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[Federal Register: June 8, 2010 (Volume 75, Number 109)]
[Proposed Rules]               
[Page 32318-32341]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jn10-32]                         

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 234, 244, 250, 253, 259, and 399

[Docket No. DOT-OST-2010-0140]
RIN No. 2105-AD92

 
Enhancing Airline Passenger Protections

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

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: The Department of Transportation is proposing 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; requiring carriers to include their contingency plans 
and customer service plans in their contracts of carriage; 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-of-forum provisions. The 
Department is proposing to take this action to strengthen the rights of 
air travelers in the event of oversales, flight cancellations and long 
delays, and to ensure that passengers have accurate and adequate 
information to make informed decisions when selecting flights. In 
addition, the Department is considering several measures, including 
banning the serving of peanuts on commercial airlines, to provide 
greater access to air travel for the significant number of individuals 
with peanut allergies.

DATES: Comments should be filed by August 9, 2010. Late-filed comments 
will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2010-0140 by any of the following methods:
     Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting 
comments.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 
20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal Holidays.
     Fax: (202) 493-2251.
    Instructions: You must include the agency name and docket number 
DOT-OST-2010-XXXX or the Regulatory Identification Number (RIN) for the 
rulemaking at the beginning of your comment. All comments received will 
be posted without change to http://www.regulations.gov, including any 
personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received in any of our dockets by the name of the individual 
submitting the comment (or signing the comment if submitted on behalf 
of an association, a business, a labor union, etc.). You may review 
DOT's complete Privacy Act statement in the Federal Register published 
on April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov or to the street 
address listed above. Follow the online instructions for accessing the 
docket.

FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie, 
Office of the Assistant General Counsel for Aviation Enforcement and 
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave., 
SE., Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax), 
daeleen.chesley@dot.gov or blane.workie@dot.gov (e-mail).

SUPPLEMENTARY INFORMATION:

Pilot Project on Open Government and the Rulemaking Process

    On January 21st, 2009, President Obama issued a Memorandum on

[[Page 32319]]

Transparency and Open Government in which he described how ``public 
engagement enhances the Government's effectiveness and improves the 
quality of its decisions'' and how ``knowledge is widely dispersed in 
society, and public officials benefit from having access to that 
dispersed knowledge.'' To support the President's open government 
initiative, DOT plans to continue its partnership with the Cornell 
eRulemaking Initiative (CeRI) in a pilot project, Regulation Room, to 
discover the best ways of using Web 2.0 and social networking 
technologies to: (1) Alert the public, including those who sometimes 
may not be aware of rulemaking proposals, such as individuals, public 
interest groups, small businesses, and local government entities, that 
rulemaking is occurring in areas of interest to them; (2) increase 
public understanding of each proposed rule and the rulemaking process; 
and (3) help the public formulate more effective individual and 
collaborative input to DOT. We anticipate, over the course of several 
rulemaking initiatives, that CeRI will use different Web technologies 
and approaches to enhance public understanding and participation, work 
with DOT to evaluate the advantages and disadvantages of these 
techniques, and report their findings and conclusions on the most 
effective use of social networking technologies in this area.
    DOT and the Obama Administration are striving to increase effective 
public involvement in the rulemaking process and strongly encourage all 
parties interested in this rulemaking to visit the Regulation Room Web 
site, http://www.regulationroom.org, to learn about the rule and the 
rulemaking process, to discuss the issues in the rule with other 
persons and groups, and to participate in drafting comments that will 
be submitted to DOT. A Summary of the discussion that occurs on the 
Regulation Room site and participants will have the chance to review a 
draft and suggest changes before the Summary is submitted. Participants 
who want to further develop ideas contained in the Summary, or raise 
additional points, will have the opportunity to collaboratively draft 
joint comments that will be also be submitted to the rulemaking docket 
before the comment period closes.
    Note that Regulation Room is not an official DOT Web site, and so 
participating in discussion on that site is not the same as commenting 
in the rulemaking docket. The Summary of discussion and any joint 
comments prepared collaboratively on the site will become comments in 
the docket when they are submitted to DOT by CeRI. At any time during 
the comment period, anyone using Regulation Room can also submit 
individual views to the rulemaking docket through the federal 
rulemaking portal Regulations.gov, or by any of the other methods 
identified at the beginning of this Notice. For questions about this 
project, please contact Brett Jortland in the DOT Office of General 
Counsel at 202-421-9216 or brett.jortland@dot.gov.

Summary of Preliminary Regulatory Analysis

    The preliminary regulatory analysis suggests that the benefits of 
the proposed requirements exceed its costs, even without considering 
non-quantifiable benefits. This analysis, outlined in the table below, 
finds that the expected net present value of the rule for 10 years at a 
7% discount rate is estimated to be $61.6 million. At a 3% discount 
rate, the expected net present value of the rule is estimated to be 
$75.7 million.

------------------------------------------------------------------------
                                                          Present value
                                                            (millions)
------------------------------------------------------------------------
Total Quantified Benefits:
    10 Years, 7% discounting...........................            $87.6
    10 Years, 3% discounting...........................            104.2
Total Quantified Costs:
    10 Years, 7% discounting...........................             26.0
    10 Years, 3% discounting...........................             28.5
Net Benefits:
    10 Years, 7% discounting...........................             61.6
    10 Years, 3% discounting...........................             75.7
------------------------------------------------------------------------

A comparison of the estimated benefits and costs for each of the 11 
proposed requirements is provided in the Regulatory Analysis and 
Notices section, along with information on additional benefits and 
costs for which quantitative estimates could not be developed.

Background

    On December 8, 2008, the Department published a Notice of Proposed 
Rulemaking (NPRM) on enhancing airline passenger protections. See 73 FR 
74586 (December 8, 2008). After reviewing and considering the comments 
on the NPRM, on December 30, 2009, the Department published a final 
rule in which the Department required certain U.S. air carriers to 
adopt contingency plans for lengthy tarmac delays; respond to consumer 
problems; post flight delay information on their Web sites; 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. That rule took effect on April 29, 2010. See 74 
FR 68983 (December 30, 2009).
    In the preamble to the 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. The areas 
specifically mentioned as being under consideration were as follows: 
(1) DOT review and approval of contingency plans for lengthy tarmac 
delays ; (2) reporting of tarmac delay data; (3) standards for customer 
service plans; (4) notification to passengers of flight status changes; 
(5) inflation adjustment for denied boarding compensation; (6) 
alternative transportation for passengers on canceled flights; (7) opt-
out provisions where certain optional services are pre-selected for 
consumers at an additional cost (e.g., travel insurance, seat 
selection); (8) contract of carriage venue designation provisions; (9) 
baggage fees disclosure; (10) full fare advertising; and (11) responses 
to complaints about charter service. This NPRM addresses most of those 
issues, as well as other matters that we believe are necessary to 
ensure fair treatment of passengers. We have described each proposal in 
this NPRM in detail below and invite all interested persons to comment.

[[Page 32320]]

