**DEPARTMENT OF TRANSPORTATION**

**OFFICE OF THE SECRETARY**

**14 CFR Parts 234, 253, 259, and 399**

**Docket No.** **DOT-OST-2007-0022**

**RIN No. 2105-AD72**

**Enhancing Airline Passenger Protections**

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

**ACTION:** Advance Notice of Proposed Rulemaking (ANPRM)

**SUMMARY:** The Department of Transportation (DOT or Department) is
seeking comment on whether it should adopt a rule to enhance airline
passenger protections in the following ways: (1) require carriers to
adopt contingency plans for lengthy tarmac delays and incorporate them
in their contracts of carriage, (2) require carriers to respond to
consumer problems, (3) deem operating a chronically delayed flight to be
unfair and deceptive, (4) require carriers to publish delay data, (5)
require carriers to publish complaint data, (6) require on-time
performance reporting for international flights, and (7) require
carriers to audit their compliance with their customer service plans. We
are proposing that most of these measures (specifically, 1, 2, 5, and 7)
cover certificated or commuter air carriers that operate domestic
scheduled passenger service using any aircraft with more than 30
passenger seats. We are proposing that measure 6 cover the largest U.S.
and foreign carriers and that measures 3 and 4 cover the largest U.S.
carriers.

**DATES:** Comments should be filed by \[INSERT DATE THAT IS SIXTY DAYS
AFTER PUBLICATION IN THE *FEDERAL REGISTER*.\] Late-filed comments will
be considered to the extent practicable.

**ADDRESSES:** You may file comments identified by the docket number
DOT-OST-2007-0022 by any of the following methods:

° Federal eRulemaking Portal: go to
[http://www.regulations.gov](http://www.regulations.gov/) and follow the
online instructions for submitting comments.

° Mail: Docket Management Facility, U.S. Department of Transportation,
1200 New Jersey Ave. SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590-0001.

° Hand Delivery or Courier: West Building Ground Floor, Room W12-140,
1200 New Jersey Ave. SE, between 9:00 a.m. and 5:00 p.m. ET, Monday
through Friday, except Federal Holidays.

° Fax: (202) 493-2251.

*Instructions:* You must include the agency name and docket number
DOT-OST-2007-0022 or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to
[http://www.regulations.gov](http://www.regulations.gov/), including any
personal information provided.

*Privacy Act:* Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.) You may review DOT's
complete Privacy Act statement in the *Federal Register* published on
April 11, 2000 (65 FR 19477-78), or you may visit
[http://DocketsInfo.dot.gov](http://DocketsInfo.dot.gov/).

*Docket:* For access to the docket to read background documents or
comments received, go to
[http://www.regulations.gov](http://www.regulations.gov/) or to the
street address listed above. Follow the online instructions for
accessing the docket.

**FOR FURTHER INFORMATION CONTACT:** Betsy L. Wolf or Blane A. Workie,
Office of the Assistant General Counsel for Aviation Enforcement and
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. SE,
Washington, DC 20590, 202-366-9342, 202-366-7152 (fax),
<betsy.wolf@dot.gov> or <blane.workie@dot.gov> (e-mail).

**SUPPLEMENTARY INFORMATION:**

**Background**

Beginning in December of 2006 and continuing through the early spring,
weather problems kept more than a few aircraft sitting for hours on
airport tarmacs. Many passengers were stranded on these aircraft for
periods of three hours, six hours, and in some cases even longer. At the
request of the Secretary of Transportation, the Department's Office of
the Inspector General has reviewed and reported on these incidents,
focusing its report on how the carriers can improve passenger comfort
and convenience during these extremely long delays on the ground.

Another significant issue for passengers is the high incidence of less
extreme flight delays. In the first seven months of this year, only
72.23 percent of flights arrived on time, a lower percentage for this
period than in any of the past 12 years.

The industry and interested observers have attributed both the marathon
tarmac waits and the epidemic of flight delays to a number of factors in
addition to the weather. Some posit that because carriers are now flying
full planes and have no excess capacity in their systems and thus no
margin for error in the event of problematic weather, revenue concerns
mandate that they delay a flight until it can take off, even for hours
if necessary, rather than cancel it. Some fault the air traffic control
system and the airports for acting too slowly to relieve capacity and
operational constraints. Some attribute the overload problem to the
widespread replacement of larger aircraft with smaller regional jets
scheduled at higher frequencies and call for the Federal Aviation
Administration (FAA) to require carriers to trim their schedules. Others
point to the steep rise in the use of private jets.

