23110 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

14 CFR Parts 244, 250, 253, 259, and 

399 

[Docket No. DOT–OST–2010–0140] 

RIN 2105–AD92 

Enhancing Airline Passenger 

Protections 

AGENCY: Office of the Secretary (OST), 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The Department of 

Transportation is issuing a final rule to 

improve the air travel environment for 

consumers by: Increasing the number of 

carriers that are required to adopt 

tarmac delay contingency plans and the 

airports at which they must adhere to 

the plan’s terms; increasing the number 

of carriers that are required to report 

tarmac delay information to the 

Department; expanding the group of 

carriers that are required to adopt, 

follow, and audit customer service plans 

and establishing minimum standards for 

the subjects all carriers must cover in 

such plans; adding carriers to those 

required to include their contingency 

plans and customer service plans on 

their websites; increasing the number of 

carriers that must respond to consumer 

complaints; enhancing protections 

afforded passengers in oversales 

situations, including increasing the 

maximum denied boarding 

compensation airlines must pay to 

passengers bumped from flights; 

strengthening, codifying and clarifying 

the Department’s enforcement policies 

concerning air transportation price 

advertising practices; requiring carriers 

to notify consumers of optional fees 

related to air transportation and of 

increases in baggage fees; prohibiting 

post-purchase price increases; requiring 

carriers to provide passengers timely 

notice of flight status changes such as 

delays and cancellations; and 

prohibiting carriers from imposing 

unfair contract of carriage choice-offorum provisions. The Department is 

taking this action to strengthen the 

rights of air travelers in the event of 

oversales, flight cancellations and 

delays, ensure that passengers have 

accurate and adequate information to 

make informed decisions when 

selecting flights, prohibit unfair and 

deceptive practices such as postpurchase price increases and contract of 

carriage choice-of-forum provisions, and 

to ensure responsiveness to consumer 

complaints. 

DATES: This rule is effective August 23, 

2011 except for the amendments to 14 

CFR 399.84 which become effective 

October 24, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Blane A. Workie, Tim Kelly or Daeleen 

Chesley, 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 (phone), 202–366–7152 (fax), 

tim.kelly@dot.gov or 

blane.workie@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background 

On December 30, 2009, the 

Department published a final rule in 

which it required certain U.S. air 

carriers to adopt contingency plans for 

lengthy tarmac delays; respond to 

consumer problems; post flight delay 

information on their websites; and 

adopt, follow, and audit customer 

service plans. The rule also defined 

chronically delayed flights and deemed 

them to be an ‘‘unfair and deceptive’’ 

practice. The majority of the provisions 

in that rule took effect on April 29, 

2010. See 74 FR 68983 (December 30, 

2009). 

In the preamble to that final rule, the 

Department noted that it planned to 

review additional ways to further 

enhance protections afforded airline 

passengers and listed a number of 

subject areas that it was considering 

addressing in a future rulemaking. On 

June 8, 2010, the Department published 

a notice of proposed rulemaking 

(NPRM), 75 FR 32318, in which it 

addressed the following areas: (1) 

Contingency plans for lengthy tarmac 

delays; (2) reporting of tarmac delay 

data; (3) customer service plans; (4) 

contracts of carriage; (5) responding to 

consumer problems/complaints (6) 

oversales; (7) full fare advertising; (8) 

baggage and other ancillary fees; (9) 

post-purchase price increases; (10) 

notification to passengers of flight status 

changes; (11) choice-of-forum 

provisions; and (12) peanut allergies. In 

response to the NPRM, the Department 

received over 2100 comments, the vast 

majority of which were related to the 

proposal to address peanut allergies in 

air travel. 

The Department received comments 

on the NPRM from the following: U.S. 

carriers and U.S. carrier associations; 

foreign air carriers and foreign carrier 

associations; U.S. and foreign consumer 

groups; travel agents and members of 

organizations in the travel industry; 

airports and various airport-related 

industry groups; members of Congress; 

embassies; peanut industry groups and 

allergy associations; as well as a number 

of individual consumers. In addition, 

the Department received a summary of 

the public discussion on the NPRM 

proposals that occurred on the 

Regulation Room Web site, http:// 

www.regulationroom.org. The 

Regulation Room site is a site where 

members of the public can learn about 

and discuss proposed federal 

regulations and provide feedback to 

agency decision makers. To support this 

Administration’s open government 

initiative, the Department partnered 

with Cornell University in this pilot 

project to discover the best ways to use 

Web 2.0 and social networking 

technologies to increase effective public 

involvement in the rulemaking process. 

The Department has carefully 

reviewed and considered the comments 

received. The commenters’ positions 

that are germane to the specific issues 

raised in the NPRM and the 

Department’s responses are set forth 

below, immediately following a 

summary of regulatory provisions and a 

summary of the regulatory analysis. 

Summary of Regulatory Provisions 

Subject Final rule 

Tarmac Delay Contingency Plans ....................... • Requires foreign air carriers operating to or from the U.S. with at least one aircraft with 30 

or more passenger seats to adopt and adhere to tarmac delay contingency plans. 

• Requires U.S. and foreign air carriers to not permit an international flight to remain on the 

tarmac at a U.S. airport for more than four hours without allowing passengers to deplane 

subject to safety, security, and ATC exceptions. 

• Expands the airports at which airlines must adhere to the contingency plan terms to include 

small hub and non-hub airports, including diversion airports. 

• Requires U.S. and foreign carriers to coordinate plans with Customs and Border Protection 

(CBP) and the Transportation Security Administration (TSA). 


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Subject Final rule 

• Requires notification regarding the status of delays every 30 minutes while aircraft is delayed, including reasons for delay if known. 

• Requires notification of opportunity to deplane from an aircraft that is at the gate or another 

disembarkation area with door open if the opportunity to deplane actually exists. 

Tarmac Delay Data ............................................. • Requires all carriers that must adopt tarmac delay contingency plans to file data with the 

Department regarding lengthy tarmac delays. 

Customer Service Plans ...................................... • Requires foreign air carriers that operate scheduled passenger service to and from the U.S. 

with at least one aircraft with 30 or more passenger seats to adopt, follow and audit customer service plans. 

• Establishes standards for the subjects U.S. and foreign air carriers must cover in customer 

service plans. Examples include: 

• delivering baggage on time, including reimbursing passengers for any fee charged to 

transport a bag if the bag is lost; 

• where ticket refunds are due, providing prompt refunds including refund of optional fees 

charged to a passenger for services that the passenger was unable to use due to an 

oversale situation or flight cancellation; and 

• 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 date. 

Posting of Customer Service Plans and Tarmac 

Delay Contingency Plans.

• Requires foreign carriers to post their required contingency plans, customer service plans, 

and contracts of carriage on their websites as is already required of U.S. carriers. 

Response to Consumer Problems ...................... • Expands the pool of carriers that must respond to consumer problems to include foreign air 

carriers operating scheduled passenger service to and from the U.S. with at least one aircraft with 30 or more passenger seats (i.e., monitor the effects of irregular flight operations 

on consumers; inform consumers how to file a complaint with the carrier, and provide 

substantives responses to consumer complaints within 60 days). 

Oversales ............................................................ • Increases the minimum denied boarding compensation limits to $650/$1,300 or 200%/400% 

of the one-way fare, whichever is smaller. 

• Implements an automatic inflation adjuster for minimum DBC limits every 2 years. 

• Clarifies that DBC must be offered to ‘‘zero fare ticket’’ holders (e.g., holders of frequent 

flyer award tickets) who are involuntarily bumped. 

• Requires that a carrier verbally offer cash/check DBC if the carrier verbally offers a travel 

voucher as DBC to passengers who are involuntarily bumped. 

• Requires that a carrier inform passengers solicited to volunteer for denied boarding about 

all material restrictions on the use of transportation vouchers offered in lieu of cash. 

Full Fare Advertising ........................................... • Enforces the full fare advertising rule as written (i.e., ads which state a price must state the 

full price to be paid). Carriers currently may exclude government taxes/fees imposed on a 

per-passenger basis. 

• Clarifies the rule’s applicability to ticket agents. 

• Prohibits carriers and ticket agents from advertising fares that are not the full fare and impose stringent notice requirements in connection with the advertisement of ‘‘each-way’’ fares 

available for purchase only on a roundtrip basis. 

• Prohibits opt-out provisions in ads for air transportation. 

Baggage and Other Fees and Related CodeShare Issues.• Requires U.S. and foreign air carriers to disclose changes in bag fees/allowances on their 

homepage for three months, to include information regarding the free baggage allowance. 

• Requires carriers (U.S. and foreign) and ticket agents to include on e-ticket confirmations information about the free baggage allowance and applicable fees for the first and second 

checked bag and carry-on but allows ticket agents, unlike carriers, to do so through a 

hyperlink. 

• Requires carriers (U.S. and foreign) and ticket agents to inform passengers on the first 

screen on which the ticket agent or carrier offers a fare quotation for a specific itinerary selected by a consumer that additional airline fees for baggage may apply and where consumers can go to see these baggage fees. 

• Requires U.S. and foreign air carriers to disclose all fees for optional services to consumers 

through a prominent link on their homepage. 

• Requires that the same baggage allowances and fees apply throughout a passenger’s journey. 

• Requires the marketing carrier to disclose on its website any difference between its optional 

services and fees and those of the carrier operating the flight. Disclosure may be made 

through a hyperlink to the operating carriers’ websites that detail the operating carriers’ fees 

for optional services, or to a page on its website that lists the differences in policies among 

code-share partners. 


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23112 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

Subject Final rule 

Post-Purchase Price Increases ........................... • Bans the practice of post-purchase price increases in air transportation or air tours unless 

the increase is due to an increase in government-imposed taxes or fees and only if the passenger was provided full disclosure of the potential for the increase and affirmatively agreed 

to the potential for such an increase prior to purchase. 

Flight Status Changes ......................................... • Requires U.S. and foreign air carriers operating scheduled passenger service with any aircraft with 30 or more seats to promptly notify consumers through whatever means is available to the carrier for passengers who subscribe to the carrier’s flight status notification 

services, in the boarding gate area, on a carrier’s telephone reservation system and on its 

website of delays of 30 minutes or more, cancellations and diversions within 30 minutes of 

the carrier becoming aware of a change in the status of a flight. 

Choice-of-Forum Provisions ................................ • Prohibits U.S. and foreign air carriers from limiting a passenger’s forum to pursue litigation 

to a particular inconvenient venue. 

Summary of Regulatory Analysis 

The regulatory analysis shows that the 

monetized benefits of the proposed 

requirements exceed their monetized 

costs, even without considering nonquantifiable benefits. This analysis, 

outlined in the table below, has 

determined that the present value of 

monetized net benefits for a 10 year 

period at a 7% discount rate is $14.3 

million. At a 3% discount rate, the 

present value of monetized net benefits 

is estimated to be $20.3 million. 

Present value 

(millions) 

Monetized Benefits .................................................................. 10 Years, 7% discounting ....................................................... $45.0 

10 Years, 3% discounting ....................................................... 53.5 

Monetized Costs ...................................................................... 10 Years, 7% discounting ....................................................... 30.7 

10 Years, 3% discounting ....................................................... 33.2 

Monetized Net Benefits ........................................................... 10 Years, 7% discounting ....................................................... 14.3 

10 Years, 3% discounting ....................................................... 20.3 

A comparison of the monetized benefits 

and costs for each of the final 

requirements is provided in the 

Regulatory Analysis and Notices 

section, set forth below, along with 

information on additional benefits and 

costs for which quantitative estimates 

could not be developed. 

Comments and Responses 

1. Tarmac Delay Contingency Plans 

A. Entities Covered 

The NPRM: The NPRM proposed to 

require any foreign air carrier that 

operates scheduled passenger or public 

charter service to and from the U.S. 

using any aircraft originally designed to 

have a passenger capacity of 30 or more 

passenger seats to adopt and comply 

with a tarmac delay contingency plan 

for their flights to and from the U.S. that 

includes minimum assurances identical 

to those currently required of U.S. 

carriers. As proposed, it would apply to 

all of a foreign carrier’s flights to and 

from a covered U.S. airport, including 

those involving aircraft with fewer than 

30 seats if a carrier operates any aircraft 

originally designed to have a passenger 

capacity of 30 or more seats to or from 

the U.S. 

We sought comment on whether the 

requirement to have a contingency plan 

should be narrowed or expanded, and if 

so, the cost burdens and benefits of 

doing so. For example, we proposed to 

include foreign carriers that operate 

aircraft originally designed to have a 

passenger capacity of 30 or more seats 

to and from the U.S., but we invited 

interested persons to comment on 

whether, in the event that we adopt a 

rule requiring foreign carriers to have 

contingency plans, we should limit its 

applicability to foreign air carriers that 

operate large aircraft to and from the 

U.S.—i.e., aircraft originally designed to 

have a maximum passenger capacity of 

more than 60 seats. We also asked 

whether the requirement to adopt 

tarmac delay contingency plans should 

apply not only to U.S. and foreign air 

carriers but also to U.S. airports. We 

requested that proponents and 

opponents of these or other alternative 

proposals provide arguments in support 

of their positions. 

Comments: A number of U.S. and 

foreign airlines and airline associations 

support requiring airports to develop 

their own contingency plans to address 

lengthy tarmac delays but generally 

agree that these plans should be limited 

to coordinating with airlines and 

government agencies and assisting 

airlines during tarmac delays. Some of 

these commenters note that airports are 

in the best position to address the 

logistics associated with lengthy delays, 

particularly with respect to diverted 

flights. For example, they argue that an 

airport authority is most likely to know 

the areas in the airport where 

international passengers can be allowed 

to deplane without resulting in U.S. 

Customs and Border Protection (CBP) or 

Transportation Security Administration 

(TSA) concerns. Commenters also note 

that requiring only carriers to have a 

contingency plan unreasonably places 

the burden of the operations of the 

entire air transport industry on carriers. 

Consumer groups are also in favor of 

requiring airports to adopt contingency 

plans. Of the airport and airport 

industry commenters, Dallas/Fort Worth 

Airport generally supports requiring 

U.S. airports to adopt a tarmac delay 

contingency plan but notes that U.S. 

airports do not have direct contact with 

airline passengers when they are on the 

aircraft and have no control over 

deplaning. Airports Council 

International (ACI) supports the airlines’ 

plans being coordinated with airports 

but does not support requiring airports 

to adopt separate plans. ACI believes 

that separate airport and airline 

contingency plans could result in 

confusion and states that it is committed 

to supporting airlines in the 

development of their plans. 

With regard to the adoption of a 

tarmac delay contingency plan by 


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foreign carriers, the views of foreign 

carrier associations and carriers differed 

significantly from those of other 

commenters. In general, the foreign 

carriers and foreign carrier association 

commenters object to the proposal that 

they adopt tarmac delay contingency 

plans as unnecessary and note that the 

same issues with tarmac delays do not 

arise as often with international flights 

as they do with domestic flights. The 

International Air Carrier Association 

(IACA) states that EU Regulation 261/ 

2004 is an EU passenger rights provision 

to which EU carriers are subject on all 

their flights, including flights that 

depart from U.S. airports, and that the 

Department’s proposals could conflict 

with EU laws. The International Air 

Transport Association (IATA) generally 

supports the principle of contingency 

plans, but believes such plans should be 

developed individually by each carrier 

according to its specific operations and 

conditions as opposed to having terms 

set by the government. The Arab Air 

Carrier Association (AACA) and the 

Latin American and Caribbean Air 

Transport Association (ALTA) concur 

with IATA, as do many foreign carriers. 

The Air Transport Users Council (AUC) 

and a number of European carriers point 

out, similar to IACA, that many of the 

provisions in the NPRM are covered 

under EU legislation. The National 

Airlines Council of Canada (NACC) 

supports the need for contingency plans 

in the event of irregular operations but 

states that they should be developed in 

the interest of enhanced customer 

service rather than being mandated by 

government regulation. TUI Travel notes 

that EU carriers must comply with EU 

regulations and asks that carriers 

originating outside the U.S. be excluded 

from the tarmac delay contingency plan 

rule. Monarch Airlines commented that 

an exception to any requirement should 

exist for flights that do not pick up 

passengers in the United States. 

U.S. carrier associations such as the 

Air Transport Association of America 

(ATA) and National Air Carrier 

Association (NACA) indicated their 

support for requiring foreign air carriers 

to meet the same standards as U.S. 

carriers for adopting tarmac delay 

contingency plans. Of the U.S. carriers 

that commented, Spirit Airlines 

supports extending the rule to foreign 

carriers, while Virgin America states 

that DOT should not adopt any of the 

proposals related to tarmac delays. 

Most of the comments received from 

individuals on this issue noted that a 

requirement to develop a tarmac delay 

contingency plan should be extended to 

foreign carriers because it is important 

to protect consumers on all flights to 

and from the United States, not merely 

on flights operated by U.S. airlines. 

Among the consumer group 

commenters, the Consumer Travel 

Alliance (CTA) supports the expansion 

of the tarmac delay rules to foreign 

carriers, as does the Association for 

Airline Passenger Rights (AAPR), 

National Business Travel Association 

(NBTA), Flyersrights.org, Consumers 

Union and Aviation Consumer Action 

Project (ACAP). The American Society 

of Travel Agents (ASTA) also supports 

extending the tarmac delay contingency 

plan provisions to foreign carriers and 

states that the rule should cover all 

aircraft types. 

Among the airports and airport 

industry commenters, ACI supports 

requiring foreign air carriers to adopt 

plans that include minimum assurances 

as required of U.S. airlines and strongly 

supports extending the rule to foreign 

air carriers operating aircraft with 30 or 

more seats. The American Association 

of Airport Executives (AAAE) agrees 

that foreign carriers should comply with 

specified contingency plans in order to 

provide equal and fair competition. The 

New York State Consumer Protection 

Board supports requiring foreign 

carriers to adopt tarmac delay 

contingency plans that provide for 

passengers to receive the same basic 

necessities that U.S. carriers are 

required to provide. 

DOT Response: After fully 

considering the comments received, the 

Department has decided not to 

promulgate a requirement that airports 

adopt contingency plans addressing 

lengthy tarmac delays. The Department 

is aware that many airports are 

voluntarily working with U.S. carriers to 

develop policies and procedures to 

address lengthy tarmac delays and to 

cooperate with U.S. carriers in the 

coordination of the carriers’ contingency 

plans as required of U.S. airlines by the 

first tarmac delay rule. As such, it is not 

necessary to regulate in this area at this 

time. 

However, the Department thinks it is 

reasonable and necessary to require 

foreign carriers that operate scheduled 

passenger or public charter service to 

and from the U.S. to adopt and adhere 

to tarmac delay contingency plans. 

International air travel is a large and 

increasingly significant market sector, 

and customers who use non-U.S. 

airlines deserve no less protection from 

lengthy tarmac delays at U.S. airports 

than do customers of U.S. airlines. We 

also wish to be consistent with the 

application of our rules. The lengthy 

tarmac delays experienced by a number 

of foreign carriers at John F. Kennedy 

International Airport (JFK) during and 

after the December 26, 2010, blizzard 

highlights the need to extend the rule to 

those carriers. 

In order to address commenters’ 

concerns that certain European laws (or 

laws of other countries) may conflict 

with this regulation, we want to clarify 

that the requirement to adopt and follow 

a plan applies only to tarmac delay 

events that occur at a covered U.S. 

airport. The rule should not conflict 

with EU Regulation 261/2004, the EU 

rule on compensation and assistance to 

be provided to passengers in the event 

of denied boarding, flight cancellation 

or long flight delays. The types of 

assistance required under the EU rule 

are for the most part services that would 

not be available on board an aircraft 

during a tarmac delay, e.g. phone calls, 

a hotel room, transportation between the 

airport and the hotel room, and 

rerouting on another flight. The context 

of the food and beverage requirement in 

regulation 261/2004 suggests that these 

services are to be provided in the airport 

terminal during a normal (i.e., nontarmac) flight delay before passengers 

have been boarded. As such, although 

EU 261/2004 applies to EU carriers 

departing from or traveling to an EU 

member state and to non-EU carriers 

departing from an EU member state 

airport, we see no conflict between that 

rule and this one. On a tarmac delay at 

a U.S. airport, EU and non-EU carriers 

can comply with all provisions of both 

rules. 

With regard to charter flights, we 

agree with Monarch Airlines and TUI 

Travel that an exception should exist for 

foreign-originating charters that operate 

to and from the United States but do not 

pick up any U.S. originating passengers. 

Consequently, carriers will not be 

required to adopt a tarmac delay 

contingency plan as long as their 

operations fall within these parameters. 

This is consistent with 14 CFR 382.7(d) 

of the DOT rule on air travel by 

passengers with disabilities and with 

the minimal regulation of these flights 

by the Department’s public charter rule 

in 14 CFR part 380. 

B. Time Frame for Deplaning Passengers 

on International Flights 

The NPRM: Under the proposed rule, 

a covered foreign air carrier would be 

required to include in its tarmac delay 

contingency plan an assurance that it 

will not permit an aircraft to remain on 

the tarmac at a U.S. airport for more 

than a set number of hours as 

determined by the carrier in its plan 

before allowing passengers the 

opportunity to deplane. The proposal 

included appropriate safety, security, 

and ATC exceptions. This is already 


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required of U.S. carriers for their 

international flights under the 

Department’s existing rule. As for 

domestic flights, U.S. carriers are 

required to provide an assurance that 

they will not permit an aircraft to 

remain on the tarmac for more than 

three hours without deplaning 

passengers subject to the same safety, 

security and ATC exceptions. In the 

NPRM, we noted that there are ongoing 

questions as to whether mandating a 

specific time frame for deplaning 

passengers on international flights as 

currently exists for domestic flights is in 

the best interest of the public. We asked 

for comments on whether any final rule 

that we may adopt should set a uniform 

standard for the time interval after 

which U.S. or foreign air carriers would 

be required to allow passengers on 

international flights to deplane rather 

than allowing the carriers to set their 

own tarmac delay time limit for such 

flights. We also asked commenters who 

support the adoption of a uniform 

standard to propose specific time limits 

and state why they believe these 

intervals to be appropriate. 

Comments: Of the U.S. carriers and 

carrier associations that commented, 

ATA objects to a hard time limit on 

tarmac delays for international flights. 

NACA supports requiring foreign air 

carriers to meet the same standards as 

U.S. carriers for adopting tarmac delay 

contingency plans. 

In general, the non-U.S. carriers and 

carrier associations object to the 

proposal as unnecessary, asserting that 

the same problems with tarmac delays 

do not exist with international flights as 

with domestic flights. For example, 

Condor Flugdienst Airlines (Condor) 

states that it sees no reason to enforce 

a mandatory deplaning requirement for 

a problem that occurs only very rarely. 

Many of these carriers also comment 

that a ‘‘one size fits all’’ approach is not 

practical and note that there are large 

differences between domestic and 

international operations, and between 

long-haul and short-haul operations. 

IATA and IACA object to a uniform time 

limit entitling passengers to deplane. 

IACA states that the proposal may 

conflict with EU passenger rights 

requirements since EU carriers must 

follow EU requirements on all their 

flights, including flights that depart 

from U.S. airports. The Association of 

European Airlines (AEA) and foreign 

airlines’ comments are similar to 

IATA’s. Many object to the proposal to 

require carriers to set a time limit to 

deplane due to various operational 

concerns. Specifically, a number of 

foreign industry groups and airlines 

noted the following: 

• International flights operate less 

frequently and a cancellation could 

result in missed connections with 

serious consequences for passengers; 

• Returning to the gate and/or a flight 

cancellation may result in the crew 

‘‘timing-out’’ and many foreign carriers 

do not have U.S.-based crews, which 

could result in a delay of 24 hours or 

more; 

• International flights have limited 

windows of opportunity to depart due 

to gate constraints at foreign airports; 

• Larger aircraft used for international 

flights take much longer to enplane and 

deplane (up to 40 minutes), which can 

cause even further delay; 

• International flights are often better 

equipped to meet passenger needs onboard the aircraft; and 

• Long-haul and ultra-long haul 

operations can make up time while in 

the air. 

Some carriers, such as Air New 

Zealand, support a 3 hour time limit, 

but note that consideration should be 

given to crew restrictions and gate 

allocations, or situations where 

resolution of the delay is less than an 

hour away and deplaning would further 

delay the flight. Qantas also supports 

the 3 hour limit in principle, but thinks 

such an assurance is limited by the 

carrier’s ability to control the 

circumstances. Of the travel agents and 

other industry group commenters that 

commented on this issue, ASTA agrees 

that a specific standard for international 

flights is important but supports a four 

hour rather than three hour rule. 

Among the consumer commenters, 

the Association for Airline Passenger 

Rights (AAPR) and Flyersrights.org 

strongly advocate for a maximum 

permissible tarmac delay of three hours 

for international flights. Flyersrights.org 

urges that tarmac delays of over three 

hours not be permitted for international 

flights and notes that the ‘‘health and 

inconvenience problems’’ are the same 

regardless of whether the flight is 

domestic or international. Consumer 

Action, along with Consumer 

Federation of America, the National 

Consumers League, Public Citizen, and 

U.S. PIRG support the extensive 

comments filed by Flyersrights.org. 

Some individual commenters also 

expressed concern about lengthy tarmac 

delays on international flights and 

advocated for a uniform time limit for 

deplaning passengers. Of the 

commenters on ‘‘Regulation Room,’’ 

almost half noted, generally, that the 

Department should apply a uniform 

federal time limit on tarmac delays to all 

flights and airlines, regardless of aircraft 

size, airport size, and whether the flight 

is domestic or international. 

DOT Response: As noted above, the 

Department is expanding its 

requirement to adopt a tarmac delay 

contingency plan to foreign carriers, as 

we believe that it is important to ensure 

that passengers on these carriers are also 

afforded protection from unreasonably 

lengthy tarmac delays. With regard to a 

required time period for deplaning 

passengers on international flights 

operated by U.S. or foreign carriers, we 

are requiring that these carriers provide 

an assurance that they will not permit 

an aircraft to remain on the tarmac at a 

U.S. airport for more than four hours 

without providing passengers an 

opportunity to deplane. As in our initial 

rulemaking to enhance airline passenger 

protections, this new requirement will 

allow exceptions for safety and security 

considerations and in instances where 

Air Traffic Control advises the pilot-incommand that returning to the gate or 

permitting passengers to disembark 

elsewhere would significantly disrupt 

airport operations. We decided to 

impose a uniform time limit for 

deplaning passengers on international 

flights rather than allowing carriers to 

establish their own tarmac delay time 

limits because we believe the 

consistency in standard will provide 

passengers with clearer expectations as 

to when they would be allowed off 

aircraft in the event of a tarmac delay. 

A uniform standard will also make it 

clearer to the other stakeholders such as 

airports of the need to assist airlines in 

deplaning passengers on international 

flights before the four hour mark. 

Further, the Department believes that a 

uniform time limit will reduce or 

prevent lengthy tarmac delay incidents 

such as those that occurred at JFK 

during and after the December 26, 2010, 

blizzard and the resulting impact on 

passengers traveling on those flights. 

We decided to impose a four hour 

time limit for lengthy tarmac delays on 

international flights as opposed to the 

three hour limit that applies to lengthy 

tarmac delays on domestic flights for a 

number of reasons. First, because 

international flights are of much longer 

duration on average than domestic 

flights, it is possible that delays may not 

have as negative an impact on 

international passengers as they were 

already planning on spending a 

significant amount of time in the aircraft 

and some of the time spent on the 

tarmac can be made up while in the air. 

We also reviewed the contingency plans 

for the U.S. carriers as they are already 

required to establish their own tarmac 

delay time limits for international 

flights, and found that most of these 

carriers have chosen to set a four hour 


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time limit for deplaning passengers from 

their international flights that 

experience a tarmac delay. In addition, 

we are persuaded by comments of the 

different environment in which 

international flights operate and the 

need to provide greater leeway for 

international flights than we allow for 

domestic flights. For these reasons, we 

have decided to impose a four hour time 

limit for deplaning passengers on 

international flights and not allow U.S. 

and foreign carriers to establish their 

own longer tarmac delay time limits for 

international flights. 

As clarified in the first rule to 

enhance airline passenger protections, 

an international flight for purposes of 

this requirement is a nonstop flight 

segment that departs from the United 

States and lands in another country, or 

vice-versa, exclusive of non-traffic 

technical stops. For example, if a U.S. 

carrier operates a direct flight ChicagoNew York-Frankfurt, with some 

Chicago-originating passengers destined 

for New York and others destined for 

Frankfurt, and the aircraft experiences a 

tarmac delay in Chicago, then we would 

consider the tarmac delay to be on a 

domestic flight. This is because 

Chicago-New York is a domestic flight 

segment even though the final 

destination of the flight is Frankfurt, 

Germany. If, on the other hand, the 

aircraft only stops for refueling or a 

crew change in New York and the flight 

carries no Chicago-New York traffic and 

no Frankfurt-bound passengers enplane 

in New York, then we would consider 

the tarmac delay in Chicago to be a 

tarmac delay on an international flight. 

C. Provision for Adequate Food and 

Water, Operable Lavatories, and 

Medical Attention if Needed 

The NPRM: As proposed in the 

NPRM, the tarmac delay contingency 

plans adopted by foreign air carriers for 

international flights that depart from or 

arrive at a U.S. airport would need to 

include: (1) An assurance that the 

carrier will provide adequate food and 

potable water no later than two hours 

after the aircraft leaves the gate in the 

case of departure or touches down in 

the case of an arrival if the aircraft 

remains on the tarmac, unless the pilotin-command determines that safety or 

security considerations preclude such 

service; (2) an assurance of operable 

lavatory facilities while the aircraft 

remains on the tarmac; and (3) an 

assurance of adequate medical attention 

if needed while the aircraft remains on 

the tarmac. These requirements already 

apply to U.S. carriers under the current 

rule. 

Comments: With regard to the 

provision for adequate food and water, 

ATA notes that generally aircraft used 

for international flights are able to 

comfortably accommodate passengers 

onboard for longer periods of time, with 

food service and entertainment options 

often available given the type of 

equipment used and the expected length 

of these flights. Among the foreign air 

carriers that commented, Condor 

Airlines notes that when a longer delay 

becomes inevitable, Condor has snacks 

and drinks available for passengers. 

Similarly, Qatar Airways notes that the 

logistics of the ultra long-haul flights 

operated to and from the U.S. already 

require that Qatar Airways provide extra 

catering and potable/bottled water to 

allow for extra time beyond that 

scheduled during which its customers 

and crew may have to spend in the 

aircraft. Qatar explains that it already 

ensures that its customers are regularly 

offered water and soft drinks by cabin 

crew. Qantas indicates that it too 

provides passengers access to potable 

water and refreshments during tarmac 

delays but does not consider it 

reasonable to impose a mandatory 

requirement to provide food to all 

passengers after two hours in all cases, 

as the commencement of a meal service 

may lead to further delays and missed 

opportunities for departure. The carrier 

also thinks that the term ‘‘adequate food’’ 

is too broad and open to different 

interpretations. South African Airways 

wants the Department to understand 

that foreign airlines have significantly 

less flexibility than U.S. airlines to store 

extra catering items onboard. In the 

absence of evidence that lengthy delays 

are a problem for passengers traveling 

on foreign airlines, the airline believes 

the Department is not justified in 

imposing the costs associated with these 

requirements. 

Regarding assurance of operable 

lavatory facilities, a number of carriers 

noted that this is a reasonable 

requirement and that they have working 

lavatories and toilet serviceability is 

maintained at the highest levels. 

However, one carrier expressed concern 

about unforeseen maintenance issues. 

With regard to providing medical 

attention, Condor states that its flight 

attendants are capable of providing 

basic first aid when needed and have 

access to remote medical advice for 

more serious medical emergencies. 

Similarly, Qatar Airways notes that its 

cabin crews are highly trained in first 

aid. Qantas Airlines believes that it is 

reasonable to require carriers to seek 

medical assistance for any onboard 

emergency and states that it engages the 

services of an external medical provider 

to provide advice and assistance as 

required, but thinks the extent of this 

requirement needs clarification. South 

African Airways expresses similar 

concerns as Qantas and notes that the 

NPRM is not clear regarding what 

comprises medical attention within the 

meaning of the proposal. South African 

Airways states that while its in-flight 

crewmembers have basic first-aid 

capabilities, the carrier relies on 

consultations with remote medical-care 

contractors and other passengers with 

medical training to provide goodSamaritan assistance. South African 

explains that it sees no practical way to 

ensure medical attention during tarmac 

delays that exceeds this basic assistance. 

The National Airlines Council of 

Canada (NACC) states that many airlines 

are not in a position to provide adequate 

medical attention as airlines are not 

medical organizations and in-flight staff 

in not medical staff. As such, it believes 

that such assistance is up to local 

authorities to provide. 

Among consumer groups and 

individual commenters, the AAPR urges 

the Department to require the tarmac 

delay contingency plans of U.S. and 

foreign air carriers contain minimum 

guidelines for accommodating 

passengers with disabilities. The New 

York State Consumer Protection Board 

states that foreign carriers should be 

required to adopt a plan that provides 

for passengers to receive the same basic 

necessities that U.S. carriers are 

required to provide, i.e., adequate food 

and water, operable lavatories, and 

medical attention if needed. By and 

large, individual commenters also 

support the Department imposing 

identical requirements for foreign and 

U.S. carriers. Of those that commented 

on Regulation Room, they generally 

support the Department requiring 

airlines to provide working bathrooms, 

water, beverages, snacks and, in some 

cases, meals on delayed flights. A few 

commenters also mention the need for 

adequate temperature control and the 

ability to walk around an aircraft during 

a delay in order to stretch and use the 

restroom. 

DOT Response: The Department 

continues to believe that passengers 

stuck on an aircraft during lengthy 

tarmac delays deserve to be provided 

some type of food, potable water, 

operable lavatories, and if necessary, 

medical care. It appears from the 

comments that most carriers already 

have procedures to provide food and 

water during long tarmac delays, and 

ensure that their lavatory facilities are 

operable while the aircraft remains on 

the tarmac. The concern expressed by 

South African Airways about storage 


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23116 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

space for extra catering items seems to 

be based on a misconception that 

extensive supplies are needed. There 

also appears to be confusion as to what 

the Department means by the term 

‘‘adequate food.’’ The Department would 

consider snack foods such as granola 

bars that carriers typically provide on 

flights to suffice as ‘‘adequate’’ food. 

Carriers are, of course, free to provide 

more complete meals to passengers if 

they so wish. We note that the 

requirement to provide food and water 

within two hours would not apply if the 

pilot-in-command determines that 

safety or security precludes such 

service, so the commencement of a meal 

service should not lead to further delays 

or missed opportunities for departure as 

feared by at least one commenter. As for 

the requirement to provide medical care 

if necessary, the Department’s 

expectation is that carriers would have 

the capabilities to provide basic first aid 

assistance on the aircraft and would 

seek further medical assistance as 

necessary for any onboard emergency, 

including disembarking the passenger 

for treatment if needed with the 

assistance of airport emergency 

personnel. 

D. Coordination With Covered Airports 

The NPRM: In the initial rulemaking 

to enhance airline passenger 

protections, we required U.S. carriers to 

have contingency plans for tarmac 

delays to large-hub and medium-hub 

airports, as well as diversion airports 

that the carrier serves or utilizes. In the 

NPRM for the current proceeding, we 

proposed to extend this requirement to 

small hub and non-hub airports and to 

require all covered carriers (U.S. and 

foreign) to coordinate their plans with 

each covered U.S. airport that they serve 

or utilize for diversions. In making this 

proposal, the Department noted its 

belief that the same issues and 

discomfort to passengers during an 

extended tarmac delay are likely to 

occur regardless of airport size or 

layout. We also noted our strong belief 

that it is essential that airlines involve 

airports in developing their plans in 

order to enable them to effectively meet 

the needs of passengers. We invited 

comment on whether it was workable to 

require covered carriers coordinate with 

small hub and non-hub airports to 

which they regularly operate scheduled 

passenger or public charter service. We 

also asked if the rule should be 

expanded to include other commercial 

U.S. airports (i.e., those with less than 

10,000 annual enplanements). Finally, 

we specifically solicited comments from 

airlines, airports and other industry 

entities on whether there are any special 

operational concerns affecting such 

airports. 

Comments: Of the U.S. carriers and 

carrier association commenters, ATA 

supports expanding the number of 

airports where carriers must coordinate 

plans to include small hub and non-hub 

airports. The Regional Airline 

Association (RAA) opposes extending 

the rule to small-hub and non-hub 

airports because it believes there is no 

evidence that doing so is necessary or 

beneficial and believes that the cost to 

expand tarmac delay contingency plans 

to smaller airports outweighs the 

benefits, as requiring regional and other 

carriers serving small airports to 

coordinate plans with all such airports 

would require significant resources. 

In general, non-U.S. carrier and 

carrier association commenters object to 

the proposal as unnecessary and note 

that they have limited presence or 

service at these smaller airports. Air 

France and KLM specifically oppose 

this provision. On the other hand, 

Alitalia supports the idea of 

coordination, but believes the proposal 

is extremely burdensome. Singapore 

Airlines supports coordinating 

contingency plans with airports to 

handle diverted flights, but states that 

the plans should focus on customer care 

such as swiftly disembarking 

passengers, returning baggage, 

accommodating passengers if necessary 

in hotels or on alternate flights, and 

ensuring that passengers continue their 

journey. Monarch Air disagrees and 

states that coordination with airports is 

not necessary, as it would let the airport 

determine what is best for the customer. 

Of the travel agent interests that 

commented, ASTA supports expanding 

contingency plan coordination 

obligations to include small hub and 

non-hub airports. TUI Travel states that 

coordinating contingency plans is not 

necessary, as the airport can determine 

what is in the best interest of the airline 

customer and notes restrictions on gate 

availability that may be determined on 

the day of arrival, so pre-coordination 

will reduce operational flexibility. 

Of the airport and airport industry 

commenters, Dallas/Fort Worth Airport 

supports requiring carriers to coordinate 

their contingency plans with all airports 

that they serve and notes that important 

airport factors such as terminal capacity, 

equipment, and government services are 

taken into account during such 

coordination. ACI also supports the 

need for airlines to coordinate with 

airports of all sizes and states that it is 

committed to supporting airline 

development of contingency plans with 

accurate and relevant information about 

the airports the carriers serve. 

Of the consumer and consumer group 

commenters, CTA supports the 

expansion of the tarmac-delay rules to 

smaller airports. AAPR and 

Flyersrights.org fully support increasing 

the number of covered airports to 

include small hub and non-hub airports. 

NBTA also supports these provisions. 

The New York State Consumer 

Protection Board supports expanding 

the rule to all airports, as do many 

Regulation Room commenters, some of 

whom state that airlines and airports 

should be required to work together to 

develop and implement tarmac delay 

contingency plans. 

DOT Response: The Department is 

adopting the requirement that covered 

carriers, both U.S. and foreign, include 

small hub and non-hub airports in their 

tarmac delay contingency plans and 

ensure that the plan has been 

coordinated with airport authorities at 

those airports. We continue to maintain 

that the same issues and discomfort to 

passengers during an extended tarmac 

delay are likely to occur regardless of 

airport size or layout. Similar to the 

expansion of the scope of the 

requirement to adopt contingency plans 

to include foreign carriers, this 

requirement will protect a greater 

number of passengers at more airports. 

We are not convinced by commenters’ 

concerns that requiring carriers to 

coordinate their plans with small hub 

and non-hub airports will have a 

significant financial impact on carriers. 

U.S. carriers are already required to 

coordinate plans with large-hub and 

medium-hub airports and should be 

able to tailor existing plans to apply to 

these smaller airports. We recognize that 

the requirement to coordinate 

contingency plans with airports is a new 

requirement for foreign carriers, but 

expect that it will not be overly 

burdensome for foreign carriers as the 

large-hub and medium-hub airports are 

familiar with the coordination process 

after having worked with the U.S. 

carriers on tarmac delay contingency 

plans this past year. The need for such 

coordination was recently highlighted 

by the events at JFK airport following 

the December 26, 2010 blizzard. Also, 

during the past two years significant 

amount of work has been done through 

a project funded by the Federal Aviation 

Administration (FAA) to produce a bestpractice guidance document for 

developing coordinated contingency 

plans for tarmac delays at small hub and 

non-hub airports. 

The benefit of airlines coordinating 

with airports on contingency plans 

becomes particularly clear when there 

are flight diversions. In situations where 

flights must be diverted from their 


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1 In January 2008, the Department established a 

Tarmac Delay Task Force to coordinate and develop 

contingency plans to deal with lengthy delays. The 

Task Force comprising of individuals who 

represented airlines, airports and consumer groups 

issued a report that set forth guidelines for airlines, 

airports, and other stakeholders to use when 

dealing with long ground delays. 

intended destination airports, it is 

imperative that airlines and the airports 

that regularly serve as their diversion 

airports have already discussed things 

such as locations within the airport 

where passengers are allowed to wait 

when TSA or CBP personnel are not 

present and the availability of 

equipment to deplane/bus passengers to 

the terminal to minimize the hardship 

to travelers. It is essential that airlines 

involve airports in developing their 

plans to enable them to effectively meet 

the needs of passengers. The rule on 

coordination with airports is also being 

clarified to ensure that at airports, like 

JFK, where operations such as snow 

removal and gate use are managed by 

entities other than the airport authority 

(e.g., a carrier, a consortium of carriers, 

or a contractor), carriers covered by this 

rule must also coordinate with these 

terminal operators. 

E. Coordination With CBP and TSA 

The NPRM: As recommended by the 

Tarmac Delay Task Force,1 we proposed 

to require carriers to include TSA in 

their coordination efforts for any large, 

medium, small, and non-hub U.S. 

airports, including U.S. diversion 

airports which they regularly use. We 

also proposed to require carriers to 

coordinate with CBP for any U.S. airport 

that the carrier regularly uses for its 

international flights, including 

diversion airports. We proposed these 

measures as it had come to the 

Department’s attention on more than 

one occasion that passengers on 

international flights were held on 

diverted aircraft for extended periods of 

time because there were reportedly no 

means to process those passengers and 

allow them access to terminal facilities. 

At that time, the U.S. Department of 

Homeland Security (TSA and CBP are 

part of DHS) had advised this 

Department that, subject to coordination 

with CBP regional directors, passengers 

on diverted international flights may be 

permitted into closed/sterile terminal 

areas without CBP screening. In the 

NPRM, we invited interested persons to 

comment on this proposal and asked 

what costs and benefits would result 

from imposing this requirement. 

Comments: Of the U.S. carriers and 

carrier associations that commented, 

ATA states that carriers already 

coordinate with TSA and CBP and will 

continue to do so but stresses that 

interagency coordination between CBP 

and TSA as well as coordination 

between the airports and CBP/TSA is 

needed in order to get diverted 

passengers who so desire off airplanes. 

USA3000 suggests that airports may not 

be properly staffed by CBP during 

irregular operations and urges DOT to 

review this issue with CBP and local 

airports. 

The non-U.S. carrier and carrier 

association commenters object in 

general to the proposal as unnecessary. 

IACA notes that tarmac delays of more 

than three hours are very rare and 

believes the NPRM imposes a 

disproportionate burden on airlines to 

coordinate plans not only with airports, 

but with federal agencies. IATA 

supports the need for the United States 

government to be more responsive to the 

needs of airline passenger who arrive at 

airports where TSA and CBP personnel 

are not normally stationed or are not 

present during off hours, but think it is 

the responsibility of those agencies to 

work together to put systems in place. 

The comments of the Association of 

European Airlines (AEA) and many 

foreign airlines’ are similar to or support 

IATA, while NACA adds that DOT 

should work with CBP and other 

government agencies on a memorandum 

of understanding to address issues 

regarding extended tarmac delays. The 

National Airlines Council of Canada 

(NACC) adds that carriers have limited 

influence over TSA and CBP, so 

obligations should be on the U.S. 

government to ensure these agencies 

have their own contingency plans in 

place. The Arab Air Carrier Association 

(AACA) states that coordinating 

contingency plans with diversion 

airports as well as TSA and CBP will be 

very costly and suggests, along with 

other commenters, that TSA and CBP 

should design their own contingency 

plans for any airport that receives 

international flights. 

Some foreign carriers assert that this 

proposal is flawed because TSA and 

CBP can provide only limited assistance 

at some airports due to limited afterhours federal inspection capabilities or 

limited federal personnel available at 

the smaller airports. Carriers also ask 

how they can ensure that passengers 

will remain in one area of the airport or 

that a sterile area will be available for 

containing such passengers. British 

Airways supports the proposal that 

passengers on diverted international 

flights be permitted into closed terminal 

areas without CBP screening and notes, 

as do some other foreign carriers, that 

these carriers generally do not have a 

presence at diversion airports. As such, 

British Airways and other carriers assert 

that CBP and the airport operator should 

be responsible to ensure that passengers 

can disembark the aircraft. Cathay 

Pacific adds that the burden to 

coordinate plans should be on all the 

stakeholders, while Malaysia Airlines 

does not support coordinating delay 

contingency plans with CBP and TSA, 

but thinks those agencies should design 

their own plans. Cathay Pacific notes 

that not all airports can handle aircraft 

carrying 300+ passengers and states that 

airports not suitable for deplaning 

international passengers should fall 

outside the scope of the proposed rules. 

