
                                includes noting that a fare category
                                does not allow changing or canceling a
                                reservation or transporting a checked or
                                carry-on bag if that is the case.
                               Policies for critical ancillary services
                                must be disclosed before ticket purchase
                                when a search is conducted online but
                                are not required to be disclosed with
                                the fare and schedule.
                               The information disclosed must be
                                accurate, clear, and conspicuous. Fees
                                cannot be displayed through a hyperlink,
                                but disclosure is permitted using pop-
                                ups, expandable text, or other means.
Links to Book a Flight with a  This final rule requires airlines and
 Carrier or an Online Travel    ticket agents that sell airline tickets
 Agency (OTA).                  to disclose critical ancillary service
                                fees on the first page of their online
                                platforms to which consumers are
                                directed after searching for flight
                                options on another entity's online
                                platform (a metasearch site) unless the
                                consumer was already provided accurate
                                fee information on the directing
                                entity's online platform.
Passenger-Specific and         This final rule requires carriers and
 Anonymous Searches.            ticket agents to disclose the fees for
                                critical ancillary services as passenger-
                                specific itinerary information if a
                                consumer conducts a passenger-specific
                                itinerary search.
                               A passenger-specific itinerary search
                                refers to a search that takes into
                                account information specific to the
                                passenger (e.g., the passenger's status
                                in the airline's frequent flyer program,
                                the passenger's military status, or the
                                passenger's status as a holder of a
                                particular credit card) that was
                                affirmatively provided by that passenger
                                and information specific to the
                                itinerary (e.g., geography, travel
                                dates, cabin class, and ticketed fare
                                class such as full fare ticket) that may
                                impact the critical ancillary service
                                fees to be charged or policies to be
                                applied.
                               An anonymous itinerary search refers to a
                                search that does not take into account
                                information specific to the passenger
                                but does take into account information
                                specific to the itinerary (e.g.,
                                geography, travel dates, cabin class,
                                and ticketed fare class such as full
                                fare ticket) that may impact the
                                critical ancillary service fees to be
                                charged or policies to be applied.
Opting Out of Disclosures....  The final rule does not permit airlines
                                and ticket agents to omit disclosure of
                                first checked, second checked, or carry-
                                on baggage fees with the fare and
                                schedule information on their online
                                platform unless: (1) the airline/ticket
                                agent asks consumers at the beginning of
                                a search if they intend to travel with a
                                carry-on bag or checked bags; and (2) a
                                consumer affirmatively indicates that no
                                one in the booking party intends to
                                travel with carry-on bag or first or
                                second checked bags.
                               The final rule does not permit airlines
                                or ticket agents to enable consumers to
                                opt out of display of change and
                                cancellation fees on the airline's or
                                ticket agent's online platform.
Disclosures on Online          The final rule requires airlines and
 Platforms.                     ticket agents to disclose the fees and
                                policies for critical ancillary services
                                on airlines' or ticket agents' online
                                platforms.
                               The final rule defines ``online
                                platforms'' to be any interactive
                                electronic medium, including, but not
                                limited to, websites and mobile
                                applications, that allow the consumer to
                                search for or purchase air
                                transportation from a U.S. carrier,
                                foreign carrier, or ticket agent.
Offline (Telephone, In-        The final rule requires airlines and
 person) Disclosures of         ticket agents to disclose to consumers
 Airline Ancillary Service      during an in-person or telephone inquiry
 Fees.                          that critical ancillary fees apply if
                                that is the case and upon request
                                disclose those fees to consumers.
Sharing of Airline Ancillary   This final rule requires airlines to
 Service Fee Information.       provide critical ancillary fee
                                information to any entity that is
                                required to disclose critical ancillary
                                service fee information to consumers.
Percentage-Off Advertisements  The final rule requires airlines and
                                ticket agents that advertise percentage-
                                off discounts of a ``flight,''
                                ``ticket,'' or ``fare'' to apply the
                                percentage-off discount to the full fare
                                (i.e., all mandatory government taxes/
                                fees and carrier-imposed charges/fees).
                               The final rule requires airlines and
                                ticket agents that advertise percentage-
                                off discounts of a ``base fare'' to
                                apply the percentage-off discount to the
                                full fare amount excluding all
                                government taxes and charges (i.e., all
                                mandatory carrier-imposed charges/fees).

[[Page 34622]]

 
Compliance/Implementation      The final rule requires that: (1)
 Period.                        airlines must provide required critical
                                ancillary fee data to ticket agents not
                                later than six months after this rule's
                                publication date, or October 30, 2024;
                                (2) airlines must comply with all other
                                regulatory requirements no later than 12
                                months after this rule's publication
                                date, or April 30, 2025; (3) ticket
                                agents that do not meet the Small
                                Business Administration (SBA) definition
                                of small entity must comply with all
                                regulatory requirements no later than 18
                                months after this rule's publication
                                date, or October 30, 2025; and (4)
                                ticket agents that that meet the SBA
                                definition of small entity must comply
                                with all regulatory requirements no
                                later than 24 months after this rule's
                                publication date, or April 30, 2026.
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(4) Costs and Benefits

    The final rule changes how U.S. air carriers, foreign air carriers, 
and ticket agents disclose information about certain ancillary fees for 
flights. Expected benefits of the rule result from the reduction of 
excess consumption of air travel, or deadweight loss, which occurs 
because consumers who are unaware of ancillary service fees behave as 
if the price for air travel is lower than it is. Annual benefits from 
reducing deadweight loss are expected to amount to $5.5 million. The 
other source of benefits estimated by the Department is from the time 
consumers will save when they search for airfare because they no longer 
need to interrupt their search to find information on ancillary service 
fees. Depending on assumptions regarding the number of consumers who 
consider ancillary fee information when they search for airfare, time 
savings benefits are expected to range from $365 million to $484 
million annually.
    Expected costs of this rule include costs to consumers due to the 
time needed to navigate increased amounts of information, which range 
from $239 million to $331 million annually. The primary estimated costs 
of the rule to carriers and ticket agents are the costs that they would 
incur to modify their websites by adjusting their displays of fares, 
schedules, and fees. Third parties involved in data exchange, such as 
Global Distribution Systems (GDSs) and direct-channel companies might 
incur some costs due the need to upgrade their systems, though the 
Department acknowledges that these entities are already upgrading 
systems for market reasons and have been for several years. Quantified 
costs range from $286 million to $378 million annually.
    One effect of better information on ancillary fees is that some 
consumers will pay less for the ancillary services they use when they 
travel by air. These economic effects are not societal benefits or 
costs but represent a transfer from airlines to consumers, estimated to 
be about $543 million annually. This transfer represents $543 million 
in overpayment in fees for consumers, or from the perspective of 
airlines, additional revenue from consumers who are surprised by fees 
and, for example, then need to pay a higher fee at the airport to check 
a bag. This transfer, as well as the benefits due to any reduction in 
deadweight loss, accrue to consumers and are expected to occur 
regardless of any time savings impacts.

B. Background

(1) Existing Ancillary Fee Disclosure Requirements

    As noted above, the Department's existing regulations in 14 CFR 
399.85 contain the requirements for ancillary fee disclosures as 
promulgated in the 2011 final rule. Under 14 CFR 399.85(a), airlines 
must promptly and prominently disclose any increase in fees for a 
carry-on or first and second checked bags and any change in bag 
allowances on the homepages of their websites. Paragraph (b) requires 
airlines and ticket agents to disclose clearly and prominently on the 
first screen with a fare quotation for a specific itinerary that 
additional airline fees for baggage may apply and where consumers can 
see these fees. Ticket agents may refer consumers to the airline 
websites for specific baggage fee information or to their own sites if 
they display airline baggage fees. Paragraph (c) requires airlines and 
ticket agents to disclose on e-ticket confirmations information 
regarding passengers' free baggage allowances and applicable fees for a 
carry-on bag and a first and second checked bag, expressed as specific 
charges taking into account any factors that affect those charges such 
as passenger status. Paragraph (d) requires airlines to disclose the 
fees for all ancillary services on their websites, accessible through a 
conspicuous link from the carrier's homepage. The paragraph notes that 
such fees may generally be expressed as a range, but baggage fees must 
be expressed as specific charges taking into account any factors that 
affect those charges.
    Requirements in other regulations also have an impact on ancillary 
fees. Under 14 CFR 253.7, airlines may not impose any terms restricting 
refunds of the ticket price, charging monetary penalties on passengers, 
or raising the ticket price, unless the passenger receives conspicuous 
written notice of the salient features of those terms on or with the 
ticket. In 14 CFR 399.88, sellers of scheduled air transportation may 
not increase the price of passenger baggage after the air 
transportation has been purchased by the consumer. As stated in the 
NPRM for this rulemaking, while the text of 14 CFR 399.88 references 
ancillary fees such as seat fees, the Department announced in 2011 that 
it would enforce the prohibition on post-purchase price increases only 
for carry-on bags and first and second checked bags.\11\
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    \11\ See also Guidance on Price Increases of Ancillary Services 
and Products not Purchased with the Ticket (December 28, 2011). The 
application of the prohibition of the post-purchase price increase 
was at issue in a lawsuit filed by two airlines against the 
Department. The court considered the rule as applied under the 
December 28, 2011, guidance and upheld the Department's rule 
prohibiting post-purchase price increases as it is currently being 
applied. Spirit Airlines, Inc., v. U.S. Dept. of Transportation 
(D.C. Cir. July 24, 2012), slip op. at 20-21. Petition for Writ of 
Certiorari denied on April 1, 2013.
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(2) Problems With Existing Requirements and Efforts To Improve 
Disclosures

    Following the 2011 final rule, described above, the Department 
issued an NPRM titled ``Transparency of Airline Ancillary Service Fees 
and Other Consumer Protection Issues'' in 2014.\12\ The 2014 rulemaking 
contained various proposals to enhance consumer protections, including 
a proposal to require the disclosure of certain airline ancillary 
service fees (i.e., first checked bag, second checked bag, one carry-on 
item, and advance seat selection) to consumers through all sales 
channels on the first page on which a fare is displayed in response to 
a specific flight itinerary search request. The proposal to require 
disclosure of certain ancillary fees was based in part on a 
recommendation by the Future of Aviation Advisory Committee (FAAC).\13\ 
The FAAC's 2010 report had

[[Page 34623]]

noted that, despite improvements in the air consumer experience, FAAC 
members felt that consumers sought greater transparency in the total 
cost of their tickets and that they should have the ability to choose 
between carriers that either do not charge for certain services or 
charge differing fees. The 2014 NPRM also relied on the statements of a 
successor committee, the Advisory Committee on Aviation Consumer 
Protection (ACACP), which in 2012 adopted the FAAC recommendation and 
added that all participants in the airfare and fee distribution system 
should be guided by principles of transparency, providing choices and 
offers that meet consumer needs, and knowing the full price before 
purchase.\14\ While the ACACP commended the Department's regulatory 
efforts to add transparency, it noted that the aviation industry 
offered a variety of business models, network choices, and optional 
services, and that the level of choice was creating complexity for 
consumers. The ACACP had heard from advocates and ticket agents that 
consumers expect to know the cost of the entire trip before purchasing 
a ticket.\15\
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    \12\ 79 FR 29970 (May 23, 2014).
    \13\ See Recommendation 11, in FAAC Final Report (2010), 
available at https://www.transportation.gov/highlights/future-aviation-advisory-committee/faac-final-report.
    \14\ Report of the Advisory Committee on Aviation Consumer 
Protection 7-8 (Oct. 22, 2012), available at https://www.transportation.gov/airconsumer/ACACP/1st-ACACP-Report-22OCT2012.
    \15\ Id., see, e.g., Transcript--Advisory Committee on Aviation 
Consumer Protection, First Meeting, June 28, 2012, available at 
https://www.regulations.gov/document/DOT-OST-2012-0087-0095.
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    In issuing the 2014 proposal on disclosure of certain airline 
ancillary service fees, the Department explained that the proposal was 
necessary because the 2011 rule, while a step in the right direction, 
did not fully address the problem of lack of transparency of ancillary 
services and products. The 2014 proposal on disclosure of airline 
ancillary service fees generated significant comments from consumers, 
airlines, ticket agents, and other interested parties. During the 
pendency of the 2014 rulemaking, the ACACP recommended that DOT require 
that change and cancellation fees be clear and displayed before ticket 
purchase.\16\ Consumer advocates had asserted at an ACACP meeting held 
on June 23, 2015, that such fees had become significant and difficult 
to ascertain.\17\ At that time, the ACACP also discussed baggage fees 
and allowances, with consumer advocates noting that baggage allowance 
rules were confusing to consumers and that it was difficult for 
consumers to understand which airline's rules apply. At the same 
meeting, a ticket agent representative stated that every baggage fee 
scheme had ``multiple layers and exceptions'' that were not always 
dynamically available to ticket agents.\18\
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    \16\ Record of Meeting, Ninth Meeting of the Advisory Committee 
on Aviation Consumer Protection 3 (Sept. 1, 2015), available at 
https://www.transportation.gov/airconsumer/ACACP/9th-meeting-Sept-1/record.
    \17\ See Record of Meeting, Eighth Meeting of the Advisory 
Committee on Aviation Consumer Protection 3-5 (June 23, 2015), 
available at https://www.transportation.gov/sites/dot.gov/files/docs/resources/individuals/aviation-consumer-protection/285976/acacp-record-8th-meeting-23june2015.pdf; see also Record of Meeting, 
Ninth Meeting of the Advisory Committee on Aviation Consumer 
Protection (Sept. 1, 2015).
    \18\ Id.
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    In 2016, the Department decided not to issue a final rule on the 
issue of transparency of airline ancillary services given the 
complexity of the issues and additional considerations identified by 
comments submitted on the 2014 NPRM. Instead, the Department decided to 
seek additional information on the disclosure of fees for ancillary 
services in a supplemental rulemaking.\19\ In January 2017, the 
Department issued an SNPRM, which focused solely on the issue of 
transparency of certain ancillary service fees.\20\ In the 2017 SNPRM, 
the Department proposed to require fees for a first and second checked 
bag and a carry-on bag to be disclosed at all points of sale wherever 
fare and schedule information is provided to consumers. While the SNPRM 
was pending, in September 2017, the U.S. Government Accountability 
Office (GAO) noted that consumer group representatives stated that it 
had become ``increasingly difficult for consumers to compare airfare 
ticket prices, fees, and associated rules, and understand what is 
included in their purchases.'' \21\ On December 14, 2017, the SNPRM was 
withdrawn with the Department noting that the withdrawal is consistent 
with Executive Order (E.O.) 13771, Reducing Regulation and Controlling 
Regulatory Costs.\22\ After the withdrawal, a number of State attorneys 
general urged the Department to reverse its decision, stating that they 
``regularly hear reports from consumers in [their] states who are 
confused and frustrated by these fees, which significantly alter the 
total cost of travel.'' \23\ E.O. 13771 was later revoked.\24\
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    \19\ In 2016, the Department issued a final rule that 
promulgated regulations related to carrier reporting, disclosure of 
codeshare operations, and display bias, while separating out the 
ancillary fee disclosure and ticket agent definition issues into 
separate rulemaking efforts. 81 FR 76800 (Nov. 3, 2016). The ticket 
agent rulemaking remains pending. See Fall 2023 Unified Agenda for 
rulemaking titled ``Air Transportation Consumer Protection 
Requirements for Ticket Agents'' (RIN 2105-AE57) at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AE57.
    \20\ 82 FR 7536 (Jan. 19, 2017).
    \21\ GAO 17-756, Commercial Aviation: Information on Airline 
Fees for Optional Services (September 2017), p. 33 at https://www.gao.gov/assets/gao-17-756.pdf.
    \22\ 82 FR 58778 (Dec. 14, 2017).
    \23\ Letter from attorneys general from 16 States and the 
District of Columbia to Secretary Elaine L. Chao (Dec. 20, 2017).
    \24\ On January 20, 2021, the President issued E.O. 13992, 
``Revocation of Certain Executive Orders Concerning Federal 
Regulation,'' which revoked E.O. 13771 and certain other Executive 
orders.
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    While the disclosure regulations promulgated in 2011 remain in 
place, consumer advocates continue to express concerns to the 
Department that there is a market failure in air transportation pricing 
because consumers are unable to determine the true cost of air travel 
prior to ticket purchase. They have also raised concerns that consumers 
often find the process of determining the baggage fees that apply to 
them to be a complicated and time-consuming process. Consumer advocates 
have asserted that a lack of passenger-specific information regarding 
fees for ancillary services at the time of ticket purchase is causing a 
market failure by limiting the ability of consumers to understand the 
true cost of the travel they are looking to purchase and compare 
pricing between carriers and travel options. Consumer advocates have 
also noted a significant increase in the number of ancillary service 
fees imposed by carriers.
    Certain members of Congress have expressed support for full, more 
specific, disclosure of ancillary service fees. Members of Congress 
have also sponsored legislation on this topic.\25\ Further, the Joint 
Explanatory Statement of the 2018 Consolidated Appropriations Act 
requested that the Department work in collaboration with industry, 
consumers, and other stakeholders to establish guidelines on

[[Page 34624]]

transparency of airline ancillary fees.\26\ Subsequently, the 
Department tasked the Aviation Consumer Protection Advisory Committee 
(ACPAC) with examining this issue again.\27\
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    \25\ See, e.g., Letter from Representative Nita M. Lowey to 
Secretary Elaine Chao (Dec. 8, 2017). See also section 203 of S. 
3222, Airline Passengers' Bill of Rights (introduced by Senators 
Blumenthal, Markey, Whitehouse, Wyden, and Casey on November 17, 
2021) at https://www.congress.gov/bill/117th-congress/senate-bill/3222/text?r=7&s=1, proposing to mandate that DOT require airlines, 
online travel agencies (OTAs), metasearch engines and other ticket 
agents that provide flight search tools disclose all applicable 
taxes and ancillary fees at any point in which the fare is shown and 
in telephone communication with a prospective consumer in the U.S. 
at any point in which the cost of the air transportation is 
disclosed. See also The Unfriendly Skies: Consumer Confusion Over 
Airline Fees, Staff Report of Minority Staff of Senate Commerce 
Committee (August 6, 2015) at https://www.blumenthal.senate.gov/imo/media/doc/8%206%2015%20FINAL%20Airline%20Report.pdf, finding that 
ancillary fees, such as change and cancellation penalties, are 
increasingly less transparent regarding the true cost of air travel 
and recommending more transparency from the airline industry.
    \26\ https://www.congress.gov/congressional-record/2018/03/22/house-section/article/H2697-1 at page H2872.
    \27\ See https://www.regulations.gov/document/DOT-OST-2018-0190-0001.
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    In 2019, during a meeting of the ACPAC, two consumer organizations 
underscored the difficulties faced by consumers in determining the 
total cost of air travel.\28\ Consumer advocates maintained that 
consumers were confused by the complex charts that carriers and ticket 
agents provide to consumers to determine their baggage fees. The ACPAC 
heard from several consumer advocacy groups, including Travelers 
United, the National Consumers League (NCL), and the Global Business 
Travel Association (GBTA) regarding this issue. Consumer organizations 
that presented to the ACPAC stressed the importance of ensuring 
consumers can accurately and easily compare travel costs, inclusive of 
ancillary fees, and they recommended that ancillary fee information 
should be clearly displayed early in consumer purchase decisions.\29\
---------------------------------------------------------------------------

    \28\ See Summary of April 4, 2019 ACPAC Meeting 11-13, available 
at https://www.regulations.gov/document/DOT-OST-2018-0190-0019.
    \29\ See Summary of April 4, 2019 ACPAC Meeting 10-16, available 
at https://www.regulations.gov/document/DOT-OST-2018-0190-0019; see 
also Summary of September 24, 2020 ACPAC Meeting 19-20, available at 
https://www.regulations.gov/document/DOT-OST-2018-0190-0025.
---------------------------------------------------------------------------

    In December 2020, the ACPAC submitted a report to the Department 
recommending that the Department remain vigilant to ensure compliance 
with the existing transparency requirements. The ACPAC was silent on 
whether the Department should issue a new rulemaking on transparency of 
airline ancillary fees.\30\ In July 2021, E.O. 14036 directed the 
Department to consider initiating a rulemaking to ensure consumers have 
ancillary fee information at the time of ticket purchase.
---------------------------------------------------------------------------

    \30\ Report of the Aviation Consumer Protection Advisory 
Committee 5 (Dec. 31, 2020), available at https://www.transportation.gov/individuals/aviation-consumer-protection/acpac-report-secretary-transportation-december-31-2020.
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    Based on E.O. 14036 and the above-described history of concerns 
raised by consumer organizations and individual consumers, including 
the individual complaints the Department has received reflecting the 
confusion consumers experience regarding ancillary fees,\31\ the 
Department determined that this rulemaking is necessary to address 
ongoing inadequacies in existing ancillary fee disclosure requirements. 
It appears that consumers are generally unaware of the amount of the 
ancillary fees that apply to them when they book tickets. Consumer 
advocates contend that the ancillary services and fees that airlines 
currently post on their websites are not sufficiently useful to 
consumers to determine the cost of travel because airlines generally 
provide a range of fees for ancillary services aside from baggage. 
Airlines acknowledge that the fees for ancillary services often vary 
based on various factors such as the type of aircraft used, the flight 
on which a passenger is booked, or the time at which a passenger pays 
for the service or product. Regarding baggage fees, consumer advocacy 
organizations have reported to the Department that consumers often find 
the process of determining the baggage fees that apply to them to be a 
complicated and time-consuming process. Consumer advocates also 
expressed the view that because most passengers travel once per year or 
less, they may not be aware of certain ancillary service fees.\32\ 
Advocates further argued that the practice of drip pricing, a pricing 
technique in which firms advertise only part of the price and reveal 
other charges later as the customer goes through the buying process, 
tends to lock consumers into engaging with a given seller, and reduces 
competition, because the customer has invested time and energy into the 
purchasing process and thus is less likely to abandon the purchase 
entirely and re-institute a fuller search for options.\33\
---------------------------------------------------------------------------

    \31\ See, e.g., https://www.regulations.gov/document/DOT-OST-2022-0109-0021, https://www.regulations.gov/document/DOT-OST-2022-0109-0022, https://www.regulations.gov/document/DOT-OST-2022-0109-0023.
    \32\ Presentation of FlyersRights.org (FlyersRights), available 
at https://www.regulations.gov/document/DOT-OST-2018-0190-0046.
    \33\ Id.; see also Presentation of American Antitrust Institute, 
available at https://www.transportation.gov/airconsumer/ACPAC/June2022Meeting/webcast (Day 1 morning session), and Federal Trade 
Commission, ECONOMIC ANALYSIS OF HOTEL RESORT FEES, (Jan. 2017), 
available at https://www.ftc.gov/system/files/documents/reports/economic-analysis-hotel-resort-fees/p115503_hotel_resort_fees_economic_issues_paper.pdf.
---------------------------------------------------------------------------

    Following the issuance of E.O. 14036, the ACPAC met again in June 
2022 to address the issue of transparency of airline ancillary service 
fees.\34\ During the meeting, DOT solicited comment on topics being 
considered for the NPRM on ancillary fee transparency. These topics 
included identifying ancillary service fees critical to consumers, the 
sharing of airline data regarding critical ancillary service fees with 
ticket agents, and how to best display this information to consumers. 
DOT also solicited comment on whether fees for certain ancillary 
services should be disclosed at the first point in a search process 
where a fare is listed. At the meeting, a consumer advocate stated that 
consumers still do not know the specific amounts of baggage and change 
and cancellation fees that apply during the ticket purchase 
process.\35\ Another consumer advocate expressed concerns with drip 
pricing.\36\ The advocate also stated that baggage fees vary by airline 
and can depend on the flight, the time, and the day. A representative 
of the American Antitrust Institute stated that cancellation fees were 
discontinued at the beginning of the pandemic and then returned, and 
that drip pricing practices lock consumers into higher costs and 
suppresses competition. The representative also urged the Department to 
set policies to provide full fee information up front so consumers can 
make informed purchasing decisions based on the total cost of their 
itineraries.\37\
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    \34\ See https://www.transportation.gov/airconsumer/ACPAC/June2022Meeting. A webcast of the meeting is available to view on 
the ACPAC website. Speakers' materials have been posted to the ACPAC 
docket at https://www.regulations.gov/docket/DOT-OST-2018-0190. On 
the second day of the meeting, the ACPAC addressed the separate but 
related issue of availability of airline flight information.
    \35\ Aviation Consumer Protection Advisory Committee (ACPAC) 
June 28 and 29, 2022 Meeting Minutes 8, available at https://www.regulations.gov/document/DOT-OST-2018-0190-0073.
    \36\ Id. at 9.
    \37\ Id. at 10.
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    The Department continues to receive hundreds of consumer complaints 
each year regarding ancillary fees.\38\ Based on past experience, the 
Department understands that the number of consumer complaints it 
receives directly from consumers is a small fraction of the total 
complaints received each year by airlines and ticket agents.\39\ The 
requirements to provide specific baggage fee information and a range of 
fees for other ancillary services have not been as helpful to consumers 
in

[[Page 34625]]

determining the true cost of travel as the Department had anticipated 
when issuing its final rule in 2011.
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    \38\ As noted in the NPRM of the present rulemaking, the Office 
of Aviation Consumer Protection (OACP) received over 550 complaints 
regarding change and cancellation fees and over 140 complaints 
regarding seat fees in 2021. In 2022, OACP received over 750 
complaints regarding change and cancellation fees. During the first 
5 months of 2023, OACP received over 300 complaints regarding change 
and cancellation fees.
    \39\ Compare, e.g., the 2,095 disability complaints filed with 
the Department in 2022 (available on page 66 of Air Travel Consumer 
Report issued February 2023, https://www.transportation.gov/sites/dot.gov/files/2023-04/February%202023%20ATCR_Revised.pdf), and the 
42,306 disability complaints received by airlines in 2022 (available 
at https://www.transportation.gov/resources/individuals/aviation-consumer-protection/2022-disability-related-complaints-received-all).
---------------------------------------------------------------------------

C. Notice of Proposed Rulemaking

    The Department published its NPRM on Enhancing Transparency of 
Airline Ancillary Service Fees on October 20, 2022.\40\ The NPRM was 
initially open to public comment for a period of 60 days (until 
December 19, 2022). During this time, the ACPAC was informed about the 
NPRM's principal provisions and heard from stakeholders at its meeting 
on December 8, 2022. Following several commenters' request for an 
extension due to the complexity of the rulemaking, the comment period 
was extended for 35 days until January 23, 2023.\41\ On January 12, 
2023, the ACPAC met again to deliberate and make recommendations 
related to the NPRM. Then, on January 18, 2023, the Department received 
a request to further extend the comment period on the basis that the 
requestor was not able to view the January 12, 2023, ACPAC meeting, and 
that at the time the request for extension was submitted, the meeting 
materials had not been posted to the docket. On January 20, 2023, the 
Department declined to extend the comment period based on that request 
noting that a video recording of the full meeting was posted 
publicly.\42\ 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. In response, the 
Department posted a notice to its website stating that it was 
considering whether to grant that request and provided a preliminary 
list of recommendations made by the ACPAC at its January 12 
meeting.\43\
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    \40\ 87 FR 63718 (Oct. 20, 2022).
    \41\ 87 FR 77765 (Dec. 20, 2022).
    \42\ See https://www.transportation.gov/airconsumer/AncillaryFeeNPRM-Denial-Extension-Comment-Period. See also 88 FR 
4923 (Jan. 26, 2023).
    \43\ See https://www.transportation.gov/airconsumer/AncillaryFeeNPRM-Procedural-Information-January23-2023.
---------------------------------------------------------------------------

    On January 23, 2023, three 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. 
By a notice on March 14, 2023, the Department scheduled the hearing for 
March 30, 2023, and reopened the rulemaking to public comment from 
March 14 through April 6, 2023 (seven days following the hearing).\44\
---------------------------------------------------------------------------

    \44\ 88 FR 15622 (Mar. 14, 2023).
---------------------------------------------------------------------------

(1) Overview of Proposals

    In the NPRM, the Department proposed to require airlines and ticket 
agents to disclose on the first page displayed following an itinerary 
search the fees for a first and second checked bag, a carry-on bag, 
ticket change and cancellation, and seat assignments that would enable 
a child 13 or under to be seated adjacent to an accompanying adult 
(``family seating''). The fees would need to be disclosed on the first 
page displayed following an itinerary search in which fare and 
itinerary information is shown, and they would need to be adjusted 
based on passenger-specific information provided by the consumer. The 
NPRM also proposed that the disclosures be displayed on the screen 
without the use of links or pop-ups, and that the same disclosures also 
be made during in-person or phone transactions. To enable ticket agents 
to provide the disclosures, the NPRM proposed that airlines provide fee 
rule information to ticket agents that sell or display air 
transportation. The Department did not propose to require that airlines 
provide the information to GDSs, which facilitate the purchase of 
tickets between airlines and consumers, but do not display or sell 
airline tickets to consumers. The NPRM proposed that these data sharing 
and disclosure requirements would become effective within six months of 
the issuance of a final rule. Specific provisions of the NPRM are 
discussed in more detail in section E of this document.

(2) ACPAC Meetings on the Proposals

    As noted above, after the NPRM was published, the ACPAC held two 
meetings to deliberate on the NPRM's provisions and to make 
recommendations. At its December 8, 2022, meeting, the ACPAC heard from 
Department staff regarding the proposed rule's provisions and from 
members of the public regarding their views.\45\ The ACPAC's airline 
representative raised questions about the need for a rulemaking and 
asked about the Department's application of the unfair and deceptive 
practices standard. He questioned the Department's analysis of whether 
consumers were substantially injured. A member of the public 
representing the International Air Transport Association (IATA) also 
questioned whether consumers were unaware of the price imposed for 
baggage or seating before purchasing a ticket, and he indicated that it 
would be costly and time-consuming for systems to conduct complex 
calculations on a passenger- or itinerary-specific basis to produce the 
proposed fee disclosures. He expressed his view that the rule should 
make fee information clear to consumers before purchase rather than 
during the itinerary search stage. The ACPAC's consumer representative 
raised questions about the impact the proposed disclosures would have 
on the amount of information being presented to consumers on screen. A 
member of the public representing Travelers United expressed the view 
that regulation is needed on fee disclosures and that consumers are 
harmed if they go through the reservation process and find out at the 
end that extra fees exist. A member of the public representing the 
American Society of Travel Advisors (ASTA) expressed concern about the 
proposed rule's treatment of offline (i.e., telephone or in person) 
disclosures, and he urged the Department to make such offline 
disclosures available upon request or at the agent's discretion. A 
member of the public representing the Computer & Communications 
Industry Association (CCIA) stated that aggregators such as metasearch 
entities should not be subject to the rule.
---------------------------------------------------------------------------

    \45\ Meeting minutes are available at https://www.regulations.gov/document/DOT-OST-2018-0190-0110.
---------------------------------------------------------------------------

    On the issue of data distribution to ticket agents, the IATA 
representative noted that his organization supports the Department's 
proposal not to mandate that airlines distribute fee information to 
ticket agents through GDSs, but that the costs of implementing the data 
sharing proposal within the six-month compliance period would be 
significant. Multiple members of the public representing ticket agents 
and GDSs expressed the view that the Department should require airlines 
to distribute fee information to GDSs and disagreed with what they saw 
as GDSs being excluded from the proposal. In their view, GDSs were the 
most efficient method to move data from airlines to ticket agents, and 
that without using GDSs, ticket agents would have to bear resource-
intensive costs to enter into agreements with airlines and to make data 
visible to customers.
    Speakers at the December 8 meeting expressed differing views on 
whether the proposed compliance period of six months would be feasible, 
with the ACPAC's consumer representative stating that six months was 
not unrealistic given that capabilities exist for GDSs to provide the 
data necessary for ticket agents to comply, while speakers representing 
airlines and ticket agents asserted that six months was insufficient 
time, although acknowledging that the use of GDSs to transfer data 
could enable the proposed

[[Page 34626]]

requirements to be implemented more quickly than not using GDSs.
    On January 12, 2023, the ACPAC publicly deliberated and voted on 
recommendations related to ancillary fees.\46\ The ACPAC 
recommendations concerned the types of ancillary service fees that 
should be disclosed, the manner and form of the disclosures (e.g., 
whether pop ups, roll overs, or links are acceptable), the timing of 
the disclosures, the application of fee disclosures to telephone or in-
person inquiries, the ability for consumers to opt out of receiving the 
disclosures, the transactability of ancillary fees, the process for 
data sharing by airlines to ticket agents, the entities covered, and 
the appropriate compliance timeframes. On January 23, 2023, to 
facilitate the public's consideration of this NPRM, the Department 
publicly posted a written summary of the recommendations adopted by the 
ACPAC at its January 12 meeting.\47\ The ACPAC's specific 
recommendations are discussed in section E, where the Department 
discusses these matters in substance.
---------------------------------------------------------------------------

    \46\ The committee voted in favor of moving forward with 
deliberation and issuing recommendations at the January 12, 2023, 
meeting, with the member representing airlines voting against moving 
forward while the NPRM's comment period remained open. The meeting 
minutes are available at https://www.regulations.gov/document/DOT-OST-2018-0190-0111.
    \47\ See Procedural Information Regarding Enhancing Transparency 
of Airline Ancillary Service Fees (January 23, 2023) at https://www.transportation.gov/airconsumer/AncillaryFeeNPRM-Procedural-Information-January23-2023.
---------------------------------------------------------------------------

(3) Public Hearing Regarding Proposals

    Under 14 CFR 399.75, when the Department issues a proposed 
regulation declaring a practice in air transportation or the sale of 
air transportation to be unfair or deceptive to consumers under the 
authority of 49 U.S.C. 41712(a), any interested party may file a 
petition to hold a hearing on the proposed regulation. Section 399.75 
further provides that the petition for a hearing shall be granted if 
the petitioner makes a clear and convincing showing that granting the 
petition is in the public interest. Factors in determining whether a 
petition is in the public interest include, but are not limited to: (i) 
Whether the proposed rule depends on conclusions concerning one or more 
specific scientific, technical, economic, or other factual issues that 
are genuinely in dispute or that may not satisfy the requirements of 
the Information Quality Act; (ii) Whether the ordinary public comment 
process is unlikely to provide an adequate examination of the issues to 
permit a fully informed judgment; (iii) Whether the resolution of the 
disputed factual issues would likely have a material effect on the 
costs and benefits of the proposed rule; (iv) Whether the requested 
hearing would advance the consideration of the proposed rule and the 
General Counsel's ability to make the rulemaking determinations 
required by this section; and (v) Whether the hearing would 
unreasonably delay completion of the rulemaking.
    On January 23, 2023, three commenters petitioned the Department for 
a public hearing on the NPRM. Airlines for America (A4A) raised two 
questions in its petition: (1) whether consumers are or are likely to 
be substantially injured or are misled by airlines' current disclosures 
of ancillary service fees; and (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 Travel Technology 
Association (Travel Tech) stated 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 
expressed the belief that the proposed disclosures are technically 
infeasible and 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 complaint-based evidence justifying the rulemaking. In 
arguing that a hearing is in the public interest pursuant to 14 CFR 
399.75, A4A and Travel Tech asserted that each of the criteria in 14 
CFR 399.75 for determining whether a hearing was in the public interest 
and must therefore be granted had been met. The Department granted the 
public hearing to afford 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.\48\ The 
hearing was held on March 30, 2023,\49\ and a video recording of the 
full hearing was posted to the Department's website.\50\
---------------------------------------------------------------------------

    \48\ 88 FR 13389 (Mar. 3, 2023).
    \49\ 88 FR 15622 (Mar. 14, 2023). The Department granted a 
postponement to the hearing's originally scheduled date of March 16, 
2023, due to concerns by A4A and Travel Tech that the original 15 
days' notice 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.
    \50\ https://www.transportation.gov/airconsumer/AirlineAncillaryFeeNPRM/March30_Public_Hearing_Recording.
---------------------------------------------------------------------------

    Before the hearing, A4A raised objections about the designated 
Hearing Officer appointed by the Department.\51\ The organization made 
a request for the appointment of a hearing officer that would be 
``neutral,'' rather than the Department's designated Aviation Consumer 
Advocate. Under the Department's regulation, the designation of a 
hearing officer is left to the discretion of the General Counsel.\52\ 
The duty of the hearing officer is to preside over the hearing and to 
place the hearing minutes in the docket. The General Counsel, not the 
hearing officer, determines the Department's actions following a 
hearing.\53\ In addition, the Department stated in a Federal Register 
document \54\ that the appointment was appropriate because: (1) the 
designated hearing officer is a career civil servant who will execute 
the role in a neutral, fair, and professional manner; (2) the 
designated hearing officer's responsibilities as an Aviation Consumer 
Advocate are the same responsibilities that this individual has as an 
Assistant General Counsel of the Office of Aviation Consumer Protection 
and such responsibilities do not result in bias; 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 
such, the Department proceeded with its appointment of the Department's 
designated Aviation Consumer Advocate as the hearing officer for the 
March 30, 2023, hearing.
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    \51\ https://www.regulations.gov/document/DOT-OST-2022-0109-0718.
    \52\ 14 CFR 399.75(b)(5)(ii).
    \53\ 14 CFR 399.75(b)(6).
    \54\ 88 FR 15622 (Mar. 14, 2023).
---------------------------------------------------------------------------

    A4A also objected to the second subject discussed at the hearing, 
``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.'' \55\ A4A stated that, in advance of the 
hearing, the Department asked the public for information on current 
carrier and ticket agent practices, including how ancillary fee 
information is currently displayed, how many existing online booking 
systems do not display specific ancillary fees on itinerary search 
result pages but

[[Page 34627]]

display ancillary fees on other pages of the booking process, whether 
the lack of ancillary fee information at the time of itinerary and fare 
selection for current systems results in higher total trip costs, and 
information from consumers on the time spent searching on current 
carrier or ticket agent websites. A4A asserted that these questions did 
not address A4A's intent in presenting the second subject of the 
hearing, which A4A explained was the impact of the Department's 
proposals on consumers. A4A stated that the failure to address this 
issue rendered the hearing ineffective. The Department disagrees with 
A4A's assertions that the public hearing failed to address the issue 
A4A posed for discussion and that the hearing was ineffective. In its 
notice announcing the public hearing,\56\ the Department stated that it 
welcomed, for issue 2, ``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.'' The Department also 
solicited ``any other information that is pertinent to the Department's 
determination on this proposal.'' These requests for information are 
aligned with A4A's stated focus of the hearing's second subject and did 
not render the hearing ineffective.
---------------------------------------------------------------------------

    \55\ This subject was offered by A4A in its petition for a 
public hearing. See https://www.regulations.gov/comment/DOT-OST-2022-0109-0091.
    \56\ 88 FR 13389 (Mar. 3, 2023), available at https://www.federalregister.gov/documents/2023/03/03/2023-04510/enhancing-transparency-of-airline-ancillary-service-fees.
---------------------------------------------------------------------------

    As provided in 14 CFR 399.75, following the completion of the 
hearing process, the General Counsel shall consider the record of the 
hearing, and shall make a reasoned determination whether to terminate 
the rulemaking; to proceed with the rulemaking as proposed; or to 
modify the proposed rule. Based on the record in this rulemaking 
proceeding, including the comments submitted by members of the public, 
the recommendations of the ACPAC, and the information received during 
the public hearing, the Acting General Counsel has determined that the 
Department should proceed with the rulemaking. The Department has made 
several adjustments that reflect the public input received, as 
discussed in section E.