Notice of Proposed Rulemaking

1. Tarmac Delay Contingency Plans

    The Department's final rule entitled ``Enhancing Airline Passenger 
Protections,'' which was published in the Federal Register on December 
30, 2009 (74 FR 68983), requires, among other things, that U.S. 
carriers adopt tarmac delay contingency plans that include, at a 
minimum, the following: (1) An assurance that, for domestic flights, 
the U.S. carrier will not permit an aircraft at a medium or large hub-
airport to remain on the tarmac for more than three hours unless the 
pilot-in-command determines there is a safety-related or security-
related impediment to deplaning passengers, or Air Traffic Control 
advises the pilot-in-command that returning to the gate or permitting 
passengers to disembark elsewhere would significantly disrupt airport 
operations; (2) for international flights that depart from or arrive at 
a U.S. airport, an assurance that the U.S. carrier will not permit an 
aircraft to remain on the tarmac for more than a set number of hours, 
as determined by the carrier in its plan, before allowing passengers to 
deplane, unless the pilot-in-command determines there is a safety-
related or security-related reason precluding the aircraft from doing 
so, or Air Traffic Control advises the pilot-in-command that returning 
to the gate or permitting passengers to disembark elsewhere would 
significantly disrupt airport operations; (3) for all flights, an 
assurance that the U.S. 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 pilot-in-command 
determines that safety or security requirements preclude such service; 
(4) for all flights, an assurance of operable lavatory facilities, as 
well as adequate medical attention if needed, while the aircraft 
remains on the tarmac; (5) an assurance of sufficient resources to 
implement the plan; and (6) an assurance that the plan has been 
coordinated with airport authorities at all medium and large hub 
airports that the U.S. carrier serves, including medium and large hub 
diversion airports. The final rule also requires U.S. carriers to 
retain for two years the following information on any tarmac 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.
    This NPRM proposes to strengthen the protections for consumers by 
making substantive changes in four areas: Requiring foreign air 
carriers to adopt tarmac delay contingency plans, increasing the number 
of airports at which carriers must adhere to their plans to include 
U.S. small and non-hub airports, requiring carriers to coordinate their 
tarmac delay contingency plans with all U.S. airports they serve, and 
requiring carriers to communicate with passengers during tarmac delays. 
More specifically, the NPRM proposes 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 a tarmac delay 
contingency plan that includes minimum assurances identical to those 
currently required of U.S. carriers for the latter's international 
flights. As proposed, it would apply to all of a foreign carrier's 
flights to and from the U.S., 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. The NPRM also proposes to require that U.S. and foreign air 
carriers coordinate their contingency plans with all airports they 
serve (small and non-hub airports as well as the medium and large hub 
airports covered by the existing rule) and with the Transportation 
Security Administration (TSA) and U.S. Customs and Border Protection 
(CBP) for any U.S. airport that the carrier regularly uses for its 
international flights, including diversion airports.
    Under the proposed rule, the tarmac delay contingency plans would 
cover operations at each U.S. large hub airport, medium hub airport, 
small hub airport and non-hub U.S. airport. Further, the NPRM proposes 
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. The regulation would specify that 
the Department would consider failure to comply with any of the 
assurances that are required by this rule to be contained in a 
carrier's tarmac delay contingency plan to be an unfair and deceptive 
practice within the meaning of 49 U.S.C. 41712 and subject to 
enforcement action.
    We are proposing these regulations because the Department believes 
that it is important to ensure that passengers on all international 
flights to and from the United States are afforded protection from 
unreasonably lengthy tarmac delays. As is the case under the existing 
rule for international flights of covered U.S. carriers, at this time, 
we intend to allow foreign carriers to develop and implement a 
contingency plan for lengthy tarmac delays that has more flexible 
requirements than those that apply to domestic flights with regard to 
the time limit to deplane passengers. Also, as in our initial 
rulemaking to enhance airline passenger protections, this limit will 
allow exceptions for considerations of safety, security and for 
instances in which Air Traffic Control advises the pilot-in-command 
that returning to the gate or permitting passengers to disembark 
elsewhere would significantly disrupt airport operations. It is worth 
noting that there are ongoing questions as to whether mandating a 
specific time frame for deplaning passengers on international flights 
is in the best interest of the public; a number of arguments have been 
presented for not imposing such a limit. Most international flights 
operate less frequently than most domestic flights, potentially 
resulting in much greater harm to consumers if carriers cancel these 
international flights (e.g., passengers are less likely to be 
accommodated on an alternate flight in a reasonable period of time). We 
ask interested persons to comment on whether any final rule that we may 
adopt should include 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. Commenters who support 
the adoption of a uniform standard should propose specific amounts of 
time and state why they believe these intervals to be appropriate.
    We also seek comment on the cost burdens and benefits should the 
requirement to have a contingency plan be narrowed or expanded. For 
example, while we are proposing here 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., we invite 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

[[Page 32321]]

seats. We also seek comment on whether 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. In addition, should 
coverage be further expanded to require U.S. airports to adopt tarmac 
delay contingency plans? Proponents of these or other alternative 
proposals should provide arguments and evidence in support of their 
position, as should opponents.
    In the initial rulemaking to enhance airline passenger protections, 
we decided to implement a rule requiring certain U.S. carriers to 
coordinate their contingency plans with large-hub and medium-hub 
airports, as well as diversion airports that the carrier serves. Those 
airports are the only ones covered by the current rule. We are 
proposing to extend this requirement to small and non-hub airports and 
to require all covered carriers (U.S. and foreign) to coordinate their 
plans with each U.S. large hub airport, medium hub airport, small hub 
airport and non-hub U.S. airport that they serve as well as TSA and 
CBP. The Department believes 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 strongly believe that it 
is essential that airlines involve airports and appropriate Federal 
agencies in developing their plans to enable them to effectively meet 
the needs of passengers. As such, we are proposing to extend this rule 
to require covered carriers to coordinate their plans with each U.S. 
large hub airport, medium hub airport, small hub airport and non-hub 
U.S. airport to which they regularly operate scheduled passenger or 
public charter service.
    As recommended by the Tarmac Delay Task Force, we are also 
proposing to require carriers to include CBP and TSA in their 
coordination efforts for any U.S. diversion airport which they 
regularly use. We believe this proposal is necessary, as it has come to 
the Department's attention on more than one occasion passengers on 
international flights were held on diverted aircraft for extended 
periods of time because there was no means to process those passengers 
and allow them access to terminal facilities. The Department of 
Homeland Security has advised this Department that, subject to 
coordination with CBP regional directors, passengers on diverted 
international flights may be permitted into closed terminal areas 
without CBP screening. We invite interested persons to comment on this 
proposal. What costs and benefits would result from this requirement? 
Is it workable to include small and non-hub airports served by a 
carrier? Should the rule be expanded to include other commercial U.S. 
airports (i.e., those with less than 10,000 annual enplanements)? We 
are soliciting comments from airlines, airports and other industry 
entities on whether there are any special operational concerns 
affecting such airports.
    The Department has also given consideration to passengers' 
frustration with lack of communication by carrier personnel about the 
reasons a flight is experiencing a long tarmac delay. It does 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. As such, the 
Department is proposing a rule requiring carriers to announce to 
passengers on covered flights every 30 minutes the reasons for the 
delay, and/or the operational status of the flight. We do not 
anticipate that a carrier's flight crews will know every nuance of the 
reason for the delay, but we do expect them to inform passengers of the 
reasons of which they are aware and to make reasonable attempts to 
acquire information about the reason(s) for that delay. We also invite 
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 the door open. The Department's Office of 
Aviation Enforcement and Proceedings has previously explained that a 
tarmac delay begins when passengers no longer have an option to get off 
of the aircraft, which usually occurs when the doors of the aircraft 
are closed, and encouraged carriers to announce to passengers on 
flights that remain at the gate with the doors open that the passengers 
are allowed off the aircraft if that is the case. However, such an 
announcement is not explicitly required in the existing rule. We seek 
comment on the benefit to consumers of mandating such announcements. 
Commenters, including carriers and carrier associations, should also 
address any costs and/or operational concerns related to implementing a 
rule requiring such announcements.

2. Tarmac Delay Data

    We are proposing to require all carriers that must comply with 14 
CFR 259.4, which requires carriers to adopt contingency plans for 
lengthy tarmac delays, file tarmac delay data with the Department to 
the extent they are not already required to file such data pursuant to 
14 CFR part 234. Incidents of lengthy tarmac delays have captured much 
public attention in recent years and have been the focus of 
considerable Department attention as well. On October 1, 2008, the 
Department's Bureau of Transportation Statistics (BTS) began collecting 
more detailed tarmac delay information from all U.S. carriers that file 
the ``On-Time Flight Performance Report'' (BTS Form 234) under 14 CFR 
part 234, ``reporting carriers''. The data do not, however, provide a 
complete picture of tarmac delays, as the reporting carriers only 
submit data concerning their scheduled domestic flights as a function 
of their being required to report on-time performance data. These 
reporting carriers currently constitute the 16 largest U.S. carriers by 
scheduled-service passenger revenue, plus two carriers that voluntarily 
file the report. In addition, smaller U.S. carriers which are subject 
to the Department's contingency plan rule that was effective April 29, 
2010, do not currently submit any tarmac delay data to the Department 
and foreign air carriers which we are proposing in this NPRM adopt 
tarmac delay contingency plans also do not submit tarmac delay data to 
the Department.
    While a single incident of tarmac delay may be attributed to one or 
more causes, such as air traffic congestion, weather related delays, 
mechanical problems, and/or flight dispatching logistic failures, we 
believe that an initial and essential step toward finding solutions for 
the tarmac delay problem, whether by government regulations and/or 
through voluntary actions by the airlines, and monitoring the effect on 
consumers of lengthy tarmac delays, is to obtain more complete data on 
these incidents. Therefore, we are tentatively of the opinion that we 
should expand the pool of carriers that must file information with the 
Department regarding tarmac delays to U.S. carriers and foreign 
carriers that operate any aircraft originally designed with a passenger 
capacity of 30 or more passenger seats with respect to their operations 
at U.S. airports. The more complete picture of lengthy tarmac delays 
afforded by these new data will help establish a vital platform for the 
Department's future rulemaking and policy decision-making, for FAA 
airport and air traffic control infrastructure and technology 
modification and improvement, and for system operating improvements and 
reform by the airline