Of the travel agents and other 

industry group commenters, ASTA 

supports extending the rule to include 

coordination with CBP and TSA. NBTA 

expresses concern that costs associated 

with requiring coordination with TSA 

and CBP may outweigh the benefits and 

may be passed on to the business 

traveler. As such, NBTA thinks DOT 

should develop a clearer picture of costbenefits before implementing this 

provision. TUI believes that it is not 

necessary to coordinate plans with TSA 

or CBP, and is concerned that this 

would add another layer of planning. 

Of the consumer and consumer group 

commenters, CTA supports rules being 

promulgated by CBP and TSA that will 

allow passengers on inbound 

international flights forced to land at a 

diversion airport to be processed, as 

does the AAPR, Flyersrights.org and the 

Consumers Union. Dallas/Fort Worth 

Airport supports requiring carriers to 

coordinate plans with CBP and TSA and 

states that plans should be in place to 

deal with the process of handling 

international passengers and allowing 

them access to terminal facilities at 

small and medium size airports with no 

CBP services. ACI applauds DOT for 

proposing to expand coordination to 

TSA and CBP. 

DOT Response: After considering all 

the comments, the Department is 

adopting the requirement that carriers 

coordinate plans with CBP and TSA at 

large, medium, small, and non-hub 

airports that they regularly serve, 

including at diversion airports they plan 

to utilize. Because tarmac delays are a 

particular problem in situations where 

flights must be diverted from their 

intended destination airports, this rule 

requires carriers to coordinate their 

plans with airports that serve as 

diversion airports for such operations. 

As recommended by the Tarmac Delay 

Task Force, it is also important for 

carriers to include in their coordination 

efforts appropriate government 

authorities such as Customs and Border 

Protection and the Transportation 


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23118 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

Security Administration, when 

appropriate. 

In adopting this requirement, we note 

that more than one incident of concern 

to the Department has occurred at a 

diversion airport where passengers 

could not deplane the aircraft due at 

least in part to security concerns or 

issues with processing international 

passengers. It is important to ensure that 

there is a contingency plan in place in 

order to address the objective of 

deplaning passengers in those 

situations. The Department is actively 

working with TSA and CBP to develop 

policies and procedures in order to 

assist carriers with coordinating their 

plans and complying with this 

regulation. We would consider an 

airline to have complied with the 

requirement to coordinate its plan with 

CBP and TSA if the carrier submits its 

plan to CBP’s Regional Director and 

TSA’s Federal Security Director for that 

airport and considers any issues raised 

in response to those agencies. 

F. Passenger Notification 

The NPRM: In the NPRM we proposed 

to require that U.S. and foreign air 

carriers update passengers every 30 

minutes during a tarmac delay regarding 

the status of their flight and the reasons 

for the tarmac delay. We also proposed 

that carriers announce that passengers 

have the opportunity to deplane the 

aircraft when the flight is delayed and 

the doors are open. In proposing these 

requirements, the Department gave 

consideration to passengers’ frustration 

with lack of communication by carrier 

personnel about the reasons a flight is 

experiencing a long tarmac delay. We 

noted that it did not seem unreasonable 

or unduly burdensome to require 

carriers to address this issue and 

verbally inform passengers as to the 

flight’s operational status on a regular 

basis during a lengthy tarmac delay. We 

did not anticipate that a carrier’s flight 

crews will know every nuance of the 

reason for the delay, but we noted our 

expectation that they inform passengers 

of the reasons of which they are aware 

and make reasonable attempts to acquire 

information about the reasons for that 

delay. 

We also invited comment on whether 

carriers should be required to announce 

that passengers may deplane from an 

aircraft that is at the gate or other 

disembarkation area with a door open. 

The Department’s Office of Aviation 

Enforcement and Proceedings had 

previously explained that a tarmac 

delay begins when passengers no longer 

have an option to get off an aircraft, 

which usually occurs when the doors of 

the aircraft are closed, and has 

encouraged carriers to announce to 

passengers on flights that remain at the 

gate with the doors open for lengthy 

periods that the passengers are allowed 

off the aircraft if that is the case. 

However, we noted that such an 

announcement is not explicitly required 

in the existing rule. Consequently, we 

sought comment on the benefit to 

consumers of mandating such 

announcements and asked commenters, 

including carriers and carrier 

associations, to address any costs and/ 

or operational concerns related to 

implementing a rule requiring such 

announcements. 

Comments: Non-U.S. carrier and 

carrier association comments generally 

object to the proposal to update 

passengers every 30 minutes during a 

tarmac delay regarding the status of 

their flight and the reasons for the 

tarmac delay, characterizing it as 

unnecessary. IACA states that notifying 

passengers every 30 minutes as to 

reason for a tarmac delay is unnecessary 

overregulation. Some foreign carriers, 

such as Air France and KLM note that 

requiring announcements every 30 

minutes will have unintended 

consequences and state that keeping 

passengers informed is already 

important to carriers and a regulation is 

not needed. Other carriers, such as 

Qantas and JetStar, agree that notifying 

passengers every 30 minutes is 

reasonable, but state that too much 

detail may lead to false expectations on 

the part of the passengers. AACA 

expresses concern about the broad 

language regarding the format of 

communication and when a carrier 

should be aware of information to 

provide to the passenger, and the ability 

of airlines to prove they have relayed 

information to the passenger. NACC 

does not support updates every 30 

minutes as this could result in relaying 

incomplete or inaccurate information to 

the passengers. 

U.S. carriers and carrier association 

commenters generally agree that it 

would be beneficial for passengers to be 

updated frequently on flight status 

changes when there is a tarmac delay 

but expressed concern that carriers are 

not always updated by FAA on a timely 

basis. Of the travel agents and other 

industry group commenters, ASTA 

supports the provision for carriers to 

make tarmac delay announcements 

every 30 minutes. However, TUI Travel 

does not believe DOT should be overly 

prescriptive or detail the circumstances 

or time intervals upon which updates 

on delays should be given, but agrees 

that information needs to be given and 

updated at regular intervals. 

Consumers and consumer group 

commenters support a requirement to 

provide updates every 30 minutes. More 

specifically, AAPR and Flyersrights.org 

fully support requiring carriers to 

communicate with passengers during 

delays. Of the airport industry 

commenters, the AAAE agrees that 

essential communication with 

passengers is necessary. The New York 

State Consumer Protection Board adds 

that communication with passengers 

during a delay is important because 

failure to update the flight’s status adds 

to the frustration caused by the 

situation. As such, it strongly supports 

the proposal that air carriers update 

passengers every 30 minutes during a 

delay. 

We received various differing 

comments on whether carriers should 

be required to announce that passengers 

may deplane from an aircraft that is at 

the gate or other disembarkation area 

with the door open. Spirit Airlines 

opposes DOT requiring carriers to 

permit passenger to leave an aircraft that 

remains at the gate for a delay of less 

than three hours but notes that its 

practice is to permit deplaning after two 

hours. It states that deplaning could 

create operational problems and raise 

costs and notes that the window of time 

to enplane may be small, passengers 

may be hard to locate and re-boarding 

will be time consuming and delay 

departure. Spirit believes that the airline 

can exercise the best judgment regarding 

whether passenger should be allowed to 

deplane. 

IATA also does not support the 

proposal to announce that passengers 

may deplane from an aircraft with the 

door open and states that the option to 

deplane raises a number of issues (e.g. 

removing baggage if a passenger doesn’t 

travel, DHS personal data accountability 

issues, passenger manifest issues, length 

of time to deplane and enplane large 

aircraft, short windows for departure). 

Comments of AEA and foreign airlines’ 

comments are similar to IATA’s. Many 

foreign carriers object to the proposal to 

notify passengers that they can deplane 

due to various operational concerns 

similar to those posited by IATA and 

other foreign carrier associations. ALTA 

raises additional concerns with safety 

issues, and questions who will have 

control over passengers that temporarily 

deplane and, miss flights. Air France 

and KLM also state that a carrier should 

be given the option to make the 

announcement that passengers can 

deplane depending on the specific 

circumstances. Air Tahiti asks for 

clarification on whether there is a 

minimum duration an air carrier must 

wait for passenger to re-enplane the 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23119 

aircraft and whether deplaned 

passengers’ baggage must be deplaned. 

CTA states carriers should be required 

to communicate with passengers on a 

regular basis and agrees that carriers 

should inform passengers during delays 

while the aircraft is at a loading bridge 

with its doors open that they may 

deplane at any time, to stretch their legs, 

to be rebooked on another flight or to 

cancel their flight and get a refund. 

NBTA also supports this provision. 

DOT Response: After considering the 

comments received, the Department has 

decided to require that carriers notify 

passengers every 30 minutes about the 

status of a tarmac delay, including the 

reasons for the delay if known. In 

implementing this requirement, we note 

that we expect the carrier to make 

reasonable attempts to acquire 

information about the status of the delay 

and to provide this information to 

consumers. A carrier would not be held 

responsible for failing to provide a 

status that was not known to it so long 

as the carrier made reasonable efforts to 

find out the status. 

We have also decided to require U.S. 

and foreign air carriers to notify 

passengers that they can deplane from 

an aircraft that is at the gate or another 

disembarkation area with the door open, 

if that is the case. The purpose of this 

requirement is to address problems that 

have arisen since the first tarmac delay 

rule has been in effect where U.S. 

carriers have asserted that the three 

hour clock should not yet be running 

but where passengers did not know that 

the door to the aircraft was open and 

that they had the option to get off of the 

aircraft, particularly on a departure 

delay at the gate or on large aircraft. We 

are not requiring carriers to provide 

passengers the opportunity to deplane 

in less than three hours but simply to 

inform them that the opportunity to 

deplane exists, if it does. Of course, in 

situations where an aircraft is at the gate 

with the door open and passengers are 

not allowed off the aircraft, the tarmac 

delay begins at the point when 

passengers are no longer permitted to 

deplane and not when the doors of the 

aircraft are shut. 

As for commenters’ concerns with 

reconciling passenger manifests and 

dealing with the checked baggage of 

passengers who choose to deplane, we 

are not requiring airlines to re-board a 

passenger who chooses to deplane and 

therefore misses a flight, or to remove 

the checked baggage of a passenger that 

has deplaned. DHS/TSA also doesn’t 

require that passenger’s checked 

baggage be removed if the passenger is 

no longer on that flight. We encourage 

airlines to announce to passengers that 

they are deplaning at their own risk and 

that the flight could depart at any time 

without them if this is the case. 

G. Code-Share Flights 

The NPRM: We sought comment on 

whether, in the case of a code-share 

flight, we should expand coverage of the 

requirement to adopt tarmac delay 

contingency plans so that the obligation 

to adopt such a plan and adhere to its 

terms is not only the responsibility of 

the operating carrier but also the carrier 

under whose code the service is 

marketed, if different. 

Comments: Of the U.S. carrier and 

carrier association commenters, ATA 

states that the operating carrier has sole 

operating authority and is in sole 

control of how a passenger is treated, so 

it is unreasonable to also hold the 

marketing carrier accountable, 

especially if the contingency plans 

differ or are in conflict. The U.S. carriers 

that commented on this issue concur 

with ATA. RAA disagrees and states 

that, if DOT insists that operating 

carriers adopt contingency plans, it 

should place primary responsibility for 

adoption and compliance with the plan 

on the marketing carrier. RAA asserts 

that carriers that hold out, sell and 

ticket passengers should have sole 

responsibility to the Department and 

that liability of the operating carrier 

should be determined by its contract 

with the marketing carrier. 

Of the non-U.S. carrier and carrier 

association commenters, IATA believes 

that only the operating carrier should be 

responsible for the terms of the 

contingency plan. AEA and ALTA, 

among others, concur with IATA. Of the 

foreign carriers that commented, most 

believe that only operating carriers 

should be responsible in a code-share 

situation based on their assertion that 

the operating carrier has responsibility 

for how the passengers are treated. 

Some commenters also note that the 

marketing carrier might not operate its 

own aircraft to all of the airports served 

by its code-share partners and thus 

would not have a relationship with 

those airport authorities. Others, such as 

Air Tahiti and Swiss International, note 

that the proposed regulations fail to 

consider the intricacies of the codeshare relationship and suggest that there 

may be issues with collusion and 

antitrust concerns in some jurisdictions. 

We received few comments from 

travel agents and other travel industry 

commenters on this issue. ASTA 

believes that code-share partners should 

be responsible for harmonizing their 

consumer protection processes so 

consumers don’t worry about which 

carrier does the marketing, ticketing or 

flying. Among the consumer and 

consumer group comments, CTA states 

that given the expansion of code-shares 

and with the antitrust immunity granted 

to airline alliances, there should be no 

difference between flights operated by 

U.S. or foreign carriers. AAPR supports 

expanding coverage of the requirement 

to adopt tarmac delay contingency plans 

to the carrier under whose code the 

service is marketed if different than the 

operating carrier. 

DOT Response: After considering all 

the comments, the Department has 

decided to require that the tarmac delay 

contingency plan of the carrier under 

whose code the service is marketed 

governs if different from the plan of the 

operating carrier, unless the marketing 

carrier specifies in its contract of 

carriage that the operating carrier’s plan 

governs. In adopting this rule, we have 

considered the comments stating that 

the operating carrier should be 

responsible for following the terms of a 

plan, as it is in the best position to 

address passenger concerns in the event 

of a tarmac delay. However, on balance, 

we have concluded that the expectation 

of the types of services a passenger will 

be provided is based on the information 

given to him or her by the marketing 

carrier, as this is the carrier that held 

out, sold, and ticketed passengers for 

the flight. It is reasonable for a 

consumer to expect the marketing 

carrier’s tarmac delay contingency plan 

to apply unless the marketing carrier 

specifies in its contract of carriage that 

the operating carrier’s tarmac delay plan 

governs. Irrespective of whether the 

marketing carrier’s or operating carrier’s 

contingency plan governs in a particular 

situation, we intend to hold both the 

marketing carrier and the operating 

carrier (i.e., the carrier that sold the 

passenger a ticket under its name as 

well as the carrier that operates the 

aircraft in which that passenger travels) 

legally responsible. We encourage codeshare partners to the extent possible to 

align their tarmac delay contingency 

plans. In situations where there are 

multiple marketing carriers on a single 

flight and the marketing carriers have 

not specified in their contracts of 

carriage that the operating carrier’s plan 

governs, it becomes even more critical 

that the carriers’ plans are aligned. If 

not, several different contingency plans 

may apply to passengers on the same 

flight. 

H. Retention of Records 

The NPRM: As is the case for U.S. 

carriers under the existing rule, the 

NPRM proposed to require foreign 

carriers to retain for two years the 

following information on any tarmac 


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delay that lasts at least three hours: the 

length of the delay, the specific cause of 

the delay, and the steps taken to 

minimize hardships for passengers 

(including providing food and water, 

maintaining lavatories, and providing 

medical assistance); whether the flight 

ultimately took off (in the case of a 

departure delay or diversion) or 

returned to the gate; and an explanation 

for any tarmac delay that exceeded three 

hours, including why the aircraft did 

not return to the gate by the three-hour 

mark. 

Comments: We received few 

comments on this issue. Of the carriers 

and carrier associations that did 

comment, they expressed concerns that 

this provision would be burdensome 

and time consuming. 

DOT Response: The requirement to 

retain tarmac delay records already 

applies to U.S. carriers. We are 

extending it here to foreign carriers 

operating passenger service to and from 

the U.S. on at least one aircraft with a 

passenger capacity of 30 or more seats. 

The tarmac delay information that the 

Department is requiring foreign airlines 

to retain is not available to it through 

other means. This information will help 

the Department obtain a more complete 

picture about lengthy tarmac delays and 

ensure carrier compliance with the 

tarmac delay requirements. The 

Department also believes that the 

requirement to retain tarmac delay data 

would not be burdensome for carriers, 

since we believe most carriers would as 

a matter of good business practice, 

obtain this information for their own 

purposes and, in any event, there are 

relatively few tarmac delays of more 

than three hours. In addition, the 

Department is not prescribing the 

manner in which this information must 

be kept and there is no requirement that 

a carrier submit the information to the 

Department unless specifically 

requested to do so, all of which should 

reduce any costs associated with this 

requirement. 

2. Tarmac Delay Data 

The NPRM: The proposed rule would 

require any U.S. or foreign carrier that 

operates passenger service (charter or 

scheduled) to, from or within the U.S. 

using any aircraft with a passenger 

capacity of 30 or more seats to submit 

monthly to the Department a set of data 

regarding tarmac delays of three hours 

or more at a U.S. airport to the extent 

that the carrier doesn’t already provide 

such data to the Department. If a 

covered carrier has no flight with 3-hour 

tarmac delays, the proposed rule would 

require the carrier to submit a negative 

report, i.e., a report stating there are no 

3-hour tarmac times. The report would 

be due within 15 days after the end of 

each month being reported. 

Reporting carriers (carriers that 

account for at least one percent of 

domestic scheduled passenger revenue 

which in calendar year 2009 consisted 

of the 16 largest U.S. carriers by 

scheduled passenger revenue plus two 

carriers that voluntarily file under Part 

234) already file with the Department 

on-time flight performance data which 

includes all the data fields proposed to 

be reported here and more for their 

domestic scheduled flights pursuant to 

14 CFR part 234. In recognition of this 

fact, the NPRM proposed that these U.S. 

carriers file tarmac delay data only for 

other types of transportation covered by 

the proposed rule, i.e., their charter and 

international flights. The NPRM 

proposed to require other U.S. carriers 

and foreign carriers to provide data on 

tarmac delays that occurred at a U.S. 

airport and lasted for three hours or 

more for any of their flights—scheduled 

and charter flights as well as domestic 

and international flights. We sought 

comments on whether we should limit 

the tarmac delay reporting requirement 

to U.S. and foreign air carriers that 

operate large aircraft, i.e., aircraft 

originally designed to have a maximum 

passenger capacity of 60 seats or more. 

Comments: Individual consumers or 

consumer groups who submitted 

comments on this proposal 

unanimously support this proposal. 

Consumers Union states that it supports 

expanding the pool of reporting carriers 

to all U.S. and foreign carriers that 

operate any aircraft with 30 or more 

seats. It maintains that such a 

requirement is particularly important 

because it will reach many airline 

passengers who are currently not 

protected by these policies. One 

individual commenter states that equal 

treatment for all carriers is necessary to 

ensure competitive equality. Consumers 

Union also supports requiring Part 234 

reporting carriers to provide tarmac 

delay data for public charter and 

international flights. 

The Association for Airline Passenger 

Rights points out that the Department is 

attentive to the potential burden to 

small carriers and has narrowed the data 

fields it proposed to be reported for 

tarmac delays from the comprehensive 

on-time reporting scheme that exists. 

One commenter adds that most carriers 

already collect some of the data required 

under this proposal so it should not be 

overly burdensome for carriers to 

comply with the requirements. Several 

commenters from the Regulation Room 

state that technology development 

makes compliance relatively easy. 

A few consumers and consumer 

organization commenters believe that 

the Department should go further in this 

respect. FlyersRights.org suggests that, 

in addition to filing reports under this 

Part and complying with the record 

retention requirement in Part 259, the 

Department should require carriers to 

submit a comprehensive written report 

within 14 days of the occurrence of any 

lengthy tarmac delay. One individual 

commenter asserts that data should be 

reported for tarmac delays of one hour 

or more to reflect a better picture of the 

tarmac delay problem. 

Among U.S. carriers and carrier 

associations that commented on this 

proposal, ATA states that it generally 

supports expanding the reporting carrier 

pool. RAA, on the other hand, argues 

that all carriers that are not required to 

report tarmac delay data under Part 234 

should be exempted from this reporting 

requirement. RAA reasons that the new 

reporting requirements are not 

necessary because most carriers, 

including carriers not covered under 

Part 234, are already required to retain 

tarmac delay data for two years. Thus, 

according to RAA, the Department may 

request such information for policymaking purpose whenever necessary. 

Additionally, RAA contends that the 

Department failed to provide a 

quantifiable cost/benefit analysis in the 

NPRM to justify such a requirement. 

NACA expresses its uncertainty 

regarding the purpose of requiring 

smaller carriers (which it defines as 

those that operate fewer than 25 aircraft) 

to report tarmac delay data. As a 

compromise, NACA suggests that 

carriers should be required to file 

tarmac delay reports under any rule 

only if during any given month the 

occurrences of tarmac delays have 

exceeded a certain threshold, e.g., more 

than 10 incidents. 

Comments provided by foreign 

carriers and carrier associations 

generally oppose this proposal or 

request that the reporting obligation be 

limited. Several commenters contend 

that the Department has not provided 

justification as to how the proposed data 

collection from foreign carriers would 

address the causes of tarmac delays and 

benefit consumers. Some commenters 

take the position that requiring foreign 

carriers to report tarmac delay data is 

not necessary because international 

flights operate less frequently than 

domestic flights and tarmac delay 

incidents for international flights are 

rare. Thus, according to these 

commenters, the cost for carriers to set 

up a reporting infrastructure outweighs 

the benefit. Furthermore, they believe it 

is inappropriate to require smaller 


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carriers to submit and retain tarmac 

delay data due to their lesser 

administrative resources and the small 

segment of the market these carriers 

serve. A number of commenters state 

that tarmac delays usually occur as the 

result of airport infrastructure problems. 

Therefore, these commenters believe 

that the Department should require 

airports to report this data. Likewise, 

some carriers argue that the data 

collected from this proposal is readily 

available from FAA’s Air Traffic Control 

System Command Center. A few 

commenters note that the burden on 

foreign carriers is increased if the 

Department maintains the proposal that 

negative reports must be filed when no 

reportable tarmac delay has occurred 

during a month. 

Qantas and JetStar Airways state that 

they would not oppose a rule if it 

imposed the reporting responsibility on 

operating carriers instead of the 

marketing code-share partners and 

limited the reporting fields to the 

identification of aircraft, airport, 

relevant times, and a brief explanation 

for the tarmac delay. They also request 

that easy methods of report submission 

should be permitted, such as email 

submission. 

Virgin Atlantic raises the concern that 

publishing reported data may be 

misleading to consumers who tend to 

judge a carrier’s performance based on 

raw tarmac delay records, and overlook 

the causes for such delay, which could 

be factors that are not under carrier’s 

control. Lufthansa also requests that any 

publication of the tarmac delay data by 

the Department should also include the 

cause of the delay. National Airlines 

Council of Canada further states that 

such misjudgments will cause undue 

commercial damage to Canadian carriers 

that face the most challenging weather 

conditions, which could contribute to 

more tarmac delays. 

Monarch Airlines and TUI Travel 

contend that foreign charter carriers that 

operate roundtrip flights to limited U.S. 

destinations should be exempted from 

the reporting requirements. In addition 

to consumers and industry commenters, 

NBTA and ACI–NA both provided 

comments in support of the 

Department’s proposal. 

DOT Response: After thoroughly 

considering all the comments received, 

the Department continues to believe that 

the proposed data collection 

requirement is crucial to obtaining a 

more complete picture of the tarmac 

delays at U.S. airports. Without such 

data, we do not have adequate statistical 

foundations to support a determination 

regarding whether lengthy tarmac 

delays are or will be a significant 

problem for consumers on international 

flights or charter flights. We reiterate 

that the causes of lengthy tarmac delays 

are comprehensive and there is not a 

universal solution that would cure all 

problems at all airports. We continue to 

believe that a more complete picture of 

lengthy tarmac delays is the first step to 

obtaining a baseline that the Department 

can use to analyze the issue by carrier, 

by region/airport, by month, or by the 

type of flight, as appropriate. 

We note that several recent tarmac 

delays that attracted significant public 

attention were international arrivals. 

Tarmac delays involving international 

flights, although rare, tend to be 

particularly lengthy and complicated. In 

that regard, we reiterate that collecting 

tarmac delay information for 

international flights is important. The 

data that we are seeking to obtain here 

are not available to us through other 

means. Commenters are mistaken when 

they assert that the FAA has this 

information readily available. 

Furthermore, the publication of the 

tarmac delay data would increase public 

awareness of the issue, providing 

incentives for airline management to 

focus on addressing tarmac delay 

problems. 

With respect to whether the costs for 

foreign carriers to set up the reporting 

infrastructure justifies the benefits 

obtained from such reports in light of 

the relatively less frequent occurrence of 

tarmac delay incidents on international 

flights, we note that none of the 

commenters opposing extension of the 

reporting requirement to foreign carriers 

has provided any cost/benefit analysis 

in support of their position. We 

understand that most data contained in 

the reporting fields under this proposal 

are already collected by the carriers 

internally. BTS already has a system in 

place to accept reports electronically. 

Reporting to the BTS would incur a onetime IT infrastructure setup cost and 

minimal maintenance expenditure. We 

do not expect these costs to be 

significant. 

We have also considered some 

commenters’ suggestion that we should 

not require a negative report to be filed 

when no reportable tarmac delay 

occurred during a given month. Based 

on data submitted by the reporting 

carriers, during the past six months the 

total number of tarmac delay incidents 

that lasted for two hours or more at U.S. 

airports was less than 0.1% of the total 

domestic scheduled passenger flights 

operated by those carriers for each 

month. We agree that these data indicate 

that international flights that experience 

reportable tarmac delays will only 

represent a fraction of the total number 

of flights. As such, the vast majority of 

carriers filing reports if the rule is 

adopted as proposed would be filing a 

negative report for most months. 

Although negative reports are an 

effective enforcement tool for ensuring 

accurate reporting of tarmac delay, we 

have decided not to require negative 

reports to be filed, in order to further 

reduce the carriers’ burden in 

complying with this rule. 

With respect to some foreign carriers’ 

suggestion that for code-share 

arrangements we should require the 

marketing carrier rather than the 

operating carrier to file the report, we 

are of the opinion that it is up to the 

code-share partners to designate who 

has the responsibility to file the report. 

Based on each carrier’s resources and 

ability, it may be more convenient for a 

foreign carrier to use its U.S. code-share 

partner to file the reports, but the 

Department will not dictate which 

carrier has the reporting responsibility 

and will hold both marketing and 

operating carriers legally responsible if 

data for a reportable tarmac delay are 

not timely or accurately filed. 

Regarding some foreign carriers’ 

comments on roundtrip charter services 

between foreign points and U.S. 

destinations, we agree that as long as 

these flights carry only passengers that 

originate at a foreign point and do not 

pick up any U.S.- originating 

passengers, tarmac delays on those 

flights will have minimal impact on 

U.S. consumers. Moreover, the 

Department is not applying its 

requirement for carriers to adopt 

contingency plans for lengthy tarmac 

delays to such operations. Therefore, we 

have decided that this reporting 

requirement should not apply to such 

flights. 

We have also considered some 

carriers’ concern that publishing tarmac 

delay information may lead the public 

to compare carriers’ performance quality 

based on the raw data, while carriers 

may not be at fault for all tarmac delay 

incidents. We are not convinced that 

this will create overall false perceptions. 

The public is generally well informed 

about the causes contributing to a 

lengthy tarmac delay, not only through 

Departmental reports and press releases, 

but also through supplemental resources 

such as the media and the Internet. This 

information will normally enable the 

public to look beyond the net number of 

tarmac delays by each carrier. Moreover, 

carriers are always free to provide the 

public information about the cause of 

their tarmac delays, so long as that 

information is correct and not 

misleading. 


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To address the suggestion of some 

consumer commenters that we should 

require carriers to report tarmac delays 

of less than three hours, we note that the 

three-hour standard is consistent with 

the current tarmac delay contingency 

plan regulations and have reached the 

conclusion that this threshold 

represents the proper balance between 

the reporting burden placed on carriers 

and the benefits to the public. In 

addition, we do not believe it is 

necessary to mandate that a detailed 

explanation for each tarmac delay be 

filed with the tarmac delay report. Such 

detailed explanation is of little use to 

BTS, which is a data collecting and 

analysis agency. If the Department 

believes that a particular tarmac delay 

warrants further investigation, its 

Aviation Enforcement Office will 

request information from the carrier, 

which the carrier is required to retain 

for tarmac delays of more than 3 hours. 

Finally, we would like to provide 

further clarification regarding the 

reporting duties for carriers that are 

currently filing Part 234 Airline Service 

Quality Performance Reports. According 

to BTS Technical Directive #20, issued 

on November 5, 2010, and effective on 

January 1, 2011, there are 15 U.S. 

carriers whose domestic scheduled 

passenger revenues meet the threshold 

for mandatory filing of Part 234 reports. 

These carriers are identified as Part 234 

‘‘reporting air carriers.’’ The carriers on 

this list may change from time to time 

due to carriers’ revenue fluctuation and 

corporate restructuring, and BTS 

updates the list annually. In addition to 

the 15 reporting air carriers, Express Jet 

will submit on-time data under Part 234 

in 2011 as a ‘‘volunteer air carrier.’’ 

Although Part 234 only requires data for 

domestic scheduled passenger flights to 

and from a large hub U.S. airport, all 

reporting carriers, including the 

volunteer air carriers, are currently 

filing data for all domestic scheduled 

flights to and from all U.S. airports, 

including medium, small, and non-hub 

airports. As long as they continue to do 

so, they are only required to file tarmac 

delay data for international and charter 

flights to a U.S. airport under the new 

reporting regulation, 14 CFR part 244. 

However, if any Part 234 reporting 

carrier decides to report only the 

minimum required data under Part 234, 

i.e., on-time performance data for 

domestic scheduled flights to and from 

large hub U.S. airports, it must report 

any tarmac delay of three hours or more 

for domestic scheduled flights to and 

from a medium, small, or non-hub U.S. 

airport under Part 244. The same 

rationale applies to any volunteer air 

carriers under Part 234. If a volunteer air 

carrier ceases to file any or all reports 

under 234, it must file tarmac delay data 

for reportable flights under Part 244. As 

we have explained in the NPRM, the 

purpose of Part 244 is to fill in the 

tarmac delay data gap that is not 

covered by Part 234. In that regard, no 

carrier is required to file both Part 234 

and Part 244 reports for the same flight. 

3. Customer Service Plans 

A. Entities Covered 

The NPRM: The NPRM proposed to 

increase the protections afforded 

consumers in the first Enhancing 

Airline Passenger Protections rule by 

requiring foreign air carriers to adopt, 

follow, and audit customer service 

plans, as covered U.S. carriers have 

been required to do since April 2010. 

We proposed to cover foreign air 

carriers operating scheduled passenger 

service to and from the U.S. that use any 

aircraft designed to have a passenger 

capacity of 30 or more. We noted that 

the rule would apply to all flights to and 

from the U.S. of those carriers, 

including flights involving aircraft with 

fewer than 30 seats, if a carrier operates 

any aircraft with 30 or more passenger 

seats to and from the U.S. We asked 

interested persons to comment on 

whether the proposed requirement for 

foreign air carriers to adopt, follow and 

audit customer service plans should be 

narrowed in any fashion. (e.g., should 

never apply to aircraft with fewer than 

30 seats). 

Comments: Of the foreign-carrier 

industry commenters, the majority 

expressed their strong belief that the 

customer service plans requirement 

should not be extended to foreign 

carriers. IACA states that DOT’s 

regulatory proposals ignore the fact that 

airlines have designed customer service 

in a way to attract their customer and 

asserts that these provisions intervene 

in the airline’s business and service 

practices. IATA strongly opposes any 

customer service requirements being 

imposed on foreign carriers unless those 

requirements are harmonized with the 

regulations of other jurisdictions. IACA 

and IATA also assert that the proposals 

are extraterritorial in that they would 

apply to all flights to and from the U.S. 

and could be interpreted in such a way 

that these obligations would also cover 

sales generated outside the U.S. AACO, 

AEA and ALTA concur with IATA. 

Of the foreign air carrier commenters, 

LAN Airlines (LAN Ecuador, LAN Peru, 

LAN Argentina), Emirates, and SAS, 

among others, oppose DOT requiring 

them to adopt customer service 

provisions. Swiss International 

contends that the application of 

customer service plans to the conduct of 

foreign carriers on foreign soil or in 

foreign airspace poses several issues 

under U.S. and international law related 

to extraterritorial application of U.S. 

regulations. TAP Portugal makes similar 

comments regarding extraterritorial 

concerns, as do, among others, 

Lufthansa and Austrian Airlines. Other 

carriers, such as British Airways, note 

that they are already subject to customer 

service provisions in their own 

countries (e.g. EU provisions) and, 

therefore, the Department’s proposal is 

unnecessary and redundant, as well as 

potentially inconsistent with those 

countries’ requirements. Singapore 

Airlines adds that competition is more 

effective than government mandates in 

improving customer service, and the 

Department does not need to be 

involved in customer service matters. 

All Nippon states that the customer 

service provisions should apply only to 

sales made within the U.S. Qantas states 

that it is not necessary, practical or 

efficient to require foreign carriers to 

provide customers with additional or 

different customer service plans when 

carriers already have such provisions in 

place (e.g., Qantas has a Customer 

Charter on its website) and states that 

any requirement should be limited to 

carriers that do not already have a 

customer service plan in place. JetStar 

essentially concurs with Qantas. JAL 

makes similar comments and notes that 

some of its standards are more stringent 

than the service requirements proposed 

and that foreign airlines compete on 

service and should determine their own 

service standards. JAL also expresses 

concern about the potential costs 

associated with this provision, 

characterizes it as an intrusive service 

regulation and states that it is not 

justified. VivaAerobus opposes the 

Department requiring small carriers to 

have a customer service plan. The 

Washington Aviation Assembly, 

representing 35 Embassies in the U.S., 

notes general issues with 

extraterritoriality, operational 

consequences for foreign airlines, and 

the potential economic burden for 

foreign airlines if they are required to 

comply with the customer service 

provisions. 

As for U.S. airlines and associations, 

ATA expresses concern that DOT 

requiring foreign carriers to adopt a 

customer service plan could drive 

foreign governments to retaliate against 

U.S. carriers operating outside the U.S., 

which could create conflicting 

standards and unnecessarily drive 

additional costs. Among the travel 

agency interests that commented, ASTA 


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agrees that customer service plan rules 

and standards should apply equally to 

foreign air carriers, with no aircraft-size 

exceptions. ITSA supports in general 

the Department’s efforts to provide 

passengers with the means to make 

better informed decisions and more 

informed choices in travel. 

Commenters on ‘‘Regulation Room,’’ 

who primarily identified themselves as 

air travelers, generally support DOT’s 

proposal. However, some of those that 

commented oppose the regulation and 

fear the costs will be passed on to 

consumers. The consumer groups that 

commented on this issue generally 

supported the provision and note that 

passengers should have the ability to 

know that certain customer service 

standards will be defined and met 

regardless of the carrier that a passenger 

chooses to travel on. CTA notes that 

foreign carriers operating as members of 

any international airline alliance must 

be included in these rules. AAPR, 

Consumers Union and Flyersrights.org 

generally support the proposal to 

require foreign air carriers to adopt, 

follow, and audit customer service 

plans. NBTA supports extending 

customer service provisions to foreign 

carriers using aircraft with 30 or more 

passenger seats. 

DOT Response: After fully 

considering the comments, we have 

decided to require foreign carriers that 

operate scheduled passenger service to 

and from the U.S. using any aircraft 

with 30 or more seats to adopt, follow 

and audit customer service plans. As 

noted previously, a substantial number 

of passengers travel to and from the U.S. 

on flights operated by foreign air 

carriers and the Department continues 

to believe that it is important to protect 

these passengers, as well as to be 

consistent with the application of our 

consumer protection rules to both U.S. 

and foreign carriers. 

Foreign carriers’ and others entities’ 

concerns with extraterritoriality have 

persuaded us, however, that some 

clarifications are needed. First, we want 

to point out that out of the twelve 

customer service commitments in this 

final rule, the substance of two of them 

already applies to foreign air carriers 

under existing DOT rules, i.e., 14 CFR 

part 250 concerning passengers who are 

‘‘bumped’’ from flights that are oversold 

and 14 CFR part 382 which addresses 

air travel of passengers with disabilities. 

Prior to issuing those final rules, the 

Department addressed the issue of 

extraterritoriality and determined how 

best to apply each of these requirements 

to foreign air carriers. For instance, the 

Department determined not to apply its 

oversales rule to international flights 

inbound to the United States and 

determined not to apply U.S. disability 

rules to a foreign carrier simply because 

a foreign carrier’s flight between two 

foreign points carried passengers under 

a code-sharing arrangement with a U.S. 

carrier. The manner in which we are 

applying these existing requirements to 

foreign air carriers through the customer 

service commitments is not new and is 

not an extraterritorial extension of U.S. 

jurisdiction. 

We note also that several of the other 

customer service commitments are 

merely reinforcing new requirements 

imposed elsewhere in this final rule, 

i.e., 14 CFR 259.8 which addresses 

notification of delays and cancellations, 

14 CFR 259.4 which addresses lengthy 

tarmac delays, and 14 CFR 259.7 which 

addresses responding to consumer 

complaints. Concerns with 

extraterritoriality are specifically 

addressed in those sections of this 

preamble that deal with those issues. In 

this final rule, for example, we explain 

in the tarmac delay section that the 

requirement to adopt and follow a 

tarmac delay contingency plan applies 

only to tarmac delay events that occur 

at a covered U.S. airport. Likewise, we 

clarify in the section on known delays, 

cancellations and diversions that the 

requirement to notify consumers of 

flight irregularities on a carrier’s website 

and via the carrier’s telephone 

reservation system applies to a foreign 

carrier only if the carrier markets to U.S. 

consumers. We also make clear that the 

requirement to make this information 

available in the boarding gate areas 

applies only to boarding gate areas at a 

U.S. airport. We believe that these types 

of clarifications address the foreign 

carriers’ main objections, which are the 

application of the customer service plan 

to sales made outside the U.S. and to the 

conduct of foreign carriers on foreign 

soil. 

We have made similar changes to 

other customer service commitments 

that involve foreign carriers’ websites 

and reservation centers to ensure that 

we are not applying U.S. rules to a 

foreign carrier when that carrier does 

not market its services to the U.S. For 

example, the customer service 

commitment to disclose, among other 

things, cancellation policies and 

frequent flyer rules on the selling 

carrier’s website and upon request from 

the selling carrier’s telephone 

reservations staff or the commitment to 

disclose the availability of the lowest 

fare on a carrier’s website or through its 

reservation center will apply to a foreign 

carrier only if it markets its services to 

U.S. consumers. We are also making 

changes to the customer service 

commitments related to services to be 

provided generally or services to be 

provided at the ticket counter and 

boarding gate area to specify that such 

action is required only at U.S. airports. 

Finally, we want to clarify that for 

purposes of this section, except as 

otherwise provided in individual 

customer service provisions in this 

section, a ‘‘flight’’ that a foreign carrier 

operates to and from the U.S. means a 

continuous journey in the same aircraft 

or with one flight number that begins or 

ends at a U.S. airport. For example, if 

a carrier were to operate flight 100, a 

direct flight from San Francisco to 

Singapore with a stop in Hong Kong, the 

customer service plan applies to both 

segments of this flight with respect to 

U.S.-originating passengers. It would 

not apply to any Hong Kong originating 

passengers who board the aircraft there 

and go to Singapore. On the reverse 

routing, the plan would apply to 

passengers who board in Singapore or 

Hong Kong and travel to the U.S.; it 

would not apply to passengers boarding 

in Singapore whose destination is Hong 

Kong. Temporarily deplaning at the 

intermediate stop on a direct flight 

(Hong Kong in the above example) does 

not break the journey for purposes of the 

applicability of the customer service 

plan requirements for passengers who 

re-board and continue on that same 

flight operation. If an international 

passenger whose journey originates or 

terminates in the U.S. makes a 

connection to a flight with a different 

flight number, the carrier’s customer 

service plan applies only to the direct 

flight to or from the U.S. In the case of 

change of gauge, all flight segments with 

the same flight number that begin or end 

in the U.S. are covered by the Customer 

Service Plan even if passengers must 

change aircraft due to a change of gauge. 

As for the comments concerning the 

cost involved in adopting customer 

service plans, we note that a number of 

carriers state that they already have 

customer service plans or similar plans 

in place and that these plans contain 

provisions similar or more stringent 

than those the Department is requiring 

them to adopt, or that their governments 

have similar requirements. To the extent 

provisions in existing plans are more 

stringent than the minimum standards 

set in this rule, carriers are encouraged 

to continue to apply these more 

stringent provisions. To the extent 

provisions in existing plans vary from 

our requirements, even if they are 

similar to them, it does not seem overly 

burdensome for a carrier to amend those 

plans with respect to flights to and from 

the U.S. to comply with this rule. Also, 

while we understand that some foreign 


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countries have rules requiring customer 

service standards in air carriage, we are 

not aware, nor are we convinced based 

on the comments received, that any of 

those rules or standards conflict with 

the requirements of this provision in a 

manner that would prevent a carrier 

from complying with both requirements. 

B. Content of Customer Service Plan 

The NPRM: In the NPRM, we noted 

that under the final rule published on 

December 30, 2009, U.S. carriers are 

required to adopt customer service 

plans for their scheduled flights that 

address, at a minimum, the following 

service areas: (1) Offering the lowest fare 

available; (2) notifying consumers of 

known delays, cancellations, and 

diversions; (3) delivering baggage on 

time; (4) allowing reservations to be 

held or cancelled without penalty for a 

defined amount of time; (5) providing 

prompt ticket refunds; (6) properly 

accommodating disabled and specialneeds passengers, including during 

tarmac delays; (7) meeting customers’ 

essential needs during lengthy on-board 

delays; (8) handling ‘‘bumped’’ 

passengers in the case of oversales with 

fairness and consistency; (9) disclosing 

travel itinerary, cancellation policies, 

frequent flyer rules, and aircraft 

configuration; (10) ensuring good 

customer service from code-share 

partners; (11) ensuring responsiveness 

to customer complaints; and (12) 

identifying the services they provide to 

mitigate passenger inconveniences 

resulting from flight cancellations and 

misconnections. We proposed to extend 

the requirement to address these twelve 

subjects in the customer service plan to 

foreign air carriers and requested 

comment on whether any of these 

subjects would be inappropriate if 

applied to a foreign carrier. 

The NPRM also proposed to require 

that U.S. and foreign carriers’ customer 

service plans meet minimum standards 

to ensure that the plans are specific and 

enforceable. The minimum standards 

that we proposed are as follows: (1) 

Offering the lowest fare available on the 

carrier’s website, at the ticket counter, 

or when a customer calls the carrier’s 

reservation center to inquire about a fare 

or to make a reservation; (2) notifying 

consumers in the boarding gate area, on 

board aircraft, and via a carrier’s 

telephone reservation system and its 

website of known delays, cancellations, 

and diversions; (3) delivering baggage 

on time, including making every 

reasonable effort to return mishandled 

baggage within twenty-four hours and 

compensating passengers for reasonable 

expenses that result due to delay in 

delivery; (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; (5) where ticket 

refunds are due, providing prompt 

refunds for credit card purchases as 

required by 14 CFR 374.3 and 12 CFR 

part 226, and for cash and check 

purchases within 20 days after receiving 

a complete refund request; (6) properly 

accommodating passengers with 

disabilities as required by 14 CFR part 

382 and other special-needs passengers 

as set forth in the carrier’s policies and 

procedures, including during lengthy 

tarmac delays; (7) meeting customers’ 

essential needs during lengthy tarmac 

delays as required by 14 CFR 259.4 and 

as provided for in each covered carrier’s 

contingency plan; (8) handling 

‘‘bumped’’ passengers with fairness and 

consistency in the case of oversales as 

required by 14 CFR part 250 and as 

described in each carrier’s policies and 

procedures for determining boarding 

priority; (9) disclosing cancellation 

policies, frequent flyer rules, aircraft 

configuration, and lavatory availability 

on the selling carrier’s website, and 

upon request, from the selling carrier’s 

telephone reservations staff; (10) 

notifying consumers in a timely manner 

of changes in their travel itineraries; (11) 

ensuring good customer service from 

code-share partners operating a flight, 

including making reasonable efforts to 

ensure that its code-share partner(s) 

have comparable customer service plans 

or provide comparable customer service 

levels, or have adopted the identified 

carrier’s customer service plan; (12) 

ensuring responsiveness to customer 

complaints as required by 14 CFR 259.7; 

and (13) identifying the services it 

provides to mitigate passenger 

inconveniences resulting from flight 

cancellations and misconnections. 

In addition, we invited comment on 

whether the minimum standards for any 

of the subjects contained in the 

customer service plans should be 

modified or enhanced in some way. 