D. Statutory Authority

(1) Unfair and Deceptive Practices

    The Department is implementing the revised regulatory requirements 
in this rule pursuant to its statutory authority in 49 U.S.C. 41712 to 
prohibit unfair and deceptive practices in air transportation and the 
sale of air transportation. Under section 41712, a practice is 
``unfair'' to consumers if it causes or is likely to cause substantial 
injury, which is not reasonably avoidable, and the harm is not 
outweighed by benefits to consumers or competition.\57\ A practice is 
``deceptive'' to consumers if it is likely to mislead a consumer, 
acting reasonably under the circumstances, with respect to a material 
matter. A matter is material if it is likely to have affected the 
consumer's conduct or decision with respect to a product or 
service.\58\ Proof of intent is not necessary to establish unfairness 
or deception.\59\ The elements of unfair and deceptive are further 
elaborated by the Department in its guidance document.\60\
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    \57\ 14 CFR 399.79(b)(1).
    \58\ 14 CFR 399.79(b)(2).
    \59\ 14 CFR 399.79(c).
    \60\ 87 FR 52677 (Aug. 28, 2022).
---------------------------------------------------------------------------

    In the NPRM, the Department tentatively determined that several 
practices conducted by airlines and ticket agents were unfair and 
deceptive in air transportation or the sale of air transportation. 
Members of the public provided input on the Department's preliminary 
determinations, including through submission of written comments and 
statements made at public meetings (i.e., ACPAC meetings and the March 
30, 2023, public hearing). After fully considering the public input, 
the Department has concluded that the practices identified below are 
unfair and deceptive.
(a) Bag Fees and Policies
    Pursuant to its authority under section 41712, the Department is 
requiring airlines and ticket agents to disclose the fees for a first 
and second checked bag and a carry-on bag whenever fare and schedule 
information is provided to a consumer in response to a passenger-
specific or anonymous itinerary search. The Department is also 
requiring disclosure of the applicable weight and dimensions of the 
first checked bag, second checked bag, and a carry-on bag before ticket 
purchase on an online platform.
(i) Carriers
    The Department has concluded that a carrier commits an unfair and 
deceptive practice in the sale of air transportation when it discloses 
an airfare in response to a consumer's itinerary search without 
providing accompanying information on applicable fees for a first and 
second checked bag and a carry-on bag and when it fails to disclose 
weight and dimension information for that baggage before ticket 
purchase on an online platform.
    Regarding fees, the Department has heard from consumers and other 
stakeholders that such fees, which had once been included in the 
airfare but may now be broken out from the airfare depending on the 
airline, route, fare class, or other factors, are often difficult to 
ascertain during the itinerary search and ticket purchase process. We 
find that the practice of not disclosing first and second checked bag 
and carry-on bag fees with the quoted airfare at the time of an 
itinerary search during the ticket purchase process prevents consumers 
from knowing the true cost of their tickets, and that the practice may 
cause consumers to invest time pursuing a ticket purchase based on an 
appealing airfare that ends up resulting in less favorable overall 
costs to the consumer when baggage fees are added. Under this rule, the 
bag fees disclosed must be passenger-specific fees if a passenger 
affirmatively provides information such as the passenger's status in 
the airline's frequent flyer program, the passenger's military status, 
or the passenger's status as a holder of a particular credit card. If 
the passenger does not affirmatively provide passenger-specific 
information, then the carrier must provide itinerary-specific fees, 
which would apply to the anonymous shopper, taking into account 
geography, travel dates, cabin class, and ticketed fare class (e.g., 
full fare ticket). The failure to disclose either passenger-specific or 
itinerary-specific bag fees with the quoted airfare at the time of an 
itinerary search is unfair because it causes or is likely to cause 
substantial injury, which is not reasonably avoidable, and the harm is 
not outweighed by benefits to consumers or competition.
    The substantial injury this practice is likely to cause is the 
additional time spent searching to find the total cost of travel and 
any additional funds spent on air transportation that might have been 
avoided if the consumer had been able to determine the true cost of 
travel up front and readily select the best price. This harm is not 
reasonably avoidable even with the disclosures mandated in the 2011 
rulemaking that improved consumer access to first and second checked 
bag and carry-on bag fee information by requiring those fees to be 
displayed on airlines' websites. Airlines often disclose bag fees in an 
untailored, static format or in complex charts that are confusing to 
consumers and not readily available when consumers need the information 
to consider whether an itinerary and price offering best suits their 
needs. The harm that consumers

[[Page 34628]]

experience is not outweighed by benefits to consumers or competition 
because consumer confusion about applicable bag fees harms, rather than 
benefits, competition and creates less than optimal purchasing 
decisions by consumers. In addition, because existing disclosure 
requirements of baggage fees did not apply to online platforms other 
than websites, consumers who searched for air transportation on those 
platforms may not have received the baggage fee information that this 
final rule now requires. The Department has determined that the 
disclosure of passenger-specific or anonymous itinerary-specific fees 
whenever fare and schedule information is provided would promote 
informed buyers, enhance competition, and lower prices. The practice of 
not disclosing passenger-specific or anonymous itinerary-specific fees 
for first and second checked bags and carry-on bags when fare and 
schedule information is provided is also deceptive in that it misleads 
consumers into believing the total purchase price from one carrier for 
a particular itinerary or fare type is cheaper than that of another 
when that may not be the case. This belief is reasonable as carriers 
and agents often disclose only the airfare and not bag fees during an 
itinerary search. As carriers have different policies regarding the 
fees and limitations imposed to transport baggage, and because 
variation within each carrier depends on the fare category purchased or 
the status of the passenger, the current requirement that carriers 
inform consumers that fees for baggage may apply and where consumers 
can see these baggage fees during the booking process is not providing 
consumers sufficient notice of the total cost of the air 
transportation. Consumers are often diverted to complex charts that are 
confusing, prolong the consumer's process of evaluating itineraries and 
fares for purchase, and may ultimately not be instructive for many 
consumers in determining the bag fee that would apply to them. The cost 
of the first and second checked bag and carry-on bag is often material 
to consumers, as knowing such costs in conjunction with the ticket 
price is likely to affect the consumer's purchase decisions as well as 
whether to check or carry-on a bag.\61\
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    \61\ As noted in the NPRM, the GAO found that since airlines 
first imposed checked baggage fees, the number of checked bags per 
passenger has declined. GAO also explains that checked baggage fees 
have led to greater amounts of carry-on baggage. GAO 10-785, 
Commercial Aviation: Consumers Could Benefit from Better Information 
about Airline-Imposed Fees and Refundability of Government-Imposed 
Taxes and Fees (July 14, 2010) at https://www.gao.gov/assets/gao-10-785.pdf.
---------------------------------------------------------------------------

    The Department has also determined that it is an unfair practice to 
not disclose on an online platform the applicable weight and dimension 
allowances of a first checked bag, a second checked bag, and a carry-on 
bag, adjusted based on passenger-specific information if information 
specific to the passenger has been affirmatively provided. However, the 
Department is of the view that, unlike fees, it is sufficient to 
provide weight and dimension allowances of a first checked bag, a 
second checked bag, and a carry-on bag before ticket purchase to avoid 
engaging in an unfair and deceptive practice. The Department agrees 
with the comments, which are discussed in section E (4)(b), that 
providing the policy information is less critical to consumers' 
decision making than the fees themselves; accordingly, the Department 
is allowing disclosure of these policies later in the ticket purchase 
process. Nevertheless, the practice of not disclosing applicable weight 
and dimension allowances is likely to also cause substantial injury to 
consumers if not disclosed prior to ticket purchase given airlines' 
policies on bag size vary and consumers who learn that the weight and 
dimensions allowances of the selected carrier are stricter than the 
common bag size may decide to select a different carrier. This harm is 
not reasonably avoidable because, even though existing regulations 
require the disclosure of this information on e-ticket confirmations, 
this disclosure is provided after ticket purchase, thereby depriving 
consumers of the ability to fully evaluate potentially better options 
for them prior to ticket purchase. There is no countervailing benefit 
to consumers or competition from the practice of not disclosing weight 
and dimension allowances of baggage before ticket purchase, as the lack 
of information to consumers reduces their ability to evaluate ticket 
purchases and harms competition.
(ii) Ticket Agents
    The Department has concluded that a ticket agent commits an unfair 
and deceptive practice in the sale of air transportation when it 
discloses an airfare in response to a consumer's itinerary search 
without providing accompanying information on applicable fees for a 
first and second checked bag and a carry-on bag and when it fails to 
provide weight and dimension information for that baggage before ticket 
purchase on an online platform. As noted above, the Department has 
heard from consumers and other stakeholders that baggage fees are often 
difficult to ascertain during the itinerary search and ticket purchase 
process. This difficulty is exacerbated on ticket agent channels in 
many cases, given the numerous airline and itinerary options presented. 
We find that the practice of not disclosing baggage fees with the 
quoted airfare at the time of an itinerary search prevents consumers 
from knowing the true cost of their air tickets, and that the practice 
may cause consumers to invest time pursuing a ticket purchase based on 
an appealing airfare that ends up resulting in less favorable overall 
costs to the consumer when baggage fees are later added. The failure to 
disclose bag fees with the quoted airfare at the time of an itinerary 
search is unfair because it causes or is likely to cause substantial 
injury, which is not reasonably avoidable, and the harm is not 
outweighed by benefits to consumers or competition.
    The substantial injury this practice is likely to cause is the 
additional time spent searching to find the total cost of travel and 
any additional funds spent on air transportation that might have been 
avoided if the consumer had been able to determine the true cost of 
travel up front and readily select the best price. This harm is not 
reasonably avoidable, as described regarding carriers in section D 
(1)(a)(i). In addition, ticket agents provide a means for consumers to 
evaluate different travel options, often on different airlines. The 
harm of increased time and costs involved in the ticket purchase 
process is not outweighed by benefits to consumers or competition 
because consumer confusion about applicable bag fees harms, rather than 
benefits, competition and creates less than optimal purchasing 
decisions by consumers. The Department has determined that the 
disclosure of passenger-specific fees whenever fare and schedule 
information is provided would promote informed buyers, enhance 
competition, and lower prices.
    The practice of not disclosing passenger-specific fees for first 
and second checked bags and carry-on bags when fare and schedule 
information is provided is also deceptive in that it misleads consumers 
into believing the total purchase price from one carrier for a 
particular itinerary or fare type is cheaper than that of another when 
that may not be the case. This belief is reasonable as ticket agents 
often disclose only the airfare and not bag fees during an itinerary 
search. The current requirement that ticket agents provide a generic 
notice that ``fees for baggage

[[Page 34629]]

may apply'' during the booking process is not providing consumers 
sufficient notice of the total cost of the air transportation. Although 
existing regulations require carriers and ticket agents to inform 
consumers during the booking process about where consumers can see 
baggage fees, ticket agents may refer consumers to the carrier's 
website to search for fees, which would necessitate the consumer 
leaving the ticket agent's website, prolonging the consumer's process 
of evaluating itineraries and fares for purchase. The cost of the first 
and second checked bag and carry-on bag is often material to consumers, 
as knowing such costs in conjunction with the ticket price is likely to 
affect the consumer's purchase decisions.
    The failure to disclose the applicable weight and dimension 
allowances of a first checked bag, a second checked bag, and a carry-on 
bag, adjusted based on passenger-specific information affirmatively 
provided by the consumer, is also an unfair practice. The Department 
has decided to require disclosure of these weight and dimension 
allowances before ticket purchase, rather than during the itinerary 
search process like bag fees, because the Department has been persuaded 
by commenters that providing this information is less critical to 
consumers' decision making than the fees themselves. This practice is 
likely to cause substantial injury to consumers given airlines' 
policies on bag size vary and consumers may have to pay more to 
transport their bags because of high airline fees for oversized or 
overweight bags than would have been the case if they knew the weight 
and dimensions allowances prior to ticket purchase and selected a 
different carrier with a bag size and dimension allowance that suited 
their circumstances. This harm is not reasonably avoidable, because 
even though existing regulations require the disclosure of this 
information on e-ticket confirmations, the disclosure is provided after 
ticket purchase, thereby depriving consumers of the ability to fully 
evaluate the cost of their ticket before purchase. There is no 
countervailing benefit to consumers or competition from the practice of 
not disclosing weight and dimension allowances of baggage before ticket 
purchase, as the lack of information to consumers reduces their ability 
to evaluate ticket purchases and harms competition.
(b) Change and Cancellation Fees and Policies
    Pursuant to its authority under section 41712, the Department is 
requiring airlines and ticket agents to disclose the fees to change and 
cancel a ticket in response to a passenger-specific or anonymous 
itinerary-specific search and to disclose ticket change and 
cancellation policies before a consumer's purchase of air 
transportation on an online platform.
(i) Carriers
    The Department concludes that a carrier commits an unfair practice 
in the sale of air transportation when it discloses an airfare in 
response to a consumer's itinerary search without providing 
accompanying information on applicable change and cancellation fees and 
fails to provide change and cancellation policies before ticket 
purchase on an online platform. The practice is unfair because it 
causes or is likely to cause substantial injury, which is not 
reasonably avoidable, and the harm is not outweighed by benefits to 
consumers or competition.
    The Department currently requires the disclosure of these fees on 
or with the ticket.\62\ This requirement, however, means that consumers 
often receive information about these fees after the purchase of the 
ticket is already made (i.e., upon receipt of the ticket confirmation), 
which the Department determines in this final rule is not sufficient 
disclosure. The practice of not disclosing these fees while consumers 
select an itinerary and fare causes substantial injury to consumers in 
that passengers may not be aware of the change and cancellation fees 
that apply to a particular fare being offered, and they may then select 
a fare without adequate notice that they could incur significant fees 
to change or cancel their tickets.
---------------------------------------------------------------------------

    \62\ See 14 CFR 253.7.
---------------------------------------------------------------------------

    These harms are not reasonably avoidable if the carrier does not 
provide disclosures on its cancellation or change fees during the 
itinerary search process and policies before ticket purchase on an 
online platform. Although carriers are already required to have change 
and cancellation policy and fee information available on their 
websites, the existing rule allows carriers to provide the fee 
information in a range. Consumers are harmed when they do not know the 
specific change or cancellation fee that would apply to them during the 
itinerary search process, particularly when the ranges provided by some 
carriers are so wide as to be virtually useless.\63\ Consumers may also 
find it difficult to ascertain the change, cancellation, and refund 
policies that apply to the specific ticket they are selecting if the 
airline does not disclose such information during the booking process. 
Moreover, change fees, even if not in a range, and change and 
cancellation policies may not be simple to understand, as fare 
categories, passenger status, ticket type (e.g., award ticket 
purchases), and other factors may impact the applicable change and 
cancellation fees and policies. Further, because the cancellation and 
change fee information is not provided during the itinerary-search 
process, consumers would need to interrupt their booking process to 
search for the information and extend the time needed to complete a 
booking. The harm that consumers experience is not outweighed by 
benefits to consumers or competition because, like baggage fees and 
dimensions, consumer surprise or confusion about applicable change and 
cancellation fees and policies harms, rather than benefits, 
competition. The Department believes that the disclosure of passenger-
specific or non-passenger-specific change and cancellation fees during 
the itinerary-search process would promote informed buyers, enhance 
competition, and lower prices.
---------------------------------------------------------------------------

    \63\ See, e.g., United Airlines, Upgrades and Optional Service 
Charges (original page accessed Feb. 29, 2024) (showing ``Other 
Flight Changes and Cancellations'' as ``$0 to $1,000 per traveler, 
based on applicable fare rules''); Delta Air Lines, Change or Cancel 
Overview (original page accessed Feb. 29, 2024) (showing potential 
change and cancellation fees of ``$0-400'' for non-refundable 
fares); American Airlines, Optional Service Fees (original page 
accessed Feb. 29, 2024) (showing change fees of ``up to $750''). 
Website screenshots available in docket at https://www.regulations.gov/docket/DOT-OST-2022-0109.
---------------------------------------------------------------------------

    In addition, consumers are substantially harmed if they are not 
provided the following additional disclosures about change and 
cancellation policies before purchase on an online platform: (1) any 
prohibitions or conditions that limit a consumer's ability to change or 
cancel a ticket; (2) whether the consumer's reservation can be 
cancelled within 24 hours of purchase without penalty or whether it can 
be held at the quoted fare for 24 hours without payment, provided the 
reservation is made one week or more prior to a flight's departure; 
\64\ (3) the form of the refund or credit that would be provided; (4) 
that the consumer is responsible for any fare differential on a changed 
ticket, if applicable; and (5)

[[Page 34630]]

whether the consumer will receive a refund of the difference in fare if 
the consumer changes their flight and selects a less costly replacement 
flight. Disclosure of change and cancellation policy terms, such as 
whether the consumer would be required to pay a fare differential for a 
ticket change and whether the consumer can receive a refund in the 
original form of payment, may impact the consumer's decision on whether 
to purchase the selected itinerary or wait until the consumer is more 
certain of their travel plans. While important, these disclosures of 
the details of the change and cancellation policies are less critical 
at the time of itinerary search than the change and cancellation fees 
themselves. Accordingly, the Department is of the view that, unlike 
fees, it is sufficient to disclose change and cancellation policies 
before ticket purchase to avoid engaging in an unfair practice.
---------------------------------------------------------------------------

    \64\ This rule requires that the carrier disclose its 24-hour 
cancellation or hold policy on the last page of the booking process 
as this is the point in the purchase process at which this 
disclosure is most relevant to consumers.
---------------------------------------------------------------------------

    The Department also concludes that the practice of not disclosing 
change and cancellation fees with an airfare in response to a 
consumer's itinerary search and change and cancellation policies before 
ticket purchase on an online platform is deceptive. Without proper 
notice, consumers acting reasonably would be misled with respect to the 
change and cancellation fees and policies that apply to their ticket 
and may believe that changes or cancellations are possible at no fee or 
at a reduced fee. As noted above, many carriers changed their ticket 
change policies during the COVID-19 public health emergency, and such 
changes were publicly promoted by the carriers. A reasonable consumer 
may believe that he or she can change a ticket free of charge when that 
might not be the case, or he or she may choose to purchase a fare type 
that does not allow changes, believing erroneously that a change is 
allowed. Comments by consumer advocates and individuals suggest that 
consumers do consider change and cancellation fees and policies when 
making purchasing decisions, particularly during emergency situations 
such as a pandemic or potential severe weather events such as hurricane 
seasons.\65\ The change and cancellation fees and policies are 
therefore material because they could affect the consumer's decision on 
whether to purchase an airline ticket and if so, which airline to 
select. As such, the Department concludes that the failure to disclose 
change and cancellation fees during the itinerary-search process and 
change and cancellation policies before ticket purchase on an online 
platform is deceptive.
---------------------------------------------------------------------------

    \65\ See comments submitted in the docket for the 2014 NPRM, 
which can be accessed at https://www.regulations.gov/search?filter=DOT-OST-2014-0056. See also, e.g., Minutes or webcast 
(at 2:15:55) of the January 12, 2023, ACPAC meeting, available at 
https://www.transportation.gov/resources/individuals/aviation-consumer-protection/aviation-consumer-protection-advisory-committee.
---------------------------------------------------------------------------

(ii) Ticket Agents
    The Department concludes that a ticket agent commits an unfair 
practice in the sale of air transportation when it discloses an airfare 
in response to a consumer's itinerary search without providing 
accompanying information on applicable change and cancellation fees and 
fails to provide change and cancellation policies before ticket 
purchase on an online platform. The practice is unfair because it 
causes or is likely to cause substantial injury, which is not 
reasonably avoidable, and the harm is not outweighed by benefits to 
consumers or competition.
    The Department currently requires that carriers disclose change and 
cancellation fees and policies on or with the ticket, but current 
regulations do not require ticket agents to disclose such fees and 
policies during the ticket purchase process. As such, consumers 
purchasing tickets from certain ticket agents may be unaware of the 
change and cancellation fees and policies that would apply to them if 
they were to proceed with the purchase of a ticket. The Department 
understands that a substantial number of consumers purchase their 
tickets through ticket agents.\66\ The practice of not disclosing these 
fees while consumers select an itinerary and fare causes substantial 
injury in that consumers may not be aware of the change and 
cancellation fees that apply to a particular fare being offered, and 
they may then select a fare without adequate notice that they could 
incur significant fees to change or cancel their tickets. In addition, 
consumers incur substantial injury if they are not provided the 
following disclosures about change and cancellation policies before 
purchase on an online platform: (1) any prohibitions or conditions that 
limit a consumer's ability to change or cancel a ticket; (2) whether 
the consumer's reservation can be cancelled within 24 hours of purchase 
without penalty or whether it can be held at the quoted fare for 24 
hours without payment, provided the reservation is made one week or 
more prior to a flight's departure; \67\ (3) the form of the refund or 
credit that would be provided; (4) that the consumer is responsible for 
any fare differential, if applicable; and (5) whether the consumer will 
receive a refund of the difference in fare if the consumer changes 
their flight and selects a less costly replacement flight. Disclosure 
of change and cancellation policy terms, such as whether the consumer 
would be required to pay a fare differential for a ticket change and 
whether the consumer can receive a refund in the original form of 
payment, may impact the consumer's decision on whether to purchase the 
selected itinerary or wait until the consumer is more certain of their 
travel plans. While important, these disclosures of the details of the 
change and cancellation policies are less critical at the time of 
itinerary search than the change and cancellation fees themselves and 
any prohibitions on the ability to change and cancel a ticket, which 
must be disclosed at that point. Accordingly, the Department is of the 
view that, unlike fees, it is sufficient to disclose change and 
cancellation policies before ticket purchase to avoid engaging in an 
unfair and deceptive practice. These harms are not reasonably avoidable 
if the ticket agent does not provide disclosures on cancellation or 
change fees when it provides an airfare in response to a consumer's 
itinerary search and policy information before purchase on an online 
platform. Ticket agents often refer consumers to carrier web pages that 
contain fee information, but this information is allowed to be 
expressed as a range rather than a specific applicable number.\68\ This 
means that many consumers cannot determine the change and cancellation 
fees that would apply to them. Also, it is disruptive and time-
consuming for consumers purchasing from ticket agents to navigate away 
from the ticket agents' online platform to the carrier's website to 
search for the information. Change and cancellation policies and fees 
may be difficult to understand, as fare categories, passenger status, 
ticket type (e.g., award ticket purchases), and other factors such as 
where the passenger is flying may impact the applicable change and 
cancellation fees and policies. The harm that consumers

[[Page 34631]]

experience is not outweighed by benefits to consumers or competition 
because, like baggage fees, consumer surprise or confusion about 
applicable change and cancellation fees after airfare purchase harms, 
rather than benefits, competition. The Department believes that the 
disclosure of passenger-specific or non-passenger-specific change and 
cancellation fees during the itinerary-search process and policies 
before ticket purchase on an online platform would promote informed 
buyers, enhance competition, and lower prices.
---------------------------------------------------------------------------

    \66\ See, e.g., remarks by a representative of ASTA at the 
ACPAC's June 28, 2022, meeting. The representative stated that 44% 
of air tickets were sold by travel agencies (excluding OTAs), 39% 
were sold on airline websites, 12% were sold by OTAs, and 5% are 
sold through offline direct channels. Meeting minutes can be found 
at https://www.regulations.gov/document/DOT-OST-2018-0190-0073.
    \67\ This rule requires that the ticket agent disclose whether 
it has a 24-hour cancellation or hold policy on the last page of the 
booking process as this is the point in the purchase process at 
which this disclosure is most relevant to consumers.
    \68\ See, e.g., fn. 61, above.
---------------------------------------------------------------------------

    The Department also concludes that the practice of not disclosing 
change and cancellation fees with an airfare in response to a 
consumer's itinerary search and policies before ticket purchase on an 
online platform to be deceptive. Without the required notice, consumers 
acting reasonably would be misled with respect to the change and 
cancellation fees and policies that apply to their ticket and may 
believe that changes or cancellations are possible at no fee or at a 
reduced fee. As noted above, many carriers changed their ticket change 
policies during the COVID-19 public health emergency, and such changes 
were publicly promoted by the carriers. A reasonable consumer may 
believe that his or her ticket may be changeable free of charge when 
that might not be the case, or he or she may choose to purchase a fare 
type that does not allow changes, believing erroneously that a change 
is permitted. Comments by consumer advocates and individuals suggested 
that consumers do consider change and cancellation fees and policies 
when making purchasing decisions, particularly during emergency 
situations such as a pandemic or potential severe weather events such 
as hurricane seasons. The change and cancellation fees and policies are 
therefore material because they could affect the consumer's decision on 
whether to purchase an airline ticket and if so, which airline to 
select. As such, the Department concludes that the failure to disclose 
change and cancellation fees during the itinerary-search process and 
policies before ticket purchase on an online platform is deceptive.
(c) Percentage-Off Discounts
    After careful consideration of the comments submitted in this 
rulemaking, the Department has concluded that, when the terms 
``flight,'' ``ticket,'' or ``fare'' are used in a percentage-off 
advertisement, it is an unfair and deceptive practice for an airline or 
ticket agent to not apply the percentage off the total cost of the 
ticket. Additionally, the Department has concluded that, when the term 
``base fare'' is used in a percentage-off advertisement, it is an 
unfair and deceptive practice for an airline or ticket agent to not 
apply the percentage off the full fare amount excluding all government 
taxes and charges.
    These types of percentage-off advertisements are deceptive as they 
mislead reasonable consumers on a material matter. A reasonable 
consumer seeing an advertisement for a 25% discount off a flight, a 
ticket, or a fare would believe that he or she is receiving 25% of the 
entire ticket based on a common understanding of those terms as 
supported by comments discussed in section E. That reasonable consumer 
would be misled if he or she were to find out that the 25% off discount 
applied to only a portion of the ticket price. Similarly, a reasonable 
consumer seeing an advertisement for a 30% discount off a ``base fare'' 
would believe that he or she is receiving 30% off the full fare 
excluding all government taxes and fees based on a common understanding 
of that term as supported by comments discussed in section E. That 
individual would be misled if he or she received a 30% off only a 
portion of the carrier-imposed mandatory charges. The percentage 
discounts are a material matter because they affect the price that 
consumers pay for the air transportation.
    These types of percentage-off advertisements are also unfair as 
they have potential to cause substantial harm to consumers that is not 
reasonably avoidable and not outweighed by countervailing benefits to 
consumers or competition. Consumers may be substantially harmed because 
they are likely to encounter higher charges than expected if a seller 
advertises an appealing offer by stating ``50% off a flight'' or ``50% 
off a base fare'' so consumers will click on the advertisements only to 
find out that it is 50% off only a small portion of the ticket, which 
can multiply if a consumer relies on the promotional discount for 
multiple passengers on an itinerary or for an individual passenger 
traveling on a higher cost itinerary. The harm is not easily avoided 
due to a lack of clarity in the advertising language that carriers use. 
The harm that consumers experience from this practice is not outweighed 
by benefits to consumers or competition because the lack of clarity 
about the offered fare harms, rather than promotes, competition.
(d) Data Sharing
    This final rule requires U.S. and foreign air carriers to provide 
any entity required to disclose critical ancillary fee information 
directly to consumers useable, current, and accurate information of the 
fee rules for critical ancillary services if the carrier provides fare, 
schedule, and availability information to that entity. The information 
provided by carriers to these entities must be sufficient to ensure 
compliance with any applicable disclosure requirements. The failure of 
a carrier to provide critical ancillary fee information to entities 
required to disclose this information to consumers is an unfair 
practice. Approximately half of air travel tickets are sold by ticket 
agents.\69\ There is likely substantial harm to consumers if an entity 
required to disclose accurate critical ancillary fee information to 
consumers is unable to do so due to the carrier's failure to provide 
such information to that entity. Consumers are substantially harmed 
under these circumstances because consumers must then spend additional 
time searching to find the total cost of travel and consumers may spend 
additional funds on air transportation that could have been avoided if 
the consumer had the critical ancillary fee disclosed to them. This 
harm is not reasonably avoidable, as consumers would have to leave the 
ticket purchase process to review fees provided in each carrier 
website. In addition, once at a carrier website, consumers will likely 
not be able to determine the fee for changing and canceling a 
reservation as carriers provide that information in a range.\70\ 
Consumers will also likely have difficulty determining the fee for 
transporting a carry-on bag, a first checked bag, and second checked 
bag because baggage fee structures are often complex and require charts 
and calculators to show the cost of fees. This harm is not outweighed 
by benefits to consumers or competition as the sharing of critical 
ancillary service fee information enables consumers to access critical 
ancillary fee information from a larger variety of ticket purchase

[[Page 34632]]

vendors, which improves, rather than harms, competition.
---------------------------------------------------------------------------

    \69\ ACPAC Meeting Minutes (June 28, 2022), p. 13 at https://www.regulations.gov/document/DOT-OST-2018-0190-0073. In its written 
comment, ASTA stated that 48 percent of total sales and aggregate 
spending were sold by travel agencies in 2019. https://www.regulations.gov/comment/DOT-OST-2022-0109-0083.
    \70\ See fn. 61 (showing that some airlines provide a large 
range for change or cancellation fees, with United, for example, 
quoting ``$0 to $1,000 per traveler'').
---------------------------------------------------------------------------

(e) Additional Unfair or Deceptive Practices
    Additional discussion of unfair and deceptive practices identified 
in this final rule is provided in sections E (1)(c) (failure of a 
carrier or ticket agent that sells air transportation to make critical 
ancillary fee disclosures at the first page of its website or other 
online platform to which a consumer is directed after searching for 
flights on a metasearch site where that information is not provided); E 
(3)(d) (failure of a carrier or ticket agent to disclose that the 
purchase of a seat is not required for travel particularly when 
consumers are provided seats to choose where many require a fee to 
reserve); E (10)(a) (failure of a ticket agent that sells air tour 
packages to disclose that additional baggage fees may apply when a 
passenger books an air tour package without an identifiable carrier and 
the failure to disclose the passenger-specific fees for a carry-on bag, 
first checked bag, and second checked bag when the carrier is known); 
and E (10)(c) (failure of a ticket agent to display baggage fees in 
text form on the e-ticket confirmation that has traditionally applied 
to carriers).
(f) Stakeholder Comments and DOT Responses
    Comments: Airlines and airline associations disagreed with the 
Department's proposed determination that not providing fee disclosures 
at the beginning of the ticket purchase process was an unfair and 
deceptive practice. Several airline commenters asserted that the 
Department did not provide adequate justification that consumers 
experienced or would likely experience substantial injury, as required 
by the analysis of an unfair practice. Spirit Airlines asserted that it 
already displays ancillary fees during the booking process, and that 
95% of its customers advance past baggage selection pages, showing that 
concerns about injury are unfounded. A4A stated, ``Every A4A passenger 
air carrier displays or makes available at first search results the 
ancillary fee information that DOT proposes for a consumer conducting 
an anonymous search in the direct channel via rollovers or links.'' 
\71\ A4A also noted that the Department did not differentiate its 
unfair and deceptive practice analysis between airlines and ticket 
agents in the NPRM, and the organization asserted that the rulemaking 
should be withdrawn with respect to airlines because consumer harm was 
avoidable. A4A, IATA, the National Air Carrier Association (NACA), and 
others asserted that the number of ancillary fee consumer complaints 
cited by the Department was too small to conclude substantial harm, and 
that the complaints do not evidence a lack of transparency. IATA and 
other airline associations asserted that consumers already understand 
that ancillary services are available for a fee, and because they have 
information on fees before they purchase tickets, there is no 
substantial harm. Similar statements were made by airline 
representatives at the ACPAC meeting held on December 8, 2022. At that 
meeting, a representative of IATA stated that the Department did not 
provide evidence that consumers do not know the price imposed for 
baggage before purchasing a ticket.
---------------------------------------------------------------------------

    \71\ Comment of A4A, pages 17-18, available at https://www.regulations.gov/comment/DOT-OST-2022-0109-0090.
---------------------------------------------------------------------------

    Airlines also asserted that the proscribed practices were not 
likely to mislead a consumer acting reasonably under the circumstances, 
as required by the analysis of a deceptive practice. Multiple airlines 
noted, for example, that because ancillary fees are already on airline 
websites, it was not reasonable to conclude that the non-display of 
fees during the initial itinerary search was deceptive. A4A commented 
that the Department did not use the right standard for a consumer 
``acting reasonably,'' as part of its deceptive practice analysis, and 
the organization asserted that the Department should instead use 
enforcement processes rather than rulemaking to address problematic fee 
disclosure practices.
    Individual commenters and multiple State attorneys general asserted 
that airlines were treating consumers unfairly regarding fees and that 
consumers were likely to be misled by current disclosures. Some of 
these individual commenters expressed frustration about the ticket 
purchase process, noting that when they attempt to buy a ticket they 
view as being a particular cost, the total cost increases when fees are 
later added. One commenter noted that some consumers would realize they 
could not afford the total cost of a trip had they known about bag fees 
when they selected their ticket. One commenter noted that it would be 
extremely rare for a passenger to travel without any baggage at all. 
Another commenter self-identified as a frequent traveler and stated 
that understanding and paying for ancillary fees was confusing and 
frustrating, particularly on third-party applications. Multiple State 
attorneys general commented that they hear every day from consumers who 
are deceived by ``junk fees'' and have launched education campaigns to 
protect consumers from hidden fees, junk fees, and drip pricing. The 
State attorneys general also noted that their offices receive numerous 
complaints about airlines' lack of disclosures of baggage and change 
and cancellation fees. FlyersRights stated that because airlines have 
increased the number and cost of ancillary fees, consumers are misled 
into believing that the cost of air travel will be cheaper than it is. 
The organization added that ancillary fees are often necessary for 
travel and used to be included in the base fare.
    The Department received mixed comments from ticket agent 
representatives on its assertion that it is an unfair and deceptive 
practice not to provide disclosure of critical ancillary service fees 
before ticket purchase. The United States Tour Operators Association 
(USTOA) commented that the Department did not adequately demonstrate 
consumer harm, adding that consumers are aware that there are baggage 
fees and that there were few consumer complaints. As a metasearch 
entity, Google expressed its view that the Department did not explain 
how consumers were harmed by not having fee disclosures until the 
ticket purchase stage of the booking process and that consumers are 
aware of fees. Google also noted that the Department's sampling of 
consumer complaints did not show that the fee was not disclosed, but 
that consumers were surprised by the amount of the fees or the 
applicability of fees. However, ASTA commented that consumers are 
confused from airlines' unbundling their ancillary services, and that 
ancillary service fees remain difficult for consumers to discover and 
are hard to understand when they are found. ASTA added that ancillary 
fees are revealed too late in the search process to permit effective 
comparison shopping. Skyscanner stated that it shared the goal of 
enhancing competition and avoiding the unfair and deceptive practice of 
failing to inform consumers of the full cost of travel.
    Ticket agents also commented on ensuring that they had access to 
ancillary fee data from airlines. One ticket agent commenter noted that 
consumers using third-party websites to purchase tickets may not have 
access to fee data and that lack of data provisioning is an unfair and 
deceptive practice. One metasearch entity commented that requiring data 
sharing with metasearch companies would reduce the risk that the 
transportation

[[Page 34633]]

will be sold to consumers in an unfair or deceptive manner. As for 
airlines' view on data sharing, at the ACPAC meeting held on December 
8, 2022, the airline representative noted the Department did not 
provide an unfair and deceptive practice analysis for its proposal on 
the sharing of fee information to ticket agents.
    DOT Response: The Department has carefully considered the public 
comments on this issue and has determined that the practices identified 
in this rulemaking meet the elements of an unfair and deceptive 
practice. Those entities opposing the Department's position generally 
asserted that the Department did not provide sufficient evidence of 
substantial injury, that the Department relied on a small number of 
consumer complaints, that the consumer harm is avoidable as the fees 
are presented on airline websites, and that consumers are aware that 
ancillary fees exist. Other comments opposing the Department's position 
stated that consumers are not interested in ancillary fees when booking 
tickets and that the Department did not conduct an unfair and deceptive 
practice analysis regarding its data-sharing proposal. The Department 
disagrees that there is insufficient evidence of substantial injury. 
Consumer complaints are only one metric that the Department uses to 
gauge whether an unfair or deceptive practice is occurring. The 
Department also relies on the statements of consumer advocates, all of 
which have consistently expressed concern about consumer confusion over 
ancillary fees throughout the years that rulemaking has been 
contemplated on this subject. The Department finds it reasonable to 
rely on the statements of the many consumer advocates, State attorneys 
general, and consumer organizations as representative of the views of 
consumers, and, when further confirmed by consumer complaints, to 
determine that substantial harm is occurring or is likely to occur. 
These positions by consumers were reaffirmed in their comments to the 
NPRM. Comments submitted by members of the public in this rulemaking 
also clearly evidence that consumers are surprised by the amount of 
ancillary fees charged when they purchase tickets.
    The Department also disagrees that the consumer harm is reasonably 
avoidable. While the fees for baggage and other ancillary services are 
provided on airline websites, such fees are not disclosed on ticket 
agent websites and are difficult to ascertain prior to ticket purchase. 
Ancillary fees, except for baggage, may be expressed in a range, and 
baggage fee structures are often complex and require charts and 
calculators to show the cost of fees. Some fees may also not be 
applicable to passengers who purchase tickets on one airline's website 
for flights that will be operated by a different airline.
    The Department also disagrees with the premise that consumers are 
well-informed about airline fees. While many consumers may be aware of 
the existence of fees, a large number of consumers do not know the 
amount of the fees that will apply to them, given the complexity of fee 
structures. Comments from consumers affirm this belief, and Google and 
others acknowledged this fact in their comments. Having fee disclosures 
up front during the booking process would mitigate the consumer 
surprise at the level of fees to be imposed. The Department disagrees 
with the assertion that consumers not purchasing baggage fees during 
ticket purchase (or otherwise skipping pages that disclose baggage 
information) is indicative that they are not interested in baggage 
fees. Consumer advocates and commenters have noted that baggage is a 
critical ancillary service, and the decision not to purchase baggage 
services during the ticket purchase process does not mean that the 
consumer will not purchase a bag later or that the amount of the fee is 
not important to the consumer.
    Regarding the airline representative's statement at the December 8, 
2022, ACPAC meeting that the Department did not conduct an unfair or 
deceptive analysis of the data sharing proposal in the NPRM, the 
Department has determined in this final rule that failure to disclose 
baggage and change and cancellation fees to consumers as specified in 
the rule is an unfair and deceptive practice. The Department has also 
determined that the failure for a carrier to provide critical ancillary 
fee information to any entity required to disclose this information to 
consumers that displays or sells the carrier's flights directly to 
consumers to be an unfair practice. The Department's analysis complies 
with its regulations, which require an analysis supporting a conclusion 
that a practice is unfair or deceptive to consumers pursuant to 14 CFR 
399.75(c). At the ACPAC meeting, the Department responded to the 
airline representative by noting that data sharing is related to the 
disclosure of fees because, without data sharing, the disclosure of 
fees would not be possible for a large segment of consumers. The 
Department provides its analysis of how the failure to share critical 
ancillary fee information is an unfair practice in section D (1)(d).
    Finally, the Department disagrees with the suggestion that it 
should pursue enforcement action under its unfair and deceptive 
practices authority, rather than conducting a rulemaking. As stated by 
the Department at the December 8, 2022, ACPAC meeting, the airline 
representative's suggestion that the Department take enforcement action 
instead of conducting rulemaking would be difficult if the current 
regulation permits or does not address the practices that are of 
concern. The Department issues this regulation to address the 
inadequacy in the current regulation.

(2) Other Authorities

    In carrying out aviation economic programs, including issuing this 
final rule under 49 U.S.C. 41712, the Department is required to 
consider the factors identified in 49 U.S.C. 40101 as being in the 
public interest and consistent with public convenience and necessity. 
Under 49 U.S.C. 40101(a)(4), the Department is required to consider the 
availability of a variety of adequate, economic, efficient, and low-
priced services without unreasonable discrimination or unfair or 
deceptive practices as being in the public interest. Under section 
40101(a)(9), it is also in the public interest to prevent unfair, 
deceptive, predatory, or anticompetitive practices in air 
transportation. The Department is also required by section 40101(a)(12) 
to consider as being in the public interest encouraging, developing, 
and maintaining an air transportation system relying on actual and 
potential competition to provide efficiency, innovation, and low 
prices.
    Except for Southwest Airlines, airline commenters generally 
asserted that the Department's rulemaking would harm competition by, in 
their view, making it more difficult for consumers to view travel 
options. Ultra low-cost carriers also believed that the rule would 
undermine their business model of unbundling ancillary services from 
the cost of airfare. Airlines expressed the view that the popularity of 
unbundled offerings showed that consumers preferred those models and 
not that they were being deceived. Southwest Airlines stated that the 
number and complexity of fees by airlines made comparison shopping more 
difficult, and it commented that it was appropriate for the Department 
to reduce the complexity of disclosures.
    Some ticket agents such as USTOA and metasearch entities such as 
Google stated that the existing marketplace provided transparency and 
that the rule would diminish consumer choice and competition. In 
contrast, others such as

[[Page 34634]]

ASTA commented that ancillary service fees are not accessible in a 
timely manner and that identifying the total travel cost is complex, 
confusing, and needlessly time-consuming for consumers. Travel Tech 
noted that, because ticket agents do not universally receive 
information on critical ancillary service fees from airlines, some 
ticket agents are currently unable to display those fees at any point 
in the booking process. Skyscanner commented that it strongly supports 
the Department's goal of making critical ancillary fees more 
transparent for consumers. Some ticket agents also noted that a lack of 
transactability of ancillary fees on ticket agent websites would 
disincentivize consumers from purchasing air travel on those websites.
    Consumers generally stated that the rule would facilitate price 
comparison, encourage competition, and prevent airlines from using 
hidden fees to gain an unfair advantage. Consumer advocacy groups 
asserted that market competition requires transparency and informed 
consumers, with consumers benefiting from the availability of reliable 
fee information from multiple sources. One individual stated that the 
rule would reduce options and make travel less affordable.
    After considering the public comments, the Department has 
determined that this rule serves the public interest as articulated 
above. This rule improves the transparency of airline pricing through 
the increased disclosure of fees for critical ancillary services during 
the itinerary search process. As carriers vary on their policies for 
such fees and such information is often not provided during the 
purchase process, consumers of air transportation may have difficulty 
understanding the actual and potential costs of accessing the air 
transportation between different carriers. By improving this 
transparency, this rule allows for better understanding of airline 
ticket pricing, of which these fees are often a critical component, 
thereby encouraging price competition. The Department acknowledges 
concern about screen clutter and a potential reduction in travel 
options being displayed to consumers; as such, the Department has 
adjusted its disclosure requirements from those proposed in the NPRM to 
allow for more flexibility in the manner of display of information and 
to reduce the potential for the harms identified by the commenters.
    To answer the concerns of carriers, the Department believes that 
this rule does not undermine the business model of unbundled offerings. 
The rule does not prohibit such a model, and by improving the 
disclosure of fees associated with ancillary services, the Department 
believes that the rule helps to improve the model by making it more 
transparent to consumers. We do note that the unbundled model has 
proliferated in the marketplace, but we do not agree with commenters' 
assertion that this is evidence that the model is preferred by 
consumers and not that they are being deceived by airlines' current 
disclosure practices. The Department has presented its analysis of how 
a failure of carriers or tickets agents to provide the disclosures 
required in this final rule represents an unfair or deceptive practice.
    We are also not persuaded by ticket agents' concern that a lack of 
transactability of ancillary fees would disincentivize purchases on 
ticket agents' websites. As noted in sections E (3)(c) and E (7), this 
final rule does not require the disclosure or transactability of family 
seating fees. The Department is considering issues related to family 
seating in a separate rulemaking.\72\ This rule also does not require 
ticket agents to make the fees for a first checked bag, second checked 
bag, and carry-on bag transactable on ticket agent websites. Due to the 
post purchase price increase prohibition in 14 CFR 399.88, airlines are 
currently prevented from increasing the baggage fees that apply to a 
consumer's booking after the time of the consumer's ticket purchase. We 
have seen little evidence that consumers are choosing to forgo using 
ticket agent websites as a direct result of not being able to purchase 
baggage fees on those websites. These circumstances have predated this 
rule, and the Department does not believe that the addition of new 
critical ancillary fee disclosures during the purchase process will 
change that behavior.
---------------------------------------------------------------------------

    \72\ See https://www.transportation.gov/regulations/report-on-significant-rulemakings.
---------------------------------------------------------------------------

E. Comments and DOT Responses

(1) Covered Entities

    The Department proposed to cover U.S. air carriers; foreign air 
carriers; ticket agents that sell airline tickets, whether traditional 
brick-and-mortar travel agencies, corporate travel agents, or OTAs; and 
metasearch sites that display airline flight search options directly to 
consumers. The Department proposed that GDSs would not be covered by 
the proposal as GDSs arrange for air transportation but do not sell or 
display a carrier's fare to consumers.
    This final rule covers U.S. and foreign air carriers as proposed. 
It also covers ticket agents that sell or display airline tickets, 
except for corporate travel agents, which are excluded from coverage 
for the reasons explained later in this document. This rule does not 
make a determination on whether metasearch entities and aggregators 
that advertise, but do not sell, airline tickets, are ticket agents and 
would thus be covered by this rule. However, if the Department were to 
determine in a separate rulemaking \73\ that metasearch entities and 
aggregators are ticket agents as defined in 49 U.S.C. 40102(a)(45), 
then they would be covered by this rule as well.\74\ The Department's 
response to comments about which entities should be covered by this 
final rule and explanations for all modifications from the NPRM are 
described in the sections that follow. Discussion of which operations 
and online platforms of covered entities are covered by this final rule 
is provided in section E (2).
---------------------------------------------------------------------------

    \73\ Air Transportation Consumer Protection Requirements for 
Ticket Agents (RIN 2015-AE57), (abstract explains that this 
rulemaking would address whether to codify in regulation a 
definition of ``ticket agent'' and whether to require large ticket 
agents to adopt minimum customer service standards), Fall 2023 
Unified Agenda of Regulatory and Deregulatory Action at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AE57.
    \74\ 49 U.S.C. 40102(a)(45) defines a ticket agent as ``a person 
(except an air carrier, a foreign air carrier, or an employee of an 
air carrier or foreign air 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.''
---------------------------------------------------------------------------

(a) U.S. and Foreign Air Carriers
    Proposal: The Department proposed fee and policy disclosure of 
critical ancillary services by U.S. and foreign carriers during the 
booking process when fare and schedule information is provided. In 
addition, the Department proposed to require that the carriers provide 
the fee information for critical ancillary services to ticket agents 
that sell or display the airlines' fare and schedule information.
    Comments: A4A stated that ``DOT data does not demonstrate the 
existence of any significant problems with airline ancillary-fee 
transparency, and therefore this NPRM as applied to airlines should be 
withdrawn.'' According to A4A, the regulation of airlines is 
unnecessary because airlines already disclose fees for critical 
ancillary services. A4A added that any unfair or deceptive practices 
occur on indirect channels (e.g., OTAs, metasearch sites, 
``traditional'' travel agencies, and travel management companies). An 
individual commenter stated that the rule appeared to be focused on 
problems with disclosures by large U.S. carriers, suggesting that the 
rule should not cover other entities like foreign carriers and small 
network carriers.