Some of the capacity and operational constraints that have undoubtedly
contributed to tarmac delays and other flight delays are being addressed
by the FAA and certain airports in other contexts. In the meantime,
however, this Department is seeking comment on several measures to
address passengers' concerns. 49 U.S.C. §41712, in concert with 49
U.S.C. §40101(a)(4) and §40101(a)(9) and also 49 U.S.C. §41702, gives us
the authority and the responsibility to protect consumers from unfair
and deceptive practices and ensure safe and adequate service in air
transportation. We are therefore seeking comment on eight potential
solutions, described below, intended to ameliorate some of the problems
facing passengers without creating undue burdens for the carriers. We
also invite commenters to suggest other consumer protection measures
that might help alleviate the problems that passengers face. Commenters
should bear in mind the Department's responsibility to strike the proper
balance between protecting consumers and affording carriers as much
leeway as possible to choose their responses to the rapid developments
that confront them in the marketplace.

**1. Require Contingency Plans for Lengthy Tarmac Delays and Incorporate
Them in their Contracts of Carriage**

We seek comment on amending 14 CFR Part 253 to require any certificated
or commuter air carrier[^1] that operates domestic scheduled passenger
service using any aircraft with more than 30 passenger seats to develop
a contingency plan for long ground delays on the tarmac for all of its
flights (including those that use aircraft with 30 or fewer seats) and
to incorporate this plan in its contract of carriage. Among other
things, each such plan would have to include the following:

> • the maximum tarmac delay that the carrier will permit,
>
> • the amount of time on the tarmac that triggers the plan's terms,
>
> • assurance of adequate food, water, and lavatory facilities, and
> medical attention if needed while the aircraft remains on the tarmac,
>
> • assurance of sufficient resources to implement the plan, and
>
> • assurance that the plan has been coordinated with airport
> authorities at medium and large hub airports.

With the contingency plan incorporated in the contract of carriage,
passengers would be able to sue in court for damages if a carrier failed
to adhere to its plan. Carriers would also be required to make their
complete contracts of carriage (including contingency plans) available
on their websites. Further, carriers would be required to retain for two
years the following information about any on-ground delay that either
triggers their contingency plans or lasts at least four hours: (1) the
length of the on-ground delay, (2) the cause of the delay, and (3) the
actions taken to minimize hardships for passengers, including the
provision of food and water, the maintenance of lavatories, and medical
assistance. The regulation would specify that the Department would
consider failure to do any of the following to be an unfair and
deceptive practice within the meaning of 49 U.S.C. §41712 and subject to
enforcement action: (1) adopt a contingency plan and incorporate it in
the contract of carriage, (2) implement the plan as written, (3) make
the plan available on line, or (4) retain information about every
on-ground delay that either triggers the contingency plan or lasts at
least four hours.

We believe that requiring the retention of records for tarmac delays
that last at least four hours would enhance the Department's ability to
monitor, analyze, and address the problems associated with long delays.
We have chosen four hours as the threshold in order to foster
consistency for purposes of analysis, given that carriers are likely to
make disparate time choices for their own contingency plans. (We do not
intend to suggest, nor are we proposing to adopt, a specific amount of
time during or after which carriers must allow passengers to deplane.
Rather, we expect each carrier to craft its own standard on this issue.)
We invite comment on whether four hours is an appropriate delay duration
for triggering this new record-keeping requirement.

We are also not proposing at this time to have the Department review and
approve carriers' contingency plans. We believe the better approach to
be to allow the carriers to set the terms of their plans and rely on the
legal system and our enforcement powers to ensure that the terms are
followed. If this approach proves inadequate, we can always revise it.

We invite interested persons to comment on this proposal. What costs
would it impose on the carriers? Would it have any negative
consequences? Is it likely to succeed in protecting passengers from the
conditions described above? If not, why not? What additional or
different measures should we consider adopting? Would incorporation of
the contingency plan in the contract of carriage give consumers adequate
notice of what might happen in the event of a long delay on the tarmac?
When prolonged delays occur, would these measures succeed in reducing
the resultant uncertainty and discomfort for passengers? Should the
types of carriers covered by the regulation be expanded or limited? What
would be the cost or benefit of narrowing or expanding coverage? Should
the requirement of coordinating the plan with airport authorities apply
to all primary airports (*i.e.*, commercial service airports that
enplane more than 10,000 passengers annually) rather than only to medium
hub airports (primary airports that enplane between 0.25 and 1 percent
of total U.S. passengers) and large hub airports (primary airports that
enplane at least 1 percent of total U.S. passengers)?