[[Page 32322]]

industry. Furthermore, the result of such analysis will provide the 
Department, the industry, and the public more precise data with which 
to compare tarmac delay incidents by carrier, by airport, and by 
specific time frame.
    This rule as proposed would apply to all U.S. carriers that are 
covered by the Department's existing rule requiring tarmac delay 
contingency plans, as well as foreign carriers that we are proposing, 
in this NPRM, be required to adopt tarmac delay contingency plans (see 
proposed changes to 14 CFR 259.4). Thus, this proposal would cover 
tarmac delays at U.S. airports by all U.S. certificated and commuter 
carriers that operate any aircraft originally designed to have a 
passenger capacity of 30 or more seats. It also would cover tarmac 
delays at U.S. airports by all foreign 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. We seek comment on 
whether we should limit the requirement to file tarmac delay data to 
U.S. and 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. Commenters should explain why 
they favor such a limitation and suggest alternate approaches to 
capturing tarmac delay data.
    We note that using just one qualifying aircraft (i.e., originally 
designed to have a passenger capacity of 30 or more passenger seats) 
will cause all of a U.S. carrier's flights to be covered by this rule. 
The same is true of a foreign carrier's flights that originate or 
terminate at a U.S. airport. For example, if a foreign carrier operates 
any aircraft to or from the U.S. that was originally designed to have a 
passenger capacity of 30 or more seats, all of its flight taking off or 
landing at a U.S. airport, regardless of size of aircraft and seating 
capacity, will be subject to the reporting requirements of the proposed 
rule.
    We are mindful of the costs associated with submitting data to the 
Department, especially in light of the relatively limited resources of 
smaller carriers and the relatively fewer flights to and from the U.S. 
by foreign carriers and we do not intend with this proposal to impose a 
comprehensive on-time reporting scheme, as exists for the largest U.S. 
carriers now covered by Part 234. With this concern in mind, using the 
Part 234 requirements as a model, we have narrowed the data fields we 
propose to be reported to those we believe are necessary for us to 
extract necessary tarmac delay information. In addition, we propose to 
require these tarmac delay data to be reported each month only with 
respect to tarmac delays of 3 hours or more.
    We recognize that carriers subject to our new contingency plan rule 
that went into effect April 29, 2010, are required to retain for two 
years certain information regarding tarmac delays of 3 hours or more. 
We note that the reporting requirement proposed in this notice is 
separate and distinct from that information retention requirement, with 
a different purpose. Where that rule is focused on carrier compliance 
with consumer protection-related requirements and requires only that 
carriers retain the information for a limited period of time, we 
propose here that carriers report monthly a set of data regarding 
tarmac delays that will provide the Department more complete 
information on lengthy tarmac delays throughout the air transportation 
system in the U.S. The Department plans to publish a summary of this 
information in its Air Travel Consumer Report, a monthly publication 
product of the Department of Transportation's Office of Aviation 
Enforcement and Proceedings that is designed to assist consumers with 
information on the quality of services provided by airlines. We welcome 
suggestions from the public and the industry on whether there are other 
means to further reduce the carriers' burden yet still effectively 
achieve the goal of this proposal.

3. Customer Service Plans

    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 special-needs 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. 
The rule also requires U.S. carriers to audit their plan annually and 
make the results of their audits available for the Department's review 
upon request.
    This NPRM proposes to increase the protections afforded consumers 
in that recent final rule by requiring foreign air carriers to adopt, 
follow, and audit customer service plans and establishing minimum 
standards for what must be included in the customer service plans of 
all covered carriers (U.S. and foreign). We are proposing to cover 
foreign air carriers operating scheduled passenger service to and from 
the U.S. using any aircraft originally designed to have a passenger 
capacity of 30 or more passenger seats. 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 ask 
interested persons to comment on whether the proposed requirement for 
foreign air carriers to adopt, follow and audit customer service plan 
should be narrowed in some fashion--e.g., should never apply to 
aircraft with fewer than 30 seats?
    Each foreign carrier's plan would have to address the same subjects 
currently required of U.S. carriers in the Department's rule to enhance 
airline passenger protections. We are also proposing to require that 
foreign air carriers make the results of their audits of their customer 
service plans available for the Department's review upon request for 
two years following the date any audit is completed. A carrier's 
failure to adopt a customer service plan for its scheduled service, 
adhere to its plan's terms, audit its own adherence to its plan 
annually or make the results of its audits available for the 
Department's review upon request would be considered an unfair and 
deceptive practice within the meaning of 49 U.S.C. 41712 and subject to 
enforcement action.
    A substantial number of air travelers fly to and from the United 
States on flights operated by foreign carriers, whether through a code-
share arrangement or by directly arranging for that transportation. By 
requiring foreign carriers to adopt plans, audit their own compliance, 
and make the results of their audits available for us to review, we 
intend to afford consumers better protection on nearly all flights to 
and from the United States, not just those of the U.S. carriers to 
which the rule is currently applicable. The Department is soliciting 
comment on the costs and benefits associated with this requirement. We 
would like foreign carriers to comment on whether similar

[[Page 32323]]

plans already exist, and if so, how they currently implement such 
plans.
    The Department also proposes to require covered carriers' customer 
service plans meet minimum standards to ensure that the carriers' (U.S. 
and foreign) plans are specific and enforceable. The Department is 
concerned that many carriers' customer service plans are not specific 
enough for a consumer to have realistic expectations of the types of 
services a carrier will provide under its plan, or that some carriers 
may not be living up to their customer service commitments. Based on a 
review of existing customer service plans, the Department found that 
some carriers' plans do contain specifics regarding the type of 
services a consumer can expect (e.g., returning baggage by a specified 
time after the flight or holding reservations without charge for a 
specific period of time), while others carriers' plans are vaguely 
written making it difficult for a consumer to know how a carrier will 
address those subjects or whether a carrier has fulfilled its promises. 
As such, the Department believes establishing minimum standards for the 
plans will result in consumers being better informed and protected. As 
always carriers are free to set higher standards than those mandated by 
the Department. We also note that all of the subjects for which we are 
proposing to require a standard are already required to be included in 
the customer service plans for U.S. carriers (e.g., oversales/denied 
boarding compensation, refunds), which should minimize the burden on 
these carriers to comply with the proposed new requirement to establish 
standards for those subjects. In addition, when determining what 
minimum standards to apply to these plans, the Department reviewed 
customer service plans as currently implemented by a number of 
carriers, and chose the services already provided by some carriers that 
appear to be ``best practices.''
    We seek comment on both the costs and benefits of requiring 
carriers to adopt these minimum standards. The minimum standards that 
we are proposing are as follows: (1) Offering the lowest fare available 
on the carrier's Web site, 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 Web site 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 for 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 Web site, 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.
    With regard to delivering baggage on time, we solicit 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 same 
or earlier flight than the passenger, delivered within 2 hours of the 
passenger's arrival). With regard to providing prompt refunds, we seek 
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. 
The Department's Aviation Enforcement Office has issued notices in the 
past advising airlines that it would be an unfair and deceptive 
practice in violation of 49 USC 41712 for a carrier to apply its non-
refundability provision in the event of a significant change in 
scheduled departure or arrival time, whether it be due to carrier 
action or a matter out of the carrier's control, including ``acts of 
god.'' We request comment on the methodology for defining a significant 
delay in the event such a standard is adopted. Should the Department 
establish a bright line rule that any delay of 3 hours or more is a 
significant delay? Should the determination of whether a flight has 
been significantly delayed be based on the duration of the flight 
(e.g., is 3 hours a significant delay on flights of two hours or less 
and 4 hours a significant delay on flights of more than two hours)?
    With respect to notifying passengers on board aircraft of delays, 
we seek 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. For example, we have received 
complaints from passengers that their aircraft has returned to the gate 
less than three hours after departure for emergency or mechanical 
reasons but they were not advised that they could deplane. Carriers may 
feel the 3-hour tarmac delay limit has been tolled by such a gate 
return, but passengers feel they were not truly afforded the 
opportunity to deplane within the meaning of this rule.
    As for the customer service commitment to provide prompt refunds 
where ticket refunds are due, we invite 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 optional fees 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). Irrespective of whether such a 
standard is included in a carrier's customer service commitment, the 
Department would view a carrier's failure to provide a prompt refund to 
a passenger of the ticket price and related optional fees when a flight 
is canceled to be an unfair and deceptive practice. We request comment 
as to whether it is workable to set minimum standards for any of the 
subjects contained in the customer

[[Page 32324]]

service plans and invite 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 
further invite comment or suggestions on the type of standards that 
should be set.
    Although the subjects we are proposing that foreign air carriers 
address in their customer service plans are identical to those U.S. 
carriers already are required to include in their customer service 
plans, we request comment on whether any of these subjects would be 
inappropriate if applied to a foreign air carrier. Why or why not? 
Moreover, we seek comment on whether the Department should require that 
all airlines address any other subject in their customer service plans. 
For example, should mandatory disclosure to passengers and other 
interested parties of past delays or cancellations of particular 
flights before ticket purchase be a new subject area covered in 
customer service plans? If so, what should be the minimum timeliness/
cancellation standard? In this regard, there is already a requirement 
for reporting carriers (i.e., the largest U.S. carriers) to post flight 
delay data on their Web sites and for their reservation agents to 
disclose to customers, upon request, the on-time performance code of a 
flight. Should more direct and mandatory disclosure be required, e.g., 
a required warning before the final purchase decision is made regarding 
chronically late or routinely canceled flights? We also seek comment on 
the appropriate minimum timeliness/cancellation standard for U.S. 
carriers and foreign air carriers that do not report on time 
performance data to DOT if we were to adopt a requirement that airlines 
address notification to consumers of past delays or cancellation in 
their customer service plans.