[[Page 34635]]

    DOT Response: This final rule covers U.S. and foreign air carriers 
because the issue of lack of transparency of airline ancillary service 
fees is not limited to indirect channels as asserted by airline 
commenters or limited to large U.S. carriers as suggested by an 
individual commenter. The Department wants to ensure that consumers 
know, when fare and schedule information is provided during the booking 
process, the fees charged for transporting a first and second checked 
bag, transporting a carry-on bag, and canceling or changing a flight 
whether they are purchasing the ticket from an airline or a ticket 
agent. Approximately 45% of tickets are sold by airlines directly to 
consumers, and the remainder is sold through ticket agents,\75\ so it 
is important to cover not only ticket agents but also carriers. 
Further, it is important to ensure that consumers purchasing air 
transportation from small carriers or foreign air carriers that fly to 
and from the U.S. are protected from unfair and deceptive practices 
equal to those purchasing tickets from U.S. carriers and ticket agents. 
Accordingly, as discussed in section D, the unfair and deceptive 
practices that the Department is addressing in this final rule relate 
to ticket agents and carriers regardless of the carrier's size or 
country affiliation for flights to, within, and from the U.S.
---------------------------------------------------------------------------

    \75\ ACPAC Meeting Minutes (June 28, 2022), p. 13 at https://www.regulations.gov/document/DOT-OST-2018-0190-0073.
---------------------------------------------------------------------------

(b) Ticket Agents That Sell Air Transportation
    Proposal: The Department proposed to require all ticket agents that 
sell air transportation, including corporate travel agents, to disclose 
to consumers the fees and policies for ancillary services that are 
critical to a consumer's purchasing decision. The Department solicited 
comments in the NPRM on whether it should exclude corporate travel 
agents from coverage of the final rule because the display content for 
such agents is typically negotiated by the business client involved.
    Comments: The Department's proposal to apply the transparency 
requirements regarding critical ancillary services to ticket agents 
that sell air transportation was challenged only as it relates to 
corporate travel agents and small ticket agents. Consumer groups, 
including the U.S. PIRG Education Fund, generally supported covering 
ticket agents. An individual commenter asked the Department to clarify 
that OTAs have responsibility for the disclosure of ancillary fees 
provided on their websites because carriers lack control over the 
display of information on those sites. Some airlines and organizations, 
including Spirit Airlines and A4A, expressed concerns about the 
accuracy of disclosures on ticket agent websites, and Southwest 
Airlines supported extending disclosure requirements to ticket agents. 
Allied Tour & Travel, a small ticket agent, expressed concerns about 
the burden of compliance for small tour operators that include airfare 
in a travel package.
    Regarding corporate travel agents, multiple ticket agent 
associations asked the Department to exclude them from the final rule's 
coverage. These commenters generally stated that the Department should 
exempt corporate travel agents from the final rule's requirements 
because ancillary fee disclosures by those agents are the subject of 
contractual agreement between a business client and the travel agent, 
with the relevant ancillary services and fees negotiated as part of the 
contract. The Travel Management Coalition (TMC) testified at the 
Department's March 30, 2023, public hearing that its customers are 
frequent travelers, often use the same routes, and are highly familiar 
with ancillary fee information. In addition, Travel Tech commented that 
certain ancillary fees, like family seating fees, are irrelevant for 
corporate clients, and others, including baggage fees and flight change 
fees, are not a significant consideration in corporate travelers' 
purchasing decisions. TMC agreed that its customers rarely check bags 
or travel with children. Further, ASTA noted that the corporate client, 
not the business traveler, generally pays the cost of transportation, 
including fees.
    These commenters also cited various precedents for treating 
business travel differently under consumer protection laws. ASTA and 
Travel Tech stated that the exclusion for corporate travel agents would 
be consistent with the European Union's framework, and TMC testified 
that Congress recognized the distinction between corporate and public 
travel in the FAA Reauthorization Act of 2018 (2018 FAA Act) by 
creating an exemption from certain customer service requirements if the 
sale of an airfare was made pursuant to a corporate contract.
    Travel Tech, ASTA, and TMC suggested that the Department define 
``corporate travel agent'' for purposes of a regulatory exclusion as a 
travel agency ``engaged in the provision of travel services primarily 
to business entities pursuant to a written contract for the business 
travel of such business entities' employees.'' GBTA instead recommended 
that the Department exempt what it termed ``private'' and ``consortia/
agency fares'' in the final rule. It asked that DOT consider private 
fares to be ``[d]iscounted or lane (fixed fares between two cities/
airports) fares negotiated by travel managers that the airline `files' 
with [the Airline Tariff Publishing Company (ATPCO)], to be made 
available to the organization's agencies of record, as documented in 
the airline contract, for their travelers to book online or offline.'' 
GBTA further suggested that the Department define ``consortia fares/
agency fares'' as proprietary fares negotiated by mega agencies and 
consortia \76\ offered to customers as an alternative to published 
fares.
---------------------------------------------------------------------------

    \76\ A travel consortium is a collection of independent travel 
agencies that combine resources to increase their visibility, 
revenue, and marketing opportunities. The independent travel 
agencies that are part of a consortia are known as ``mega-agencies'' 
and can offer their customers a consortia rate, which is a preferred 
negotiated or partnership rate.
---------------------------------------------------------------------------

    In contrast, American Airlines urged the Department not to adopt an 
exception for corporate travel agents. The airline's comment stated 
that it is unreasonable and potentially infeasible to exempt corporate 
travel agents because few serve exclusively corporate travelers for 
corporate travel and consumers increasingly book travel that combines 
business and personal travel.
    DOT Response: The Department continues to apply the requirements to 
disclose critical ancillary service fees and policies to ticket agents 
that sell air transportation; however, the Department is excluding 
corporate travel agents from these requirements. In excluding corporate 
travel agents from coverage of this final rule, the Department is 
agreeing with commenters that there is no need for DOT to apply 
transparency rules for corporate travel arrangements that are 
contractually entered into by sophisticated entities.
    In this rule, the Department is adopting the definition of 
corporate travel agent as proposed by Travel Tech, ASTA, and TMC, with 
some modifications. This final rule defines corporate travel agent as a 
ticket agent that provides travel services to the employees of a 
business entity pursuant to a written contract with that entity for the 
business travel of its employees. The ``ticket agent'' need not be a 
single travel agent to meet the definition in this final rule, but 
could instead be a consortium of travel agents, as suggested in GBTA's 
comment.
    While some commenters recommended that DOT exclude corporate travel 
agents if they are primarily engaged in such activity, the

[[Page 34636]]

Department instead adopts a transaction-specific approach and is 
applying this rule to ticket agents that are not acting as corporate 
travel agents in the specific transaction at issue. Under the final 
rule, if a ticket agent acts entirely as a corporate travel agent with 
respect to a transaction or a corporate flight booking portal, for 
example, then the rule's ancillary fee disclosure requirements would 
not apply for that transaction or on that booking portal. Because 
ticket agents may act as a corporate travel agent with respect to 
certain clients and also have booking systems available to the general 
public, this rule does not exclude a ticket agent that sells air 
transportation from the requirement to display fees or policies for 
critical ancillary services due to that agent's ``primary'' activity as 
a corporate travel agent. This approach ensures information about 
critical ancillary services are not improperly excluded from leisure 
travelers who are not covered by a contractual agreement. A 
transaction-specific approach prevents consumer confusion from the 
presence of inconsistent information offered on different platforms.
    This transaction-specific approach also addresses the concerns 
raised by American Airlines that few travel agents serve exclusively 
business clients. Those travel agents that provide airfare sales 
exclusively to business entities under a written contract for the 
business travel of the business entities' employees would be fully 
excluded from the rule's requirements. Those travel agents engaged in a 
mix of business and non-business sales would need to provide the 
ancillary fee disclosures required by this final rule to any traveler 
selecting flights who is not engaged in business travel covered by a 
written contract.
    As for section 427 of 2018 FAA Act, which was cited by TMC in 
support of its request for an exclusion, it demonstrates that exclusion 
from consumer protection requirements for sales made pursuant to 
corporate contracts is not unusual. Section 427 provides protection 
from enforcement for noncompliance of any customer service standard or 
requirement in a DOT final rule that requires ticket agents to adopt 
customer service standards applicable to carriers to the extent ``the 
sale of air transportation is made . . . pursuant to a specific 
corporate or government fare management contract.'' While the 
Department is addressing the issue of whether to require ticket agents 
to adopt minimum customer service standards applicable to carriers in 
another rulemaking,\77\ the Department agrees with TMC that section 427 
differentiates between corporate and public travel.
---------------------------------------------------------------------------

    \77\ See Air Transportation Consumer Protection Requirements for 
Ticket Agents (RIN 2015-AE57) at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AE57.
---------------------------------------------------------------------------

    Regarding Allied Tour & Travel's comment, the Department has 
determined that the disclosures required by this rule should apply to 
ticket agents, regardless of size. Creating different standards based 
on the ticket agent's size would add to consumer confusion, as noted 
earlier, due to the presence of inconsistent information on different 
platforms. In consideration of the potential for varying degrees of 
burden, however, this final rule provides those ticket agents that meet 
the SBA definition of a small entity with additional time to comply 
with the rule's requirements beyond the time permitted for other ticket 
agents, in recognition that it may take additional time for small 
ticket agents to comply with new disclosures (discussed in section F).
(c) Metasearch Sites
    Proposal: The Department proposed to require entities that do not 
sell airline tickets but display airline flight search options directly 
to consumers (i.e., metasearch sites) to display critical ancillary 
service fees when fare and schedule information is provided. The 
Department proposal treated metasearch entities as ticket agents.
    Comments: Multiple metasearch entities, CCIA, and Travel Tech 
expressed their view that metasearch entities do not meet the statutory 
definition of ``ticket agent,'' and should not be subject to the rule 
because they do not sell air transportation. Booking Holdings also 
noted that many parts of the proposed rule, such as the transactability 
of family seating fees, were inapplicable to metasearch sites as they 
do not sell tickets. CCIA also raised privacy and security concerns 
about the possibility that such entities would need to handle personal 
or payment information, which they do not handle today. Google added 
that it does not currently collect passenger information and expressed 
concern that it would need to do so under the proposed rule to verify 
passenger identities.
    Metasearch entities, as well as CCIA and Travel Tech, also 
overwhelmingly disagreed with the NPRM's proposal that metasearch 
entities be covered under the rule. CCIA, for example, stated in 
written comments and at public meetings that metasearch entities should 
be excluded from the rule's disclosure requirements because they do not 
have access to fee information and the rule's disclosure requirements 
would clutter and negatively impact displays, on which aggregators and 
metasearch entities compete. Booking Holdings added that a prescriptive 
approach to metasearch displays will reduce the number of routes 
offered as part of the initial itinerary search results and have a 
detrimental effect on competition. It stated that metasearch entities 
should be afforded flexibility in fee disclosures to ensure they 
provide innovative and interactive displays for consumers to quickly be 
able to understand available travel options.
    From the airline perspective, Southwest Airlines expressed support 
for applying fee disclosure requirements to metasearch entities, noting 
that they are an important source of information and that the 
disclosure rules should apply to them to mitigate consumer confusion on 
fees. The airline added that section 427 of the 2018 FAA Act directed 
the Department to apply consistent consumer protection requirements to 
all large ticket agents to the extent feasible.
    DOT Response: The Department recognizes the important role 
metasearch entities play in providing information to consumers and 
facilitating comparison shopping. As stated previously, the Department 
is undertaking this rulemaking pursuant to its authority to prohibit 
carriers and ticket agents from engaging in unfair or deceptive 
practices. Under 49 U.S.C. 40102(a)(45), a ticket agent is ``a person 
(except an air carrier, a foreign air carrier, or an employee of an air 
carrier or foreign air 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.'' Also as noted by 
Southwest Airlines in its comment, section 427 of the 2018 FAA Act \78\ 
calls for a consistent level of consumer protection regardless of where 
consumers purchase airfares and related air transportation services. 
The Act uses section 40102(a)(45)'s existing definition of ``ticket 
agent'' and clarifies that the term includes ``a person who acts as an 
intermediary involved in the sale of air transportation directly or 
indirectly to consumers, including by operating an electronic airline 
information system, if the person--(i) holds the person out as a source 
of information about, or reservations for, the air transportation 
industry; and (ii) receives compensation in any way related to the sale 
of air transportation.''

[[Page 34637]]

Section 427 directs the Department to use this definition when issuing 
its final rule requiring ticket agents to adopt customer service 
standards.\79\ The Department is deferring to that rulemaking its 
determination of whether metasearch sites that do not sell airline 
tickets but display airline flight search options directly to consumers 
are ticket agents that must disclose ancillary fee information 
required.
---------------------------------------------------------------------------

    \78\ Public Law 115-254 (Oct. 5, 2018).
    \79\ See Air Transportation Consumer Protection Requirements for 
Ticket Agents (RIN 2015-AE57) at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AE57.
---------------------------------------------------------------------------

    During the pendency of that separate rulemaking, although the 
Department's Office of Aviation Consumer Protection (OACP) has enforced 
the Department's aviation consumer protection rules against metasearch 
entities in the past based on its view that metasearch entities are 
ticket agents,\80\ OACP will not enforce the disclosure requirements in 
this rulemaking against metasearch entities. This enforcement position 
notwithstanding, the Department encourages airlines and metasearch 
sites to enter into voluntary agreements to share critical ancillary 
fee information and for metasearch entities to voluntarily disclose 
this information to consumers with the fare and schedule information 
while further regulatory action is under consideration. The Department 
also notes that the Federal Trade Commission has concurrent 
jurisdiction over ticket agents and has the authority to both determine 
whether metasearch entities are ticket agents and take action against 
ticket agents as well as entities that are not ticket agents 
irrespective of DOT action.
---------------------------------------------------------------------------

    \80\ See, e.g., DOT Order 2022-2-6 (FlightHub Group, Inc., et 
al.) (Feb. 9, 2022).
---------------------------------------------------------------------------

    To ensure consumers have access to critical ancillary service fee 
information upfront, while the Department considers the status of 
metasearch entities in a separate rulemaking, the Department is 
requiring that airlines and ticket agents that sell air transportation 
disclose critical ancillary service fees on the first page of their 
website or other online platforms to which consumers are directed after 
searching for flight options on a metasearch site unless the consumer 
was already provided accurate fee information on the metasearch site. 
In many cases, airlines and ticket agents that provide fare, schedule, 
and availability information to metasearch entities permit the 
metasearch entity to electronically direct consumers to a page on the 
airline or ticket agent's website that does not require the consumer to 
initiate a new itinerary search. Because consumers directed to an 
airline's or ticket agent's website or other online platform from a 
separate metasearch site may not have an opportunity to view the 
critical ancillary service fees that apply to them, this rule requires 
that airlines and ticket agents display the required critical ancillary 
service fee information on the landing page on the airline or ticket 
agent's online platform to which consumers are directed after using a 
metasearch site. The rule permits an exception in situations where the 
consumer was provided accurate critical ancillary service fee 
information on the referring entity's website.
    The Department considers it to be an unfair and deceptive practice 
for a carrier or ticket agent that sells air transportation to fail to 
make critical ancillary fee disclosures at the first page of its 
website or other online platform to which a consumer is directed after 
searching for flights on a metasearch site where that information is 
not accurately provided. As discussed in section D (1), consumers are 
substantially harmed if critical ancillary fee information is not 
provided to them early in the search process, as ancillary fees such as 
baggage, change, and cancellation fees are critical to consumers' 
purchasing decisions and may make up a significant portion of the total 
cost of travel. The harm is not reasonably avoidable because consumers 
will likely not be able to determine the fee for critical ancillary 
services even if a consumer expends time and effort by leaving the 
booking system to try to determine the fees that apply to the 
itinerary. Typically, carriers provide change and cancellation fees as 
a range when viewed outside of the booking process. Consumer advocates 
have also shared with the Department that consumers have difficulty 
determining the fee for transporting a carry-on bag, a first checked 
bag, and second checked bag because baggage fee structures are often 
complex and require charts and calculators to figure out the fees. The 
lack of fee information is not outweighed by countervailing benefits to 
competition or consumers. In fact, the lack of information hinders 
consumers from being able to understand the true cost of their travel 
and harms competition, rather than benefiting it. The practice is also 
deceptive because a reasonable consumer would be misled to believing 
the cost of the travel is lower than what the true cost is if the fees 
for critical ancillary services are excluded. The disclosure of the 
fees is material because the fees could affect the consumer's decision 
on whether to purchase an airline ticket and if so, which airline to 
select.
    If metasearch entities are ultimately deemed to be ticket agents 
subject to this rule, the Department believes that concerns about 
screen clutter and impacts on innovation have been adequately addressed 
by the changes the Department has made to the final rule after 
considering public comments. As noted in this preamble, the final rule 
provides increased flexibility on method of display of critical 
ancillary fees, and it does not require the disclosure or 
transactability of family seating fees.
    Regarding concerns about privacy and security of consumer data by 
metasearch entities, while fee disclosures must be passenger-specific 
if the consumer affirmatively provides information regarding their 
status (e.g., frequent flyer status, military status, credit card 
holder status), such consumer-supplied information is not required to 
be validated before fees are displayed. Entities covered by this rule 
are required to disclose passenger-specific fee information based on 
the status that a consumer purports to have when conducting an 
itinerary search, regardless of whether the consumer holds such status. 
The rule does not require entities to collect passenger name, frequent 
flyer number, or credit card information, and does not implicate the 
privacy or security concerns raised by metasearch entities. See 
discussion on passenger-specific information in section E (5).

(2) Covered Operations

    Proposal: The Department proposed to require fee and policy 
disclosures of critical ancillary services by airlines and ticket 
agents on websites marketed to U.S. consumers where air transportation 
is advertised or sold. On whether a website is ``marketed to U.S. 
consumers,'' the Department noted in the NPRM that the determination 
would be based on a variety of factors--for example, whether the 
website is in English, whether the seller of air transportation 
displays prices in U.S. dollars, or whether the seller has an option on 
its website that differentiates sites or pages designed for the United 
States. In addition to the website disclosures, the Department proposed 
similar disclosures of critical ancillary services by U.S. and foreign 
carriers for tickets purchased by telephone or in-person for flights 
to, within, or from the United States. On fee information distribution, 
the Department proposed to require that airlines provide fee and policy 
information about critical ancillary services to ticket agents that 
sell or display airlines' fare or schedule information for air 
transportation to, from, or within the United States.

[[Page 34638]]

    Comments: Air Canada commented that the scope of the rule was 
broad, and that covering websites marketed to U.S. consumers could 
result in small ticket agents in foreign jurisdictions leaving the U.S. 
market because they cannot afford the upfront costs. The airline also 
expressed concern regarding possible conflicts with foreign consumer 
protection laws such as those in the European Union.
    Among ticket agent and metasearch stakeholders, Travel Tech and 
Skyscanner expressed agreement with the Department that the rule should 
apply only to those websites designed for use by U.S. consumers. 
Skyscanner also suggested that the rule's definition of a ``consumer'' 
should be limited to consumers physically located in the United States 
when searching for or purchasing tickets. Similar to Air Canada, 
Skyscanner argued that covering consumers not physically in the United 
States risks legal conflict with consumer protection regulations in 
other countries.
    Booking Holdings said that the proposed disclosures can be required 
only when a passenger searches for air transportation and added that 
air transportation as defined by statute does not apply to flights 
wholly between two foreign points which it interprets as meaning that 
passengers in the United States who search for flights between two 
foreign points are not entitled to receive the disclosures set forth in 
this rule. Skyscanner called for clarification on whether the rule 
would apply to foreign carriers serving non-U.S. points on flights 
carrying a U.S. carrier code, expressing the view that foreign carrier 
flights between non-U.S. points should not be subject to this rule when 
not carrying a U.S. carrier code, even if the flight can be booked on a 
website marketed to U.S. consumers.
    DOT Response: After carefully considering the public comments, the 
Department has decided to require fee and policy disclosures of 
critical ancillary services by airlines and ticket agents if they 
market to consumers in the United States. Under these circumstances, 
the final rule requires airlines and ticket agents to disclose the fees 
for critical ancillary services on airlines' or ticket agents' websites 
and other online platforms such as mobile applications (apps). It also 
requires airlines and ticket agents to disclose critical ancillary fees 
to consumers during an in-person or telephone discussion about an 
airline's fare and schedule if they market to U.S. consumers. The 
Department has used the phrase ``marketed to U.S. consumers'' and 
similar terminology in other aviation consumer protection and civil 
rights regulations applicable to websites.\81\
---------------------------------------------------------------------------

    \81\ See, e.g., 14 CFR 259.6, 259.7, and 382.43(c), and existing 
regulation 14 CFR 399.85(d).
---------------------------------------------------------------------------

    In one of these rulemakings, the Department explained that the 
characteristics of a ``website that markets air transportation to the 
general public inside the United States includes, but is not limited 
to, a site that: (1) contains an option to view content in English, (2) 
advertises or sells flights operating to, from, or within the United 
States, and (3) displays fares in U.S. dollars.'' \82\ The Department 
further explained ``that non-English (e.g., Spanish) websites targeting 
a U.S. market segment would also be covered; whereas websites that 
block sales to customers with U.S. addresses or telephone numbers, even 
if in English, would not.'' \83\ Similarly, in this rulemaking, the 
Department stated that it would consider a variety of factors to 
determine whether a website is marketed to U.S. consumers, including 
whether the website is in English, whether the seller of air 
transportation displays prices in U.S. dollars, or whether the seller 
has an option on its website that differentiates sites or pages 
designed for the United States.\84\ This final rule applies the same 
factors in determining whether tickets are marketed to U.S. consumers 
in-person and by phone. This final rule's applicability to online and 
offline platforms marketed to U.S. consumers is consistent with the 
Department's longstanding position.
---------------------------------------------------------------------------

    \82\ 78 FR 67882, 67886 (Nov. 12, 2013).
    \83\ Id.
    \84\ 87 FR 63718, 63725 (Oct. 20, 2022).
---------------------------------------------------------------------------

    We have also considered the comments on the scope of air 
transportation for tickets that include flight segments between two 
foreign points. Congress authorized the Department to prevent unfair or 
deceptive practices or unfair methods of competition in air 
transportation,\85\ which includes interstate air transportation \86\ 
and foreign air transportation.\87\ The phrase ``when any part of the 
transportation is by aircraft'' is used in the definition of foreign 
air transportation, which evidences an understanding that foreign air 
transportation is not limited to a single flight segment between the 
United States and a foreign country, but that it can be composed of 
``parts,'' including trips with stopover points and/or flights between 
two foreign points, provided that the passenger's overall journey is 
between a place in the United States and a place outside the United 
States. However, the Department agrees with commenters that flights 
between two foreign points with no connection to the United States are 
not foreign air transportation, and the requirements in this rule do 
not apply to such flights. The Department has determined that ``foreign 
air transportation'' includes journeys to or from the United States 
with brief and incidental stopover(s) at a foreign point without 
breaking the journey.
---------------------------------------------------------------------------

    \85\ 49 U.S.C. 40102(a)(5) defines ``air transportation'' as 
foreign air transportation, interstate air transportation, or the 
transportation of mail by aircraft.
    \86\ 49 U.S.C. 40102(a)(25) defines ``interstate 
transportation'' as the transportation of passengers or property by 
aircraft as a common carrier for compensation, or the transportation 
of mail by aircraft between a place in a State, territory, or 
possession of the United States and (i) a place in the District of 
Columbia or another State, territory, or possession of the United 
States; (ii) Hawaii and another place in Hawaii through the airspace 
over a place outside Hawaii; (iii) the District of Columbia and 
another place in the District of Columbia; or (iv) a territory or 
possession of the United States and another place in the same 
territory or possession; and when any part of the transportation is 
by aircraft.
    \87\ 49 U.S.C. 40102(a)(23) defines ``foreign air 
transportation'' as the transportation of passengers or property by 
aircraft as a common carrier for compensation, or the transportation 
of mail by aircraft, between a place in the United States and a 
place outside of the United States when any part of the 
transportation is by aircraft.
---------------------------------------------------------------------------

    For purposes of this final rule, we define a break in journey to 
mean a deliberate interruption by a passenger of a journey between a 
point in the United States and a point in a foreign country where there 
is a stopover at a foreign point scheduled. The Department determines 
whether a stopover is a deliberate interruption depending on various 
factors such as whether the segment between two foreign points and the 
segment between a foreign point and the United States were purchased in 
a single transaction and as a single ticket/itinerary, whether the 
segment between two foreign points is operated or marketed by a carrier 
that has no codeshare or interline agreement with the carrier operating 
or marketing the segment to or from the United States, and whether the 
stopover at a foreign point involves the passenger picking up checked 
baggage, leaving the airport, and continuing the next segment after a 
substantial amount of time. For example, a passenger that is traveling 
on a single ticket that originates or terminates in the United States 
but also includes travel between two foreign points on a flight 
marketed with a U.S. carrier code would be considered traveling in 
foreign air transportation. We believe this approach fully

[[Page 34639]]

addresses the extraterritoriality concerns raised by some commenters.
    Regarding comments suggesting that the Department's requirements 
apply only to consumers residing in the United States, we disagree. The 
Department's authority to prevent unfair or deceptive practices or 
unfair methods of competition in air transportation is not limited to 
aviation consumers who are residents of the United States. The 
Department acknowledges Air Canada and Skyscanner's concern about the 
potential for conflict with international requirements. However, there 
has not been evidence provided that covering consumers not physically 
in the United States risks legal conflict with consumer protection 
regulations in other countries as the commenters assert. Further, 
although the protection of this rule is not limited to consumers who 
reside in the United States, this rule only applies to airlines and 
ticket agents if they market to consumers in the United States.
    In response to Air Canada's concern that small ticket agents in 
foreign jurisdictions may leave the U.S. market, the Department is of 
the view that entities that participate in the U.S. market by marketing 
to U.S. consumers must comply with the same consumer protection 
requirements to ensure consumers know the fees charged for critical 
ancillary services upfront regardless of where consumers purchase air 
fares and related transportation services. This helps to mitigate the 
potential for surprise fees that can add up and quickly overcome what 
may, at first, look like a cheap ticket.

(3) Critical Ancillary Services

    Proposal: The Department proposed to require carriers and ticket 
agents disclose upfront fee and policy information for all ancillary 
services critical to a consumer's air transportation purchasing 
decisions. The Department proposed to treat the following ancillary 
services as critical: transporting a first checked, second checked, 
and/or carry-on baggage, changing or canceling a reservation, and 
obtaining adjacent seating when traveling with a young child (i.e., 
family seating), but it did not propose a definition of ``critical 
ancillary service.'' The Department solicited comment on whether its 
proposed list of critical ancillary fees should be expanded or limited, 
how to address future adoption by airlines of additional ancillary 
service fees, and how to ensure their disclosure to the extent that 
they are of critical importance to consumers.
    General Comments: Several airlines and associations questioned the 
Department's basis for selecting those ancillary fees classified as 
``critical'' in the NPRM and not others. For example, United Airlines 
stated that the list of ancillary fees that the Department proposed to 
consider critical was ``arbitrary and perplexing'' and added that it 
was unclear why DOT had proposed to treat the selected ancillary 
service fees as critical and not others, such as ``advanced seat 
assignments, preferential seating, charges for boarding passes, and 
charges for basic onboard refreshments like water, coffee, and sodas.'' 
Similarly, Air Canada listed ``advanced seat selection, access to in-
flight entertainment, in-flight meals, and lounge access'' as other 
fees that could be disclosed and stated that ``to meet the goal of 
allowing consumers to have full cost information . . . all ancillary 
fees of every kind would have to be included on the first page,'' which 
it acknowledged would be ``impossible.'' Finally, IATA asked the 
Department ``to set forth in greater detail [its] determination that 
these [proposed] optional services are indeed `critical.' ''
    A few airline commenters also stated that the selection of fees 
would disadvantage ultra-low-cost carriers (ULCCs). For example, United 
Airlines stated, ``[w]hether intentional or not, the Department's 
choice of `critical' ancillary fees seems to arbitrarily favor carriers 
who bundle those particular services and disfavors other airlines, 
particularly [ULCCs],'' adding that the ``rulemaking ultimately could 
cause a global increase in ticket prices by incentivizing all carriers 
to include those services in the cost of a ticket even though most 
passengers do not use the services.'' Frontier Airlines also expressed 
a similar view at the Department's March 30, 2023, public hearing and 
in its written comments. Frontier Airlines added that, in its view, 
unbundling is more transparent, economically efficient, and lower cost 
for consumers, who do not need to pay for ancillary services they will 
not use.
    A comment from FlyersRights and a joint comment from multiple 
groups representing consumers recommended that, instead of requiring 
separate disclosure of ancillary fees, the Department require ticket 
sellers to allow consumers to select their desired ancillary services 
and then provide a single total fare inclusive of the selected 
ancillary services. The joint comment stated that its proposal would 
allow consumers to ``compare search results more immediately and 
accurately,'' avoiding clutter and unnecessary calculations by 
consumers. Consumer groups also suggested that the Department require 
disclosure of ancillary service fees that may in the future become more 
prevalent or may be of particular importance to consumers.
    Comments regarding each of the ancillary services that the 
Department proposed to consider critical to consumers' purchasing 
decisions and comments on additional ancillary services are discussed 
in sections E (3)(a) through E (3)(d).
    DOT Response: The Department has determined that it is appropriate 
to provide a definition of ``critical ancillary service'' in this final 
rule. This final rule defines critical ancillary service to mean ``any 
ancillary service that is critical to consumers' purchasing decisions'' 
and identifies transporting the first checked bag, second checked bag, 
and carry-on bag and changing and cancelling a reservation as critical 
ancillary services. In addition, the Department addresses the potential 
for future adoption by airlines of additional ancillary service fees 
that may be critical to consumers' purchasing decisions by including in 
the definition of critical ancillary service ``any other services 
determined, after notice and opportunity to comment, to be critical by 
the Secretary.''
    Regarding the impact of this rule on ULCCs, the Department does not 
agree with some commenters' view that this rule will unfairly 
disadvantage ULCCs. Rather than placing ULCCs at a competitive 
disadvantage, the Department expects that this rule will promote 
competition by making fees for critical ancillary services more 
transparent for consumers. This will allow consumers to evaluate 
whether to purchase air transportation on a given carrier, including a 
ULCC, with the benefit of more complete up-front pricing information. 
Given the benefits of the ``unbundled'' ULCC model that Frontier and 
others touted in their comments, improved transparency should not cause 
ULCCs to fundamentally alter such a business model (i.e., changing from 
an unbundled model to a bundled model). Moreover, nothing in this final 
rule requires them to do so.
    The Department is not adopting in this final rule the 
recommendation of some consumer organizations to require airlines and 
ticket agents to display a total fare that is inclusive of all 
ancillary fees selected by the consumer. Currently, some airlines apply 
different baggage fees depending on when and where the ancillary 
service is purchased (e.g., in advance, at the airport, etc.), which 
may make display of a single fare, inclusive of baggage fees, 
impracticable. In addition, requiring a ticket agent to display a total 
``fare'' that

[[Page 34640]]

includes baggage that cannot be purchased with the ticket on its site 
could result in consumer confusion about the cost of the fare purchased 
and what it includes.\88\ Further, change and cancellation fees, which 
also may vary based on the circumstances of the change or cancellation 
for any given ticket, may be less useful incorporated into the fare 
presented because the consumer is unlikely to know at the time of 
ticket purchase whether they will change or cancel their ticket, and 
the applicability of certain fees may be mutually exclusive (e.g., a 
fee to cancel a ticket 30 days in advance and a fee to cancel a ticket 
on the day of travel cannot both be imposed).
---------------------------------------------------------------------------

    \88\ This final rule does not require baggage fees to be 
transactable by ticket agents for the reasons discussed in section E 
(7).
---------------------------------------------------------------------------

(a) Transporting First Checked Bag, Second Checked Bag, and Carry-On 
Bag
    Proposal: The Department proposed to treat fees for a first 
checked, second checked, and a carry-on bag as critical ancillary fees 
that airlines and ticket agents must disclose to consumers with fare 
and schedule information. This proposal was intended to replace the 
existing requirement for carriers and ticket agents to provide a 
generic notice during the booking process that baggage fees may apply 
and where the consumer can find these fees on the carrier's website.
    In proposing to treat fees for a first checked bag, second checked 
bag, and carry-on bag as critical, the Department noted that consumer 
commenters to the Department's 2014 NPRM most commonly identified these 
baggage fees as critical, and such fees continue to serve as a leading 
source of consumer complaints regarding ancillary fees to the 
Department.\89\ The Department further explained that the cost of 
baggage fees is often material to consumers and likely to affect their 
purchasing decisions. In addition, the Department noted that, although 
the 2011 final rule improved consumer access to baggage fee information 
by requiring airlines and ticket agents to display the fees for first 
checked, second checked, and carry-on bags on their websites, airlines 
and ticket agents often disclose those fees in static form in charts 
that are confusing to consumers and may be provided outside of the 
booking flow. The Department also noted that consumers continue to 
report confusion regarding the total cost of baggage fees in connection 
with complex itineraries, interline tickets, and codeshare flights.
---------------------------------------------------------------------------

    \89\ See Number of Consumer Complaints Received by the U.S. 
Department of Transportation Office of Aviation Consumer Protection 
Regarding Ancillary Fees, 2019-May 31, 2023, available in docket at 
https://www.regulations.gov/docket/DOT-OST-2022-0109.
---------------------------------------------------------------------------

    Comments: Industry commenters were split on whether the fees for 
first checked bag, second checked bag, and carry-on bag are critical to 
consumer's purchasing decisions. Airlines and airline associations 
generally took the position that such fees were not critical. Some 
ticket agents agreed with the Department's preliminary conclusion that 
fees for first checked bag second checked bag, and carry-on bag are 
critical; other ticket agents disagreed.
    Industry commenters who stated that fees for first checked bag, 
second checked bag, and carry-on bag are not critical to consumers' 
purchasing decisions asserted that such fees are already available 
under existing industry practices and regulatory requirements and that 
consumers are aware of the existence of baggage fees. For example, Air 
Canada stated that ``baggage fee information is already transparent and 
fully disclosed on a carrier's website where passengers have easy 
access to relevant information,'' citing to its own general baggage fee 
disclosures. Frontier Airlines noted that it discloses ancillary fee 
information to consumers during the booking process before purchase. 
Similarly, American Airlines commented that it currently provides 
itinerary- or passenger-specific baggage fees before purchase, and IATA 
stated at the Department's March 30, 2023, public hearing that one 
large international carrier found that 98 percent of the visits to that 
airline's websites exposed passengers to the pages with fees on 
baggage, seat selection, and refund policies, while the remaining two 
percent of consumers did not go far enough in the booking flow to see 
these fees. At that hearing, A4A added that many consumers are members 
of loyalty programs and are already aware of the ancillary structures 
of their preferred carriers. Further, Air Canada commented that the 
decrease in checked baggage and increase in carry-on baggage since the 
addition of checked baggage fees--documented in a GAO study that the 
Department cited in the NPRM--``supports a logical conclusion that 
consumers are evidently aware of checked-baggage fees.'' Air Canada 
also stated, however, that ``[c]alculation of baggage fees is a complex 
process and the display of this information on the first page where 
fares are shown cannot be calculated in certain instances until the 
carriers are chosen, such as on a multi-carrier itinerary.'' IATA 
raised similar concerns about the complexity of calculating these fees.
    These commenters added that, in their view, the number of 
complaints related to baggage fee disclosures and the number of 
passengers who travel without baggage demonstrate that such fees are 
not critical. For example, Frontier Airlines asserted that the number 
of baggage fee complaints received by the Department was ``de 
minimis.'' Similarly, IATA testified at the Department's March 30, 
2023, public hearing that in 2022, 3.64 percent of airline complaints 
related to baggage, with a vast majority pertaining to baggage fee 
refunds, and Booking Holdings reported that approximately 0.1 percent 
of the U.S. complaints received by Priceline in 2022 related to baggage 
fees. In addition, A4A testified at the Department's March 30, 2023, 
hearing that the lack of civil penalties against U.S. airlines 
demonstrated the absence of a market failure requiring additional 
regulation. Frontier Airlines further stated in its hearing testimony 
and in written comments that over 40 percent of Frontier's passengers 
do not pay any seating and baggage fees, fewer than 30 percent purchase 
a first checked bag, fewer than five percent purchase a second checked 
bag, and fewer than 20 percent purchase a carry-on bag. Further, 
American Airlines commented that ``the majority of travelers on 
American Airlines do not check any luggage, and less than a quarter of 
travelers on American [Airlines] actually have to pay for any checked 
bags.''
    A lack of use by consumers of Google's baggage filter tool was also 
cited by A4A in its testimony at the Department's March 30, 2023, 
hearing as evidence that baggage fees are not critical to consumers' 
purchasing decisions. Google had commented that only 1.3 percent of the 
consumers conducting a search on Google Flights use a feature that 
enables consumers to integrate bag fees into the displayed costs for 
flights. Google provided this data to support its suggestion that the 
Department ``consider deferring the disclosure [of ancillary service 
fees] until after a specific itinerary has been selected.'' Google did 
not assert that transporting baggage is not a critical ancillary 
service. Further, in a supplemental response, Google presented the 
results of a 2018 survey it conducted of U.S. consumers which showed 
that 54% of people decide about baggage for travel prior to ticket 
purchase.
    Similarly, other industry commenters who agreed with the 
Department's preliminary conclusion that fees for first

[[Page 34641]]

checked, second checked, and carry-on baggage are critical to 
consumers' purchasing decisions generally stated that baggage was the 
most common type of ancillary service used by consumers. For example, 
Travel Tech stated that ``baggage fees are the most important ancillary 
fees'' for most passengers because ``[a]lmost all airline passengers 
travel with some amount of baggage, whether carry-on or checked, and 
baggage fees often constitute a practical limit on what consumers can 
carry with them on trips or what they can bring back from a 
destination.'' Though it agreed that baggage fees are important to 
consumers, Travel Tech testified at the Department's March 30, 2023, 
public hearing that, based on a survey it conducted, 90 percent of U.S. 
adults are aware of the possibility of paying additional fees for 
optional services beyond the cost of their airline ticket. But Travel 
Tech acknowledged that the study did not ask whether consumers were 
aware of the amount of such fees. Also supporting the importance of 
baggage fees, Skyscanner reported that its internal user research 
demonstrated that ``many users are much more concerned about baggage 
allowances and fees than any single other type of ancillary fee,'' with 
84 percent of surveyed users stating it was important to know whether a 
ticket price includes checked baggage. Similarly, Google reported that 
in a survey it conducted of U.S. consumers in 2018, 71 percent planned 
to check one bag, six percent planned to check more than one bag, and 
21 percent did not plan to check any baggage.
    Groups representing consumers and some individual consumers also 
supported the Department's proposal to treat fees for a first checked 
bag, second checked bag, and carry-on bag as critical and to require 
improved disclosures of those fees. For example, at the Department's 
March 30, 2023, hearing, an American Economic Liberties Project (AELP) 
representative stated that at the nonprofit organizations where he 
worked including AELP, he heard from many air travelers who were 
unaware of fees charged by the ULCCs, including fees for carry-on 
baggage. This representative further testified that while awareness of 
checked bag fees has risen, carry-on baggage fees continuously confound 
travelers and that both consumer organizations where he recently worked 
receive many complaints from consumers about carry-on and checked 
baggage fees. This representative cited one instance in which a 
passenger on Spirit Airlines reported that he had to leave his carry-on 
bag in his car at the airport because he did not have enough money for 
the carry-on baggage fee and assumed that only checked bags incurred 
fees. The Department notes that in response, Spirit Airlines commented 
that AELP did not provide a date for this incident and stated that it 
did not appear to be consistent with current consumer knowledge about 
unbundled fares. The AELP representative added that many travelers fly 
less than once a year and do not understand the intricacies of flying 
and are confused by ancillary fees. In addition, FlyersRights testified 
that improved disclosure of the ancillary fees proposed in the NPRM 
would decrease consumer confusion and allow airlines to compete based 
on the total cost of a ticket.
    Similarly, most individual consumers who commented on this aspect 
of the proposal requested improved baggage fee disclosures for reasons 
including that, in their view, it is rare for consumers to travel with 
no bags at all, baggage fees can significantly increase the total cost 
of air travel, and improved disclosures would enable comparison 
shopping. For example, one consumer expressed being surprised with fees 
for checked baggage and stated that requiring disclosure of baggage 
fees when airlines and ticket agents first provide itinerary search 
results ``would be immensely helpful in comparing prices via airfare 
website searches'' and cited his experience purchasing a flight on a 
ticket agent's website, only to discover after purchase that 
undisclosed baggage fees made the overall cost of travel higher than on 
another airline that the consumer had passed over during the search 
process.
    Finally, AARP generally supported the Department's baggage fee 
disclosure proposal but also asked DOT to prohibit first checked bag 
fees entirely, and members of the Commissioned Officers Association of 
the U.S. Public Health Service (USPHS) asked DOT to encourage airlines 
to waive baggage fees for all members of the uniformed service, 
including the USPHS.
    DOT Response: The Department has determined that fees for a first 
checked, second checked, and carry-on bag are critical to a consumer's 
purchasing decision. The Department disagrees with industry commenters' 
assertion that the first checked bag, second checked bag, and carry-on 
bag are not critical, and that their disclosure is unnecessary. 
Consumers have voiced concerns that the fees for these bags can 
significantly increase the total price of the airfare beyond what was 
offered at the time of itinerary search. While estimates of the 
percentage of consumers who travel with a first checked bag, second 
checked bag, or carry-on bag vary among commenters, most comments 
support the conclusion that many consumers travel with a first checked, 
second checked, and/or carry-on bag. Statements by Travel Tech and 
others that most consumers travel with at least one type of baggage are 
supported by Google's comment that its survey reflects that 71 percent 
of U.S. consumers plan to check a bag on an upcoming trip. Skyscanner's 
internal survey and comments from consumer advocates and individual 
consumers provide further support for the conclusion that these fees 
are critical to consumers' purchasing decisions. Given this 
information, the Department is not persuaded by airlines' arguments 
that fees for a first checked bag, second checked bag, and carry-on bag 
are unimportant to consumers based on the percentage of consumers 
conducting a search on Google Flights for baggage information and the 
number of passengers who travel without baggage.
    In addition, as discussed in section B, GAO has documented that 
baggage fees have shifted consumers' purchasing behavior by encouraging 
consumers to bring only a carry-on bag to avoid checked bag fees. Air 
Canada cited this GAO study as support for its view that passengers are 
aware of the existence of baggage fees, and Travel Tech similarly 
reported that its own survey indicated that 90 percent of consumers 
were aware that ancillary fees may be charged. However, neither the GAO 
study nor any of the comments submitted provide evidence that consumers 
are aware of the amount of the fees for first checked, second checked, 
and carry-on baggage at various airlines. Indeed, the complexity that 
Air Canada and IATA observed that carriers face in calculating baggage 
fees is likely even more burdensome to consumers who try to calculate 
the fees applicable to their itineraries based often on static 
information provided by carriers and ticket agents.
    In addition, some airlines now charge passengers for carry-on 
baggage. Indeed, on some carriers, the fees for a carry-on bag may be 
more costly than a first checked bag, which may surprise consumers who 
are accustomed to carrying on bags without charge.\90\ These 
developments further demonstrate the need for carriers and ticket 
agents to disclose the fees for a