With regard to delivering baggage on 

time, we solicited comment on whether 

we should also include as standards (1) 

that carriers reimburse passengers the 

fee charged to transport a bag if that bag 

is lost or not timely delivered, as well 

as (2) the time when a bag should be 

considered not to have been timely 

delivered (e.g., delivered on the same or 

earlier flight than the passenger, 

delivered within 2 hours of the 

passenger’s arrival). With regard to 

providing prompt refunds, we sought 

comment on whether we should also 

include as a standard that carriers 

refund ticketed passengers, including 

those with non-refundable tickets, for 

flights that are canceled or significantly 

delayed if the passenger chooses not to 

travel as a result of the travel disruption. 

In addition, we requested comment on 

whether it is necessary to include as a 

standard the requirement that when a 

flight is cancelled carriers must refund 

not only the ticket price but also any 

fees for optional services that were 

charged to a passenger for that flight 

(e.g., baggage fees, ‘‘service charges’’ for 

use of frequent flyer miles when the 

flight is canceled by the carrier). With 

respect to notifying passengers on board 

aircraft of delays, we sought comment 

on how often updates should be 

provided and whether we should 

require that passengers be advised when 

they may deplane from aircraft during 

lengthy tarmac delays. 

Finally, we requested comment as to 

whether it is workable to set minimum 

standards for any of the subjects 

contained in the customer service plans 

and invited those that oppose the notion 

of the Department setting minimum 

standards for customer service plans as 

unduly burdensome to provide evidence 

of the costs that they anticipate. We also 

sought comment on whether the 

Department should require airlines to 

address any other subject in their 

customer service plans. We specifically 

asked if mandatory disclosure to 

passengers and other interested parties 

of past delays or cancellations of 

particular flights before ticket purchase 

should be a new subject area covered in 

customer service plans. 

Comments: U.S. carriers and carrier 

associations are generally opposed to 

the Department setting minimum 

standards for the customer service 

plans, particularly if the Department 

requires that the plans be incorporated 

into the carriers’ contracts of carriage. 

ATA notes that, although U.S. carriers 

are already required under the current 

regulation to address each of the 

proposed customer service plan topics, 

the current regulation does not mandate 

minimum requirements and allows 

carriers to set their own standards for 

their customer service plans based on 

their own particular circumstances. 

ATA asserts that for the Department to 

set the minimum standards for carriers’ 

plans would face a major change to 

existing carrier policies in areas where 

U.S. carriers currently compete and 

could dampen innovation, harm 

competition and reduce the flying 

public’s options. Many U.S. carriers 

concur with ATA. 

RAA is opposed not only to the 

establishment of minimum standards 

but also to any continued requirement 

for its members to adopt customer 


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service plans. RAA explains that most 

regional carriers do not offer fares, take 

reservations, ticket passengers, receive 

payment from passengers, provide 

refunds to passengers, or have their own 

frequent flyer rules or cancellation 

policies. RAA maintains that the 

subjects to be addressed in the customer 

service plan would be inappropriate if 

applied to an airline that does not hold 

out, market, sell tickets for its 

operations and asks that the customer 

service requirements apply only to 

carriers that hold out, market, sell and 

ticket air transportation. 

Most foreign carriers and carrier 

associations expressed strong 

opposition both to the requirement to 

have a customer service plan and for 

that plan to meet minimum standards 

set by the Department. A number of 

foreign carriers such as Air Berlin and 

associations such as IATA and IACA 

raised the issue of extraterritoriality and 

argued that the Department was 

overreaching as the customer service 

requirements could be interpreted in 

such a way as to cover sales generated 

outside the U.S. and to cover the 

conduct of foreign carriers on foreign 

soil or in foreign airspace. There were 

also assertions that the Department’s 

regulatory proposals ignore the fact that 

airlines have designed their customer 

service initiatives in a way to attract 

customers and the fact that carrier 

customer service plan provisions are a 

way for carriers to differentiate their 

services. South African Airways 

contends that prescriptive regulations 

should not take the place of competitive 

forces, especially when there is no 

evidence of market failure. Virgin 

Atlantic, while agreeing that defining a 

baseline standard is acceptable, states 

that forcing all carriers to be the same 

denies them the right to compete 

commercially and does not allow 

carriers to innovate. 

Others raised the existence of 

customer service requirements imposed 

by other entities as a reason for the 

Department not to issue a rule in this 

area. For instance, Air France and KLM 

state that the customer service proposals 

should not be finalized as to EU carriers 

where they are inconsistent with or 

more stringent than EU regulations. Still 

other foreign carriers raised concerns 

that some of the minimum service levels 

are impracticable for a carrier to meet 

(for example, if a carrier sells a number 

of tickets via a travel agent and the 

passenger contact information is not 

passed on then the carrier may not have 

that passenger’s contact information in 

order to advise them of a change in 

itinerary). Some carriers also expressed 

concerns that certain provisions may be 

outside of a carrier’s control (e.g., ‘‘good 

customer service’’ from a code-share 

partner). 

Travel agent organizations such as 

ASTA and consumer groups such as 

AAPR, Flyersrights.org, NBTA, and CTA 

all support requiring carriers to adopt 

customer service plans and for those 

plans to meet the minimum standards as 

proposed in the NPRM. Most individual 

commenters also support these DOT 

proposals, but a few oppose the 

regulation as burdensome and fear the 

costs will be passed on to consumers. 

Many ‘‘Regulation Room’’ commenters 

want the Department to go further in 

setting minimum standards and 

prohibiting certain practices. 

The Department received a number of 

comments on some of the minimum 

standards proposed to be included in 

the customer service plans as well as 

some of the questions we posed on 

modifying or enhancing these standards 

and we address those issues more fully 

below. 

1. Offering the Lowest Fare Available 

Many foreign air carrier associations, 

including AACO and NACC, contend 

that requiring carriers to offer the lowest 

fare on the carrier’s website, at the ticket 

counter, or when a customer calls the 

carrier’s reservation center to inquire 

about a fare or make a reservation would 

interfere in airline business practices. 

ALTA seeks clarification on the 

meaning of ‘‘offering the lowest fare 

available’’ and asserts that a ‘‘one size 

fits all’’ fare will prejudice passengers by 

increasing fares and limiting 

competition. 

Among the foreign air carriers that 

commented, Cathay Pacific states it can 

only publish the fare at the time a 

request is made, as fares are driven by 

complex inventory and fare managing 

systems and a fare guarantee cannot be 

made. JetStar basically concurs and 

states that the proposal fails to take 

account of legitimate distribution and 

pricing practices. Qantas strongly 

opposes this requirement on the basis 

that it fails to take into account the 

numerous possible options and fare 

constructions that may be applicable to 

a consumer, and there may be a false 

perception that a carrier is not quoting 

the best price when the lowest priced 

inventory sells out. It is also concerned 

that carriers will not be able to enforce 

the proposed requirement against ticket 

agents and should not be responsible for 

ticket agent actions. British Airways 

states that it offers the lowest fare that 

meets customers’ needs and its website 

allows consumers to find the lowest 

fare. Similarly, JAL states that it already 

offers the lowest fare on its website, at 

the ticket counter and via telephone 

reservations as appropriate. Singapore 

Airlines states that, if this requirement 

is adopted, the Department should 

confirm that this provision is intended 

to conform with ATA’s Customers First 

initiative and should make it clear that 

the airline does not have to offer to a 

customer shopping via one point-of-sale 

the lowest fare available in any channel. 

Of the U.S. carriers that commented, 

Spirit Airlines (Spirit) opposes a 

requirement that all fares available on 

its website should be made available 

through its telephone reservation 

service. Should DOT impose such a 

standard, it must be limited to a carrier’s 

generally available fares and not apply 

to special sales fares because many of 

these lower fares cannot be purchased 

over higher-cost channels. 

2. Allowing Reservations To Be Held at 

the Quoted Fare 

A number of foreign carriers and 

carrier industry groups also expressed 

serious concerns with the proposal to 

allow 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 and thought this provision may 

lead to inconsistent sales policies. For 

example, Air New Zealand strongly 

opposes this provision because it takes 

inventory off the market for the duration 

of the refund period, blocking it from 

sale to other customers and risking that 

the seat may not be sold again. The 

carrier points out that passengers have 

the option to buy refundable fares, and 

choosing whether to allow a passenger 

to hold a reservation without payment 

is a commercial decision. Air France 

and KLM oppose this proposal 

primarily for the reasons stated above, 

as does Qatar Airways. Alitalia opposes 

this proposal and thinks the airline 

should be the party that establishes 

commercial terms and conditions with 

its customers. Singapore Airlines states 

that it is not set up to permit reservation 

holds and reprogramming the system to 

do so is costly. It also notes that this 

proposal interferes with the free market 

and deprives other passengers of the 

lowest fare, as well as compromises an 

airline’s ability to adjust to overnight 

currency fluctuations. British Airways 

notes that its current selling systems do 

not allow for reservations to be held 

without penalty, but passengers that 

book via call centers have a ‘‘24 hour 

cooling off’’ period. It also states that 

consumers that visit BA.com have 

several opportunities to review exactly 

what they are booking and to confirm 

knowledge of details prior to booking. 


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ATA strongly objects to a CSP 

proposal that would require a carrier to 

hold a reservation ‘‘at the quoted fare’’ 

for 24 hours for the following reasons: 

it eliminates the carrier’s ability to sell 

these seats to another willing buyer; the 

DOT has not demonstrated a market 

failure that merits this action; a 

consumer could hold a reservation 

during the last 24 hours and then 

cancel, resulting in a seat that will never 

be sold; and this requirement would 

effectively prevent re-pricing, which 

ordinarily happens multiple times a 

day. 

Of the U.S. carriers that commented, 

US Airways does not support adoption 

of a 24-hour standard as a rigid rule. 

The carrier suggests that DOT allow 

airlines flexibility to restrict refunds in 

certain situations in order to assure that 

the largest number of potential 

passengers have access to seats. Spirit 

states this proposal is an effort to 

impose on all airlines a practice that 

was common prior to deregulation. As 

a low cost carrier, it states that almost 

all low-fare carriers require payments at 

time of booking to guarantee the fare 

and that making tickets non-refundable 

is a practice that is critical to its ability 

to keep fares low. Should a consumer 

choose to, he or she can buy refundable 

tickets at a higher price. The carrier 

states that travel agents that book via 

global distribution systems (GDS) can 

hold a reservation (space only) for 24 

hours without penalty and Spirit offers 

a 24 hour courtesy refund for bookings 

made via GDS, but no other procedure 

for refunds via travel agents can be 

accomplished due to limited GDS 

functions. In order to comply with this 

provision, Spirit states that it would 

have to substantially change its business 

model and incur large IT cost. 

Hawaiian Airlines (Hawaiian) notes 

that it has ‘‘on-demand’’ or ‘‘walk-up’’ 

flights that run on a high frequency 

basis. As proposed, this provision 

would put the carrier in the position of 

turning inventory over to passengers 

who will make several reservations for 

a flight (within a 24 hour time period) 

but will pay for only one of the 

reservations, even though Hawaiian 

must retain a seat for them on each 

flight. It notes the rule could result in 

forcing Hawaiian to oversell flights to 

protect against the loss of seats and 

revenue. The carrier suggests the 

proposal be modified to allow 

customers to hold seats for 24 hours up 

until 72 hours before the departure of 

the flight. Similar to Hawaiian, JetBlue 

suggest that the proposal be modified 

and that the ‘‘24 hour rule’’ apply not 

later than 120 hours prior to departure 

for carriers that have a no oversales 

policy. JetBlue explains that it does not 

oversell seats on its flights and it is the 

company’s policy not to issue refunds to 

passengers that cancel their reservations 

(in return for a guaranteed seat on the 

flight). It notes that the proposal would 

allow customers to hold a reservation 

without making a financial commitment 

and could cause lower load factors, 

which would threaten JetBlue’s business 

model. ASTA supports the 24 hour 

‘‘reservation hold’’ rule applying to 

travel agent bookings. 

3. Refunding the Ticket Price for Flights 

That Are Canceled or Significantly 

Delayed 

In discussing a commitment to 

provide prompt refunds, we asked for 

comments on whether we should 

require carriers to refund the ticket price 

for flights that are canceled or 

significantly delayed if the passenger 

chooses not to travel as a result of the 

travel disruption. ATA opposes 

including as a standard in the customer 

service plan a requirement that carriers 

automatically provide ticketed 

passengers holding non-refundable 

tickets a refund for flights that are 

canceled or significantly delayed. ATA 

notes that the regulatory effort to 

redefine restricted tickets as fully 

refundable even when cancellation is 

desirable due to impending weather or 

government order would impose 

obligations not present in any other 

mode of transportation. ATA adds that 

in most cases passengers on a cancelled 

flight are accommodated soon after the 

originally scheduled flight. In addition, 

ATA provides the following reasons for 

its opposition: 

Æ The cause of the delay could be out 

of the carrier’s control; 

Æ Carriers often allow free rebooking 

for significant delays or cancellation; 

Æ This is a marketplace issue; 

Æ Imposing mandatory refunds when 

a passenger chooses not to fly would 

convert all tickets in cancel or delay 

situations to fully refundable tickets; 

Æ Passengers have a choice of what 

type of ticket to buy; and 

Æ The DOT is not authorized to 

interfere in the marketplace in this 

manner. 

Of the foreign carriers and carrier 

associations that commented, AACO 

asserts that this provision intrudes in 

business practices and raises a risk that 

carriers cannot resell the seat postcancellation. NACC is also concerned 

about this proposal. Malaysia Airlines 

strongly opposes this proposal because 

delays are often beyond airlines’ control 

and carriers already make efforts to 

mitigate their impact. Similarly, Qantas 

states that cancellations may also be out 

of the carrier’s control. 

Lufthansa and Austrian state that, if 

imposed, the final rule should allow 

carriers to accommodate passengers in 

ways other than refunding the fare. 

JetStar contends that it is unfair to place 

the entire burden of costs of unforeseen 

delays and cancellations on the carriers 

and states that mandatory refunds may 

result in the operation of delayed flights 

empty or at a net loss. The carrier also 

believes that it is not unfair or deceptive 

for consumers to share some of the risk 

in return for lower priced nonrefundable tickets, provided fare rules 

are disclosed prior to purchase. 

VivaAerobus states that it is a no frills 

ultra low-fare carrier that only sells non 

refundable tickets and its policy is 

disclosed on its website so customers 

can comparatively shop prior to 

purchase. The carrier asserts that it 

never overbooks flights and contends 

that it cannot give refunds. 

Of the U.S. carriers that commented, 

US Airways notes that many of its 

tickets are fully refundable and 

consumers that purchase nonrefundable tickets are clearly informed 

of the risk. While the carrier supports 

the Department’s efforts in the NPRM to 

enhance disclosure, it does not think 

DOT should restrict options available to 

passengers or competition among 

carriers by requiring refunds of nonrefundable tickets. Spirit Air opposes 

requiring carriers to make refunds to 

passengers who choose to purchase nonrefundable tickets but decide not to fly 

because of a flight cancellation or 

significant delay. Rather, Spirit gives 

passengers the option of reaccommodation or a voucher or refund, 

or a passenger can purchase travel 

insurance. 

Of the consumers and consumer 

organizations that commented on this 

issue, Flyersrights.org thinks tickets 

should be refunded if the flight is 

cancelled or significantly delayed for 

reasons within the airline’s control. 

However, it is concerned about 

passengers who don’t receive refunds of 

taxes and fees collected by the 

government for services passengers do 

not receive due to cancelled 

reservations. Some ‘‘Regulation Room’’ 

commenters favor airlines providing full 

refunds as well as reimbursement for 

hotel rooms and meals if there is a 

significant flight delay. 

With regard to defining a ‘‘significant 

delay’’ for purposes of ticket refunds, 

ATA opposes any definition of 

‘‘significant’’ delay that would create a 

single government standard and 

eliminate a carrier’s latitude to create its 

own policies on non-refundable tickets 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23127 

that serve customer and commercial 

needs. It reiterates that the application 

of non-refundable tickets and carrier 

policies to re-accommodate passengers 

during an event beyond the carrier’s 

control is best left to the marketplace in 

a deregulated industry, which will leave 

customers with more options. Of the 

foreign carriers that commented on 

defining a ‘‘significant delay,’’ Cathay 

Pacific states the Department should 

take into account the length of delay, 

length of the flight and the 

circumstances. The longer the flight, 

then the greater the tolerance should be 

for the delay. TAP Portugal makes a 

similar comment and states that the 

definition should depend on the 

duration of the flight. It also notes that 

long-haul flights can make up for delays 

while in the air. Some commenters on 

‘‘Regulation Room’’ suggest that any 

delay over three hours is ‘‘significant,’’ 

while others note they are willing to let 

the Department define the term. 

4. Refunding Fees for Optional Services 

for Flights That Are Canceled 

In discussing prompt refunds, we 

specifically asked for comments on 

whether we should require, as part of 

any refund due a consumer, a refund of 

any optional fees charged a passenger in 

connection with the flight in question. 

ATA opposes including as a standard in 

the customer service plan that when a 

flight is cancelled carriers must refund 

not only the ticket price but also any 

fees for optional services that were 

charged to a passenger for that flight. 

ATA states that its members object to 

the Department’s concept that 

cancellation in itself should create a 

right to the refund of optional fees. It 

urges the Department to clarify that a 

carrier has the opportunity to 

accommodate a passenger with other 

transportation options after a 

cancellation, instead of automatically 

refunding a ticket and ancillary fees. 

ATA also asks the Department to clarify 

that the proposed customer service plan 

requirement to provide prompt refunds 

‘‘where ticket refunds are due’’ is meant 

to include only those situations where 

the passenger is unable to fly due to the 

carrier’s decision to cancel. US Airways 

supports refunding fees for optional 

services for flights that are canceled, but 

only in cases where the services in 

question are not ultimately provided 

(e.g. baggage fees, seating fees). It asks 

the Department to clarify that if the 

services are provided, refunds are not 

mandated. Among the foreign carriers 

and carrier associations that 

commented, AACO states that fees 

should not be reimbursed for the ticket 

and ancillary services that have been 

provided. Malaysia Airlines also states 

that this proposal should not require 

refunds of fees for services already 

delivered. ASTA thinks mandated 

refunds should include ‘‘optional fees’’ 

paid by a passenger. 

5. Delivering Baggage on Time, 

Compensating Passengers for Expenses 

Due To Delay in Delivery of Baggage 

and Refunding Baggage Fees 

Of the foreign air carriers and 

industry groups that commented, AACO 

states that the Department needs to 

define what ‘‘on time’’ delivery of 

baggage means and opposes any 

requirement that airlines bear the sole 

responsibility for areas of business that 

other parties have control over (e.g. bags 

may be handled by airport or TSA). Air 

Berlin notes that international baggage 

compensation is already governed by 

the Montreal Convention. South African 

Airways states that the proposal does 

not address Montreal or Warsaw and 

asks DOT to confirm that the rule does 

not apply where either Convention 

controls. Singapore Airlines offers 

similar comments. Air France and KLM 

state that the NPRM does not take into 

account vast differences between longhaul international flights and domestic 

U.S./transborder flights, and as such, 

returning bags within 24 hours may be 

impossible due to limited frequencies to 

a specific destination, absence of local 

services, and/or a passenger with a 

multi-stop and multi-country itinerary. 

Among the U.S. industry groups and 

air carriers, US Airways believes that, 

before advancing new proposals in this 

area, DOT should articulate any 

additional facts warranting action 

beyond steps that the Department has 

already taken. It asserts that it is neither 

possible nor desirable to set a uniform 

maximum time for delivery of delayed 

bags or to impose remedies for failure to 

make delivery within a time frame 

because there are too many variables 

involved, and asks that the Department 

seek more input from stakeholders 

involved. Spirit Airlines notes that Part 

254 already requires airlines to 

compensate passengers and airlines 

have incentives to locate and return 

bags. It also states that ‘‘every reasonable 

effort’’ to return bags is a vague 

standard, and points out that there is no 

evidence that the current rules are 

inadequate or passengers are being 

treated unfairly or with deception. 

ATA notes that its members oppose 

including as a standard in the customer 

service plan that carriers reimburse 

passengers the fee charged to transport 

a bag if that bag is lost or not timely 

delivered. ATA states that bag fees are 

a competitive issue and whether a 

carrier chooses to refund a fee in all 

instances is a matter the marketplace 

should determine. Spirit also opposes 

such a requirement although it notes 

that its policy is to refund fees when 

there is a delay in delivery. 

Flyersright.org states that fees should be 

refunded if the bag is not delivered on 

the same flight or an earlier one. 

6. Notifying Passengers of Past Delays 

and Cancellations Prior to Ticket 

Purchase 

We already require the reporting 

carriers (i.e., largest U.S. carriers) to 

provide delay and cancellation 

information on their websites and upon 

request provide consumers on-time 

performance information during oral 

reservations. We asked for comment on 

whether all carriers required to have a 

customer service plan should be 

required to disclose past delays and 

cancellations of flights to consumers 

before the latter purchase a ticket. Many 

carriers oppose having a customer 

service commitment on disclosure to 

passengers of past delays or 

cancellations of particular flights before 

ticket purchase and do not see the need 

for it. They assert that past performance 

is not necessarily indicative of future 

performance. Swiss International also 

states that, if imposed, the requirement 

to disclose past delay and cancellation 

information should not apply to 

reservations agents via telephone 

because foreign carriers utilize call 

centers that often work with multiple 

carriers and the proposal is not feasible. 

Cathay Pacific does not support 

mandatory disclosure of past delays and 

cancellations before ticket purchase for 

international flights that have limited 

operations, but notes that for domestic 

services operated more frequently there 

may be value. ATA members oppose 

additional information notices regarding 

past flight delays or cancellations before 

purchase of a ticket, as the Department 

has recently adopted new flight 

information requirements and in 

accordance with those rules, the public 

will have access to information on flight 

delays, cancellations, and flights 30 

minutes late more than 50% of the time 

before purchase on the largest U.S. 

carriers’ websites. Of the U.S. carrier 

commenters, US Airways notes, similar 

to ATA, that this information is 

available on the carrier’s website and 

that is sufficient to provide consumers 

with information. It also asserts that 

historic data is unreliable, the current 

rule is new and more time is needed to 

see how effective it is prior to initiating 

new rules, and DOT already decided 

further disclosures were not required. 


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23128 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

7. Other Customer Service Provisions 

With regard to the customer service 

requirement to notify consumers of 

itinerary changes in a timely manner, 

British Airways expressed support for 

this provision, but thinks it should be 

limited to passengers for which the 

carrier has reliable contact information. 

In situations where a passenger books 

his/her ticket through a travel agent, 

British Airways states that the travel 

agent and not the carrier should be held 

responsible for notifying the passenger 

of any itinerary changes. With respect to 

disclosing aircraft configuration, among 

other things, to consumers on the selling 

carrier’s website and upon request from 

the selling carrier’s telephone 

reservations staff, Singapore Airlines 

contends that there is no reason for its 

telephone reservations staff to provide 

this information as its customers can 

find this information on the carrier’s 

website. With regard to responding to 

consumer complaints, Air Berlin is 

concerned that as drafted the proposed 

definition would obligate a carrier to 

react to complaints from nonpassengers. 

As for the requirement to ensure 

‘‘good customer service’’ from codeshare partners, a number of carriers and 

carrier associations expressed concerns 

with the definition of ‘‘ensuring good 

customer service’’ as it relates to codeshare partners and claim that they 

cannot be held responsible for codeshare partners’ actions. More 

specifically, NACC contends that the 

provision to have ‘‘comparable service 

plans’’ could be an extraterritorial 

application of law if applied to more 

than flight segments to or from a U.S. 

airport. It states that the requirement to 

have comparable service is too 

prescriptive and is an unwarranted 

interference in commercial 

relationships, and may discourage such 

arrangements, leading to less flexibility 

and network connectivity. NACC also 

expresses concerns that aligning 

customer service plans with code-share 

partners may raise anti-trust issues. 

JetStar does not support requiring codeshare participants to adopt each other’s 

customer service plans or align their 

service levels and states that this is an 

issue of competition best left to the 

marketplace. It also notes that the 

marketing carrier has the primary 

relationship with the consumer. US 

Airways states that DOT should not 

adopt rules that marketing carriers are 

responsible for violations by operating 

carriers and says that marketing carriers 

cannot control the application of 

uniform standards of all operating 

carriers with which they work. 

DOT Response: Having fully 

considered the comments, the 

Department has decided to adopt a final 

rule largely along the lines set forth in 

the NPRM, with some clarifications to 

address comments received about 

extraterritorial application of U.S. law 

and the appropriateness of individual 

customer service commitments. In 

adopting this approach, we believe that 

our action strikes a proper balance 

between ensuring that the traveling 

public is provided an adequate level of 

service and is not subjected to unfair or 

deceptive practices, while ensuring the 

marketplace governs to the extent 

possible. We also view our approach as 

striking the proper balance between 

protecting consumers on nearly all 

flights to and from the United States by 

requiring not just U.S. carriers but also 

foreign carriers to adopt and adhere to 

customer service plans, while ensuring 

that these requirements do not involve 

an extraterritorial application of U.S. 

law by limiting their application to 

foreign carriers to flights to and from the 

U.S., sales made within the U.S., and to 

the conduct of foreign carriers on U.S. 

soil. 

Under the final rule, foreign carriers 

are required to address the same 

subjects in their customer service plan 

as U.S. carriers. The final rule also 

establishes minimum standards for the 

customer service plans of both U.S. and 

foreign carriers. In making this decision, 

we note that carriers are already 

required to address a number of the 

subjects and comply with the minimum 

standards imposed for these subjects 

through existing requirements [e.g., 14 

CFR part 250, Part 254 (for U.S. 

carriers), and Part 382] or requirements 

imposed by other sections of this rule 

(e.g., 14 CFR 259.4, 259.7, and 259.8). 

Additionally, based on the comments 

received, many carriers already address 

many of the requirements in the 

customer service plans and, in some 

cases, their customer service 

commitment is more stringent than 

those we are adopting. Consequently, 

we are not persuaded that it would be 

unduly burdensome for carriers to adopt 

and adhere to these standards. 

Commenters have convinced us that it 

is not appropriate to require U.S. or 

foreign air carriers to include in their 

customer service plans a commitment to 

ensure good customer service from their 

code-share partners by making certain 

that code-share partners have 

comparable customer service plans or 

provide comparable customer service 

levels. We agree with commenters that 

the requirement for code-share partners 

to have comparable service may 

unnecessarily restrict the marketplace 

and may unduly discourage codesharing arrangements. We have also 

decided against requiring covered 

carriers to include in their customer 

service plans an assurance that they will 

notify consumers of past delays and 

cancellations. We are persuaded that the 

current availability of data about past 

delays and cancellations provided by 

the largest U.S. carriers on their 

websites as a result of action of our 

recent consumer rulemaking is 

sufficient and additional requirements 

in this area would not materially benefit 

consumers. 

While, as noted above, the 

Department has decided to establish 

minimum standards for the customer 

service plans of both U.S. and foreign 

carriers, we are modifying or clarifying 

a few of these standards based on 

comments received. For example, we 

are clarifying, as requested by U.S. and 

foreign carriers and associations, that 

the requirement to compensate 

passengers for reasonable expenses that 

result due to delay in baggage delivery 

comports with 14 CFR part 254 for 

domestic transportation and applicable 

international agreements for 

international transportation. We are also 

adding as a standard that carriers must 

reimburse passengers for any fee 

charged to transport a bag if the bag is 

lost. We have decided against requiring 

carriers to reimburse passengers for any 

fee charged to transport a bag that is not 

timely delivered. Arguably, as is the 

case with transporting passengers 

themselves, while delay in receiving 

baggage may be inconvenient, once the 

carrier delivers a bag the service has 

been performed. Consumers may, of 

course, seek reimbursement for damages 

caused by delay in the delivery of their 

baggage by filing a claim with the airline 

or, if dissatisfied with the airline’s 

resolution of the matter, with an 

appropriate civil court. 

With regard to carriers’ obligation to 

notify passengers of known delays, 

cancellations and diversions, we specify 

that the minimum standard required to 

comply with this obligation is met 

through compliance with a requirement 

imposed elsewhere in this final rule, 

i.e., 14 CFR 259.8. Under section 259.8, 

we explain that the obligation to notify 

passengers of delays applies only to 

delays of 30 minutes or more and that 

the carrier has the obligation to inform 

passengers of such delays, cancellations 

and diversions within 30 minutes of the 

carrier becoming aware of a change in 

the status of a flight. We also explain 

that carriers must inform consumers of 

cancellations and delays of 30 minutes 

or more and diversions in the boarding 

gate area at U.S. airports, on board 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23129 

aircraft, via a carrier’s telephone 

reservation system and on its website, 

and through whatever means made 

available by the carrier for passengers 

who subscribe to the carrier’s flight 

status notification services. 

With respect to providing prompt 

refunds, we conclude that the obligation 

to provide such refunds applies not only 

to refunding the basic price of a ticket 

but also to refunding optional fees 

charged to a passenger for services that 

the passenger is unable to use due to an 

oversale situation or a flight 

cancellation. For example, if a passenger 

pays for premium economy seating, but 

his flight is canceled or oversold and 

that seating is not available on the flight 

that he/she has agreed to be re-rerouted 

on, then the carrier must promptly 

refund the passenger the fee paid for the 

premium seating. In adopting this 

requirement, the Department believes it 

is unfair for a carrier to refuse to provide 

a refund to a passenger of fees paid for 

services not provided through no fault 

of the passenger. 

We continue to believe that there are 

circumstances in which passengers 

would be due a refund, including a 

refund of non-refundable tickets and 

optional fees associated with those 

tickets due to a significant flight delay. 

However, we have been persuaded by 

industry commenters that the 

Department should not adopt a strict 

standard of what constitutes a 

significant delay as such a delay is 

difficult to define. We agree with the 

contention of carriers and carrier 

associations that the definition of a 

significant delay depends on a wide 

variety of factors such as the length of 

the delay, length of the flight and the 

passenger’s circumstances. The 

Department’s Aviation Enforcement 

Office will continue to monitor how 

carriers apply their non-refundability 

provision in the event of a significant 

change in scheduled departure or arrival 

time, and will determine on a case by 

case basis based on the facts and 

circumstances of the delay whether a 

failure to provide a refund in response 

to such a delay is an unfair and 

deceptive practice. 

We reject some carriers’ and carrier 

associations’ assertions that carriers are 

not required to refund a passenger’s fare 

when a flight is cancelled if the carrier 

can accommodate the passenger with 

other transportation options after the 

cancellation. We find it to be manifestly 

unfair for a carrier to fail to provide the 

transportation contracted for and then to 

refuse to provide a refund if the 

passenger finds the offered rerouting 

unacceptable (e.g., greatly delayed or 

otherwise inconvenient) and he or she 

no longer wishes to travel. Since at least 

the time of an Industry Letter of July 15, 

1996 (see http://airconsumer.dot.gov/ 

rules/guidance) the Department’s 

Aviation Enforcement Office has 

advised carriers that refusing to refund 

a non-refundable fare when a flight is 

canceled and the passenger wishes to 

cancel is a violation of 49 U.S.C. 41712 

(unfair or deceptive practices) and 

would subject a carrier to enforcement 

action. 

We also have determined to modify 

the standard regarding the availability of 

the lowest fare from what was proposed 

in the NPRM. In the NPRM, we 

proposed that a carrier offer the lowest 

fare available on the carrier’s website, at 

the ticket counter, or when a customer 

calls the carrier’s reservation center to 

inquire about a fare or to make a 

reservation. Having taken into 

consideration the comments received 

about how this requirement could 

unduly interfere with airline business 

models by requiring airlines offer to a 

consumer shopping via one point-ofsale the lowest fare available via any 

channel, we are modifying this 

provision to require carriers to disclose 

to consumers who contact the carrier 

through any of these mediums that a 

lower fare may be offered by the carrier 

through another channel (for example, 

the carrier must reveal via its telephone 

reservation service that a lower fare may 

be available on the carrier’s website if 

that is the case). Of course, wherever the 

carrier offers its lowest fare, the carrier 

should not state that the lowest fare may 

be available elsewhere as such a 

statement would likely confuse 

consumers and could result in increased 

search time by consumers for a 

nonexistent lower fare. In sum, we are 

not requiring carrier personnel to offer 

the lowest fare available via whatever 

sales channel a consumer chooses to 

use, but to inform all of its customers 

and prospective customers that a lower 

fare may be available elsewhere in the 

carrier’s systems in order to give the 

consumer the opportunity to locate a 

lower fare offered by that carrier. 

We have also decided to modify the 

customer service proposal which would 

require carriers to allow 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. We agree with 

commenters who expressed concerns 

that allowing consumers to hold a seat 

without payment for twenty-four hours 

could result in loss of sales and revenue 

by carriers and prevent other passengers 

from purchasing the seat if the seat is 

not released in a timely manner prior to 

the flight. We find persuasive the 

comments submitted by JetBlue and 

Hawaiian Airlines suggesting that a set 

point in time should exist after which 

carriers would no longer be required to 

hold a passenger’s reservation in order 

to give the carrier a more realistic 

opportunity to sell that seat in the final 

days before the flight departs. 

Accordingly, we are modifying this 

provision to require carriers to hold the 

reservation for twenty-four hours only if 

a consumer makes the reservation one 

week (168 hours) or more prior to a 

flight’s scheduled departure. After that 

time, a carrier is no longer required to 

hold a reservation without payment for 

any period of time. The Department 

believes that this modification strikes 

the right balance between a consumer’s 

desire to make travel plans and shop for 

a fare that meets his or her needs, and 

the carrier’s need for adequate time to 

sell seats on its flights. 

As for the remaining seven customer 

service requirements, we received very 

few comments on them and we are 

adopting them as proposed in the 

NPRM. These seven customer service 

requirements pertain to accommodating 

passengers with disabilities, meeting 

customers’ essential needs during 

lengthy tarmac delays, handling 

‘‘bumped’’ passengers with fairness and 

consistency, disclosing cancellation 

policies, frequent flyer rules, aircraft 

configuration, and lavatory availability, 

notifying consumers of changes in their 

travel itineraries, ensuring 

responsiveness to customer complaints, 

and identifying the services the carrier 

provides to mitigate passenger 

inconveniences resulting from flight 

cancellations and misconnections. In 

adopting these customer service 

commitments as proposed, we note our 

disagreement with comments stating 

that the requirement for carriers to 

notify consumers of itinerary changes 

should be limited to passengers who 

book their tickets directly with the 

carrier and not apply to passengers who 

book their tickets through a travel agent. 

A passenger has a right to know and 

benefit from knowing about changes in 

his/her itinerary whether that person 

purchased the ticket directly from a 

carrier or from a travel agent. We also 

disagree with comments that the 

disclosure of aircraft configuration be 

limited to the selling carrier’s website. 

While most consumers will have access 

to the Internet and be able to obtain this 

information from carriers’ websites, we 

also see benefit in requiring that aircraft 

configuration information be made 

available upon request from the selling 

carrier’s telephone reservations staff, 

particularly for those passengers who do 


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23130 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

not have access to the Internet or are not 

familiar with how to use it. With regard 

to the concern expressed by a carrier 

that it may be required to respond to 

complaints from non-passengers, we 

want to point out that ‘‘complaint’’ is 

defined in section 259.7 as a specific 

written expression of dissatisfaction 

concerning a difficulty or problem 

which a person experienced when using 

or attempting to use an airline’s 

services. 

C. Self-Auditing of Plan 

The NPRM: The NPRM proposed that 

foreign air carriers audit their adherence 

to their customer service plan annually 

and make the results of their audits 

available for the Department’s review 

upon request for two years following the 

audit completion date. U.S. carriers are 

already required to self-audit their plans 

and to make the audit results available 

for the Department’s review upon 

request for two years. 

Comments: Of the foreign carriers that 

commented, TAP Portugal opposes selfauditing and contends that it is too 

burdensome to audit a dozen service 

standards, some of which involve 

hundreds of activities performed on a 

daily basis. Similarly, British Airways 

opposes self-auditing customer service 

plans on the basis that the plans cover 

many services and involve different 

departments that are responsible for 

these services, and as such would 

necessitate coordination at significant 

additional costs. Qatar Airways states 

that global surveys regarding customer 

service standards already exist and 

audits specific to a limited number of 

international routes will not add value 

to consumers. Swiss International and 

Air Tahiti note that there is no guidance 

as to what a ‘‘self-audit’’ requires. 

A business travel organization 

supports requiring audits and states that 

its travel managers can provide their 

clients better protection on flights to 

and from the U.S. if they have this 

information available. Of the consumer 

groups, Flyersrights.org supports 

requiring foreign air carriers to audit 

customer service plans and thinks 

failure to adopt a plan, adhere to it, and 

make audit results available should be 

considered an unfair and deceptive 

practice. 

DOT Response: We have decided to 

adopt the self-auditing requirements as 

proposed in the NPRM. The final rule 

requires each carrier to audit its own 

adherence to its plan annually and to 

make the results of each audit available 

for the Department’s review upon 

request for two years afterwards. The 

Department believes that a system for 

verifying compliance with the customer 

service plans is essential. As noted in 

the first rule to enhance airline 

passenger protections, we believe that 

requiring covered carriers to audit their 

plans annually will further ensure that 

carriers will live up to their 

commitments. It will also enable an 

airline to quickly take action if it learns 

that it is not in compliance with its 

customer service plans or if it is not 

effectively implementing its plan. A 

self-audit is essentially a system for the 

carrier to verify its compliance with its 

customer service plan. We are not 

requiring that such audits be conducted 

‘‘at similar times in the year’’ or even 

that there be a single unified audit of all 

the subjects covered in the customer 

service plans, in order to allow each 

airline the flexibility to design an audit 

program that fits its particular 

operational environment. 

4. Contracts of Carriage 

The NPRM: This NPRM was the 

second time that the Department 

proposed requirements regarding 

incorporation of tarmac delay 

contingency plans and customer service 

plans into carriers’ contracts of carriage. 

In December 2008, the Department 

published in the Federal Register an 

NPRM proposing to require U.S. carriers 

to incorporate their tarmac delay 

contingency plans and customer service 

plans in their contracts of carriage, and 

make their contracts of carriage 

available on their websites. In December 

2009, the Department issued a final rule 

where it decided not to require such 

incorporation. Instead, the Department 

strongly encouraged carriers to 

voluntarily incorporate the terms of 

their contingency plans and customer 

service plans in their contracts of 

carriage and required the carriers to post 

their plans and their contracts of 

carriage on their website. At that time, 

the Department also indicated its 

intention to address this matter again 

through rulemaking. 

In this proceeding, the Department 

again proposed to require carriers to 

include their tarmac delay contingency 

plans and customer service plans in 

their contracts of carriage, and for 

foreign air carriers that have a website 

to post their entire contract of carriage 

on their website in an easily accessible 

form. U.S. carriers are already required 

to post their contract of carriage on their 

website under the existing rule. 

The Department again sought 

comment on whether incorporation of 

the contingency plans and customer 

service plans in the contract of carriage 

would give consumers notice of what 

might happen in the event of a long 

delay on the tarmac and of passengers’ 

rights under carriers’ customer service 

plans. As in the past, we asked 

commenters to address whether and to 

what extent requiring the incorporation 

of contingency plans in carriers’ 

contracts of carriage might weaken 

existing plans: that is, would the 

requirement encourage carriers to 

exclude certain key terms from their 

plans in order to avoid compromising 

their flexibility to deal with 

circumstances that can be both complex 

and unpredictable. 

Comments: RAA questions whether 

DOT has authority to impose a 

requirement for carriers to incorporate 

their tarmac delay contingency plans or 

customer service plans into their 

contracts of carriage. If the Department 

nevertheless adopts such a requirement, 

RAA states that it should not apply to 

regional carriers, as most regional 

passengers are subject to the ticketing 

carrier’s contract of carriage. 

ATA contends that the Department 

would be exceeding its regulatory 

authority if it were to require that the 

contingency plans and customer service 

plans be incorporated into carriers’ 

contracts of carriage as a means of 

creating a private right of action. ATA 

asserts that Congress did not create a 

private right of action for violations of 

49 U.S.C. 41712 and the Department 

cannot substitute a different 

enforcement process than the one 

Congress intended. ATA also states that 

the Department has failed to 

demonstrate how a carrier’s failure to 

incorporate either its tarmac delay 

contingency plan or its customer service 

plan in its contract of carriage could be 

viewed as an unfair and deceptive 

practice under 49 U.S.C. 41712 . ATA 

points out that if the Department is 

interested in ensuring that passengers 

are more aware of their rights, then it 

should be sufficient that both the 

contingency plan and customer service 

plan are available on carrier websites. 

U.S. carriers that commented 

generally support ATA. For example, 

US Airways, like ATA, states that there 

is no reason to require incorporation of 

the contingency plans or customer 

service plans as U.S. carriers already 

post these plans on their websites. US 

Airways speculates that only a small 

percentage of visitors to its website 

review the page containing the Contract 

of Carriage, suggesting that the inclusion 

of the plans in carriers’ contracts of 

carriage would not increase passenger 

awareness of their rights. US Airways as 

well as other carriers are particularly 

concerned that this requirement would 

create a private right of action and 

subject airlines to a multitude of 

lawsuits in a variety of jurisdictions. 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23131 

Similar to the U.S. carriers and carrier 

association, foreign carriers and carrier 

associations strongly oppose the 

proposed requirement to incorporate 

plans into carriers’ contracts of carriage. 

IATA asserts that the DOT exceeds its 

authority in proposing this requirement 

and that it would substantially increase 

airlines’ legal costs. IATA also states 

that international airlines cannot be 

expected to adopt multiple contracts of 

carriage for each territory into and out 

of which they fly and that contracts of 

carriage are contracts between a carrier 

and all of its passengers, not just those 

that fly into the U.S. AEA generally 

supports and agrees with IATA. IACA 

states that placing contingency and 

customer service plans in a contract of 

carriage will make the contracts 

unreadable, as they are already detailed 

and will result in too much information 

for the consumer. IACA also states, 

similar to IATA, that for many airlines 

U.S. flights make up only a small share 

of the total flights, so it is inappropriate 

to incorporate information that is valid 

only for U.S. flights. IACA also notes 

that EU regulations already require 

carriers to provide customers with 

details of their rights, so the proposal is 

superfluous and counterproductive. 

IACA suggests that foreign carriers be 

exempted from this requirement. 

The foreign air carriers that 

commented generally support IATA. 

Many carriers note that rules already 

exist in their countries regarding 

customer service issues. For example, 

Virgin Atlantic notes that EC Reg 261/ 

2004 already has passenger rights 

requirements covering delays and 

oversales. Others raised concerns about 

extraterritoriality. More specifically, JAL 

and TAP Portugal note concerns about 

the proposal as their Conditions of 

Carriage are reviewed and approved by 

their homeland regulator and any 

changes would need to be approved by 

those bodies. Qatar Airways states that 

there should be global harmonization of 

different government regulatory 

standards before such plans are 

incorporated in each carrier’s Contract 

of Carriage. Various carriers also 

expressed fears about the litigation risks 

that would exist. South African Airways 

notes that mandating terms of an 

airline’s contract of carriage may 

improperly create a private right of 

action for minor lapses in service. Air 

France speculates that in order to avoid 

legal risks carriers may weaken plans if 

incorporation into carrier’s contract of 

carriage is required. Air France as well 

as many other carriers who object to the 

proposal assert, similar to IATA, that 

the Department does not have authority 

to impose this requirement. In a similar 

fashion, Lufthansa strongly opposes the 

proposal and fully supports ATA’s and 

IATA’s comments, as do Alitalia, British 

Airways and various other foreign 

carriers. 

While most foreign air carriers are 

opposed to including the plans in their 

contract of carriage, a number of them 

did support the idea of placing the 

contingency plans and customer service 

plans on their respective websites or 

state that they have already done so. For 

example, Air France and KLM agree that 

the plans could be placed on a website. 

Virgin Atlantic states that its Conditions 

of Carriage are based on IATA standards 

and are available on its website, as does 

Qatar Airways. In addition, Virgin 

Atlantic suggests that contingency plans 

and customer service plans be provided, 

where there is a specific situation, to an 

affected passenger. South African 

Airways makes similar comments. 

Of the consumer groups that 

commented, CTA and AAPR generally 

support the proposal to include tarmac 

delay contingency plans and customer 

service plans in a carrier’s contract of 

carriage, or in the alternative on their 

websites. CTA also states that codeshare rules should be included in the 

contract of carriage. Flyersrights.org, 

and its individual members that filed 

comments, support the proposal that 

carriers place both the tarmac delay 

contingency plans and the customer 

service plans in their contracts of 

carriage. The organization warns, 

however, that requiring carriers to 

incorporate plans into their contracts of 

carriage may result in carriers excluding 

key terms from the plan so as to make 

the plans unenforceable and asks that 

the Department review and monitor the 

plans. 

DOT Response: Having considered all 

the comments, the Department has 

decided not to adopt the proposal 

requiring U.S. and foreign carriers to 

include their contingency plans and 

customer service plans in their contracts 

of carriage. In making this decision, we 

note that some carriers have voluntarily 

put not only their customer service 

plans but also their tarmac delay 

contingency plans into their contracts of 

carriage since we issued the first rule to 

enhance airline passenger protections. 