**2. Require Carriers to Respond to Consumer Problems**

We seek comment on adopting a new regulation, 14 CFR Part 259, that
among other things would require every certificated and commuter carrier
that operates domestic scheduled passenger service using any aircraft
with more than 30 passenger seats to respond to mounting consumer
problems in the following ways:

> • at its system operations center and at each airport dispatch center,
> designate an employee who is responsible for monitoring the effects of
> flight delays, flight cancellations, and lengthy tarmac delays on
> passengers and who has input on decisions such as which flights are
> cancelled and which are subject to the longest delays,
>
> • on its website, on all e-ticket confirmations, and, upon request, at
> each ticket counter and gate, make information available on filing a
> complaint with the carrier (name of person or office, address, and
> telephone number), and
>
> • send a response to each consumer complaint it receives within 30
> days of receiving the complaint.
>
> We invite interested persons to comment on this proposal. What costs
> would it impose on the carriers? Would it have any negative
> consequences? Should we require carriers to accept complaints via
> phone, letter and e-mail, or should the choice of complaint channels
> be left to each carrier? Would these procedures result in carriers'
> devoting adequate attention to the needs of passengers? If not, what
> additional or different measures would achieve this result? What
> specific responsibilities should the designated employee have? Is it
> reasonable to expect a carrier to provide a response within 30 days of
> receipt of a complaint? Should the types of carriers covered by the
> regulation be expanded or limited? What would be the cost or benefit
> of narrowing or expanding coverage?
>
> **3. Declare the Operation of Flights that Remain Chronically Delayed
> to be an Unfair and Deceptive Practice and an Unfair Method of
> Competition.**
>
> We seek comment on amending 14 CFR §399.81 so that it sets forth the
> Department's enforcement posture on chronically delayed flights.
> First, the new text would define a chronically delayed flight as a
> flight by a covered carrier that operates at least 45 times in a
> calendar quarter and arrives more than 15 minutes late more than 70
> percent of the time. We propose to define a covered carrier as a
> carrier that reports on-time performance data to the Department
> pursuant to 14 CFR Part 234,---*i.e.*, a certificated U.S. carrier
> that accounted for at least 1% of domestic scheduled passenger revenue
> in the 12 months ending March 31. Second, the new text would specify
> that the Department considers a chronically delayed flight to be an
> unfair and deceptive practice and an unfair method of competition
> within the meaning of 49 U.S.C. §41712 if it is not corrected in a
> timely manner---*i.e.*, during the second calendar quarter following
> the one in which the flight is first chronically delayed.
>
> We invite interested persons to comment on this proposal. What costs,
> if any, would it impose on carriers? Would it have any negative
> consequences? Does it strike the appropriate balance between
> passenger's need to have the best possible information about the real
> arrival time of a flight and the carriers' inability to control the
> weather and certain other factors that can contribute to delays?
> Commenters who think that it does not strike the appropriate balance
> should explain why and provide alternate proposals.
>
> We tentatively consider that in setting the threshold for a
> chronically late flight as high as 70 percent and in allowing up to
> six months for the carrier to adjust its schedule, its operations, or
> both so that the flight comes below this threshold, we would not be
> creating undue burdens for carriers. When a carrier publishes a
> schedule, it assumes the obligation to adhere to it insofar as is
> feasible. Consumers buy transportation in reliance on a carrier's
> published schedule, and they have a right to expect that the carrier
> both intends to arrive at the promised time and can do so in most
> cases. Consumers' reliance on chronically inaccurate schedules works
> to their detriment both personally and professionally. Furthermore, a
> carrier's publication of a schedule that it does not achieve most of
> the time can harm its competitors. This in turn further harms
> consumers by reducing the number of travel options from which they can
> choose.
>
> Commenters who think that the proposed standards would not result in
> an improvement of on-time performance should explain why and suggest
> alternate approaches. We also solicit comment on whether the
> definition of a chronically delayed flight should be expanded to
> include international scheduled passenger service to and from the
> United States operated by U.S. and foreign air carriers.
>
> **4. Require Carriers to Publish Delay Data on their Websites**
>
> We seek comment on amending 14 CFR §234.11 to require airlines that
> report on-time performance to the Department pursuant to 14 CFR Part
> 234 (*i.e.*, certificated U.S. carriers that account for at least 1%
> of the domestic scheduled passenger revenue) and online reservation
> services to include on their websites, at a point before the passenger
> selects a flight for purchase, the following information for each
> listed flight about its performance during the previous month:
>
> • the percentage of arrivals that were on time,
>
> • the percentage of arrivals that were more than 30 minutes late,
>
> • special highlighting if the flight was late more than 50 percent of
> the time, and
>
> • the percentage of cancellations.