[[Page 34642]]

first checked bag, a second checked bag, and a carry-on bag to 
consumers so that consumers understand how baggage fees may affect the 
total cost of their airfare and are able to determine which carrier's 
flight option best suits their circumstances.
---------------------------------------------------------------------------

    \90\ See Comments of Spirit Airlines at 12; see also Enhancing 
Transparency of Airline Ancillary Service Fees Regulatory Impact 
Analysis RIN 2105-AF10, Table 1, available at https://www.regulations.gov/document/DOT-OST-2022-0109-0002.
---------------------------------------------------------------------------

    The Department concludes that existing required disclosures do not 
adequately address the harm to consumers. Carriers and ticket agents 
are currently not required to provide fees for a first checked bag, a 
second checked bag, or a carry-on bag in a manner that is readily 
available when consumers are considering a given fare and itinerary. 
Instead, fees are often provided in static charts that confuse 
consumers and do not provide adequate information about the fees that 
apply based on the consumer's passenger-specific information. The fact 
that some carriers may voluntarily provide passenger-specific baggage 
fee information required by this new rule is not a reason for the 
Department not to require its disclosure by all ticket agents and 
airlines.
    The Department rejects airline commenters' argument that the number 
of complaints related to baggage fee disclosures and lack of civil 
penalties for baggage fee violations demonstrate that such fees are not 
critical. As explained in section B, the number of complaints is only 
one consideration used to determine whether the Department should 
address an unfair or deceptive practice through regulation. Also, the 
Department does not view the lack of civil penalties against U.S. 
carriers under existing regulatory requirements to demonstrate that a 
regulation is not needed. The lack of civil penalties under existing 
rules could instead provide further support for the Department's 
conclusion that its concerns with existing ancillary fee disclosures 
are not adequately addressed by existing regulations.
    The Department is not adopting recommendations by AARP to prohibit 
fees for a first checked bag and by the Officers Association of the 
USPHS to encourage airlines to waive fees for its members because those 
recommendations are beyond the scope of this rulemaking.
(b) Changing and Cancelling a Reservation
    Proposal: In the NPRM, the Department identified fees for changing 
or canceling a reservation as being critical to consumers when they 
choose among air transportation options. The Department proposed to 
require carriers and ticket agents to disclose change and cancellation 
fees and policies to consumers during the booking process when fare and 
schedule information is provided.
    In proposing to treat these services as critical, the Department 
shared its view that not disclosing to passengers upfront the 
significant fees that they would incur should they need to change or 
cancel the reservation is an unfair and deceptive practice. The 
Department explained that carriers are currently not required to 
provide consumers with change or cancellation fee information until 
after ticket purchase. In addition, the Department noted that although 
carriers may have separate web pages that list change and cancellation 
fees, this information is permitted to be provided in a range. The 
Department added that, even if not provided in a range, change and 
cancellation fees may not be simple to understand, as fare categories, 
passenger status, ticket type, and other factors may impact the 
applicable change and cancellation fees. Further, the Department 
explained that carriers are currently permitted to display change and 
cancellation fees outside the booking flow, which disrupts passengers' 
searches and costs them time. Finally, the Department reported that 
change and cancellation fees are among the top three types of ancillary 
service complaints it receives.
    Comments: Groups representing consumers generally supported the 
Department's proposal to consider change and cancellation fees to be 
critical to the consumer's purchasing decision and to require airlines 
and ticket agents to display such fees to consumers. A joint comment 
from multiple groups representing consumers noted that improved 
disclosure of change and cancellation fees ``would benefit consumers, 
particularly because many travelers may not budget for such fees when 
booking flights.'' This comment further observed that, based on data 
from the Department's Bureau of Transportation Statistics (BTS), air 
carriers collected nearly $3 billion in revenue from these charges in 
2019.\91\ The commenter asserted that while some airlines had modified 
their change and cancellation policies due to COVID-19, the changes 
were limited, with many airlines still applying these fees to the 
lowest-tier fares. In addition, FlyersRights testified at the 
Department's March 30, 2023, public hearing that disclosure of the 
critical ancillary fees identified in the NPRM would decrease consumer 
confusion and improve competition in the market. AARP also supported 
the proposed requirement for carriers and ticket agents to display 
change and cancellation fees but asked the Department to work to reduce 
or eliminate change and cancellation fees.
---------------------------------------------------------------------------

    \91\ Citing ``Reservation Cancellation/Change Fees by Airline 
2021,'' Bureau of Transportation Statistics. May 2, 2022, https://www.bts.gov/newsroom/reservation-cancellationchange-fees-airline-2021.
---------------------------------------------------------------------------

    In contrast, airlines and their associations generally opposed the 
Department's proposal to treat ticket changes and cancellations as 
critical ancillary services. These commenters asserted that such 
services are not critical because few passengers change or cancel 
flights, and complaints regarding change and cancellation fees 
represent a small percentage of the overall number of complaints 
submitted to the Department. In addition, airlines and their 
associations stated that airlines already provide disclosure of change 
and cancellation fees on their websites, consumers are already aware of 
the potential costs associated with changing or cancelling a flight, 
and many carriers have removed these fees since the emergency of the 
COVID-19 pandemic. Among these commenters, American Airlines noted that 
15 percent of its passengers change or cancel flights, and Frontier 
testified at the Department's March 30, 2023, hearing that fewer than 
10 percent of its passengers paid change or cancellation fees. A4A 
testified at the same hearing that the cancellation fee complaints to 
the Department included in the docket do not appear to be related to 
transparency and represent a small percentage of the overall number of 
passengers, and so, in its view, the mandatory display of those fees is 
unnecessary.
    Ticket agents and their associations offered different views on 
whether change and cancellation fees are critical to consumers' 
purchasing decisions and should be displayed. Amadeus stated that 
change and cancellation fees are critical to consumers' purchasing 
decisions, and Travel Tech supported disclosure of these fees before 
purchase. However, the U.S. Travel Association stated that the fees 
identified by the Department ``are incidental and not `critically 
important' to air transportation.'' In addition, at the Department's 
March 30, 2023, public hearing, Skyscanner expressed concern that 
disclosing only a fixed change fee without also disclosing the 
applicable fare difference, which would necessarily be unknown at the 
time of purchase, would provide incomplete information to consumers and 
cause confusion. Air Canada made a similar argument in its written 
comments.
    Three of the four ACPAC members expressed the view that ticket 
change

[[Page 34643]]

and cancellation fees were critical to consumers. The ACPAC Chair, who 
is also the member representing state governments, stated that the 
ability to change and cancel a ticket was more important to consumers 
now due to an increase in flight cancellations and the potential for an 
increase in infectious disease numbers. The ACPAC had several 
recommendations related to ticket change and cancellation, which are 
discussed in later sections.
    DOT Response: The Department has determined that the fees imposed 
on a consumer to change or cancel a ticket (i.e., passenger-initiated 
changes or cancellations) \92\ are critical to a consumer's purchasing 
decision, and this final rule maintains the proposed requirement that 
airlines and ticket agents must disclose these fees to consumers. The 
Department is not persuaded by industry commenters who stated that 
change and cancellation fees are not critical, and disclosure is 
unnecessary. The Department agrees with the commenters who stated that 
change and cancellation fees can pose a significant, unexpected 
financial burden to consumers and that improved transparency will 
reduce consumer confusion and promote competition.
---------------------------------------------------------------------------

    \92\ When referring to change or cancellation fees or policies, 
this rule is referring to consumer- or passenger-initiated changes 
or cancellations of tickets. This rule does not address changes or 
cancellations initiated by carriers.
---------------------------------------------------------------------------

    As noted in section B, the number of complaints is only one 
consideration used to determine whether the Department should address 
an unfair or deceptive practice through regulation. Nor do the 
calculations by some airlines that 10-15 percent of their passengers 
change or cancel flights suggest that change and cancellation fees are 
not critical given the significant financial cost that change and 
cancellation fees impose to those passengers who are subject to them. 
In addition, existing disclosure requirements do not address this 
issue. As the Department noted in the NPRM, existing regulations do not 
require airlines or ticket agents to disclose specific change and 
cancellation fees during the booking process before ticket purchase. 
There are no existing rules for ticket agents to provide change and 
cancellation fees, and the existing rules allow airlines to provide 
change and cancellation fees in ranges rather than specific amounts, 
making it difficult for consumers to determine the fee that would apply 
to their ticket.
    The Department is not persuaded that it should defer regulation in 
this area because some carriers have eliminated change and cancellation 
fees. These carriers could re-impose such fees in the future. Further, 
some carriers that have eliminated change and cancellation fees have 
not done so for all their flights. For example, these carriers may 
charge change or cancellation fees for international flights that do 
not originate from designated locations. Also, many passengers who 
purchase tickets in the lowest fare categories continue to be subject 
to either change and cancellation fees or outright prohibitions on 
changing or cancelling their reservations.
    The Department agrees with those commenters who noted that 
providing change fee information without information about the 
requirement to pay a fare difference may create consumer confusion. 
Because the amount of any fare difference cannot be calculated until a 
replacement flight is selected, the amount of the fare difference will 
necessarily be unknown at the time of initial ticket purchase. To 
reduce any potential for consumer confusion, this final rule requires 
airlines and ticket agents to disclose in the summary of its change 
policies that a fare difference may apply, if that is the case, and to 
make other related disclosures before ticket purchase. These 
requirements are discussed further in section E (4)(b).
(c) Obtaining Adjacent Seats for Families Traveling With Young Children
    Proposal: The Department proposed that a fee for a child 13 or 
younger to be seated adjacent to an accompanying adult in the same 
class of service is a critical ancillary fee that airlines and ticket 
agents must disclose to consumers with the fare and schedule 
information. Under the proposal, if the carrier does not impose a fee 
for children 13 or under to be seated next to an accompanying adult, no 
seat fee disclosure would be required for the carrier's flights. If the 
carrier does impose a fee to make an advance seat assignment for a 
child 13 or under, the NPRM noted that the carrier could comply with 
the proposed rule by enabling consumers to indicate whether they were 
traveling with a child prior to initiating a search, or by displaying 
seat fees for all itinerary searches, regardless of whether a consumer 
indicated that he or she would be traveling with a child.
    Comments: The overwhelming majority of commenters opposed the 
Department's family seating fee disclosure proposal in the NPRM. 
Hundreds of individuals and multiple consumer advocacy organizations, 
including the U.S. PIRG Education Fund, opposed the proposal on the 
basis that the Department should prohibit family seating fees for air 
travel instead of requiring fee disclosure. Individual commenters 
expressed concern with the safety of minors and the comfort of families 
and other passengers when children 13 or younger are seated away from 
an accompanying adult on an aircraft. Consumer advocates raised similar 
concerns. For example, AELP testified at the Department's March 30, 
2023, public hearing that there are serious health and safety issues 
with seating young children alone and stated that the Department should 
not be guided by the quantity of complaints it receives on family 
seating. The few consumer advocates that supported the Department's 
proposal similarly recommended that the Department ultimately limit or 
prohibit family seating fees, with AARP noting that it viewed the 
proposed disclosures as ``an essential first step'' but also asking the 
Department to take further action to reduce or eliminate such fees in 
the future. A joint comment from multiple State attorneys general 
supported improved seat disclosures but asked DOT to modify its 
proposal to require that initial search results provide the lowest fee, 
if any, to book two adjacent seats, along with an additional disclosure 
if adjacent seats are unavailable.
    Many industry commenters raised concerns about the expense and 
technical challenges of providing dynamic seat fees at the first page 
of search results and the cost of establishing direct, real-time 
connections between ticket agents and airlines necessary to facilitate 
such disclosures. IATA stated that the Department's family seating 
proposal would impose a greater burden on airlines than the proposals 
to require disclosure of baggage, change, and cancellation fees 
``because the search [for adjacent seating] is twofold: the fees for 
each seat on each flight presented in an itinerary as well as a search 
to determine whether there are two or more seats together at the time 
of the initial search.'' ATPCO explained that ``a channel would need at 
or near real-time seat maps and seat pricing for every possible 
airline's flight for every itinerary evaluated at the time of the 
shopping request'' to provide seat fees at first search. Skyscanner 
explained that determining a family seating fee would require a complex 
search of highly dynamic seat fees of varying costs and a query of 
availability, suggesting that, as an alternative, the Department should 
require disclosure of the cost of a standard seat and not at the time 
of first

[[Page 34644]]

search. Among other commenters, Air Canada and IATA stated that GDSs 
are currently unable to support the distribution of dynamic seat fee 
information. Industry commenters also expressed concerns that providing 
family seating fees at the time of first search would overwhelm 
consumers and provide information that would be irrelevant to many 
passengers who are not traveling with children. Several industry 
commenters also stated that consumers rarely consider seats relevant at 
the beginning of their itinerary search, with Google citing a user 
survey it had conducted in support of that position.
    Airlines and their representatives generally opposed all aspects of 
the Department's family seating proposal. Airlines stated that current 
airline policies generally already provide for family seating without 
fees; the display of a ``family seating fee'' may confuse passengers 
about the need to purchase a seat to guarantee seating next to a young 
child; and what these commenters characterized as the low number of 
family seating complaints and low number of passengers traveling with 
young children demonstrated no problem with existing disclosures. 
American Airlines asserted that it could not disclose family seating 
fees because ``they do not exist'' separate from advance seating fees 
for all other passengers and noted its efforts to seat young children 
with an accompanying adult.
    Amadeus, Travelport, and Travel Tech asked that DOT expand its 
family seating proposal to require airlines to either share all seat 
fees or the fees for the cost of an adjacent seat generally, without 
regard to whether the passenger is traveling with a child 13 years old 
or younger. None of those commenters, however, supported displaying 
seat fees on the first page of search results.
    At its January 12, 2023, meeting, the ACPAC recommended that the 
Department's proposal regarding the disclosure of family seat fee 
information should be retained in any final rule that may be adopted.
    DOT Response: DOT has decided not to move forward with its proposal 
to require carriers and ticket agents to disclose applicable fees for 
passengers 13 or under to be seated next to an accompanying adult on an 
aircraft. Instead, the Department is pursuing a separate rulemaking to 
address the ability of a young child to sit adjacent to an accompanying 
adult at no additional cost beyond the fare.\93\
---------------------------------------------------------------------------

    \93\ See Fall 2023 Unified Agenda for rulemaking titled ``Family 
Seating in Air Transportation'' (RIN 2105-AF15) at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AF15.
---------------------------------------------------------------------------

    In addition to pursuing a new rulemaking, the Department has taken 
other steps to encourage airlines to ensure that children 13 or younger 
are seated adjacent to an accompanying adult at no additional cost 
subject to limited conditions. On July 8, 2022, the Department's OACP 
issued a notice urging airlines to do everything they can to allow 
young children to be seated next to an accompanying adult with no 
additional charge.\94\ On March 6, 2023, the Department launched its 
Airline Family Seating Dashboard, that highlights whether airlines 
guarantee fee-free family seating,\95\ and on March 10, 2023, the 
Department sent a proposal to Congress recommending legislation to 
require fee-free family seating subject to limited exceptions.\96\
---------------------------------------------------------------------------

    \94\ See https://www.transportation.gov/individuals/aviation-consumer-protection/family-seating/June-2022-notice. That notice was 
issued in response to section 2309 of the FAA Extension, Safety and 
Security Act of 2016, which required DOT to review U.S. airline 
family seating policies and, if appropriate, establish a policy 
directing air carriers to establish policies enabling a child 13 or 
under to be seated next to an accompany family member, subject to 
certain limitations.
    \95\ See https://www.transportation.gov/airconsumer/airline-family-seating-dashboard.
    \96\ See https://www.transportation.gov/sites/dot.gov/files/2023-03/Bill_Family%20Seating%20Proposal_final.pdf.
---------------------------------------------------------------------------

    Given these actions by the Department to enable parents to sit next 
to their young children without paying fees, the Department does not 
see value to requiring airlines and ticket agents to display dynamic 
family seating fees in this final rule. In addition, the Department 
does not expand disclosure requirements to seat fees or adjacent seat 
fees more generally, as requested by some commenters, for the reasons 
discussed in section E (3)(d).
(d) Consideration of Additional Ancillary Services
(i) Seat Selection
    Proposal: The Department explained in the NPRM its tentative view 
that ``disclosure of an advance seat assignment fee at the beginning of 
a booking process is generally not needed because airlines are required 
to provide a seat with the cost of the air transportation.'' \97\
---------------------------------------------------------------------------

    \97\ 87 FR 63726.
---------------------------------------------------------------------------

    Comments: Comments from some ticket agents and groups representing 
consumers, along with a few individual consumers, requested that the 
Department consider all seating fees to be critical, not only the fees 
for family seating as proposed. Some of those commenters identified 
additional groups of passengers for whom adjacent seat assignments are, 
in their view, critical. For example, Amadeus stated that adjacent 
seating fees may be critical for caregivers or family members of 
individuals with disabilities or the elderly. Travel Tech similarly 
identified individuals traveling with the elderly as well as ``a newly-
wed couple on a 17-hour honeymoon flight or business partners who need 
to sit together to work during the flight.'' The U.S. PIRG Education 
Fund expressed its support for ``up-front disclosure of adjacent 
seating fees involving adult relatives, friends or colleagues.''
    In addition, some of these commenters identified reasons that 
consumers may wish to select their seats when traveling alone. Among 
those commenters, Travel Tech stated that this may include ``passengers 
who need to sit near the front of the plane to make a connecting flight 
or passengers who need to be near the restroom for health reasons.'' 
FlyersRights commented that consumers may want to select seats to have 
more legroom or to sit near the front of the plane or an emergency 
exit. GBTA stated that seat selection could be considered critical for 
business travelers.
    On the other hand, AARP agreed with the Department's preliminary 
assessment in the NPRM that disclosure of general seat selection fees 
at the beginning of the booking process was not critical. Instead of 
requiring disclosure of seating fees, AARP requested that DOT require a 
clear disclosure ``wherever advance seat selections are made available, 
that consumers do not need to pay an additional fee unless they want to 
reserve a particular seat.'' AARP recommended this addition to reduce 
consumer confusion, explaining that ``customers are often provided with 
a limited range of seats to choose from, many or all of which require a 
fee to reserve'' and ``may believe that there are no `free' seats 
available and may purchase an advance seat reservation out of concern 
that they will not be provided with a seat.''
    As discussed above, airlines and other industry commenters raised 
concerns about the costs and technological challenges of displaying 
dynamic seat fees in the context of the Department's family seating 
proposal. These concerns would be equally applicable to required 
disclosure of adjacent seating fees or individual seating fess more 
generally. In addition, consistent with its comments on family seating 
fees, American Airlines specifically asked the Department not to expand 
its list of

[[Page 34645]]

covered critical ancillary fees to include seating fees more generally.
    DOT Response: The Department has considered the comments stating 
that seating fees are critical to consumers purchasing decisions. Given 
that the cost of air transportation includes a seat and the lack of 
clarity about the importance of seat selection fees to consumers, the 
Department is not requiring carriers or ticket agents to disclose 
seating fees as required critical ancillary service fees in this final 
rule. In making this determination, the Department also took into 
account the concerns raised by industry commenters about the challenges 
of displaying dynamic seating fees discussed in section E (3)(c). The 
Department intends to monitor this issue for possible future action if 
warranted. Regarding passengers with disabilities, the Department notes 
that carriers are already required to provide seating accommodations 
that meet passengers' disability-related needs under the Air Carrier 
Access Act and its implementing regulation, 14 CFR part 382. These 
required accommodations include an adjoining seat for a personal care 
attendant who performs a function for a passenger with a disability 
that is not required to be performed by airline personnel, a reader for 
a passenger who is blind or has low vision, an interpreter for a 
passenger who is deaf or hard-of-hearing, or a safety assistant, if 
needed.
    Finally, the Department agrees with AARP that the option to 
purchase seats could confuse consumers, who may think that a seat 
purchase is necessary. The Department has determined that it is a 
deceptive practice in violation of section 41712 for a carrier or 
ticket agent to fail to disclose that the purchase of a seat is not 
required for travel, particularly when consumers are provided seats 
from which to choose where many, if not all, of those seats require a 
fee to reserve. Without a clear disclosure, a reasonable consumer being 
offered seats to reserve where many of these seats must be purchased 
would be misled to believe that an advance seat assignment purchase is 
required to have a confirmed seat on the flight. The lack of disclosure 
that consumers will be assigned a seat without additional payment is 
material as this omission is likely to result in consumers 
unnecessarily paying a fee for a seat. Accordingly, this final rule 
requires airlines and ticket agents to make the following disclosure 
clearly and conspicuously when a consumer is offered a seat selection 
for a fee: ``A seat is included in your fare. You are not required to 
purchase a seat assignment to travel. If you decide to purchase a 
ticket and do not select a seat prior to purchase, a seat will be 
provided to you without additional charge when you travel.''
(ii) Other Ancillary Services
    Proposal: The Department did not propose ancillary services, beyond 
transporting a first checked, second checked, and/or carry-on bag, 
changing or canceling a reservation, and obtaining adjacent seating 
when traveling with a young child, to be critical. However, the 
Department sought comment on whether the ancillary services proposed to 
be critical in the NPRM should be expanded or limited.
    Comments: Airline commenters generally opposed expanding the 
ancillary services to be considered critical to a consumer's purchasing 
decision. The Department received only limited support for adding other 
specific ancillary fees to the list of ancillary services proposed to 
be covered as critical in the NPRM. A few individual commenters asked 
the Department to include fees for food and a drink as well as in-
flight wi-fi as critical ancillary service fees. In addition, GBTA 
stated that wi-fi and priority boarding could be considered critical 
for business travelers. Finally, the Aircraft Owners and Pilots 
Association asked that the rule be expanded to cover all general 
aviation parking fees and the location of parking aprons at airports. 
Comments suggesting the Department limit the ancillary services 
proposed to be critical are discussed in section E (3)(d)(iii).
    DOT Response: The Department declines to expand in this final rule 
the list of specific critical ancillary fees beyond those identified in 
its proposal as the record does not support considering fees for food, 
drinks, wi-fi, priority boarding, or parking fees as critical ancillary 
service fees as suggested by a few commenters. As discussed in the next 
section, the Department may determine that additional ancillary fees 
are critical after notice and an opportunity for comment. The 
Department maintains the existing requirement that airlines must 
disclose the fees for all ancillary services on their websites. 
Carriers and ticket agents are encouraged to provide consumers with a 
clear and conspicuous link to this existing website during the booking 
process before ticket purchase. Airlines will continue to be allowed to 
provide the fees for ancillary services, aside from baggage, in a range 
on this page. Consumers will be provided the specific fees that apply 
to them for all critical ancillary services when the fare and schedule 
information is provided following an itinerary search.
(iii) Future Ancillary Services
    Proposal: The Department solicited comment on whether its proposed 
list of critical ancillary fees should, among other things, address 
future adoption by airlines of additional ancillary service fees. The 
Department also asked how to ensure their disclosure to the extent that 
they are of critical importance to consumers.
    Comments: Multiple consumer groups asked the Department to require 
airlines and ticket agents to display additional ancillary service fees 
in the future to the extent that the fees become more prevalent or are 
of particular importance to consumers. FlyersRights suggested the 
Department require carriers and ticket agents to display any fee that 
comprises two percent of all reporting carriers' revenue or five 
percent of any single airline's revenue, stating that its proposal was 
intended to address its concern that ``airlines may innovate new ways 
to break up the base fare into additional ancillary fees.'' Similarly, 
a joint comment from multiple groups representing consumers asked the 
Department to require disclosure of fees that exceed two percent of a 
covered entity's revenue according to BTS reporting and to adopt a 
regular review schedule to periodically update the covered ancillary 
fees with feedback from consumer advocates. In addition, multiple State 
attorneys general requested that the Department adopt an open-ended 
provision requiring disclosure of ``fees associated with any products 
or services that a reasonable traveler might foreseeably consider 
necessary.''
    On the other hand, American Airlines opposed any expansion of the 
list of critical ancillary fees from the NPRM. It stated that expanding 
the list would ``further complicate the search queries, slowing the 
return of search results and cluttering displays'' and provide minimal, 
if any, benefit to consumers. American Airlines asked the Department to 
rely on enforcement actions, rather than regulation, to address any 
innovations in ancillary fees that result in significant consumer 
complaints.
    DOT Response: Based on the comments received, the Department has 
not identified any fees beyond fees for transporting a first checked 
bag, a second checked bag, and a carry-on bag and fees for changing and 
cancelling a ticket that are currently critical to consumers' 
purchasing decisions. The Department agrees with those commenters who 
stated that the Department should have a method for regulating fee 
transparency for any

[[Page 34646]]

ancillary services critical to consumers' purchasing decisions in the 
future. The Department disagrees, however, with those commenters who 
suggested that the Department should establish a fixed interval to 
reevaluate the fees for critical ancillary services. The Department 
receives regular feedback from stakeholders, including through the 
ACPAC, and monitors trends in consumer complaints filed with the 
Department. If these or other sources suggest that disclosure of 
additional ancillary services fees early in the purchasing process is 
needed based on evolving industry practices, the Department can provide 
notice and take comment at that time. The regularity with which the 
Department hears from stakeholder groups renders it unnecessary to 
establish a fixed time interval for re-evaluating ancillary fees.
    The Department is also not persuaded by comments urging the 
Department to require disclosure of ancillary fees that reach a certain 
threshold of airline revenue because carriers could design their fee 
structures in a manner to avoid any pre-established threshold. In this 
final rule, the Department is not limiting ancillary services that are 
critical to those that meet a certain threshold but instead adopting a 
definition of critical ancillary service that includes ``any other 
services determined, after notice and opportunity to comment, to be 
critical by the Secretary.'' Multiple State attorneys general also 
recommended establishing an open-ended provision when defining critical 
ancillary fee. This final rule differs from their recommendation in 
that it provides the public an opportunity for comment before the 
Department delineates additional critical ancillary fees. The 
Department believes that effective and meaningful public engagement 
before determining additional ancillary services that are critical will 
lead to a better result.

(4) Methods for Disclosing Critical Ancillary Service Fees and Policies

(a) Website Disclosure of Fees
    Proposal: The Department proposed to require that the fees for 
ancillary services that are critical to a consumer's purchasing 
decision be disclosed the first time that an airfare is displayed to 
consumers using airlines' or ticket agents' websites. More 
specifically, the Department proposed to require airlines and ticket 
agents disclose the first and second checked bag fees, the carry-on bag 
fee, the change and cancellation fees and the family seating fee at the 
first point in a search process where a fare and schedule is listed in 
connection with a specific flight itinerary. The Department further 
proposed to prohibit display of fees for critical ancillary services by 
links and rollovers but requested comment on whether to allow these 
methods.
    The Department further proposed to require carriers and ticket 
agents to indicate that a particular fare category prohibits the 
checking of a bag or the carriage of a carry-on bag, if that is the 
case, and any applicable penalty to transport the item, whenever fare 
and schedule information is provided during the itinerary search 
process. The Department also proposed to require carriers and ticket 
agents to disclose whether ticket changes or cancellations are allowed, 
which could be provided via a pop-up or link adjacent to the pertinent 
change or cancellation fee.
    Comments: Industry commenters expressed near-universal opposition 
to the requirement to display fees for critical ancillary services 
without the use of links or rollovers when an airline or ticket agent 
first provides schedule and fare information in response to an 
itinerary search. These commenters expressed concerns about the costs, 
technological feasibility, and impacts on website clarity and function 
if airlines and ticket agents are required to display all proposed 
critical ancillary fees (first checked bag, second checked bag, and 
carry-on bag, ticket changes and cancellations, and family seating) 
without the use of links or rollovers when airlines and ticket agents 
first provide schedule and fare information.
    Many industry commenters stated that display of all critical 
ancillary fee information required under the proposal on a single page 
without the use links or rollovers would result in airlines and ticket 
agents displaying fewer itinerary results and would overcrowd web 
pages. For example, Frontier Airlines stated that under existing 
regulations, it could display four or five itinerary options on the 
first page of search results, but estimated that under the proposal, it 
would only be able to display one or two results per page. Frontier 
Airlines further expressed concern that crowded displays would block 
out or minimize information that it views as more relevant to 
consumers, including additional flight options and base fares. 
Similarly, United Airlines estimated that it would be able to display 
only half of the number of flight options to consumers under the 
proposal compared with its current website. Booking Holdings stated 
that a first-page display requirement for all ancillary fees proposed 
could reduce the number of itinerary results it could display on a 
single page from 12 under existing regulations to only one or two. 
Booking Holdings expressed concern that the NPRM's proposal to require 
carriers or ticket agents to display all critical ancillary fees when 
fare and schedule information is first provided would result in 
consumers spending additional time scrolling or ``giving up'' on their 
search and selecting a less optimal flight than they would under 
existing disclosures. Finally, the U.S. Travel Association stated that, 
under the proposal, customers would need to scroll through multiple 
pages of results, increasing the time needed to consider available 
ticket options.
    Many industry commenters, including Frontier Airlines, Google, 
Booking Holdings, and others explained or provided visual displays of 
how search results would appear on their websites under the proposal in 
written comments or at the Department's March 30, 2023, public hearing. 
For example, Google provided an example where both vertical and 
horizontal scrolling was needed to show all ancillary fee information 
proposed at the first page of search results. Amadeus also testified at 
the hearing that providing all critical ancillary fees required by the 
proposal at the first point in the search process where schedule and 
fare information is provided would reduce the number of flight options 
that could be displayed and, correspondingly, reduce the inter-brand 
competition that the indirect channel provides.
    In addition, industry commenters raised concerns that, in their 
view, displaying all required ancillary fees at the first page of 
search results would slow website loading times significantly and 
degrade the consumer experience, resulting in consumers abandoning 
carrier and ticket agent websites. For example, American Airlines 
estimated that its current search takes three to five seconds to 
process and load but believes displaying all proposed critical 
ancillary fees on the first page would take 45 seconds to process and 
load. In addition, Spirit Airlines stated that providing all proposed 
ancillary fees would take seven times as long to load as its current 
site and could require nine minutes of transaction time. Further, 
United Airlines expressed concern about the effect that slower loading 
times would have on sales, stating that half of consumers abandon 
websites that take more than six seconds to load and over 50 percent 
expect a website to load in three seconds or less. At the Department's 
March 30, 2023, hearing, IATA cited studies stating that for every 
second of loading performance, there is an equivalent drop in customer 
presence and sales. Booking Holdings

[[Page 34647]]

stated that ``the calls for data under the proposal could potentially 
be in the hundreds of thousands (especially for itinerary results that 
include multiple carriers or multiple passengers),'' and, while its 
current system runs similar queries, it does so only ``after a 
passenger selects a flight option, thus reducing the search queries to 
that one flight itinerary, instead of thousands of potential flight 
itineraries.'' In addition, Travel Tech commented that every second 
added to website load times results in a seven percent loss in sales 
and 11 percent fewer page views.
    Further, industry commenters stated that the proposed rule would 
require airlines and ticket agents to provide ancillary fee information 
at a time that is not optimal for consumer decision making and that the 
timing and method for displaying ancillary fees is best left to 
industry expertise. Among those commenters, Spirit Airlines commented 
that it conducted a survey of consumers who abandoned booking and found 
that less than one percent abandoned the booking path because bag 
prices were not displayed at the beginning of search, which it stated 
demonstrates that ``[a]lmost all customers who decide not to fly Spirit 
are unbothered by ancillary fees being provided later in the booking 
path.'' Further, Spirit Airlines stated that it showed a sample web 
display complying with the NPRM to ``independent testers,'' who 
preferred Spirit's current site and stated that they preferred to 
select the flight first and then select from baggage and seating 
options. Air Canada stated that its current practice of providing 
consumers with a full price breakdown of all charges on a summary page 
before booking is ``more informative and useful for consumers'' than 
the Department's proposal because it lists all charges, not only those 
ancillary fees that the Department deems critical. In addition, Booking 
Holdings represented that its customers prefer concise information at 
the first page of search results and that ancillary fee information is 
more helpful after consumers select a specific itinerary. A4A testified 
that display of ancillary fees at the time of first search could 
confuse consumers that such fees are mandatory and cause consumers to 
abandon their travel due to the perceived expense or to purchase 
ancillary services that are unnecessary for their travel. Further, NACA 
stated that providing ancillary fee information at the time fare and 
schedule information is first provided would overwhelm ULCC consumers, 
adding that selecting one ancillary at a time makes the booking process 
easier and that the unbundled model ``inherently requires enhanced 
disclosure and education, which the ULCCs already provide.'' NACA also 
noted that E.O. 14036 instructed the Department to consider initiating 
a rulemaking to ensure disclosure of ancillary fee information, 
including change and cancellation fees, ``at the time of ticket 
purchase,'' but it did not require the Department to initiate a 
rulemaking or to require disclosure at the first point in a search 
process where a fare is listed in connection with a specific flight 
itinerary.
    Google provided some statistical data related to its position that 
baggage fees are more relevant to consumers later in the booking 
process. Google reported that 1.3 percent of consumers conducting a 
search on Google Flights use a feature allowing them to integrate bag 
fees into the displayed costs for flights before a specific itinerary 
has been selected. At the Department's public hearing in March 2023, 
Google testified that this statistic supported its position that 
baggage information may be relevant to consumers later in the search 
process, rather than at the point of initial search. Google also 
provided the results of a study of U.S. consumers it conducted in 2018. 
It cited this study as evidence that consumers prefer to think about 
baggage fees later in the booking process, with 21 percent of consumers 
in the survey stating that they start thinking about baggage while 
searching for flights but 23 percent of consumers in the survey stating 
that do not start thinking about baggage until the time of flight 
booking. In addition, according to the results reported by Google, 19 
percent of consumers ``decide about baggage'' at the time of flight 
search, but another 35 percent do not decide about baggage until the 
time of flight booking.
    A4A provided testimony on the costs of the proposal at the 
Department's March 30, 2023, public hearing, stating that the proposal 
to require display of all critical ancillary fees on the first page of 
search results would require an overhaul of the entire air fare 
``ecosystem.'' A4A further testified that the costs would be exorbitant 
and exceed the technical capacity of airline systems, which it added 
are not currently built to retrieve and display the amount of fee 
information required. Many other industry commenters provided similar 
testimony or written comments. Additional discussion of the economic 
impacts of the final rule is provided in the Regulatory Notices section 
of this document.
    Some industry commenters also raised specific concerns with the 
technical ability to calculate and display fees for a first checked 
bag, a second checked bag, and a carry-on bag at the first page where 
airlines or ticket agents provide fare and schedule information in 
response to a search without the use of rollovers or links. IATA stated 
that this proposed requirement is ``unreasonable'' and added that the 
calculation of baggage fees is ``not trivial, particularly with multi-
carrier itineraries, and neither airlines nor agents today are capable 
of undertaking the calculation on what could be more than 100 
itineraries presented on an initial search page.'' IATA added that, in 
its view, the costs of the requirement would outweigh any benefits. 
Similarly, Air Canada stated that the calculation of baggage fees ``is 
a complex process,'' particularly for multi-carrier itineraries, and 
that the development of ``ancillary service packages or subscriptions 
that allow passengers to, among other services, have unlimited checked 
baggage after paying an annual fee or the bundling of baggage fees with 
those of meals or Wi-Fi'' would make displaying baggage fees on the 
first page of search results more challenging.
    A few industry commenters recommended that, if the Department 
decides to require airlines and ticket agents to display any ancillary 
fees when fare and schedule information is first provided, it should do 
so only for the fees for first checked, second checked, and carry-on 
baggage. For example, Travel Tech stated that if the Department chose 
to adopt ``any prescriptive rules,'' those requirements ``should be 
limited to requiring that only critical baggage fees . . . be displayed 
on the first search results page.'' Travel Tech added that ``[b]y so 
limiting the amount of information required to be displayed on the 
first search results page, DOT can largely avoid the information 
overload and page clutter problems'' identified in its comments. 
Skyscanner made similar comments, stating that it recommended ``that no 
display requirement mandating a specific location for the display of 
ancillary fee information should be imposed,'' but continuing that ``if 
such a rule is imposed, it should require that only baggage fees be 
displayed on the first page of ticket search results.'' Skyscanner 
added that its recommendation was based on its internal user research 
indicating ``that many users are much more concerned about baggage 
allowances and fees than any single other type of ancillary fee,'' with 
84 percent indicating ``it was important to know whether a ticket price 
includes checked bags.''