We will continue to monitor whether 

other carriers choose to do so, as well 

as determine if we need to revisit this 

issue in the future should a problem 

exist. 

Further, with regard to the need to 

incorporate customer service plans into 

the contract of carriage, the Department 

believes that our decision to set 

minimum standards for the provisions 

in a carrier’s customer service plan gives 

consumers more certainty as to the 

quality and types of services they can 

expect. In addition, these minimum 

standards may make it easier for a 

consumer to demonstrate to the 

Department’s Aviation Enforcement 

Office that a carrier has violated the law 

when that carrier does not meet its 

standard of service commitment as the 

requirements of the customer service 

plans are more exacting than in the past. 

If the minimum standards are not met 

by a given carrier, the Department can 

determine if enforcement action is 

appropriate in a given situation. 

Although we are not requiring tarmac 

delay contingency plans and customer 

service plans to be incorporated in 

contracts of carriage, the Department 

has decided to require foreign carriers to 

post their tarmac delay contingency 

plans, customer service plans and 

contracts of carriage on their websites. 

The December 2009 rule to enhance 

airline passenger protections already 

requires U.S. carriers to post these plans 

on their websites. The purpose of this 

requirement is to ensure that interested 

consumers can easily review an airline’s 

contract of carriage, customer service 

plan, and/or tarmac delay contingency 

plan. By having the ability to review 

these documents, consumers can find 

out an airline’s stated obligations to 

passengers and be better informed about 

their rights and a carrier’s 

responsibilities before purchasing 

tickets and whenever problems occur 

(for example, the passenger’s rights and 

carrier’s responsibilities if an airline 

delays or cancels a flight or loses a bag). 

The Department believes that having the 

plans and contracts of carriage on 

websites will lead to a better informed 

consumer. The Department’s Aviation 

Enforcement Office will periodically 

monitor carriers’ websites to ensure that 

the required information is available. 

5. Response to Consumer Problems 

A. Designated Advocates for Passengers’ 

Interests 

The NPRM: The NPRM proposed to 

require foreign air carriers that operate 

scheduled passenger service to and from 

the United States using any aircraft with 

30 or more seats to designate an 

employee who will be responsible for 

monitoring the effects of flight delays, 

flight cancellations and lengthy tarmac 

delays on passengers. We proposed that 

this employee have input into decisions 

about which flights to cancel and which 

will be delayed the longest. U.S. carriers 

must comply with this requirement 

under the existing rules. 


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Comments: IATA, IACA, and AEA 

generally state that the proposal to 

designate an advocate for passenger 

interests intervenes too much in an 

airline’s operation as airlines organize 

themselves differently to monitor 

operational issues and address customer 

concerns. Lufthansa opposes this 

proposal and comments that the 

decision to designate an employee to 

monitor the effects of irregular 

operations should be left to the 

discretion of each carrier. Similarly, Air 

Tahiti states that requiring dedicated 

staff to monitor delays improperly 

interferes with internal airline 

operations. JAL does not think it makes 

sense to designate an employee for a 

non-problem and asks for additional 

information and clarification regarding 

the employee’s responsibilities. Swiss 

International states that this proposal is 

a substantial burden and believes that 

one individual may not be effective 

because each airport has its own issues, 

so splitting these tasks makes more 

sense and would result in better data. 

The carrier urges the Department to 

require each airport to designate an 

employee responsible for monitoring 

delays and coordinate with carriers to 

reduce delays. Air France and KLM 

oppose this requirement and explain 

that it has limited resources in the U.S. 

to fulfill any such new role and 

contends that this requirement would 

impose substantial costs on foreign 

carriers. Air France and KLM state that, 

if this proposal is implemented, the 

Department should permit foreign 

carriers to comply by having an off-site 

employee in a specific department who 

is accessible by a specific telephone 

number assist in such matters, and by 

providing this advocacy only in the 

principal language of the carrier’s 

homeland (French for Air France, Dutch 

for KLM) and in English. Of the travel 

agent interests that commented, ASTA 

generally supports the proposal to have 

a designated employee, but does not 

believe the employee should have to be 

available in the U.S. as long as he or she 

is accessible. We received a few 

comments from consumers and 

consumer groups, all of whom generally 

support the proposals. 

DOT Response: The final rule requires 

foreign air carriers operating scheduled 

passenger service to and from the U.S. 

using any aircraft with 30 or more 

passenger seats to designate an 

employee to monitor the effects of flight 

delays, flight cancellations, and lengthy 

tarmac delays on passengers and to have 

input into decisions on which flights to 

cancel and which will be delayed the 

longest. It applies to all of a covered 

foreign carrier’s scheduled flights to and 

from the United States, including those 

involving aircraft with fewer than 30 

seats if a carrier operates any aircraft 

with 30 or more passenger seats to/from 

the U.S. 

We are not persuaded by commenters 

that the Department is excessively 

intervening in an airline’s operation by 

requiring an employee or employees be 

designated to monitor performance of 

flights and that these employees have 

input into decisions such as which 

flights are cancelled or subject to the 

longest delays. Additionally, we have 

taken note of foreign carriers’ concerns 

regarding the potential lack of carrier 

personnel located in the United States 

or at specific airports where the carrier 

does not have a large presence. We are 

not requiring that the employees 

responsible for monitoring irregular 

flight operations be located at a U.S. 

airport. As has been permitted for 

covered U.S. carriers, foreign carriers 

can determine where its employees are 

located, as long as the designated 

employees can monitor flight delays and 

cancellations for the carriers’ flights to 

and from the U.S. throughout the 

carriers’ system and have input into 

decisions regarding how to best meet 

the needs of passengers affected by any 

irregular operations. This requirement is 

intended to ensure that passenger 

interests are considered by carriers 

when decisions on irregular flight 

operations are made. We are not 

requiring that the designated employees 

make themselves available to speak with 

airport personnel or passengers and 

certainly are not prescribing the 

language to be used by the designated 

airline employees. By adopting this 

performance standard, the Department 

leaves it up to each carrier to determine 

the most efficient and effective method 

to monitor the effects of flight delays 

and cancellations (for example, 

designating one or more individuals at 

its systems operations center). This rule 

does not require carriers to hire new 

employees to comply with this 

provision as these responsibilities may 

be borne by current employees in 

addition to their other responsibilities. 

B. Informing Consumers How To 

Complain 

The NPRM: Under the proposed rule, 

a foreign air carrier that operates 

scheduled passenger service to and from 

the U.S. using any aircraft with 30 or 

more passenger seats would be required 

to inform consumers how to file a 

complaint with the carrier (name of 

department, address, and email or webmail address) on its website, on all 

e-ticket confirmations, and, upon 

request, at each ticket counter and gate. 

Comments: As with other sections of 

this proposal, carrier association 

commenters, such IATA, IACA, and 

AEA, generally state that the proposal to 

inform consumers how to complain 

unnecessarily and excessively 

intervenes in an airline’s operations. 

Many foreign carriers concur. For 

example, Qantas and JetStar state that if 

a carrier has given a consumer 

reasonable access for lodging 

complaints, there is no need for the 

Department to mandate a particular 

form of communication. Qatar Airways, 

among others, notes that foreign carriers 

already offer passengers a number of 

means by which to file a complaint. 

Foreign carriers and carrier 

associations also oppose the 

requirement to inform consumers how 

to complain as an extraterritorial 

application of U.S. law. IATA asserts 

that this requirement would violate the 

Chicago Convention and U.S. Open 

Skies Agreement as it would necessitate 

foreign carriers modifying procedures 

and operations that take place outside 

the U.S. to meet U.S. regulatory 

requirements. For example, IATA states 

that this requirement would mandate 

that foreign carriers modify their home 

websites and foreign-issued tickets to 

include information mandated by the 

Department. 

NBTA generally supports the 

provisions, as do Consumers Union and 

AAPR. Flyersrights.org, in addition to 

supporting a requirement for foreign 

airlines to make the mailing address and 

email or web address for filing a 

complaint available on their website 

and e-ticket confirmations, thinks there 

should be contact information for the 

Department’s Aviation Consumer 

Protection Division on e-ticket 

confirmations and boarding passes. 

DOT Response: The Department is 

extending this provision to foreign 

carriers as proposed in the NPRM, with 

some clarifications to address concerns 

about extraterritoriality. First, we are 

requiring foreign carriers to inform 

consumers how to complain, upon 

request, at each ticket counter and 

boarding gate at U.S. airports. We are 

not seeking to govern the activities of 

foreign carriers outside the United 

States. U.S. carriers are still required to 

inform consumers how to complain 

upon request at all ticket counters and 

boarding gates staffed by the carrier or 

a contractor of the carrier, whether or 

not those locations are within the U.S. 

We are also specifying that the 

requirement to make information about 

how to file a complaint available on a 

carrier’s website applies to a foreign 


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carrier only if its website markets to 

U.S. consumers. Foreign carriers would 

not need to modify their home websites 

to ensure that they are complying with 

this requirement unless those sites 

market to U.S. consumers. We expect 

foreign carriers to follow U.S. law in the 

U.S. when marketing within the U.S. 

and when flights are entering, operating 

within or departing from the U.S. 

Also, while we acknowledge foreign 

commenters’ concerns with the 

Department mandating avenues by 

which a consumer can file a complaint, 

we believe it is important that 

consumers have more than one avenue 

for registering their service-related 

concerns. As commenters note, since 

some foreign carriers already provide a 

number of means by which to file a 

complaint, the requirements of this rule 

should not prove overly burdensome. 

As with the December 2009 rule to 

enhance airline passenger protections, 

this rule requires carriers to only 

provide passengers their email or webform address and their mailing address. 

We did not propose and are not now 

requiring that carriers provide 

passengers a telephone number for 

complaint calls because of concerns that 

telephone ‘‘talk time’’ would impose a 

high cost on airlines when there are 

other more-efficient and effective 

complaint processing methods 

available. Of course, in addition to 

accepting complaints through the 

Internet and postal mail, airlines are free 

to voluntarily accept customer 

complaints through other methods such 

as telephone. We also point out that, as 

is currently allowed for U.S. carriers, a 

foreign carrier can comply with the 

requirement to provide contact 

information on an e-ticket confirmation 

or itinerary by including a link to a 

website containing the complaint 

information in lieu of displaying the 

entire text of the contact information, 

which will take up even less space on 

an e-ticket and reduce cost. It is our 

opinion that requiring complaint 

contact information on e-tickets and, 

upon request, at each ticket counter and 

boarding gate instead of just on websites 

will be beneficial to consumers since a 

large number of passengers do not have 

access to the Internet while traveling 

and would not be able to access the 

complaint contact information through 

the airlines’ websites. 

We are not adopting the suggestion 

that carriers be required to provide 

consumers information as a general 

matter on how to file complaints with 

DOT. That suggestion is beyond the 

scope of the notice and is not wise since 

it might direct consumers away from 

contacting carriers that are in the best 

position to quickly resolve problems. 

C. Responding to Consumer Complaints 

The NPRM: Under the NPRM, a 

foreign air carrier that operates 

scheduled passenger service to and from 

the U.S. using any aircraft with 30 or 

more passenger seats would be required 

to acknowledge receipt of a complaint 

within 30 days of receiving it and send 

a substantive response to each 

complainant within 60 days of receiving 

it. We proposed to define a complaint as 

a specific written expression of 

dissatisfaction concerning a difficulty or 

problem which the person experienced 

when using or attempting to use an 

airline’s services. We solicited 

comments on any operational 

difficulties U.S. and foreign airlines may 

face in responding to such complaints 

when received through social 

networking mediums such as Facebook 

and Twitter. 

Comments: We received a number of 

comments on this issue from foreign 

carriers and carrier associations, some of 

whom supported this requirement. 

IATA, IACA, AEA, and many foreign 

carriers generally state that the proposal 

to respond to consumer complaints 

within a set timeframe excessively 

intervenes into an airline’s business 

practices and disregards procedures 

carriers already have in place to respond 

to consumer complaints. They also 

contend that the Department has not 

shown that this type of requirement is 

needed. More specifically, British 

Airways notes that the timeline is 

unnecessary and overly burdensome 

and would force carriers to divert 

personnel to unnecessary administrative 

and recordkeeping functions. Qantas 

states that it does not see the need to 

single out the airline industry for 

mandatory requirements related to 

customer response times and that the 

carrier already aims to provide 

substantive responses in less than 60 

days. IATA suggests that, if adopted, 

any final rule should include a 

provision allowing an airline to stop the 

clock by providing a provisional 

response. Lufthansa makes a similar 

suggestion that the Department allow for 

a ‘‘provisional’’ response to a customer’s 

concerns within the 60 day time frame 

in the event it cannot provide a full 

detailed response. A number of carriers 

such as Virgin Atlantic also recommend 

that any final rule adopted include an 

exception to the time frame established 

to respond to complaints for 

extraordinary circumstances, such as 

the Icelandic volcano incident, as the 

volume of complaints resulting from 

such events requires a longer response 

time. 

Some carriers generally agree with the 

proposal or note that they respond to 

consumers in a shorter time period. For 

example, Singapore Airlines states that 

it would not oppose the Department’s 

proposal to provide a substantive 

response in 60 days if complaints are 

limited to actual customers and flights 

to or from the U.S. Japan Airlines states 

that its response time of 14 days 

surpasses the Department’s proposal 

and that it has many mediums by which 

passengers can contact it. Air France 

notes that it tries to reply to complaints 

within 28 days. Virgin Atlantic states 

that it already has a robust complaint 

handling process and generally replies 

to all written complaints within 28 days 

of receipt. Air New Zealand states that 

the suggested timeframes to respond to 

complaints are generous. 

A number of carriers expressed 

concern regarding the definition of a 

complaint. Swiss International states 

that complaints need to include the 

passenger’s name, mailing address or 

email address, a copy of the ticket or 

boarding pass and the applicable flight 

number. Qatar Airways generally 

supports the principles stated in the 

NPRM, but states that it should only 

have to respond to complaints from 

passengers who use its service, i.e., the 

definition of a complaint should be 

limited to a difficulty or problem which 

the person experienced when using an 

airline’s service. Similarly, South 

African Airways and Condor state the 

proposal as drafted is burdensome and 

flawed because carriers would have to 

respond in 60 days to both customers 

and anyone else that ‘‘attempted’’ to use 

their service. They also note that the 

proposal fails to give carriers any 

discretion in refusing to respond to 

repetitive or frivolous complaints. With 

regard to complaints received through 

social networking mediums, U.S. and 

foreign carriers and carrier associations 

all oppose any mandate to communicate 

to passengers through such mediums. 

They recommend that the definition of 

complaint exclude complaints sent by 

passengers to carriers’ Facebook or 

Twitter accounts. 

The consumers and consumer groups 

that commented generally support 

requiring carriers to acknowledge and 

respond to complaints within the time 

frame set forth in the NPRM. 

Flyersrights.org states that U.S. 

passengers should have an avenue to 

file a complaint with a foreign carrier 

and to expect a timely and substantive 

response. CTA states that U.S. airline 

customer service personnel should be 

responsible for handling any foreign 


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alliance partner complaint and believes 

there should be a clear way to contact 

foreign carriers through the Internet or 

by telephone number provided on the 

homepage of the airline. Very few 

consumers or consumer groups 

commented on the issue of complaints 

sent through social networking sites. Of 

those that did, AAPR states that social 

networking sites are not an appropriate 

venue for filing complaints though it 

supports the requirement for foreign 

carriers to acknowledge a complaint 

within 30 days and send a substantive 

response within 60 days, as does the 

NBTA. 

DOT Response: We have decided to 

require foreign carriers to acknowledge 

receipt of a complaint within 30 days 

and provide a substantive response to 

passengers within 60 days, as is 

currently required of U.S. carriers. We 

believe that 30 days to acknowledge a 

complaint and 60 days to provide a 

passenger with a substantive response 

allows carriers adequate time to 

investigate and respond appropriately. 

We are not convinced by arguments put 

forth by commenters that suggest 60 

days is not enough time to provide a 

substantive response. We note that more 

than one carrier suggests that 60 days is 

a reasonable amount of time in which to 

respond. 

We acknowledge and agree with 

industry commenters that it may not be 

possible in all instances to provide a 

final reply to a passenger within 60 

days. The rule speaks of a substantive 

reply, which is not necessarily a final 

reply. By substantive response, we mean 

a response that addresses the specific 

problems about which the consumer has 

complained. This type of response often 

but not always results in a resolution of 

the complaint. If a carrier is actively 

investigating a complex complaint and 

is not able to conclude the investigation 

within 60 days, it is still likely to know 

more at the 60-day point than it did 

when it acknowledged the complaint. 

The airline can update the complainant 

with all known information prior to the 

60-day mark by sending a substantive 

response, continue its investigation, and 

thereafter send the final reply later. 

Regarding carriers’ suggestions for an 

exception for complaints concerning 

unusual events such as the Icelandic 

volcano, the Department believes that 

such an exception is not necessary as 

many consumers complain about 

similar issues associated with such 

events (e.g., delays, cancellations) and 

carriers generally create form letters in 

which to respond substantively to most 

such complaints. 

As for the definition of a complaint to 

which carriers must respond, the 

Department continues to believe that it 

is important that this definition include 

not just problems which a person 

experiences when using an airline’s 

services but also problems encountered 

by a person attempting to use an 

airline’s services (for example, if he or 

she had problems while attempting to 

book or cancel a flight on the carrier’s 

website). Carriers are not required to 

respond to general complaints from 

members of the public. We are requiring 

a carrier to respond to complaints from 

individuals that had a problem when 

they used or attempted to use its 

services. As with other portions of this 

section, foreign air carriers are only 

required to respond to complaints from 

consumers that are related to a carrier’s 

services being marketed in the U.S. and 

its flight to or from the U.S. 

We are persuaded by the commenters 

that the Department should not mandate 

that U.S. and foreign carriers respond to 

complaints sent through social 

networking sites. Carriers do use such 

sites to invite the public to 

communicate with them and perhaps 

even to monitor public opinion about 

their practices. However, we can 

appreciate concerns that such sites are 

not intended to be a mechanism for 

handling individual consumer 

complaints. In recognition of these 

somewhat competing interests, the final 

rule makes it clear that U.S. and foreign 

carriers need not to respond to such 

complaints so long as (1) the carrier’s 

primary page on that social networking 

site clearly indicates that it will not 

reply to complaints filed via that 

medium, and (2) on that page the carrier 

directs the consumer to the mailing 

address, e-mail address, or website 

location for filing written complaints. 

The Department believes this approach 

takes into account the difference 

between social networking sites and the 

traditional one-on-one methods of text 

communication (e.g. a letter, email, 

printed complaint form, or Internet 

complaint form) while ensuring 

passengers know how to file a 

complaint that will result in a response 

from the carrier. 

6. Oversales 

A. Denied Boarding Compensation 

Limits, Rates, and CPI–U Adjuster 

The NPRM: We proposed to increase 

the minimum for denied boarding 

compensation (DBC) limits from the 

current amounts of $400 or $800 

depending on the length of the bumped 

passenger’s delay to $650/$1,300 to take 

into account fully the increase in the 

Consumer Price Index—All Urban 

Consumers (CPI–U) since 1978. We also 

proposed to implement an inflation 

adjuster for these minimum DBC limits. 

We sought comments on whether the 

proposed increases in the DBC limits 

and the periodic adjustment are called 

for and, if so, whether the increased 

amounts are reasonable. We asked 

whether we should completely 

eliminate the DBC limits and require 

carriers to pay DBC based on 100%/ 

200% of a passenger’s fare without 

limit, and whether the current 100%/ 

200% formula (depending again on the 

length of the bumped passenger’s delay) 

should be increased to, for example, 

200%/400% of a passenger’s fare. 

Comments: Eighteen individuals and 

consumer organizations, in addition to 

over 60 individuals who participated on 

the Regulation Room website, provided 

comments on the oversales proposals. 

The majority of these commenters 

support increasing DBC limits. Some 

commenters, however, oppose 

calculating DBC amounts based on the 

passenger’s fare, arguing that it will 

provide carriers an incentive to bump 

passengers with the lowest fare. As an 

alternative, one individual suggests that 

DBC should be based on a fixed amount. 

Another commenter suggests that DBC 

amounts should be based on the length 

of delay. 

A number of individual commenters 

go further by suggesting that the 

Department should abandon the 

oversales rule and ban oversales. These 

commenters reason that a ticket is a 

contract between a passenger and a 

carrier and that when the carrier cannot 

honor the ticket, it should run a bid or 

auction by continuously increasing the 

offer to volunteers until enough 

volunteers come forward. Most 

commenters on Regulation Room 

support eliminating DBC limits though 

a number of these commenters support 

a DBC amount based on 200%/400% of 

the passenger’s fare instead of the 

current 100%/200% of the passenger’s 

fare. 

Among the few individual 

commenters who oppose increasing 

DBC limits, one commenter questions 

whether raising DBC limits would result 

in the reduction of the number of 

passengers being bumped. Another 

commenter states that increasing DBC 

limits to $650/$1,300 would only 

benefit passengers whose fare is more 

than the current limits (i.e., $400/$800 

one way). One commenter is concerned 

about the possibility that in response to 

the raised DBC limits and amounts, 

carriers would increase the required 

check-in time for the purpose of being 

eligible for DBC. 

We also received comments on a 

variety of other issues. With respect to 


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the proposed bi-annual adjustment on 

DBC amounts based on CPI–U, 

Consumers Union as well as several 

commenters on Regulation Room 

expressed their full support for the 

proposal. FlyersRights.org suggests that 

we should declare it to be a deceptive 

practice to give boarding priority to 

passengers who checked in later but 

paid a higher fare. In addition, 

FlyersRights.org recommends that we 

ask carriers to increase offers to 

passengers solicited to volunteer. 

Nine U.S. carriers and carrier 

associations as well as 27 foreign 

carriers and carrier associations 

commented on the oversales proposals. 

ATA states that it does not oppose the 

proposed increase to the DBC limits to 

$650/$1,300 but questions the 

effectiveness of such an increase in 

reducing the number of passengers 

being involuntarily bumped. According 

to ATA, increasing DBC limits may 

provide incentives to passengers who 

would have otherwise volunteered to 

hold out, hoping to be bumped 

involuntarily. ATA opposes eliminating 

the DBC limits, contending that DBC is 

meant to compensate passengers for the 

loss of time only, because passengers 

retain the value of the fare by accepting 

alternate transportation provided by 

carriers. Delta Air Lines does not oppose 

the proposed increase of DBC limits but 

suggests that the new DBC limits should 

not be applied to airfare purchases that 

occur before the effective date of the 

final rule. On the other hand, the 

Regional Airline Association (RAA) 

opposes the increase of DBC limits to 

$650/$1,300, asserting that these 

increases far exceed the costs of most 

regional airfares. 

Southwest Airlines asserts that the 

current 100%/200% of one-way fare 

formula works well and if the 

Department worries about the impact of 

fare unbundling practices on the DBC 

value, it should require that the carriers 

refund all ancillary fees in the event of 

oversales, instead of raising the 100%/ 

200% rates to 200%/400%. RAA avers 

that the DBC limits should be 100%/ 

200% of the fare, and any adjustment to 

DBC limits should be based on fare 

changes. Spirit Airlines and Virgin 

America both oppose the increase of 

DBC limits, questioning the economic 

soundness of such increases. Virgin 

America argues that the new proposal is 

a departure from the hybrid calculation 

method that the Department established 

in 2008. Virgin America also points out 

that in 2007 the Department rejected the 

proposal to implement a CPI-based 

adjuster on the DBC limits. Spirit 

Airlines takes a similar position as 

Virgin America and further contends 

that as a result of the proposal, many 

consumers will be harmed by increased 

fares due to the windfall that the new 

DBC proposal will provide to a small 

number of passengers. 

The majority of foreign carriers and 

carrier associations oppose the proposed 

increase in the DBC limits to $650/ 

$1,300. Several commenters argue that 

increasing DBC limits will reduce the 

number of passengers who volunteer to 

be denied boarding and in turn increase 

the number of passengers who are 

involuntarily bumped, a result that is 

counter to the goal of the oversales rule. 

Some commenters contend that the 

Department has failed to provide 

evidence showing that the current DBC 

amounts are inadequate and also failed 

to recognize that air fares have 

decreased in ‘‘real’’ terms during the past 

decade. IATA and several foreign 

carriers operating long haul 

international flights to and from the U.S. 

raise the concern that passengers on 

those flights will most likely get the 

higher limit of $1,300 in an oversales 

situation due to the infrequent schedule, 

and these passengers, according the 

commenters, will get a windfall for their 

mild inconvenience. Some long haul 

carriers also insist that the Department’s 

proposal is aimed at addressing the fare 

unbundling practice by most U.S. 

carriers and these foreign carriers’ 

bundled fares would be subject to 

inequitable and discriminatory 

treatment under this proposal. IATA 

further comments that the proposed 

$1,300 DBC limit is disproportionate to 

the value of time that a passenger 

denied boarding involuntarily may lose 

due to the delay. The Air Transportation 

Association of Canada and National 

Airline Council of Canada, on the other 

hand, argue that the increased DBC 

limits will penalize foreign carriers 

operating short flights, as these limits 

far exceed the cost of air fare for those 

flights. IACA argues that the proposal 

interferes with the European Union (EU) 

laws and may create uncertainty for 

carriers and passengers. Several 

European carriers suggest that the U.S. 

oversales rule should be harmonized 

with the EU rule. 

The majority of foreign carrier 

commenters firmly oppose eliminating 

DBC limits, averring that without a 

limit, the DBC amounts would be 

exorbitant, especially for many longhaul carriers who do not unbundle 

fares. Virgin Atlantic and Air New 

Zealand prefer a fixed amount for all 

involuntary denied boarding situations, 

reasoning that this approach will avoid 

the complexity in calculating DBC 

amounts based on fares. 

Most foreign carrier commenters also 

oppose the CPI-based bi-annual 

adjuster, arguing that air fare changes in 

the past are not related to CPI. The 

National Airlines Council of Canada 

argues that the proposal ignores the fact 

that fares paid by passengers are 

significantly lower than what they were 

ten or fifteen years ago, accounting for 

the inflation. Qantas and JetStar 

Airways state that the interval for the 

CPI–U based adjuster should be every 

five years instead of two years to avoid 

excessive administrative costs to 

implement the changes. 

DOT Response: With respect to the 

DBC limits increase, we have come to 

the conclusion that the proposed $650/ 

$1,300 amounts are not only reasonable 

but also necessary. We disagree with 

carriers’ remarks that the increase in the 

DBC limits is a disincentive for 

passengers to volunteer for denied 

boarding and will result in an increase 

in the number or rate of passengers who 

are involuntarily denied boarding. To 

the contrary, if the DBC limits are 

increased, carriers will have a greater 

incentive to seek volunteers through 

increasing the value of the 

compensation they offer to volunteers in 

order to avoid the higher DBC payments 

to involuntarily bumped passengers. 

The ultimate result is that involuntary 

denied boarding should decrease while 

both volunteers and passengers who 

must involuntarily be denied boarding 

will receive increased compensation 

that more accurately reflects their 

inconvenience. 

Although it is our firm belief that the 

DBC limits at the level of $400/$800 

tend to be insufficient to compensate 

the passengers who are involuntarily 

denied boarding for their inconvenience 

and loss of time, we maintain that the 

basic structure of the regulatory regime 

for oversales remains sound. In that 

regard, we are declining to adopt the 

suggestion of some commenters that the 

Department should eliminate 

involuntary denied boarding and 

require carriers to run auctions until 

they obtain sufficient numbers of 

volunteers. As we have repeatedly 

stated in the past, the benefits to most 

consumers of a well-controlled 

oversales system outweigh the 

inconvenience experienced by a few. By 

contrast, an unlimited auction system 

could increase the cost of oversales to 

carriers to a prohibitive level, which 

would cause airlines to be much more 

conservative in overbooking flights. 

Considering the reduced schedule 

frequency and capacity during recent 

years, such an approach would result in 

fewer affordable seats being available to 

the public in general. Running an 


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unlimited auction for volunteers is both 

time-consuming and complex, and 

requiring such a system may impose 

other negative impacts on all 

passengers, such as causing more flight 

delays, increasing the number of 

misconnections, and requiring earlier 

check-in times. 

We are also not adopting some 

consumer commenters’ suggestion that 

we should set a minimum standard for 

the amount of compensation offered to 

passengers solicited to volunteer for 

denied boarding. We maintain that other 

than the requirement that carriers must 

solicit volunteers before bumping any 

passengers involuntarily, the procedures 

for solicitation of volunteers and the 

amounts of incentive offered to 

potential volunteers should remain 

within carriers’ discretion because this 

aspect of the system has worked well. 

The Department believes that the 

involuntary DBC rates and limits set by 

the regulation are effective tools to 

motivate carriers to offer adequate 

compensation for volunteers. 

This final rule also provides that 

carriers must pay DBC equal to 200%/ 

400% of the fare based on the length of 

delay experienced by passengers up to 

the maximum of $650/$1,300. We are 

unconvinced by the argument of some 

industry commenters that the regulatory 

mandated DBC limits should not be 

increased because airfares have not 

increased ‘‘in real terms.’’ Although the 

‘‘fare,’’ in terms of the dollar amount 

reflected on a passenger’s ticket 

confirmation or ticket receipt, may not 

seem to be increasing over the past 

decade, the actual cost for a passenger 

to travel by air, however, has indeed 

increased. Such increase in air travel 

cost is not reflected in the base ticket 

prices that are used as the basis for 

calculating DBC amounts. The increase 

of the cost to passengers is evident by 

the fact that a passenger now must pay, 

in addition to the base airfare, for many 

items that were included in the fare 

before the unbundling practice became 

widespread, such as for checked 

baggage, food and beverage, in-flight 

entertainment, preferred seating, 

advance seat selection, telephone 

reservations, etc. It is the Department’s 

view that carriers may continue to 

explore other ways to further unbundle 

fares, thus leading to base ticket prices 

staying flat or declining. The 

Department believes that DBC amounts 

based on 100%/200% of the base fare 

are no longer adequate, under many 

circumstances, to address the 

inconvenience and consequential 

damages suffered by passengers who are 

denied boarding involuntarily, 

especially passengers who purchased 

the most deeply discounted fares, and 

who, by virtue of the low fares, are most 

likely to be selected as the candidates 

for involuntary denied boarding. 

Realistic DBC rates are also a necessary 

incentive to encourage careful 

overbooking practices on the part of 

carriers. Precisely for these reasons, we 

are raising the 100%/200% rates in the 

involuntary DBC calculation to 200%/ 

400%. In our opinion, this new formula, 

in conjunction with the raised DBC 

limits of $650/$1,300, strikes a balance 

between permitting carriers to continue 

to overbook flights, but limiting the 

carriers’ financial burden from 

compensating passengers due to 

oversales, and adequately protecting 

passengers’ interests in oversales 

situations. 

We are aware that the amended DBC 

formula and limits may have a larger 

impact on carriers operating regional 

and international short-haul flights, 

because these flights’ base fares are 

lower in general than the fares of long 

haul flights. RAA has argued in its 

comments that the DBC amounts should 

be based on 100%/200% of the fare and 

that the $650/$1,300 limits far exceed 

the costs of tickets on most regional 

flights. Several Canadian carriers and 

carrier associations also contended that 

the oversales rule as proposed unfairly 

discriminates against carriers operating 

shorter flights by requiring the same 

limits of compensation depending on 

the length of delay, regardless of the 

length of the flights from which the 

passengers were involuntarily denied 

boarding. The Department has fully 

considered these comments but remains 

unconvinced that the consequences of 

our amendment would be detrimental to 

these carriers. It is important to 

understand that the $650/$1,300 limits 

come into play only when the DBC 

formula would cause a passenger’s DBC 

to exceed the limit. To the extent the 

fare paid by a passenger is low, the new 

$650/$1,300 limits have no effect. Fares 

in the $49–$59 range are still regularly 

sold and even under the 400% 

calculation formula, the DBC amounts 

would not even come close to the $800 

limit under the previous rule. 

Furthermore, compared to long-haul 

flights that are usually less frequently 

scheduled, regional and low cost 

carriers typically have more options 

with regard to finding alternate 

transportation in a timely fashion for 

passengers who are denied boarding 

involuntarily. Thus, passengers on these 

short haul flights often have a better 

chance of getting to their destination or 

the next stopover without extensive 

delay. Consequently, regional and low 

cost carriers have a better chance of 

limiting their DBC exposure to the lower 

rate of 200% of the fare with a $650 

limit. 

To ensure that there isn’t any 

confusion as to how DBC is calculated, 

we have added a definition for ‘‘fare’’ in 

section 250.1. Under this definition, 

carriers do not need to take into account 

any ancillary fees and/or charges for 

optional service paid by passengers 

when calculating DBC amounts based 

on the passenger’s fare. In relation to 

this definition, however, we emphasize 

in section 250.5 that when a passenger 

is denied boarding involuntarily, the 

carrier must refund all unused ancillary 

fees paid by that passenger. Carriers do 

not have to refund any ancillary fees 

that will be applied to the alternate 

transportation to the extent those same 

services are provided to the passenger. 

For instance, when a passenger denied 

boarding involuntarily has paid for seat 

selection and checked baggage for the 

original flight, the passenger should 

receive a refund for the seat selection 

fee if the alternate transportation 

arranged by the carrier does not allow 

the passenger to select his/her seat. 

Conversely, the carrier does not need to 

refund the checked baggage fee if the 

passenger was able to check in the same 

number of bags for the substitute flight 

at no additional cost. 

We are also clarifying the meaning of 

the term ‘‘minimum DBC amounts’’ in 

this final rule as some commenters seem 

to be confused by the term. These 

commenters believe that the Department 

is mistaken in referring in the NPRM 

preamble to ‘‘minimum’’ DBC amounts 

when it should be referring to 

‘‘maximum’’ DBC amounts. We 

recognize that the source of the 

confusion was the term ‘‘maximum’’ 

used in the rule text under section 

250.5. The term ‘‘minimum DBC 

amounts’’ as used in the preamble of the 

NPRM refers to the lowest amount of 

DBC that is due an involuntarily 

oversold passenger when the DBC 

calculation based on the passenger’s 

one-way fare results in an amount 

exceeding the DBC limits (previously 

$400/$800 and increased to $650/$1,300 

in this Final Rule). For example, when 

a passenger on a domestic flight who 

paid $550 one-way for a non-stop flight 

is delayed for 1 hour 20 minutes due to 

having been involuntary denied 

boarding, the initial calculation of DBC 

due is based on 200% of the fare, which 

amounts to $1,100. However, the 

maximum amount of DBC a carrier is 

required to pay this passenger under our 

rule would be $650. We continue to use 

the term ‘‘maximum’’ in the rule text. 

Accordingly, in order to avoid further 


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confusion, we have used the term ‘‘DBC 

limits’’ instead of the term ‘‘minimum 

DBC amounts’’ in the preamble of this 

final rule. 

With regard to an automatic inflation 

adjustor for DBC limits, the Department 

has decided to adopt the proposed biannual adjustment on DBC limits. In 

doing so, we note our disagreement with 

some carriers’ comments that such an 

adjuster is not justified because air fares 

do not reflect changes in the CPI–U. 

DBC is not meant to fully compensate 

passengers for the loss of transportation, 

because carriers are obligated to offer 

alternate transportation for the 

passengers or refund the passengers’ 

fare; therefore, fare value change is not 

directly relevant. DBC is meant as a 

form of liquidated damages to 

compensate passengers for their 

inconvenience, loss of time, and other 

incidental and consequential costs 

associated with the delay (e.g., food, 

lodging, ground transportation, 

communication etc.). To simplify the 

DBC calculation and to expedite the 

process, the Department uses a formula 

that is tied to the one-way airfare paid 

by the passenger, which does not 

necessarily mean DBC amounts should 

be changed according to the levels at 

which the average airfare has changed. 

We observe that the costs for food, 

lodging and other accommodations and 

commodities passengers need in an 

oversales situation have all increased in 

correlation with inflation. In addition, 

as noted in the NPRM and further 

discussed above, the actual total cost of 

flying is likely to have increased, while 

what is commonly referred to as the 

‘‘fare’’ may not have increased or 

increased as much as a result of the 

carriers’ current practice of unbundling 

fares, i.e., charging extra for services 

once provided as part of the airfare. Our 

decision to adopt the bi-annual inflation 

adjustment provision for DBC limits is 

also not contradictory to our decision 

made two years ago that we would take 

up the issue de novo. We have indeed 

taken a fresh look at the issue during 

this rulemaking and ultimately reached 

the conclusion that the bi-annual 

inflation adjustment is the most efficient 

way to address the impact of inflation 

on the DBC limits. 

We are also addressing the issue of 

airline travel vouchers vis-a`-vis DBC in 

this final rule. Carriers frequently offer 

free or reduced-rate air transportation, 

most commonly in the form of airline 

travel vouchers, to passengers denied 

boarding involuntarily as an alternative 

to the cash or check DBC payment 

required by our rule. Our previous rule 

required that the value of such a 

voucher must be equal to or greater than 

the cash or check DBC payment 

otherwise required. One issue we did 

not address in the previous rule is 

whether any mandatory fees, such as 

service fees, that some carriers charge 

for using the voucher should be taken 

into account when considering the 

value of the benefit of the voucher 

offered. In this final rule, we clarify that 

any fees that passengers must pay in 

order to use the voucher for future travel 

must be considered when determining 

the value of the voucher. For instance, 

if the cash or check DBC payment for a 

passenger involuntarily denied boarding 

is required to be $400 under the 200%/ 

400% calculation, and the passenger 

agrees to accept a travel voucher in lieu 

of that cash or check payment and there 

is a service fee of $50 to redeem the 

voucher, the minimum voucher value 

that the carrier must offer to the 

passenger is $450. The carrier must 

inform passengers, whether volunteers 

or involuntarily oversold, of any 

restrictions imposed on the use of the 

voucher. In addition, as described in 

detail below, it is unfair and deceptive 

for a carrier to offer a travel voucher as 

compensation, particularly in an 

oversale situation, without advising the 

person to whom the voucher is offered 

of any restrictions that may apply to the 

use of the voucher, such as service fees 

to redeem the voucher, and advance 

notice requirements or expiration dates. 

Finally, we have made nonsubstantive revisions to the text of 

sections 250.5 and 250.9 in order to 

provide the most straightforward 

explanations of the methodology 

applicable under different 

circumstances for calculating DBC 

amounts. In a counterintuitive way, the 

previous rule describes the maximum 

DBC rate (200% at that time) and then 

states the circumstances under which 

the DBC amount will be reduced by 

half. We have encountered confusion on 

the part of both carriers and the public 

regarding this somewhat convoluted 

description. In this final rule, we 

discuss the DBC calculation for 

domestic flights and for international 

flights separately. In each category, we 

specify the amounts of DBC required 

under each of the three circumstances 

based on the length of delays incurred 

by a passenger using alternate 

transportation due to the involuntary 

denied boarding: no compensation; 

200% of the fare subject to the $650 

limit; and 400% of fare subject to the 

$1,300 limit. These categories and 

classifications are summarized in the 

two tables that we added in the written 

notice that carriers must provide to 

passengers who are denied boarding 

involuntarily and to anyone else upon 

request. These tables are meant to be 

used by carriers as a quick reference to 

assist bumped passengers so they can 

better understand the DBC limits and 

calculations when those passengers may 

be confused and under time pressure 

during an involuntary bumping 

situation. 

We have also added a definition for 

‘‘alternate transportation’’ in section 

250.1 to capture the two components of 

this term. The first component is what 

was described as ‘‘comparable air 

transportation’’ under the previous rule. 

In order to qualify as ‘‘alternate 

transportation’’ and consequently allow 

the carrier to limit its DBC exposure to 

less than the 400% rate, any air 

transportation offered to passengers 

involuntarily denied boarding as a 

substitute for the original flight must be 

operated by a carrier as defined in Part 

250, i.e., a U.S. certificated or commuter 

air carrier or a foreign carrier that has 

been duly authorized by the Department 

to operate scheduled air services. Thus, 

if the carrier offered a substitute flight 

operated by an air taxi operator that is 

not a commuter carrier, that flight 

would not qualify as ‘‘alternate 

transportation.’’ Furthermore, in order to 

qualify as ‘‘alternate transportation’’ 

carriers must offer a confirmed 

reservation on that alternative flight. 

The second component of the concept of 

‘‘alternate transportation’’ includes nonair transportation (such as bus, rail, or 

taxi) and air transportation that does not 

meet the definition above of ‘‘alternate 

transportation’’ arranged by the carrier. 

In order for these modes of 

transportation to qualify as ‘‘alternate 

transportation,’’ the carrier must obtain 

the passenger’s consent that the 

passenger will accept the proposed form 

of transportation in lieu of air 

transportation. To further explain the 

concept and application of ‘‘alternate 

transportation,’’ we emphasize that 

carriers are free to offer substitute 

transportation that does not meet the 

definition of ‘‘alternate transportation’’ 

in this rule (e.g., a flight on an air taxi 

that is not a commuter carrier, 

transportation on a scheduled flight 

without a confirmed reservation, or on 

a charter flight, or surface 

transportation), but the bumped 

passenger has ‘‘veto rights’’ over such 

arrangements. If the bumped passenger 

declines this ‘‘non-alternate’’ 

transportation, he or she is due DBC at 

the 400% rate because the carrier did 

not offer ‘‘alternate transportation’’ as 

defined in section 250.1. However, if the 

passenger chooses to accept the carrieroffered transportation that does not 


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qualify as ‘‘alternate transportation,’’ the 

carrier is free to avail itself of the lower 

200% DBC rate in the case of rerouting 

within 2/4 hours, and need not pay DBC 

at all if the non-alternate transportation 

accepted by the passenger will arrive at 

the passenger’s destination less than one 

hour after the planned arrival time of 

the passenger’s original flight. The 

passenger has no such veto right over 

‘‘alternate transportation.’’ If the carrier 

offers alternate transportation and the 

passenger declines it, the carrier is still 

free to limit DBC to 200% or zero as 

applicable. 

Also in section 250.1, we have deleted 

the definitions for ‘‘sum of the values of 

the remaining flight coupons’’ and 

‘‘comparable air transportation’’ as these 

terms are no longer used in the rule text. 

B. Zero Fare Tickets 

The NPRM: We proposed to clarify in 

the rule text that DBC must be offered 

to ‘‘zero fare ticket’’ holders who are 

involuntarily denied boarding. We 

asked the public to comment on 

whether these passengers should be 

protected by the oversales rule, and 

whether the proposed calculation 

method for their DBC amounts is 

reasonable (i.e., the ‘‘passenger fare’’ for 

purposes of DBC would be the fare of 

the lowest priced ticket paid for a 

comparable class of ticket on the same 

flight). We also invited the public to 

suggest any alternative method of 

establishing denied boarding 

compensation for zero fare ticket 

holders, including whether we should 

allow carriers to compensate these 

passengers using the same ‘‘currency’’ 

(e.g., frequent flyer miles or vouchers) in 

which the tickets were obtained. 

Comments: The individual and 

consumer organization commenters 

generally support affording zero fare 

ticket holders who are involuntarily 

denied boarding the same protection 

and rights as passengers with other 

tickets. Regarding the form of 

compensation, some commenters 

suggest that compensation may be in the 

same form of ‘‘currency’’ as that was 

used in acquiring the tickets; others are 

in support of the Department’s proposal, 

i.e., providing zero fare tickets holders 

DBC in the form of cash or check based 

on the lowest fare paid for a ticket on 

the same flight for a comparable class of 

service. Some commenters support 

payment in either form. 

The majority of the industry 

commenters do not oppose applying the 

oversales rule to zero fare ticket holders 

who are involuntarily denied boarding. 

However, these commenters are 

adamant that zero fare tickets covered 

under the oversales rule should not 

include non-revenue tickets such as 

airline employee passes. With respect to 

the form of DBC payment to zero fare 

ticket holders, several commenters are 

in support of compensating those 

passengers in the same form of 

‘‘currency’’ that they used to acquire the 

tickets. ATA state that carriers should 

have the discretion to pay DBC in the 

same form of ‘‘currency,’’ in travel 

vouchers, in cash/check, or in any 

combination thereof. ATA reasons that 

a mandatory cash payment requirement 

would create problems for carriers 

because gate agents cannot assign a cash 

value to the passenger’s fare as they do 

not have information on the lowest 

comparable fare sold on the same flight. 

On similar grounds, the National 

Airlines Council of Canada avers that it 

is virtually impossible to figure out the 

value of a ticket in the comparable class 

of service ‘‘on the spot’’ as it is subject 

to a wide range of variables. 

JAL opposes the inclusion of zero fare 

ticket holders under the oversales rule, 

stating that it should be left to a carriers’ 

commercial judgment as to whether to 

compensate zero fare ticket holders; JAL 

further states that the Department 

should not assume that carriers’ 

decisions would be adverse to 

passengers’ interests. Also in opposition 

to the proposal, South African Airways 

states that such a requirement would 

drastically reduce the carriers’ ability to 

offer zero fare tickets. 