4. Contracts of Carriage

    The Department is proposing to adopt a rule requiring carriers 
(U.S. and foreign) to include their contingency plans and customer 
service plans in their contracts of carriage. We first proposed this 
requirement in the notice of proposed rulemaking on enhancing airline 
passenger protections which was published in the Federal Register on 
December 8, 2008. Ultimately, the Department decided not to require 
such incorporation at that time and instead strongly encouraged 
carriers to voluntarily incorporate the terms of their tarmac delay 
contingency plans in their contracts of carriage, as most major 
carriers had already done with respect to their customer service plans. 
The Department did require that each U.S. carrier with a Web site post 
its entire contract of carriage on its Web site in easily accessible 
form, including all updates to its contract of carriage. The Department 
also indicated that it would address this issue in a future rulemaking 
and take into account, among other things, whether the voluntary 
incorporation of contingency plan terms had resulted in sufficient 
protections for air travelers.
    The Department continues to believe that the airlines' 
incorporation of their contingency plans into their contracts of 
carriage is an important means of providing notice to consumers of 
their rights, since that information will then be contained in a 
readily available source. Carriers' contracts of carriage are generally 
posted online and must, by Department rule, be available at airports. 
Better informed consumers will further improve the Department's 
enforcement program as consumers are more likely to know of and report 
incidents where airlines do not adhere to their plans. Better consumer 
information will also create added incentive for carriers to adhere to 
their plans. Further, by placing the contingency plan terms in the U.S. 
selling carrier's contract of carriage both that carrier and its 
foreign code share partner carrier are responsible in an enforcement 
context for compliance, which we view as a beneficial aspect of this 
proposal. We also continue to be confident that we have the authority 
to require such incorporation based on our broad authority under 49 
U.S.C. 41712 to prohibit unfair and deceptive practices, and under 49 
U.S.C. 41702 to ensure safe and adequate transportation, which clearly 
encompasses the regulation of contingency plans.
    In the December 30, 2009, final rule to enhance airline passenger 
protections, we stated that we intended to closely monitor carriers' 
responses to our efforts in this regard and that we would not hesitate 
to revisit our decision in another rulemaking. As it appears that many 
carriers are choosing not to place their contingency plans and/or 
customer service plans in their contracts of carriage, or have little 
incentive to do so, and because we believe the incorporation of airline 
contingency plans in contracts of carriage to be in the public 
interest, we are again proposing the implementation of this 
requirement.
    As stated previously, the Department recognizes that many 
passengers travel to and from the U.S. on flights operated by foreign 
carriers, and they should have adequate passenger protections on those 
flights. As such, we propose to include foreign carriers in the 
requirement for airlines to place their contingency plans and customer 
service plans in their contracts of carriage. The Department is seeking 
comment on whether the incorporation of the contingency plans and 
customer service plans in the contract of carriage gives consumers 
adequate notice of what might happen in the event of a long delay on 
the tarmac and/or of passengers' rights under carriers' customer 
service plans. As in the past, commenters should also 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? We 
are also soliciting comment on the proposal to extend this provision to 
foreign carriers.

5. Response to Consumer Problems

    The recently issued final rule on enhancing airline passenger 
protections requires U.S. carriers that operate scheduled passenger 
service using any aircraft originally designed to have a passenger 
capacity of 30 or more seats to designate an employee to monitor the 
effects on passengers of flight delays, flight cancellations, and 
lengthy tarmac delays and to have input into decisions such as which 
flights are cancelled and which are subject to the longest delays. It 
also requires U.S. carriers to 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 and to 
acknowledge receipt of each complaint regarding its scheduled service 
to the complainant within 30 days of receiving it and to send a 
substantive response to each complainant within 60 days of receiving 
it. A complaint is defined 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 service.
    This proposal would require a foreign air carrier that operates 
scheduled passenger service to and from the United States using any 
aircraft originally designed to have a passenger capacity of 30 or more 
seats to do the same for its flights to and from the U.S. We are 
proposing to extend these provisions to foreign carriers as the 
Department believes passengers should also be afforded adequate 
consumer protection when issues arise with delays

[[Page 32325]]

or cancellations on flights to and from the U.S. operated by a foreign 
carrier, and should also have an avenue to file a complaint with a 
foreign carrier and to expect a timely and substantive response to that 
complaint. We invite interested persons to comment on this proposal. 
What costs and/or operational concerns would it impose on foreign 
carriers and what are the benefits to consumers? In particular, we are 
soliciting comments on any operational difficulties U.S. and foreign 
airlines may face in responding to consumer complaints received through 
social networking mediums such as Facebook or Twitter. Do airlines 
currently communicate to customers and prospective customers through 
social networking mediums?

6. Oversales

    Part 250 establishes the minimum standards for the treatment of 
airline passengers holding confirmed reservations on certain U.S. and 
foreign carriers who are involuntarily denied boarding (``bumped'') 
from flights that are oversold. In adopting the original oversales rule 
in the 1960s, the Civil Aeronautics Board (CAB), the Department's 
predecessor in aviation consumer matters, recognized the inherent 
unfairness to passengers if carriers were allowed to sell more 
confirmed seats than were available. To balance the inconvenience and 
financial loss to passengers against the potential benefits brought 
about by a controlled overbooking system, i.e., achieving higher load 
factors, avoiding the losses caused by last-minute cancellations and 
no-shows, enabling more passengers to obtain a reservation on the 
flight of their choice, and ultimately reducing fares, the CAB 
prescribed a two-part oversales system: Soliciting volunteers first, 
then involuntarily ``bumping'' passengers if there are not enough 
volunteers, with a minimum standard for denied boarding compensation 
(DBC). This system has been in effect for almost half a century and we 
believe that its basic structure remains sound.
    In this NPRM, we propose to expand the rule's applicability and 
add, modify and clarify certain elements of the rule as part of our 
continuing efforts to improve and perfect the system. Specifically, we 
are proposing to make five changes to Part 250: (1) Increase the 
minimum DBC limits to take account of the increase in the Consumer 
Price Index (CPI) since 1978; (2) implement an automatic inflation 
adjuster for minimum DBC limits; (3) clarify that DBC must be offered 
to ``zero fare ticket'' holders who are involuntarily bumped; (4) 
require that a carrier verbally offer cash/check DBC if the carrier 
verbally offers a travel voucher as DBC to passengers who are 
involuntarily bumped; and (5) require that a carrier inform passengers 
solicited to volunteer for denied boarding about its principal boarding 
priority rules applicable to the specific flight and all material 
restrictions on the use of that transportation.
    The last time the Department revised the minimum DBC amounts was in 
a proceeding that began in 2007 and concluded in 2008. Prior to that 
date, the DBC limits had not been revised since 1978. In that latest 
proceeding, because inflation had eroded the value of the $200 and $400 
limits that were established in 1978, we considered various methods for 
calculating an increase in the minimum DBC limits (i.e., increasing the 
limits on denied boarding compensation based on the consumer price 
index (CPI) or on the increase in fare yields, doubling the current 
limits, eliminating the limits so there would be no cap on denied 
boarding compensation payments). We settled on a rule under which an 
eligible passenger who encounters a delay of over one hour due to the 
involuntary denied boarding is entitled to compensation equal to either 
100% of the passenger's one-way fare up to $400, or 200% of the fare up 
to $800, depending on the length of the delay caused by the involuntary 
denied boarding. Since May 2008 when the new rule was issued, despite 
these higher DBC amounts, we have seen an increase in involuntary 
denied boardings. Load factors are also increasing, making it less 
likely that ``bumped'' passengers are being conveniently accommodated 
on other flights. We are therefore concerned about whether the current 
rule adequately encourages carriers to seek volunteers to give up their 
seats and whether the minimum DBC amount adequately compensates those 
passengers that are involuntarily ``bumped'' from their flights.
    Accordingly, we are proposing to revise the minimum DBC amounts to 
more accurately reflect inflation's effect on those amounts since 1978, 
the last year those amounts were raised before the most recent rule. We 
propose to do so by using the Consumer Price Index for All Urban 
Consumers (CPI-U), rounded to the nearest $25, with the base of $200/
$400 for the maximum DBC amounts in the year 1978. This would bring the 
maximum DBC amounts for involuntarily oversold passengers to $650/
$1,300 as of January 1, 2010. In addition, we propose to add a 
provision to Part 250 that would provide for periodic adjustments to 
the minimum DBC limits using the CPI-U, similar to that applied to 
minimum baggage liability limits pursuant to 14 CFR part 254. We 
believe these amendments will set up the most efficient method to 
ensure that the DBC minimum limits, and the monetary incentive for 
carriers to reduce involuntary denied boardings, remain current. Since 
the periodic adjustments would be the product of a published 
mathematical formula, there would be no need to engage in a notice and 
comment rulemaking proceeding for each future adjustment.
    We seek comments on whether the proposed increase in DBC minimum 
limits is called for and whether any such increase based on the CPI-U 
calculation is a reasonable basis for updating those limits or whether 
some other amounts would be more appropriate to adequately compensate 
passengers for the inconvenience and financial loss brought about by 
involuntary denied boarding. If not, by how much should the amounts be 
increased, if at all? We also ask for comment on whether we should 
completely eliminate minimum compensation limits and simply require 
that carriers base DBC to be paid to involuntarily bumped passengers on 
100% or 200% of a passenger's fare, without limit, and/or whether the 
100% and 200% rates need to be increased in line with the proposed 
increase in the $400/$800 compensation limits proposed above, perhaps 
to 200% and 400% of the passenger's fare, or higher. This would account 
for the fact that the actual cost for flying is likely to have 
increased while what is commonly referred to as the ``fare'' may not 
have increased as a result of the carriers' current practice of 
unbundling fares, i.e., charging extra for once-free amenities, e.g., 
checked baggage, food, preferred seats, etc.
    We are also proposing to clarify that Part 250 applies to 
passengers who hold ``zero fare tickets,'' e.g., passengers who 
``purchased'' air transportation with frequent flyer mileage or airline 
travel vouchers, passengers who travel on so-called ``free'' companion 
tickets, or passengers who hold a ``consolidator'' ticket that does not 
display a monetary price. For the most part, these ticket holders have 
``paid'' only government taxes and fees and, perhaps, carrier-imposed 
administrative fees for ticketing. In this regard, we propose to amend 
the definition of ``confirmed reserved space'' to specify that zero 
fare ticket holders have the same rights and eligibility for DBC as any 
other passenger who used cash, check or