We invite interested persons to comment on this proposal. What costs
would it impose on carriers and online reservation services? Would it
have any negative consequences? Would it help consumers make
better-informed choices when booking flights? Would it increase
carriers' incentives to correct problem flights through adjustments to
their schedules or their operations, or both? What other information, if
any, should this regulation require?

Would requiring carriers to post on-time flight performance information
on their website give passengers adequate notice before booking about
the likelihood of a flight's arriving on time? Should we require airline
websites and reservation agents to disclose on-time flight information
to consumers at the time of booking, without being asked? What would be
the benefit or cost of such a requirement? Should any disclosure
requirement be limited to flights that are chronically delayed or
cancelled?

Should this regulation cover all on-line reservation services or only
those of a certain size? If the latter, what threshold would be
appropriate (in terms of revenue or number of employees)? Should the
regulation cover more types of carriers? What would be the cost or
benefit of expanding coverage?

**5. Require Carriers to Publish Complaint Data on their Websites**

We seek comment on adopting a new regulation, 14 CFR Part 259, that
would also require certificated and commuter carriers that operate
domestic scheduled passenger service using any aircraft with more than
30 passenger seats to publish complaint data on their websites. Each
carrier would have to disclose the number of consumer complaints it has
received within a defined time frame concerning subjects such as tarmac
delays, missed connections, and the failure to provide amenities to
passengers affected by a delayed or canceled flight. We ask interested
persons to comment on this proposal. What costs would it impose on
carriers? Would it have any negative consequences? Should we prescribe a
uniform location for all carriers' websites, or should we leave this
decision to the carriers? If the former, where should the data be
posted? What complaint subjects should be covered by this requirement,
and what time period would be appropriate? Would the proposed regulation
help consumers make better-informed choices when booking flights? Would
it increase carriers' incentives to avoid the problems that elicit
complaints? Should the types of carriers covered by the regulation be
increased or decreased? What would be the cost or benefit of narrowing
or expanding coverage?

**6. Require Carriers to Report On-Time Performance of International
Flights**

We seek comment on amending 14 CFR §§234.4 and 234.11 to require
carriers that report on-time performance to the Department pursuant to
14 CFR Part 234 (*i.e.*, certificated U.S. carriers that account for at
least 1% of the domestic scheduled passenger revenue) and the largest
foreign carriers to report on-time performance for international flights
to and from the United States. Our publication of these data would give
consumers information about on-time performance to use in choosing
international flights. We invite interested persons to comment on this
proposal. What costs would it impose on the carriers? Would it have any
negative consequences? Would the benefits of making this information
available to the public outweigh the burdens that this requirement would
impose on carriers that provide international service? How should we
determine whether a foreign carrier is large (*e.g.*, by total revenue,
by number of flights to and from the U.S.)? Should we devise a size
threshold for foreign carriers similar to the current 1% threshold for
U.S. carriers?

**7. Require Carriers to Audit Their Adherence to their Customer Service
Plans**

We seek comment on adopting a new regulation that would require
certificated and commuter carriers that operate domestic scheduled
passenger service using any aircraft with more than 30 passenger seats
to audit their adherence to their own customer service plans. This
proposal tracks a recommendation from the Department's Inspector
General, who found carrier failings in this area. We solicit comment on
the costs and benefits of self-audits, suggestions for appropriate
auditing standards, including whether the carriers should be required to
hire independent auditors to conduct the audits, and suggestions for how
the Department might verify compliance without auditing the airline's
practices itself. Further, we solicit comment on whether we should
require any covered carrier that does not have a customer service plan
in place to adopt one and, if so, what provisions such plans should
include. For example, should they include some or all of the provisions
of the 12-point Airline Service Commitment made by 13 members of the Air
Transport Association (which can be found at
<http://www.airlines.org/customerservice/passengers/Customers_First.htm>)?
Also, should we require that carriers incorporate their customer service
plans in their contracts of carriage?