DOT Response: The majority of 

commenters from both consumer and 

industry representatives seem to agree 

that certain types of zero fare ticket 

holders should be compensated when 

they are denied boarding involuntarily 

in an oversale situation. The 

Department agrees with most industry 

commenters that compensable zero fare 

tickets should exclude ‘‘non-revenue’’ 

tickets as that term has traditionally 

been used in the industry. In that 

regard, we have added a definition in 

the final rule that defines ‘‘zero fare 

tickets’’ to cover only tickets acquired 

with frequent flyer miles and airline 

travel vouchers, as well as consolidator 

tickets that are purchased with money 

but do not display a dollar amount on 

the ticket. In our view and the view of 

most commenters, zero fare ticket 

holders provided something of value in 

exchange for their air transportation and 

when they are bumped, they should be 

compensated. The Department also 

wishes to point out that, for most nonrevenue tickets such as airline employee 

and employee family travel vouchers, 

the terms and conditions accompanying 

these tickets have already explicitly 

excluded them from any compensation 

for involuntarily denied boarding. We 

note that under the definition of ‘‘zero 

fare ticket,’’ a passenger who paid a 

nominal monetary amount in 

connection with a ticket may still 

qualify as a zero fare ticket holder. 

Therefore, a carrier must in those cases 

treat a passenger as a zero fare 

ticketholder even if the passenger’s fare 

is not ‘‘zero’’ in a literal sense, e.g., 

where the passenger has paid by cash or 

credit card the requisite taxes or 

‘‘processing fees’’ and ‘‘service fees’’ for 

the redemption of travel vouchers or 

frequent flyer miles. On the other hand, 

if a passenger has paid substantial 

monetary value for the air 

transportation, e.g., paid cash for an 

economy class seat and used frequent 

flyer miles to upgrade to a business 

class seat, this passenger should not be 

treated as a zero fare ticket holder if 

bumped from the flight and the amount 

of DBC the passenger receives should be 

based on the economy class fare paid by 

that passenger. However, the carrier 

must credit the amount of frequent flyer 

miles used for an upgrade back to the 

passenger’s account if any substitute 

transportation provided is not in the 

class of service that he or she used the 

frequent-flyer miles to acquire. 

With respect to the form of DBC for 

zero fare ticket holders, some consumer 

commenters urge the Department to 

require all DBC to be paid in cash or 

check while many industry commenters 

either oppose paying DBC to zero fare 

ticket holders or at a minimum, argue 

that the Department should allow those 

passengers to be compensated by means 

other than cash or check. The 

Department has fully evaluated the 

reasons presented by the carriers for 

why we should not mandate cash or 

check DBC payments to zero fare ticket 

holders, but we have decided to apply 

the same DBC standard by requiring 

carriers to offer DBC to these passengers 

in the form of cash or check. DBC in 

non-monetary forms such as frequent 

flyer miles would not compensate a 

passenger for food, lodging and other 

expenses that may be associated with 

delays caused by the denied boarding. 

Furthermore, we reject some 

commenters’ notion that requiring 

carriers to pay cash to these passengers 

may result in harm to consumers, such 

as making frequent flyer tickets more 

expensive and restrictive for consumers. 

We note that under section 250.5(c), 

carriers may offer free or reduced rate 

air transportation to any involuntarily 

bumped passengers, including zero fare 

ticket holders, in lieu of cash payment. 

Carriers should not assume that zero 

fare ticket holders would almost always 

opt to receive cash or check 


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compensation, as the cash or check DBC 

amount is calculated with the lowest 

comparable fare as the base amount. We 

also disagree with some carriers’ 

suggestion that procedurally paying 

DBC in cash or by check based on the 

lowest comparable fare is unworkable 

because the gate agents may not have 

the lowest fare information ‘‘on the 

spot.’’ Just as is permitted for DBC 

payment to passengers who purchased 

their tickets with money, carriers are 

being afforded up to 24 hours after the 

involuntary denied boarding occurred to 

tender a check to the affected 

passengers. We believe the 24-hour 

window is sufficient for the carriers to 

obtain necessary fare information and 

calculate the appropriate DBC amount 

for the zero fare ticket holders. 

In calculating the DBC amounts for 

zero fare ticket holders, we clarify in the 

rule text as well as here that the 

applicable lowest comparable fare paid 

by cash, check, or credit card refers to 

the fare in the same class of service as 

the zero fare ticket. By adding a new 

definition for ‘‘class of service,’’ we 

explain that we are referring to the 

lowest fare within the same service class 

or cabin such as first class, business 

class, economy/coach class, or economy 

plus (premium economy) class. For 

instance, when a passenger holding a 

zero fare ticket in economy plus class is 

bumped, as the base fare for DBC 

calculation purposes, the carrier should 

identify the lowest fare paid by cash, 

check, or credit card in the economy 

plus class on that flight, not the 

economy class. 

C. Disclosure Requirements 

The NPRM: In the NPRM we proposed 

to require that (1) carriers offer cash/ 

check DBC options verbally if they 

verbally offer a travel voucher as DBC to 

passengers who are involuntarily denied 

boarding, and (2) carriers inform 

passengers solicited to volunteer for 

denied boarding about their principal 

boarding priority rules applicable to that 

specific flight, the availability of 

alternate transportation, and all material 

restrictions on the use of any 

transportation vouchers that may be 

offered as compensation for giving up 

the passenger’s reservation. We asked 

whether there are any other forms of 

disclosure that may better inform 

passengers being solicited to volunteer 

or those involuntarily bumped of their 

rights and carriers’ obligations. 

Comments: Most consumer advocacy 

groups and associations support 

imposing more disclosure rules 

regarding oversales. CTA proposes more 

disclosure to passengers solicited as 

volunteers, such as informing them of 

the oversales rule in writing and orally 

prior to the negotiation, and providing 

them information on whether they will 

receive confirmed seats and when they 

are expected to arrive at the destination 

on the alternative flight. CTA also 

recommends that carriers provide their 

boarding priority rules to the passengers 

when soliciting volunteers. 

FlyersRights.org suggests that carriers 

should be required to publish their 

principal boarding priority rules on 

their websites and inform passengers of 

their risks of being bumped before ticket 

sales. Comments posted on the website 

of Regulation Room generally support 

our proposal of requiring carriers to 

verbally inform passengers of the cash 

or check option for DBC payment if 

carriers verbally offer these passengers 

travel vouchers as DBC. These 

commenters also support the proposal 

that both passengers solicited as 

volunteers and passengers denied 

boarding involuntarily should be clearly 

informed of their options, the amount of 

compensation they can receive, and 

details of alternative flights. They also 

recommend enhancing disclosures 

regarding oversales prior to and at the 

time of ticket sales, such as requiring 

carriers to ask whether a passenger is 

willing to be bumped at the time of 

making the reservation and to provide 

notice to all passengers 24 hours before 

the departure if the flight is oversold. 

ASTA supports the idea of disclosing 

oversales rule at the time of ticket 

purchase and advising passengers of the 

risk involved if they do not secure a seat 

assignment. ASTA also recommends 

that carriers be prohibited from ‘‘gaming 

the system’’ by making it impossible to 

obtain seat assignments. ASTA points 

out that all disclosures regarding 

oversales should be made earlier 

because providing an explanation to 

passengers at the gate is time consuming 

and it may create chaos and passenger 

confusion. 

Most carrier and carrier association 

commenters oppose all the proposed 

verbal disclosure requirements. These 

commenters are generally concerned 

about the additional time they assert 

would be needed for gate agents to 

comply with the various verbal 

notification requirements, arguing that 

these requirements would impose 

hardship on the agents who are under 

time pressure to board passengers and 

close out the flight. These commenters 

also contend that this information is 

available in the written notice and assert 

that verbal notification is not necessary 

and may be hard to enforce. Some 

carriers also point out that if the gate 

agents are not familiar with the 

oversales rule, verbal notification may 

result in inaccurate or incomplete 

information being passed on to 

consumers, causing further confusion. 

DOT Response: As we have stated in 

the NPRM, we believe disclosure in an 

oversales situation is essential for the 

passengers to fully understand their 

rights and options. After thoroughly 

evaluating all the comments, we have 

decided to adopt some but not all of our 

proposals in this regard. We will discuss 

each proposal individually. 

With respect to the requirement that 

carriers must verbally offer the cash 

option when they verbally advise 

passengers bumped involuntarily that a 

carrier voucher as a form of DBC is 

available, we have reached the 

conclusion that this requirement is in 

fact critical to ensuring that passengers 

are fully informed when they are given 

the opportunity to choose what form of 

DBC they are willing to take. Although 

the cash option is clearly stated in the 

written notice that carriers are required 

to provide to passengers denied 

boarding involuntarily, it is likely that 

due to the time pressure and occasional 

confusion associated with involuntarily 

denied boarding, passengers may not 

have the opportunity to fully review the 

written notice before they choose the 

form of DBC that they are willing to 

accept. Thus, it is the Department’s 

view that when carriers verbally offer a 

voucher option but omit (either 

inadvertently or intentionally) 

mentioning the cash option, it is unfair 

and deceptive to the passengers. 

Furthermore we consider that to the 

extent carriers are willing to explain to 

passengers their option of receiving 

carrier vouchers as DBC payment, the 

additional time needed to add a few 

words about the cash/check option 

should not be substantial. In any event, 

if carriers are concerned about the 

additional time needed to verbally 

inform passengers of all options, it is 

permissible to not verbally advise 

passengers of DBC options at all. They 

can simply hand the passengers a 

written notice. 

On similar grounds we have decided 

to adopt the proposed requirement that 

carriers must disclose any material 

restrictions on airline travel vouchers 

offered to both passengers solicited to be 

volunteers and passengers denied 

boarding involuntarily. Some carriers 

argue that the process of informing 

passengers is too time-consuming. The 

Department disagrees although we note 

that the more time-consuming such a 

notice is, the more restrictions must 

apply to the voucher, necessitating more 

than ever that notice of such restrictions 

be provided. To provide a brief 

summary covering all the material 


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restrictions on vouchers should not take 

more than a few moments. For example, 

when the carrier announces at the gate 

that it needs volunteers who will 

receive a roundtrip voucher for any 

destination within the continental U.S., 

to add a description of conditions on the 

use of vouchers such as ‘‘the vouchers 

are not transferrable, subject to certain 

blackout dates and service charges and 

will expire after two years * * *’’ would 

not require more than a few moments, 

and carriers may encourage anyone who 

wants to learn more details to speak to 

the gate agent directly. Typical 

examples of material restrictions and 

conditions are expiration dates, 

blackout dates, advance booking 

requirements, transferability 

restrictions, administrative fees and 

flight choice restrictions. We emphasize 

that this is not an exhaustive list and by 

the term ‘‘material’’ we refer to all the 

restrictions and conditions that might 

reasonably be expected to affect a 

passenger’s decision regarding whether 

to accept the voucher. 

Since the substance of any restrictions 

and conditions on the airline vouchers 

varies by carrier and is not incorporated 

in the general written notice mandated 

by section 250.9, we require that any 

verbal offer of a travel voucher by 

carriers, either to passengers solicited to 

volunteer or to passengers denied 

boarding involuntarily, must be 

accompanied by a verbal explanation of 

any material restrictions and conditions 

imposed on that voucher. In the event 

carriers make a written offer of travel 

vouchers, but no verbal offer, carriers 

should provide a written explanation of 

the restrictions and conditions on travel 

vouchers, along with the general written 

notice required by section 250.9. 

In adopting these disclosure 

requirements, we clarify that we do not 

intend to require carriers to give every 

passenger who is in danger of being 

denied boarding involuntarily a 

‘‘personal presentation’’ of their rights. 

The Department’s goal is to ensure that 

when carriers opt to verbally provide 

any information to the passengers, the 

information is not presented in a 

misleading manner regarding any 

material terms. 

In the NPRM, we also proposed to 

require carriers to inform passengers 

solicited to volunteer of their principal 

boarding priority rules and the 

availability of comparable air 

transportation. Our intention in 

proposing these two requirements was 

to provide passengers more information 

upon which they would be able to 

determine whether volunteering to give 

up their confirmed reservations would 

be in their best interests. After 

considering all the comments in this 

regard, we are convinced that these 

proposals, as well as some other 

disclosure measures not proposed by us 

but recommended by consumer 

commenters, may not achieve the 

expected goal. Although we disagree 

with some carriers’ comments that 

providing such information will only 

assist some passengers to ‘‘game’’ the 

system to the detriment of the majority 

of other passengers, we note that 

providing such information at the gate 

is time consuming and carriers’ 

principal boarding priority rules can be 

found in the written notice prescribed 

in section 250.9, as well as on most 

carriers’ websites and/or in the contracts 

of carriage. We conclude that the burden 

on carriers of verbally providing such 

information at the boarding gates 

outweighs the benefits. Furthermore, we 

reject some commenters’ suggestions 

that all passengers should be informed 

of the carriers’ principal boarding 

priority rules and whether a particular 

flight was oversold at the time they 

make their reservations. We note that 

oversales might not occur until close to 

the departure time or date and, due to 

no-shows, many overbooked flights will 

not be oversold on the day of departure. 

We believe requiring carriers to provide 

these two types of information through 

their reservation systems may not be 

beneficial to consumers yet will 

increase the operational costs of 

carriers, depress revenues and limit seat 

availability. These costs and restrictions 

ultimately will be borne by the 

consumers. 

Related to the boarding priority rule 

disclosure proposal, FlyersRights.org 

and some other consumer commenters 

also suggested that we should not allow 

carriers to set their boarding priority 

rules based on the amounts of 

passengers’ fares. FlyersRights.org went 

further to urge the Department to 

declare that bumping a passenger who 

checked in earlier but who paid a lower 

fare is an unfair and deceptive practice. 

We cannot agree. With the exception of 

unlawful discrimination, the 

Department has traditionally allowed 

carriers extensive flexibility to set their 

boarding priority rules based on several 

criteria, including passengers’ fares. We 

believe affording carriers such flexibility 

is an important marketplace tool and 

permits carriers to proactively control 

the costs of oversales so they are able to 

continue to offer the maximum numbers 

of seats to the traveling public. It makes 

perfect sense that passengers who pay 

more for a ticket to get the last available 

seat and the right to obtain a full refund 

also want to be assured that they will be 

the last person to be bumped from an 

oversold flight. We do agree that 

passengers seeking the lowest fare on a 

flight are most likely budget-conscious 

consumers and are most likely to be the 

ones bumped by some carriers. In this 

final rule, we have adopted provisions 

to increase the DBC limits and rates 

based on the passengers’ fare which 

should help them. 

With respect to the proposal to 

require disclosure of the availability of 

alternate transportation at the time of 

volunteer solicitation, we have come to 

the conclusion that such a requirement 

is unworkable under most 

circumstances. The availability of 

alternate transportation is a fluid issue 

and is subject to many variables. Due to 

these variables, what carriers may offer 

at the time of volunteer solicitation 

could change by the time the alternate 

transportation is provided to the 

volunteer. Should such change occur, 

the expectation created by the earlier 

information may cause passengers 

further confusion and frustration. Thus, 

we are not going to require such 

information to be provided at the time 

of volunteer solicitation. 

D. Covered Entities and Other 

Miscellaneous Issues 

The NPRM: The oversales rule 

currently covers scheduled passenger 

service using aircraft with 30 or more 

seats. We solicited comments on 

whether the oversales rule should be 

expanded, either in its entirety or 

partially, to cover scheduled services 

using aircraft with 19–29 seats and 

whether we should allow these flights to 

be oversold at all. 

Comments: CTA believes that the 

oversales rule should apply to all flights 

of major carriers, regardless of the size 

of the aircraft. Comments from 

RegulationsRoom.org generally support 

applying the oversales rule to all aircraft 

sizes. Some of these commenters urge 

the Department to ban oversales on 

small aircraft, arguing that being 

bumped from those flights is more 

disruptive and costly to passengers. 

ASTA supports extending the oversales 

rule to aircraft with 19–29 seats, stating 

that involuntary denied boarding on 

short-haul flights operated by small 

aircraft has drastic effects on passengers 

who are connecting to long-haul flights 

and these passengers are often surprised 

after being bumped to discover they 

have no protection from the 

Department’s oversales rule. 

On the carriers’ side, ATA supports 

maintaining the status quo, i.e., 

allowing overbooking on flights 

operated with aircraft with 19–29 seats 

and not applying the oversales rule to 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23141 

these flights. ATA argues that banning 

oversales on these flights will threaten 

the existence of small community air 

services and imposing the oversales rule 

on these flights would be too costly to 

carriers. RAA also opposes banning 

oversales on regional flights, arguing 

that such a ban would eliminate the 

ability of carriers to serve small 

communities, as carriers would not be 

able to bear the costs of running flights 

with empty seats. RAA also contends 

that the denied boarding risk is low on 

regional flights operated by small 

aircraft because regional carriers’ load 

factors lag behind large aircraft 

operators. 

DOT Response: The Department has 

been persuaded that it should not 

extend the oversales rule to flights 

operated with aircraft with 19–29 seats. 

Aircraft of this size make up a small and 

diminishing portion of scheduledservice operations, particularly in the 

case of the code-share partners that were 

the predicate for this proposal. After 

being bumped from a short-haul 

segment, the cost of paying DBC based 

on the fare to a passenger’s downline 

destination — up to 400% of the fare 

and $1,300 under the final rule — 

would be an unreasonable burden for 

operators of 19–29-seat aircraft. These 

carriers are most likely to be the very 

small entities to which the Regulatory 

Flexibility Act requires federal agencies 

to afford special consideration in 

rulemaking. Based on similar rationale, 

we have also decided that it is not in the 

best interests of the public to ban 

oversales on these flights because doing 

so will further reduce the capacity of 

flights serving smaller airports and 

communities and cause price increases. 

Although not proposed in the NPRM, 

there are several issues raised by the 

commenters that the Department feels it 

is important to address in order to 

clarify what appears to be confusion 

associated with the oversales rule. First, 

several foreign carriers urge the 

Department to harmonize its oversales 

rule with the rules of other jurisdictions, 

such as the European Union. The 

Department agrees in principle that the 

U.S. oversales rule should not conflict 

with the rules of other jurisdictions. The 

Department has worked diligently to 

that end, and sees no direct conflict 

between our oversales rule and the rules 

of other jurisdictions. We disagree with 

some commenters’ claim that the rule as 

proposed and finalized here will cause 

confusion among carrier staff and 

passengers. With respect to both 

domestic and international flights, the 

U.S. rule applies only to denied 

boardings that occur at a U.S. airport, a 

relatively straightforward applicability 

standard that is similar to the approach 

taken in the EU oversales rule for flights 

of non-EU carriers. Thus, passengers are 

clear that when they are denied 

boarding at a U.S. airport, the U.S. 

oversales rule applies. The carriers have 

the responsibility to train their staffs to 

be familiar with rules of the 

jurisdictions to and from which they 

operate. We note that the EU oversales 

rule has an exception for denied 

boardings that are subject to 

compensation requirements of other 

jurisdictions. To the extent that flights 

of EU carriers from the U.S. to an EU 

state may also be subject to the EU 

oversales rule, those carriers should be 

able to comply with both the U.S. and 

EU rules (e.g., by paying the higher 

compensation amount if the required 

amounts differ). 

CTA and FlyersRights.org both 

suggest that the Department should not 

exempt carriers from complying with 

the oversales rule when the involuntary 

denied boarding is caused by an 

equipment change due to factors that are 

within carriers’ control, e.g., crew 

schedule or maintenance issues. We 

have carefully examined this suggestion 

but are not convinced that this proposal 

is consistent with the underlying 

rationale of our oversales rule. The 

Department’s longstanding policy of 

exempting carriers from paying DBC 

when an involuntary denied boarding 

was caused by equipment change is 

based on the grounds that in this 

situation, the resulting denied boardings 

were not caused by overbooking, a 

practice that absent compensation is 

fundamentally unfair to the passengers 

who have paid for confirmed seats but 

are not permitted to board the flight 

because their promised seat was sold to 

another person. Accordingly, we will 

not change our rule involving oversales 

that result from substitution of 

equipment of lesser capacity. 

Also raised by several foreign carriers 

is the issue of an alternative to ‘‘cash’’ 

payment of DBC. These carriers are 

under the impression that in order to 

comply with our rule, they must keep a 

large amount of cash (currency) at the 

U.S. airports they serve for the purpose 

of making cash payments to passengers 

denied boarding involuntarily. These 

carriers assert that such a cash reserve 

at their stations in U.S. airports, many 

of which are staffed by third-party 

contractors, imposes security concerns. 

Thus, these carriers urge the Department 

to allow them to tender DBC payments 

to passengers in the form of a debit card 

or other forms of electronic funds. The 

Department wishes to clarify that under 

our rule, carriers are permitted to tender 

a check, in lieu of cash payment, to 

passengers denied boarding 

involuntarily, and to do so up to 24 

hours after the denied boarding 

occurred. The check may be mailed to 

the address that a passenger has 

provided. Therefore, it is not required 

that carriers maintain large amounts of 

cash at airports. We acknowledge the 

convenience and security features 

offered by electronic funds, but have not 

had the opportunity to fully examine 

the benefits and limitations of using this 

procedure as an alternative to cash/ 

check DBC payments in this rulemaking 

proceeding. We may further explore this 

issue in future rulemaking. 

Finally, we have decided not to adopt 

Delta’s recommendation that the revised 

oversales rule should be applied only to 

tickets purchased on or after the 

effective date of the final rule. Such 

application would inevitably result in 

the situation where passengers bumped 

from the same flight will be subject to 

different rules. Additional delays may 

occur at the boarding gates when the 

gate agents have to spend additional 

time to determine the purchase dates of 

the tickets in order to determine which 

rule applies. For this reason, we will 

require that all denied boardings and 

other DBC-related processes covered by 

this rule that occur on or after the 

effective date of the final rule must 

comply with the new rule, regardless of 

the transaction dates of the ticket sales. 

We note that this final rule also 

includes a technical amendment 

concerning reporting of oversales. We 

are correcting a technical inconsistency 

in the oversales reporting requirements 

in section 250.10. One sentence in that 

section states ‘‘The reporting basis shall 

be flights originating or terminating at or 

serving, a point within the United 

States.’’ The last sentence of that section 

reads: ‘‘No reports need be filed for 

inbound international flights on which 

the protections of this part do not 

apply.’’ Apparently, when the rule was 

amended many years ago to remove 

applicability to international flights 

inbound to the United States, the 

second sentence quoted above was 

added but the first sentence was not 

revised to remove the reference to 

flights ‘‘terminating in’’ or ‘‘serving a 

point within’’ the United States. The 

intent and the practice has been not to 

include international flights that 

terminate in the U.S. (i.e., inbound 

international flights) in these Form 251 

data. This has been clear in paragraphs 

(A) and (E) in the instructions to the 

form (see http://www.bts.gov/programs/ 

airline_information/forms/pdf/ 

form_251.pdf). We are not aware of any 

instances in which data for inbound 

international flights have been 


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23142 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

inadvertently included in Form 251 

reports. 

7. Full Fare Advertising 

A. Change in Enforcement Policy 

The NPRM: The Department’s price 

advertising rule (14 CFR 399.84) states 

that any advertised price for air 

transportation, an air tour or an air tour 

component must be the entire price to 

be paid by the customer for that 

transportation, tour or tour component. 

However, the Department’s enforcement 

policy with regard to this rule has 

permitted sellers of air transportation to 

state separately from the advertised 

price government-imposed taxes and 

fees, provided that they are not ad 

valorem in nature, are collected by the 

seller on a per-passenger basis, and their 

existence and amount are clearly 

indicated in the advertisement so that 

the consumer can determine the full 

price to be paid. The Department has 

prohibited sellers of air transportation 

from breaking out any other seller 

imposed fees, including fuel surcharges 

and service fees, and taxes imposed on 

an ad valorem basis. 

In the NPRM, the Department 

proposed enforcing the price adverting 

rule as it is written. This proposal 

would change the existing enforcement 

policy by ending the practice of 

permitting sellers to exclude 

government taxes and fees from the 

advertised price, and would instead 

require that the price advertised include 

all mandatory fees. The Department 

invited comments on how sellers of air 

transportation foresee this change in 

enforcement policy affecting the 

methods they use to advertise fares and 

how consumers view the change. The 

Department also requested comment on 

the potential cost of changing the 

current advertising structures that 

carriers and ticket agents have in place 

in order to adhere to the proposed 

policy shift. 

Comments: Individuals and consumer 

organizations such as Flyersrights.org, 

in addition to individuals who 

participated on Regulation Room, 

support the proposal that 

advertisements for air transportation 

state the total price to be paid by the 

consumer. Some commenters 

participating in discussions through 

Regulation Room reported that there 

were occasions when they thought they 

were going to pay one price for air 

transportation, but the final price was 

much higher due to additional taxes and 

fees. Regulation Room commenters also 

stated that the current advertising 

method borders on bait-and-switch 

tactics. Some individual commenters 

expressed similar sentiments, noting 

how they have been surprised by the 

total amount to be paid at the end of a 

purchase online and their preference to 

know the total amount to be paid 

earlier. Some consumers and consumer 

groups go further by suggesting that the 

Department should require that the true 

cost of travel, including ancillary fees, 

be disclosed earlier in the booking 

process. For example, CTA states that 

even if the price advertising rule 

requires the disclosure of all mandatory 

fees, consumers may still have trouble 

finding out the true cost of travel due to 

the proliferation of many kinds of 

ancillary fees for optional services. 

U.S. carriers and carrier associations 

generally oppose the Department 

changing its enforcement policy to 

enforce the full price advertising rule as 

written. ATA states that its members 

support fare transparency, but notes that 

the Department declined to revise its 

full-fare rule four years ago and 

contends that the airfare advertising 

landscape has not changed since that 

time in a manner that would justify a 

change in 25 years of enforcement 

policy. ATA notes that several other 

industries advertise without including 

government-imposed taxes and fees, and 

states that the air transportation 

industry should not be treated 

differently. It asserts that this policy 

shift would suppress valuable 

information to consumers about how 

much of their total price consists of 

government-imposed taxes and fees. In 

addition, ATA argues that this policy 

shift would negatively impact 

competition because governmentimposed taxes and fees vary from 

airport to airport and routing to routing. 

ATA contends that this means that an 

airline that has a competitive fare, but 

also has a routing that subjects the fare 

to higher taxes and fees, will be 

disadvantaged if it is required to include 

those taxes and fees in the advertised 

price. It remarks that this could 

negatively impact service to smaller 

communities. ATA also raised concerns 

about the cost implications of the 

proposal, because the proposal would 

require airlines to perform additional 

route pricing analysis, programming 

changes, website changes, and auditing 

and testing of changes. Many U.S. 

carriers raise similar points. 

The views of foreign carriers and 

associations varied, with many 

opposing the proposed mandate that the 

advertised fare be the full fare to be paid 

by the customer but some supporting it. 

IATA believes that there is no evidence 

of widespread advertising deception to 

justify a change in the Department’s 

enforcement policy. Additionally IATA 

notes that the complexity of non-airline 

charges makes listing a full fare with ‘‘all 

mandatory fees’’ difficult, and would 

only confuse air travel consumers 

because this complexity prevents a true 

fare comparison as the actual fare is 

obscured by the additional governmentimposed taxes and fees. IATA also notes 

that passengers are made fully aware of 

the purchase price before purchase. 

Most foreign airlines support IATA’s 

comments. Some foreign carriers, such 

as Singapore Airlines, Qatar Airways, 

and Jetstar Airways, support the 

proposed mandate that advertisements 

state the total price to be paid by the 

consumer. Many of these airlines state 

that they already advertise the total 

price to be paid by consumers due to 

regulations of other governments. Some 

foreign carriers expressed concerns 

about the applicability of this rule to 

advertisements on websites that are not 

domiciled in the United States or 

directed to United States customers. 

Among other industry interests that 

commented, ASTA and ITSA support 

this policy shift and note that full fare 

disclosure is the best way to eliminate 

passenger confusion and ensure that 

passengers understand the total cost of 

their air travel. ASTA asserts that the 

full fare displayed in advertisements 

should include all mandatory fees, 

regardless of their source. The United 

States Tour Operators Association 

(USTOA) disagrees and states that the 

proposed change will place costly 

burdens on travel agents while doing 

very little to ease customer confusion in 

airline pricing. USTOA contends, as 

does ATA and many U.S. airlines, that 

ending the practice of permitting sellers 

to exclude government taxes and fees 

from the advertised price is not justified 

because the airfare advertising 

landscape has not changed since the 

Department last declined to revise the 

full-fare advertising rule. USTOA states 

that tour operators would be especially 

negatively affected by this shift in 

policy because government-imposed 

fees vary widely depending on where 

the consumers choose to start their trip, 

and therefore a tour operator would not 

be able to advertise a tour effectively 

since the purchaser usually has the 

option of a number of gateways. 

DOT Response: The Department has 

decided to adopt the proposed policy 

change in relation to the full-fare 

advertising rule. We disagree with 

comments that the Department has not 

shown true harm to consumers in not 

having the full price quoted to them up 

front. On the contrary, comments from 

individual commenters and persons 

participating in Regulation Room show 

consumers feel deceived when the total 


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price, including taxes and fees, is not 

quoted to them after an initial fare 

inquiry. Many consumers feel that 

advertising fares that exclude 

mandatory charges is a ‘‘bait and switch’’ 

tactic by travel sellers. The Department 

has also received complaints regarding 

fare advertising, some of which 

specifically mention feeling deceived 

when they are not quoted the full price 

to be paid after an initial inquiry. 

Also, contrary to the assertions of 

some commenters, the Department has 

seen changes in the advertising methods 

used by sellers of air transportation 

since the Department declined to revise 

its full-fare rule in 2006. Sellers are now 

marketing air transportation through a 

variety of methods that they were not 

using then. For example, some carriers 

have started to sell tickets through 

Facebook and some have Twitter feeds 

dedicated solely to advertising sale 

fares. Additionally, in recent years, 

carriers are increasingly unbundling the 

cost of air travel, which further obscures 

the total fare to be paid by the 

consumer. Carriers and online travel 

agencies have also started to offer more 

complicated routings with multiple 

connections in order to provide the 

‘‘lowest’’ airfare to consumers. However, 

with these changes in routings, taxes 

and fees can increase and become a 

significant portion of the price to be 

paid by consumers. In those cases, 

consumers need a full picture of the 

total price to be paid in order to 

compare fares and routings. In order to 

understand the true cost of travel, 

consumers need to be able to see the 

entire price they need to pay to get to 

their destination the first time the 

airfare is presented to them. 

We also are not persuaded by 

argument that the Department should 

not require that the advertised price for 

air transportation, a tour or tour 

component be the total price to be paid 

by the customer for that transportation, 

tour or tour component because other 

industries advertise without including 

government-imposed taxes and fees. 

Airfares are different from products in 

other industries for a variety of reasons, 

including the multitude of methods of 

advertising that sellers of air 

transportation employ and the various 

taxes and government fees that apply. 

We believe that consumers are deceived 

when presented with fares that do not 

include numerous required charges and, 

in our view, air travelers will be better 

able to make price comparisons when 

they can see the entire price of the air 

transportation, tour or tour component 

being advertised. The advertised fare 

under this policy shift must include all 

government-imposed taxes and fees as 

well as mandatory carrier-imposed 

charges, including booking fees if the 

only way the consumer can obtain the 

air transportation is by paying the 

booking fee. 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. 

In regard to the costs related to this 

change, online travel agencies that will 

face many of the same marketing and 

programming challenges as carriers do, 

if not more, feel that the operational 

costs of adhering to the rule will be 

overly burdensome. Sellers of air 

transportation are constantly updating 

their fare matrices and the methods by 

which they display fares. In addition, 

we believe many carriers may already 

have programs in place to accommodate 

this policy shift, as some foreign 

governmental entities such as Australia 

and the European Union already require 

the total price to be shown to 

consumers. We note also that the 

requirement for advertisements to state 

the total price is limited to 

advertisements published in the United 

States, including via the Internet if 

accessible in the U.S. Further, 

recognizing the amount of print 

advertising slated for use by tour 

operators that would need to be pulled 

thereby increasing costs of print 

advertising revision, we have decided 

that the new full fare adverting 

requirements will not take effect until 

180 days after the publication of this 

final rule in the Federal Register. This 

should reduce the costs related to this 

requirement. 

Some airlines were concerned that 

passengers would not know how much 

of their total price consists of 

government imposed taxes and fees. We 

want to assure these carriers that 

nothing in this rule prohibits them from 

making this information available to 

consumers. This final rule allows 

carriers to advise the public in their fare 

solicitations about government taxes 

and fees, or other mandatory carrier or 

ticket agent imposed charges applicable 

to their airfares. Sellers of air 

transportation may have pop-ups or 

links adjacent to an advertised price to 

take the consumer to a listing of such 

charges, or they may display these 

charges on the same page in fine print 

if they prefer. Such charges must 

accurately reflect the actual costs to the 

carrier of the service or matter covered, 

be displayed on a per passenger basis, 

and be displayed in a manner that 

otherwise does not deceive consumers. 

Consequently, the rule requires that any 

such listing not be displayed 

prominently and be presented in 

significantly smaller type than the 

listing of the total price to ensure that 

consumers are not confused about the 

total price they must pay. Also, we are 

prohibiting the presentation of any 

‘‘total’’ fares in advertising that exclude 

taxes, fees or other charges since the 

major impact of such presentations is to 

confuse and deceive consumers. 

B. Explicit Inclusion of Ticket Agents 

The NPRM: The Department proposed 

to explicitly apply the price adverting 

rule to ticket agents. We have for years 

considered ticket agents to be subject to 

the price advertising rule since the 

Department’s statutory authority to 

prohibit unfair and deceptive practices 

and unfair methods of competition 

applies to both carriers and ticket 

agents. However, the Department’s price 

advertising rule doesn’t specifically 

indicate that ticket agents are covered 

by the rule. 

Comments: Comments received from 

airlines, travel agents, consumer groups 

and others all supported the inclusion 

of ticket agents in the price advertising 

rule. Air New Zealand and Qantas 

indicate that their support for including 

ticket agents in the rule is contingent on 

airlines not being responsible for the 

compliance of ticket agents. 

DOT Response: The final rule 

explicitly includes ticket agents in the 

price advertising rule. This is consistent 

with longstanding Department policy 

and we did not receive any adverse 

comments. This inclusion will ensure 

that consumers are more fully protected. 

With regard to the Air New Zealand and 

Qantas comment, airlines have always 

been legally responsible along with their 

agents for their agents’ advertising 

violations and they will continue to be 

under the revised rule. 

C. Each-Way Advertising 

The NPRM: The Department proposed 

to codify its enforcement policy on 

each-way airfare advertising. Under this 

policy, advertisement of an each-way 

airfare that is contingent on a round-trip 

purchase is an unfair and deceptive 

practice unless the airfare is advertised 


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as ‘‘each way’’ and the round-trip 

purchase requirement is clearly and 

conspicuously disclosed in a location 

that is prominent and proximate to the 

advertised fare amount. The Department 

invited interested parties to comment on 

this proposal and on whether the 

Department should adopt a similar rule 

for air/hotel packages that advertise a 

single price but are sold at that price on 

a double occupancy basis, i.e., two 

individuals must purchase the package 

to obtain the advertised fare. 

Comments: Individual consumers and 

consumer groups had divergent views 

on whether the Department should 

allow each-way airfare advertising even 

if the round-trip purchase requirement 

is clearly and conspicuously disclosed 

proximately and prominently to the 

advertised fare. Flyersrights.org opposes 

this proposal, believing that disclosure 

of the full round-trip purchase price is 

most helpful to consumers. Consumers 

Union and AAPR support the proposed 

regulation, as long as the round-trip 

purchase requirement is clear and 

conspicuous. Most of the commenters 

on Regulation Room and individual 

commenters generally support this 

proposal but some, like Flyersrights.org, 

suggest the Department require that the 

full round-trip purchase price be 

disclosed. Airlines, airline associations 

and travel agency groups express 

support for the each-way advertising 

regulation. ATA requests clarification as 

to whether ‘‘one way’’ advertising would 

be allowed if there was no round-trip 

purchase requirement. ASTA supports 

this proposal as well, noting that 

specifically prohibiting the use of ‘‘one 

way’’ to advertise fares that are 

contingent on round-trip purchases will 

allow consumers to better comparison 

shop among fare quotes. 

We received relatively few comments 

on whether the Department should 

adopt a rule requiring specific 

disclosure for air/hotel packages that 

advertise a single price but are sold at 

that price only on a double occupancy 

basis. Some commenters participating in 

the Regulation Room discussion state 

that clear and conspicuous disclosure 

concerning occupancy-related rates 

should be required. ASTA comments 

that double occupancy rates should still 

be allowed, as long as the ‘‘per person’’ 

requirement is disclosed. 

DOT Response: The Department is 

codifying existing enforcement policy 

allowing sellers of air transportation to 

advertise an each-way price that is 

contingent on a round-trip ticket 

purchase so long as the round-trip 

purchase requirement is clearly and 

conspicuously disclosed in a location 

that is prominent and proximate to the 

advertised fare. This codification of 

longstanding enforcement policy allows 

sellers of air transportation to be flexible 

in the way they advertise round-trip 

fares while still requiring all pertinent 

disclosures to consumers. While the 

Department understands that some 

consumers would prefer the full roundtrip price to be displayed, the 

Department has not found that the 

current regime has led to consumer 

confusion or deception and it does 

permit certain types of advertising that 

are beneficial. We note also that this 

final rule specifically prohibits referring 

to such an airfare as ‘‘one way’’ even if 

the round-trip purchase requirement is 

clearly disclosed, which should 

minimize or prevent consumer 

confusion. In response to ATA’s request 

for clarification, we agree that ‘‘one way’’ 

advertising is allowed when purchase of 

that fare is not contingent on a roundtrip purchase. We are deferring to a later 

date any requirement regarding double 

occupancy advertisements as we 

received few comments on this matter. 

We do not have enough information at 

this point to determine if consumers feel 

deceived by double occupancy rates, 

and consequently we will not formulate 

a specific regulation regarding the 

methods of such advertising at this time. 

‘‘Double occupancy’’ advertising will 

still be subject to the general provisions 

of 49 U.S.C. 41712. 

D. Opt-Out Provisions 

The NPRM: The Department proposed 

to prohibit ‘‘opt-out’’ provisions by 

sellers of air transportation. ‘‘Opt-out’’ 

provisions involve situations where a 

consumer is purchasing air travel or an 

air tour package online and certain fees 

for ancillary services or products are 

pre-selected for the consumer and 

added to the total price to be paid by the 

consumer at the end of the transaction. 

The consumer is deemed to have 

selected these services (and the charges 

for them) unless the consumer 

‘‘unchecks’’ the pre-selected box or 

boxes for the relevant services. The 

NPRM proposed prohibiting this 

practice as unfair and deceptive in 

violation of 49 U.S.C. 41712 and 

allowing carriers and ticket agents to 

add an optional service to the total 

airfare to be paid by the consumer only 

if the consumer affirmatively ‘‘opts in’’ 

to accept and purchase that service. 

Comments: There was wide support 

among individual commenters and 

consumer groups for a prohibition 

against opt-out provisions. A few 

individual commenters noted that this 

prohibition will allow consumers to 

avoid unwanted fees. All of the 

individuals commenting through the 

discussion on Regulation Room stated 

that all optional services should be 

presented to consumers as an ‘‘opt-in’’ 

choice. Individual consumers recounted 

how they were sometimes faced with 

paying for travel insurance they did not 

need or a seat selection fee they were 

not aware of because those options were 

‘‘pre-selected’’ by the seller of air 

transportation. 

Many industry commenters, though 

not all, also agree with a prohibition on 

‘‘opt-out’’ features in advertising. ATA 

and most U.S. carriers, such as US 

Airways and Delta Air Lines, support 

this proposal. American Airlines states 

that non-aviation services should be 

offered on an ‘‘opt in’’ basis, but that 

aviation services that most consumers 

expect as part of their travel should be 

pre-selected. American notes that this 

will allow consumers to customize their 

travel options. IATA does not oppose 

the prohibition on opt-out provisions. 

AEA notes that EU Regulation 1008/ 

2008 already has an opt-in requirement. 

Qantas Airlines opposes this regulation, 

stating that it feels customers appreciate 

pre-selected options. ASTA supports a 

prohibition on ‘‘opt-out’’ features in 

price advertising. 

DOT Response: The Department has 

decided to prohibit the use of opt-out 

provisions by carriers and ticket agents. 

The fact that consumers often don’t 

realize that optional services are 

included in the total price of the ticket 

due to the deceptive nature of such optout provisions, is borne out by 

consumer comments. Many industry 

organizations also support prohibiting 

opt-out provisions. In addition, this 

action will align the United States with 

the consumer protection laws of other 

jurisdictions which prohibit opt-out 

provisions, including the European 

Union through its regulation 1008/2008. 

We do not agree with airline comments 

that consumers like having certain 

airline related services preselected for 

convenience sake so that they can see 

the total cost of travel with those 

services. We believe that having opt-in 

selections achieves the same goals of 

allowing travelers to customize their air 

transportation packages to their travel 

needs and see the total cost of travel 

with those service while eliminating the 

unfair and deceptive practice of preselecting items that the consumer has 

not selected and does not necessarily 

realize are pre-selected until late in the 

process — sometimes after a purchase is 

complete. This rule would prohibit optout provisions for any ancillary fee for 

an optional service such as seat 

selection, seat upgrades, pre-boarding, 

travel insurance, rental cars, and 

transfers to and from the airport. Under 


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this rule, an optional service can be 

added to the total airfare to be paid by 

the consumer only if the consumer 

affirmatively agrees to pay a fee for such 

service, i.e. by checking a box for that 

service or other concrete action. 

8. Baggage and Other Fees and Related 

Code-Share Issues 

A. Covered Entities 

The NPRM: In the NPRM, the 

Department proposed to require all U.S. 

and foreign air carriers that have 

websites accessible to the general public 

in the United States through which 

tickets are sold to provide notice to 

consumers about baggage fees and 

allowances and other ancillary fees that 

the carrier may charge. More 

specifically, the NPRM proposed: (1) 

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) notice on eticket 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 (3) disclosure of all fees for optional 

services in one central place on the 

seller’s website. The Department noted 

that the recent trend to unbundle 

services and charge separate fees for 

services that may have once been 

included in the cost of a ticket has led 

to consumers having difficulty 

determining the total price they must 

pay to travel by air. The Department 

requested comment on whether these 

requirements to disclose baggage and 

other fees should apply to ticket agents 

as well as carriers. We also invited 

comment on alternative proposals, 

including whether the Department 

should limit the applicability of the 

disclosure requirements to all flights 

operated by U.S. carriers, U.S. and 

foreign carriers that operate any aircraft 

with 60 or more seats, or U.S. and 

foreign air carriers that operate any 

aircraft with or 30 or more seats. 

Comments: Many consumers state 

that the type of fee disclosures 

contemplated in the proposed rule 

should apply to all sellers of air 

transportation. Some consumers relayed 

experiences where they felt fees were 

hidden when booking on online travel 

agency websites. CTA and BTC state 

that this section should apply to ticket 

agents as well as carriers, but they both 

note that the agents need accurate and 

up to date information from the airlines 

via the GDSs in order to provide 

accurate information to consumers. 

USTOA contends that the disclosure 

requirements, as proposed, should not 

be applied to ticket agents because the 

airlines are updating and changing fees 

constantly, and the cost to agents to 

ensure that the various airline fees they 

display are correct would be 

burdensome. USTOA proposes that 

instead ticket agents simply be required 

to inform consumers on their websites 

and on e-ticket confirmations that 

baggage and other charges may apply by 

stating that ‘‘airline fees for baggage and 

other optional services may apply to 

your journey; please consult with your 

airline for information on those fees.’’ 

USTOA further states that in the event 

that the Department concludes that 

additional specific information should 

be provided by ticket agents, it should 

allow ticket agents to provide 

hyperlinks to the locations on the 

airline websites where specific 

information may be obtained. ITSA does 

not object to extending the requirements 

to disclose baggage and other fees to 

ticket agents, but notes that if the 

information is not provided to the GDSs, 

the costs associated with agencies 

constantly updating information are 

high and the possibility exists that the 

information may not be accurate. ASTA 

takes a similar position to ITSA in 

regards to applying the disclosure 

requirements to ticket agents. 

DOT Response: The Department has 

decided that the requirements to 

provide specific notice to consumers 

about baggage fees and allowances and 

other ancillary fees shall apply to all 

U.S. and foreign carriers that advertise 

or sell air transportation in the U.S. We 

are not limiting the applicability of the 

disclosure requirements to flights of 

only U.S. carriers, as the harm to the 

consumer is the same whether the lack 

of information about baggage and other 

ancillary fees involve flights operated by 

a U.S. carrier or a foreign carrier. We are 

also not limiting the applicability of 

these requirements based on the size of 

the aircraft that carriers operate as we 

believe that disclosure of add-on fees is 

an issue of sufficient significance to 

warrant application of this requirement 

to aircraft of all sizes. Consumers want 

to be informed of the fees that they will 

be required to pay for optional services 

regardless of the size of the aircraft on 

which they travel. 