[[Page 32326]]

credit card to purchase his or her airfare. Passengers with zero-fare 
tickets earned those tickets in some fashion, e.g. by exceeding a 
particular frequent-flyer threshold, agreeing to accept a travel 
voucher as settlement of a consumer claim or complaint, etc.
    When these passengers are involuntarily denied boarding, they, like 
passengers who paid fully in money for the tickets, suffer 
inconvenience and/or financial losses. We propose that the basis for 
determining the amount of DBC due a passenger holding a zero fare 
ticket who is involuntarily bumped, i.e., the ``passenger's fare,'' be 
the fare of the lowest priced ticket available (paid by cash, check, or 
credit card) for a comparable class of ticket on the same flight. For 
example, if an involuntarily bumped passenger used frequent flyer miles 
to obtain a confirmed, non-refundable roundtrip coach ticket having no 
restrictions, the basis for calculating the DBC amount due to that 
passenger would be the lowest fare that was available for a confirmed, 
roundtrip coach ticket on the same flight. Under this proposal, a 
carrier would be required to provide the same form of DBC to zero-fare 
passengers as to other passengers denied boarding involuntarily, i.e. 
cash or check, or a travel voucher of the passenger's choice under the 
conditions described in existing section 250.5(b) if the passenger 
agrees. We seek comment not only on whether zero fare ticket holders 
should receive DBC under part 250, but also on whether the cash method 
described above for calculating DBC to be paid such zero fare ticket 
holders is reasonable and would truly capture these passengers' losses 
due to being bumped involuntarily to the same extent as for cash/check/
credit ticket holders. This proposal is consistent with guidance DOT 
has given to carriers in the past.
    A possible alternative to the above proposed method of compensation 
would be to allow carriers to compensate zero fare ticket holders using 
the same ``currency'' in which the tickets were obtained. For instance, 
under this alternative an involuntarily bumped passenger who used 
frequent flyer miles to purchase a ticket would be eligible to be 
compensated with mileage, the currency used to obtain that flight. 
Under the current rule, this would amount to 100% or 200% of the amount 
of mileage that was used to purchase the ticket, plus a cash amount if 
appropriate to account for any taxes, fees and administrative costs 
paid to obtain the ticket. Similarly, involuntarily bumped passengers 
who used a voucher to purchase a ticket, in whole or in part, would be 
eligible to be compensated with a voucher worth 100% or 200% of the 
value of their original voucher, and an appropriate cash payment if a 
portion of the ticket was paid for in that manner. We also seek comment 
on any other alternative method of calculating DBC for zero fare ticket 
holders that would best quantify the financial loss and inconvenience 
to those passengers. How should the rule quantify the value of the 
remaining travel portion (either to the next stopover, or if none, to 
the final destination) if the DBC were to be paid with frequent flyer 
miles?
    Another area that we believe needs further improvement is the 
disclosure provisions in our current oversales rule. These provisions 
were established because passengers deserve to know about the 
possibility, however remote, of an oversale occurring and because only 
a well-informed passenger can make a proper choice when faced with the 
option of volunteering to be bumped from a flight. We propose in this 
proceeding to reinforce required disclosures to ensure that passengers 
will be aware of their rights when making decisions regarding whether 
to volunteer for denied boarding and/or whether to accept a travel 
voucher in lieu of cash or a check as DBC if they are bumped 
involuntarily.
    The existing required disclosures can be found in sections 250.2b 
250.9 and 250.11. Section 250.2b(b) sets forth conditions and 
requirements that carriers must comply with when soliciting volunteers 
on an oversold flight. Specifically, it requires that carriers inform 
each passenger who is solicited to volunteer to be bumped whether he or 
she is in danger of being involuntarily denied boarding and the 
compensation to which they would be entitled in that event. In 
addition, section 250.9 specifies the written explanation of DBC and 
boarding priorities that must be provided to passengers involuntarily 
oversold, which statement also must be provided to any person who 
requests it at any location a carrier sells tickets and at its boarding 
gates. Section 250.11 requires that carriers provide at each station 
they or their agents sell tickets a prescribed notice advising persons 
of their basic rights in an oversale situation and that they are 
entitled to detailed information upon request.
    Despite these required disclosures, we are concerned that 
passengers may not be aware of their rights when making decisions 
regarding whether to volunteer for denied boarding and/or accept a 
travel voucher because of the manner in which carriers offer free or 
reduced air transportation. Agents often verbally advise passengers of 
the offer of a travel voucher and its amount. Although in the case of 
involuntarily bumped passengers, this offer must be accompanied by the 
written notice of the passenger's right to insist on DBC by cash or 
check, there currently is no express requirement that this notice be 
given verbally. We are concerned that these passengers who are verbally 
offered a travel voucher may not have time to read the written notice 
and are not in fact verbally told by an agent that they are entitled to 
compensation by cash or check. Likewise, they may not be adequately 
informed of any conditions or limitations placed on the vouchers they 
are receiving. Accordingly, we are proposing that in any case in which 
a carrier verbally offers an involuntarily bumped passenger free or 
reduced-rate air transportation as an alternative to cash DBC, it also 
must at the same time verbally advise that passenger of his or her 
right to insist on compensation by cash or check and the actual amount 
of such compensation that would be due and of any conditions or 
restrictions applicable to the vouchers. This proposed requirement 
would not, if adopted, alter the carriers' responsibility to provide 
the written DBC notice required by section 250.9, nor would it require 
carriers in all instances to provide verbal advice to passengers. But 
as a practical matter, verbal exchanges between carrier agents and 
passengers in oversale situations are the quickest and easiest form of 
communication and consumers are entitled to a fair presentation of 
their options during such situations. Therefore, if a carrier chooses 
to offer a passenger DBC in a form other than cash or check and to do 
so verbally, under this proposal it must also verbally advise the 
passenger about the cash/check option.
    Furthermore, we are proposing to prohibit carriers from offering or 
providing to volunteers solicited to be bumped, or to passengers 
involuntarily bumped, free or reduced-rate air transportation other 
than on an unrestricted basis, unless the carrier provides direct 
verbal notice to such passengers of any restrictions on such free or 
reduced rate air transportation. While the written notice required to 
be provided passengers under section 250.9 suggests that carriers must 
disclose material restrictions in any free or reduced rate compensation 
offered, the requirement is not specifically reflected in any section 
of the rule itself, a shortcoming that we believe should be remedied. 
We ask for comment on our