**REGULATORY NOTICES**

A. [Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures]{.underline}

This action has been determined to be significant under Executive Order
12866 and the Department of Transportation's Regulatory Policies and
Procedures. It has been reviewed by the Office of Management and Budget
under that Order. A preliminary discussion of the proposed solutions to
enhance airline passenger protections without creating undue burdens for
the carriers is presented above. We are soliciting comments on the
potential costs and benefits of the proposed solutions. On the cost
side, we recognize that many of the measures suggested in this ANPRM
would impose costs for both implementation and operation on the entities
that its proposed requirements would cover. We have asked commenters to
answer a variety of questions in order to elicit practical information
about the nature and magnitude of these costs. The benefits we seek to
achieve entail relieving consumers of the burdens they now face due to
lengthy ground delays, chronically delayed flights, and other problems
discussed in the ANPRM. The benefits would be achieved by affording
consumers significantly more information than they have now about
delayed and cancelled flights and about how carriers will respond to
their needs in the event of lengthy ground delays. Making this
information accessible should not only alleviate consumers' difficulties
during long delays but also enable them to make better-informed choices
when booking flights.

B. [Executive Order 13132 (Federalism)]{.underline}

This Advance Notice of Proposed Rulemaking has been analyzed in
accordance with the principles and criteria contained in Executive Order
13132 ("Federalism"). This notice does not propose any regulation that
(1) has substantial direct effects on the States, the relationship
between the national government and the States, or the distribution of
power and responsibilities among the various levels of government, (2)
imposes substantial direct compliance costs on State and local
governments, or (3) preempts state law. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply.

C. [Executive Order 13084]{.underline}

This notice has been analyzed in accordance with the principles and
criteria contained in Executive Order 13084 ("Consultation and
Coordination with Indian Tribal Governments"). Because none of the
options on which we are seeking comment would significantly or uniquely
affect the communities of the Indian tribal governments or impose
substantial direct compliance costs on them, the funding and
consultation requirements of Executive Order 13084 do not apply.

D. [Regulatory Flexibility Act]{.underline}

The Regulatory Flexibility Act (5 U.S.C. §601 *et seq.*) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
The regulatory initiatives discussed in this ANPRM would have some
impact on some small entities but we do not believe that it would have a
significant impact on a substantial number of small entities. We invite
comment to facilitate our assessment of the potential impact of these
initiatives on small entities.

E. [Paperwork Reduction Act]{.underline}

The ANPRM proposes several new collections of information that would
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (49 U.S.C. 3501 et seq.) The ANPRM solicits
comment on requiring certificated and commuter airlines that operate
domestic scheduled passenger service using any aircraft with more than
30 passenger seats to retain for two years the following information
about any ground delay that triggers their contingency plan or lasts at
least four hours: (1) the length of the delay, (2) the cause of the
delay, and (3) actions taken to minimize hardships for passengers. The
Department plans to use this information to conduct reviews of incidents
involving long delays on the ground and to identify any trends and
patterns that may develop. The ANPRM further proposes to require the
collection of flight delay data from certain U.S. and foreign air
carriers regarding their flights to and from the U.S. and also to
require certain U.S. carriers to compile and publish complaint
information. We invite comments regarding any aspect of these
information collections, including the following: (1) the necessity and
utility of the information collection, (2) the estimated burden, (3)
ways to enhance the quality, utility, and clarity of the information
collected, and (4) ways to minimize the collection burden without
reducing the quality of the information collected.

F. [Unfunded Mandates Reform Act]{.underline}

The Department has determined that the requirements of Title II of the

Unfunded Mandates Reform Act of 1995 do not apply to this notice.

**ISSUED THIS DAY OF , 2007, AT WASHINGTON, DC**

Michael W. Reynolds

Deputy Assistant Secretary for Aviation and International Affairs

[^1]: A certificated air carrier is a U.S. direct air carrier that holds
    a certificate issued under 49 U.S.C. §41102 to operate passenger
    and/or cargo and mail service or that holds an exemption to conduct
    direct passenger operations under 49 U.S.C. §41102. Air taxi
    operators or and commuter air carriers operating under 14 CFR Part
    298 are not certificated air carriers. Some carriers that would
    otherwise be eligible for air taxi or commuter status have opted to
    be certificated. A commuter air carrier is an air taxi operator that
    carries passengers on at least five round trips per week on at least
    one route between two or more points according to published flight
    schedules. *See* 14 CFR §298.2. An on-demand air taxi is an air taxi
    operator that carries passengers or property and is not a commuter
    air carrier as defined in 14 CFR Part 298.