[[Page 34648]]

    Industry commenters, including IATA, also stated that the 
complexity of calculating multiple change and cancellation fees for 
multiple itineraries would be technologically infeasible (particularly 
for multi-carrier itineraries), result in significantly slow website 
loading, and be extremely costly to implement. For example, IATA 
commented that the cost of calculating multiple change and cancellation 
fees ``for every itinerary at the initial search cannot be justified in 
terms of search time saved by passengers.''
    Instead of first page display of fees for critical ancillary 
services in text form, industry commenters generally requested more 
flexible display of these fees. Alternatives recommended by these 
commenters included the Department allowing the display of fee 
information later in the booking process; the use of links, pop-ups, 
rollovers, and other methods; and the display of fee information 
outside of the booking process. For example, individual airlines also 
recommended that the Department allow links and rollovers. United 
Airlines suggested that the Department permit disclosures through 
links, pop-ups, banners, landing pages, and acknowledgements. American 
Airlines explained that links and rollovers ``would allow consumers to 
access the fee information as needed on an individual basis and avoid 
overwhelming consumers by flooding them with information at the first 
shopping point.''
    Similarly, ticket agent representatives such as Travel Tech 
recommended allowing critical ancillary fee information to be displayed 
using pop-ups and links. Booking Holdings recommended that the 
Department allow airlines and ticket agents to display fees by hovering 
over or clicking a link or allowing disclosures on the second page of 
the booking process after a flight is selected. Further, Google stated 
that more flexibility in display would better serve consumers, and 
expounded that rollovers, hyperlinks, and pop-ups would give 
disclosures to consumers in a readable and customizable format. Hopper 
and other commenters advocated for display at any time before ticket 
purchase. At the Department's March 2023 public hearing, Amadeus 
advocated for allowing more flexible displays such as hyperlinks, 
mouseovers, pop-ups, expandable text, and other shortcuts to facilitate 
faster and cost-efficient implementation across the industry. According 
to Amadeus, those methods help avoid performance issues and reduce the 
number of transactions, extending computing resources and improving the 
time necessary to provide search results. In addition, Air Canada asked 
the Department to clarify when ``fare and schedule information is first 
provided'' if it chose to finalize the proposal. The carrier also asked 
the Department to allow carriers to display required ancillary fee 
disclosures ``external to the booking process.''
    Specific to change and cancellation fee disclosures, Amadeus asked 
the Department to allow display of minimum and maximum change and 
cancellation fees, rather than all potentially applicable change and 
cancellation fees. IATA suggested that carriers could include a link on 
the initial search page to clear language on whether the carrier 
imposes change or cancellation fees and what factors are considered in 
setting that fee. Skyscanner recommended that DOT require display of 
one change fee and not on the first page of search results.
    In their comments and public hearing testimony, multiple groups 
representing consumers expressed support for the Department's proposal 
to require airlines and ticket agents to display critical ancillary 
service fees when fare and schedule information are first displayed in 
response to a consumer search. FlyersRights commented that the proposal 
would achieve better price transparency for consumers. In addition, at 
the Department's March 30, 2023, public hearing, FlyersRights testified 
that current market conditions reward those airlines that hide the ball 
at the expense of more transparent airlines and asserted that one 
airline's website requires many clicks from the first page where 
schedule and fare information is displayed before a consumer reaches 
the web page where static baggage fees are disclosed. Further, a joint 
comment from multiple groups representing consumers supported the 
Department's proposal to prohibit the use of links and rollovers to 
display fees for critical ancillary services. The U.S. PIRG Education 
Fund added that in its view, fee information should be provided before 
beginning the booking process, not once it has begun, and expressed 
concerns about drip pricing. Finally, the ACPAC Chair, representing 
state and local governments, stated at the January 12, 2023, ACPAC 
meeting that the Department's proposal was ``fair'' in permitting 
airlines and ticket agents to display baggage policies, but not baggage 
fees, in links and pop-ups based on her belief that the average flyer 
better understands what constitutes an oversized bag than the actual 
bag fee amounts.
    A few organizations representing consumers, however, expressed 
concern about the potential for consumer confusion under this aspect of 
the Department's proposal. AARP was generally supportive of the 
Department's proposal, noting that not providing critical ancillary fee 
information when a fare is provided would inhibit the ability of 
consumers ``to make an informed decision about which price and 
itinerary combination best suits their need,'' and adding that if fees 
are disclosed at the end of the booking process ``that consumer is much 
less likely to re-start the process of comparison shopping, leading to 
a less than optimal outcome.'' But AARP further recommended that any 
``disclosures must be made in such a way as to minimize visual clutter 
and confusion and be easy to read and comprehend.'' In addition, 
Travelers United testified at the Department's March 30, 2023, public 
hearing that more disclosure was preferrable but also expressed concern 
in its written comment that ``DOT is seriously underestimating the 
technology needed for this NPRM as it stands now. Perhaps limiting it 
to only baggage may provide enough information to deal with today's 
competition and prepare for the coming age of AI [artificial 
intelligence].''
    Individuals also expressed differing views. For example, one 
individual stated that how and when airlines display the elements of a 
total fare should be left to airlines and suggested that consumers 
could purchase from a different airline should a particular airline 
provide a confusing display. However, another took the position that 
baggage fees are the most important charges to consumers and displays 
with this information would not confuse consumers or be excessive. This 
commenter noted that airlines already provide first and business class 
fares that many consumers will never use.
    The ACPAC solicited information on the appropriate timing of 
disclosure for critical ancillary service fees at its December 2022 
meeting. At that meeting, the ACPAC member representing consumers 
observed that to minimize problems with drip pricing, consumers should 
have information on critical ancillary service fees early in the 
process. However, he also noted that providing early information on all 
ancillary fees could lead to consumers being overwhelmed. Specifically, 
he opined that baggage fees, change/cancellation fees, and seat 
reservation fees were the biggest ``pain points'' for consumers that 
should be disclosed early. Similarly, a consumer advocacy organization 
suggested that fees for carry-on and checked bags, as well as change/
cancellation fees and on-time/

[[Page 34649]]

cancellation statistics, should be displayed on the first page where a 
price is quoted.\98\
---------------------------------------------------------------------------

    \98\ Presentation of FlyersRights, available at https://www.regulations.gov/document/DOT-OST-2018-0190-0046.
---------------------------------------------------------------------------

    At its January 12, 2023, meeting, the ACPAC recommended that the 
Department adopt its proposal to require change and cancellation fee 
information be displayed during the itinerary search process and not 
just before ticket purchase. The ACPAC member representing consumers 
noted that change and cancellation fees impact consumers' buying 
decisions when shopping for an airline ticket, and that if the 
disclosures are not made early in the purchase process, consumers would 
not have change and cancellation fee information on all the options 
available to them when making a purchasing decision. The ACPAC member 
representing airlines expressed his concern that disclosure of the 
baggage and change and cancellation fees during the itinerary search 
process would present too much information to consumers and advocated 
for links or pop-ups to be permitted for the display of baggage and 
change and cancellation fee information if there is a requirement to 
display such fee information.
    The ACPAC also recommended at its January 12, 2023, meeting that 
the Department require ticket agents and metasearch entities to display 
airlines' change and cancellation fee information in a consistent 
manner to avoid creating confusion for consumers. The ACPAC member 
representing airports explained that a ticket agent should not be 
allowed to display an itinerary for one airline that shows the total 
change or cancellation fees for a group of travelers, while the 
itinerary for another airline shows the change or cancellation fees on 
a per passenger basis. Travel Tech commented that the ACPAC 
recommendation goes beyond the proposals of the NPRM and fails to 
recognize that ticket agents do not receive data from airlines 
consistently and lack the resources to implement this recommendation.
    Regarding the Department's proposal that consumers be informed when 
fare and schedule information is provided if the fare category does not 
permit traveling with a first checked bag, a second checked bag, or a 
carry-on bag or permit changing or cancelling a reservation, various 
commenters expressed support for it and stated that clear disclosure 
upfront of these prohibitions is necessary to avoid consumer harm. 
Southwest Airlines explained that basic economy fares are increasingly 
common and likely to appeal to occasional, less savvy budget travelers, 
making early disclosure that these tickets cannot be changed or 
canceled and that passengers cannot travel with a carry-on bag or 
checked bag if that is the case especially necessary. Southwest 
Airlines added that because the least expensive basic economy tickets 
often are at the top of search results, it is particularly important to 
provide complete and timely notice of such restrictions on all 
distribution channels. FlyersRights and Travelers United recommended 
that the Department require a clear disclosure for fares that prohibit 
ticket changes or cancellations, similar to the disclosure proposed for 
fares that prohibit baggage.
    DOT Response: This final rule requires airlines and ticket agents 
to clearly and conspicuously disclose accurate fees for all critical 
ancillary services (i.e., a first checked bag, a second checked bag, a 
carry-on bag, ticket change, and ticket cancellation) on the airline's 
or ticket agent's website at the time fare and schedule information is 
initially provided when a consumer conducts a search for air 
transportation. The Department acknowledges the concern of airline 
commenters that ancillary packages or subscriptions that allow 
passengers to have unlimited checked baggage for an annual fee or 
bundle baggage fees with other ancillary services such as wi-fi or food 
would make displaying baggage fees on the first page of search results 
more challenging. The Department is clarifying that, while airlines and 
ticket agents must disclose the standalone fees for critical ancillary 
services required under this rule, they are not required to disclose 
the ancillary service packages or bundles that include one or more 
critical ancillary services but may do so if they choose.
    The Department disagrees with those commenters who stated that the 
Department should allow fee information for critical ancillary services 
to be displayed later in the booking process, after consumers have 
already spent time selecting an itinerary based on incomplete fee 
information. The challenges cited by Air Canada and IATA that industry 
faces in calculating baggage fees favors requiring airlines and ticket 
agents to disclose these fees to consumers, rather than placing the 
burden on consumers to make complex calculations. Regarding Air 
Canada's request for clarification of the meaning of ``when fare and 
schedule information is first provided,'' that phrase means the first 
point at which a fare is quoted for a particular flight itinerary. This 
first point will typically be the first page of search results provided 
in response to a consumer's itinerary search. The Department disagrees 
with A4A that displaying baggage fee information when schedule and fare 
information is first provided will confuse consumers that payment of 
such fees is mandatory. Many industry commenters touted their ability 
to design innovative and clear web displays, and the Department expects 
that the industry will use those skills to meet the disclosure 
requirements of this rule in a manner that mitigates the potential for 
consumer confusion. The Department acknowledges NACA's statement that 
E.O. 14036 does not require the Department to mandate disclosure of 
critical ancillary fees at the first point in the search process where 
a fare is listed in connection with a specific flight itinerary. For 
the reasons discussed in this preamble, however, the Department has 
determined that disclosure of critical ancillary fees at that point is 
necessary to mitigate unfair and deceptive practices and that the 
requirements in this final rule are consistent with the E.O.
    The Department does not adopt the alternatives to providing 
itinerary- and passenger-specific change and cancellation fees 
recommended by some industry commenters, such as requiring airlines and 
ticket agents to display the factors used by the airline to set the 
relevant change and cancellation fees (rather than the fees 
themselves), a single change or cancellation fee (rather than all 
change and cancellation fees), or minimum and maximum change and 
cancellation fees. Each of those recommended alternatives would result 
in disclosure that is insufficiently precise to advise consumers of the 
true cost of selecting a particular itinerary.
    In response to the ACPAC recommendation, the Department notes that 
this final rule does not mandate change and cancellation fee 
disclosures to be displayed in a consistent manner or use standardized 
definitions. The Department is of the view that, so long as the 
required information is presented in a clear and conspicuous manner, 
there is no identified consumer harm from ticket agents developing 
their own displays. The Department believes that the requirement in 
this rule to disclose a summary of the applicable change and 
cancellation policies will be sufficient to clarify any potential 
inconsistencies in the presentation of such fees. Should the Department 
determine in the future that a problem regarding the consistency of 
critical ancillary service fee disclosures exist, the Department may 
revisit this issue. The requests by AARP and others that the Department 
work to

[[Page 34650]]

eliminate change and cancellation fees are beyond the scope of this 
rulemaking.
    The Department acknowledges concerns raised by commenters about the 
cost and technological feasibility of providing all critical ancillary 
fee information in text form where an airline or ticket agent first 
provides fare and schedule information in response to a consumer's 
itinerary search. To address these concerns, the Department is 
providing additional flexibility for ticket agents and airlines in how 
they disclose the required fees. This final rule requires that fees be 
``clearly and conspicuously'' disclosed but does not limit the display 
of critical ancillary fees to only static text next to the fare. While 
the final rule continues to prohibit display of fees for critical 
ancillary services by links, the Department is not prohibiting the use 
of pop-ups or other methods to avoid the page clutter problems that 
commenters identified. To further explain this requirement, the final 
rule defines ``clear and conspicuous'' to mean that a disclosure is 
difficult to miss (i.e., easily noticeable), easily understandable by 
ordinary consumers, and presented in a manner that allows ordinary 
consumers to determine the true cost of travel. In other words, it 
should be readily apparent to a consumer that fee information is 
available, the process for calling up such information should be 
uncomplicated, and the fee information should be understandably 
presented. Also, the fees themselves and how to access them should not 
be hidden or involve significant effort to ascertain by the consumer. 
Further, the consumer's booking process should not be disrupted in such 
a way that causes the consumer to have to start over their search 
process from the beginning or to lose their location on the page being 
viewed. The rule prohibits airlines and ticket agents from displaying 
critical ancillary fees by hyperlink because displaying fees in that 
manner would disrupt the consumer's search.
    To evaluate whether a disclosure is clear and conspicuous, the 
Department intends to consider the clarity of the fee disclosure 
(whether in text or through a pop-up, in expandable text, or by other 
means); the font size used for the disclosure compared with other text 
on the page; and the placement of the disclosure on the page, among 
other information. Provided that the fees for critical ancillary 
services are disclosed in a manner that meets the regulatory criteria 
of clear and conspicuous and not provided by hyperlink, airlines and 
ticket agents have the flexibility to display or disclose these fees 
through various methods, including in text form on the page with the 
fare, through a pop-up, or other method that does not navigate the 
consumer away from the page and place on the page being viewed at the 
time the user action is taken, or through expandable text on the page 
where the fare is displayed. The Department concludes that these 
modifications from the proposal will better enable industry to use 
innovative web design to display fees in a manner that is 
technologically feasible while still ensuring that consumers are 
provided with critical information about the true cost of travel at the 
time of itinerary search. Given the increased flexibility afforded by 
this final rule compared to the initial proposal, as sought by many 
commenters, the Department concludes that compliance should be feasible 
and reduce the potential for slow loading times or cluttered or 
confusing displays for consumers.
    Also, as proposed, the Department is requiring that airlines and 
ticket agents disclose to consumers if a particular fare category 
prohibits the checking of a first or second checked bag or the carriage 
of a carry-on bag and display the penalty, if applicable, for carrying 
on or checking the item. The Department is also adopting its proposal 
to require carriers and ticket agents to disclose upfront whether 
ticket changes or cancellations are allowed. The Department agrees with 
commenters who stated that it is particularly important for airlines 
and ticket agents to disclose that a given fare prohibits changes and 
cancellations if that is the case. Under this final rule, airlines and 
ticket agents are required to disclose that a particular fare category 
prohibits a first checked bag, a second checked bag, a carry-on bag, 
ticket change, or ticket cancellation, if that is the case, when fare 
and schedule information is provided during an itinerary search. The 
disclosures must be clear and not mislead consumers into believing that 
the fee for a particular fare category is zero, when in fact a bag or 
ticket change or cancellation is simply prohibited.
    Finally, we note that this rule's disclosure requirements for 
critical ancillary fees and policies must also be reflected in 
carriers' customer service plans. By adding an assurance in their 
plans, carriers commit to consumers that they will meet the minimum 
standards set forth in this rule regarding the disclosure of critical 
ancillary fees and policies. This customer service commitment is merely 
reinforcing new requirements imposed elsewhere in this final rule.
(b) Website Disclosure of Policies
    DOT Proposal: The Department proposed to require airlines and 
ticket agents disclose, along with the fare and schedule information, 
the policies applicable to transporting a first checked bag, a second 
checked bag, and a carry-on as well as changing and cancelling a 
reservation, taking into account the consumer's passenger-specific 
information, if provided. For baggage, the Department proposed that 
carriers and ticket agents must display the weight and dimension 
limitations that a carrier imposes for each checked and carry-on bag, 
with passenger-specific adjustments if applicable. For ticket changes 
and cancellations, the Department proposed to require carriers and 
ticket agents provide a summary of the ticket change and cancellation 
policies applicable to the consumer's chosen itinerary and fare 
category, considering the consumer's passenger-specific information, if 
provided. The Department proposed to allow carriers and ticket agents 
to display policy information for baggage, ticket changes, and ticket 
cancellations using links or pop-ups adjacent to the display of the 
pertinent fee.
    In the NPRM, the Department explained that these brief policy 
summaries should include clear, adequate notice of the rules applicable 
to the chosen itinerary and fare category, including whether ticket 
changes or cancellations are allowed (as well as when and in what 
circumstances they are allowed), the form that refunds or airline 
credits may be provided (e.g., travel voucher or a credit to the 
original form of payment), any prohibitions or conditions that may 
limit the ability to change or cancel a ticket, and other information. 
The Department did not propose specific requirements for how carriers 
and ticket agents should address the need for passengers to pay a fare 
difference between the old and new ticket prices in the event of a 
change but requested comment on that issue. The Department also asked 
about consumer confusion from the material change in fare that occurs 
with many ticket changes being a larger component of the overall price 
relative to the change fee itself.
    Comments: Air Canada asked for additional clarification, including 
``whether baggage fees that must be displayed also include additional 
costs associated with those bags. For example, is it an obligation to 
display excess baggage and overweight fees or is it appropriate that 
these fees are charged at the airport when the baggage is dropped 
off?''

[[Page 34651]]

    On the method of displaying baggage policy information, the ACPAC 
recommended that the Department retain its proposal that pop-ups and 
links are acceptable for specific information about size and dimension 
allowances for baggage in any final rule. At the January 12, 2023, 
ACPAC meeting, the ACPAC Chair, who is the member representing state 
and local governments, stated that it should be acceptable to provide 
baggage size policies by link because the average flyer has an 
understanding of what constitutes an oversized bag. The member 
representing airports agreed, adding that much baggage comes in 
standard sizes. Travel Tech also supported this proposal.
    For policies applicable to changes and cancellations, among 
industry commenters, IATA objected to the requirement for air carriers 
and ticket agents to provide a brief summary of the applicable change 
and cancellation policy, stating that ``[a]irlines are under no 
obligation to provide passengers explanations as to why they are 
imposing fees on passengers who decide on their own not to use a 
particular ticket.'' Representing consumers, FlyersRights asked the 
Department to require that airlines and ticket agents display 
information on whether any refund provided would be as a cash or a cash 
equivalent, non-expiring travel credits or vouchers, or expiring travel 
credits or vouchers, and whether those amounts would be for the entire 
ticket price less the change or cancellation fee or discounted.
    The Department received a few responses to its request for comment 
on the issue of fare differentials. Air Canada noted that most of the 
cost to change a flight would be due to the fare differential. Other 
commenters noted that, given that fare differentials may be a part of 
the cost to change tickets, it was not possible to disclose the full 
cost of a ticket change at the time of ticket purchase, since the full 
cost may not be known until the consumer changes their ticket. In 
addition, Travelport stated that ``fare differentials due to dynamic 
pricing are common knowledge,'' and deemed a requirement to disclose 
that a fare differential may apply ``unnecessary.'' In contrast, 
FlyersRights requested that the Department require disclosure that a 
fare differential may apply and whether the airline or ticket agent 
would refund the fare difference if the replacement flight was less 
costly than the originally purchased flight.
    Regarding the method of displaying policy information on ticket 
changes and cancellations, the ACPAC recommended that the Department 
retain its proposal that change or cancellation policy information may 
be displayed by links or pop-ups in any final rule. The ACPAC also 
recommended that the Department provide greater clarification on the 
specific location rollovers or pop-ups should be placed for consumers 
to view additional change or cancellation policy information. Travel 
Tech commented that the Department should permit disclosure of change 
and cancellation policies by links or pop-ups as proposed. In addition, 
Travel Tech opposed the ACPAC recommendation regarding the specific 
location rollovers or pop-ups should be placed and asserted that the 
Department should allow flexibility instead.
    DOT Response: The Department largely maintains the proposed 
requirements for the disclosure of baggage and ticket change and 
cancellation policies applicable to the itinerary, taking into account 
the consumer's passenger-specific information, if affirmatively 
provided.\99\
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    \99\ Passenger-specific requirements are discussed in section E 
(5).
---------------------------------------------------------------------------

    The Department is adopting its proposal requiring that the weight 
and dimension limitations that the carrier imposes for first and second 
checked bags and carry-on bags be disclosed, with passenger-specific 
adjustments, if applicable. The Department has determined that the 
failure to provide weight and dimension information before ticket 
purchase is an unfair practice, as discussed in section D (1)(a). The 
Department is not requiring that airlines and ticket agents disclose 
the fees for excess and overweight baggage as part of the required 
disclosure on weight and dimension limitations.
    The Department makes clear in this final rule that the disclosure 
of baggage, change, and cancellation policies must be accurate as well 
as clear and conspicuous. Unlike the fees themselves, however, the 
Department allows as proposed the use of links for these policies. 
Allowing the option for airlines and ticket agents to provide these 
disclosures by hyperlink was recommended by the ACPAC and supported by 
public comment. Further, to reduce screen clutter, the Department is 
allowing summaries of applicable baggage, change, and cancellation 
policies to be disclosed any time before ticket purchase, rather than 
requiring them to be disclosed contemporaneously with the fees as 
proposed. The Department is persuaded by commenters that providing the 
policy information later in the purchasing process will not harm 
consumers. The Department concludes that the requirement to provide 
these policies in a clear and conspicuous manner, as defined in this 
final rule and further explained in section E (4)(a) of this preamble, 
provides adequate information regarding where and how baggage and 
change and cancellation policies must be disclosed, while maintaining 
flexibility for airlines and ticket agents to develop their own 
consumer-friendly displays.
    Regarding change and cancellation policy summaries, the Department 
disagrees with IATA's interpretation of the NPRM proposal. The 
Department did not propose to require carriers to disclose ``why they 
are imposing'' change and cancellation fees, but instead proposed that 
carriers and ticket agents should disclose, among other information, 
whether ticket changes and cancellations are permitted, the conditions 
under which change and cancellation fees would apply, and the form of 
any refund provided. The Department is adopting this proposal in this 
final rule.
    More specifically, given that the Department's conclusion that 
change and cancellation fees are critical to a consumer's purchasing 
decision, the Department is identifying in this final rule the types of 
information that must be included in the summaries of change and 
cancellation policies. First, the Department agrees with those 
commenters who stated that it is particularly important for airlines 
and ticket agents to disclose that a given fare prohibits change and 
cancellations if that is the case (as discussed in section E 4(a)), and 
so this final rule requires any prohibitions or conditions that may 
limit a consumer's ability to change or cancel a ticket to be clearly 
and conspicuously provided in the summary of the change or cancellation 
policy. In addition, the final rule requires, as suggested by 
FlyersRights, that airlines and ticket agents disclose the form of the 
refund or credit that would be provided in the event a change or 
cancellation is permitted. Finally, the change and cancellation summary 
must include notice that the consumer is responsible for any fare 
differential if that is the case. As noted by Air Canada, a large 
portion of the cost for a passenger to change their flight in many 
cases could be the fare differential. Given the potentially significant 
cost of fare differentials, the Department concludes that it would be 
deceptive to disclose a change fee without also disclosing that the 
passenger may also be required to pay the difference in fare. As such, 
the Department does not believe that this disclosure is

[[Page 34652]]

unnecessary, as urged by Travelport, and, accordingly, the final rule 
requires this additional disclosure. Further, the Department agrees 
with FlyersRights that the airline or ticket agent must disclose 
whether it will refund the difference in fare if the consumer changes 
their flight and selects a less costly replacement flight. This 
disclosure must be provided in the change policy. The Department has 
determined that the failure to provide the change and cancellation 
policy information required by this rule before ticket purchase is an 
unfair and deceptive practice, as discussed in section D (1)(b).
(c) Mobile Site and App Disclosure of Fees and Policies
    Proposal: The Department proposed to require disclosure of fees and 
policies for ancillary services critical to a consumer's purchasing 
decision at the first point in a search process where a fare is listed 
in connection with a specific flight itinerary on airlines' and ticket 
agents' websites, including mobile websites. In the NPRM, the 
Department noted that consumers increasingly use mobile devices to book 
travel, and so it is important that the same disclosures provided on 
airlines' and ticket agents' desktop websites are also provided on 
mobile websites. While the Department did not propose to require 
critical ancillary fee and policy disclosures on airlines' and ticket 
agents' mobile apps, it sought comment on whether to extend the 
proposal to mobile apps and whether there are any practical 
distinctions between information accessed on mobile websites and mobile 
apps.
    Comments: Multiple commenters provided data through their written 
comments and at the Department's March 30, 2023, public hearing 
regarding the frequency with which consumers book air travel on mobile 
websites and apps. AELP testified that 70 percent of consumers research 
travel on mobile devices. IATA provided the same statistic in its 
comments and further noted that 44 percent of online bookings were 
completed on mobile devices, citing a 2022 report. Priceline testified 
that more than half of its business is from mobile customers, Google 
stated that 68 percent of its users browse on mobile devices, and 
Hopper reported that its entire business is conducted ``exclusively 
through the Hopper mobile app.'' A joint comment from multiple consumer 
groups noted that the top five free travel apps that sell airline 
tickets through the Apple operating system, iOS, have a combined 13.6 
million user ratings, demonstrating that such apps have reached 
millions of consumers.
    Industry commenters opposed both the proposed requirement that 
airlines and ticket agents disclose all critical ancillary fees at the 
first page of search results on mobile websites and the extension of 
that proposal to cover mobile apps. These commenters noted that 
challenges with screen clutter are particularly acute on mobile devices 
and apps, which have limited screen space, and stated that the proposed 
requirement would likely limit the number of search results provided or 
require excessive scrolling on mobile apps and websites. In addition, 
Air Canada asserted that ATPCO was never designed to work in 
conjunction with mobile apps and therefore there is an inherent level 
of disconnect in the transferability of information between ATPCO and 
mobile apps. Further, Travel Tech stated that accommodating screen 
readers for individuals with disabilities on mobile devices would be 
more difficult given the volume of information required at the first 
page of search results under the proposal.
    Some industry commenters, including Frontier Airlines, Campbell-
Hill Aviation Group (on behalf of A4A), Sprit Airlines, and Google, 
provided visual illustrations to demonstrate the challenges of 
displaying first checked, second checked, and carry-on bag fees, change 
and cancellation fees, and family seating fees on the first page of 
mobile search results. For example, in Google's presentation at the 
Department's March 30, 2023, public hearing, it provided a sample 
mobile display it had created which it stated would require both 
horizontal and vertical scrolling for a consumer to see all ancillary 
fees required by the NPRM at the first page of search results.
    A few commenters stated that challenges in displaying information 
on mobile devices would only continue to grow with continued 
technological evolution. For example, Amadeus testified that in the 
future more consumers will book air travel through mobile devices or 
other devices, such as wearables, with very small screens that might 
provide search results in the form of a voice message. Similarly, IATA 
noted that consumers are ``increasingly conducting ticket searches via 
voice recognition, with the only major impediment being too much 
information to sort through.'' IATA stated that a requirement that all 
ancillary fee data be provided on the initial search page would inhibit 
consumer-friendly innovation. Travelers United expressed concern about 
the Department's ability to adapt its rule to future technology such as 
artificial intelligence. This comment observed that by the time the 
rule takes effect, ``new technology will be leading us in a different 
direction.''
    American Airlines and Hopper submitted comments addressing how the 
functionality of mobile devices differs from traditional desktop 
websites. American Airlines stated that carriers provide similar 
functionalities for mobile devices as for desktop websites and that 
those mobile functionalities ``allow the consumer to view or hide 
information at the consumer's choosing, even if a mobile device does 
not have a cursor.'' This comment further explained: ``in lieu of 
`hovering,' [for mobile devices] American [Airlines] will provide a 
dropdown arrow which the consumer can click to display or hide the 
relevant information. These dropdown arrows are familiar and intuitive 
to consumers and provide the same benefits as rollovers.'' Hopper 
commented that rollovers, hyperlinks, and non-adjacent disclosures are 
ineffective on mobile websites and apps, but other comparable methods 
can be implemented by travel agencies for mobile websites and apps if 
the final rule ``is not overly proscriptive.'' Hopper stated that 
``using expandable native results boxes'' is ``an effective approach'' 
for mobile devices.
    Industry commenters suggested different approaches for whether and 
how the final rule's requirements should apply to mobile apps and 
websites. American Airlines favored applying the same requirements to 
desktop and mobile displays, noting that different disclosures would be 
costly to develop and ``far more confusing for the consumers who would 
receive different disclosures depending on the portal they use.'' Other 
industry commenters asked the Department to either exclude mobile apps 
from the final rule entirely or to allow more flexibility or more 
limited disclosures on mobile devices. For example, NACA recommended 
permitting links to critical ancillary fee information on mobile apps 
given limited screen space. Air Canada asked that DOT not extend the 
rule's requirements to mobile apps, other than a possible disclosure 
that ``additional fees may apply'' or directing the passenger to the 
carrier's website. Observing that ``mobile apps are not scaled-down 
versions of desktop websites but rather use display formats that are 
uniquely designed to make information more accessible,'' Travel Tech 
asked DOT to exclude mobile apps from the final rule to allow engineers 
to develop innovative displays for apps.

[[Page 34653]]

Like Travel Tech, Hopper requested ``flexibility for agents to design 
new and innovative methods for serving their customers on mobile 
devices.'' Hopper asked that both mobile websites and apps be excluded 
from any requirement to provide disclosure at the first page of search 
results and that disclosure instead be required prior to the time of 
purchase for mobile devices and apps.
    Among groups representing consumers, AARP and a joint comment from 
multiple consumer groups supported covering mobile apps in the final 
rule. However, Travelers United expressed concern about the possibility 
of screen clutter on mobile devices. The joint comment from multiple 
consumer groups urged the Department to cover mobile apps to avoid 
excluding from fee disclosures the millions of consumers who book 
flights via mobile apps. That comment further noted that ``mobile apps 
are just as capable of disseminating airlines' unfair and deceptive 
commercial practices'' as mobile websites or desktop websites and have 
expanded reach due to push notifications. Finally, this comment 
explained that many consumers, especially those who are younger or low 
income, are likely to rely on smartphones as their primary internet 
connection, and so the final rule should cover mobile applications to 
avoid ``disproportionately exclud[ing] these populations.'' AARP 
suggested that DOT could allow opt-outs or links and rollovers for 
mobile devices.
    The few individual commenters who addressed coverage of mobile apps 
recommended different approaches. Individuals recommending that the 
Department cover mobile apps stated that covering mobile apps was 
necessary given increased use of those apps by consumers, to avoid 
misleading and confusing consumers by providing different information 
on various platforms, and because mobile apps provide a more 
``accessible'' interface for users than mobile websites. One individual 
commenter, however, expressed concern about screen clutter on mobile 
apps due to the proposed requirement to display all critical ancillary 
fee data at the first page of search results.
    DOT Response: Under this final rule, airlines and ticket agents 
must provide the same disclosures for critical ancillary service fees 
and policies on all online platforms. As commenters explained, 
consumers now widely use mobile websites and apps to shop for and 
purchase air transportation. The Department agrees with commenters who 
stated that it would be confusing to have different critical ancillary 
fee requirements for mobile apps than for mobile and desktop websites. 
Further, the Department concludes that excluding airline and ticket 
agent apps from this rule's requirement to disclose ancillary fee data 
that the Department has determined is critical to consumers' purchasing 
decisions would not sufficiently protect consumers who use mobile apps 
to purchase air transportation.
    Several commenters noted that methods of consumer search are 
evolving to include wearable devices, artificial intelligence, and 
voice recognition technology. To adequately cover desktop websites, 
mobile websites, mobile apps, and other technologies in this final 
rule, the Department uses the term ``online platform'' This term is 
defined as ``any interactive electronic medium, including, but not 
limited to, websites and mobile applications, that allow the consumer 
to search for or purchase air transportation from a U.S. carrier, 
foreign carrier, or ticket agent.''
    The Department makes modifications from the proposal in this final 
rule that mitigate the concerns raised by commenters about the volume 
of information required to be disclosed at the first point in the 
search process where a fare is listed in connection with a specific 
flight itinerary. This final rule does not require airlines and ticket 
agents that sell air transportation to display family seating fees, 
which the Department had proposed. In addition, while fees for critical 
ancillary services must still be disclosed at the first point in the 
search process where a fare is provided in connection with a specific 
flight itinerary, this final rule provides significant flexibility to 
airlines and ticket agents regarding the method of displaying that 
information so long as it is displayed in a clear and conspicuous 
manner and not by hyperlinks. This allowance includes the option to use 
expandable native results boxes or dropdown arrows on mobile websites 
and apps, which as described in comments from American Airlines and 
Hopper, is the type of flexibility that would permit airlines and 
ticket agents to produce innovative, consumer-friendly ancillary fee 
displays without overwhelming consumers, unduly cluttering search 
results, or limiting the number of search results. These same 
flexibilities apply to desktops, mobile apps, and other online 
platforms. Further, to reduce screen clutter, the Department is 
allowing summaries of baggage, change, and cancellation policies to be 
disclosed any time before ticket purchase, rather than requiring them 
to be disclosed contemporaneously with the fees as proposed.
(d) In-Person and Telephone Disclosure of Fees
    Proposal: The Department proposed disclosure of critical ancillary 
service fees for tickets purchased by telephone or in-person like those 
proposed for online purchases. Under the proposal, ticket agents and 
airlines would be required to disclose to consumers shopping in-person 
or by phone the fees for first checked, second checked, and carry-on 
bags, ticket changes and cancellations, and family seating that apply 
to an itinerary for which a fare is quoted to the consumer. The 
Department proposed to require ticket agents and carriers to provide 
this ancillary fee information for offline transactions when schedule 
information is provided during the ``information'' and ``decision 
making'' portion of the transaction. The Department explained its 
proposal would not allow ticket agents and carriers to wait to provide 
this information until after the consumer has decided to make a 
reservation or purchase a ticket. The Department solicited comment on 
alternative options for providing fee information on the phone or in 
person (e.g., explaining that fees may apply and referring the consumer 
to the carrier or ticket agent's website, provided that the website is 
accessible to consumers with disabilities).
    Comments: The ACPAC recommended that the Department retain its 
proposal to require disclosure of fees for a first checked bag, a 
second checked bag, and a carry-on bag when a fare is quoted to a 
consumer during an in-person or telephone inquiry. The ACPAC did not 
adopt as a recommendation a suggestion from ticket agents that DOT 
modify its proposal to require bag fees and ticket change and 
cancellation fees to be provided ``upon request'' for offline 
transactions. At the January 12, 2023, ACPAC meeting, the member 
representing consumers expressed concern that the suggestion by ticket 
agents to provide baggage fees only upon request could lead to 
consumers having an incorrect understanding of the cost of the 
itinerary selected, and the member representing airport operators noted 
that the ticket agent suggestion regarding baggage fees appeared to 
conflict with the proposed requirement that ticket agents must refund 
baggage fees not disclosed during the ticket purchase process. 
Regarding change and cancellation fees, the ACPAC member representing 
consumers stated that consumers in offline transactions

[[Page 34654]]

should not have less information than those who transact online, and 
the member representing state and local governments noted that seniors 
and low-income individuals may not have access to or knowledge of 
online booking tools and stated that those individuals were no less 
deserving of or interested in fee information than those searching 
online.
    Similarly, AARP supported DOT's proposal to require airlines and 
ticket agents to provide critical ancillary fee information at the time 
that schedule information is provided to the consumer for offline 
transactions. AARP stated that ``due to disability, lack of access, or 
simply preference, some consumers will seek fare information by phone 
or in person'' and noted that these same factors ``would likely inhibit 
[those consumers] from looking for the fee disclosures online.'' An 
individual commenter similarly requested that the Department require 
disclosure of critical ancillary fee information during phone bookings, 
stating that disclosure is necessary for accessibility and equal access 
to information for consumers using offline booking channels. This 
commenter stated that the alternative of referring offline consumers to 
a website for ancillary fee information improperly places the burden on 
consumers to obtain fees when the burden should rest with sellers of 
air transportation.
    Industry commenters generally opposed the proposal to require 
affirmative disclosure of first checked, second checked, and carry-on 
bag fees, change and cancellation fees, and family seating fees at the 
time that fare and schedule information is provided during offline 
transactions. These commenters expressed concerns about the effect that 
the proposed offline disclosures would have on the ability to maintain 
reasonable wait times and assist passengers in a timely manner, with 
IATA noting that such concerns would be particularly acute when serving 
travelers at the ticket counter. Airlines further stated that the 
requirement to provide potentially dozens of critical ancillary fees 
would confuse and overwhelm passengers, and Air Canada asserted that it 
is likely that consumers preferring phone or in-person services are not 
looking to compare prices. ASTA estimated that the proposed disclosures 
would add at least 20 seconds to each offline transaction by ticket 
agents at an estimated cost of $21.3 million per year in ``talk time'' 
for agents.
    Industry commenters recommended alternatives to the Department's 
proposal for offline disclosures. Ticket agents and their associations 
generally suggested that DOT should require airlines and ticket agents 
to provide ancillary fee disclosures ``upon request,'' rather than 
affirmatively. For example, ASTA stated that requiring ancillary fee 
disclosures for offline transactions only upon request ``would allow 
ticket agents to use their professional judgement as to the fee-related 
information their clients need when such information is not 
specifically requested,'' with different levels of information 
appropriate for seasoned and infrequent travelers. TMC suggested that 
the Department allow airlines and ticket agents to direct consumers to 
an online source for fee information, such as ``an airline's website, a 
corporate travel booking tool, or other available reference.'' 
Similarly, some airlines and their associations asked the Department to 
allow carriers to advise passengers that additional fees may apply and 
direct passengers to an airline website for detailed ancillary fee 
disclosures. IATA asked that DOT allow disclosure that additional fees 
may apply ``either to begin the call or during the time the customer is 
holding for an agent.'' GBTA recommended that the Department consider 
requiring disclosure of a ``total likely price'' after the agent 
obtains information on whether the consumer plans to check a bag.
    DOT Response: After carefully considering the comments, the 
Department is modifying its proposal for offline transactions in this 
final rule to require airlines and ticket agents to disclose critical 
ancillary fees to consumers who request them following disclosure that 
such fees apply to the searched itinerary. Specifically, the airline or 
ticket agent must disclose in an offline transaction that baggage fees, 
change fees, and cancellation fees apply when a fare is quoted with an 
itinerary if that is the case, and ask the consumer if they wish to 
hear the specific baggage fees, change or cancellation fees, and any 
other critical ancillary service fees that apply. If the consumer 
requests information about a single or multiple critical ancillary 
fees, then the airline or ticket agent must disclose the requested 
information that applies to the fare and itinerary quoted, adjusted 
based on any passenger-specific information provided by the consumer.
    The Department agrees with comments stating that requiring 
disclosure of critical ancillary fee information for all possible 
flight options to all offline consumers at the time that schedule 
information is provided might significantly increase hold times and 
delay airlines and ticket agents in assisting consumers. Therefore, the 
Department is permitting such offline disclosures to be made upon the 
consumer's request, provided that affirmative notice is given that a 
fee applies to the quoted itinerary. The Department disagrees with 
comments asking that it authorize airlines and ticket agents to refer 
passengers who seek booking assistance offline to critical ancillary 
fee information in online sources or that it should allow ticket 
sellers to provide this information only upon request without any 
affirmative disclosure required. While carrier websites must be 
accessible for passengers with disabilities,\100\ the Department agrees 
with AARP that the same factors that lead some consumers to seek 
offline information about schedules and fares may also inhibit those 
consumers seeking critical ancillary fee information online, and so the 
recommendation to refer consumers to online sources would not 
appropriately address the needs of passengers. In addition, because 
fees for change and cancellation are often provided as a range on 
airline websites, finding the specific applicable change or 
cancellation fee for an itinerary quoted offline would be 
impracticable.
---------------------------------------------------------------------------

    \100\ 14 CFR 382.43(c).
---------------------------------------------------------------------------

    The Department's requirement that sellers of air transportation 
inform consumers in offline transactions that bag fees and change and 
cancellation fees apply to a particular itinerary is intended to 
provide consumers notice that a specific itinerary being quoted to them 
carries additional fees for these ancillary services. It is not 
sufficient to provide a generic disclosure that ``additional fees may 
apply,'' as recommended by IATA. Such a statement provides little 
useful information to consumers searching for the total cost of an 
itinerary and does not indicate what fees apply or the amount of those 
fees. The Department found that a similar notice in online search 
tools, as required by existing regulation, was equally insufficient. As 
provided in this final rule, the requirement is to provide a statement 
that bag fees, change fees, and cancellation fees apply to a specific 
itinerary being quoted, if that is the case. If, for the quoted 
itinerary, there is no additional charge for the consumer to check one 
or two bags or to bring on-board a carry-on bag, or to change or cancel 
the ticket, then no statement about these fees need be made in 
association with the quoted itinerary. If, however, a fee for one or 
more critical ancillary services applies to the quoted itinerary, then, 
under the requirement in this rule, the airline or ticket agent must

[[Page 34655]]

notify the consumer that an additional fee applies for baggage or 
change or cancellation and permit the consumer to request the fee 
information. If the consumer requests fee information for any critical 
ancillary service, the airline or ticket agent must disclose it.
    The requirement in this rule strikes the appropriate balance 
between minimizing delays in assisting passengers at the ticket counter 
or by phone and ensuring that consumers receive critical ancillary fee 
information. The Department does not adopt GBTA's proposal to permit 
airlines and ticket agents to quote a ``total likely price'' based on 
whether a consumer plans to check a bag because that proposal does not 
address all critical ancillary fee information nor would the allowance 
for a ``likely'' price quote allow a passenger to assess the true cost 
of air travel.