[[Page 32327]]

proposals here as well as on whether there are any other forms of 
notice that might better inform passengers being requested to volunteer 
to be bumped, or those involuntarily bumped, of their rights and 
carriers' obligations.
    The current disclosure rule does not define how the carriers should 
describe to passengers who are solicited to volunteer to be bumped the 
likelihood of being involuntarily denied boarding. In this NPRM, we 
propose to specifically require that carriers must inform the solicited 
passengers about their principal boarding priority rules applicable to 
the specific flight. Hence, the passengers can apply the boarding 
priority rules to their situations and more accurately estimate the 
likelihood of their being involuntarily denied boarding. By ``principal 
boarding priority rules'' we are referring to procedures such as 
bumping passengers involuntarily based on their fare, on when they 
checked in, or on whether they held seat assignments. Carriers need not 
recite specialized priorities such as those for unaccompanied minors or 
passengers with disabilities except where those priorities apply to a 
particular passenger. This information is significant if a passenger is 
willing to give up his or her confirmed reserved space but could not 
determine whether to accept the volunteer compensation offer or to wait 
until he or she would be involuntarily bumped. For instance, if the 
carrier informs the passengers that it will use the check-in time as 
its principal boarding priority criterion, a passenger willing to give 
up his or her seat on the flight in exchange for a sufficiently large 
cash compensation amount may choose to reject the volunteer 
compensation offer if he or she checked in at the last minute, knowing 
that the chance of being denied boarding involuntarily is high and that 
being involuntarily bumped would require a higher amount of 
compensation in cash from the carrier.
    Also material to the solicited passengers as decision makers is the 
availability of ``comparable air transportation'' provided to 
passengers who are involuntary denied boarding. Under the current DBC 
structure, if the passengers can reach their next stopover or, if none, 
their final destination within one hour of the planned arrival time of 
the original flight, the passengers are not required to be provided 
DBC. If the delay for a domestic flight is more than one hour but less 
than two hours (four hours for an international flight), the DBC rate 
is 100% of the passenger's one-way fare. For delays that exceed this 
two/four hour timeframe, the DBC rate is 200% of the passenger's one-
way fare. Thus for a passenger who is considering rejecting the 
volunteer offer in hopes of receiving involuntary DBC, it is material 
to know how likely it is, if involuntarily denied boarding, that the 
passenger's delay would exceed the one/two/four hour(s) limits. We seek 
comments on whether we should require this disclosure to every 
passenger the carrier solicits to volunteer and if so, what form, e.g., 
verbal or written, the disclosure should take.
    We are also considering expanding the applicability of the 
oversales rule to the operations of U.S. certificated and commuter 
carriers and foreign carriers using aircraft originally designed for 19 
or more seats. Currently, Part 250 applies to all U.S. certificated and 
commuter air carriers and foreign carriers with respect to specified 
scheduled flight segments using an aircraft originally designed to have 
a passenger capacity of 30 or more seats. We have concerns that many 
carriers use code-share partners for their connecting services to 
smaller points, some of whom operate aircraft with 19-29 seats. Such 
flight segments are not covered by part 250, but are associated with 
the identity of a large carrier and many, if not most, are ``fee for 
service'' flights under the total control of the large carrier, which 
controls booking. Should we allow those flights to be oversold at all? 
If we do, should Part 250 be applicable in its entirety?

7. Full Fare Advertising

    The Department is proposing to amend its rule on price advertising 
(14 CFR 399.84). The Department adopted this rule in 1984, pursuant to 
49 U.S.C. 41712 (formerly section 411 of the Federal Aviation Act), 
which empowers the Department to prohibit unfair and deceptive 
practices and unfair methods of competition in air transportation and 
its sale. The rule states that the Department considers any 
advertisement that states a price for air transportation that is not 
the total price to be paid by the consumer to be an unfair and 
deceptive practice in violation of 49 U.S.C. 41712. However, the 
Department's enforcement policy regarding this rule has permitted 
certain government-imposed charges to be stated separately from this 
total price. Under this policy, taxes and fees that are collected by a 
carrier on a per-person basis, are imposed by a government entity, and 
are not ad valorem in nature are allowed to be excluded from an 
advertised fare. The existence, nature, and amount of these additional 
taxes and fees must be clearly indicated where the airfare first 
appears in the ad, so that the consumer can easily calculate the total 
price to be paid. The Department has consistently prohibited sellers of 
air transportation from breaking out any other fee, including fuel 
surcharges, service fees, and taxes imposed on an ad valorem basis. 
This policy has been articulated in a number of industry letters and 
guidance documents; see http://airconsumer.dot.gov/rules/guidance.htm.
    The Department is considering changing its enforcement policy 
concerning this rule to enforce the ``full price advertising'' 
provision of the rule as it is written and, consistent with 
longstanding Department enforcement policy, to clarify that the rule 
applies to ticket agents. This change in enforcement policy would also 
include a requirement that all advertisers include all mandatory fees 
in the advertised price. Given technological innovations and new 
methods of communication, carriers and ticket agents are finding new 
and creative ways to advertise airfares, some of which circumvent the 
spirit if not the letter of the full-price advertising rule and 
Department enforcement policy. Consumers now receive airfare 
solicitations through print advertisements, radio advertisements, 
internet advertisements, and solicitations sent directly to consumers 
via e-mail newsletters, social networking Web sites, text messages, and 
applications designed for many different kinds of cell phones. The ease 
and speed of information sharing also allows airfare information to be 
presented to consumers in many different forms. Even in cases where 
those forms of advertising comply in a technical sense with our 
enforcement policy with regard to the full-price advertising rule, we 
are concerned that in many cases consumers are not easily able to 
determine the total cost of air transportation services or are deceived 
regarding the true price. Accordingly, we believe consumers would be 
better served if we enforce our existing full-price rule as written and 
prohibit the practice of advertising fares that exclude any mandatory 
fees or surcharges, regardless of the source. In proposing this change 
in policy, we do not intend to foreclose carriers and ticket agents 
from advising the public in their fare solicitations about government 
taxes and fees, or other mandatory carrier- or ticket agent-imposed 
charges applicable to their airfares. However, we no longer see a 
useful purpose in presenting what purportedly are ``fares'' to 
consumers that do not include numerous required

[[Page 32328]]