The Department also believes that it is 

important to ensure that consumers are 

alerted to airline-imposed fees that may 

be applicable to itineraries purchased 

through ticket agencies. However, we 

are persuaded by USTOA and others to 

apply a more limited requirement to 

ticket agents, particularly since the 

Department is deferring decision on 

whether to require U.S. and foreign 

carriers to give ancillary fee information 

to GDSs. Therefore, unlike the case for 

U.S. and foreign air carriers, this final 

rule does not require ticket agents to 

disclose on their website information 

about changes in baggage fees or 

allowances or to list on their website all 

of the airlines’ fees for optional services. 

The final rule does, however, require 

ticket agents (and carriers) to inform 

passengers on the first screen in which 

the ticket agent or carrier offers a fare 

quotation for a specific itinerary 

selected by a consumer that additional 

airline fees for baggage may apply and 

where consumers can go to see these 

baggage fees. This notification on the 

website must be clear, conspicuous and 

prominent. To comply with this 

requirement, ticket agents can choose 

between referring consumers to their 

own site where the baggage fees are 

displayed or to the airline websites 

where specific information may be 

obtained. This requirement is consistent 

with prior guidance provided by the 

Department’s Aviation Enforcement 

Office. See, Notice of the Assistant 

General Counsel for Aviation 

Enforcement and Proceedings, Guidance 

on Disclosure of Policies and Charges 

Associated with Checked Baggage, May 

13, 2008, http://airconsumer.dot.gov/ 

rules/guidance.htm. The final rule also 

requires ticket agents (and carriers) to 

include on e-ticket confirmations 

information about the free baggage 

allowance and the applicable fee for the 

first and second checked bag and carryon but allows ticket agents, unlike 

carriers, to do so through a hyperlink. 

We also want to make clear that when 

using the term ‘‘ticket agents’’ we are 

referring not only to agents of the 

carriers but also others who meet the 

definition of ‘‘ticket agent’’ contained at 

49 U.S.C. 40102 (a)(40), i.e., one who as 

a principal sells, offers for sale, 

negotiates for or holds itself out as 

selling, providing or arranging for air 

transportation. 

B. Disclosure of Baggage Fees 

The NPRM: In 2008, the Department’s 

Aviation Enforcement Office issued 

guidance concerning the disclosure of 

baggage fees to the public. In that notice, 

the office stated that it views a carrier’s 

failure to clearly disclose significant 

conditions applicable to air fares, such 

as baggage fees, to be an unfair and 

deceptive practice and unfair method of 

competition in violation of 49 U.S.C. 

41712. It described steps that carriers 

should take to ensure that they are 

providing prominent and timely notice 

of their baggage policies and charges. 

For example, the office suggested 

carriers place a notice on the home page 

of their website highlighting new 


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baggage policies and charges. See, 

Notice of the Assistant General Counsel 

for Aviation Enforcement and 

Proceedings, Guidance on Disclosure of 

Policies and Charges Associated with 

Checked Baggage, May 13, 2008, http:// 

airconsumer.dot.gov/rules/ 

guidance.htm. 

In the instant proceeding, the 

Department proposed to codify this 

guidance document by requiring carriers 

that maintain a website that is 

accessible to the general public to 

prominently disclose on the homepage 

of that website for at least three months 

any increase in the fee for passenger 

baggage or any change in the free 

baggage allowance for checked or carryon baggage. The Department proposed 

that this notice could appear in its 

entirety on the home page or could be 

accomplished through a prominent, 

conspicuous hyperlink (e.g., ‘‘Revised 

Baggage Fees’’) that leads to an 

explanation of the carrier’s baggage 

policies and fees. The Department 

invited comment on this proposal, 

including comment on how long the 

notice should remain on the page and 

the best options for displaying the 

information to consumers. 

The NPRM also proposed to require 

carriers that issue e-ticket confirmations 

to include information on that 

confirmation regarding the free baggage 

allowance for that flight and the 

applicable fee for the first and second 

checked bag and carry-on bag. The goal 

of this proposed rule was to provide the 

specific information regarding a 

particular consumer’s baggage 

allowance well before that consumer 

arrives at the airport with bags packed. 

The Department invited comment on 

this proposed section. 

Comments: Most individual 

commenters and commenters from 

consumer groups did not address this 

proposal specifically, but 

overwhelmingly commented that, in 

general, they supported more 

disclosures. Individual commenters, 

through the Docket and through 

Regulation Room, noted how they are 

sometimes surprised by additional 

baggage fees when they check-in at the 

airport. CTA states that two out of three 

travelers responding to their survey 

were surprised by fees upon checking in 

for a flight at the airport. Many 

commenters wanted the Department to 

limit the carrier’s ability to unbundle 

certain fees from the base fare, 

particularly baggage fees for the first 

checked bag. These commenters feel 

that carriers are ‘‘nickel and diming’’ 

passengers instead of trying to improve 

service. Other commenters found value 

in the a la carte pricing models of 

carriers because the models allow 

travelers to customize their trips. The 

individual commenters who were not 

opposed to unbundling fees generally 

support more disclosure of fees to the 

consumer before purchase. 

ATA and most U.S. carriers support 

more disclosure regarding changes in 

baggage fees. ATA supports the proposal 

to put notice of fee changes on a 

carrier’s homepage and states that the 

best method for providing this notice is 

to put a hyperlink on the homepage. 

ATA notes that three months is a long 

enough time to require the information 

on the change to be on the website. Most 

U.S. carriers submitted comments 

similar to ATA’s on the proposal to 

disclose baggage fee changes. Virgin 

America states, however, that the 

Department should refrain from 

establishing too much specificity or 

detail because such a regulation would 

detract from competitive market forces 

on how airlines design and set up their 

own websites. Furthermore, Virgin 

America notes that many carriers are 

developing mobile applications where 

screen space is limited. Allegiant 

Airlines opposes what it sees as 

attempts by the Department to 

micromanage how websites appear and 

how information is shared with 

consumers in the absence of a clear 

attempt by carriers to deceive 

consumers. 

Foreign carriers and carrier 

associations generally were not in favor 

of what they view as increased U.S. 

government regulation of the 

appearance of websites that are not 

maintained in the United States. IATA 

warns that this proposal could be an 

extraterritorial application of U.S. law. 

IATA further states that most carriers 

already have baggage fee information 

readily available on their website, and 

most carriers do not charge for one or 

two checked pieces of baggage to or 

from the United States, so adding extra 

notice and advertising requirements to a 

carrier’s website would increase costs 

greatly. The National Airlines Council 

of Canada agrees with disclosure of fees 

on websites, but disagrees with the 

requirement to place a link to the 

disclosure on the homepage. Jetstar 

Airways opposes posting notice about 

the change directly on the homepage of 

the carrier, asserting that space issues 

could limit airlines’ ability to clearly 

disclose the changes and advertise 

products and services. Qantas raises 

similar concerns, noting that the 

Department should not dictate the 

content of a carrier’s website or 

homepage. Lufthansa believes that the 

Department did not establish why these 

disclosure rules are necessary, but does 

note that it already provides most of this 

information. Condor Flugdienst notes its 

objection to requiring changes to 

baggage allowances to be posted on the 

homepage, stating that failure to provide 

notice of a change is a violation of 49 

U.S.C. § 41712 under Department 

guidance and that there is no need, 

therefore, for the Department to codify 

this requirement. Air France and KLM 

contend that having the information 

regarding baggage fee changes stand 

alone on the homepage would be costly. 

Those carriers suggest that this 

information’s location on the website 

should be left to the airline’s discretion 

and that a time period of one to two 

months would be enough time for 

consumers to be aware of the change. 

With regard to disclosure of baggage 

information on e-ticket confirmations, 

as with the proposal to disclose such 

information on carriers’ websites, most 

individual consumers and consumer 

groups support any provision that 

provides the consumer with more 

information and prevents consumers 

from being surprised about hidden fees. 

Some individuals specifically contend 

that baggage allowance disclosures 

should also include information 

regarding excess weight and excess 

baggage charges. Many consumers feel 

that the disclosure of baggage fees 

should occur earlier in the process, not 

after purchasing the ticket. One 

commenter noted that e-ticket 

confirmations are not required, and that 

some carriers still use paper tickets. 

This commenter noted that any 

requirement for disclosure of baggage 

fees on an e-ticket confirmation would 

not help consumers who are provided 

paper tickets because those consumers 

would not have that information. This 

commenter believes that the Department 

should clearly define what a ticket is, 

and then require baggage fee disclosures 

to be in the same method as the 

purchaser receives the ticket. 

ATA and most U.S. airlines do not 

have an objection to this requirement, as 

many carriers currently provide this 

information in the e-ticket confirmation. 

US Airways and Delta Air Lines support 

baggage disclosures on e-tickets. Spirit 

Airlines supports baggage fee 

disclosures on e-tickets through a 

hyperlink to baggage information. IATA 

is not opposed to a provision requiring 

airlines to include information 

regarding optional services in e-tickets 

after a purchase is complete. AEA also 

states that it is not opposed to providing 

this information on an e-ticket. AEA 

points out that EU Regulation 1008/ 

2008 mandates that optional price 

supplements be communicated in a 

‘‘clear, transparent and unambiguous 


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way.’’ Some foreign carriers assert that 

requiring the information on the e-ticket 

confirmation is regulatory overkill, as a 

consumer cannot complete a purchase 

without becoming aware of the fees due 

to other government regulations. Other 

carriers state that due to the abundance 

of disclosure prior to completion of 

purchase, a carrier should not be 

required to provide all of the 

information in full on an e-ticket as that 

would be costly. All Nippon Airways 

expressed concerns about the costs of 

redesigning their e-ticket confirmations, 

noting that a recent overhaul cost 

upwards of $145,000. Some carriers, 

such as Air France and KLM, note that 

they already have a system in place to 

provide information about baggage on 

the e-boarding pass issued via Internet 

check-in. 

DOT Response: The Department has 

decided to require U.S. and foreign 

carriers that advertise or sell air 

transportation in the United States to 

promptly and prominently disclose any 

increase in its fees for carry-on or 

checked baggage and any change in the 

checked baggage allowance for a 

passenger on the carrier’s homepage. 

Such notice must remain on the 

homepage for at least three months after 

the change becomes effective. This rule 

is consistent with current enforcement 

policies regarding the disclosure of 

changes in baggage fees. Additionally, 

the Department feels that this rule will 

prevent passenger surprise about 

changes in baggage fees or allowances. 

We agree with consumers and consumer 

groups, who advocate that greater 

disclosure of fees, and particularly 

baggage fees, is needed. Recognizing the 

concerns raised by carriers, particularly 

foreign carriers, about space on a 

carrier’s homepage and a carrier’s 

legitimate need to be able to design a 

website that is competitive and presents 

information in a clear way, the 

Department will allow carriers to fulfill 

the notice requirements by providing a 

link from the homepage directly to a 

pop-up or a place on another webpage 

that details the change in baggage 

allowance or fees and the effective dates 

of such changes. The link on the 

homepage needs to be descriptive, clear 

and conspicuous, i.e., easy for a 

consumer to locate. The link need only 

remain on the homepage for a period of 

three months after the change becomes 

effective. Most commenters agreed that 

three months is a long enough time to 

ensure that consumers are aware of any 

change in baggage fees or allowances. 

The Department disagrees with Air 

France and KLM, which suggest that the 

carriers be allowed to decide where on 

their website to display the information 

and that the information should only 

remain active on the website for one or 

two months. Changes that occur need to 

be posted on the website for a sufficient 

time in order to allow consumers to 

review the changes not only prior to 

choosing a flight but also after they 

chose a flight and are preparing to 

travel. The Department believes that 

allowing carriers to decide where the 

notice should be given may result in 

some carriers placing the information in 

an inconspicuous location on the 

website. If such information is difficult 

for consumers to find, they may not be 

aware of the change until after arrival at 

the airport and the consumer cannot 

evaluate the impact of the change in 

baggage fees and allowances on his or 

her scheduled transportation, which 

limits consumer choice. 

The Department has also determined 

that there is value in providing a 

consumer information regarding baggage 

fees and allowances after the consumer 

completes a purchase for air travel. 

Therefore, the final rule requires U.S. 

carriers and foreign carriers and ticket 

agents that advertise or sell air 

transportation in the United States to 

provide information on e-ticket 

confirmations regarding the passenger’s 

free baggage allowance and/or the 

applicable fee for a carry-on bag and the 

first and second checked bag. By 

‘‘applicable fee,’’ we mean the baggage 

fee information provided on the e-ticket 

confirmation cannot simply be a range 

of fees but must include information 

about any price that may exist for a 

carry-on bag and the first and second 

checked bag and any differing price that 

may exist depending on the passenger’s 

status (e.g., frequent flyer, military 

personnel), on when the payment for 

the bag is made, or and on whether a 

consumer checks his or her bag online 

rather than at the airport. As explained 

in the section on covered entities, 

because they may not know the most 

recent carrier baggage policies, ticket 

agents may provide details on where to 

obtain this information by a hyperlink 

to the locations on the airline websites 

where specific information may be 

obtained since the airlines often update 

and change fees. The Department notes 

that this requirement will benefit 

consumers because it will reduce 

confusion over whether, and, if so, how 

much they will have to pay to check or 

carry-on bags. Additionally, this will 

save the time of both consumers and 

airline employees at the airport, because 

consumers will be notified in advance 

of check-in what the applicable fees are 

for a carry-on bag and the first and 

second checked bags. The Department 

notes that carriers are already providing 

this information to consumers in 

compliance with existing enforcement 

policies. We disagree with the assertion 

by some carriers that consumers cannot 

complete a purchase without first 

becoming aware of the applicable 

baggage fees. Given the advent of new 

fees, such as fees for carry-on bags, the 

differing price for first and second 

checked bags, and the price difference 

that sometimes exists if a consumer 

checks his or her bag online versus 

checking the bag in at the airport, the 

Department believes that it is not a 

simple matter for consumers to 

determine the total price to transport 

their baggage. Additionally, the 

Department disagrees with airlines that 

assert that the disclosure requirements 

are burdensome, as most carriers 

already provide this information in one 

form or another. 

C. Disclosure of all Ancillary Fees 

The NPRM: The Department proposed 

to require carriers that have a website 

accessible to the general public to 

disclose all fees for optional aviation 

services in one central place on their 

website, so that consumers have an 

easily accessible reference guide for the 

cost of these services. This disclosure 

was proposed to be made through a link 

from the carrier’s homepage directly to 

a listing of those fees. The Department 

invited general comment on this 

proposal. We also asked for comment on 

whether only ‘‘significant’’ fees for 

optional services should have to be 

listed and, if so, how to define a 

‘‘significant fee.’’ The Department also 

asked for suggestions for alternatives to 

the easily accessible link from the 

homepage for this disclosure. 

Comments: Generally, the majority of 

consumers and consumer groups agreed 

with requiring carriers to disclose 

ancillary fees on their website. They 

contend that airlines hide their fees, and 

that requiring disclosure will benefit 

consumers’ ability to comparison shop 

and avoid surprise fees. Many consumer 

commenters urge the Department to 

require that the listing of optional fees 

on carriers’ websites be standardized. 

However, some commenters, 

commenting through the discussion on 

Regulation Room, expressed concern 

that a large fee table could be confusing 

to inexperienced or unsavvy casual 

travelers. Some consumers and 

consumer organizations assert that 

requiring the disclosure of ancillary fees 

does not go far enough and ask that the 

Department establish a list of ancillary 

services for which airlines are 

prohibited from charging a fee. 


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ATA generally supports the proposal 

requiring airlines to disclose fees for 

ancillary services on a carrier’s website 

through a link, but feels that disclosure 

of such fees on e-ticket confirmations 

would be burdensome. ATA contends 

that some fees vary based on the flight 

and itinerary, such as food and beverage 

items. ATA, as well as industry groups 

such as ASTA and ITSA, do not see a 

reason why the disclosure should be 

limited to significant fees. US Airways 

generally supports this proposal, but 

requests sufficient lead time to fully 

implement the website changes required 

to list the fee information. US Airways 

notes that if the Department requires 

disclosure of these fees earlier in the 

process, the programming costs would 

increase to cover the complexity of new 

programming, and sufficient lead time 

would be required. Delta states that it 

already has a page that lists these fees, 

and does not object to a requirement 

that all carriers maintain such pages. 

DOT Response: The Department has 

decided to require U.S. and foreign 

carriers to have one, central webpage on 

their website, linked from the carrier’s 

homepage, which lists all ancillary fees. 

The reason for this requirement is that 

Department considers it too difficult 

currently for consumers to effectively 

comparison shop and determine the 

total cost for travel, including ancillary 

fees for optional services. Not all 

carriers provide information regarding 

charges for various services, such as seat 

assignments, extra leg room, priority 

boarding, telephone reservations, and 

seat upgrades in a centralized location 

so that it is easily accessible for the 

consumer to review prior to purchase. 

The Department considers it to be unfair 

and deceptive to charge an ancillary fee 

to a consumer, when that consumer had 

no simple, practical, and reasonable 

way of knowing about the fee prior to 

purchasing the ticket. Having a single 

listing of all of the ancillary fees that a 

carrier charges for optional services 

allows the consumer access to greater 

information without unduly burdening 

the carrier or stifling the carrier’s need 

to compete on such services. 

The Department agrees with 

commenters that state that all fees 

should be listed. We believe that there 

is no practical way to identify what is 

‘‘significant,’’ as each traveler, and even 

airline, might differ over what is 

significant. Therefore, the Department 

believes that to ensure adequate 

protection of consumers, as well as to 

ensure a level playing field among 

airlines, it is best to require carriers to 

list all fees. This includes, but is not 

limited to, fees for checked baggage, 

carry-on baggage, overweight bags, 

meals, on-board entertainment, Internet 

connections, pillows, blankets, 

advanced or upgraded seating 

assignments, telephone reservations, 

early boarding, canceling or changing 

reservations, unaccompanied minors, 

and pet transportation. ATPCO has 

identified more than a hundred optional 

services and assigned each of those 

services a code. While the ATPCO list 

may not be an exhaustive list of services 

that are now offered or that will in the 

future be offered, the Department 

suggests that carriers may wish to use 

the ATPCO list of charges as a reference 

in developing a list of all optional 

services and fees to put on their 

websites. 

The Department understands the 

carriers’ concern that the availability 

and price of some items vary depending 

on a number of factors such as the type 

of aircraft being used, the frequent flyer 

elite status of a passenger, the flight on 

which a passenger is booked, or the time 

at which a passenger pays for the 

optional service. For non-baggage 

related optional services, carriers can 

provide a range of fees, acknowledging 

that they vary based on those types of 

factors. For example, if food and 

beverage service prices vary among 

flights, an airline can state that meals or 

snacks are available for purchase, and 

then give a range of prices for such 

meals and snacks. 

This use of a range of fees would not, 

however, be acceptable under the rule 

with regard to fees in connection with 

checked or carry-on baggage, which are 

so fundamental to air travel and have 

until relatively recently been included 

in the price paid for travel on all 

carriers. With regard to those fees, we 

are specifically requiring that carriers, at 

a minimum, provide information about 

(1) any differing price that may exist for 

the first, second, third, or more checked 

and carry-on bag or overweight/ 

oversized bag and (2) any differing price 

and allocation (e.g., whether or not a bag 

checked for free counts toward overall 

allowance) that may exist for each bag 

depending on the passenger’s status 

(e.g., frequent flyer, military personnel), 

on when the payment for the bag is 

made, or whether a consumer checks his 

or her bag online versus checking the 

bag at the airport. If an airline offers 

discounted baggage fees through status 

as a member in a paid or unpaid 

membership ‘‘club,’’ information 

regarding these programs should be 

offered as well. The Department 

believes that listing the fees in one place 

will allow consumers greater access to 

information, prevent the problem of 

hidden fees, and prevent confusion at 

the airport or in-flight due to an 

unexpected charge. It should also 

enhance competition, as consumers will 

be better able to compare costs among 

carriers for the trip that they plan to take 

with the services that they would like to 

have. With regard to commenters who 

wanted the Department to mandate 

certain ancillary items that must be free, 

the law does not provide us the 

authority to do so. 

D. Global Distribution Systems 

The NPRM: The Department stated in 

the NPRM that it was considering 

requiring carriers to make information 

about charges for optional services 

available to global distribution systems 

(GDSs). The Department considered this 

proposal due to the fact that a 

significant portion of consumers 

purchase their air travel and air tours 

though travel agencies, both online and 

traditional brick-and-mortar agencies. 

The Department invited comments on 

the ability of carriers to provide this 

information in a usable format and the 

potential costs and benefits associated 

with providing this information to 

GDSs. 

Comments: ATA and most of its 

members strongly oppose a requirement 

that forces airlines to provide ancillary 

fee information to GDSs. First, ATA 

notes that this is a competitive issue and 

would interfere with ongoing 

negotiations among carriers, GDSs, and 

travel agents, and would inject 

government regulation into private 

market decision making. ATA notes that 

GDSs already have a great share of the 

market for air transportation bookings, 

and warns that fares could increase to 

cover the charges the GDSs would likely 

levy on carriers that are required to 

provide this information to them. ATA 

also questions the existence of any 

unfair or deceptive practice this 

requirement would prevent. 

Most U.S. carriers agree with ATA’s 

position. US Airways does not believe 

the Department should mandate 

disclosure in a particular format, seeing 

this as interference with market forces. 

Delta Air Lines believes that this rule 

would affect its bargaining position with 

the GDSs and their ability to explore 

different options for sharing of this 

information with the GDSs. American 

Airlines contends that a carrier should 

have the ability and power to decide 

how to market its ancillary services. 

American states that requiring 

disclosure would unfairly bolster the 

GDS market power. In a joint filing, 

American Airlines, Continental 

Airlines, Delta Air Lines, United Air 

Lines, and US Airways reiterate the 

carriers’ commitment to providing fee 

information to consumers, but assert 


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that interfering in market negotiations 

would harm competition and ultimately 

would harm consumers. These airlines 

note that providing fee information 

about optional services to consumers is 

good for the airlines because airlines are 

in the business of selling tickets and 

selling these ancillary services. They 

assert that carriers should be allowed to 

market their services how they see fit 

and to decide how to provide their 

customers with the greatest access to 

information and choice. The carriers 

reiterate ATA’s point that requiring 

airlines to furnish this information to 

GDSs would harm consumers by 

increasing airline distribution costs, 

arguing that GDSs would charge the 

airlines fees to upload the information 

into the GDS system. The carriers note 

that many travel agents, including 

online travel agents, already have access 

to and disclose fee information, 

referring to the Expedia website which 

has a chart of baggage fees. The carriers 

contend that the GDS distribution 

system is anti-competitive and not 

efficient, and that requiring the airlines 

to provide fee information will further 

bolster the market power of the GDSs 

without allowing for substantive 

competition from third-party vendors. 

Two U.S. carriers did not object to 

providing ancillary fee information to 

GDSs. Spirit Airlines does not oppose 

the proposal, unless it would impose 

significant costs on carriers to change 

the format the carriers already use to 

provide the information to the GDSs. 

Southwest Airlines supports limited 

transmittal of fee information to GDSs in 

order to provide information to all 

consumers, regardless of how they book 

their flights. Southwest states, however, 

that the requirement should only 

obligate carriers to furnish this 

information to existing GDS partners. 

Southwest opposes allowing GDSs to 

charge fees for collecting data on 

ancillary services. Southwest notes that 

carrier participation in GDSs and other 

distribution channels for selling air 

transportation is a strategic business 

decision by each carrier. The carrier also 

supports a provision that would require 

all carrier-imposed surcharges, such as 

seasonal fare adjustments, to be 

included in the fare information 

provided to GDSs. 

IATA and most of the other foreign air 

carrier organizations oppose requiring 

carriers to provide ancillary fee 

information to GDSs as well, although 

they support carriers providing 

information about ancillary fees and 

services on carrier websites. The 

National Airlines Council of Canada 

agrees with the disclosure of fees in 

general, but recommends that the 

Department not mandate the method of 

disclosure. It notes that this information 

is most effective when presented to the 

customer within the flow of the 

transaction, as Air Canada does on its 

website. Some carriers, such as Jetstar 

Airways and Qantas, oppose providing 

the fees for optional services to 

consumers via a static webpage, stating 

that it is more helpful for consumers 

and airlines to focus ancillary fee 

information to a particular booking. 

Other carriers, such as Virgin Atlantic, 

note that they already file this 

information with ATPCO, thus allowing 

for access by GDSs. 

The vast majority of consumers and 

consumer groups (e.g., BTC, CTA, 

Flyersrights.org) support the 

Department requiring airlines to 

disclose their ancillary fee information 

to the GDSs. BTC and CTA urge the 

Department to establish uniform 

standards for fee disclosures, on the 

basis that airlines may add new fees in 

the future. Both of those organizations 

state that airlines artificially deflate the 

cost of a fare so that they can tack on 

high ancillary fee charges that are 

hidden from the consumer during an 

initial fare search. 

ITSA and ASTA implore the 

Department to require airlines to share 

ancillary fees with the GDSs. ITSA notes 

that a passenger who wants to search for 

a fare that includes a checked bag and 

a pre-assigned seat will have to spend 

a great deal of time and have to be 

especially computer savvy to find the 

total amount he or she would have to 

pay for their travel because the fees are 

hidden on carriers’ websites. ITSA, 

representing GDSs, states that at least 

50% and possibly as high as 60% of the 

traveling public relies on travel agents 

to comparison shop for fares. ITSA 

argues that without this information 

from GDSs, brick and mortar travel 

agencies and online travel agencies 

cannot adequately state the total cost of 

travel to their clients. ITSA notes that 

the Department already requires 

information beyond the base fare to be 

provided to the GDSs such as codeshare information and change of gauge 

information. ITSA asserts that the costs 

of this requirement would be low as it 

believes the technology is already in 

place to distribute the fee information. 

ITSA further adds that the Department’s 

mandate to prevent unfair and deceptive 

practices trumps claims that disclosure 

should be left to private market 

negotiations. ITSA believes that merely 

requiring carriers to post the fee 

information on a webpage is not 

adequate to alleviate the problems of 

hidden fares or reduce the time it takes 

to comparison shop. Uniglobe Travel, 

Travizon, Inc., and individual travel 

agents that commented in the docket 

support the proposal to require that 

carriers provide ancillary fee 

information to GDSs. 

Many third party commenters 

submitted comments related to 

providing ancillary fee information to 

GDSs. Several members of Congress 

wrote in support of a requirement 

obligating carriers to submit their 

ancillary fee information to GDSs. A 

member of the European Parliament also 

expressed his support for issuing a rule 

so that passengers booking through a 

GDS system are aware of the total price 

of the ticket before purchase. The New 

York State Consumer Protection Board 

states a similar position that information 

about fees should be distributed to 

consumers through a wide variety of 

channels, not just through a link on the 

carrier’s website. 

Farelogix, a third party distribution 

and management technology firm, 

opposes the proposal to require that the 

carriers provide information to GDSs. 

Farelogix believes that GDSs should 

coordinate directly with the airline. The 

firm does not think that the GDSs 

should be able to mandate the format of 

the information. Farelogix notes that the 

GDSs are resistant to third party 

technology to transfer information in 

order to preserve their place in the 

travel market, and states that this 

proposed requirement will further limit 

third parties from entering the travel 

technology marketplace. An airline 

consultant makes several similar points. 

This consultant points out that if the 

Department requires carriers to provide 

information about fees for optional 

services to GDSs, the airlines’ 

bargaining leverage is eroded and the 

higher distribution costs the airlines 

will face will be passed on to 

consumers. The consultant notes that 

negotiations to sell ancillary services are 

working in some respects, using 

examples of United Airlines selling 

Economy Plus service through Sabre, 

Midwest Airlines selling seat 

assignments through Sabre, and Finnair 

selling ancillary services through 

Amadeus. This individual believes that 

these fees are not hidden, and notes that 

most of these fees are not charged until 

check-in or onboard the flight. A 

professor at Harvard Business School 

comments that compelling airlines to 

provide fee information to GDSs will 

have far-reaching and unintended 

consequences on existing contractual 

structures between airlines and GDSs. 

He believes that if a requirement to 

provide fees for optional services is 

adopted, the GDSs will mark up prices 

considerably because airlines will be 


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23150 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

forced to disclose pursuant to 

government rule. The Airline Tariff 

Publishing Company (ATPCO), without 

taking a position on the merits of the 

proposal, notes that it has systems in 

place that could help implement any 

requirement regarding carriers sharing 

fee information with GDSs. 

DOT Response: We have decided to 

defer final action on this proposal. The 

Department’s goal to protect consumers 

from hidden and deceptive fees and to 

allow consumers to price shop for air 

transportation in an effective manner 

remains paramount. The Department’s 

goal is to provide all air travel 

consumers with easy access to 

information about fares and optional 

fees, particularly baggage fees. As 

discussed earlier, this final rule requires 

U.S. and foreign carriers to disclose on 

their website information about changes 

in baggage fees or allowances and to list 

on their website all of the airlines’ fees 

for optional services. The final rule also 

requires both carriers and ticket agents 

to provide information on the first 

screen in which the ticket agent or 

carrier offers a fare quotation for a 

specific itinerary selected by a 

consumer that additional airline fees for 

baggage may apply and where 

consumers can go to access these 

baggage fees. In addition, ticket agents 

and carriers must include on e-ticket 

confirmations information about the free 

baggage allowance and the applicable 

fee for the first and second checked bag 

and carry-on. We believe that these 

steps partially address the problem of 

hidden and deceptive fees and allow 

consumers to price shop for air 

transportation. The Department is 

cognizant that some parties feel that 

requiring carriers to provide information 

on their ancillary fees to GDSs would be 

a reasonable way, if not the best way, to 

ensure consumers can easily 

comparison shop for air fares. We 

cannot at this time agree that it is in the 

public interest to mandate that step, 

since we lack information critical to a 

decision on the issue. Thus, in order to 

permit us time to obtain additional 

information about costs, benefits and 

consequences of requiring U.S. and 

foreign carriers to provide ancillary fee 

information to GDSs, including those 

involving competition, the Department 

is deferring final action on this matter. 

The Department wants to ensure that 

any action it takes does not have 

unintended consequences, particularly 

given the sensitive nature of the market 

and the negotiations currently taking 

place between carriers and the GDSs. 

E. Display of Two Fares in Advertising 

The NPRM: The Department asked for 

comment on the costs and benefits of 

displaying two fares in airfare 

advertising. The first price would be the 

full fare (i.e., fare with all mandatory 

charges) and the second price would be 

that full fare plus the cost of baggage 

charges that traditionally have been 

included in the price of the ticket, if 

these prices differ. The Department 

asked whether the second fare should 

only include the price of baggage 

charges or whether it should also 

include other services traditionally 

included in air travel such as obtaining 

a seat assignment in advance. The 

Department also solicited comment on 

the cost and feasibility of requiring 

sellers of air transportation to allow 

consumers to conduct fare queries for 

their specific needs (e.g., airfare and two 

checked bags, or airfare, one checked 

bag and extra legroom) and select the 

services they wish to include in the 

price of the travel. 

Comments: Individual consumers and 

consumer groups are divided on the 

helpfulness of any requirement for a 

carrier to display two fares in response 

to a fare inquiry. Some commenters and 

groups assert that this type of fare 

display system could be helpful for 

comparison shopping. Commenters who 

participated in the discussion on the 

Regulation Room site were divided. 

Some state that such a dual fare display 

could be helpful, but others claim it 

would be confusing. Individuals 

commenting to the docket expressed 

similar opinions. Most were in favor of 

more robust disclosure, especially 

regarding baggage fees. Many who 

favored a dual fare disclosure disagreed, 

however, on what should be included in 

the second fare of a two-fare display 

system. Some state that just the cost of 

baggage should be included. Others 

contend that baggage, blankets, pillow, 

and a seat assignment should also be 

included. The idea that consumers 

could select the ancillary services they 

wished before receiving a fare quote had 

many supporters. CTA supports the 

approach to airfare searching that would 

allow a consumer to select the services 

and fees they wish to be included in 

their travel. 

ATA does not support the two-fare 

model. ATA states it would be 

confusing for passengers. It adds that 

the Department does not have enough 

information to impose this requirement. 

ATA and certain U.S. carriers note that 

there are questions and ambiguities as to 

what is ‘‘traditionally included in the 

price of a ticket.’’ As many U.S. carriers 

noted, each passenger’s needs are 

different, so the second fare would be 

confusing or of little help to many 

consumers. 

IATA contends that a two-fare display 

system could be confusing and should 

not be mandated, as many carriers 

already have an established online 

advertising regime that includes an 

online menu of optional services 

presented to the consumer through the 

course of their purchase. IATA asserts 

that requiring a two-fare model would 

be an unwarranted government 

intrusion on business practices. The 

Arab Air Carriers Organization states 

that a two-fare model would be 

unworkable and prohibitively 

expensive, as most carriers’ reservations 

systems would have to be reworked to 

accommodate a two-fare requirement. 

Many individual foreign carriers echoed 

the sentiments of IATA, including 

South African Airways and Lufthansa, 

which note that a carrier can always 

choose to adopt a two-fare system. 

British Airways states that if this 

proposal were to become a requirement, 

the requirement should only apply to 

fares that do not include one checked 

bag, and this requirement should apply 

to GDSs and travel agents as well as 

carriers. ITSA is not opposed to a twofare system, as long as the Department 

is clear about what would be included 

in the price. ATPCO notes that it has 

technology that could implement any 

required two-fare pricing model or a 

consumer self-selection model. 

DOT Response: The Department 

agrees with the commenters who feel 

that a ‘‘two-fare’’ display system would 

be too confusing for travelers. We agree 

that each traveler is unique with regard 

to what ancillary services he or she 

needs or wants on a particular flight, 

and therefore one ‘‘all-inclusive’’ price 

that includes baggage and a seat 

assignment may not be helpful to most 

passengers. The Department will also 

not require, at this time, that sellers of 

air transportation revise their online 

systems to allow consumers to conduct 

queries for specific optional services 

and the fees for those services before 

displaying a price. Although the 

Department understands that some Web 

sites may exist that have these 

capabilities and that some carriers 

utilize online menus for consumers 

from which to choose services during 

the booking process, the Department 

does not have enough information 

regarding the costs of implementing 

such a system to require that every 

carrier implement such an online 

system. 


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F. Services Provided by Code-Share 

Partners 

The NPRM: The Department sought 

comments as to whether in a code-share 

situation the marketing/ticketing carrier 

should be required to disclose through 

reservation agents, Web sites, and/or eticket confirmations any differences in 

services and fees applicable to a 

consumer between the marketing carrier 

and the operating carrier. The 

Department also asked whether there 

were any ancillary fees for services that 

should not be permitted to vary among 

code-share partners, such as the 

allowances and charges for baggage. The 

Department noted that its policy states 

that, for passengers whose ultimate 

ticketed origin or destination is a U.S. 

point, the baggage rules that apply at the 

beginning of the itinerary apply 

throughout the itinerary and provides 

that the marketing carrier’s rules take 

precedence. 

Comments: Most individual 

commenters and consumer groups, 

including Flyersrights.org, favor a rule 

that would require the marketing or 

ticketing carrier’s fees to apply for the 

whole trip. Some commenters, through 

Regulation Room, expressed the opinion 

that the lesser of the two fees should 

apply if the marketing carrier’s fees 

differ from the operating carrier’s fees. 

Most commenters support greater notice 

requirements regarding differing fee 

structures between code-share partners. 

Some commenters on Regulation Room 

specifically felt that the marketing 

carrier should provide greater 

information, especially if the operating 

carrier has more stringent or restrictive 

luggage requirements. 

ATA believes that disclosure of fees 

between code-share partners can be 

accomplished effectively through a 

hyperlink on the marketing carrier’s 

website directly to the operating 

carrier’s fee list. It opposes any attempt 

by the Department to standardize 

optional fees amongst code-share 

partners. ATA notes that attempts at 

standardization would be counter to the 

goals of deregulation and could be anticompetitive. It further states that 

standardization of fees could be 

impractical and costly for flights that 

have multiple code-share partners 

selling tickets on the same flight. US 

Airways comments that applying the 

marketing carrier’s rule is not feasible 

and would create different classes of 

passengers on the same aircraft. Delta 

states that ancillary fees should not be 

uniform amongst carriers and codeshare partners as that requirement 

would stifle competition. 

IATA states that requiring the 

marketing carrier to disclose fees of 

operating carriers is consistent with the 

Department’s policy regarding codeshare situations. IATA believes this 

notice can be accomplished through a 

hyperlink to the code-share partner’s 

website that details their fees. Singapore 

Airlines notes that it already provides 

information to consumers regarding 

significant differences in services and 

fees among partners. It states that the 

best way to accomplish this is to 

provide a link to the partner’s listing. 

The carrier also notes that its call center 

agents are trained to provide this 

information. However, Singapore 

Airlines states that if the Department 

proposes a harmonized scheme it 

should incorporate reasonable and 

commercially viable allowances and 

fees. Qatar Airways refers the 

Department to IATA Resolution 302 

(‘‘Baggage Provisions Selection Criteria’’) 

which will go into effect in April 2011. 

The carrier states that under this 

resolution, there will be no standard 

baggage allowances or charges, and each 

carrier will publish its own rules. Qatar 

Airways notes that in the event of a 

conflict between baggage allowances, 

the provision of the ‘‘Most Significant 

Carrier,’’ as determined by the 

Resolution, would apply. Qatar Airways 

urges the Department to adopt a similar 

proposal. Many foreign carriers such as 

Qantas, Air France, and KLM oppose a 

Department rule that would prohibit 

differences in baggage fees between the 

marketing and operating carrier, but do 

support disclosure of any differences 

between the carriers. 

DOT Response: After considering the 

comments regarding the differences 

between the ancillary services and fees 

between code-share and interline 

carriers, the Department has decided not 

to require code-share carriers to 

standardize their optional services and 

fees but to specify with respect to 

baggage which carrier’s allowances and 

fees apply. We believe that baggage 

rules and fees should be treated 

differently from fees for other optional 

services, as variations in baggage fees 

among code-share and interline partners 

are likely to result in significant 

inconvenience and confusion for many 

passengers. The Department has 

received complaints from consumers 

who have been faced with multiple, 

differing, and uncertain baggage 

allowances and charges on both codeshare and interline flights. Passengers 

experience significant difficulties when 

the baggage allowances and fees that 

apply at the beginning of their trip differ 

from what is applied later because their 

itineraries include sectors where the 

baggage rules differ, notwithstanding 

the fact that the passenger was traveling 

on a single, code-share or interline 

ticket, service that carriers continue to 

tout as ‘‘seamless.’’ 

This final rule requires that for 

passengers whose ultimate ticketed 

origin or destination is a U.S. point, the 

baggage allowances and fees that apply 

at the beginning of the itinerary apply 

throughout the itinerary. In the case of 

code-share flights that form part of an 

itinerary whose ultimate ticketed origin 

or destination is a point in the U.S., the 

final rule requires that the baggage 

allowances and fees of the marketing 

carrier apply throughout the itinerary to 

the extent that they differ between the 

marketing carrier and the operating 

carrier. The Department is aware that 

these requirements may result in the 

situation foreseen by ATA and US 

Airways of consumers on the same 

flight being subject to different baggage 

allowances or fees. The Department 

does not find anything unfair or 

deceptive about passengers on the same 

flight being subject to different baggage 

provisions — just as many passengers 

on the flight would have typically paid 

different fares. Further, we believe this 

method of determining baggage rules is 

consistent with Department policy and 

affords the greatest protection to 

consumers from unfair application of 

baggage rules throughout their 

itineraries. The Department also 

believes these requirements align with 

the goals of IATA Resolution 302, which 

was adopted by IATA members to bring 

transparency and clarity to baggage 

rules on code-share and interline 

itineraries. 

As to whether in the case of codeshare flights whether the marketing/ 

ticketing carrier should be required to 

disclose all of the operating carrier’s 

fees for optional services, we have 

decided to require the marketing carrier 

to disclose on its website any difference 

between its optional services and fees 

and those of the carrier operating the 

flight. This disclosure may be made 

through providing a hyperlink to the 

operating carriers’ websites that detail 

the operating carriers’ fees for optional 

services, or to a page on its website that 

lists the differences in policies amongst 

code-share partners. A marketing/ 

ticketing carrier may also choose to 

make this information available to 

consumers through notice on its own 

website of differences between its 

optional services and fees and those of 

the carrier operating the flight. We are 

not requiring disclosure of the fees for 

optional services of the operating carrier 

through reservation agents or e-ticket 


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confirmations because we believe the 

costs to carriers of providing this 

information in those formats far 

outweigh the benefit to consumers, 

particularly since this final rule already 

requires U.S. and foreign carriers to list 

on their website all of their fees for 

optional services. Further, of all the fees 

for optional services charged by airlines, 

consumers are generally most interested 

in fees charged for baggage and the final 

rule already requires ticket agents and 

carriers to disclose baggage fees and 

allowances on e-ticket confirmations. As 

discussed earlier, the final rule also 

requires carriers and ticket agents to 

inform passengers on the first screen in 

which the ticket agent or carrier offers 

a fare quotation for a specific itinerary 

selected by a consumer that additional 

airline fees for baggage may apply and 

where consumers can go to see these 

baggage fees. 

9. Post-Purchase Price Increase 

The NPRM: The Department proposed 

to revise its current regulation in 14 CFR 

253.7 which allows post purchase price 

increases as long as the consumer 

receives direct notice on or with the 

ticket of any contract of carriage term 

that allows a carrier to increase the price 

after purchase. Under the proposed rule, 

the Department would prohibit all postpurchase price increases by carriers, 

tour operators, or other sellers of air 

transportation, tours or tour 

components. The seller would be 

prohibited from increasing the price 

after the consumer completes the 

purchase. The Department asked for 

comment on the proposal to ban postpurchase price increases as well as two 

alternatives. The first proposed 

alternative would allow post-purchase 

price increases, as long as the seller of 

air transportation conspicuously 

disclosed to the consumer the potential 

for such an increase and the maximum 

amount of such increase before the 

consumer purchased the air 

transportation, and the consumer 

affirmatively agreed to such an increase 

prior to the completion of the purchase. 

The second alternative would allow 

post-purchase price increases (with 

disclosure) that the consumer agrees to 

in advance of purchasing the ticket, but 

would prohibit such an increase within 

thirty or sixty days of the first flight in 

the purchased itinerary. 

Comments: Individual travelers and 

consumer organizations representing 

travelers support the proposal to ban 

post-purchase price increases in air 

transportation or tours by carriers and 

ticket agents. Most consumer 

commenters state that an outright ban 

on post-purchase price increases is fair. 

One commenter asserts that the practice 

of increasing the price after purchase is 

egregious, especially in the case of tour 

operators that raise prices due to fuel 

surcharges. Another commenter asks for 

clarification on what an increase in the 

price of the ticket means, because the 

commenter is concerned about change 

fees being applied to an already 

purchased ticket. Most commenters 

participating in Regulation Room favor 

an outright ban, rejecting the 

alternatives that allow for conspicuous 

disclosure of a potential price increase. 

A small number felt that the proposed 

alternative of requiring conspicuous 

notice of a potential maximum amount 

of an increase would adequately protect 

consumers. 

We also received comments from 

carriers and carrier organizations 

regarding this proposal. ATA and its 

members support the primary proposal 

to ban post-purchase price increases 

outright, and do not feel that any 

alternative is necessary. ATA states that 

this is consistent with industry practice. 

IATA and many foreign carriers are not 

opposed to this proposal, but they do 

request that an exception be made for 

post-purchase imposition of 

government-imposed taxes and fees. 

AEA, ALTA, and AACO all support a 

limited exception to a complete ban in 

the case of an increase in governmentimposed taxes and fees. IACA states that 

an outright ban on post-purchase 

increases is not consistent with the 

European Union regulations which 

allow post-purchase price increases in 

limited circumstances and with certain 

disclosures. IACA seems to support one 

of the alternatives which would allow 

some increase in the purchase price 

after purchase is completed. 

Air France, KLM and Qantas generally 

support the proposal with the exception 

of government-imposed taxes and fees. 

Additionally Air France, KLM and 

Qantas ask for clarification on when a 

‘‘purchase’’ is complete. Both airlines 

suggest that a booking that is being 

‘‘held’’ by the airline but has not been 

purchased should not be a completed 

purchase for purposes of this rule. Air 

New Zealand further comments that 

change fees should be allowed because 

those apply when a consumer is 

purchasing a new ticket and not 

traveling on the same ticket. 