(5) Passenger-Specific and Anonymous Search Fee Disclosures

    Proposal: The Department proposed to require passenger-specific or 
anonymous itinerary search disclosure of critical ancillary service 
fees, based on the consumer's choice, whenever fare and schedule 
information is provided. For searches where the passenger elects to 
provide passenger-specific information to the carrier or ticket agent, 
such as frequent flyer status, payment method, or military status, the 
Department proposed to require carriers and ticket agents display the 
fees for critical ancillary services in the form of passenger-specific 
charges for the itinerary. The Department proposed to treat a search as 
passenger-specific if a user provided passenger-specific information to 
the airline or ticket agent before conducting the search ``including 
when conducting previous searches if the information is cached, or if 
the user conducts a search while logged into the search website and the 
operating entity of that website has passenger-specific information as 
part of the user's profile.'' \101\ If the consumer conducting a search 
elects not to provide passenger-specific information to the carrier or 
ticket agent (i.e., the consumer conducts an ``anonymous itinerary 
search''), then the Department proposed to require carriers and ticket 
agents to display the fees for critical ancillary services as 
itinerary-specific charges.
---------------------------------------------------------------------------

    \101\ 87 FR 63736.
---------------------------------------------------------------------------

    Comments: The ACPAC recommended that the Department maintain its 
proposal to require airlines and ticket agents to display passenger-
specific baggage and change and cancellation fees in any final rule. At 
the January 12, 2023, meeting, the ACPAC member representing airlines 
stated that providing passenger-specific fees increases the complexity 
of the search process. He urged ACPAC members to consider the amount of 
information required to be presented to consumers under the NPRM and 
the impact these disclosures could have on the speed of providing 
search results to consumers given the number of ancillary fees required 
to be displayed at the time schedule and fare information is first 
provided.
    In their written comments and hearing testimony, other industry 
commenters also opposed the requirement to provide passenger-specific 
fees for critical ancillary services. These commenters stated that 
passengers who have status with an airline already know about the 
benefits associated with their status, and so the disclosure would have 
little benefit for those consumers. The commenters added that it was 
impractical for consumers to provide ticket agents with all possible 
loyalty numbers before conducting a search. They further added that it 
was technologically infeasible to comply with the passenger-specific 
requirement, particularly on the first page of search results, with 
many citing concerns about technology for ticket agents to validate the 
passenger's status before displaying passenger-specific fees. For 
example, Booking Holdings stated that ``to enable passenger-specific 
displays that would need validation from airlines (e.g., frequent flyer 
account status and credit card affinity status) or third parties (e.g., 
military status), would be technically prohibitive.'' Booking Holdings 
added that, without validation of information provided by the consumer, 
there is a risk that online travel agents would provide incorrect 
information to consumers about applicable fees.
    Similarly, American Airlines testified at the Department's March 
30, 2023, public hearing about challenges with validating passenger 
status using the EDIFACT platform and stated that querying and 
displaying passenger-specific fees at the first page of search results 
would affect the reliability and speed of search results. American 
Airlines further acknowledged in its comments, however, that it 
currently provides passenger-specific information ``to the extent 
technologically feasible,'' including seat and bag fees for passengers 
with status logged in to the airline's website and military personnel 
who access the American Airlines site through a military booking 
channel. Echoing concerns raised by other commenters, American Airlines 
stated that other passenger-specific fee information is impracticable 
to provide at the first page of search results because it cannot be 
validated at that time, citing the example of military status for 
individuals booking travel outside of an official military booking 
channel. In addition, Google expressed concern about consumer privacy 
if metasearch entities were required to collect and share customer data 
with airlines and ticket agents to comply with the passenger-specific 
search requirement.
    Ticket agents uniformly expressed concerns about the volume of 
queries they would need to conduct to provide passenger-specific 
information. For example, USTOA commented that ``the volume of data 
transmission necessary to provide for the level of specificity [for 
passenger-specific fees] contemplated under the proposed rule is 
unmanageably large and complex,'' noting that there are currently 47 
different co-branded credit cards for ``major'' U.S. airlines, with 
various policies across airlines regarding when the airline waives the 
passenger's bag fee (e.g., some credit cards entitle a passenger's 
travel companion to a free bag, while others do not). Similarly, Sabre 
commented that the proposed rule required passenger-specific 
information for too many passenger characteristics and added that it 
was unclear that the list of passenger-specific criteria in the NPRM 
was exhaustive. In addition, Sabre expressed concern that the 
requirement to provide passenger-specific ancillary fee information 
could lead to providing inapplicable fee information if only one 
passenger in a travel party has status or if status is lost between the 
time of booking and travel. Further, Travel Tech stated that ``ticket 
agents would need to receive a huge volume of data from airlines for 
this proposal to work, but systems to exchange vast amounts of 
passenger-specific status information between airlines, agents and GDSs 
do not currently exist.'' Given the concerns raised by ticket agents, 
Booking Holdings requested that DOT not require passenger-specific 
disclosures, at least until new systems could be developed, and asked 
the Department to modify the proposal to require airlines and ticket 
agents to inform passengers how fees may differ based on frequent flyer 
privileges, military status, and other factors, instead of providing 
specific fees.
    A joint comment from multiple consumer groups stated that the 
options for anonymous and passenger-specific searches ``will be 
beneficial to consumers, allowing them to customize

[[Page 34656]]

their purchasing process.'' This comment further stated that any 
additional time necessary to implement passenger-specific requirements 
should not be used to delay the implementation timeline for the rest of 
the NPRM's requirements. Travelers United stated that passenger-
specific characteristics can make a significant difference in 
determining the total price of an airfare but noted that the complexity 
of ancillary fee structures makes providing that information on a 
single page ``difficult, if not impossible with current technology.''
    DOT Response: This final rule maintains, with modifications, the 
requirement for airlines and ticket agents to provide passenger-
specific fees for critical ancillary services if the consumer elects to 
provide passenger-specific information, and to provide itinerary-
specific fees for critical ancillary services if the consumer does not 
do so. The Department clarifies that the list of information specific 
to the passenger provided in the rule text--frequent flyer status, 
military status, and credit card status--is illustrative and not 
exhaustive. Because variation in fees within each carrier depends on 
the status of the passenger, fares provided without additional 
disclosure of the critical ancillary fees specific to the passenger 
fail to provide consumers with adequate notice of the total cost of the 
air transportation. Disclosure of the passenger-specific fees will 
promote informed buyers, enhance competition, and lower prices.
    The Department disagrees with comments stating that the complexity 
of airline policies for assessing passenger-specific fees or the number 
of queries that must be conducted to produce passenger-specific fees 
counsels against adopting a passenger-specific fee requirement. 
Ancillary fee structures that ticket agents or airlines find complex to 
administer are likely to lead to consumer confusion regarding fees. The 
costly and time-consuming burdens of determining passenger-specific 
fees are currently borne by consumers, a key harm that the Department 
seeks to remedy in this final rule, and makes disclosure of such fees 
necessary, even for experienced travelers with airline status. In 
addition, this final rule allows additional flexibility for industry 
beyond what was proposed, which will reduce the burdens to airlines and 
ticket agents in disclosing passenger-specific fees for critical 
ancillary services.
    Further, many of the commenters who opposed the requirement to 
provide passenger-specific fees appear to believe that the proposal 
would require airlines and ticket agents to validate the passenger-
specific information provided by the consumer before displaying 
itinerary search results. Those comments misunderstood the Department's 
proposal. Neither the NPRM nor this final rule would require an airline 
or ticket agent to verify passenger-provided information before 
disclosing critical ancillary fees when schedule and fare information 
is provided. To address this misunderstanding, in this final rule, the 
Department clarifies that the disclosure of critical ancillary fees to 
consumers may be based on information provided by consumers. If a 
consumer elects to provide passenger-specific information to the 
carrier or ticket agent, that consumer has a responsibility for 
ensuring the information provided is accurate. An airline or ticket 
agent that relies on the information provided by a consumer when 
disclosing the critical ancillary service fees applicable to that 
consumer would not be in violation of the requirement for the fee 
information to be accurate should the consumer provide inaccurate 
information (e.g., incorrect frequent flyer account status or credit 
card affinity status). An airline or ticket agent may elect to verify 
passenger-provided information at the point that the critical ancillary 
service is purchased rather than at the time of itinerary search. While 
this may result in the passenger later being charged a different fee 
than what was disclosed during the initial search (e.g., if the 
passenger entered erroneous passenger-specific information), such harm 
is reasonably avoidable by the consumer providing the airline or ticket 
agent with accurate passenger-specific information.
    The Department concludes that it is feasible for airlines and 
ticket agents to provide passenger-specific information as required by 
this final rule. American Airlines' comment suggests that it already 
provides much of the passenger-specific ancillary fee information 
required by the rule, providing strong evidence that the proposal can 
be implemented. In addition, many consumers, including those with a 
beneficial status, may choose to conduct an anonymous itinerary search, 
limiting the potential burden on carriers and ticket agents to conduct 
passenger-specific adjustments in the aggregate. The barrier that 
American Airlines identified to passenger-specific fees (i.e., the need 
for validation of passenger data before the display of fees) is not 
required for compliance, and the Department expects this fact to 
further mitigate the concerns of regulated entities regarding potential 
burdens. In addition, the Department has made several changes and 
clarifications from the NPRM that address concerns commenters raised 
about the feasibility of the proposed passenger-specific fee 
requirement. First, the Department has extended the period for 
compliance with the final rule's requirements, as discussed in section 
F, to allow additional time for data sharing and implementation of the 
final rule's requirements. In addition, this final rule does not 
require airlines and ticket agents to disclose or transact family 
seating fees, a key area of technical concern for many industry 
commenters. Further, this final rule provides flexibility in how fee 
information is displayed so long as the information is accurate, clear, 
and conspicuous, rather than limiting these disclosures to a display in 
static text as proposed. The Department expects that these changes will 
greatly reduce the technological burdens of disclosing passenger-
specific fee information when schedule and fare information is provided 
in response to a consumer's search.
    Because this final rule does not require ticket agents to validate 
passenger-specific data, the privacy concerns raised by Google do not 
apply. The Department nonetheless concludes that privacy concerns could 
be implicated if an airline or ticket agent treats an itinerary search 
as ``passenger-specific'' based on information not affirmatively 
provided by the passenger for that search, such as a search based on 
cached information. Under this rule, a consumer is entitled the option 
to conduct an anonymous itinerary search, which does not consider any 
passenger-specific information. A consumer should not see a specific 
fee or ticket price tailored to the consumer if the consumer elects to 
conduct an anonymous itinerary search. If such a search did, in fact, 
take into account passenger-specific information not affirmatively 
provided by the passenger for that search, the Department may take the 
view that the consumer was not afforded an anonymous itinerary search, 
which would be a violation of this regulation. Accordingly, this final 
rule defines a search as passenger-specific only when the search is 
based on information affirmatively provided by the passenger to the 
airline or ticket agent for purposes of that search.

(6) Opt-Out Provisions

    Proposal: The Department did not propose to permit airlines and 
ticket agents to enable consumers to opt out of receiving fee 
information for any critical ancillary services during the search 
process. Instead, the Department sought comment on whether to allow 
carriers

[[Page 34657]]

and ticket agents to provide consumers an opt-out option from receiving 
ancillary service fee information that would otherwise be required. The 
Department explained that opt-out options could potentially include the 
choice to opt out of seeing all baggage fee information that would 
otherwise be required to be displayed (first and second checked bag and 
carry-on bag), to opt out of seeing fee information related to changing 
or canceling a reservation, to opt out of seeing seat fee information 
for a child traveling with an adult, or to opt out of seeing some of 
those fees.
    Comments: Industry commenters generally supported permitting 
consumers to opt out of critical ancillary fee disclosures. These 
commenters stated that experienced travelers aware of airline ancillary 
fees may want to opt out of disclosures and that allowing consumers to 
opt out would provide a more efficient search with customized results 
for consumers. Spirit Airlines commented that a binary choice of 
whether a consumer wishes to view ancillary fee information provided at 
the start of the search process avoids any concern about ``click wrap'' 
tactics that do not represent a meaningful choice for consumers. Among 
industry commenters who recommended variations on this general 
approach, Booking Holdings recommended that consumers be required to 
affirmatively opt in to receive critical ancillary fee disclosures, 
stating that its recommendation was based on studies that demonstrate 
that schedule and fare are the most important factors in a consumer's 
decision. Google supported either an opt-out or opt-in provision for 
metasearch sites.
    Groups representing consumers and individual commenters recommended 
different approaches. AARP recommended allowing opt outs in limited 
circumstances, stating, for example, it may be acceptable to allow ``a 
traveler to opt out of certain disclosures (such as a single traveler 
opting out of adjacent seating fee disclosures)'' on a mobile app where 
screen space is limited, but it added that any circumstance in which 
opt outs are permitted ``should be the exception rather than the 
rule.'' One individual supported allowing consumers to opt out of 
ancillary fee disclosures based on concern about information overload 
from disclosure of all critical ancillary fees at the first page of 
search results. Another opposed opt outs with the view that opt outs 
improperly empower airlines and ticket agents to frame the question to 
the user about whether to forgo the otherwise-required information. 
That individual instead recommended that fees be ``zeroed out'' when 
both the airline and consumer have reason to believe based on 
information from the initial fare search or customer profile that the 
consumer does not need a particular ancillary service.
    For first checked, second checked, and carry-on baggage, the ACPAC 
recommended that consumers should be given the opportunity to indicate 
how many bags they will be traveling with early in the itinerary search 
process, and the fees applicable to the consumers' selections should 
then be displayed. This recommendation was proposed by the ACPAC Chair 
who stated that she did not believe that her recommendation was an opt-
in or an opt-out. The ACPAC member representing airlines viewed this 
proposal as an opt in by consumers and stated that the recommendation 
was contrary to the Department's proposal. This member expressed 
concern about how regulating the search landing page could impact 
efficient search options currently available to consumers.
    At the Department's March 30, 2023, public hearing, NCL supported 
the same approach recommended by the ACPAC, and FlyersRights made a 
similar recommendation in its written comments. Travel Tech objected to 
the ACPAC recommendation on the basis that, in its view, the 
recommendation was outside the scope of the NPRM. Travel Tech further 
commented that the ACPAC recommendation would require ticket agents to 
redesign their websites to include a bag inquiry, which would require 
significant resources. Travel Tech asked that ticket agents be provided 
with flexibility to adopt this method at their option.
    Regarding change and cancellation fees, the ACPAC recommended that 
the Department should not provide the option for consumers to opt out 
of receiving change and cancellation fee information. The ACPAC member 
representing airport operators stated that because change and 
cancellation fees are not an a la carte item that consumers select but 
instead operate as penalties, the Department should require their 
display with no opt-out allowance.
    DOT Response: The Department agrees with AARP that enabling opt 
outs from disclosure of ancillary fees that DOT has determined are 
critical to consumers' purchasing decisions ``should be the exception 
rather than the rule.'' Accordingly, this final rule requires airlines 
and ticket agents to disclose change and cancellation fees to all 
consumers before ticket purchase without any opt-out allowance. It also 
prohibits airlines and ticket agents from enabling consumers to opt out 
of receiving fee information for a first checked bag, a second checked 
bag, or a carry-on bag during the search process with one exception. In 
response to the recommendation by the ACPAC, the Department is allowing 
an exception to the requirement to disclose fees for transporting a 
first checked bag, second checked bag, and carry-on bag on online 
platforms in circumstances where a consumer affirmatively indicates 
that no one in their booking party plans to travel with a first checked 
bag, a second checked bag, or a carry-on bag.
    More specifically, under the final rule, a carrier or ticket agent 
is excepted from the requirement to disclose bag fees with the fare and 
schedule information if (1) an airline or ticket agent asks its 
consumers if they intend to travel with a carry-on bag or checked bags; 
and (2) consumers affirmatively indicate that no one in the booking 
party intends to travel with a carry-on bag or first or second checked 
bags. The Department notes that if consumers affirm that they are not 
traveling with any bags, then the carrier or ticket agent does not have 
to disclose any of the bag fees. If consumers affirm that they are not 
traveling with a checked bag, then the carrier or agent is not required 
to disclose the fees for first or second checking bags. If consumers 
fail to provide an affirmation, then the carrier and ticket agent must 
display all the required bag fees. The Department is making this 
exception available to carriers and ticket agents should they prefer it 
to providing fees for a first checked bag, a second checked bag, and a 
carry-on bag in all instances when fare and schedule information is 
provided. A carrier or ticket agent that elects to use this exception 
must still provide the baggage weight and dimension information 
discussed in section E (4)(b) before ticket purchase so that a consumer 
has access to information about whether their travel plans are 
consistent with a particular carrier's weight and dimension 
limitations.
    In contrast to baggage fees, consumers are unlikely to know at the 
time of booking that they would later need to cancel or change a flight 
and are unable to opt-out of these fees on an informed basis. As 
explained in the NPRM, change and cancellation fees can be significant 
and, in some cases, higher than the original fare paid by the consumer. 
Accordingly, this final rule does not allow airlines and ticket agents 
to enable consumers to opt out of disclosure of change and cancellation 
fees.

[[Page 34658]]

(7) Transactability

    Proposal: The Department proposed to require airlines and ticket 
agents that impose a fee for children 13 or under to be seated next to 
an accompanying adult to enable the purchase of family seating at the 
point of ticket purchase (i.e., transactability). The Department 
explained that transactability is necessary because consumers are not 
able to save the seat or lock in the price for adjacent seating at the 
time of ticket purchase. The Department did not prescribe a particular 
way for the regulated entities to comply. It noted that, to ensure that 
a consumer receives family seating information as part of the itinerary 
search results and accompanying fare quotations, a carrier or ticket 
agent could decide to enable consumers to disclose that a passenger 13 
or under will be traveling prior to initiating an itinerary search. The 
Department also stated that a carrier or ticket agent could 
alternatively decide to display seating fees for all itinerary 
searches, regardless of whether a consumer disclosed that a passenger 
was 13 or under.
    In contrast, the Department did not propose to require fees for a 
first checked, second checked, or carry-on bag or a ticket change or 
cancellation to be transactable at the point of purchase. The 
Department explained that it has not identified evidence of consumer 
harm resulting from a lack of transactability of baggage, change, or 
cancellation fees because these fees cannot increase after ticket 
purchase. In addition, the Department observed that there is no change 
or cancellation fee to transact at the point of ticket purchase because 
the consumer would not know at that time that they will cancel or 
change the ticket.
    Comments: Ticket agents, including GDSs, and their associations 
generally requested that the Department require transactability of all 
critical ancillary fees, not only fees for children 13 or younger to be 
seated adjacent to an accompanying adult. Representatives of the travel 
technology industry also made this recommendation at the June 2022 
ACPAC meeting.\102\ Among the concerns expressed by Amadeus, 
Travelport, Travel Tech, and others were that the inability to purchase 
ancillary services from ticket agents would drive consumers away from 
ticket agents, harm the ability of consumers to comparison shop, and 
result in consumers spending additional time to purchase ancillary 
services on airline websites after purchasing fares from ticket agents. 
These commenters stated that consumers might pay more to purchase 
ancillary services at a later time if the Department elects not to 
require transactability of all critical ancillary fees. For example, 
Travel Tech stated that, if airlines are able to quote different 
baggage fee amounts depending on when the passenger pays for the bag 
(e.g., a higher fee applies if paid closer to the flight date or at the 
airport instead of at the time of booking), then the lack of 
transactability for a first checked, second checked, and carry-on bag 
could still result in a passenger paying more than they would at the 
point of ticket purchase.
---------------------------------------------------------------------------

    \102\ See presentations of ASTA, Travel Tech, and Amadeus, and 
Skyscanner, available at https://www.transportation.gov/airconsumer/ACPAC/June2022Meeting/webcast (June 2022, Day 1 afternoon session).
---------------------------------------------------------------------------

    Some ticket agents, including GDSs, and associations also asked the 
Department to expand the proposed requirement for transactable family 
seating fees to include all seat fees. For example, Booking Holdings 
asked DOT to require transactability of all seat fees if DOT maintained 
the proposed requirement that family seating fees be transactable 
because the ``significant expense of building the required technology 
would be offset by greater functionality for most consumers'' if the 
proposal were expanded. Amadeus asserted that there was a particularly 
strong argument for transactability of all seat fees due to 
availability and price changes. However, the U.S. Tour Operators 
Association (USTOA) and others stated that ticket agents currently lack 
the technology to make seat fees transactable.
    Airlines and metasearch providers urged the Department not to 
require transactability of any critical ancillary service fee including 
family seating fees. For example, IATA and Southwest submitted comments 
opposing transactability requirements for any ancillary fees. These 
commenters expressed concern that airlines and ticket agents operate 
through contractual arrangements and stated that airlines should not be 
required to contract with third parties to sell airlines services. IATA 
testified at the Department's March 30, 2023, public hearing that 
travel agent websites would require new digital connections to airlines 
to display transactable seat fees, which would require years of 
information technology development. Metasearch providers Skyscanner and 
Google expressed concern that the proposed rule's transactability 
requirement would alter the nature of their business by requiring 
metasearch sites to sell seating.
    DOT Response: The Department has decided not to impose any 
requirement in this final rule that ancillary fees be transactable at 
the point of ticket purchase. As discussed in section E (3)(c), the 
Department is not moving forward with its proposal to require carriers 
and ticket agents disclose fees for young children to be seated next to 
an accompanying adult on an aircraft and is instead pursuing a separate 
rulemaking to prohibit these fees.\103\ Additionally, as discussed in 
section E (3)(d), given that the cost of air transportation includes a 
seat and the lack of clarity about the importance of seat selection 
fees to consumers, the Department is not requiring carriers or ticket 
agents to disclose seating fees as required critical ancillary service 
fees in this final rule. Further, the Department continues to be of the 
view that the lack of transactability of baggage, change, or 
cancellation fees does not harm consumers.
---------------------------------------------------------------------------

    \103\ See Fall 2023 Unified Agenda for rulemaking titled 
``Family Seating in Air Transportation'' (RIN 2105-AF15) at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AF15.
---------------------------------------------------------------------------

    The Department is not persuaded by comments asserting that 
consumers might pay more to purchase ancillary services if the 
Department elects not to require transactability of all critical 
ancillary service fees. The Department has identified transporting a 
first checked, second checked, and/or carry-on bag and changing or 
canceling a reservation as critical ancillary services. The fee rules 
for these critical ancillary services do not change after a consumer 
has purchased a ticket. The fees that are disclosed to the consumer 
during the booking process will be those fees that apply to the ticket. 
Because the fee schedules for critical ancillary services are 
effectively frozen at the time of ticket purchase--which may include 
disclosing that fees will be higher if paid at the airport rather than 
at time of booking so long as that is disclosed up front--requiring 
transactability of critical ancillary service fees at the point of 
ticket purchase would provide little value, as consumers would be able 
to pay for critical ancillary services in the time and manner of their 
choosing. Through the fee disclosures required by this rule, consumers 
should be aware, for example, that a bag fee may be higher on the day 
of travel, if that is the case, so they can plan accordingly.
    Also, as noted in the NPRM, because consumers would not know that 
they will cancel or change a flight at the time of ticket purchase, 
there is nothing to transact for those fees at the time of purchase. As 
with baggage fees,

[[Page 34659]]

increases beyond the fees that were disclosed at the time of ticket 
purchase are prohibited for change or cancellation fees, and so there 
is no consumer harm from not requiring change or cancellation fees to 
be transactable at the point of ticket purchase.
    The Department disagrees with commenters that the lack of a 
requirement to make critical ancillary fees transactable on ticket 
agent websites will drive consumers away from ticket agents. This rule 
maintains the status quo on the transactability of ancillary fees. A 
significant percentage of airline ticket sales are handled by ticket 
agents today, even in the absence of a regulatory requirement that 
ancillary fees be transactable on ticket agent websites, and ticket 
agents will continue to have the option under this final rule to enter 
into contractual agreements with carriers to sell ancillary services.

(8) Data Sharing

    Proposal: The Department proposed to require airlines that provide 
fare, schedule, and availability information to ticket agents to sell 
or display the carrier's flights directly to consumers, to provide such 
ticket agents useable, current, and accurate information of the fee 
rules for a first checked bag, a second checked bag, one carry-on bag, 
canceling a reservation, and changing a reservation. The Department 
also proposed that such airlines provide family seating fee rules to 
ticket agents and enable these fees to be transactable by ticket 
agents. The intention of the proposal was for ticket agents to have 
access to critical ancillary service fee information sufficient to 
enable the ticket agents to disclose such fees to consumers.
    Under the proposal, carriers would not be required to distribute 
ancillary service fee information to any ticket agent to whom the 
carrier does not choose to distribute its fare, schedule, and 
availability information. If a carrier did not share fare information 
with a ticket agent, then this proposal would not require that carrier 
to share ancillary service fee information with that ticket agent. The 
proposal left open the method by which carriers could choose to 
distribute fee information to ticket agents. The Department did not 
propose to require carriers use GDSs to distribute fee information to 
ticket agents. Each carrier would determine for itself whether to 
distribute critical ancillary service fee information through GDSs as 
most carriers already use GDSs to distribute fare and schedule 
information.\104\
---------------------------------------------------------------------------

    \104\ The Department has also discussed the airline distribution 
system in prior rulemakings. See, e.g., 79 FR 29970, 29975 (May 23, 
2014), available at https://www.govinfo.gov/content/pkg/FR-2014-05-23/pdf/2014-11993.pdf and 82 FR 7536 (Jan. 19, 2017), available at 
https://www.govinfo.gov/content/pkg/FR-2017-01-19/pdf/2017-00904.pdf.
---------------------------------------------------------------------------

    Comments: Industry comments on this issue were extensive. While 
airlines generally agreed that the rule should not require that they 
use GDSs to distribute fee information to ticket agents that sell or 
display directly to consumers, some airlines also expressed concern 
regarding the proposed requirement to distribute information. Ticket 
agents, on the other hand, expressed the view that airlines should be 
required to distribute information to any entity to which the airlines 
distribute fare and schedule information, including GDSs.
    The ACPAC deliberated on the subject of data sharing, and although 
it did not make a recommendation on whether or how the data should be 
shared, the ACPAC member representing consumers commented that he did 
not see how ticket agents could display fees if the fee information was 
not provided to them.\105\ The ACPAC members representing airlines and 
airports supported the Department's proposal on not requiring airlines 
to share fee information with GDSs, with the member representing 
airlines expressing agreement with the Department's rationale to not 
interfere with contractual relationships.\106\ During deliberations, 
the member representing airlines commented that airline contractual 
relationships are the result of bargained-for terms, and he cautioned 
the committee from weighing into those relationships and giving one 
party veto power over the other in negotiations. The member 
representing airports noted that the sharing of data is the foundation 
for all other disclosure recommendations regarding ticket agents. The 
ACPAC's recommendation on data sharing was for the Department to 
clarify and refine what is meant by ``useable, current, and accessible 
in real-time'' and ``non-static dynamic fashion'' when describing how 
data is to be shared by airlines to ticket agents.
---------------------------------------------------------------------------

    \105\ See Aviation Consumer Protection Advisory Committee--
January 12, 2023, Meeting Minutes, available at https://www.regulations.gov/document/DOT-OST-2018-0190-0111.
    \106\ No recommendations were made on this specific question, as 
two of the four ACPAC members were prepared to abstain from voting 
on this issue.
---------------------------------------------------------------------------

    In written comments, IATA, A4A, the National Airlines Council of 
Canada, and several other airlines supported the proposal's lack of a 
mandate on providing fee information to GDSs. IATA also commented that 
airlines should not be required to share data with metasearch companies 
that are not authorized agents of the airline. IATA noted two available 
options for establishing agent-airline connections sufficient to 
present dynamic bag fee information: direct connect, where the agent or 
agency enters into a direct connection with an airline, or IATA's New 
Distribution Capability (NDC), essentially an XML-based technical 
standard for use in airline distribution where an airline shares its 
NDC application programming interface with the ticket agent or the 
agent's technology provider. On NDC, American Airlines added that NDC 
provides more information and better customization than GDSs. IATA 
stated that some online ticket agents contract directly with ATPCO for 
fee information rather than relying on GDSs. IATA expressed concern 
about the capabilities of GDSs, stating that GDSs would need to divert 
IT resources away from improving the passenger booking experience to 
instead deliver ancillary fee information. It noted that GDSs had 
trouble implementing the requirements of the 2011 final rule, due to 
its outdated system EDIFACT, and that GDSs have not met their 
commitments to support the NDC. IATA also stated that a requirement to 
use GDSs would give the three major GDS companies the ability to 
extract exorbitant fees from airlines and artificially extend the use 
of an outdated network. A4A added its view that GDSs generally resist 
carrier innovation in product offerings, and American Airlines agreed 
that GDSs lack technological capabilities.
    Some individual airlines and an individual commenter opposed any 
requirement to distribute ancillary fee information to ticket agents. 
Air Canada stated that the rule would force carriers to manage GDSs and 
how their information would be displayed on other channels, and the 
individual commenter asserted that airlines would be put in the 
position of being called to task for problems caused and errors made by 
third parties. Frontier Airlines stated that it uses proprietary 
technology and algorithms incompatible with GDSs, and any requirement 
that it provide data to ticket agents would require rebuilding the 
airline's distribution capabilities. Southwest Airlines stated that it 
does not generally contract with ticket agents and that the decision on 
whether to contract with a ticket agent should be left to the airline. 
The individual commenter also stated that the proposal was contrary to 
the

[[Page 34660]]

Airline Deregulation Act by forcing airlines to conduct business with 
OTAs and GDSs, even though the carrier's own business plan and IT 
system may be designed only for direct sales to the customer.
    Ticket agents, including GDSs, generally asserted that the rule 
should require airlines to distribute fee information to GDSs. Travel 
Tech, for example, stated that the rule should include GDSs as ticket 
agents, and it added that it would support requiring fee information to 
be provided to all intermediaries to which an airline provides fares 
for distribution, including ATPCO and GDSs. Travel Tech noted that 
airlines already provide fare data to GDSs, and it disagreed with 
airlines' expressed concern that GDSs were wedded to old technology and 
will abuse market power. According to Travel Tech, the requirement to 
display passenger-specific baggage fees is infeasible for ticket 
agents, and not requiring the use of GDSs will add to development time 
and costs. Travel Tech and others noted that significant resources 
would be required for travel agencies to negotiate separately with each 
airline, with Travelport noting that this may cause agencies to shut 
down. Travel Tech added that GDSs are the only entities capable of 
distributing ancillary fee data in the short-term. The organization 
asserted that NDC is not an adequate replacement for GDSs. Amadeus 
expressed disagreement with IATA's assertion that its technology was 
outdated or that GDSs would need to divert resources away from making 
technological improvements to meet the requirements in the rule. 
Amadeus added that requiring that airlines share data with GDSs would 
not delay implementation of the NDC, and that the NDC and EDIFACT would 
need to coexist for some time, with NDC still in its infancy. Other 
ticket agent associations and individual ticket agents, such as ASTA 
and Hopper, as well as GDSs, agreed with the viewpoint that airlines 
should be required to distribute fee information to GDSs.
    Metasearch entities supported the objective of having access to 
airline fee information, but they noted several concerns. Skyscanner 
stated that it supported the sharing of ancillary fee information with 
metasearch entities, noting that the requirement would address a 
longstanding lack of fee disclosure by airlines and ensure that 
metasearch sites can display fee information. Skyscanner also stated 
that it depends on direct connect arrangements and ATPCO and GDSs as 
the primary source of its data, and that the information sharing 
requirements should be extended to include those latter entities. 
Google agreed that fee information should be provided to all 
intermediaries and distribution channels that may be relied upon by 
consumer-facing entities. Skyscanner also urged the Department not to 
permit airlines to impose restrictions on the way their fee information 
is used by the recipients of the information.
    Several commenters expressed viewpoints on the terms ``useable, 
current, and accessible in real-time'' and ``non-static, dynamic 
fashion,'' as referenced in the NPRM. Travel Tech expressed agreement 
with the ACPAC recommendation to clarify the meaning of these terms, 
and it believed that these changes should not require expensive or 
costly manipulation for the display of fees. Travel Tech also expressed 
the view that airlines should be encouraged to work toward data 
uniformity or standardization, with Travelport adding that airlines can 
more efficiently bear the cost of standardizing their own data rather 
than individual ticket agents. Sabre stated that airlines should be 
made to distribute ancillary fee information in a standardized machine-
readable format across all channels they already use to distribute 
fares, including GDSs. USTOA expressed concern that terms like 
``useable'' would be susceptible to differing interpretations, and it 
agreed that a lack of industry standards for furnishing information to 
ticket agents would impose increased compliance costs and practical 
burdens. Skyscanner stated that fee data is not ``useable'' if it 
requires costly processing or other manipulation before it can be 
displayed.
    Multiple commenters, including Travel Tech, Bookings Holdings, and 
Skyscanner, expressed concern about being held responsible for 
inaccurate or incomplete fee data provided by airlines. Travel Tech 
noted, for example, that ticket agents should not be responsible for 
failing to display information not provided by airlines and should not 
be barred from providing flight information because airlines have not 
provided accurate fee data. Skyscanner urged the Department to clarify 
that metasearch sites and other entities will not be held responsible 
if airlines fail to provide covered fee information, which would 
prevent these entities from displaying the information to consumers, 
and it also believes that it should be allowed to display fare, 
schedule, and availability information even if it has not received 
accompanying ancillary fee information from the airline.
    DOT Response: After carefully considering the comments on this 
issue, the Department is requiring airlines to share critical ancillary 
fee information with any entity that is required by law to disclose 
critical ancillary service fee and policy information directly to 
consumers.\107\ The Department agrees with commenters, including 
members of the ACPAC, regarding the need for airlines to share fee 
information with ticket agents for those ticket agents to make the 
required fee disclosures. In the Department's view, the requirement for 
fee data sharing is necessary to enable ticket agents to disclose fees 
to consumers when providing fare and schedule information. The 
Department provides its analysis of how the failure to share critical 
ancillary fee information is an unfair practice in section D (1)(d). In 
this final rule, as discussed in section E (1), the Department is 
requiring ticket agents to disclose critical ancillary service fees and 
policies to consumers. The Department is excluding corporate travel 
agents from these requirements and deferring to another rulemaking its 
determination on whether metasearch sites that do not sell airline 
tickets but display airline flight search options directly to consumers 
are ticket agents that must disclose ancillary fee information 
required. Accordingly, this final rule does not require airlines to 
share critical ancillary service fees with corporate travel agents. It 
also does not require sharing of information with metasearch entities 
unless and until metasearch entities are required to disclose that 
information to consumers. Despite the absence of a regulatory 
requirement, the Department recognizes that it benefits consumers, 
metasearch sites, and airlines if all critical ancillary fee 
information is available through all sources that consumers use to shop 
for air transportation. As a result, the Department encourages airlines 
and metasearch sites to enter into voluntary agreements to share 
critical ancillary fee information while further regulatory action is 
under consideration.
---------------------------------------------------------------------------

    \107\ As noted in sections E (3)(c) and E (7), the Department 
has decided not to move forward with its data sharing and 
transactability proposals related to family seating fees at this 
time.
---------------------------------------------------------------------------

    The Department continues to hold the view that it is not 
appropriate to require carriers to use GDSs to distribute fee 
information to ticket agents. The Department's interest is in ensuring 
that ticket agents disclose critical ancillary service fees to 
consumers whenever fare and schedule information is provided. Whether 
carriers share the required data through GDSs or by direct connect or 
by NDC are business decisions, and the Department seeks to minimize

[[Page 34661]]

government interference with the business relationships between 
airlines, GDSs, and others. The Department notes that changes appear to 
be ongoing in the marketplace for information distribution, including 
the adoption and use of NDC. Further, the comments illustrate that 
there continue to be disagreements between airlines and GDSs on whether 
GDSs have the modern technology airlines need to merchandise and sell 
their products the way the airlines choose. The Department is unwilling 
to impose a prescriptive requirement on this issue while the situation 
is evolving and while the dynamic between airlines and GDSs remains 
highly complex. We believe that these airline-GDS relationships are 
best left to the marketplace. Nothing in this rule precludes or 
requires airlines to use GDSs to distribute critical ancillary fee 
information to consumer-facing ticket agents. As noted in the NPRM, 
GDSs may provide the lowest cost and most efficient way of distributing 
this information to ticket agents that sell the carrier's ancillary 
services. This may lead airlines to conclude that they need or want to 
use GDSs to distribute fee information to meet the implementation 
deadlines imposed by this rule. The Department notes that these 
circumstances may change in the future and an overly prescriptive 
requirement may become too rigid and may ultimately hurt, rather than 
improve, the consumer experience.
    Also, the Department is adopting its proposal requiring the sharing 
of critical ancillary fee information only with the entities that a 
carrier chooses to distribute its fare, schedule, and availability 
information. Under this final rule, airlines are required to share 
critical ancillary fee information only with those entities with whom 
they provide fare, schedule, and availability information and who are 
required to disclose this information directly to consumers. Airlines 
are not required to share ancillary service fee information with 
entities with whom they have no existing relationship for sharing 
airline schedule and fare information.
    On the terms ``current, useable, and accessible in real-time'' (or 
``useable, current, and accurate,'' as this phrase appears in this 
final rule) and ``dynamic, non-static fashion,'' the Department does 
not define these terms in the regulation. The Department recognizes 
commenters' concerns about the lack of standardization in the data 
sharing process; however, as with other aspects of the data sharing 
requirement in the regulation, the Department believes that the 
requirement is better suited to a performance-based, rather than 
prescriptive, standard. A more performance-based framework could enable 
the marketplace to coalesce around several functioning models of data 
transfer that will work to meet the regulation's objectives--namely, 
for ticket agents to have access to ancillary fee information 
sufficient to meet the fee disclosure requirements under this rule. We 
do note that, to meet the fee disclosure requirements of this final 
rule, ticket agents would need to be able to access fee rules and/or 
specific fee information such that each consumer itinerary search will 
result in the provision of accurate and applicable critical ancillary 
fee information that this rule requires. The Department expects that 
this will mean automated data transfers rather than manual. We also 
note that the requirement is for airlines to provide information 
``sufficient to ensure compliance by such entities'' with the 
disclosure requirement. If airlines transfer the data in a way that is 
generally inaccessible to ticket agents despite reasonable efforts by 
the ticket agents to incorporate the data into their systems, then the 
information provided by the airlines is not considered sufficient. We 
expect both airlines and ticket agents to work in good faith to ensure 
that the data is useable to the recipient. Understanding that smaller 
ticket agents may require additional time to modify their systems to 
receive data and to disclose fee information in accordance with the 
regulation, this rule provides for additional time for small ticket 
agents to come into compliance. See section F.
    The Department has considered ticket agents' concern that they 
could be held liable for missing or inaccurate data provided by the 
airlines. After considering these comments, the Department has 
determined that this concern is best addressed through OACP's 
investigatory process since OACP would be able to determine whether 
ticket agents' failure to properly disclose fees is a result of 
receiving incomplete or inaccurate data from an airline, based on the 
specific facts and circumstances of each case. The disclosures required 
by this rulemaking apply to both airlines and ticket agents. Under the 
regulation, if OACP were to investigate and find that missing or 
erroneous fee information displayed on a ticket agent's website was 
entirely the result of airline action or inaction, then OACP would 
pursue action against the airline and not the ticket agent. This rule 
affords airlines flexibility on how fee information is transmitted to 
ticket agents (i.e., whether the airline decides to use direct connect, 
GDS, or another method of delivery) but also requires airlines to 
ensure that information is accurately, timely, and effectively 
transmitted.

(9) Remedies for Noncompliance

    Proposal: The Department proposed to treat as an unfair and 
deceptive practice within the meaning of 49 U.S.C. 41712: (1) the 
failure by a carrier or ticket agent to provide the critical ancillary 
fee disclosures required by the proposed rule, and (2) the collection 
of a fee for critical ancillary services if that fee was not disclosed 
when fare and schedule information was provided. In addition, the 
Department proposed to require a seller of air transportation to refund 
any fee charged for a critical ancillary service if the fee was not 
disclosed at the time the consumer searched for and purchased air 
transportation.
    Comments: The Department received only a few comments directly 
addressing these proposed provisions, all from industry commenters who 
opposed the requirement for a ticket agent to refund fees charged by an 
airline. USTOA stated that the proposed requirement for ticket agents 
to provide refunds for services actually provided, in contrast to 
refunds for services not provided, exceeds the Department's statutory 
authority. This comment asserted that the Department is authorized to 
issue civil penalties for violations of 49 U.S.C. 41712, but not 
equitable relief like disgorgement, and the comment urged the 
Department to rely on investigations and civil penalties to incentivize 
compliance. USTOA also raised concerns about the burdens of retaining 
information to demonstrate what critical ancillary fee information was 
provided to the consumer at the time of search. Similarly, ASTA raised 
concerns with the purported challenges of demonstrating what was 
disclosed by the ticket agent to a consumer in an offline transaction 
and the burden of providing refunds for funds collected by the airline, 
not the ticket agent. Finally, Google stated that an entity that 
displays and relies on ancillary fee information provided by an airline 
should not be liable for a later overcharge by the airline and 
expressed concern that the proposal was likely to impose ``a severe 
financial burden on ticket agents.'' Google added that metasearch 
entities would need to collect and retain personal information for 
purposes of issuing a refund and would not be able to validate data 
provided by a consumer, such as frequent flier status, that may result 
in

[[Page 34662]]

an airline charging a higher fee than was originally displayed.\108\
---------------------------------------------------------------------------

    \108\ Google noted that the proposed rule's preamble stated that 
the refund would be owed by the ``seller of air transportation,'' 
but the draft regulatory text did not use this term and instead 
referred to a refund by a ``ticket agent,'' which the Department has 
previously asserted includes metasearch entities.
---------------------------------------------------------------------------

    DOT Response: After carefully considering the comments, the 
Department is maintaining its proposal to treat as an unfair and 
deceptive practice the failure by a carrier or ticket agent to provide 
and adhere to the critical ancillary fee disclosures required by this 
rule but is not moving forward with its proposal to require a seller of 
air transportation to refund a fee for any critical ancillary service 
charged if the fee was not disclosed at the time the consumer searched 
for and purchased air transportation. While the Department disagrees 
with USTOA's comment that the proposed remedy exceeds DOT's authority, 
the Department has determined that any violations of the disclosure 
requirements can be adequately addressed through its existing 
enforcement process, which can be initiated by a consumer's filing of a 
complaint through OACP's website. The Department notes that, as an 
enforcement policy, OACP ensures that the violating entity has 
corrected the problematic issue and made whole any consumer that was 
negatively impacted. This includes the Department seeking monetary 
relief for consumers in negotiated settlement agreements addressing 
violations of 49 U.S.C. 41712, where appropriate. The Department has 
obtained monetary relief for consumers in previous enforcement matters 
in addition to assessing civil monetary penalties. See 49 U.S.C. 46301.