charges and, in our view only act to confuse or deceive consumers 
regarding the true full price and to make price comparisons difficult 
or improbable. Our objective is to ensure that consumers are not be 
deceived or confused about the total fare they must pay, which we 
believe can best be ensured by requiring that consumers be able to see 
clearly the entire price of the air transportation being advertised 
whenever a price is displayed rather than having to wade through a 
myriad of footnotes and/or hyperlinks regarding government taxes and 
fees and make the full-price calculation themselves to try to establish 
which among many displayed ``fares'' is the real fare or wait until the 
purchase screen to see the total fare.
    The Department's statutory authority under 49 U.S.C. 41712 to 
prohibit unfair and deceptive practices and unfair methods of 
competition applies not only to air carriers but also to ``ticket 
agents'' which includes those persons other than a carrier ``that as a 
principal or agent sells, offers for sale, negotiates for, or holds 
itself out as selling, providing, or arranging for air 
transportation.'' 49 U.S.C. 40102(a)(40). Although the Department's 
full-price advertising rule applies on its face to direct and indirect 
air carriers as well as ``an agent of either,'' it has been the 
longstanding policy of the Department to consider ticket agents as 
defined in title 49 to be subject to that rule. The Department believes 
it appropriate to specifically name ``ticket agents'' as being covered 
by the rule in order to ensure there is no confusion about their 
inclusion under the deceptive practice prohibitions of the rule.
    Air transportation is unlike any other industry in that the 
Department has the sole authority to regulate airlines' fare 
advertisements by prohibiting practices that are unfair or deceptive. 
Congress modeled section 41712 on section 5 of the Federal Trade 
Commission (FTC) Act, 15 U.S.C.A. 45, but by its own terms, that 
statute cannot be enforced by FTC against ``air carriers and foreign 
air carriers,'' 15 U.S.C. 45(a)(2). The States are preempted from 
regulating in this area (49 U.S.C. 41713, see Morales v. Trans World 
Airlines, 504 U.S. 374, 112 S.Ct.2031, 119 L.Ed.2d 157 (1992)). Thus, 
unlike advertising in other industries, where either the States or the 
FTC, or both, can take action against abusive practices, if we do not 
exercise our authority, consumers and competitors have no governmental 
recourse against advertising that is unfair or deceptive. Further, we 
do not believe that 49 U.S.C. 41712 gives rise to a private right of 
action; see Love v. Delta Air Lines, 310 F.3d 1347 (11th Cir.2002), 
Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); see 
also Alexander v. Sandoval 532 U.S. 275, 286, 121 S.Ct. 1511, 149 
L.Ed.2d 517 (2001).
    The Department invites comments on its proposal to change its 
enforcement policy under section 399.84 from one of permitting limited 
exceptions to disclosing the full price in all advertising of air 
transportation and air tours to requiring disclosure of the full price 
to be paid by a consumer whenever a price is displayed, and its 
proposal to specify in the rule that it applies to ``ticket agents.'' 
Specific questions on which the Department invites comments regarding 
this policy shift include how sellers of air transportation foresee 
this affecting the methods they use to advertise fares, how consumers 
view the proposed change, and the potential cost in changing the 
current advertising structures that carriers and ticket agents have in 
place to ensure compliance with the current policy of the Department.
    Additionally, the Department is considering adding two new 
paragraphs to the price advertising rule. We propose adding paragraph 
(b) which would codify the Department's current enforcement policy on 
each-way airfare advertising. Currently, the Department allows sellers 
of air transportation to advertise an each-way price that is contingent 
on a roundtrip ticket purchase, so long as the roundtrip purchase 
requirement is clearly and conspicuously disclosed in a location that 
is prominent and proximate to the advertised fare amount. This proposal 
would codify existing enforcement policy and would also preclude 
carriers from referring to such fares as ``one-way'' fares, which they 
are not. The Department invites interested persons to comment on adding 
this paragraph on each-way airfare advertising policy to the price 
advertising rule. The Department also invites comment on whether a rule 
similar to that proposed for each-way fare advertising disclosure 
should be applied to air/hotel packages that advertise a single price, 
but are sold at that price only on a double occupancy basis, i.e., 
where two people must purchase the package in order to obtain the 
advertised price.
    The second provision the Department proposes to add to the price 
advertising rule in section 399.84 would prohibit so-called ``opt-out'' 
provisions in price advertising. The Department has noticed a trend 
lately in the air transportation industry to add fees for ancillary 
services and products to the total price of air transportation, which 
charges the consumer is deemed to have accepted unless he or she 
affirmatively opts out of the service and related charges. For example, 
carriers may allow a consumer to select a preferred seat or receive 
priority boarding status if he or she pays a predetermined fee. In some 
cases the optional services and accompanying charges for those services 
is pre-selected and added to the total fare without the consumer 
affirmatively choosing those optional services or fees. This often is 
accomplished on a Web site through use of a small box that is pre-
checked and must be ``unchecked'' by a consumer in order to avoid the 
charge. This can be deceptive depending on the layout of the webpage 
and instructions accompanying the service and charge. What can be even 
more problematic is that opt-out provisions are sometimes included on 
the same webpage as opt-in provisions, in which case it is much less 
likely that consumers will notice the opt-out nature of certain 
optional services that carry additional charges. The Department 
proposes adding a paragraph (c) to section 399.84 to prohibit such opt-
out procedures.
    Proposed paragraph (c) would provide that if a carrier offers 
optional services, the consumer must affirmatively opt in to accept and 
purchase that product or service before the price for that service can 
be added to the total airfare to be paid. No longer will carriers or 
ticket agents be allowed to require that a consumer opt out of 
purchasing such products or services in order to avoid being charged 
for them. The proposed rule, as part of the current full-price 
advertising rule, would also apply to carriers and ticket agents that 
advertise tours which include air transportation. Examples of such opt-
out procedures the Department has seen in recent years include fees for 
travel insurance, rental cars, transfers between airports and hotels, 
priority boarding, premium seats, and extra legroom. Oftentimes the 
consumer does not realize that the ancillary services are included in 
the total price of the ticket due to the deceptive nature of such opt-
out provisions. The Department asks interested persons to comment on 
adding the proposed subsection (c) to the existing price advertising 
rule. The Department would like to hear from both sellers of air 
transportation and consumers about the costs and benefits of 
prohibiting opt-out features.

8. Baggage and Other Fees and Related Code-Share Issues

    With the increasing industry-wide trend to ``unbundle'' fares by 
charging fees for individual services provided in connection with air 
transportation, the

[[Page 32329]]

Department has decided that there is a need to enhance protections for 
air travelers by establishing rules to ensure adequate notice of such 
fees for optional services to consumers. When booking air travel, 
consumers are not always made aware of the extra charges that a carrier 
may impose on them for additional services. Such charges may include 
services that traditionally have been included in the ticket price, 
such as the carriage of one or two checked bags, obtaining seat 
assignments in advance, in-flight entertainment, and in-flight food and 
beverage service. In fact, the Airline Tariff Publishing Company 
(ATPCO), which collects schedule and fare information from airlines for 
use in computerized reservation systems, has developed a list 
containing scores of ancillary charges in various categories. Due to 
what the Department feels is sometimes a lack of clear and adequate 
disclosure, consumers are not always able to determine the full price 
of their travel (the ticket price plus the price of additional fees for 
optional services) prior to purchase.
    We also seek comment on the costs and benefits of requiring that 
two prices be provided in certain airfare advertising--the full fare, 
including all mandatory charges, as well as that full fare plus the 
cost of baggage charges that traditionally have been included in the 
price of the ticket, if these prices differ. We would regard charges 
for one personal item (e.g., a purse or laptop computer), one carry-on 
bag, and one or two checked bags as baggage charges that traditionally 
have been included in the price of a ticket. Should such a requirement 
for a second price, if adopted, be limited to the full fare plus the 
cost of baggage charges? Should the Department require carriers to 
include in the second price all services that traditionally have been 
included in the price of the ticket such as obtaining seat assignments 
in advance? Why or why not? In the alternative, the Department is 
considering requiring sellers of air transportation to display on their 
Web sites information regarding a full price including optional fees 
selected by the passenger when a prospective passenger conducts a query 
for a particular itinerary. In other words, passengers would be able to 
conduct queries for their specific needs (e.g., airfare and 2 checked 
bags; air fare, 1 checked bag, and extra legroom). The benefit of this 
approach is that consumers would be able to more easily compare 
airfares and charges for their own particular itinerary and options. We 
invite comment on this approach, including its feasibility, as well as 
its costs to airlines and ticket agents.
    The Department believes that effective disclosure of the optional 
nature of services and their costs would prevent carriers from imposing 
hidden fees on consumers and allow consumers to make better informed 
decisions when purchasing air travel. In 2008, the Department's 
Aviation Enforcement Office issued guidance concerning the disclosure 
of baggage fees to the public. See, e.g., 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. We propose 
to codify this guidance and also cover in the rule notice of charges 
for services other than checked baggage.
    More specifically, the Department is proposing to adopt three 
provisions in a proposed new 14 CFR 399.85. Proposed section 399.85(a) 
would require carriers that maintain a Web site accessible to the 
general public to prominently disclose on the homepage of such Web site 
any increase in the fee for passenger baggage or any change in the free 
baggage allowance for checked or carry-on bags (e.g., size, weight, 
number). This could be done, for example, through direct, prominent 
notice or through a conspicuous notice of the existence of such fees in 
a hyperlink that takes the reader directly to an explanation of the 
carrier's baggage policies and charges. The proposed rule would require 
this notice to remain on the homepage of the carrier's Web site for at 
least three months after the change is made. The Department invites 
interested persons to comment on this proposal, including whether the 
time period for displaying such changes on the homepage should be 
greater or less than three months. The Department also asks for comment 
on the best options for displaying such information to the public if it 
were to adopt a notice requirement.
    Proposed section 399.85(b) would require carriers that issue e-
ticket confirmations to passengers to include information regarding 
their free baggage allowance and/or the applicable fee for a carry-on 
bag or the first and second checked bag on the e-ticket confirmation. 
By providing this information to consumers on the e-ticket 
confirmation--the document that confirms a passenger's travel on the 
carrier--passengers will be informed well before the flight date and 
arrival at the airport of the applicable baggage rules and charges. The 
Department believes that including this information on the e-ticket 
confirmation will permit passengers to avoid unexpected baggage charges 
to the extent possible and also save time at the airport for both 
passengers and carrier personnel because the passengers will be better 
informed about the baggage allowance and any charges to be incurred.
    Proposed section 399.85(c) would require carriers that have a Web 
site accessible to the general public to disclose all fees for optional 
services to consumers through a prominent link on their homepage that 
leads directly to a listing of those fees. Optional services include 
but are not limited to the cost of a carry-on bag, checking baggage, 
advance seat assignments, in-flight food and beverage service, in-
flight entertainment, blankets, pillows, or other comfort items, and 
fees for seat upgrades. The Department feels that having all of the 
fees for optional services in one place for consumers to review will 
help ensure that consumers do not encounter such charges unexpectedly 
and that they can more easily compare these charges among competing 
carriers. Additionally, disclosure as proposed will result in this 
important cost information being presented in a clear and concise form 
and reduce the prospect of delays at the airport and in-flight that can 
occur when the consumer is unaware of charges for optional services. 
The Department invites comments regarding the proposal to have full, 
complete disclosure of all fees for optional services on one Web page, 
accessible to the consumer through a prominent hyperlink. In 
particular, we solicit comment on whether we should limit the 
requirement to disclose fees to ``significant'' fees for optional 
services, including comment on the definition of ``significant fee'' 
and whether it should be defined as a particular dollar amount. The 
Department seeks comment on the alternatives to the proposed link to 
the information on a carrier's homepage, such as disclosure of these 
optional fees on e-ticket confirmations or elsewhere.
    The Department is also considering requiring that carriers make all 
the information that must be made directly available to consumers via 
proposed section 399.85 available to global distribution systems 
(GDS's) in which they participate in an up-to-date fashion and useful 
format. This would ensure that the information is readily available to 
both Internet and ``brick and mortar'' travel agencies and ticket 
agents so that it can be passed on to the many consumers who use their 
services to compare air transportation offers and make purchases. We 
invite comments on this proposal, including the present