USTOA is against the proposal for an 

outright ban without some contingency 

built into the rule regarding tax 

increases and partial customer 

payments. USTOA views a purchase as 

being complete if the consumer has paid 

in full. USTOA also states that an 

exception to a ban on post-purchase 

increases should be made for increases 

in government taxes and fees, provided 

that the consumer is made aware of 

such a potential increase. USTOA 

points out that the tour operators have 

no control over the increase of the price 

of scheduled air transportation. USTOA 

supports the alternatives, but believes 

that sellers should not be required to 

state the maximum amount of a price 

increase because the tour operator will 

not know the maximum amount. 

ASTA contends that in order to 

protect all sellers, a post-purchase price 

increase should only be applied on 

ticketed reservations, contracted group 

travel arrangements, and business to 

business transactions between tour 

operators and airlines. ASTA states that 

a travel agent does not impose the 

additional increases in price; rather, the 

government or carriers impose taxes, 

fees and fuel surcharges. ASTA prefers 

the first alternative which allows a postpurchase price increase with specific 

notice of the increase and a maximum 

amount of such increase identified to 

the consumer. ASTA suggests modifying 

the first alternative so that the sellers of 

air transportation also identify when 

they have imposed such post-purchase 

price increases in the past. 

DOT Response: After fully 

considering the comments received, the 

Department has decided to adopt the 

rule as proposed, but allow for an 

exception related to an increase in 

government-imposed taxes and fees. 

Although taxes and fees are not 

retroactively applied in the United 

States, the Department is aware that 

government-imposed taxes and fees 

levied by entities outside of the United 

States might be applied retroactively to 

a completed ticket purchase. As these 

fees and taxes are outside of the control 

of the seller of air transportation, the 

Department agrees with ASTA and 

foreign carriers that sellers should be 

protected from having to absorb the 

costs imposed by retroactive application 

of government taxes and fees. This 

exception to a total ban on postpurchase price increases is limited to 

government-imposed taxes and fees 

imposed on a per-passenger basis. It 

does not include increases in fuel 

surcharges or other carrier or ticket 

agent imposed charges. The Department 

recognizes that changes may be 

necessary in the way a tour operator 

prices or advertises packages to comply 

with the prohibition on post-purchase 

prices increases with an exception only 

for government-imposed taxes and fees 

imposed on a per-passenger basis. 

The final rule also requires sellers of 

air transportation to disclose the 

potential for a post-purchase price 

increase related to an increase in a 


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government-imposed tax or fee in a 

clear and conspicuous manner to the 

consumer. The consumer must 

affirmatively agree to the potential for 

such an increase prior to the purchase, 

for example by checking a box on the 

final page prior to purchase. After 

purchase, the seller of air transportation 

can only impose an increase due to 

government-imposed taxes or fees if 

such an increase applies to that 

particular consumer (e.g., the increase 

cannot be collected from consumers to 

whom a general increase did not apply 

because they had purchased and fully 

paid for their ticket months earlier, and/ 

or because an increase has been 

announced but is not yet in effect). For 

purposes of this section, a purchase is 

not deemed to have occurred until the 

full amount agreed upon has been paid 

by the consumer. Therefore, in the 

context of a tour that contains an air 

component, a purchase is complete 

when the consumer tenders the entire 

amount paid for the tour to the tour 

operator. The Department finds it to be 

unfair for consumers to bear the brunt 

of any increase in price after they have 

paid the full amount agreed upon for air 

transportation or a tour. 

To further protect consumers, the 

final rule requires sellers of air 

transportation, tours or tour components 

to notify a consumer of the potential for 

a price increase that could take place 

prior to the time that the full amount 

agreed upon has been paid by the 

consumer, including but not limited to 

an increase in the price of the seat, an 

increase in the price for the carriage of 

passenger baggage, an increase in an 

applicable fuel surcharge, or an increase 

in a government-imposed tax or fee. 

These entities must provide the 

consumer an opportunity to decline the 

purchase without penalty or 

affirmatively agree to the potential for 

such an increase prior to making any 

payment for the scheduled air 

transportation, or tour or tour 

component that includes scheduled air 

transportation. The Department believes 

that such a disclosure will provide 

consumers with important information 

to help them determine whether they 

want to purchase the air transportation 

or tour and if so, the appropriate time 

to make payment. 

With regard to the comments relating 

to change fees, the Department agrees 

with commenters that change fees do 

not constitute an increase in the price of 

an already-purchased ticket, as 

technically the consumer is purchasing 

a new ticket for new travel. However, 

the Department considers it to be an 

unfair and deceptive practice within the 

meaning of 49 U.S.C. 41712 for a seller 

of air transportation to impose any fee 

on a consumer to change a travel 

itinerary unless this possibility was 

disclosed to the consumer prior to 

purchase. Additionally, to address the 

comments about the applicability of this 

section to tickets marketed and sold in 

Europe, the final rule specifies that with 

respect to ticket agents and foreign air 

carriers, these requirements only apply 

to advertising or selling in the United 

States of air transportation or tours. 

10. Flight Status Change 

The NPRM: In the NPRM we proposed 

to require U.S. carriers that account for 

at least 1 percent of domestic scheduled 

passenger revenues (reporting carriers) 

to promptly provide passengers and 

other interested parties notice of flight 

status changes, defined as a cancellation 

of a flight or a delay of 30 minutes or 

more, for their domestic scheduled 

passenger flights. We proposed to 

require that this notification take place 

within 30 minutes after the carrier 

becomes aware or should have become 

aware of the status change. A carrier 

would be required to provide such 

information updates at boarding gate 

areas, on airport display boards that are 

under a carrier’s control, on the 

homepage of a carrier’s websites and 

through a carrier’s telephone reservation 

systems. To the extent that carriers 

permit passengers and other interested 

persons to subscribe to receive flight 

information updates, we proposed that 

carriers provide those updates in a 

timely fashion, i.e., providing the 

information and subsequent updates 

within 30 minutes after the carrier 

becomes aware or should have become 

aware of such information. 

We sought comments on whether 

these flight status notification 

requirements should be extended to 

smaller U.S. carriers and/or 

international operations of U.S. and 

foreign carriers, particularly since we 

proposed to require U.S. and foreign air 

carriers conducting scheduled passenger 

service with at least one aircraft with 30 

or more seats to adopt a customer 

service plan that pledged to notify 

consumers in the boarding gate area, on 

board aircraft, via a carrier’s telephone 

reservation system and on a carrier’s 

website of known delays, cancellations 

and diversions. We specifically asked 

for information about the cost or benefit 

of applying these requirements to 

smaller carriers. We also asked for 

comments on whether the proposed 

means of notification, i.e., website, 

telephone reservation system, airport 

display boards under carriers’ control, 

and boarding area, should be 

mandatory, or whether we should leave 

it to the carriers to determine what 

means they prefer to use. With respect 

to the timeliness standard, we invited 

the public to comment on whether 

‘‘within 30 minutes after the carrier 

becomes aware or should have become 

aware’’ is a reasonable standard. We also 

sought public opinion on whether the 

proposed requirement that updated 

information should be provided for 

flight delays of 30 minutes or more is an 

appropriate standard. 

Comments: Comments from 

consumers and consumer rights 

advocacy groups overwhelmingly 

support our proposal for the largest U.S. 

carriers to promptly notify passengers of 

changes in the status of particular flights 

as a result of delays or cancellations. 

The New York State Consumer 

Protection Board, AAPR, 

FlyersRights.org, Consumers Union, and 

most commenters on 

RegulationRoom.org support expanding 

the requirements to cover smaller U.S. 

carriers and international operations of 

U.S. and foreign carriers. ACI–NA 

suggests that the rule should include 

small carriers that serve small and nonhub airports, arguing that the impact of 

delays and cancellation occurring at 

those airports may have great adverse 

effect on larger connection hubs. 

Several foreign carriers specifically 

oppose applying the notification 

requirements to foreign carriers. IACA 

states that the proposed rule may 

potentially be an extraterritorial 

application of U.S. law to activities in 

a foreign jurisdiction. Qantas and JetStar 

Airways aver that the rule should not 

apply to foreign marketing code-share 

partners, as the operating carriers are in 

the best position to notify passengers of 

any flight status changes. ATA, on the 

other hand, states that the marketing 

carrier should have the responsibility to 

update flight information up until the 

date of flight departure, at which point 

the operating carrier should be 

responsible for the notification. ANA 

raises the issue of technical difficulties 

faced by foreign carriers in complying 

with the electronic notification rule 

when they must conduct extensive 

automation modifications including 

sharing data with code-share partners. 

Many carriers contend that when 

information is not timely transmitted to 

carriers by FAA, carriers should not be 

held liable. TUI Travel asks that foreign 

leisure travel charter operators be 

exempted from the rule based on its 

assertion that there are already 

established communication channels 

between passengers and carriers through 

the tour operators. 

With respect to the means of 

notification, many commenters from the 


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consumer side urge the Department to 

mandate all four methods (i.e., at gate 

boarding areas, on airport display 

boards that are under carrier’s control, 

and through carriers’ website and 

telephone reservation systems). The 

New York State Consumer Protection 

Board also recommends that we require 

carriers to offer passengers the 

opportunity to subscribe to flight status 

service updates via voicemail and 

electronic media. Industry commenters, 

however, argue that the Department 

should provide carriers flexibility in 

choosing what means they use. ATA 

specifically requests that the 

Department not require any new 

technology or program that is not 

currently implemented by the carriers. 

ATA raises concern that our proposal 

on flight status change notification may 

conflict with the Federal 

Communication Commission (FCC)’s 

Telephone Consumer Protection Act 

rule. In a March 2010 NPRM, the FCC 

proposed to require consumers’ prior 

written consent for prerecorded calls, 

eliminating the exemption for parties 

that have already established business 

relationships (75 FR 13471, March 22, 

2010). If adopted, the FCC rule would 

prohibit carriers from leaving 

prerecorded telephone messages 

concerning flight delays and 

cancellations with any passengers from 

whom carriers do not have prior written 

consent. 

Regarding the proposed timeliness 

standard, the New York State Consumer 

Protection Board states that the 30- 

minute standard is good but urges the 

Department to adopt a more stringent 

standard that requires notification to be 

provided ‘‘no later than 20 minutes’’ 

after the carrier is aware or should have 

become aware of the flight status 

change. Other commenters from the 

consumer side generally welcome the 

30-minute standard as being reasonable 

and not too burdensome to the carriers. 

Among the carriers and carrier 

associations that commented on this 

proposal, there is little objection to the 

‘‘30 minutes after the carrier becomes 

aware’’ requirement. However, most of 

those commenters are concerned about 

the ‘‘30 minutes after the carrier should 

have become aware of the flight status 

change’’ standard. IATA asks the 

Department to clarify the meaning of 

this standard, and ATA argues that this 

is a subjective standard that makes 

compliance difficult. Southwest 

Airlines supports ATA’s position and 

states that this standard is too vague and 

is likely to be inconsistently applied 

and enforced. 

Regarding the proposal that 

notification should be provided to 

passengers for any flight delays that are 

expected to last for 30 minutes or more, 

both consumers and carrier commenters 

are supportive of this standard. ATA 

also recommends that the Department 

require the airports to update display 

boards under the airports’ control every 

30 minutes when a flight’s status 

changes. ASTA supports ATA’s position 

and states that it is important that the 

information provided by the carriers 

and airports be current in order to avoid 

passenger confusion. 

DOT Response: The final rule requires 

U.S. and foreign carriers conducting 

scheduled passenger service to and from 

the U.S. with any aircraft with 30 or 

more seats to make information 

available to passengers and other 

interested parties about a change in 

flight status. It is important for 

passengers as well as persons dropping 

passengers off for outbound flights or 

meeting passengers on incoming flights 

to stay informed on a timely basis of 

delays, diversions or cancellations 

affecting their flights in order to avoid 

unnecessary waits at, or pointless trips 

to, an airport. The need for, and 

importance of timely notification 

regarding flight delays, diversions and 

cancellations exists whether it is a U.S. 

or foreign carrier operating the flight 

and whether it is a non-reporting or 

reporting carrier operating the flight. On 

code-shares, the final rule leaves it up 

to the carriers to determine whether the 

marketing or operating carrier will 

provide the required notification about 

change in flight status. We expect that 

foreign carriers and non-reporting U.S. 

carriers will work with their code-share 

reporting-carrier partners, most of 

which already have the necessary 

systems in place, to comply with the 

notification requirements contained in 

this final rule. For enforcement 

purposes, the Department’s Aviation 

Enforcement Office will hold both the 

code-share marketing carrier and the 

operating carrier responsible, jointly 

and severally, for failure to comply with 

this rule. 

The final rule mandates that the flight 

status notifications be provided through 

the four methods proposed: at the 

boarding gate area, on carriers’ websites, 

through carriers’ telephone reservations 

systems, and by airport display boards 

that are under the carriers’ control. If an 

airport-controlled display system 

accepts flight status updates from 

carriers, covered carriers must furnish 

this information to that airport within 

the timeframes provided in this rule. We 

do not believe mandating all four 

methods is burdensome to carriers as it 

is our opinion that these four methods 

represent the most common ways used 

by carriers to communicate with 

passengers and other interested parties 

who seek and obtain information about 

the status of the schedules for their 

flights. 

These varied flight status notification 

methods make it more likely that 

passengers and other interested parties 

will be able to access this information 

when they need it. For example, 

individuals who do not have access to 

the Internet may call a carriers’ 

reservation telephone system to learn 

about delays, cancellations, or 

diversions. Notification at the airports 

through the airport display boards and 

in the boarding gate area is also 

essential when passengers are already at 

the airports. Regarding notification at 

the boarding gate area, the responsibility 

of a carrier to notify passengers does not 

begin until the gate is staffed for the 

specific flight in question. With respect 

to notification provided through 

carriers’ telephone reservation systems, 

we clarify that such notification is only 

required upon the request by a 

consumer. 

In addition to these four methods, we 

are also requiring carriers that offer 

passengers the opportunity to subscribe 

to a flight status update service to 

ensure that required information is 

provided promptly and accurately. We 

note that many carriers already have in 

place subscription services for 

passengers to receive flight status 

notifications through various widely 

used media, including computergenerated telephone/voicemail, text 

messages and emails. To the extent such 

services are offered to the public, this 

final rule requires that the notifications 

be delivered to the passenger by 

whatever means is available to the 

carrier and of the passenger’s choice 

within 30 minutes after the carrier 

becomes aware of a change in the status 

of a flight. We do not believe, as 

asserted by some commenters, that 

applying this standard will dissuade 

carriers from voluntarily providing such 

subscription services for fear of the 

potential enforcement consequences. 

We are confident that market forces and 

competition will continue to be the 

driving force for carriers to improve the 

quality of their customer care. 

In response to ATA’s concern that the 

Department’s flight status notification 

requirement may conflict with the FCC’s 

rule, the Department wishes to provide 

the following clarification. The 

Department has submitted comments on 

the FCC’s rulemaking, requesting the 

FCC to maintain its current ‘‘established 

business relationship’’ exemption to the 

extent necessary to permit carriers to 

notify their customers of flight status 


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changes through telephone messages 

without obtaining each customer’s prior 

written consent. To the extent FCC 

adopts a final rule as it proposed, the 

Department does not see a direct 

conflict between the FCC rule and our 

rule. In this final rule, we do not require 

carriers to call each passenger on the 

affected flight to notify them about the 

flight status change. Likewise we do not 

mandate subscription services. 

Therefore, if carriers choose to provide 

subscription services, they could either 

eliminate the voice message choice from 

the choices of contact available to 

subscribers, or obtain the subscribers’ 

written consent at the time of 

subscription. 

Most carriers that commented on the 

proposals objected to the ‘‘30 minutes 

after the carrier should have become 

aware of flight status change’’ standard 

for notifying consumers about the flight 

irregularity, arguing that it is vague and 

subjective. The Department agrees with 

the concerns expressed that this 

standard may become challenging to 

comply with and enforce. Therefore, we 

are removing the ‘‘should have become 

aware’’ standard from the final rule. 

With respect to the ‘‘30 minutes after the 

carrier becomes aware’’ standard, we 

believe further clarification is necessary. 

For enforcement purpose, we consider 

that the carrier has become aware of the 

flight status change as soon as the 

carrier’s system operation control center 

(SOCC) or equivalent facility, if it goes 

by another name, learns of it. We 

recognize that carriers cancel, delay and 

divert flights based on information from 

many sources, both internal as well as 

from third parties, such as FAA and 

airports. Whatever the source of 

information leading to the decision for 

a flight status change, it is the carrier’s 

sole responsibility to distribute the 

information, within 30 minutes, to the 

downstream operational staff, such as 

webmasters, airport station managers, 

reservation system managers, and gate 

agents. A carrier has an affirmative duty 

at all times to keep track of flight status 

changes and maintain open channels of 

communication. We consider it an 

unfair and deceptive practice when the 

carrier’s failure to obtain and pass on to 

consumers up-to-date and accurate 

information is caused by the carrier’s 

own procedural shortcomings. 

Much less contested is our proposed 

standard that carriers notify passengers 

and other interested parties regarding 

flight delays of 30 minutes or more. 

Many consumer and industry 

commenters agree that this is a 

reasonable standard that strikes a 

balance between providing the most 

useful and accurate update to the 

passengers and the costs incurred by the 

carriers associated with providing such 

information. Consequently, the final 

rule maintains this standard. We 

emphasize that this is a minimum 

standard and carriers are free to and 

urged to provide notification about 

briefer delays, as many already have 

done for their subscription services. 

Under the final rule, the ‘‘30 minutes 

after the carrier becomes aware of the 

flight status change’’ standard also 

applies to any information updates 

provided to passengers who have 

already received previous notification 

regarding the status change of their 

flights. We disagree with some 

commenters’ contention that updating 

flight status change every 30 minutes if 

the flight is delayed again is not 

necessary if it is close to the scheduled 

departure time and passengers are 

already at the airport. This information 

is important for passengers whose 

flights downline depend on the 

schedule of aircraft used for the flight 

experiencing the irregularity, as well as 

for persons who may be meeting 

passengers on the affected flight. 

Finally, we note that the Department 

does not directly have the authority to 

require airports to provide flight status 

information to consumers as some 

commenters suggested. 

11. Choice-of-Forum Provisions 

The NPRM: The Department proposed 

to codify the policy of the Department’s 

Aviation Enforcement Office that 

choice-of-forum provisions are unfair 

and deceptive for air transportation sold 

in the U.S. when used to limit a 

passenger’s legal forum to a particular 

inconvenient venue. The proposed rule 

would specifically permit consumers to 

file suit where they live provided that 

the carrier does business within that 

jurisdiction. The Department requested 

comments on this proposal and on the 

use of such choice-of-forum provisions 

in contracts of carriage. 

Comments: Consumer groups and 

individual consumers support this 

proposal. Flyersrights.org, while 

supporting the proposal, does not think 

the proposal goes far enough to address 

the real barrier to legal relief for 

consumers in court, which they say is 

Federal preemption of state laws. ATA 

and most carriers support this proposal, 

most noting that they do not have such 

restrictive choice-of-forum provisions in 

their contracts of carriage. Spirit 

Airlines opposes this provision. Spirit 

believes small carriers should not have 

to face the costs and burdens associated 

with litigating complaints in 

jurisdictions far from their headquarters 

location. IATA and IACA, in addition to 

many foreign airlines, expressed 

concerns about this provision’s 

applicability to foreign airlines and 

interference with European rules 

governing the forum for claims. The Air 

Transport Association of Canada does 

not feel the use of choice-of-forum 

restrictions should be banned and feels 

that making clear the forum in which 

consumers must litigate consumer 

complaints is helpful to consumers. 

DOT Response: The Department has 

decided to adopt the rule as proposed, 

i.e., to prohibit a U.S. carrier from 

including language in its contract of 

carriage precluding a passenger from 

bringing a consumer-related claim 

involving a domestic flight against the 

carrier in any court of competent 

jurisdiction. The Department feels that 

if a carrier reaches out to do business in 

a particular jurisdiction, i.e., reaches out 

to solicit business within that 

jurisdiction, and sells tickets in a 

jurisdiction, then it is fair and 

reasonable to expect that the carrier can 

defend itself against litigation brought 

by a consumer who resides in that 

jurisdiction. The cost of this proposal is 

minimal, as most U.S. carriers already 

face litigation throughout the United 

States. As a point of clarification, the 

forum for consumer claims related to 

travel on international flights to or from 

the United States is governed by the 

Montreal Convention or Warsaw 

Convention, depending on the type of 

flight and its origination/destination. 

Additionally this change does not apply 

to charter flights. The choice of forum 

for charter flights can be addressed in 

the individual contracts between the 

charter operator and the participant. 

12. Peanut Allergies 

The NPRM: In the NPRM, the 

Department described various measures 

to provide greater access to air travel for 

individuals with severe peanut allergies. 

The Department solicited comment on 

several alternatives to accommodate air 

travelers with severe peanut allergies 

including (1) banning the serving of 

peanuts and all peanut products by both 

U.S. and foreign carriers on flights 

covered by the Department’s disability 

rule; (2) banning the serving of peanuts 

and all peanut products on all such 

flights where a passenger with a peanut 

allergy is on board and has requested a 

peanut-free flight in advance; or (3) 

requiring a peanut-free buffer zone in 

the immediate area of a passenger with 

a medically documented severe allergy 

to peanuts if the passenger has 

requested a peanut-free flight in 

advance. The Department asked several 

questions associated with 

accommodating passengers who have a 


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severe peanut allergy on flights. For 

instance, we asked about the likelihood 

of a person with a severe allergy 

experiencing a serious adverse health 

reaction due to exposure to airborne 

peanut particles onboard an aircraft. 

The Department asked about steps a 

person with a severe peanut allergy 

could take to prepare for a flight. We 

also asked about how we should define 

a peanut product if we chose to take 

action on the issue. 

Comments: Most of the comments 

regarding accommodations for persons 

with peanut allergies were from 

individual consumers who favor a total 

ban on peanuts and peanut products on 

aircraft, including peanut products that 

other passengers bring on board aircraft. 

Most of these consumers either suffer 

from a peanut allergy or are related to 

someone with an allergy. A smaller 

number of individual commenters 

oppose any ban on peanut products 

while others support prohibiting 

carriers from serving peanuts or peanut 

products on aircraft. Commenters who 

oppose a ban on peanut and peanut 

products as well as commenters who 

favor only a service ban on peanut and 

peanut products contend that a total ban 

on peanuts and peanut products is 

impractical and unenforceable because 

there is no way to stop passengers from 

bringing peanut products into the cabin. 

There was also disagreement as to 

whether peanut-free flights or peanut 

buffer zones are a viable option. Many 

commenters assert that neither peanutfree flights nor peanut buffer zones are 

a feasible option since the peanut 

protein could be present in the buffer 

zones or on the ‘peanut free’ flight as 

residue from previous flights. These 

consumers state that it is unreasonable 

to expect, and unlikely, that a carrier 

would thoroughly clean the aircraft 

between each flight to ensure that all 

peanut residue is removed from the 

cabin. 

The peanut trade organizations, led by 

the American Peanut Council (APC), 

Peanut & Tree Nut Processors 

Association (PTNPA) and the Western 

Peanut Growers Association (WPGA), 

oppose any Department action that 

would limit the availability of peanuts 

on commercial aircraft. All three 

organizations point out the Department 

is restricted from issuing any regulation 

regarding the service of peanuts on 

aircraft per Public Law 106–69, which is 

discussed below. APC also states that 

research indicates that a severe 

anaphylactic reaction to peanuts can 

only occur when there is oral ingestion. 

The Food Allergy & Anaphylaxis 

Network (FAAN) states that the 

scientific literature does not, at this 

time, address whether a passenger 

would have a severe adverse reaction by 

being exposed to airborne peanut 

particles but notes that airborne 

reactions have been anecdotally 

reported. FAAN, and other allergy 

support organizations, believe that the 

most practical solution is for carriers not 

to serve packaged peanut snacks on 

flights. FAAN acknowledges that many 

carriers, both U.S. and foreign, are 

already taking this approach. FAAN is 

opposed to the creation of ‘‘buffer zones’’ 

as it believes that to be effective the 

seats in a buffer zone would need to be 

peanut-free for all flights on a particular 

aircraft. 

Twenty-five members of the U.S. 

House of Representatives submitted a 

joint letter expressing their opposition 

to any ban on peanuts and peanut 

products and requesting that the 

Department not proceed with a 

rulemaking or any other anti-peanut 

measures pending the completion of a 

peer-reviewed study as described in 

Public Law 106–69. Senator Christopher 

Dodd also commented, stating that a 

complete ban on peanuts and tree nuts 

would be the most direct solution but 

that this step is drastic in nature and 

impractical. Senator Dodd suggests that 

DOT encourage a focus on further 

education and training for airline 

employees regarding passengers with 

peanut allergies as well as a consistent 

application of policies by individual 

airlines. 

ATA, the Air Transport Association of 

Canada, and IACA are against a ban on 

peanuts, stating that carriers cannot 

ensure that other passengers will not 

bring their own peanut products on 

board for consumption. ATA and IACA 

also state that carriers have adopted 

their own policies and procedures to 

handle accommodations for peanut 

allergies. In general, individual carriers 

have deferred this topic to their 

respective trade organizations. However, 

some carriers such as Southwest and 

Delta point out that they already have 

voluntarily adopted policies regarding 

buffer-zones for peanut allergy sufferers. 

Some foreign carriers, such as 

Lufthansa, Air France and KLM, state 

that a service ban on peanut products is 

not efficient and would create increased 

burdens and costs for airlines. 

Additionally Lufthansa points out that 

the creation of a service ban on peanut 

products could give a passenger the 

false impression that the flight is totally 

safe and free of peanuts. 

DOT Response: On June 25, 2010, 

DOT published a clarification notice 

stating that the Department will comply 

with the requirements of the 

Department of Transportation and 

Related Agencies Appropriations Act of 

2000, Public Law 106–69—Oct. 9, 1999. 

This law states: 

Hereafter, none of the funds made available 

under this Act, or any other Act, may be used 

to implement, carry out, or enforce any 

regulation issued under section 41705 of title 

49, United States Code, including any 

regulation contained in Part 382 of title 14, 

Code of Federal Regulations, or any other 

provision of law (including any Act of 

Congress, regulation, or Executive order or 

any official guidance or correspondence 

thereto), that requires or encourages an air 

carrier (as that term is defined in section 

40102 of title 49, United States Code) to, on 

intrastate or interstate air transportation (as 

those terms are defined in section 40102 of 

title 49, United States Code)—(1) provide a 

peanut-free buffer zone or any other related 

peanut-restricted area; or (2) restrict the 

distribution of peanuts, until 90 days after 

submission to the Congress and the Secretary 

of a peer-reviewed scientific study that 

determines that there are severe reactions by 

passengers to peanuts as a result of contact 

with very small airborne peanut particles of 

the kind that passengers might encounter in 

an aircraft. 

At this time, given the provisions of 

Public Law 106–69, the Department will 

decline to take action due to a lack of 

the peer-reviewed study referred to in 

the law. 

13. Effective Date of Rule 

The NPRM: In the NPRM, we 

proposed that the final rule take effect 

180 days after its publication in the 

Federal Register. We stated that we 

believe 180 days would allow sufficient 

time for carriers to comply with the 

various proposed requirements and 

invited comment on whether 180 days 

is the appropriate interval for 

completing the changes. 

Comments: We received few 

comments on the effective date of the 

final rule. Among carrier and carrier 

association commenters, RAA states that 

its members need a minimum of 180 

days to implement the new rule. On the 

consumer side, AAPR supports the 

Department’s 180-day proposal. 

FlyersRights.org and its supporters 

suggest that the effective date should be 

no longer than 120 days after the final 

rule’s publication date. CTA believes 

the rule should become effective 120– 

150 days after the publication date so it 

will become effective before the summer 

travel season starts. One consumer 

stated that 180 days is reasonable for 

implementing most items but carriers 

may need additional time for some of 

the proposed changes. 

DOT Response: Based on our 

experience in implementing the 

December 2009 final rule, which 

became effective on April 29, 2010, we 

believe that 120 days is sufficient for 


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U.S. and foreign carriers to implement 

the various requirements in this final 

rule, with the exception of the 

requirements pertaining to full-fare 

advertising. The new full fare 

advertising requirements will not take 

effect until 180 days after the 

publication of this final rule in the 

Federal Register to mitigate the costs of 

print advertising revision by reducing 

the amount of advertising slated for use 

that will have to be pulled. We are 

imposing a 120-day effective date for the 

other requirements in the final rule to 

enable consumers to begin benefiting 

from these requirements as soon as 

possible. 

Regulatory Analyses And Notices 

A. Executive Order 12866 (Regulatory 

Planning and Review), DOT Regulatory 

Policies and Procedures, and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

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 in accordance 

with Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) and is consistent 

with the requirements in both orders. 

Executive Order 13563 refers to 

nonquantifiable values, including equity 

and fairness. This rule promotes such 

values by improving transparency, and 

by preventing unexpected charges to 

passengers. The final Regulatory 

Evaluation concludes that the 

monetized benefits of the final rule 

exceed its monetized costs, even 

without considering non-quantifiable 

benefits. The expected present value of 

monetized passenger benefits from the 

final rule over a 10 year period using a 

7% discount rate is estimated at $45.0 

million and the expected present value 

of monetized costs incurred by carriers 

and other sellers of air transportation to 

comply with the final rule over a 10 

year period using a 7% discount rate is 

$30.7 million. The present value of 

monetized net benefits over a 10 year 

period at a 7% discount rate is $14.3 

million. 

Below, we have included a table 

outlining the costs and benefits of the 

requirements in this final rule. A copy 

of the final Regulatory Evaluation has 

been placed in the docket. 

COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2012–2021 

[Discounted at 7 percent annually to 2012 $ millions] 

Total 

Area 1: Expansion of tarmac contingency plan requirements and extension of EAPP1 requirements to cover foreign carriers: 

Monetized Benefits ........................................................................................................................................................................... $1.2 

Monetized Costs ............................................................................................................................................................................... 3.0 

Monetized Net Benefits .................................................................................................................................................................... ¥1.8 

Additional unquantifiable benefits and costs that are directly or indirectly related to this rulemaking, which result in benefits that the 

Department has determined justify the costs: 

Improved Management of Flight Delays 

Decreased Anxiety With Regard to Flying 

Reduced Stress Among Delayed Passengers and Crew 

Improved Overall Carrier Operations 

Improved Customer Good Will Toward Carriers 

Additional Gate Return Costs Incurred by Carriers 

Time Required for Airport/Terminal Authorities, CBP/TSA to Coordinate Plans 

Area 2: Expanded tarmac delay reporting and application to foreign carriers: 

Monetized Benefits* .......................................................................................................................................................................... 0.0 

Monetized Costs ............................................................................................................................................................................... 0.8 

Monetized Net Benefits .................................................................................................................................................................... ¥0.8 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Increased Efficiency of US DOT Oversight and Enforcement Office Operations 

Improved Management of Flight Delays 

Area 3: Establishment of minimum standards for customer service plans (CSPs) and extension of EAPP1 Final Rule Areas to 

cover foreign carriers: 

Monetized Benefits ........................................................................................................................................................................... 7.7 

Monetized Costs ............................................................................................................................................................................... 7.4 

Monetized Net Benefits .................................................................................................................................................................... 0.3 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Decreased Confusion and Uncertainty Regarding Department CSP Requirements 

Improved Customer Service From Foreign Carrier Self-Auditing of Adherence to CSPs 

Improved Customer Good Will Toward Carriers 

Area 4: Foreign carrier posting of tarmac delay contingency plans, CSPs, and contracts of carriage on websites: 

Monetized Benefits* .......................................................................................................................................................................... 0.0 

Monetized Costs ............................................................................................................................................................................... 1.0 

Monetized Net Benefits .................................................................................................................................................................... ¥1.0 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Decreased Occurrence of and Improved Resolution of Customer Complaints 

Area 5: Extension of EAPP1 Final Rule Areas for carriers to respond to consumer complaints to cover foreign carriers: 

Monetized Benefits ........................................................................................................................................................................... 0.0 

Monetized Costs ............................................................................................................................................................................... 1.9 

Monetized Net Benefits .................................................................................................................................................................... ¥1.9 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 


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COMPARISON OF REQUIREMENT-SPECIFIC BENEFITS AND COSTS, 2012–2021—Continued 

[Discounted at 7 percent annually to 2012 $ millions] 

Total 

Decreased Anger Toward Carriers During Resolution of Complaints 

Area 6: Changes in denied boarding compensation (DBC) requirements: 

Monetized Benefits* .......................................................................................................................................................................... 0.0 

Monetized Costs ............................................................................................................................................................................... 1.0 

Monetized Net Benefits .................................................................................................................................................................... ¥1.0 

Additional unquantifiable benefits and costs that are directly or indirectly related to this rulemaking, which result in benefits that the 

Department has determined justify the costs: 

Decreased Confusion Regarding DBC Provisions 

Decreased Resentment Among Some Passengers Regarding Different Compensation Received 

Programming and Training Costs for Foreign Carriers 

Area 7: Full-fare advertising and prohibition on opt-out provisions: 

Monetized Benefits ........................................................................................................................................................................... 29.0 

Monetized Costs ............................................................................................................................................................................... 6.8 

Monetized Net Benefits .................................................................................................................................................................... 22.2 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Travelers Less Likely to Mistakenly Purchase Unwanted Services and Amenities 

Improved Customer Good Will Toward Carriers 

Area 8: Expanded disclosure of baggage and other optional fees: 

Monetized Benefits* .......................................................................................................................................................................... 0.0 

Monetized Costs ............................................................................................................................................................................... 7.9 

Monetized Net Benefits .................................................................................................................................................................... ¥7.9 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Decreased Time at Check-in 

Improved Customer Good Will Toward Carriers 

Area 9: Limitations on post-purchase price increases: 

Monetized Benefits ........................................................................................................................................................................... 7.2 

Monetized Costs ............................................................................................................................................................................... 1.1 

Monetized Net Benefits .................................................................................................................................................................... 6.1 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Improved Customer Good Will Toward Carriers 

Area 10: Prompt passenger notification of flight status changes: 

Monetized Benefits* .......................................................................................................................................................................... 0.0 

Monetized Costs* ............................................................................................................................................................................. 0.0 

Monetized Net Benefits .................................................................................................................................................................... 0.0 

Additional unquantifiable benefits that are directly or indirectly related to this rulemaking, which result in benefits that the Department has determined justify the costs: 

Greater Comfort and Certainty From Knowing That Information Will Be Available in Timely Manner 

Area 11: Limitations on venue provisions in contracts of carriage: 

Monetized Benefits* .......................................................................................................................................................................... 0.0 

Monetized Costs* ............................................................................................................................................................................. 0.0 

Monetized Net Benefits .................................................................................................................................................................... 0.0 

Additional unquantifiable benefits and costs that are directly or indirectly related to this rulemaking, which result in benefits that the 

Department has determined justify the costs: 

Improved Customer Good Will Toward Carriers 

Reduced Costs for Consumers to File/Adjudicate Claims 

Increased Costs for Carriers to Settle/Adjudicate Claims 

Requirement Areas 1–11 Total: 

Monetized Benefits ........................................................................................................................................................................... 45.0 

Monetized Costs ............................................................................................................................................................................... 30.7 

Monetized Net Benefits .................................................................................................................................................................... 14.3 

* Monetized estimates could not be developed from the information available on the record. 

B. Regulatory Flexibility Act 

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. 

Our analysis identified a total of 50 

small U.S. air carriers (i.e., carriers that 

provide air transportation exclusively 

with aircraft that seat no more than 60 

passengers), 50 small airports (i.e., 

privately-owned airports that have 

annual revenues of no more than $7 

million or publicly-owned airports 

owned by jurisdictions with less than 

50,000 inhabitants), as many as 11,625 

small travel agencies (i.e., travel 

agencies with no more than $3.5 million 

in annual revenues) and as many as 

2,720 small tour operators (i.e., tour 

operators with no more than $7.0 

million in annual revenues) potentially 

affected by the requirements of the final 

rule. While most regulation of the air 

transportation sector is concerned with 

carriers, certain elements of this final 

rule impose new requirements on small 

travel agents and tour operators. Small 

U.S. carriers will need to comply with 

additional requirements relating to 

coordination of tarmac contingency 

plans, reporting tarmac delays, specific 

customer service plan provisions, 

denied boarding compensation, 


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advertising of air fares, and disclosure of 

baggage and other optional fees. Small 

travel agents and tour operators will 

have to comply with the requirements 

relating to advertising of air fares, 

disclosure of baggage and other optional 

fees, and pre-purchase disclosures on 

price increases. 

The Department believes that the 

economic impact will not be significant 

for a number of reasons. First, most 

small U.S. air carriers operate passenger 

service exclusively with aircraft that 

have fewer than 30 seats. The 

requirements relating to tarmac 

contingency plans, reporting tarmac 

delays, specific customer service plan 

provisions, and denied boarding 

compensation will not apply to these 

carriers. In addition, the per-carrier and 

per-ticket agent compliance costs 

estimated in the final regulatory 

analysis for the remaining requirements 

are very small—less than $17,000 per 

affected small carrier operating aircraft 

with between 30 and 60 seats, less than 

$4,500 per small carrier operating 

aircraft with fewer than 30 seats, and 

about $3,500 per small travel agent or 

tour operator with online booking 

capability to achieve compliance during 

the first year the final rule takes effect 

and no more than a few hundred dollars 

to maintain compliance in subsequent 

years. On the basis of this examination, 

the Department certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. A copy of the Final Regulatory 

Flexibility Analysis has been placed in 

docket. 

C. Executive Order 13132 (Federalism) 

This Final Rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132 (‘‘Federalism’’). This final rule 

does not include any provision 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 Executive Order 13132 do not apply. 

D. Executive Order 13084 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13084 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’). 

Because this final rule does not 

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. 

E. Paperwork Reduction Act 

As required by the Paperwork 

Reduction Act of 1995, DOT has 

submitted the Information Collection 

Requests (ICRs) abstracted below to the 

Office of Management and Budget 

(OMB). Before OMB decides whether to 

approve those proposed collections of 

information that are part of this final 

rule and issue a control number, the 

public must be provided 30 days to 

comment. Organizations and 

individuals desiring to submit 

comments on the collection information 

requirements should direct them to the 

Office of Management and Budget, 

Attention: Desk Officer for the Office of 

the Secretary of Transportation, Office 

of Information and Regulatory Affairs, 

Washington, DC 20503, and should also 

send a copy of their comments to: 

Department of Transportation, Office of 

Aviation Enforcement and Proceedings, 

Office of the General Counsel, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. OMB is required to make a 

decision concerning the collection of 

information requirements contained in 

this rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. 

We will respond to any OMB or 

public comments on the information 

collection requirements contained in 

this rule. OST may not impose a penalty 

on persons for violating information 

collection requirements which do not 

display a current OMB control number, 

if required. OST intends to renew 

current OMB control numbers for the 

three new information collection 

requirements resulting from this 

rulemaking action. The OMB control 

number, when renewed, will be 

announced by separate notice in the 

Federal Register. 

The ICRs were previously published 

in the Federal Register as part of NPRM 

(75 FR 32318, June 8, 2010) and the 

Department invited interested persons 

to submit comments on any aspect of 

each of these three information 

collections, including the following: (1) 

The necessity and utility of the 

information collection, (2) the accuracy 

of the estimate of the burden, (3) ways 

to enhance the quality, utility, and 

clarity of the information to be 

collected, and (4) ways to minimize the 

burden of collection without reducing 

the quality of the collected information. 

The final rule contains three new 

information collection requirements. 

The first is a requirement that foreign air 

carriers that operate passenger service 

(scheduled and charter) to or from the 

U.S. using any aircraft with 30 or more 

seats collect and retain for two years the 

following information about any ground 

delay that lasts at least three hours: the 

length of the delay, the precise cause of 

the delay, the actions taken to minimize 

hardships for passengers, whether the 

flight ultimately took off (in the case of 

a departure delay or diversion) or 

returned to the gate; and an explanation 

for any tarmac delay that exceeded 3 

hours. The Department plans to use the 

information to investigate instances of 

long delays on the ground and to 

identify any trends and patterns that 

may develop. The assumptions upon 

which the calculations for this 

requirement are based as well as the 

information collection burden hours 

have changed. We have increased our 

estimate for the maximum number of 

tarmac delays that a single carrier may 

experience. 

The second is a requirement that U.S. 

carriers and foreign carriers that operate 

any aircraft originally designed to have 

a passenger capacity of 30 or more seats 

report monthly tarmac delay data to the 

Department with respect to their 

operations at a U.S. airport for any 

tarmac delay of three hours or more, 

including diverted flights. This 

requirement would apply to reporting 

carriers under 14 CFR part 234 only 

with respect to their public charter 

service and international service, as 

reporting carriers already submit tarmac 

delay data to the Department for their 

domestic scheduled passenger service. 

The Department plans to use this 

information to obtain more precise data 

to compare tarmac delay incidents by 

carrier, by airport, and by specific time 

frame, for use in making future policy 

decisions and developing rulemakings. 

We have modified the information 

collection burden hours for this 

requirement because carriers are not 

required to file negative reports as 

proposed in the NPRM. Covered carriers 

will only need to submit the report if 

one or more flights experience delays 

that exceed 3 hours. 

The third is a requirement that any 

foreign air carrier that operates 

scheduled passenger service to and from 

the U.S. using any aircraft with 30 or 

more seats adopt a customer service 

plan, audit its adherence to the plan 

annually, and retain the results of each 

audit for two years. The Department 


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plans to review the audits to monitor 

carriers’ compliance with their plans 

and take enforcement action when 

appropriate. Although we have made 

some modest changes to the customer 

service plan requirements from what 

was proposed in the NPRM, these 

changes do not impact the assumption 

upon which the calculations for 

retaining the results of each audit are 

based. The information collection 

burden hours have increased slightly as 

our estimate of the number of carriers 

covered by this requirement has 

changed. 

For each of these information 

collections, the title, a description of the 

respondents, and an estimate of the 

annual recordkeeping and periodic 

reporting burden are set forth below: 

1. Requirement to retain for two years 

information about any ground delay 

that lasts at least three hours. 

Respondents: Foreign air carriers that 

operate passenger service to and from 

the U.S. using any aircraft originally 

designed to have a passenger capacity of 

30 or more seats. 

Estimated Annual Burden on 

Respondents: A maximum of 54 hours 

per respondent. 

Estimated Total Annual Burden: 

2,226 hours for all respondents. 

Frequency: One information set to 

retain per three hour plus tarmac delay 

for each respondent. 

2. Requirement that carrier report 

certain tarmac delay data for tarmac 

delays exceeding 3 hours to the 

Department on a monthly basis. 

Respondents: U.S. carriers that 

operate passenger service using any 

aircraft with 30 or more seats, and 

foreign air carriers that operate 

passenger service to and from the 

United States using any aircraft 

originally designed to have a passenger 

capacity of 30 or more seats. 

Estimated Annual Burden on 

Respondents: 0.5 to 10 hours per 

domestic respondent and 0.5 to 4.5 

hours per foreign respondent. 

Estimated Total Annual Burden: 134 

4 hours for all respondents. 

Frequency: One information set to 

submit per month for each respondent 

that experiences a tarmac delay of more 

than 3 hours at a U.S. airport. 

3. Requirement that carrier retain for 

two years the results of its annual selfaudit of its compliance with its 

Customer Service Plan. 

Respondents: Foreign air carriers that 

operate scheduled passenger service to 

and from the U.S. using any aircraft 

originally designed to have a passenger 

capacity of 30 or more seats. 

Estimated Annual Burden on 

Respondents: 15 minutes per year for 

each respondent. 

Estimated Total Annual Burden: A 

maximum of 25 hours and 15 minutes 

for all respondents. 

Frequency: One information set to 

retain per year for each respondent. 

F. Unfunded Mandates Reform Act 

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 18th day of April 2011, in 

Washington, DC. 

Ray LaHood, 

Secretary of Transportation. 

List of Subjects 

14 CFR Parts 250 and 259 

Air carriers, Consumer protection, 

Reporting and recordkeeping 

requirements. 

14 CFR Part 244 

Air carriers, Consumer protection, 

Tarmac delay data. 

14 CFR Part 253 

Air carriers, Consumer protection, 

Contract of carriage. 

14 CFR Part 399 

Administrative practice and 

procedure, Air carriers, Air rates and 

fares, Air taxis, Consumer protection, 

Small businesses. 

For the reasons set forth in the 

preamble, the Department amends 14 

CFR Chapter II as follows: 

■ 1. Add part 244 to read as follows: 

PART 244—REPORTING TARMAC 

DELAY DATA 

Sec. 

244.1 Definitions. 

244.2 Applicability. 

244.3 Reporting of tarmac delay data. 

Authority: 49 U.S.C. 40101(a)(4), 

40101(a)(9), 40113(a), 41702, and 41712. 

§ 244.1 Definitions. 

Arrival time is the instant when the 

pilot sets the aircraft parking brake after 

arriving at the airport gate or passenger 

unloading area. If the parking brake is 

not set, record the time for the opening 

of the passenger door. Also, for 

purposes of section 244.3 carriers using 

a Docking Guidance System (DGS) may 

record the official ‘‘gate-arrival time’’ 

when the aircraft is stopped at the 

appropriate parking mark. 

