Order 2012-7-23

 UNITED STATES OF AMERICA

 DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Nineteenth day of July, 2012

Request to Extend the Compliance Relief 

Provided by Order 2012-1-2 Docket: DOT-OST-2010-0140

Served: July 19, 2012

RESPONSE TO REQUEST TO EXTEND DOT ORDER 2012-1-2

By this order, we are denying the request of Airlines for America, the International Air Transport 

Association, the Regional Airline Association, and the Air Carrier Association of America (collectively 

Associations) to extend the compliance relief regarding 14 CFR 399.85(c) and 399.87 provided by Order 

2012-1-2 for the reasons discussed below. The Office of the Assistant General Counsel for Aviation 

Enforcement and Proceedings (Enforcement Office) will, if appropriate, continue to pursue enforcement 

action where it finds violations of 14 CFR 399.85(c) and 399.87, which deal with the disclosure and 

assessment of baggage fees. However, the Associations are reminded that, when reviewing carrier 

compliance with these provisions, as in all compliance matters, the Enforcement Office has considerable 

discretion and will consider the facts of each potential enforcement matter on a case-by-case basis

before taking any action.

Background 

On April 25, 2011, the Department of Transportation (Department or DOT) published a final rule in the 

Federal Register titled “Enhancing Airline Passenger Protections,” containing many new requirements to 

improve the air travel environment for consumers. See 76 Fed. Reg. 23110 (April 25, 2011). The 

effective date of certain provisions of the rule, including 14 CFR 399.85(c) and 399.87, was extended to 

January 24, 2012. On November 28, 2011, the Associations filed a petition urging the Department to 

postpone for an additional year the implementation of certain of the new rules on bag fees. 1 On 

 

1 For a more detailed account of the provisions of the final rule and the effective date of various provisions, see Order 2012-

1-2. The order also provides an account of the Department’s collaboration with the regulated entities to assist them in 

complying with the various requirements of the rule and a summary of the petition and a related petition and letters of 

support.
2

January 6, 2012, in Order 2012-1-2, the Department denied the Association’s petition to delay the 

effectiveness of sections 399.85(c) and 399.87, but announced that the Enforcement Office would not 

take enforcement action on violations of those sections for a six-month period with respect to interline 

itineraries or with respect to code-share itineraries involving international flights, or interline itineraries 

involving domestic flights of different mainline carriers, if certain conditions were met. The conditions 

required that carriers (1) disclose on e-ticket confirmations that additional airline baggage fees may 

apply and provide a hyperlink allowing passengers to link to the applicable baggage allowance and fee 

information and (2) reimburse upon request any passenger that was not charged the same baggage fees 

throughout his or her itinerary if that resulted in the passenger being overcharged.

The Request

The Associations now request that the Enforcement Office extend until January 24, 2013, the policy of

applying enforcement discretion in monitoring compliance with sections 399.85(c) and 399.87 as 

described in Order 2012-1-2. The request describes the work the industry has already completed to 

comply with the Department’s rules regarding airline fees for baggage and states that carriers have 

incurred significant costs in their compliance efforts. The request goes on to describe the additional 

work that remains to be completed to provide baggage fee notices to passengers at the time of the fare 

quote and on e-ticket confirmations and to apply baggage rules at the airport for some code-share and all 

interline itineraries. According to the request, the need to change and reintegrate carrier systems without 

interrupting ongoing operations has been difficult and time consuming. Meanwhile, carrier coordination

and software revisions and testing are ongoing and will not be completed by July 24, 2012. The request 

indicates that carriers estimate that they can have their systems mostly automated and be compliant by 

January 2013. 

The Associations’ request states that 90 percent of itineraries comply with Department baggage rules 

and that carriers are receiving only a small number of complaints regarding baggage fee overcharges. 

The request states that “a lack of complaints to carriers and the Department” concerning the baggage 

rules in sections 399.85(c) and 399.87 suggests that “consumers are satisfied with carrier efforts.” More 

specifically, the request states that one carrier reported three complaints and another reported 20 

requests for refund, of which it found 16 to be meritorious. The Associations take the position that an 

extension of the non-enforcement period “will not materially impact the vast majority of passengers and 

will allow carriers to provide better customer service in the future.”

The Department has not received any comments supporting or opposing the Associations’ request.

Decision

We are denying the request to continue a general enforcement policy, as described in Order 2012-1-2, of 

not enforcing sections 399.85(c) and 399.87 where certain conditions are met. Carriers have known of 

the requirements in these sections since April 2011 and have already received two extensions, one to the 

rule’s effective date and the other by way of the enforcement policy announced in Order 2012-1-2.

Consumers will continue to be confused about their baggage fees until carriers comply with all of the

Department’s rules regarding baggage fees. 
3

The Department has received at least 25 complaints from passengers alleging that they were required to 

pay different baggage fees throughout their itinerary and that they were overcharged in violation of our 

rules. Of those complaints, at least 20 appear to be meritorious. In the Enforcement Office’s 

experience, for each complaint made to the Department, there are significantly more consumers who

experienced similar problems, but who chose not to complain or did not know how to complain to the 

Department.2 Accordingly, the Enforcement Office believes that enforcement action may be warranted 

in certain cases. However, the Enforcement Office recognizes that carriers have invested significant 

time and resources in their efforts to comply with the rules regarding baggage fees and has significant 

discretion in when to pursue enforcement action. Additionally, the Enforcement Office believes that in 

every enforcement matter it is important to consider all relevant factors. Before taking enforcement 

action against a carrier, the Enforcement Office will carefully investigate the alleged violations of 

sections 399.85(c) and 399.87 and the carrier’s efforts to achieve compliance, the specific obstacles it 

faced in doing so and its efforts to mitigate any consumer harm. Additionally, the Enforcement Office 

will consider whether carriers reimbursed upon request any passenger who was overcharged by being 

required to pay different baggage fees throughout his or her itinerary. Each matter will be considered 

on a case-by-case basis.

Additionally, although denying the request, the Department will continue to work collaboratively with 

the regulated entities to assist them in complying with these requirements, including attending industry 

meetings to answer questions, providing further clarifications, as needed, and publishing guidance on its 

website.

 

ACCORDINGLY, we are denying the request of the Associations to extend the compliance relief 

provided by Order 2012-1-2. A copy of this order will be served on the petitioners.

By:

Samuel Podberesky

Assistant General Counsel for Aviation 

Enforcement and Proceedings

(SEAL) 

An electronic version of this document is available at

www.regulations.gov

 

2 Past informal surveys indicate that the ratio is between 25 and 100 consumer complaints to carriers for each one the 

Department receives.