(10) Other Proposals

(a) Air Tour Packages
    Proposal: The Department proposed that the fee disclosures for a 
carry-on bag, a first checked bag, and a second checked bag under the 
NPRM would not apply to air-tour packages advertised or sold online by 
ticket agents if the air transportation component is not finalized and 
the carrier providing air transportation is not known at the time of 
booking. Instead, the Department proposed to require ticket agents in 
such situations to disclose that additional airline fees for baggage 
may apply and that those fees may be reduced or waived based on the 
passenger's frequent flyer status, method of payment, or other 
information specific to the consumer. The Department further proposed 
that, once the identity of the carrier providing the air transportation 
becomes known, the ticket agent must provide passenger-specific fee 
information for a first checked, second checked, and carry-on bag to 
prospective passengers and those passengers who booked the air-tour 
package before the identity of the carrier was known. The Department 
requested comment on whether this exception for certain air tour 
packages adequately addresses concerns of air-tour package sellers and 
whether such an exception adequately protects consumers.
    Comments: American Airlines opposed the Department's proposal to 
require sellers of air tour packages to state ``baggage fees may 
apply'' if the carrier is unknown at the time of booking. Asserting 
that the Department is essentially exempting air tour package sellers 
from the requirement to disclose baggage fees, American recommended 
that sellers of air tour packages instead be required to provide a 
range of baggage fees when a carrier's identity is unknown. American 
Airlines argued that the Department's proposal would expand a 
technology gap to the detriment of consumers, adding that ``packagers 
are capable of providing reasonable estimates or ranges for potential 
expenses for travelers. These requirements would increase transparency 
and cost certainty for travelers.'' USTOA supported the Department's 
proposal but noted that the NPRM did not specify the timeframe within 
which a ticket agent must provide the required baggage fee disclosures 
to consumers after the identity of the air carrier becomes known.
    DOT Response: The Department disagrees with American Airlines' 
assertion that the Department is exempting air tour package sellers 
from baggage fee disclosure requirements. The Department is adopting 
the proposal requiring that air tour package sellers provide the 
relevant fee information once the identity of the carrier is known. The 
rule does not require that air tour package sellers disclose specific 
bag fees at the time of sale when the identity of the airline is not 
known, as identifying specific bag fees without knowing the operating 
airline could lead to guessing and inaccurate information, thereby 
confusing consumers. The Department has long required carriers and 
ticket agents to provide specific fees for first checked, second 
checked, and carry-on baggage, even under existing regulations that 
permit other ancillary fees to be expressed as a range. Baggage fees 
across carriers vary significantly and so requiring air tour package 
sellers to provide a range of baggage fees, as American Airlines 
recommends, would not assist consumers to assess the costs of 
transportation as the range of baggage fees for multiple carriers would 
be so wide as to render the information useless.
    Under this final rule, if the airline for an air-tour package is 
unknown when a passenger books the package, then the ticket agent must 
disclose in a clear and conspicuous manner at the time that the ticket 
agent first offers a package fare quotation that additional airline 
fees for baggage may apply and that those fees may be reduced based on 
the passenger's frequent flyer status, method of payment, or other 
consumer information. In addition, in response to the comment from 
USTOA, this final rule clarifies that, once the identity of the airline 
for a tour package is known, the ticket agent must provide the baggage 
fee disclosures otherwise required by this final rule at the same time 
that the ticket agent discloses the name of the carrier to the 
passenger.
    The failure to disclose that additional baggage fees may apply when 
a passenger books an air tour package without an identifiable carrier 
and the failure to disclose the passenger-specific fees for a carry-on 
bag, first checked bag, and second checked bag when the carrier is 
known is unfair because it causes or is likely to cause substantial 
injury, which is not reasonably avoidable, and the harm is not 
outweighed by benefits to consumers or competition. This practice is 
likely to cause substantial injury because of the additional funds 
spent to transport bags that might have been avoided if the consumer 
had been able to determine the true cost of travel up front. This harm 
is not reasonably avoidable because consumers likely will not know that 
the bag fees are not included without the disclosure that there may be 
additional bag fees. Also, consumers would not know the cost of the bag 
fee without the ticket agent sharing that information with the 
passenger when the carrier is identified. Further, the harm is not 
outweighed by benefits to consumers or competition as the disclosures 
would ensure consumers are making informed decisions and would enhance 
competition. It is also deceptive to fail to disclose that bag fees may 
apply when the carrier is not known and to fail to disclose the 
passenger-specific fees when the carrier is known. Without these 
disclosures, a reasonable consumer is likely to be misled to believe 
that baggage fees were included in the price and also misled about the 
total purchase price. This

[[Page 34663]]

matter is material as it impacts consumers' funds.
    Air tour package sellers should provide consumers the opportunity 
to modify their air tour package at no cost or to cancel their air tour 
package for a refund, if the consumer chooses, once the applicable bag 
fees are disclosed to the consumer.
(b) 24-Hour Rule Disclosure
    Proposal: The Department proposed to require carriers and ticket 
agents with websites marketed to U.S. consumers to display on the last 
page of the booking process a brief statement on whether the carrier or 
ticket agent permits the consumer's booking to be cancelled without 
penalty within 24 hours, or whether the carrier or ticket agent permits 
the consumer to hold the reservation without payment for 24 hours, 
provided that the reservation was made at least one week before the 
flight's departure. Carriers are already required to either permit 
consumers to cancel their tickets within 24 hours without penalty or 
hold their reservations at the quoted fare for 24 hours without payment 
if the reservation is made more than a week before the flight's 
departure. Similar requirements currently do not exist for ticket 
agents though agents may do so voluntarily. This proposal is that the 
carrier's and ticket agent's chosen policy be disclosed on the last 
page of the booking process, which is distinct from the existing 
requirement that the carrier's chosen policy (i.e., 24-hour hold or 
cancel within 24 hours with no penalty) be disclosed in that carrier's 
customer service plan pursuant to 14 CFR 259.5.
    Comments: The Department received few comments on this issue and 
those comments either supported the Department's proposal or were 
neutral. For example, IdeaWorks, a consulting firm, agreed that 
``[a]wareness of this benefit should be reinforced.'' In addition, IATA 
noted that it had no objection to the requirement for carriers to 
display the 24-hour cancellation policy on their websites, while USTOA 
stated that it did not object to the new requirement provided that the 
final rule was clear that ticket agents are not required to allow 
passengers to cancel a booking within 24 hours or to hold the ticket 
for 24 hours at the quoted price.
    DOT Response: The Department adopts this proposal with three 
clarifying edits. As proposed, this final rule requires carriers to 
disclose on the last page of the booking process whether the consumer's 
booking can be cancelled within 24 hours of purchase without penalty or 
whether it can be held at the quoted fare for 24 hours without payment. 
The Department clarifies that this disclosure must be made only if the 
reservation is made at least one week before the flight's departure, 
consistent with the existing regulatory requirement for carriers in 14 
CFR 259.5(b)(4). Ticket agents are required to provide the same 
disclosure of their policy on allowing a passenger to hold a 
reservation for 24 hours or cancel a reservation within 24 hours 
without a penalty, for flights departing one week or more after the 
reservation. Ticket agents that do not offer either the 24-hour free 
cancellation or 24-hour reservation hold options without charge must 
disclose before ticket purchase that the consumer will not be able to 
cancel his or her booking after it is executed, consistent with this 
rule. The Department has an open rulemaking that would address, among 
other things, requiring travel agents to adopt minimum customer 
standards such as the 24-hour rule similar to those imposed on 
carriers.\109\ The Department clarifies in this rule that airlines and 
ticket agents must make the required disclosure in a clear and 
conspicuous manner. In addition, the Department is amending the 
requirement for carriers to include an assurance in their customer 
service plan that they will offer either a 24-hour free cancellation or 
24-hour reservation hold option at no cost to also include an assurance 
to disclose their chosen 24-hour policy on the last page of the booking 
process before ticket purchase as required in this rule. The Department 
has determined that the failure to make the required disclosure before 
ticket purchase is an unfair and deceptive practice, as discussed in 
section D (1)(b).
---------------------------------------------------------------------------

    \109\ Information on the rulemaking titled ``Air Transportation 
Consumer Protection Requirements for Ticket Agents'' (RIN 2015-AE57) 
is available in the Fall 2023 Unified Agenda of Regulatory and 
Deregulatory Action at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AE57.
---------------------------------------------------------------------------

(c) E-Ticket Confirmations
    Proposal: Section 399.85(c) currently requires air carriers and 
ticket agents to include information regarding the passenger's free 
baggage allowance and the specific fee information for first and second 
checked bags and a carry-on item on all e-ticket confirmations for air 
transportation, taking into account factors such as frequent flyer 
status that affect those charges. This regulation currently provides 
that carriers must provide this information in text form on the e-
ticket confirmation. Agents may provide this information either in text 
form on the e-ticket confirmations or through a hyperlink to the 
specific location on an airline website or their own website where this 
information is displayed. In the NPRM, the Department requested comment 
on whether there is a benefit in retaining these requirements.
    Comments: Few commenters addressed this issue. A4A urged DOT to 
remove the e-ticket disclosure because, in its view, existing 
disclosures are ``redundant, unnecessary, and burdensome'' and because 
consumers would have already received the information required in the 
e-ticket confirmation during the search process.\110\ On the other 
hand, AARP called the e-ticket confirmation ``an essential element of 
consumer protection.'' AARP further noted that ``the dates of travel 
may be weeks or months after the tickets were booked, and many 
consumers will have forgotten the specific fee amounts presented to 
them at the time of booking,'' making the e-ticket confirmation ``an 
important record for consumers to have at the time of travel.'' 
FlyersRights asked the Department to require additional disclosure 
after ticket purchase of the size limitations for personal items, 
carry-on bags, checked bags, instruments, and sporting equipment.
---------------------------------------------------------------------------

    \110\ In its comment, A4A also asked DOT to eliminate the 
existing requirement at 14 CFR 399.85(b) that U.S. carriers, foreign 
air carriers, agents of either, and ticket agents provide a 
prominent disclosure that ``additional bag fees may apply'' and 
where consumers can see these baggage fees. The Department proposed 
to replace that existing requirement with the requirement to 
disclose itinerary-specific or passenger-specific fees, depending 
upon the consumer's search type, for a first checked bag, second 
checked bag, and carry-on bag. The final rule removes the existing 
requirement as proposed. Requirements for the display of baggage 
fees under this final rule are discussed in section E (4).
---------------------------------------------------------------------------

    DOT Response: The Department maintains in this final rule, with 
modifications, the requirements that carriers and ticket agents must 
include specific fee information for first and second checked bags and 
a carry-on item on all e-ticket confirmations for air transportation 
and that the fee information provided must take into account the 
passenger-specific factors that affect those charges. The Department 
agrees with AARP that the e-ticket confirmation serves as a valuable 
record for consumers concerning the fee information provided at the 
time of booking and disagrees with A4A that listing this information on 
the e-ticket is redundant or burdensome. To ensure that the e-ticket 
provides an accurate record of the fees disclosed to consumers at the 
time of purchase, the Department is removing

[[Page 34664]]

the allowance for ticket agents to provide a link to baggage fees as an 
alternative to providing the information in text form.
    The Department has determined that it is an unfair practice to 
provide links to bag fees in the e-ticket confirmation instead of 
providing the information in text form. Links to bag fees that lead to 
complex charts are confusing to consumers and may ultimately not be 
instructive for many consumers in determining the bag fee that would 
apply to them. Further, the lack of an e-ticket confirmation with the 
bag fee in text form is likely to cause substantial injury for 
consumers who are charged a bag fee that is higher than the one 
disclosed during the search process because consumers would lack a 
valuable record to demonstrate the fee information provided at the time 
of booking. This harm is not reasonably avoidable because consumers are 
not able to generate the confirmation on their own. Also, the harm that 
these consumers experience is not outweighed by benefits to consumers 
or competition because lack of clarity about applicable bag fees harms, 
rather than benefits, consumers, and competition. As such, the 
Department is imposing in this final rule the same requirement for 
ticket agents to display baggage fees in text form on the e-ticket 
confirmation that has traditionally applied to carriers. In response to 
the comment from FlyersRights, the Department also clarifies that the 
information about the passenger's free baggage allowance currently 
required to be included in the e-ticket confirmation must include 
information about a personal item. This is not a substantive change to 
existing requirements.
(d) Bag Policy Change Disclosures
    Proposal: The existing regulation at 14 CFR 399.85(a) requires 
carriers to disclose any increase in applicable fees for carry-on or 
first or second checked bags promptly and prominently, along with any 
change in baggage allowances, on the homepages of their websites for at 
least three months after the change becomes effective. In the NPRM, the 
Department proposed language changes to clarify the scope of websites 
covered by this existing requirement but did not propose substantive 
changes. DOT also requested comment on whether these requirements would 
still be useful to consumers if the NPRM was finalized.
    Comments: The Department received few comments on this issue. One 
individual stated that additional guidance on how airlines should 
communicate baggage fee increases to consumers is needed. A4A urged the 
Department to remove this required disclosure because it would be 
redundant and unnecessary if the rule were adopted as proposed.
    DOT Response: The Department agrees with A4A that the existing 
requirement to disclose baggage fee increases and changes in baggage 
allowances on the carrier's homepage is no longer necessary. Under this 
final rule, airlines and ticket agents must provide the consumer with 
passenger-specific or itinerary-specific fees, depending on the 
consumer's search type, for a first checked bag, a second checked bag, 
and a carry-on bag when a fare and itinerary is displayed in response 
to a consumer's search. As discussed in section E (10)(e), under 14 CFR 
399.88, these fees may not increase from what was displayed to the 
consumer before ticket purchase. Applicable baggage fees must also be 
memorialized on the e-ticket confirmation. Accordingly, prominent 
disclosure of baggage fee increases on carriers' websites would be 
unnecessary under this final rule because carriers may not apply such 
increases to ticketed passengers.\111\
---------------------------------------------------------------------------

    \111\ In response to the individual commenter, the Department 
notes that the post-purchase price increase prohibition at 14 CFR 
399.88 does not prohibit an airline from charging different fees for 
a first-checked, second-checked, or carry-on bag based on when the 
passenger pays the baggage fee (e.g., in advance or at the airport), 
but that it instead prohibits airlines from changing baggage fee 
rules that apply when a ticket is purchased.
---------------------------------------------------------------------------

(e) Post Purchase Price Increases
    Proposal: The Department proposed to amend 14 CFR 399.88, which 
prohibits sellers of air transportation from increasing the price for 
air transportation including the price for ancillary services that have 
not yet been purchased after a ticket is purchased, except in the case 
of an increase in a government-imposed tax or fee or if the potential 
for an increase was disclosed as required prior to purchase. Although 
the existing regulation includes a broad prohibition on increases to 
all ancillary service fees, regardless of whether these items are 
purchased along with the air transportation, in 2011, the Department 
announced that with respect to fees for ancillary services that were 
not purchased with the air transportation, it would only enforce the 
prohibition on post-purchase price increases for carry-on bags and 
first and second checked bags.\112\ The application of the prohibition 
of the post-purchase price increase was also at issue in a lawsuit 
filed by two airlines against the Department. The court considered the 
rule as applied under the Department's 2011 guidance and upheld the 
Department's rule prohibiting post purchase price increases as it is 
currently being applied.\113\ The proposed revisions were intended to 
make the regulatory text consistent with the Department's rule as 
applied under the Department's 2011 guidance and upheld by the Court.
---------------------------------------------------------------------------

    \112\ See Guidance on Price Increases of Ancillary Services and 
Products not Purchased with the Ticket (December 28, 2011).
    \113\ Spirit Airlines, Inc., v. U.S. Dept. of Transportation 
(D.C. Cir. July 24, 2012), slip op. at 20-21. Petition for Writ of 
Certiorari denied on Apr. 1, 2013.
---------------------------------------------------------------------------

    The Department did not propose changes to the rule as it is applied 
but sought comment on whether it should require that the price for 
ancillary services not purchased with the ticket be frozen beyond first 
and second checked bag and a carry-on item. More specifically, the 
Department asked whether prohibition on post purchase price increase 
should extend to fees for all baggage (including fees for oversized or 
overweight bags) or all ancillary services that have been identified as 
being critical to a consumer's purchasing decision.
    Comments: IATA and American Airlines opposed any expansion of the 
post-purchase price increase beyond the fees for first checked bag, 
second checked bag, and carry-on bag. Citing seat fees as one example, 
American Airlines stated that many ancillary fees are dynamically 
priced, and so prohibiting post-purchase increase of those fees ``would 
have the unintended consequence of foreclosing discounts for early 
purchases and likely result in increased prices.''
    AARP and FlyersRights commented on this proposal on behalf of 
consumers. AARP stated that the prohibition should apply to ``the 
ancillary fees covered by this rule'' and added that allowing fees to 
increase at a later date would undermine the regulatory goal of 
enabling consumers to make informed purchasing decisions based on the 
full cost of travel. FlyersRights advocated for extending the post-
purchase price increase prohibition to all ancillary fees, not only 
those critical ancillary fees required to be displayed by this rule. 
This commenter stated that fees advertised at the time of ticket sale 
should not be increased once a consumer is locked into a ticket 
purchase.
    DOT Response: The final rule extends the post-purchase price 
increase prohibition to all fees for critical ancillary services. The 
Department notes that, in addition to the post-purchase price increase 
prohibition on

[[Page 34665]]

fees for first checked, second checked, and carry-on baggage, as 
currently applied and discussed above, change and cancellation fees may 
not be increased beyond what was disclosed to the consumer at the time 
of purchase under 14 CFR 253.7. Because the only critical ancillary 
services identified in this final rule are first checked, second 
checked, and carry-on baggage and ticket changes and cancellations, the 
modification from the proposal to cover all critical ancillary service 
fees does not impose any new burdens on carriers or ticket agents. If 
the Department identifies additional critical ancillary services, after 
notice and opportunity for comment, then the post-purchase price 
increase prohibition will apply to those services at that time. The 
Department declines to extend the prohibition to additional ancillary 
fees not critical to a consumer's purchasing decision at this time due 
to the complexity and dynamic nature of many ancillary services. For 
example, as noted by the airlines, some airlines offer dynamic seat fee 
pricing that may adjust based on demand and availability, and consumers 
relying on a specific seat fee may be confused if the seat associated 
with that fee is no longer available by the time the consumer is ready 
to purchase a seat assignment. As another example, freezing the price 
of inflight food offerings at the time of ticket purchase could cause 
different passengers to have different pricing regarding the same food 
product purchased at the same time, a situation which could cause 
consumer confusion and be difficult for airlines to manage.
(f) Full Fare Rule and Percentage Off Discounts
    Proposal: The Department proposed non-substantive changes to the 
current ``full fare'' requirement in 14 CFR 399.84(a) that when a 
carrier or ticket agent quotes a price in advertising or a 
solicitation, the price must be the total fare, inclusive of taxes and 
fees. The proposed changes consisted of minor changes to Sec.  
399.84(a) to promote readability and accommodate the ancillary fee 
disclosures proposed in the NPRM. Specifically, the Department proposed 
that, if a consumer wishes to view ancillary service fees, such as bag 
fees, incorporated into the total quoted price during an itinerary 
search, carriers and ticket agents may display the total price of the 
transportation, inclusive of mandatory taxes and fees and the 
consumer's selected ancillary service fees, more prominently than a 
price that includes only all mandatory charges. These adjustments were 
not intended to make substantive changes to the full fare rule.
    Under the existing full fare rule, carriers and ticket agents may 
state separately any charges included within the single total price on 
their websites, but such charges may not be false or misleading, may 
not be displayed more prominently than the total price, may not be 
presented in the same or larger size as the total price, and must 
provide cost information on a per-passenger basis that accurately 
reflects the cost of the item covered by the charge. Consistent with 
this requirement, the Department explained that advertisements that 
state discounts in the form of percentage-off sales must refer to a 
discount off the total price to be paid by the consumer for the ticket, 
unless the airline or ticket agent explicitly states that the discount 
is based on only a portion of the fare. For example, an advertisement 
that indicates air transportation is on sale for a percentage off but 
does not apply the discount to the total price would be misleading if 
it did not specify that it is a percentage off only the ``base fare'' 
or other fare component. The Department further elaborated that, when 
the terms ``flight,'' ``ticket,'' or ``fare'' are used in an 
advertisement stating a percentage off (e.g., ``a 25% discount off the 
flight''), a reasonable consumer would understand that the percentage 
off applies to the total price of the transportation. In the NPRM, the 
Department explained that there is a lack of clarity about the meaning 
of the term ``base fare'' and offering a percentage discount off of the 
``base fare'' may be misleading if the discount only applies to a 
portion of the carrier-imposed charges, and not the total amount of 
carrier-imposed charges (i.e., the fare for the transportation plus 
carrier-imposed charges such as fuel surcharges and other mandatory 
carrier fees). The Department solicited comment on whether and how to 
address this issue in the final rule.
    Comments: Several commenters representing both industry and 
consumers asked the Department to define ``base fare'' to mean all 
mandatory carrier-imposed charges and agreed with the Department's 
assessment in the NPRM that providing a ``base fare'' discount would be 
misleading if the base fare did not include all such mandatory charges. 
For example, Southwest Airlines stated that some airlines advertise 
``generous eye-catching percentage-off discounts that can be fairly 
described as `bait-and-switch' tactics'' of a large percentage off a 
low ``base fare'' that does not include all mandatory carrier-imposed 
fees. Southwest explained that in such circumstances mandatory carrier-
imposed fees ``often make up the majority of the ticket price'' and are 
not discounted. In addition, both Travelers United and Southwest 
Airlines requested that DOT clarify that the ``base fare'' must include 
all mandatory airline-imposed fees on the distribution channel where a 
fare is viewed (e.g., if there is a charge for online booking and the 
consumer is searching for airfare online, then the online booking fee 
must be included in the base fare). A small travel agent asked the 
Department to go further and prohibit all fuel surcharges and carrier-
imposed fees, stating that fares are filed to ATPCO with the base fare 
only, making it difficult to compare fares between carriers. On the 
other hand, IATA opposed any additional regulation in this area, 
stating that consumers understand that percentage-off discount offers 
do not discount carrier surcharges.
    Regarding the existing full fare rule, a joint comment from 
multiple State attorneys general noted that airlines often charge fees 
in connection with different methods of booking, including online, 
telephone, or in-person booking fees. These commenters noted that they 
understand that the existing full fare rule already requires such fees 
to be included in the full fare, but asked DOT to cover such fees in 
this rulemaking in the event that this understanding was incorrect.
    DOT Response: In this final rule, the Department is permitting 
airlines and ticket agents to disclose a total price inclusive of 
mandatory taxes and fees and ancillary fees in place of or more 
prominently than a total price that only includes all mandatory taxes 
and fees.
    In response to comments, the Department is adding a new paragraph 
(e) to Sec.  399.84, which provides that it is an unfair and deceptive 
practice for an airline or ticket agent to offer a percentage-off 
discount for air transportation, a tour, or a tour component that does 
not make clear at the outset the terms and conditions of the offer, 
including how the discount is calculated. This new provision further 
provides that, when used in any advertising or solicitation, the term 
``base fare'' must refer to the amount that includes all mandatory 
carrier-imposed charges. The Department agrees with commenters that an 
advertisement of a percentage-off discount that is unclear about its 
terms or is offered as a percentage off a ``base fare'' that does not 
include all mandatory carrier-imposed charges is unfair and deceptive 
to consumers. The Department is unpersuaded by IATA's

[[Page 34666]]

unsupported statement that consumers understand that base fare 
discounts do not include discounts off carrier-imposed surcharges, 
particularly as to those consumers who purchase air transportation 
infrequently. The Department notes that carriers and ticket agents may 
continue to list the components of the ``base fare'' separately, 
consistent with Sec.  399.84(a).
    Also, as requested in a joint comment from multiple State attorneys 
general, the Department is making clear that mandatory booking charges 
are required to be included in the quoted fare under the full fare 
rule. Southwest Airlines and Traveler's United also requested 
confirmation that if there is a charge for online booking and the 
consumer is searching for airfare online, then the online booking fee 
must be included in the base fare. That is correct. As the Department 
explained when it issued its final rule that addresses full fare 
advertising in 2011, while a carrier or ticket agent generally is not 
required to include a booking fee in its advertised fare if there are 
other means for the passenger to obtain the air transportation (e.g., a 
booking fee only applies for tickets that are purchased over the 
telephone), where airfares are advertised via an internet site that 
permits consumers to purchase fares, the fares advertised on the site 
must include all charges required to make the purchase on the site. For 
example, it would be unfair and deceptive to hold out on such an 
internet site a fare that can be purchased only at airport ticket 
counters but that excludes a convenience fee that is applied to 
internet sales.\114\ To avoid confusion in this area, the Department is 
adding this clarification to its full fare rule.
---------------------------------------------------------------------------

    \114\ 76 FR 23110, 23143 (Apr. 25, 2011).
---------------------------------------------------------------------------

(g) Codeshare Flights
    Proposal: The Department did not propose any new requirements 
specific to codeshare flights, separate from the general proposal that 
airlines and ticket agents disclose critical ancillary fees on an 
itinerary-specific basis.
    Comments: A comment from multiple State attorneys general stated 
that ``where there is a codeshare arrangement in place, the consumer 
must be notified of the fees that will actually be charged, whether 
they are imposed by the airline through which the consumer booked the 
flight or the airline operating the flight.'' Though this comment noted 
that the issue appeared to be addressed by the requirement that the 
fees provided be accurate, these commenters asked DOT to consider 
whether special requirements were necessary for codeshare flights. Two 
individual commenters similarly stated that carriers should be required 
to disclose the fees of their partners.
    DOT Response: The Department has determined that no revisions to 
the proposed rule are necessary to address these comments. The 
Department proposed, and this final rule requires, that airlines and 
ticket agents disclose critical ancillary fees on an itinerary-specific 
basis. This includes the requirement in Sec.  399.85(c) of this rule 
for a carrier to accurately display itinerary-specific fees, including 
those involving flights operated by a partner carrier. In addition, 
this final rule maintains the existing regulatory requirement in Sec.  
399.85(e) (recodified in this rule at Sec.  399.85(i)) that airlines 
must disclose through their websites any differences between their 
optional services and related fees and those of a carrier operating the 
flight under a codeshare arrangement. This existing requirement 
includes the fees for ancillary services that are not covered by the 
requirements of this final rule. This final rule also maintains the 
existing regulatory requirement in 14 CFR 399.87 that, for passengers 
whose ultimate ticketed origin or destination is a U.S. point, U.S. and 
foreign carriers must apply the baggage allowances and fees that apply 
at the beginning of a passenger's itinerary throughout his or her 
entire itinerary. That section also specifies that, in the case of 
code-share flights that form part of an itinerary whose ultimate 
ticketed origin or destination is a U.S. point, U.S. and foreign 
carriers must apply the baggage allowances and fees of the marketing 
carrier throughout the itinerary to the extent that they differ from 
those of any operating carrier.
(h) Additional Comments
    The Department received several comments that did not specifically 
address the proposals in the NPRM.
    Comment: Google noted that the NPRM did not address how the 
proposed requirements would affect existing requirements at 14 CFR part 
256 governing how ticket agents and air carriers must respond to 
consumer searches and disclose display bias. Specifically, Google asked 
whether fees for baggage, ticket changes and cancellations, and seat 
assignments should be included in the total price when ranking 
responses based on the lowest total price.
    DOT Response: The Department's existing regulation at 14 CFR 256.4 
prohibits undisclosed display bias and requires each electronic airline 
information system to ``display information in an objective manner 
based on search criteria selected by the user;'' the regulation 
provides ``lowest total cost'' as one example of search criterion. This 
regulation further requires that those flight options best satisfying 
the user's selected search criteria ``must be ranked in lists above 
other flight options,'' but provides that this ``does not preclude 
systems from setting default display parameters that are not deceptive 
or offering users the option to choose a variety of display methods 
within those parameters.''
    The Department clarifies that this final rule does not alter the 
existing requirements in part 256. If an airline or ticket agent's site 
enables a consumer to select desired ancillary services (e.g., baggage) 
to be included in the total quoted price for search results and the 
consumer requests to receive search results by ``lowest total cost,'' 
then any ancillary fees selected by the passenger should be included in 
the total price for purposes of ranking flight options to reflect the 
consumer's selected search parameters.
    Comments: FlyersRights and multiple State attorneys general stated 
that states should be provided with statutory authority to regulate 
aviation consumer protection.
    DOT Response: This issue is outside the Department's authority and 
cannot be addressed by the Department in this final rule. The 
Department works with state authorities on aviation consumer protection 
issues where appropriate and within the confines of existing statutory 
authority.\115\
---------------------------------------------------------------------------

    \115\ On April 16, 2024, the Department announced a new 
partnership with State attorneys general to prioritize misconduct 
cases referred to DOT by State attorneys general who uncover unfair 
or deceptive airline practices. See https://www.transportation.gov/briefing-room/secretary-buttigieg-launches-bipartisan-partnership-state-attorneys-general-protect.
---------------------------------------------------------------------------

    Comment: The U.S. PIRG Education Fund asked the Department to 
update its method of reporting consumer complaints, suggesting models 
currently used by the National Highway Traffic Safety Administration 
(NHTSA) and the Consumer Financial Protection Bureau (CFPB).
    DOT Response: The Department has been examining how best to review, 
process, and report air travel service consumer complaints, which has 
included looking at various models including models currently used by 
NHTSA and CFPB. The Department anticipates that its new modernized 
system will be operational in 2024 and will be further enhanced with 
funding

[[Page 34667]]

from the Technology Modernization Fund (TMF) in the coming years.
    Comments: A few individual commenters asked the Department to 
impose a comprehensive passengers' bill of rights.
    DOT Response: This comment is outside of the scope of this 
rulemaking. The Department notes that it provides a comprehensive list 
of current consumer protections for air consumers at https://www.transportation.gov/airconsumer/fly-rights and an Airline Passengers 
with Disabilities Bill of Rights at https://www.transportation.gov/airconsumer/disabilitybillofrights. Also, the Department has an open 
rulemaking to respond to section 429 of the 2018 FAA Act which directs 
the Department to require carriers to submit a one-page document that 
describes the rights of air consumers to the agency and require those 
carriers to make that document available on their websites.\116\
---------------------------------------------------------------------------

    \116\ ``One-Page Document on Passenger Rights'' (RIN 2015-AE82) 
is available in the Fall 2023 Unified Agenda of Regulatory and 
Deregulatory Action at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202310&RIN=2105-AE82.
---------------------------------------------------------------------------

F. Compliance Period

    Proposal: The Department proposed a six-month implementation period 
for the rule's requirements. In support of the proposed six-month 
implementation period, the Department noted that, at the June 2022 
ACPAC meeting, one airline representative indicated that, broadly 
speaking, sharing ancillary fee data with ticket agents is not 
technologically difficult and could be accomplished within a short time 
frame.\117\ The Department specifically sought comment on whether it 
should impose a date certain by which carriers must share ancillary 
service fee information with ticket agents.
---------------------------------------------------------------------------

    \117\ Remark of American Airlines, available at https://www.transportation.gov/airconsumer/ACPAC/June2022Meeting/webcast 
(Day 1 afternoon session).
---------------------------------------------------------------------------

    Comments: The ACPAC decided to refrain from recommending a specific 
timeframe for compliance with the final rule. Instead, the ACPAC 
recommended at its January 12, 2023, meeting that the Department should 
consider what can be done realistically, as well as the need for 
consumers to have ancillary fee information as soon as possible, in 
determining the timeframe for compliance with the final rule.
    A few groups representing consumers requested that the Department 
adopt either the six-month period from the NPRM or a shorter three-
month implementation period. For example, AARP supported the proposed 
six-month compliance period, calling it a ``reasonable amount of time'' 
and urged the Department to finalize and implement the rule quickly 
``so that the benefits of fee disclosure can be extended to travelers 
as soon as possible.'' In addition, FlyersRights asked the Department 
to instead require a three-month implementation period. In support, it 
cited the June 2022 ACPAC testimony that the Department cited in the 
NPRM as evidence that airlines and ticket agents could implement the 
proposed rule more quickly. On the other hand, Travelers United 
commented that the significant technological changes required by the 
proposal would require additional time to implement.
    Industry commenters uniformly opposed the proposed six-month 
compliance period, stating that it was far too short and recommending 
significantly longer periods, with many stating at least three years 
was needed. Specifically, industry commenters raised concerns with the 
ability to complete data-sharing agreements, develop the proposed first 
page display of critical ancillary fees, display real-time, 
transactable family seating fees, and calculate and display passenger-
specific fees within the six-month timeframe proposed. For example, A4A 
stated that a compliance period of at least three years was ``necessary 
to provide time for all parties to re-engineer their own marketing 
platforms and re-design and re-engineer connections to other stake 
holders, especially with regard to family seating transactions and 
passenger-specific search information.'' IATA also recommended a three-
year implementation period, citing prior challenges with data sharing 
using EDIFACT and testifying at the Department's March 30, 2023, 
hearing that providing transactable family seating fees would take 
years. In addition, Frontier Airlines suggested that required data 
sharing with ticket agents ``would be measured in years, and perhaps 
decades,'' and American Airlines stated that ``to disclose passenger-
specific ancillary fees on the first page of search results requires a 
highly complex reconfiguration'' of its distribution technology that 
``could take years to resolve.''
    Other industry commenters suggested less than three years was 
needed but still emphasized that implementation of the proposal would 
take longer than the six months proposed. For example, USTOA 
recommended an implementation period of at least 18 months, Travelport 
suggested a period of 24 months (with the first 12 months for data 
sharing) if the Department elected not to require data sharing with 
GDSs, and Travel Tech stated that at least two years would be needed to 
display all critical ancillary fees at the first point in the search 
process where schedule and fare information is provided.
    Some industry commenters stated or suggested that their time 
estimates would be shorter if the Department modified its proposal. For 
example, American Airlines stated that if the Department allowed 
itinerary-specific disclosures later in the booking process, its 
``estimate would change meaningfully.'' Bookings Holdings commented 
that its three-year implementation estimate could be reduced to two 
years if the Department required data sharing through GDSs and to 18 
months if the Department allowed affirmative opt-ins or static 
rollovers, links, or pop-ups for the display of fees. Amadeus noted 
that ``[r]evision of the rules to allow more flexible displays and to 
eliminate the proposed requirement that all critical fee data be 
provided on the first search results page will go far to allow for 
timely and cost-efficient implementation.'' Travel Tech stated that the 
rule could possibly be implemented in as few as 18 months with 
modifications to the proposal.
    DOT Response: After carefully considering the comments received, 
the Department extends the proposed compliance period as follows: (1) 
airlines must share data with ticket agents as required in this rule 
not later than six months after this rule's publication date, or 
October 30, 2024; (2) airlines must meet the critical ancillary service 
fee disclosure requirements not later than 12 months after this rule's 
publication date, or April 30, 2025; (3) ticket agents that do not meet 
the SBA definition of a small entity \118\ must meet the critical 
ancillary service fee disclosure requirements to consumers not later 
than 18 months after this rule's publication date, or October 30, 2025; 
and (4) ticket agents that meet the SBA definition of small entity must 
meet critical ancillary fee disclosure requirements to consumers not 
later than 24 months after this rule's publication date, or April 30, 
2026. The additional six months for large ticket agents to comply 
beyond the deadline for airlines reflects that carriers already have 
access to the required ancillary fee information, but ticket agents 
cannot implement the disclosure requirements

[[Page 34668]]

in this rule until data-sharing arrangements are complete. The longer 
implementation period for small ticket agents reflects that those 
businesses may require additional time for compliance as discussed in 
section E (1)(b).
---------------------------------------------------------------------------

    \118\ A ticket agent is a small entity if it has total annual 
revenues below $25 million See https://www.sba.gov/document/support--table-size-standards, NAICS Code 561510.
---------------------------------------------------------------------------

    The Department believes that the implementation period set forth in 
this final rule is reasonable. The Department has modified several key 
aspects of the proposal in this final rule,--including in areas that 
were of particular concern to industry commenters--which will permit 
quicker implementation than the periods generally suggested by industry 
commenters. Among those significant changes, this final rule does not 
require display or transactability of family seating fees and provides 
additional flexibility in how critical ancillary fees must be 
disclosed, as requested by many commenters. In addition, while some 
commenters cited the requirement to provide passenger-specific fees as 
a challenge to timely implementation, the Department notes that some 
commenters appeared to misunderstand this requirement and mistakenly 
believed that information provided by the consumer would need to be 
validated before the airline or ticket agent could disclose passenger-
specific fees, posing technological challenges. As discussed in section 
E (5), airlines and ticket agents may present passenger-specific 
ancillary fees based on the information provided by the consumer, and 
so this requirement should not significantly slow implementation.
    Finally, although this final rule does not require data sharing 
with GDSs as requested by some commenters to speed implementation, the 
Department expects that airlines and ticket agents will work in good 
faith to come to an agreement on the method used to transmit the 
ancillary fee information required by this final rule. Nothing in this 
final rule prevents airlines and ticket agents from voluntarily 
agreeing to use GDSs to distribute the ancillary fee information if 
that is their preferred method for meeting the rule's requirements 
within the timeframe provided.

Regulatory Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The final rule meets the threshold for a significant regulatory 
action as defined in section (3)(f)(1) of E.O. 12866, ``Regulatory 
Planning and Review,'' as amended by E.O. 14094, ``Modernizing 
Regulatory Review,'' because it is likely to have an annual effect on 
the economy of $200 million or more. Accordingly, the Department has 
prepared a regulatory impact analysis for the proposed rule, summarized 
in this section and available in the docket. Table X summarizes the 
results of the analysis.
    The final rule changes how U.S. air carriers, foreign air carriers, 
and ticket agents disclose information about certain ancillary fees for 
flights. Expected benefits of the rule are due to the reduction of 
excess consumption of air travel, or deadweight loss, which occurs 
because consumers who are unaware of ancillary service fees behave as 
if the price for air travel is lower than it is. Annual benefits 
expected from reducing deadweight loss amount to $5.5 million. The 
other source of expected benefits is from the time consumers will save 
when they search for airfare because they no longer need to interrupt 
their search to find information on ancillary service fees. The amount 
in expected benefits due to time savings varies significantly depending 
on assumptions regarding the number of consumers who consider ancillary 
fee information when they search for airfare.
    Expected costs of this rule include costs to consumers uninterested 
in receiving this information due to the time needed to navigate 
increased amounts of information, which again, varies according to the 
percentage of consumers who consider ancillary fee information relevant 
to their purchase decision. The primary costs of the rule to carriers 
and ticket agents are the costs that they would incur to modify their 
websites to adjust their displays of fares, schedules, and fees. Third 
parties involved in data exchange, such as GDSs and direct-channel 
companies might incur some costs due the need to upgrade their systems, 
though the Department understands that these entities are already 
upgrading systems for market reasons and have been for several years. 
As shown in table X, the analysis considered two scenarios, each 
representing an alternative estimate regarding the percentage of 
consumers who consider ancillary fee information when they purchase 
airfare. Across the two scenarios, the estimate of annual net benefits 
ranges from $30 million to $254 million, indicating that this 
percentage is a key driver of the results. Formal uncertainty analysis 
suggests that the final rule might be expected to produce net societal 
benefits with a probability of about 53 percent under plausible 
assumptions about the percentage of consumers who consider ancillary 
fees when they purchase airfare.
    One effect of better information on ancillary fees, however, is 
that some consumers will pay less for the ancillary services they use 
when they travel by air. These economic effects are not societal 
benefits or costs but represent a transfer from airlines to consumers, 
estimated to be about $543 million annually. This transfer represents 
$543 million in overpayment in fees for consumers, or from the 
perspective of airlines, additional revenue from consumers who are 
surprised by fees and, for example, then need to pay a higher fee at 
the airport to check a bag. This transfer, as well as the benefits due 
to any reduction in deadweight loss, accrue to consumers and are 
expected to occur regardless of any time savings impacts.

               Table X--Summary of Annual Economic Effects
                           [Millions of $2022]
------------------------------------------------------------------------
                                                   Annual amount
                  Item                   -------------------------------
                                           Scenario 1 *    Scenario 2 **
------------------------------------------------------------------------
Benefits:
    Reduction in deadweight loss........            $5.5            $5.5
    Reduction in search time for                   365.2           484.3
     consumers interested in ancillary
     service fees when they search for
     airline tickets on airline sites...
    Reduction in search time for                    37.4            49.5
     consumers interested in ancillary
     service fees when they search for
     airline tickets on non-airline
     sites..............................
                                         -------------------------------
        Total annualized benefits.......           408.1           539.4
Costs:

[[Page 34669]]

 
    Increased time navigating search               330.8           238.9
     results............................
    Annualized one-time and recurring               32.1            32.1
     costs for airlines to update price
     displays and provide fee
     information to ticket agents.......
    Annualized one-time and recurring               13.9            13.9
     costs for ticket agents to update
     price displays.....................
    Annualized costs to ticket agents                1.0             1.0
     for offline disclosures............
    Costs to GDSs and other third-          Unquantified    Unquantified
     parties engaged in data exchange to
     upgrade systems....................
                                         -------------------------------
        Total annualized costs..........           377.8           285.9
------------------------------------------------------------------------
Net benefits (costs)....................            30.3           253.5
Transfers:
    Reduction in prices paid for                   543.1           543.1
     ancillary services (airlines to
     consumers).........................
------------------------------------------------------------------------
* Scenario 1: 46% of consumers consider ancillary fees when they search
  for airfare.
** Scenario 2: 61% of consumers consider ancillary fees when they search
  for airfare.

Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in E.O. 13132 (``Federalism''). This final rule 
does not include any requirement 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 E.O. 13132 do not apply.

Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria contained in E.O. 13175 (``Consultation and Coordination 
with Indian Tribal Governments''). Because none of the provisions of 
this final rule will 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 
E.O. 13175 do not apply.

Regulatory Flexibility Act

    When a Federal agency is required to publish a notice of proposed 
rulemaking (5 U.S.C. 553), the Regulatory Flexibility Act of 1980 (5 
U.S.C. 601 et seq.) requires the agency to conduct a final regulatory 
flexibility analysis (FRFA). A FRFA describes the impact of the rule on 
small entities and describes the steps the agency has taken to minimize 
the significant economic impact on small entities consistent with the 
stated objectives of applicable statutes (5 U.S.C. 604). A FRFA is not 
required if the agency head certifies that a rule will not have a 
significant economic impact on a substantial number of small entities 
(5 U.S.C. 605). The Department has prepared a FRFA for this final rule, 
set forth in the paragraphs that follow. DOT has provided a statement 
of the need for, and objectives of, the rule elsewhere in the preamble 
and does not restate them here. In the preamble to this final rule, DOT 
responds to the comments received on the economic impacts of the rule, 
including on small entities, and provides DOT's assessment of those 
comments and any changes made as a result of those comments (e.g., the 
extended compliance period, exclusion of corporate travel agents, 
removal of family seat fee disclosure and transactability, 
flexibilities provided in the way carriers and ticket agents display 
ancillary fee information, and permitting baggage and change and 
cancellation policies to be displayed later in the booking process). 
DOT does not repeat that information here. The Department's Regulatory 
Impact Analysis developed in support of this final rule also provides 
information on the economic impacts of the final rule, as modified in 
response to public comments and further consideration by the 
Department. DOT did not receive comments from the Chief Counsel for 
Advocacy of the Small Business Administration in response to the 
proposed rule.
    Description of and an estimate of the number of small entities to 
which the rule will apply.
    The rule will have some impact on U.S. air carriers, foreign air 
carriers and ticket agents that qualify as small entities. It would 
also have some impact on GDSs, but none of the three major GDS 
companies in the market (Amadeus, Sabre, and Travelport) qualify as 
small businesses.
    A carrier is a small entity if it provides air transportation 
exclusively with small aircraft, defined as any aircraft originally 
designed to have a maximum passenger capacity of 60 seats or less or a 
maximum payload capacity of 18,000 pounds or less, as described in 14 
CFR 399.73. In 2020, 28 carriers meeting these criteria reported 
passenger traffic data to the Bureau of Transportation Statistics.\119\
---------------------------------------------------------------------------

    \119\ Bureau of Transportation Statistics. No date. ``T1: U.S. 
Air Carrier Traffic and Capacity Summary by Service Class.'' https://transtats.bts.gov/.
---------------------------------------------------------------------------

    A ticket agent is a small entity if it has total annual revenues 
below $25 million.\120\ This amount excludes funds received in trust 
for an unaffiliated third party, such as bookings or sales subject to 
commissions, but includes commissions received. In 2017, the latest 
year with available data, 7,827 travel agency establishments had annual 
revenues of less than $25 million.\121\
---------------------------------------------------------------------------

    \120\ See https://www.sba.gov/document/support--table-size-standards, NAICS Code 561510.
    \121\ U.S. Census Bureau. 2022. ``Economic Census.'' https://www.census.gov/programs-surveys/economic-census.html.
---------------------------------------------------------------------------

    Description of the projected reporting, recordkeeping, and other 
compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    The final rule would have impacts on small entities because 
carriers and ticket agents would incur costs to modify websites and 
upgrade systems to exchange ancillary fee data. The Department stated 
in its initial regulatory flexibility analysis prepared in support of 
the proposed rule that

[[Page 34670]]

because the Department could not estimate these costs reliably, it 
could not determine whether the proposed rule would impose a 
significant impact on a substantial number of small entities. For this 
final rule, the Department estimated that the primary costs of the rule 
to carriers and ticket agents are the costs that they would incur to 
modify their websites by adjusting their displays of fares, schedules, 
and fees. Third parties involved in data exchange, such as GDSs and 
direct-channel companies might incur some costs due the need to upgrade 
their systems, though the Department understands that these entities 
are already upgrading systems for market reasons and have been for 
several years. DOT estimated quantified costs range from $658 million 
to $1.5 billion annually. The Department acknowledges that some portion 
of these costs would be incurred by small entities.
    Description of the steps the agency has taken to minimize the 
significant economic impact on small entities consistent with the 
stated objectives of applicable statutes, including a statement of the 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule and why each one of the other significant 
alternatives to the rule considered by the agency which affect the 
impact on small entities was rejected.
    The Department considered several alternatives to the measures 
adopted in this final rule. In this section, the Department describes 
the steps taken to minimize the significant economic impact on small 
entities consistent with the objectives of 49 U.S.C. 41712 and the 
other authorities discussed in the Statutory Authorities section of 
this final rule.
    The Department proposed to cover U.S. air carriers, foreign air 
carriers, and ticket agents that advertise or sell airline tickets, 
whether traditional brick-and-mortar travel agencies, corporate travel 
agents, OTAs or metasearch sites that display airline flight search 
options directly to consumers. The final rule defers for a separate 
rulemaking a determination on whether metasearch sites that display 
airline flight search options directly to consumers are ticket agents 
subject to the disclosure requirements in this rule. To ensure 
consumers have access to critical ancillary service fee information 
under this final rule while metasearch entities are excluded from the 
rule's disclosure requirements, the Department requires that airlines 
and ticket agents display the required critical ancillary service fee 
information on the landing page on the airline or ticket agent's online 
platform to which consumers are directed after using a metasearch site. 
The Department believes that this option best balances the concerns 
that more examination is needed in the Department's separate rulemaking 
on ticket agents before the Department determines whether to cover 
metasearch sites that display airline flight search options directly to 
consumers as ticket agents required to disclose critical ancillary fee 
and policy information to consumers.
    The final rule also excludes corporate travel agents from the final 
rule's requirements. Ancillary fee disclosures by those agents are the 
subject of contractual agreements between a business client and the 
travel agent, with the relevant ancillary services and fees negotiated 
as part of the contract. Moreover, the fees often are irrelevant for 
corporate clients, and are not a significant consideration in corporate 
travelers' purchasing decisions. The corporate client, not the business 
traveler, generally pays the cost of transportation, including fees. 
The benefits of covering corporate agents would therefore be limited 
but would involve costs.
    The Department also considered differing compliance periods for the 
requirements established in the rule. In the proposed rule, the 
Department proposed a compliance period of 6 months for all covered 
entities to comply with the rule's requirements. The Department 
received comment that additional time was needed for compliance, 
including from small entities. In consideration of these comments, the 
Department requires in this final rule that: (1) airlines must provide 
fee and policy information of critical ancillary services to entities 
required to disclose this information directly to consumers no later 
than six months after this rule's publication date, (2) airlines must 
comply with all other regulatory requirements not later than 12 months 
after this rule's publication date, (3) ticket agents that do not meet 
the SBA definition of small entity must comply with all regulatory 
requirements not later than 18 months after this rule's publication 
date, and (4) ticket agents that that meet the SBA definition of small 
entity must comply with all regulatory requirements not later than 24 
months after this rule's publication date.
    In the proposed rule, DOT would have required airlines and ticket 
agents to provide fee information for first and second checked bags, 
carry-on bags, and change and cancellation fees in text form next to 
the fare information provided to consumers. On consideration of 
comments that the proposed requirements would result in screen clutter 
and be potentially confusing to consumers, the Department determined in 
this final rule to allow fee information to be displayed using pop-ups, 
expandable text, or other means except for hyperlinks as long as the 
disclosure is clear and conspicuous. This is intended to minimize 
clutter and allow airlines and ticket agents flexibility in how they 
disclose information. The Department also allows some information--
specifically, airline policies for baggage and ticket changes and 
cancellations--later in the process, as long as the disclosure occurs 
before ticket purchase. Policy information can be displayed using 
hyperlinks. The Department believes that these additional flexibilities 
will reduce costs to airlines and assist consumers because airlines 
will be able to present the information in a manner that, while clear 
and conspicuous, is not confusing to consumers.
    In this final rule, the Department also made changes to the 
proposed requirements for offline disclosures. In the proposed rule, 
the Department required these disclosures to be made for every quoted 
itinerary. The Department received comments that such disclosures would 
add a significant amount of ``talk time'' that would burden airlines 
and ticket agents with having to provide the information and consumers 
with having to spend time listening to the disclosures even if the 
information was not relevant to them. As a result of these comments, 
the Department is finalizing a requirement that airlines and ticket 
agents inform consumers purchasing air travel offline about whether a 
critical ancillary fee applies to the itinerary being quoted and give 
the consumer an opportunity to request information on the fee. The 
airline or ticket agent must then provide the critical ancillary fee 
information upon request of the consumer. This modification is expected 
to reduce extra time spent on the phone, which will benefit not only 
airlines and ticket agents, but also consumers who will not have to 
listen to information not relevant to them.
    The Department considered whether to apply the disclosure 
requirements to all online platforms, in addition to computer websites. 
The Department finalizes the requirement that the disclosure 
requirements apply to all online platforms in this final rule. While 
this option may increase costs, the Department determined that it was 
necessary to ensure consumers received the same information on critical 
ancillary fees and policies regardless of

[[Page 34671]]

the online platform used to purchase their tickets for air travel.
    DOT also considered whether to require disclosure of family seating 
fees in this rulemaking and to make those fees transactable by ticket 
agents. The Department is not finalizing the proposal to require 
carriers and ticket agents to disclose applicable fees for passengers 
13 or under to be seated next to an accompanying adult on an aircraft, 
and to make those fees transactable. Instead, the Department is 
pursuing a separate rulemaking to address the issue of a young child 
being able to sit adjacent to an accompanying adult at no additional 
cost beyond the fare. Not requiring family seating disclosures and fee 
transactability reduces the cost burden on airlines and ticket agents.