Cancelled flight means a flight 

operation that was not operated, but was 

listed in an air carrier or a foreign air 

carrier’s computer reservation system 

within seven calendar days of the 

scheduled departure. 

Certificated air carrier means a U.S. 

carrier holding a certificate issued under 

49 U.S.C. 41102 to conduct passenger 

service or holding an exemption to 

conduct passenger operations under 49 

U.S.C. 40109. 

Commuter air carrier means a U.S. 

carrier that has been found fit under 49 

U.S.C. 41738 and is authorized to carry 

passengers on at least five round trips 

per week on at least one route between 

two or more points according to a 

published flight schedule using small 

aircraft as defined in 14 CFR 298.2. 

Covered carrier means a certificated 

carrier, a commuter carrier, or a foreign 

air carrier operating to, from, or within 

the United States, conducting scheduled 

passenger service or public charter 

service with at least one aircraft having 

a designed passenger seating capacity of 

30 or more seats. 

Diverted flight means a flight which is 

operated from the scheduled origin 

point to a point other than the 

scheduled destination point in the 

carrier’s published schedule. For 

example, a carrier has a published 

schedule for a flight from A to B to C. 

If the carrier were to actually fly an A 

to C operation, the A to B segment is a 

diverted flight, and the B to C segment 

is a cancelled flight. The same would 

apply if the flight were to operate from 

A to an airport other than B or C. 

Foreign air carrier means a carrier that 

is not a citizen of the United States as 

defined in 49 U.S.C. 40102(a) that holds 

a foreign air carrier permit issued under 

49 U.S.C. 41302 or an exemption issued 

under 49 U.S.C. 40109 authorizing 

direct foreign air transportation. 

Gate departure time is the instant 

when the pilot releases the aircraft 

parking brake after passengers have 

boarded and aircraft doors have closed. 

In cases where the flight returned to the 

departure gate before wheels-off time 

and departs a second time, the 

reportable gate departure time for 

purposes of this Part is the last gate 

departure time before wheels-off time. 

In cases of a return to the gate after 

wheels-off time, the reportable gate 

departure time is the last gate departure 

time before the gate return. If passengers 

were boarded without the parking brake 

being set, the reportable gate departure 

time is the time that the last passenger 

door was closed. Also, the official ‘‘gatedeparture time’’ may be based on aircraft 

movement for carriers using a Docking 

Guidance System (DGS). For example, 

one DGS records gate departure time 

when the aircraft moves more than 1 

meter from the appropriate parking 

mark within 15 seconds. Fifteen 


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seconds is then subtracted from the 

recorded time to obtain the appropriate 

‘‘out’’ time. 

Gate Return time means the time that 

an aircraft that has left the boarding gate 

returns to a gate or other position at an 

airport for the purpose of allowing 

passengers the opportunity to disembark 

from the aircraft. 

Large hub airport means an airport 

that accounts for at least 1.00 percent of 

the total enplanements in the United 

States. 

Medium hub airport means an airport 

accounting for at least 0.25 percent but 

less than 1.00 percent of the total 

enplanements in the United States. 

Non-hub airport means an airport 

with 10,000 or more annual 

enplanements but less than 0.05 percent 

of the total enplanements in the United 

States. 

Small hub airport means an airport 

accounting for at least 0.05 percent but 

less than 0.25 percent of the total 

enplanements in the United States. 

Tarmac delay means the holding of an 

aircraft on the ground either before 

taking off or after landing with no 

opportunity for its passengers to 

deplane. 

§ 244.2 Applicability. 

(a) Except as provided in paragraph 

(b) of this section, this part applies to 

U.S. certificated air carriers, U.S. 

commuter air carriers and foreign air 

carriers that operate passenger service to 

or from a U.S. airport with at least one 

aircraft that has an original 

manufacturer’s design capacity of 30 or 

more seats. Covered carriers must report 

all passenger operations that experience 

a tarmac time of 3 hours or more at a 

U.S. airport. 

(b) For foreign air carriers that operate 

charter flights from foreign airports to 

U.S. airports, and return to foreign 

airports, and do not pick up any new 

passengers in the U.S., the charter 

flights are not flights subject to the 

reporting requirements of this part. 

(c) U.S. carriers that submit Part 234 

Airline Service Quality Performance 

Reports must submit 3-hour tarmac 

delay information for public charter 

flights and international passenger 

flights to or from any U.S. large hub 

airport, medium hub airport, small hub 

airport and non-hub airport. These 

carriers are already required to submit 

such information for domestic 

scheduled flights to or from U.S. large 

hub airports under art 234 of this 

chapter. These carriers that are covered 

by part 234 need only submit 

information for flights with tarmac 

delays of more than 3 hours under this 

part 244 for domestic scheduled 

passenger flights to or from any U.S. 

medium hub airport, small hub airport 

and non-hub airport to the extent they 

do not report such information under 14 

CFR 234.7. 

§ 244.3 Reporting of tarmac delay data. 

(a) Each covered carrier shall file BTS 

Form 244 ‘‘Tarmac Delay Report’’ with 

the Office of Airline Information of the 

Department’s Bureau of Transportation 

Statistics on a monthly basis, setting 

forth the information for each of its 

covered flights that experienced a 

tarmac delay of three hours or more, 

including diverted flights and cancelled 

flights on which the passengers were 

boarded and then deplaned before the 

cancellation. The reports are due within 

15 days after the end of the month 

during which the carrier experienced 

any tarmac delay of three hours or more. 

The reports shall be made in the form 

and manner set forth in accounting and 

reporting directives issued by the 

Director, Office of Airline Information, 

and shall contain the following 

information: 

(1) Carrier code 

(2) Flight number 

(3) Departure airport (three letter 

code) 

(4) Arrival airport (three letter code) 

(5) Date of flight operation (year/ 

month/day) 

(6) Gate departure time (actual) in 

local time 

(7) Gate arrival time (actual) in local 

time 

(8) Wheels-off time (actual) in local 

time 

(9) Wheels-on time (actual) in local 

time 

(10) Aircraft tail number 

(11) Total ground time away from gate 

for all gate return/fly return at origin 

airports including cancelled flights 

(12) Longest time away from gate for 

gate return or canceled flight 

(13) Three letter code of airport where 

flight diverted 

(14) Wheels-on time at diverted 

airport 

(15) Total time away from gate at 

diverted airport 

(16) Longest time away from gate at 

diverted airport 

(17) Wheels-off time at diverted 

airport 

(b) The same information required by 

paragraph (a)(13) through (17) of this 

section must be provided for each 

subsequent diverted airport landing. 

PART 250—OVERSALES 

■ 2. The authority citation for 14 CFR 

Part 250 continues to read as follows: 

Authority: 49 U.S.C. chapters 401, 411, 

413 and 417. 

■ 3. Section 250.1 is amended by 

removing the definition of ‘‘sum of the 

values of the remaining flight coupons’’ 

and ‘‘comparable air transportation,’’ 

revising the definition for ‘‘confirmed 

reserved space,’’ and adding a definition 

for ‘‘alternate transportation,’’ ‘‘class of 

service,’’ ‘‘fare,’’ and ‘‘zero fare ticket’’ to 

read as follows: 

§ 250.1 Definitions. 

* * * * * 

Alternate transportation means air 

transportation with a confirmed 

reservation at no additional charge, 

operated by a carrier as defined below, 

or other transportation accepted and 

used by the passenger in the case of 

denied boarding. 

* * * * * 

Class of service means seating in the 

same cabin class such as First, Business, 

or Economy class, or in the same seating 

zone if the carrier has more than one 

seating product in the same cabin such 

as Economy and Premium Economy 

class. 

Confirmed reserved space means 

space on a specific date and on a 

specific flight and class of service of a 

carrier which has been requested by a 

passenger, including a passenger with a 

‘‘zero fare ticket,’’ and which the carrier 

or its agent has verified, by appropriate 

notation on the ticket or in any other 

manner provided therefore by the 

carrier, as being reserved for the 

accommodation of the passenger. 

Fare means the price paid for air 

transportation including all mandatory 

taxes and fees. It does not include 

ancillary fees for optional services. 

* * * * * 

Zero fare ticket means a ticket 

acquired without a substantial monetary 

payment such as by using frequent flyer 

miles or vouchers, or a consolidator 

ticket obtained after a monetary 

payment that does not show a fare 

amount on the ticket. A zero fare ticket 

does not include free or reduced rate air 

transportation provided to airline 

employees and guests. 

■ 4. Section 250.2b is amended by 

adding paragraph (c) to read as follows: 

§ 250.2b Carriers to request volunteers for 

denied boarding. 

* * * * * 

(c) If a carrier offers free or reduced 

rate air transportation as compensation 

to volunteers, the carrier must disclose 

all material restrictions, including but 

not limited to administrative fees, 

advance purchase or capacity 

restrictions, and blackout dates 

applicable to the offer before the 

passenger decides whether to give up 

his or her confirmed reserved space on 


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23162 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

that flight in exchange for the free or 

reduced rate transportation. 

■ 5. Section 250.5 is revised to read as 

follows: 

§ 250.5 Amount of denied boarding 

compensation for passengers denied 

boarding involuntarily. 

(a) Subject to the exceptions provided 

in § 250.6, a carrier to whom this part 

applies as described in § 250.2 shall pay 

compensation in interstate air 

transportation to passengers who are 

denied boarding involuntarily from an 

oversold flight as follows: 

(1) No compensation is required if the 

carrier offers alternate transportation 

that, at the time the arrangement is 

made, is planned to arrive at the airport 

of the passenger’s first stopover, or if 

none, the airport of the passenger’s final 

destination not later than one hour after 

the planned arrival time of the 

passenger’s original flight; 

(2) Compensation shall be 200% of 

the fare to the passenger’s destination or 

first stopover, with a maximum of $650, 

if the carrier offers alternate 

transportation that, at the time the 

arrangement is made, is planned to 

arrive at the airport of the passenger’s 

first stopover, or if none, the airport of 

the passenger’s final destination more 

than one hour but less than two hours 

after the planned arrival time of the 

passenger’s original flight; and 

(3) Compensation shall be 400% of 

the fare to the passenger’s destination or 

first stopover, with a maximum of 

$1,300, if the carrier does not offer 

alternate transportation that, at the time 

the arrangement is made, is planned to 

arrive at the airport of the passenger’s 

first stopover, or if none, the airport of 

the passenger’s final destination less 

than two hours after the planned arrival 

time of the passenger’s original flight. 

(b) Subject to the exceptions provided 

in § 250.6, a carrier to whom this part 

applies as described in § 250.2 shall pay 

compensation to passengers in foreign 

air transportation who are denied 

boarding involuntarily at a U.S. airport 

from an oversold flight as follows: 

(1) No compensation is required if the 

carrier offers alternate transportation 

that, at the time the arrangement is 

made, is planned to arrive at the airport 

of the passenger’s first stopover, or if 

not, the airport of the passenger’s final 

destination not later than one hour after 

the planned arrival time of the 

passenger’s original flight; 

(2) Compensation shall be 200% of 

the fare to the passenger’s destination or 

first stopover, with a maximum of $650, 

if the carrier offers alternate 

transportation that, at the time the 

arrangement is made, is planned to 

arrive at the airport of the passenger’s 

first stopover, or if not, the airport of the 

passenger’s final destination more than 

one hour but less than four hours after 

the planned arrival time of the 

passenger’s original flight; and 

(3) Compensation shall be 400% of 

the fare to the passenger’s destination or 

first stopover, with a maximum of 

$1,300, if the carrier does not offer 

alternate transportation that, at the time 

the arrangement is made, is planned to 

arrive at the airport of the passenger’s 

first stopover, or if not, the airport of the 

passenger’s final destination less than 

four hours after the planned arrival time 

of the passenger’s original flight. 

(c) Carriers may offer free or reduced 

rate air transportation in lieu of the cash 

or check due under paragraphs (a) and 

(b) of this section, if— 

(1) The value of the transportation 

benefit offered, excluding any fees or 

other mandatory charges applicable for 

using the free or reduced rate air 

transportation, is equal to or greater 

than the cash/check payment otherwise 

required; 

(2) The carrier fully informs the 

passenger of the amount of cash/check 

compensation that would otherwise be 

due and that the passenger may decline 

the transportation benefit and receive 

the cash/check payment; and 

(3) The carrier fully discloses all 

material restrictions, including but not 

limited to, administrative fees, advance 

purchase or capacity restrictions, and 

blackout dates applicable to the offer, on 

the use of such free or reduced rate 

transportation before the passenger 

decides to give up the cash/check 

payment in exchange for such 

transportation. 

(d) The requirements of this section 

apply to passengers with ‘‘zero fare 

tickets.’’ The fare paid by these 

passengers for purposes of calculating 

denied boarding compensation shall be 

the lowest cash, check, or credit card 

payment charged for a ticket in the same 

class of service on that flight. 

(e) The Department of Transportation 

will review the maximum denied 

boarding compensation amounts 

prescribed in this part every two years 

except for the first review, which will 

take place in 2012 in order to put the 

reviews specified in this section on the 

same cycle as the reviews of domestic 

baggage liability limits specified in 14 

CFR 254.6. The Department will use any 

increase in the Consumer Price Index 

for All Urban Consumers (CPI–U) as of 

July of each review year to calculate the 

increased maximum compensation 

amounts. The Department will use the 

following formula: 

(1) Current Denied Boarding 

Compensation limit in section 

250.5(a)(2) multiplied by (a/b) rounded 

to the nearest $25 where: 

a = July CPI–U of year of current adjustment 

b = the CPI–U figure in August, 2011 when 

the inflation adjustment provision was 

added to Part 250. 

(2) The Denied Boarding 

Compensation limit in § 250.5(a)(3) 

shall be twice the revised limit for 

§ 250.5(a)(2). 

(f) In addition to the denied boarding 

compensation specified in this part, a 

carrier shall refund all unused ancillary 

fees for optional services paid by a 

passenger who is voluntarily or 

involuntarily denied boarding. The 

carrier is not required to refund the 

ancillary fees for services that are 

provided with respect to the passenger’s 

alternate transportation. 

■ 6 . In § 250.9, the section heading and 

paragraph (b) are revised and paragraph 

(c) is added to read as follows: 

§ 250.9 Written explanation of denied 

boarding compensation and boarding 

priorities, and verbal notification of denied 

boarding compensation. 

* * * * * 

(b) The statement shall read as 

follows: 

Compensation for Denied Boarding 

If you have been denied a reserved seat on 

(name of air carrier), you are probably 

entitled to monetary compensation. This 

notice explains the airline’s obligation and 

the passenger’s rights in the case of an 

oversold flight, in accordance with 

regulations of the U.S. Department of 

Transportation. 

Volunteers and Boarding Priorities 

If a flight is oversold (more passengers hold 

confirmed reservations than there are seats 

available), no one may be denied boarding 

against his or her will until airline personnel 

first ask for volunteers who will give up their 

reservation willingly, in exchange for 

compensation of the airline’s choosing. If 

there are not enough volunteers, other 

passengers may be denied boarding 

involuntarily in accordance with the 

following boarding priority of (name of air 

carrier): (In this space the carrier inserts its 

boarding priority rules or a summary thereof, 

in a manner to be understandable to the 

average passenger.) 

Compensation for Involuntary Denied 

Boarding 

If you are denied boarding involuntarily, 

you are entitled to a payment of ‘‘denied 

boarding compensation’’ from the airline 

unless: 

(1) you have not fully complied with the 

airline’s ticketing, check-in and 

reconfirmation requirements, or you are not 

acceptable for transportation under the 

airline’s usual rules and practices; or 


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(2) you are denied boarding because the 

flight is canceled; or 

(3) you are denied boarding because a 

smaller capacity aircraft was substituted for 

safety or operational reasons; or 

(4) on a flight operated with an aircraft 

having 60 or fewer seats, you are denied 

boarding due to safety-related weight/balance 

restrictions that limit payload; or 

(5) you are offered accommodations in a 

section of the aircraft other than specified in 

your ticket, at no extra charge (a passenger 

seated in a section for which a lower fare is 

charged must be given an appropriate 

refund); or 

(6) the airline is able to place you on 

another flight or flights that are planned to 

reach your next stopover or final destination 

within one hour of the planned arrival time 

of your original flight. 

Amount of Denied Boarding Compensation 

Domestic Transportation 

Passengers traveling between points within 

the United States (including the territories 

and possessions) who are denied boarding 

involuntarily from an oversold flight are 

entitled to: (1) No compensation if the carrier 

offers alternate transportation that is planned 

to arrive at the passenger’s destination or first 

stopover not later than one hour after the 

planned arrival time of the passenger’s 

original flight; (2) 200% of the fare to the 

passenger’s destination or first stopover, with 

a maximum of $650, if the carrier offers 

alternate transportation that is planned to 

arrive at the passenger’s destination or first 

stopover more than one hour but less than 

two hours after the planned arrival time of 

the passenger’s original flight; and (3) 400% 

of the fare to the passenger’s destination or 

first stopover, with a maximum of $1,300, if 

the carrier does not offer alternate 

transportation that is planned to arrive at the 

airport of the passenger’s destination or first 

stopover less than two hours after the 

planned arrival time of the passenger’s 

original flight. 

0 to 1 hour arrival 

delay.

No compensation. 

1 to 2 hour arrival 

delay.

200% of one-way fare 

(but no more than 

$650). 

Over 2 hours arrival 

delay.

400% of one-way fare 

(but no more than 

$1,300). 

International Transportation 

Passengers traveling from the United States 

to a foreign point who are denied boarding 

involuntarily from an oversold flight 

originating at a U.S. airport are entitled to: (1) 

No compensation if the carrier offers 

alternate transportation that is planned to 

arrive at the passenger’s destination or first 

stopover not later than one hour after the 

planned arrival time of the passenger’s 

original flight; (2) 200% of the fare to the 

passenger’s destination or first stopover, with 

a maximum of $650, if the carrier offers 

alternate transportation that is planned to 

arrive at the passenger’s destination or first 

stopover more than one hour but less than 

four hours after the planned arrival time of 

the passenger’s original flight; and (3) 400% 

of the fare to the passenger’s destination or 

first stopover, with a maximum of $1,300, if 

the carrier does not offer alternate 

transportation that is planned to arrive at the 

airport of the passenger’s destination or first 

stopover less than four hours after the 

planned arrival time of the passenger’s 

original flight. 

0 to 1 hour arrival 

delay.

No compensation. 

1 to 4 hour arrival 

delay.

200% of one-way fare 

(but no more than 

$650). 

Over 4 hours arrival 

delay.

400% of one-way fare 

(but no more than 

$1,300). 

Alternate Transportation 

‘‘Alternate transportation’’ is air 

transportation with a confirmed reservation 

at no additional charge (by any scheduled 

airline licensed by DOT), or other 

transportation accepted and used by the 

passenger in the case of denied boarding. 

Method of Payment 

Except as provided below, the airline must 

give each passenger who qualifies for 

involuntary denied boarding compensation a 

payment by cash or check for the amount 

specified above, on the day and at the place 

the involuntary denied boarding occurs. If 

the airline arranges alternate transportation 

for the passenger’s convenience that departs 

before the payment can be made, the 

payment shall be sent to the passenger within 

24 hours. The air carrier may offer free or 

discounted transportation in place of the 

cash payment. In that event, the carrier must 

disclose all material restrictions on the use of 

the free or discounted transportation before 

the passenger decides whether to accept the 

transportation in lieu of a cash or check 

payment. The passenger may insist on the 

cash/check payment or refuse all 

compensation and bring private legal action. 

Passenger’s Options 

Acceptance of the compensation may 

relieve (name of air carrier) from any further 

liability to the passenger caused by its failure 

to honor the confirmed reservation. However, 

the passenger may decline the payment and 

seek to recover damages in a court of law or 

in some other manner. 

(c) In addition to furnishing 

passengers with the carrier’s written 

statement as specified in paragraphs (a) 

and (b) of this section, if the carrier 

orally advises involuntarily bumped 

passengers that they are entitled to 

receive free or discounted transportation 

as denied boarding compensation, the 

carrier must also orally advise the 

passengers of any material restrictions 

or conditions applicable to the free or 

discounted transportation and that they 

are entitled to choose a check instead 

(or cash if that option is offered by the 

carrier). 

■ 7. Section 250.10 is revised to read as 

follows: 

§ 250.10 Report of passengers denied 

confirmed space. 

Every reporting carrier as defined in 

§ 234.2 of this chapter and any carrier 

that voluntarily submits data pursuant 

to § 234.7 of this chapter shall file, on 

a quarterly basis, the information 

specified in BTS Form 251. The 

reporting basis shall be flight segments 

originating in the United States. The 

reports are to be submitted within 30 

days after the end of the quarter covered 

by the report. The calendar quarters end 

March 31, June 30, September 30 and 

December 31. ‘‘Total Boardings’’ on Line 

7 of Form 251 shall include only 

passengers on flights for which 

confirmed reservations are offered. Data 

shall not be included for inbound 

international flights. 

PART 253—NOTICE OF TERMS OF 

CONTRACT OF CARRIAGE 

■ 8. The authority citation for 14 CFR 

Part 253 continues to read as follows: 

Authority: 49 U.S.C. 40113; 49 U.S.C. 

Chapters 401, 415 and 417. 

■ 9. Section 253.7 is revised to read as 

follows: 

§ 253.7 Direct notice of certain terms. 

A carrier may not impose any terms 

restricting refunds of the ticket price, 

imposing monetary penalties on 

passengers, or raising the ticket price 

consistent with § 399.87 of the chapter, 

unless the passenger receives 

conspicuous written notice of the 

salient features of those terms on or 

with the ticket. 

■ 10. Section 253.10 is added to read as 

follows: 

§ 253.10 Notice of contract of carriage 

choice-of-forum provisions. 

No carrier may impose any contract of 

carriage provision containing a choiceof-forum clause that attempts to 

preclude a passenger, or a person who 

purchases a ticket for air transportation 

on behalf of a passenger, from bringing 

a claim against a carrier in any court of 

competent jurisdiction, including a 

court within the jurisdiction of that 

passenger’s residence in the United 

States (provided that the carrier does 

business within that jurisdiction). 

PART 259—ENHANCED 

PROTECTIONS FOR AIRLINE 

PASSENGERS 

■ 11. The authority citation for 14 CFR 

Part 259 continues to read as follows: 

Authority: 49 U.S.C. 40101(a)(4), 

40101(a)(9), 40113(a), 41702, and 41712. 

■ 12. Section 259.2 is revised to read as 

follows: 


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23164 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

§ 259.2 Applicability. 

This part applies to all the flights of 

a certificated or commuter air carrier if 

the carrier operates scheduled passenger 

service or public charter service using 

any aircraft originally designed to have 

a passenger capacity of 30 or more seats, 

and to all flights to and from the U.S. 

of a foreign carrier if the carrier operates 

scheduled passenger service or public 

charter service to and from the U.S. 

using any aircraft originally designed to 

have a passenger capacity of 30 or more 

seats, except as otherwise provided in 

this part. This part does not apply to 

foreign carrier charters that operate to 

and from the United States if no new 

passengers are picked up in the United 

States. 

■ 13. Section 259.3 is revised to read as 

follows: 

§ 259.3 Definitions. 

Certificated air carrier means a U.S. 

carrier holding a certificate issued under 

49 U.S.C. 41102 to conduct passenger 

service or holding an exemption to 

conduct passenger operations under 49 

U.S.C. 41102. 

Commuter air carrier means a U.S. 

carrier that has been found fit under 49 

U.S.C. 41738 and is authorized to carry 

passengers on at least five round trips 

per week on at least one route between 

two or more points according to a 

published flight schedule using small 

aircraft as defined in 14 CFR 298.2. 

Covered carrier means a certificated 

carrier, a commuter carrier, or a foreign 

air carrier operating to, from or within 

the United States, conducting scheduled 

passenger service or public charter 

service with at least one aircraft having 

a designed seating capacity of 30 or 

more seats. 

Foreign air carrier means a carrier that 

is not a citizen of the United States as 

defined in 49 U.S.C. 40102(a) that holds 

a foreign air carrier permit issued under 

49 U.S.C. 41302 or an exemption issued 

under 49 U.S.C. 40109 authorizing 

direct foreign air transportation. 

Large hub airport means an airport 

that accounts for at least 1.00 percent of 

the total enplanements in the United 

States. 

Medium hub airport means an airport 

accounting for at least 0.25 percent but 

less than 1.00 percent of the total 

enplanements in the United States. 

Non-hub airport means an airport 

with 10,000 or more annual 

enplanements but less than 0.05 percent 

of the country’s annual passenger 

boardings. 

Small hub airport means an airport 

accounting for at least 0.05 percent but 

less than 0.25 percent of the total 

enplanements in the United States. 

Tarmac delay means the holding of an 

aircraft on the ground either before 

taking off or after landing with no 

opportunity for its passengers to 

deplane. 

■ 14. Section 259.4 is revised to read as 

follows: 

§ 259.4 Contingency Plan for Lengthy 

Tarmac Delays. 

(a) Adoption of Plan. Each covered 

carrier shall adopt a Contingency Plan 

for Lengthy Tarmac Delays for its 

scheduled and public charter flights at 

each U.S. large hub airport, medium 

hub airport, small hub airport and nonhub airport at which it operates or 

markets such air service and shall 

adhere to its plan’s terms. 

(b) Contents of Plan. Each 

Contingency Plan for Lengthy Tarmac 

Delays shall include, at a minimum, the 

following: 

(1) For domestic flights, assurance 

that the covered U.S. air carrier will not 

permit an aircraft to remain on the 

tarmac for more than three hours before 

allowing passengers to deplane unless: 

(i) The pilot-in-command determines 

there is a safety-related or securityrelated reason (e.g. weather, a directive 

from an appropriate government agency) 

why the aircraft cannot leave its 

position on the tarmac to deplane 

passengers; or 

(ii) Air traffic control advises the 

pilot-in-command that returning to the 

gate or another disembarkation point 

elsewhere in order to deplane 

passengers would significantly disrupt 

airport operations. 

(2) For international flights operated 

by covered carriers that depart from or 

arrive at a U.S. airport, assurance that 

the carrier will not permit an aircraft to 

remain on the tarmac at a U.S. airport 

for more than four hours before allowing 

passengers to deplane, unless: 

(i) The pilot-in-command determines 

there is a safety-related or securityrelated reason why the aircraft cannot 

leave its position on the tarmac to 

deplane passengers; or 

(ii) Air traffic control advises the 

pilot-in-command that returning to the 

gate or another disembarkation point 

elsewhere in order to deplane 

passengers would significantly disrupt 

airport operations. 

(3) For all flights, assurance that the 

carrier will provide adequate food and 

potable water no later than two hours 

after the aircraft leaves the gate (in the 

case of a departure) or touches down (in 

the case of an arrival) if the aircraft 

remains on the tarmac, unless the pilotin-command determines that safety or 

security considerations preclude such 

service; 

(4) For all flights, assurance of 

operable lavatory facilities, as well as 

adequate medical attention if needed, 

while the aircraft remains on the tarmac; 

(5) For all flights, assurance that the 

passengers on the delayed flight will 

receive notifications regarding the status 

of the delay every 30 minutes while the 

aircraft is delayed, including the reasons 

for the tarmac delay, if known; 

(6) For all flights, assurance that the 

passengers on the delayed flight will be 

notified beginning 30 minutes after 

scheduled departure time (including 

any revised departure time that 

passengers were notified about before 

boarding) and every 30 minutes 

thereafter that they have the opportunity 

to deplane from an aircraft that is at the 

gate or another disembarkation area 

with the door open if the opportunity to 

deplane actually exists; 

(7) Assurance of sufficient resources 

to implement the plan; and 

(8) Assurance that the plan has been 

coordinated with airport authorities 

(including terminal facility operators 

where applicable) at each U.S. large hub 

airport, medium hub airport, small hub 

airport and non-hub airport that the 

carrier serves, as well as its regular U.S. 

diversion airports; 

(9) Assurance that the plan has been 

coordinated with U.S. Customs and 

Border Protection (CBP) at each large 

U.S. hub airport, medium hub airport, 

small hub airport and non-hub airport 

that is regularly used for that carrier’s 

international flights, including 

diversion airports; and 

(10) Assurance that the plan has been 

coordinated with the Transportation 

Security Administration (TSA) at each 

U.S. large hub airport, medium hub 

airport, small hub airport and non-hub 

airport that the carrier serves, including 

diversion airports. 

(c) Code-Share Responsibility. The 

tarmac delay contingency plan of the 

carrier under whose code the service is 

marketed governs, if different from the 

operating carrier, unless the marketing 

carrier specifies in its contract of 

carriage that the operating carrier’s plan 

governs. 

(d) Amendment of plan. At any time, 

a carrier may amend its Contingency 

Plan for Lengthy Tarmac Delays to 

decrease the time for aircraft to remain 

on the tarmac for domestic flights 

covered in paragraph (b)(1) of this 

section, for aircraft to remain on the 

tarmac for international flights covered 

in paragraph (b)(2) of this section, and 

for the trigger point for food and water 

covered in paragraph (b)(3) of this 

section. A carrier may also amend its 

plan to increase these intervals (up to 

the limits in this rule), in which case the 


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Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23165 

amended plan shall apply only to 

departures that are first offered for sale 

after the plan’s amendment. 

(e) Retention of records. Each carrier 

that is required to adopt a Contingency 

Plan for Lengthy Tarmac Delays shall 

retain for two years the following 

information about any tarmac delay that 

lasts more than three hours: 

(1) The length of the delay; 

(2) The precise cause of the delay; 

(3) The actions taken to minimize 

hardships for passengers, including the 

provision of food and water, the 

maintenance and servicing of lavatories, 

and medical assistance; 

(4) Whether the flight ultimately took 

off (in the case of a departure delay or 

diversion) or returned to the gate; and 

(5) An explanation for any tarmac 

delay that exceeded 3 hours (i.e., why 

the aircraft did not return to the gate by 

the 3-hour mark). 

(f) Unfair and deceptive practice. A 

carrier’s failure to comply with the 

assurances required by this rule and 

contained in its Contingency Plan for 

Lengthy Tarmac Delays will be 

considered to be an unfair and 

deceptive practice within the meaning 

of 49 U.S.C. 41712 that is subject to 

enforcement action by the Department. 

■ 15. Section 259.5 is revised to read as 

follows: 

§ 259.5 Customer Service Plan. 

(a) Adoption of Plan. Each covered 

carrier shall adopt a Customer Service 

Plan applicable to its scheduled flights 

and shall adhere to the plan’s terms. 

(b) Contents of Plan. Each Customer 

Service Plan shall address the following 

subjects and comply with the minimum 

standards set forth: 

(1) Disclosing on the carrier’s website, 

at the ticket counter, or when a 

customer calls the carrier’s reservation 

center to inquire about a fare or to make 

a reservation, that the lowest fare 

offered by the carrier may be available 

elsewhere if that is the case; 

(2) Notifying consumers of known 

delays, cancellations, and diversions as 

required by 14 CFR 259.8 of this 

chapter; 

(3) Delivering baggage on time, 

including making every reasonable 

effort to return mishandled baggage 

within twenty-four hours, compensating 

passengers for reasonable expenses that 

result due to delay in delivery, as 

required by 14 CFR part 254 for 

domestic flights and as required by 

applicable international agreements for 

international flights, and reimbursing 

passengers for any fee charged to 

transport a bag if that bag is lost; 

(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; 

(5) Where ticket refunds are due, 

providing prompt refunds, as required 

by 14 CFR 374.3 and 12 CFR part 226 

for credit card purchases, and within 20 

days after receiving a complete refund 

request for cash and check purchases, 

including refunding fees charged to a 

passenger for optional services that the 

passenger was unable to use due to an 

oversale situation or flight cancellation; 

(6) Properly accommodating 

passengers with disabilities, as required 

by part 382 of this chapter, and other 

special-needs passengers as set forth in 

the carrier’s policies and procedures, 

including during lengthy tarmac delays; 

(7) Meeting customers’ essential needs 

during lengthy tarmac delays as 

required by § 259.4 of this chapter and 

as provided for in each covered carrier’s 

contingency plan; 

(8) Handling ‘‘bumped’’ passengers 

with fairness and consistency in the 

case of oversales as required by part 250 

of this chapter and as described in each 

carrier’s policies and procedures for 

determining boarding priority; 

(9) Disclosing cancellation policies, 

frequent flyer rules, aircraft seating 

configuration, and lavatory availability 

on the selling carrier’s website, and 

upon request, from the selling carrier’s 

telephone reservations staff; 

(10) Notifying consumers in a timely 

manner of changes in their travel 

itineraries; 

(11) Ensuring responsiveness to 

consumer problems as required by 

§ 259.7 of this chapter; and 

(12) Identifying the services it 

provides to mitigate passenger 

inconveniences resulting from flight 

cancellations and misconnections. 

(c) Self-auditing of plan and retention 

of records. Each carrier that is required 

to adopt a Customer Service Plan shall 

audit its own adherence to its plan 

annually. Carriers shall make the results 

of their audits available for the 

Department’s review upon request for 

two years following the date any audit 

is completed. 

■ 16. Section 259.6 is revised to read as 

follows: 

§ 259.6 Posting of Contracts of Carriage, 

Tarmac Delay Contingency Plans and 

Customer Service Plans on websites. 

(a) Each U.S. air carrier that has a 

website and each foreign air carrier that 

has a website marketed to U.S. 

consumers, and that is required to adopt 

a contingency plan for lengthy tarmac 

delays, shall post its current 

contingency plan on its website in 

easily accessible form. 

(b) Each U.S. air carrier that has a 

website and each foreign air carrier that 

has a website marketed to U.S. 

consumers, and that is required to adopt 

a customer service plan, shall post its 

current customer service plan on its 

website in easily accessible form. 

(c) Each U.S. air carrier that has a 

website and each foreign air carrier that 

has a website marketed to U.S. 

consumers shall post its current contract 

of carriage on its website in easily 

accessible form. 

■ 17. Section 259.7 is revised to read as 

follows: 

§ 259.7 Response to consumer problems. 

(a) Designated advocates for 

passengers’ interests. Each covered 

carrier shall designate for its scheduled 

flights an employee who shall be 

responsible for monitoring the effects of 

flight delays, flight cancellations, and 

lengthy tarmac delays on passengers. 

This employee shall have input into 

decisions on which flights to cancel and 

which will be delayed the longest. 

(b) Informing consumers how to 

complain. Each covered carrier shall 

make available the mailing address and 

e-mail or web address of the designated 

department in the airline with which to 

file a complaint about its scheduled 

service. This information shall be 

provided on the U.S. carrier’s website (if 

any) and the foreign carrier’s website (if 

marketed to U.S. consumers), on all eticket confirmations and, upon request, 

at each ticket counter and boarding gate 

staffed by the carrier or a contractor of 

the carrier. 

(c) Response to complaints. Each 

covered carrier shall acknowledge in 

writing receipt of each complaint 

regarding its scheduled service to the 

complainant within 30 days of receiving 

it and shall send a substantive written 

response to each complainant within 60 

days of receiving the complaint. A 

complaint is a specific written 

expression of dissatisfaction concerning 

a difficulty or problem which the person 

experienced when using or attempting 

to use an airline’s services. 

(d) Social networking sites. Each 

covered carrier that uses a social 

networking site (e.g. Facebook, Twitter) 

and that does not intend for that site to 

be a vehicle for receipt of written 

consumer complaints subject to this 

section shall clearly indicate on the 

carrier’s primary page on that social 

networking site that it will not reply to 

consumer complaints on that site and 

shall direct consumers to the carrier’s 

mailing address and e-mail or website 

location for filing written complaints. 


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23166 Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 

■ 18. Section 259.8 is added to read as 

follows: 

§ 259.8 Notify passengers of known 

delays, cancellations, and diversions. 

(a) Each covered carrier for its 

scheduled flights to, from or within the 

U.S. must promptly provide to 

passengers who are ticketed or hold 

reservations, and to the public, 

information about a change in the status 

of a flight within 30 minutes after the 

carrier becomes aware of such a change 

in the status of a flight. A change in the 

status of a flight means, at a minimum, 

cancellation of a flight, a delay of 30 

minutes or more in the planned 

operation of a flight, or a diversion. The 

flight status information must at a 

minimum be provided in the boarding 

gate area for the flight at a U.S. airport, 

on the carrier’s website, and via the 

carrier’s telephone reservation system 

upon inquiry by any person. 

(1) With respect to any U.S. carrier or 

foreign air carrier that permits 

passengers to subscribe to flight status 

notification services, the carrier must 

deliver such notification to such 

passengers, by whatever means is 

available to the carrier and of the 

passenger’s choice, within 30 minutes 

after the carrier becomes aware of such 

a change in the status of a flight. 

(2) The U.S. carrier or foreign air 

carrier shall incorporate such 

notification service commitment into its 

Customer Service Plan as specified in 

section 259.5 of this chapter. 

(b) For its scheduled flights to, from 

or within the U.S, within 30 minutes 

after the carrier becomes aware of a 

flight cancellation, a flight delay of 30 

minutes or more, or a flight diversion, 

each covered carrier must update all 

flight status displays and other sources 

of flight information that are under the 

carrier’s control at U.S. airports with 

information on that flight irregularity. 

(c) If an airport-controlled display 

system at a U.S. airport accepts flight 

status updates from carriers, covered 

carriers must provide flight irregularity 

information to that airport for the 

carrier’s scheduled flights to, from or 

within the U.S. within 30 minutes after 

the carrier becomes aware of such a 

change in the status of a flight. Flight 

irregularity refers to flight cancellations, 

flight delays of 30 minutes or more, and 

diversions. 

PART 399—STATEMENTS OF 

GENERAL POLICY 

■ 19. The authority citation for 14 CFR 

Part 399 continues to read as follows: 

Authority: 49 U.S.C. 40101 et seq. 

■ 20. Effective October 24, 2011, 

§ 399.84 is revised to read as follows: 

§ 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 to be paid by the 

customer to the carrier, or agent, for 

such air transportation, tour, or tour 

component. Although charges included 

within the single total price listed (e.g., 

government taxes) may be stated 

separately or through links or ‘‘pop ups’’ 

on websites that display the total price, 

such charges may not be false or 

misleading, may not be displayed 

prominently, 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. 

(b) The Department considers any 

advertising by the entities listed in 

paragraph (a) of this section of an eachway airfare that is available only when 

purchased for round-trip travel to be an 

unfair and deceptive practice in 

violation of 49 U.S.C. 41712, unless 

such airfare is advertised as ‘‘each way’’ 

and in such a manner so that the 

disclosure of the round-trip purchase 

requirement is clearly and 

conspicuously noted in the 

advertisement and is stated prominently 

and proximately to the each-way fare 

amount. The Department considers it to 

be an unfair and deceptive practice to 

advertise each-way fares contingent on 

a round-trip purchase requirement as 

‘‘one-way’’ fares, even if accompanied by 

prominent and proximate disclosure of 

the round trip purchase requirement. 

(c) When offering a ticket for purchase 

by a consumer, 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, a direct air carrier, 

indirect air carrier, an agent of either, or 

a ticket agent, may not offer additional 

optional services in connection with air 

transportation, a tour, or tour 

component whereby the optional 

service is automatically added to the 

consumer’s purchase if the consumer 

takes no other action, i.e., if the 

consumer does not opt out. The 

consumer must affirmatively ‘‘opt in’’ 

(i.e., agree) to such a service and the fee 

for it before that fee is added to the total 

price for the air transportation-related 

purchase. The Department considers the 

use of ‘‘opt-out’’ provisions to be an 

unfair and deceptive practice in 

violation of 49 U.S.C. 41712. 

■ 21. Section 399.85 is added to read as 

follows: 

§ 399.85 Notice of baggage fees and other 

fees. 

(a) If a U. S. or foreign air carrier has 

a website accessible for ticket purchases 

by the general public in the U.S., the 

carrier must promptly and prominently 

disclose any increase in its fee for carryon or first and second checked bags and 

any change in the first and second 

checked bags or carry-on allowance for 

a passenger on the homepage of that 

website (e.g., provide a link that says 

‘‘changed bag rules’’ or similarly 

descriptive language and takes the 

consumer from the homepage directly to 

a pop-up or a place on another webpage 

that details the change in baggage 

allowance or fees and the effective dates 

of such changes). Such notice must 

remain on the homepage for at least 

three months after the change becomes 

effective. 

(b) If a U.S. carrier, a foreign air 

carrier, an agent of either, or a ticket 

agent has a website accessible for ticket 

purchases by the general public in the 

U.S., the carrier or agent must clearly 

and prominently disclose on the first 

screen in which the agent or carrier 

offers a fare quotation for a specific 

itinerary selected by a consumer that 

additional airline fees for baggage may 

apply and where consumers can see 

these baggage fees. An agent may refer 

consumers to the airline websites where 

specific baggage fee information may be 

obtained or to its own site if it displays 

airlines’ baggage fees. 

(c) On all e-ticket confirmations for air 

transportation within, to or from the 

United States, including the summary 

page at the completion of an online 

purchase and a post-purchase email 

confirmation, a U.S. carrier, a foreign air 

carrier, an agent of either, or a ticket 

agent that advertises or sells air 

transportation in the United States must 

include information regarding the 

passenger’s free baggage allowance and/ 

or the applicable fee for a carry-on bag 

and the first and second checked bag. 

Carriers must provide this information 

in text form in the e-ticket confirmation. 

Agents may provide this information in 


srobinson on DSKHWCL6B1PROD with RULES4
Federal Register / Vol. 76, No. 79 / Monday, April 25, 2011 / Rules and Regulations 23167 

text form in the e-ticket confirmations or 

through a hyperlink to the specific 

location on airline websites or their own 

website where this information is 

displayed. The fee information provided 

for a carry-on bag and the first and 

second checked bag must be expressed 

as specific charges taking into account 

any factors (e.g., frequent flyer status, 

early purchase, and so forth) that affect 

those charges. 

(d) If a U.S. or foreign air carrier has 

a website marketed to U.S. consumers 

where it advertises or sells air 

transportation, the carrier must 

prominently disclose on its website 

information on fees for all optional 

services that are available to a passenger 

purchasing air transportation. Such 

disclosure must be clear, with a 

conspicuous link from the carrier’s 

homepage directly to a page or a place 

on a page where all such optional 

services and related fees are disclosed. 

For purposes of this section, the term 

‘‘optional services’’ is defined as any 

service the airline provides, for a fee, 

beyond passenger air transportation. 

Such fees include, but are not limited 

to, charges for checked or carry-on 

baggage, advance seat selection, in-flight 

beverages, snacks and meals, pillows 

and blankets and seat upgrades. 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, and so forth) that affect those 

charges. 

(e) 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. 

(f) The Department considers the 

failure to give the appropriate notice 

described in paragraphs (a) through (e) 

of this section to be an unfair and 

deceptive practice within the meaning 

of 49 U.S.C. 41712. 

■ 22. Section 399.87 is added to read as 

follows: 

§ 399.87 Baggage allowances and fees. 

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. In the case of codeshare 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. 

■ 23. Section 399.88 is added to read as 

follows: 

§ 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 price of that air 

transportation, tour or tour component 

to a consumer, including but not limited 

to an increase in the price of the seat, 

an increase in the price for the carriage 

of passenger baggage, or an increase in 

an applicable fuel surcharge, 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. 

(b) A seller of scheduled air 

transportation within, to or from the 

United States or 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, 

must notify a consumer of the potential 

for a post-purchase price increase due to 

an increase in a government-imposed 

tax or fee and must obtain the 

consumer’s written consent to the 

potential for such an increase prior to 

purchase of the scheduled air 

transportation, tour or tour component 

that includes scheduled air 

transportation. Imposition of any such 

increase without providing the 

consumer the appropriate notice and 

without obtaining his or her written 

consent of the potential increase 

constitutes an unfair and deceptive 

practice within the meaning of 49 U.S.C. 

41712. 

■ 24. Section 399.89 is added to read as 

follows: 

§ 399.89 Disclosure of potential for price 

increase before payment. 

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, 

must notify a consumer of the potential 

for a price increase that could take place 

prior to the time that the full amount 

agreed upon has been paid by the 

consumer, including but not limited to 

an increase in the price of the seat, an 

increase in the price for the carriage of 

passenger baggage, an increase in an 

applicable fuel surcharge, or an increase 

in a government-imposed tax or fee and 

must obtain the consumer’s written 

consent to the potential for such an 

increase prior to accepting any payment 

for the scheduled air transportation, or 

tour or tour component that includes 

scheduled air transportation. Imposition 

of any such increase without providing 

the consumer the appropriate notice and 

obtaining his or her written consent to 

the potential increase constitutes an 

unfair and deceptive practice within the 

meaning of 49 U.S.C. 41712. 

[FR Doc. 2011–9736 Filed 4–20–11; 8:45 am] 

BILLING CODE P 


srobinson on DSKHWCL6B1PROD with RULES4