Paperwork Reduction Act

    In this final rule, the Department imposes new collections of 
information that 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.). The Department also amends an existing 
collection of information, 2105-0561, in this final rule, with regard 
to the requirements for customer service plans. The Department has 
sought approval from OMB for the collections of information established 
in this final rule and will also seek approval for the amendment to the 
collection approved under OMB Control No. 2105-0561 as part of the 
renewal of that OMB control number, due to expire August 31, 2024. The 
Department will publish a separate notice in the Federal Register 
announcing OMB approval of the new and amended collections and advising 
the public of the associated OMB control numbers. Notwithstanding any 
other provisions of law, no person shall be subject to penalty for 
failing to comply with a collection of information if the collection of 
information does not display a currently valid OMB control number.
    Industry commenters generally expressed the view that the proposed 
rule's disclosure requirements would impose significant burdens on 
industry. Many airlines stated that the disclosure requirements would 
require a reconfiguration of their processes. A study of the NPRM 
commissioned by A4A estimated $33 billion in costs to airlines over 10 
years. A4A estimated that the initial airline cost of implementation 
would be $86.5 million and $9 million annually for maintenance and 
additional development. American Airlines stated that over 100,000 
engineering hours would be required to begin reworking the search 
process on the airline's desktop website and other platforms.
    Booking Holdings and USTOA stated that the Department's PRA 
analysis in the NPRM greatly underestimated burdens for planning, 
development, and programming by ticket agents to provide online 
displays of ancillary fee information on their websites. In addition, 
Booking Holdings estimated that the initial costs of engineering and 
testing the required displays, including to ensure readability and 
timeliness, would be multiple millions of dollars per entity covered by 
the regulation for initial development. Similarly, while USTOA did not 
provide an alternative burden hour estimate, USTOA stated that the 80 
hours per entity that DOT estimated for programming, data management, 
website modification, and other related costs was an underestimate, 
given what it characterized as the ``extensive and ongoing website 
revisions that would be necessary to compile ancillary fee options,'' 
\122\ and that the hourly wage of $45.90/hour used by the Department 
for web and interface designs was too low.\123\
---------------------------------------------------------------------------

    \122\ USTOA further stated that the costs of complying with the 
full fare rule were not analogous to the costs of displaying complex 
ancillary fee information, as DOT suggested.
    \123\ USTOA stated that an inflation adjustment of the 
Department's estimated hourly rate for such services from the 2014 
NPRM would result in an hourly of wage of $142.85/hour for a total 
annual cost to ticket agents of ``at least $6,856,800.''
---------------------------------------------------------------------------

    Booking Holdings and USTOA asserted that the Department was 
incorrect to assume no costs for ongoing website maintenance by ticket 
agents. Instead, Booking Holdings estimated that the proposal would 
impose annual maintenance costs of hundreds of thousands of dollars per 
entity/ticket agent, stating that the proposal would require ticket 
agents to employ ``multiple full time engineers/developers, a project 
manager, and a full-time quality assurance associate to ensure that 
dynamic displays continue to operate appropriately'' and to 
periodically update and maintain hardware associated with the searches, 
for example, as carriers update and change their ancillary service fee 
policies. Further, Booking Holdings stated that the Department failed 
to account for any costs of negotiating new data-sharing agreements 
with carriers. A4A estimated that $8.8 million would be spent to supply 
data to agents.
    In USTOA's view, the Department underestimated the number of ticket 
agents who would be required to comply with the rule's requirements, 
given the rule's applicability to offline transactions. USTOA and ASTA 
also disagreed with the Department's assessment that orally conveying 
the proposed ancillary fee information in offline transactions would 
involve only a ``marginal increase in time'' with minimal burden. ASTA 
estimated that 17.2 million offline transactions are completed each 
year by ticket agents and that the proposed disclosures for offline 
transactions would add at least 20 seconds to each offline transaction 
at an estimated cost of $21.3 million per year in ``talk time'' for 
ticket agents.
    The Department has carefully considered public comments regarding 
the costs of the information collections required by this rule and 
reexamined the burden estimates presented in this section in light of 
the regulatory impact analysis developed in support of the final rule. 
As noted above, the Department has made modifications in this final 
rule that may have differing effects on the information collection 
burdens implicated by the NPRM. In contrast to the NPRM, the final rule 
does not impose a requirement to disclose family seating fees and 
provides additional flexibility in how critical ancillary fee 
information is disclosed and when policy information is disclosed. The 
final rule also extends information collection requirements to online 
platforms, which includes mobile applications.
    Based on comments that the hours used to account for the initial 
information disclosures in the NPRM was too low and comments that the 
rule's impact on maintenance and other ongoing costs is measurable 
(recognizing, however, that regulated entities have already been 
operating and maintaining their own online platforms prior to 
implementation of this rule), the Department increased the number of 
hours per entity that DOT estimated for programming, data management, 
website modification, and other related costs from 80 to 120 and also 
added additional burden hours for ongoing maintenance of online 
platforms. The Department also updated the applicable hourly wage from 
$45.90 to $53.27. The updated hourly wage was calculated using an 
hourly rate of $53.27 for computer programmers, which is based on a 
median wage of $40.02 for web and digital interface designers from the 
BLS Occupational Employment and Wage Statistics from May 2022, 
multiplied by 1.41 to account for employee benefits and other costs to 
employers.
    The Department has also updated the number of ticket agents to whom 
this rule would apply using data from the US Census Bureau, 2017 
Economic

[[Page 34672]]

Census based on NAICS Code 561501 Travel Agencies.
    The Department also accepts commenters' arguments that the rule 
imposes a measurable burden on offline transactions and has added this 
additional burden to its estimates.
    The Department has not added costs of negotiating new data-sharing 
agreements between ticket agents and carriers because contract 
negotiations are a cost that carriers and ticket agents incur to do 
business and are not a paperwork burden for purposes of the PRA.
    The Department has consolidated all the information collections 
involving the disclosure of critical ancillary fees and policies into 
one information collection (i.e., the 24-hour cancellation and hold 
policy disclosure is included in the information collection for change 
and cancellation fee and bag fee disclosures). Consolidating the 
information collections better reflects the burden of respondents to 
implement the changes to their online platforms to implement this 
rule's disclosure requirements. At the same time, the Department is 
separately estimating the burden for offline disclosures of bag, 
change, and cancellation fees, as the labor type involved is 
substantially different from other disclosures in this rule.
    This rule requires three information collections: (1) U.S. air 
carriers, foreign air carriers, and ticket agents must disclose, during 
the online booking process, applicable fee and policy information for 
the first and second checked baggage and for carry-on baggage, and 
applicable fee and policy information for changing and cancelling 
reservations (including 24-hour cancellation or reservation hold 
policy); (2) U.S. air carriers, foreign air carriers, and ticket agents 
in offline transactions must disclose that bag, change, or cancellation 
fees apply to a quoted itinerary and disclose such fees upon request, 
and (3) U.S. air carriers and foreign air carriers must ensure that 
entities to which they provide fare, schedule, and availability 
information that display or sell the carrier's flights directly to 
consumers receive information regarding baggage fee rules and policies 
as well as ticket change and cancellation fees and policies, if the 
entities are required to disclose this information to consumers.
    For each of the information collections, the title, a description 
of the respondents, and an estimate of the burdens are set forth below:

    1. Requirement that U.S. air carriers, foreign air carriers, and 
ticket agents disclose, during the online booking process, the 
applicable fee and policy information for the first and second 
checked baggage, one carry-on bag, and the applicable fee and policy 
information for changing and canceling reservation (including 24-
hour cancellation or reservation hold policy).

    Title: Disclosure of Ancillary Fees and Policies During the Air 
Transportation Booking Process
    Respondents: U.S. carriers, foreign air carriers, and ticket agents 
that sell or display carrier fare and schedule information to consumers 
in the United States.
    Number of Respondents: We estimate that as many as 206 U.S. air 
carriers and foreign air carriers and as many as 7,497 ticket agents 
may be impacted by this requirement. Our estimate is based on the 
following information and assumptions: Ticket agents includes OTAs, 
brick-and-mortar travel agencies, and tour operators that market 
airline tickets. We updated our number of ticket agents based on data 
from NAICS code 561510 (Source: US Census Bureau, 2017 Economic 
Census), although not all of those entities market air transportation 
online to consumers in the United States. In addition, most ticket 
agents rely on GDSs to create online fare and schedule displays. GDSs 
and entities that create or develop and maintain their own online fare 
and schedule displays, such as many of the impacted carriers and the 
largest travel agents, will incur some planning, development, and 
programming costs to reprogram their systems to provide online displays 
of fare and schedule information that includes baggage fee information 
on their websites. Thus, our estimate of the number of impacted ticket 
agents may be overstated.\124\ Many smaller carriers also rely on GDSs 
to create online fare and schedule displays, so our estimate of 206 
impacted carriers may be overstated.
---------------------------------------------------------------------------

    \124\ In the NPRM, we assumed for the PRA analysis that about 
five percent of United States ticket agents, including GDSs and 
large travel agencies would be impacted by this requirement. In the 
Department's FRIA developed in support of this final rule, however, 
the cost estimates for ticket agents included the total number of 
ticket agents who may incur costs, or 7,497. Therefore, we do not 
include the five percent assumption in our PRA analysis for the 
final rule and instead assume all ticket agents are impacted. This 
is consistent with the approach taken for airlines, even though 
smaller airlines may also use GDSs.
---------------------------------------------------------------------------

    Estimated Annual Burden on Respondents: Approximately 133 hours per 
respondent (120 hours of initial display updates and 13 hours for 
ongoing maintenance). We base our estimate on the following information 
and assumptions: the primary costs to respondents for the disclosure 
requirement would arise from programming, data management, website 
modification, and other related costs to carriers and ticket agents to 
display the required ancillary fee information. The Department has 
modified the estimated annual burden on respondents to account for the 
following: extension of this rule to online platforms, which have 
increased in usage; an incremental increase in one time and ongoing 
costs to maintain online platforms; inclusion of 24-hour cancellation 
and hold policy disclosures in this information collection; \125\ and a 
reduction in burden from removal of the proposed requirement for family 
seating fee disclosures.\126\ The more significant burdens in this 
rulemaking are expected to be incurred one time by regulated entities. 
Once the modifications required by this information collection have 
been incorporated into the online platforms of regulated entities, we 
expect that this information collection will impose smaller additional 
ongoing costs, such as website maintenance, beyond what regulated 
entities were already incurring for operating online platforms prior to 
the promulgation of this rulemaking. In response to the comments 
received on this point, however, the Department estimates that this 
information collection adds approximately 13 hours of burden per 
respondent to maintain online platform systems. This rulemaking does 
not require the creation of new websites or online platforms by 
regulated entities that did not already maintain such online platforms 
for the purpose of selling air transportation.
---------------------------------------------------------------------------

    \125\ The NPRM estimated an average annual burden of 80 hours 
per respondent for the design, programming, and modification of 
websites to provide disclosure of 24-hour cancellation or hold 
information. The Department believes this number was an overestimate 
due to the static nature of this disclosure (i.e., the disclosure 
should not have noticeable variation due to the relatively stagnant 
nature of 24-hour cancellation or hold policies). Such policies also 
exist generally unchanged in carrier customer service plans. The 
burden is also reduced as this final rule does not require this 
disclosure if the ticket is purchased within 7 days of the flight.
    \126\ The Department acknowledges USTOA's comment that the 
burdens of this rulemaking are not analogous to those in the full 
fare rule (76 FR 23110). The Department has taken this comment into 
account in increasing the paperwork burdens in this analysis, 
including the considerations noted above.
---------------------------------------------------------------------------

    Estimated Total Annual Burden: Approximately 1,024,499 hours for 
all respondents (based on an assumption of 27,398 hours for carriers 
(24,720 hours for the initial upgrade and 2,678 hours for ongoing 
costs) and 997,101 hours for ticket agents (899,640 hours for the 
initial upgrade and 97,461 hours for ongoing maintenance costs)). Based 
on

[[Page 34673]]

an estimated median hourly wage of $53.27 for web and digital interface 
designers,\127\ this results in a total annual cost of $49,240,657 
($1,316,834 for carriers and $47,923,823 for ticket agents) for the 
first year. Note that after the initial costs are incurred, the annual 
cost will decrease to an estimated $142,657 per year for carriers and 
$5,191,747 per year for ticket agents.
---------------------------------------------------------------------------

    \127\ The median base wage for web and digital interface 
developers in 2022 was $37.78, https://www.bls.gov/oes/current/oes151254.htm. We multiply this by 1.41 to account for benefits 
https://www.bls.gov/news.release/archives/ecec_09202022.pdf.
---------------------------------------------------------------------------

    Frequency: One time incorporation of information into online 
platform displays and ongoing costs (such as for maintenance). Costs 
are annual.

    2. U.S. air carriers, foreign air carriers, and ticket agents in 
offline transactions must disclose that bag, change, or cancellation 
fees apply to a quoted itinerary and disclose such fees upon 
request.

    Title: Disclosure of Ancillary Fees During the Offline Booking 
Process
    Respondents: U.S. carriers, foreign air carriers, and ticket agents 
that sell or market tickets to U.S. consumers by phone or in-person
    Number of Respondents: We estimate that as many as 206 U.S. air 
carriers and foreign air carriers and as many as 7,497 ticket agents 
may be impacted by this requirement. We base our estimate on the 
following information and assumptions: Ticket agents includes OTAs, 
brick-and-mortar travel agencies, and tour operators that market 
airline tickets. There may be an estimated 7,497 travel agencies in the 
United States, based on data from NAICS code 561510 (Source: US Census 
Bureau, 2017 Economic Census), although not all of those entities 
market air transportation by phone or in-person to U.S. consumers. Many 
carriers and ticket agents may not offer sales to U.S. consumers by 
phone or in-person; therefore, our estimate of 7,497 impacted ticket 
agents and 206 impacted carriers may be overstated.
    Estimated Annual Burden on Respondents: Approximately 4 hours per 
respondent. This information collection adds additional disclosures to 
in-person or phone transactions when a ticket is marketed to U.S. 
consumers. The time required to provide the additional disclosure is 
not expected to be significant, and some consumers may not request 
additional disclosures.
    The rule would require entities selling tickets marketed to U.S. 
consumers by phone or in-person to inform consumers about certain 
ancillary service fees at the time a fare is quoted. The Department 
estimates that respondents will incur 4.3 additional hours of burden on 
average annually on providing the offline disclosures required by this 
rule.
    Estimated Total Annual Burden: Approximately 33,123 hours for all 
respondents (based on an assumption of 886 hours for carriers and 
32,237 hours for ticket agents). Based on an estimated median hourly 
wage of $31.46 for travel agents,\128\ this results in a total annual 
cost of $1,042,050 ($27,874 for carriers and $1,014,176 for ticket 
agents). The PRA estimate developed here supports a determination that 
the additional ``talk time'' for carriers is de minimis.
---------------------------------------------------------------------------

    \128\ The median base wage for travel agents in 2022 was $22.31, 
https://www.bls.gov/oes/current/oes413041.htm. We multiply this by 
1.41 to account for benefits, https://www.bls.gov/news.release/archives/ecec_09202022.pdf.
---------------------------------------------------------------------------

    Frequency: This information collection imposes an additional cost 
for carriers and ticket agents for each interaction between a consumer 
and the carrier or ticket agent's in-person or telephone reservation 
agents. Costs are annual.

    3. Requirement that U.S. air carriers and foreign air carriers 
ensure that entities to which they provide fare, schedule, and 
availability information to display or sell the carrier's flights 
directly to consumers receive information regarding baggage fee 
rules and ticket change and cancellation fees and policies, if the 
entities are required to disclose this information to consumers.

    Title: Disclosure of critical ancillary fee information to other 
entities required to disclose fee information to consumers.
    Respondents: U.S. air carriers and foreign air carriers that 
provide fare, schedule, and availability information to ticket agents 
to sell or display flights within, to, or from the United States.
    Number of Respondents: We estimate that approximately 206 carriers 
will be impacted by this requirement. This includes foreign carriers 
that may not serve the United States on their own equipment but may 
sell connecting itineraries between the United States and a foreign 
point, when at least one of the foreign-to-foreign segments is operated 
by the foreign carrier.
    Estimated Annual Burden on Respondents: Approximately 30 hours per 
respondent. The information collection requires carriers to either 
distribute baggage and change and cancellation fee rules or make the 
specific rules, including the calculation of baggage and change and 
cancellation fees applicable for passenger-specific itineraries, 
available to third parties. Carriers selling tickets in the United 
States already display baggage and ancillary fee information on their 
websites, as required by existing regulation (14 CFR 399.85(d)). This 
information includes the use of baggage fee calculators and other 
tables accessible to consumers. The rulemaking requires that this 
information be made available in such a way that other entities to 
which they provide fare, schedule, and availability information to 
display or sell the carrier's flights directly to consumers have access 
to this information in a non-static, dynamic format such that the 
entities can disclose baggage fee and change and cancellation fee 
information to consumers during each itinerary search. The Department 
adjusted its number of burden hours per respondent based on comments 
suggesting that the cost of data sharing with ticket agents is higher 
than the Department initially estimated. Several carriers, however, 
already share this information with other entities by agreement, which 
suggests that the added cost of implementing any modifications required 
by this rule may be limited for many carriers. This potential burden of 
30 hours per respondent, as referenced here, may overestimate the 
actual burden for most carriers.
    Estimated Total Annual Burden: This information collection would 
result in an estimated annual burden of 6,180 hours. Based on an 
estimated mean hourly wage of $66.30 for computer programmers,\129\ 
this results in a total cost of approximately $409,734.
---------------------------------------------------------------------------

    \129\ The median base wage for computer programmers in 2022 was 
$47.02, https://www.bls.gov/oes/current/oes151251.htm. We multiply 
this by 1.41 to account for benefits, https://www.bls.gov/news.release/archives/ecec_09202022.pdf.
---------------------------------------------------------------------------

    Frequency: This information collection imposes an additional cost 
for carriers to provide information on critical ancillary fees to 
ticket agents required to disclose this information to consumers. Costs 
are annual.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501, 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditures by States, local, 
or Tribal governments, or by the private sector, of $100 million or 
more (adjusted annually for inflation with base year of 1995) in any 
one year. The 2023 threshold after adjustment for inflation is $198 
million, using the Implicit Price Deflator for the Gross Domestic 
Product. The assessment may be included in conjunction with other 
assessments, and

[[Page 34674]]

the Department has provided the assessment required by UMRA within the 
RIA prepared in support of the final rule.

National Environmental Policy Act

    The Department has analyzed the environmental impacts of this 
action pursuant to the National Environmental Policy Act of 1969 (NEPA) 
(42 U.S.C. 4321 et seq.) and has determined that it is categorically 
excluded pursuant to DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical 
exclusions are actions identified in an agency's NEPA implementing 
procedures that do not normally have a significant impact on the 
environment and therefore do not require either an environmental 
assessment (EA) or environmental impact statement (EIS).\130\ In 
analyzing the applicability of a categorical exclusion, the agency must 
also consider whether extraordinary circumstances are present that 
would warrant the preparation of an EA or EIS.\131\ Paragraph 
4(c)(6)(i) of DOT Order 5610.1C provides that ``actions relating to 
consumer protection, including regulations'' are categorically 
excluded. The purpose of this rulemaking is to enhance protections for 
air travelers and to improve the air travel experience. The Department 
does not anticipate any environmental impacts, and there are no 
extraordinary circumstances present in connection with this rulemaking.
---------------------------------------------------------------------------

    \130\ See 40 CFR 1508.4.
    \131\ Id.
---------------------------------------------------------------------------

Congressional Review Act

    Pursuant to subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (the Congressional Review Act), OMB's Office of 
Information and Regulatory Affairs has found that this rule falls 
within the scope of 5 U.S.C. 804(2).

List of Subjects

14 CFR Part 259

    Air carriers and foreign air carriers, Consumer protection, 
Reporting and recordkeeping requirements.

14 CFR Part 399

    Administrative practice and procedure, Air carriers and foreign air 
carriers, Air rates and fares, Air taxis, Consumer protection, Law 
enforcement, Small businesses.

Peter Paul Montgomery Buttigieg,
Secretary of Transportation.
    For the reasons stated in the preamble, DOT amends 14 CFR chapter 
II, subchapters A and F, as follows:

PART 259--ENHANCED PROTECTIONS FOR AIRLINE PASSENGERS

0
1. The authority citation for part 259 continues to read as follows:

    Authority:  49 U.S.C. 40101(a)(4), 40101(a)(9), 40113(a), 41702, 
41708, 41712, and 42301.


0
2. Amend Sec.  259.5 by:
0
a. Revising paragraphs (a) and (b)(4);
0
b. Removing the word ``and'' at the end of paragraph (b)(13);
0
c. Removing the period at the end of paragraph (b)(14) and adding ``; 
and'' in its place; and
0
d. Adding paragraph (b)(15).
    The revisions and addition read as follows:


Sec.  259.5  Customer Service Plan.

    (a) Adoption of Plan. Each covered carrier must adopt a Customer 
Service Plan applicable to its scheduled flights as specified in 
paragraphs (b)(1) through (15) of this section and adhere to the plan's 
terms.
    (b) * * *
    (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 if the reservation is made one week or 
more prior to a flight's departure, and disclosing its chosen twenty-
four hour policy on the last page of the booking process;
* * * * *
    (15) Disclosing critical ancillary service fees to consumers on the 
carrier's online platform or when a customer contacts the carrier's 
reservation center to inquire about a fare or make a reservation in 
person or by telephone and disclosing policies for critical ancillary 
service fees to consumers on the carrier's online platform as required 
by Sec.  399.85 of this chapter.
* * * * *

PART 399--STATEMENTS OF GENERAL POLICY

0
3. The authority citation for part 399 continues to read as follows:

    Authority:  49 U.S.C. 40113(a), 41712, 46106, and 46107.


0
4. Amend Sec.  399.80 by revising the introductory text, adding 
paragraph (o), and revising paragraph (s) to read as follows:


Sec.  399.80  Unfair and deceptive practices of ticket agents.

    It is the policy of the Department to regard as an unfair or 
deceptive practice or unfair method of competition the practices 
enumerated in paragraphs (a) through (o) of this section by a ticket 
agent of any size and the practice enumerated in paragraph (s) of this 
section by a ticket agent that sells air transportation online and is 
not considered a small business under the Small Business 
Administration's size standards set forth in 13 CFR 121.201:
* * * * *
    (o) Failing to disclose ancillary service fee information as 
required by Sec.  399.85.
* * * * *
    (s) Failing to disclose and offer web-based discount fares to 
prospective passengers who contact the agent through other channels 
(e.g., by telephone or in the agent's place of business) and indicate 
they are unable to use the agent's website due to a disability.

0
5. Amend Sec.  399.84 by revising paragraph (a) and adding paragraphs 
(d) and (e) 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 (i.e., a 
combination of air transportation and ground or cruise accommodations) 
or tour component (e.g., a hotel stay) that must be purchased with air 
transportation 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 (all 
mandatory charges) to be paid by the customer to the carrier, or agent, 
for such air transportation, tour, or tour component. Mandatory charges 
refer to all taxes and fees that are required to purchase air 
transportation on the channel where the advertising or solicitation 
occurs (e.g., if a fare is advertised online for $100 then that means 
the fare must be available for the consumer to purchase for $100 
online). Mandatory charges included within the single total price 
listed may be stated separately or through links or ``pop ups'' on 
online platforms that display the total price, but such charges may not 
be false or misleading, may not be displayed prominently, may not be 
presented in the same or larger size as

[[Page 34675]]

the total price, and must provide cost information on a per passenger 
basis that accurately reflects the cost of the item covered by the 
mandatory charge.
* * * * *
    (d) A carrier or ticket agent may display a price that includes all 
mandatory charges and one or more ancillary service fees (i.e., fees 
charged for any optional service related to air travel beyond passenger 
air transportation) in place of or more prominently than a price that 
only includes all mandatory charges.
    (e) The Department considers any offer of a percentage-off discount 
for passenger air transportation or for a tour (i.e., a combination of 
air transportation and ground or cruise accommodations) or tour 
component (e.g., a hotel stay) that must be purchased with air 
transportation, that does not make clear at the outset the terms and 
conditions of the offer, including how the discount is calculated, to 
be an unfair and deceptive practice in violation of 49 U.S.C. 41712. 
When used in any advertising or solicitation, the term ``base fare'' 
must refer to an amount that includes all mandatory carrier-imposed 
charges and the terms ``flight,'' ``ticket,'' or ``fare'' must refer to 
an amount that includes all mandatory carrier-imposed and government 
charges.

0
6. Revise Sec.  399.85 to read as follows:


Sec.  399.85  Notice of ancillary service fees.

    (a) Definitions. For purposes of this section, the following 
definitions apply:
    Air transportation means interstate air transportation, foreign air 
transportation, or the transportation of mail by aircraft as defined in 
49 U.S.C. 40102(a)(23) and (25).
    Ancillary service fee means the fee charged for any optional 
service related to air travel that a U.S. or foreign air carrier 
provides beyond passenger air transportation. Such fees may include, 
but are not limited to, fees for checked or carry-on baggage, advance 
seat selection, access to in-flight entertainment programs, in-flight 
beverages, lounge access, snacks and meals, pillows and blankets, and 
seat upgrades.
    Ancillary service package means a package or bundle of one or more 
ancillary services offered for sale by a carrier or ticket agent.
    Anonymous itinerary search means a search that does not take into 
account information specific to the passenger but does take into 
account information specific to the itinerary (e.g., geography, travel 
dates, cabin class, and ticketed fare class) that may impact the 
critical ancillary service fees to be charged or policies to be 
applied.
    Break in journey means a deliberate interruption by a passenger of 
a journey between a point in the United States and a point in a foreign 
country where a stopover at a foreign point is scheduled. The factors 
to consider to determine whether a stopover is a deliberate 
interruption include whether the segment between two foreign points and 
the segment between a foreign point and the United States were 
purchased in a single transaction and as a single ticket/itinerary, 
whether the segment between two foreign points is operated or marketed 
by a carrier that has no codeshare or interline agreement with the 
carrier operating or marketing the segment to or from the United 
States, and whether the stopover at a foreign point involves the 
passenger picking up checked baggage, leaving the airport, and 
continuing the next segment after a substantial amount of time.
    Clear and conspicuous means that a disclosure is difficult to miss 
(i.e., easily noticeable), easily understandable by consumers, and 
presented in a manner that allows consumers to determine the true cost 
and enable them to select the best flight options for them.
    Critical ancillary service means any ancillary service critical to 
consumers' purchasing decisions. Such services are: transporting the 
first checked bag, the second checked bag, or a carry-on bag, the 
ability for a consumer to cancel or change a reservation, and any other 
services determined, after notice and opportunity to comment, to be 
critical by the Secretary.
    Consumer or user refers to a person who seeks to obtain information 
about or purchase air transportation from a U.S. carrier, a foreign 
carrier, or a ticket agent, whether through an online platform or other 
means (e.g., over the telephone, in person).
    Corporate travel agent refers to a ticket agent engaged in 
providing travel services to the employees of a business entity 
pursuant to a written contract with that entity for the business travel 
of its employees.
    Online platform refers to any interactive electronic medium, 
including, but not limited to, websites and mobile applications, that 
allow the consumer to search for or purchase air transportation from a 
U.S. carrier, a foreign carrier, or a ticket agent.
    Passenger-specific itinerary search means a search that takes into 
account information specific to the passenger (e.g., the passenger's 
status in the airline's frequent flyer program, the passenger's 
military status, or the passenger's status as a holder of a particular 
credit card) that was affirmatively provided by that passenger and 
information specific to the itinerary (e.g., geography, travel dates, 
cabin class, and ticketed fare class) that may impact the critical 
ancillary service fees to be charged or policies to be applied.
    (b) Passenger-specific and anonymous itinerary searches. Each U.S. 
air carrier, foreign air carrier, and ticket agent (except a corporate 
travel agent) that advertises or sells air transportation marketed to 
U.S. consumers must offer consumers both the option to conduct a 
passenger-specific itinerary search and the option to conduct an 
anonymous itinerary search.
    (c) Online disclosures of ancillary service fees--(1) Critical 
ancillary service fees. Each U.S. air carrier, foreign air carrier, and 
ticket agent (except a corporate travel agent) that has an online 
platform marketed to U.S. consumers where it advertises or sells air 
transportation must clearly and conspicuously disclose on its online 
platform the accurate fee that applies, if any, for all critical 
ancillary services. The fee cannot be designated as $0 in circumstances 
where a critical ancillary service is not available to the consumer but 
rather must state ``not available'' or a similar notation. The fee 
information must be provided the first time that fare and schedule 
information is disclosed after a consumer conducts a passenger-specific 
itinerary search or an anonymous itinerary search. The fees cannot be 
displayed through a hyperlink.
    (2) Other ancillary service fees. Each U.S. air carrier, foreign 
air carrier, and ticket agent (except a corporate travel agent) that 
has an online platform marketed to U.S. consumers where it advertises 
or sells air transportation may disclose ancillary service fees that 
are not critical ancillary service fees at the same time as critical 
ancillary service fees.
    (3) Ancillary service packages. Each U.S. air carrier, foreign air 
carrier, and ticket agent (except a corporate travel agent) that has an 
online platform marketed to U.S. consumers where it advertises or sells 
air transportation must disclose the standalone fee for each critical 
ancillary service required under paragraph (c)(1) of this section when 
fare and schedule information is provided. Nothing in this section 
requires or prohibits a carrier or ticket agent from disclosing an 
ancillary service package that includes critical ancillary services if 
it chooses to do so.
    (4) Air tour packages. Each ticket agent that has an online 
platform marketed to U.S. consumers where it advertises or sells air 
tour packages must clearly and conspicuously disclose, at the time the 
ticket agent

[[Page 34676]]

offers a package fare quotation for a specific itinerary selected by a 
consumer, where the carrier providing air transportation is not known, 
that additional fees for baggage may apply and that those fees may be 
reduced or waived based on the passenger's frequent flyer status, 
method of payment, or other consumer characteristic. When the carrier 
providing air transportation for an air-tour package is known, that 
ticket agent must provide baggage fee information as prescribed by this 
paragraph (c) at the time that the ticket agent discloses the name of 
the carrier to the consumer.
    (5) Website disclosure of all ancillary service fees. A U.S. or 
foreign air carrier that has a website marketed to U.S. consumers where 
it advertises or sells air transportation must clearly and 
conspicuously disclose on its website accurate information on ancillary 
service fees available to a passenger purchasing air transportation 
with a clear and conspicuous link from the carrier's homepage directly 
to a page or a place on a page where all such ancillary services and 
related fees are disclosed. In general, fees for particular services 
may be expressed as a range; however, baggage fees must be expressed as 
specific charges taking into account any factors (e.g., frequent flyer 
status, early purchase) that affect those charges.
    (d) Online disclosure of baggage policies. Each U.S. air carrier, 
foreign air carrier, and ticket agent (except a corporate travel agent) 
that has an online platform marketed to U.S. consumers where it 
advertises or sells air transportation must clearly and conspicuously 
disclose on its online platform, before ticket purchase, the accurate 
weight and dimension limitations that the carrier imposes for a first 
and second checked bag and a carry-on bag after a consumer conducts a 
passenger-specific itinerary search or an anonymous itinerary search.
    (e) Intent to travel with a bag. Each U.S. air carrier, foreign air 
carrier, and ticket agent that has an online platform marketed to U.S. 
consumers where it advertises or sells air transportation may clearly 
and conspicuously solicit information from a consumer prior to the 
consumer conducting a passenger-specific itinerary or an anonymous 
itinerary search for air transportation regarding the consumer's 
intention to travel with a carry-on bag, a first checked bag, or a 
second checked bag. If the consumer affirmatively takes action to 
indicate that the consumer and all others in the booking party do not 
intend to travel with a carry-on bag, a first checked bag, or a second 
checked bag, then the carrier or ticket agent may forego disclosing the 
fees for that bag with the fare and schedule information as required by 
paragraph (c) of this section. Carriers and ticket agents (except a 
corporate travel agent) must disclose the baggage policies before 
ticket purchase as required by paragraph (d) of this section and must 
disclose information regarding the passenger's free baggage allowance 
and fee information for a carry-on bag, a first checked bag, and a 
second checked bag on e-ticket confirmations as required by paragraph 
(k) of this section even if a consumer indicates an intention not to 
travel with a bag.
    (f) Online disclosure of cancellation and change policies. Each 
U.S. carrier, foreign air carrier, and ticket agent (except a corporate 
travel agent) that has an online platform marketed to U.S. consumers 
where it advertises or sells air transportation must accurately, 
clearly, and conspicuously, disclose on its online platform, before 
ticket purchase, the components of change and cancellation policies 
identified in paragraphs (f)(1) through (4) of this section.
    (1) Restrictions and prohibitions. A summary of the applicable 
restrictions and prohibitions to change or cancel a ticket that apply 
to the consumer conducting a passenger-specific itinerary or an 
anonymous itinerary search, including any prohibitions or restrictions 
to obtaining a refund of the full amount paid;
    (2) Form of refund. A summary of the applicable policy regarding 
the form of the refund for a change or cancellation (e.g., a credit to 
the original form of payment, airline credits or voucher) that apply to 
the consumer conducting a passenger-specific itinerary or an anonymous 
itinerary search;
    (3) Fare differential. A summary of the applicable policy regarding 
a consumer's right to, or responsibility for, any fare differential, 
including whether the consumer is entitled to a refund in fare 
difference if the consumer changes to a lower cost replacement flight, 
that apply to the consumer conducting a passenger-specific itinerary or 
an anonymous itinerary search; and
    (4) 24-Hour hold or cancellation. A statement disclosed clearly and 
conspicuously on the last page of the booking process on allowing the 
reservation to be held at the quoted fare without payment, or cancelled 
without penalty, for at least twenty-four hours after the reservation 
is made, consistent with a carrier's customer service plan in Sec.  
259.5(b)(4) of this chapter and consistent with a ticket agent's 
policy. A ticket agent that has a policy of not allowing a 24-hour hold 
or cancellation must disclose that information clearly and 
conspicuously on the last page of the booking process. The disclosures 
in this paragraph (f)(4) are required if the reservation is made one 
week or more prior to a flight's departure.
    (g) Disclosures on landing page. Each U.S. air carrier, foreign air 
carrier, and ticket agent (except a corporate travel agent) that has an 
online platform marketed to U.S. consumers where it sells air 
transportation and that accepts a redirect of consumers to its online 
platform to complete the booking must ensure that the required critical 
ancillary service fee information in paragraph (c) of this section is 
accurately, clearly, and conspicuously displayed on the first page of 
the online platform to which the consumer has been directed, unless the 
consumer was provided accurate fee information of critical ancillary 
services on the directing entity's online platform.
    (h) Seat guarantee notice. Each U.S. carrier, foreign air carrier, 
and ticket agent (except a corporate travel agent) that has an online 
platform marketed to U.S. consumers where it advertises or sells air 
transportation must clearly and conspicuously disclose the following 
notice on any page or step of the booking process in which a consumer 
is offered a seat selection for a fee: ``A seat is included in your 
fare. You are not required to purchase a seat assignment to travel. If 
you decide to purchase a ticket and do not select a seat prior to 
purchase, a seat will be provided to you without additional charge when 
you travel.''
    (i) Code-share partner disclosures. For air transportation within, 
to or from the United States, a carrier marketing a flight under its 
identity that is operated by a different carrier, otherwise known as a 
code-share flight, must through its website disclose to consumers 
booked on a code-share flight any differences between its optional 
services and related fees and those of the carrier operating the 
flight. This disclosure may be made through a conspicuous notice of the 
existence of such differences on the marketing carrier's website or a 
conspicuous hyperlink taking the reader directly to the operating 
carrier's fee listing or to a page on the marketing carrier's website 
that lists the differences in policies among code-share partners.
    (j) Offline fee disclosures of ancillary services. Each U.S. air 
carrier, foreign air carrier, and ticket agent (except a corporate 
travel agent) that markets air transportation to U.S. consumers in 
person or by phone must disclose to

[[Page 34677]]

consumers, at the time a fare is quoted for an itinerary, that baggage 
fees (for a first checked, second checked, or carry-on bag), change 
fees, and cancellation fees apply, if that is the case. The U.S. 
carrier, foreign carrier, or ticket agent (other than a corporate 
travel agent) must then ask the consumer if they wish to hear more 
about the specific baggage fees, change fees, cancellation fees, and 
any other critical ancillary service fees that apply. These carriers 
and ticket agents, upon request from the consumer, must disclose those 
specific fees taking into account passenger-specific information 
provided by the consumer.
    (k) Disclosures of baggage fees on e-ticket confirmations. A U.S. 
carrier, a foreign air carrier, or a ticket agent (except a corporate 
travel agent) that has an online platform marketed to U.S. consumers 
where it advertises or sells air transportation must include 
information regarding the passenger's free baggage allowance (including 
personal item) and the applicable fee for a carry-on bag and the first 
and second checked bag on all e-ticket confirmations for air 
transportation within, to or from the United States, including on the 
summary page at the completion of an online purchase and in a post-
purchase email confirmation. Carriers and ticket agents must provide 
the fee information for a carry-on bag, first checked bag, and second 
checked bag in text form in the e-ticket confirmation taking into 
account any passenger-specific factors that affect those charges.
    (l) Sharing information on fee rules and policies. Each U.S. and 
foreign air carrier that provides fare, schedule, and availability 
information for air transportation within, to, or from the United 
States to an entity that is required by law to disclose critical 
ancillary service fee and policy information directly to consumers must 
disclose fee and policy information for critical ancillary fee services 
to that entity. The information provided must be useable, current, 
accurate, and sufficient to ensure compliance by such entities.
    (m) Unfair and deceptive practice. The Department considers the 
failure to provide and adhere to the disclosures required by this 
section to be an unfair and deceptive practice within the meaning of 49 
U.S.C. 41712.

0
7. Amend Sec.  399.88 by revising paragraph (a) to read as follows:


Sec.  399.88  Prohibition on post-purchase price increase.

    (a) It is an unfair and deceptive practice within the meaning of 49 
U.S.C. 41712 for any seller of scheduled air transportation within, to 
or from the United States, or of a tour (i.e., a combination of air 
transportation and ground or cruise accommodations), or tour component 
(e.g., a hotel stay) that includes scheduled air transportation within, 
to or from the United States, to increase the ticket price of that air 
transportation, tour or tour component, or to raise the price for 
critical ancillary services as defined in Sec.  399.85(a) to a consumer 
after the air transportation has been purchased by the consumer, except 
in the case of an increase in a government-imposed tax or fee. A 
purchase is deemed to have occurred when the full amount agreed upon 
has been paid by the consumer.
* * * * *
[FR Doc. 2024-08609 Filed 4-29-24; 8:45 am]
BILLING CODE 4910-9X-P