[[Page 32330]]

ability of carriers to meet this requirement, the potential costs of 
the requirement, including costs of developing new software or systems 
to deliver such information to GDS's, if necessary, and the benefits of 
this requirement.
    The proposed section 399.85 would apply to all U.S. and foreign air 
carriers that have Web sites accessible to the general public in the 
United States through which tickets are sold, as well as to their 
agents. The Department invites comment on alternative proposals, 
including limiting the applicability of the proposed section 399.85 to 
all flights operated by U.S. carriers, U.S. and foreign carriers that 
operate any aircraft with sixty (60) or more seats, or U.S. and foreign 
carriers that operate any aircraft with thirty (30) or more seats. In 
addition, we invite comment on whether the rule should apply to all 
ticket agents, as defined in 49 U.S.C. Sec.  40102, which includes not 
just agents of carriers, but also others who, as a principal, ``sells, 
offers for sale, negotiates for, or holds itself out as selling, 
providing, or arranging for air transportation.'' Under proposed 
section 399.85, the Department would consider the failure of a carrier 
to give consumers appropriate notice about baggage fees and other 
optional fees to be an unfair and deceptive practice in violation of 49 
U.S.C. 41712.
    The Department is also seeking comment on the need for a special 
rule relating to the disclosure of fees and related restrictions in 
connection with code-share service. It has come to the Department's 
attention that many carriers operating flights under a code-share 
agreement impose different fees and restrictions than those of the 
carrier under whose identity the service is marketed, notwithstanding 
the fact that as a condition for approval of international code-share 
services, the Department has as a matter of policy required that ``the 
carrier selling such transportation (i.e., the carrier shown on the 
ticket) accept responsibility for the entirety of the code-share 
journey for all obligations established in the contract of carriage 
with the passenger; and that the passenger liability of the operating 
carrier be unaffected.'' See, Notice of the Assistant General Counsel 
for Aviation Enforcement and Proceedings, ``Guidance on Airline Baggage 
Liability and Responsibilities of Code-Share Partners Involving 
International Itineraries,'' http://airconsumer.dot.gov/rules, March 
26, 2009. For example, they may have different free baggage allowances 
and different charges for extra pieces and overweight bags, some may 
not allow unaccompanied minors while others do (perhaps subject to 
varying charges and various age restrictions), and some may not provide 
in-flight medical oxygen while others do (subject to different 
charges). We believe that, at a minimum, prospective customers for 
these code-share flights should be made aware of any significant 
differences between the ancillary services and fees of the carrier 
under whose identity their service was marketed and those of the 
carrier operating their flights. Comments are invited on whether such 
disclosure by ticketing/marketing carriers should be required through 
reservation agents, Web sites, or e-ticket confirmations or through 
each of those mechanisms. Further comment is invited on whether there 
are any ancillary services that should not be allowed to vary among 
code-share partners, e.g., the free baggage allowance or baggage fees. 
For example, Department policy provides 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 the ticketing carrier's rules take precedence. See, 
e.g., Order 2009-9-20, Dockets OST-2008-0367 and 0370, ``Agreements 
adopted by the Tariff Coordinating Conference of the International Air 
Transport Association relating to passenger baggage matters,'' 
September 30, 2009. Information on the cost of these proposals is 
invited.

9. Post-Purchase Price Increases

    The Department is proposing a new section in 14 CFR part 399 that 
would prohibit post-purchase price increases in air transportation or 
air tours by carriers and ticket agents. The seller of air 
transportation would be prohibited from raising the price after the 
consumer completes the purchase. Currently, the Department allows post-
purchase price increases as long as any term that permits a carrier to 
increase the price after purchase is included in the conditions of 
carriage and the consumer receives direct notice of that provision on 
or with the ticket. See 14 CFR 253.7. The Department has found that 
some sellers of air transportation are abusing this rule by burying 
provisions purporting to permit them to raise the price in the contract 
of carriage or conditions of travel and merely providing the consumer a 
hyperlink to the contract of carriage or conditions of travel. The 
consumer is unaware of the potential for such increase until well after 
the purchase is made. Although we have not seen carriers resort to this 
problematic practice, we have often found this to be the case in the 
sale of tour packages that include air transportation, where an air 
tour operator will increase the price of an air tour before travel, 
ostensibly in order to pass along fuel surcharges or an increase in the 
price of a seat. Consumers are not made aware of the potential for a 
price increase at the time of purchase, and therefore are deceived when 
the increase is imposed and the seller uses the terms of the contract 
of carriage to justify an additional collection. Moreover, most 
airlines and tour operators will advertise and sell tickets or packages 
at a stated price nearly a year in advance of scheduled travel. We are 
tentatively of the opinion that it is patently unfair for a carrier or 
tour operator to advertise and sell air transportation at a particular 
price long before travel, with the caveat that they reserve the right 
to change the advertised price at any time before travel, and in any 
amount. The Department feels it is time to ban the practice of post-
purchase price increases.
    The Department invites interested parties to comment on this 
proposal and on several alternatives. As indicated above, the 
Department's primary proposal is an outright ban on post-purchase price 
increases. One alternative the Department is considering would be to 
allow post-purchase price increases, but only as long as the seller of 
air transportation conspicuously discloses to the consumer the 
potential for such an increase and the maximum amount of the increase, 
and the consumer affirmatively agrees to the potential for such an 
increase prior to purchasing the ticket. Another alternative would be 
to allow post-purchase price increases, with full and adequate 
disclosure, that the consumer agrees to in advance of purchasing a 
ticket, but to prohibit price increases within thirty or sixty days of 
the first flight in a consumer's itinerary.

10. Flight Status Changes

    We are proposing to require that certificated air carriers that 
account for at least 1 percent of domestic scheduled passenger revenues 
(reporting carriers) promptly notify passengers in the boarding gate 
area of changes to their domestic scheduled flights resulting from 
delays or cancellations, promptly update all domestic scheduled flight 
information under their control at airports regarding changes to the 
status of particular flights as a result of delays or cancellations and 
promptly update flight status details available on their Web sites and 
through their telephone reservation systems. ``Domestic scheduled 
flight'' for this purpose means

[[Page 32331]]

a flight segment. For example, on a direct flight from Chicago to 
London with a stop in New York, the Chicago-New York segment would be 
covered by this requirement. The Department tentatively believes that 
the cost of requiring smaller carriers to provide this information 
outweighs the benefits to consumers in general in light of the fact 
that the operations of the reporting carriers account for nearly 90 
percent of all domestic passenger enplanements. We ask for comment on 
whether the regulation should cover a greater number of carriers and 
operations, including operations of smaller U.S. carriers and/or 
international operations of U.S. and foreign carriers.
    What would be the cost or benefit of expanding coverage to those 
additional carriers?
    It is important to passengers as well as persons dropping 
passengers off for outbound flights or meeting passengers on incoming 
flights to be kept informed on a timely basis of delays and/or 
cancellations affecting their flights in order to avoid unnecessary 
waits at, or pointless trips to, an airport. Passengers also need 
flight status updates as soon as they become available in order to make 
decisions about alternate travel plans. Carriers recognize the 
importance of timely and accurate flight information, as evidenced by 
the fact that many of the largest U.S. carriers promise through their 
customer service plans to provide passengers all known information 
about delays and cancellations as soon as they become aware of the 
issue. Failures by carriers to provide timely or accurate flight status 
information not only inconvenience passengers and other members of the 
public but also can result in additional expenses to those persons.
    Our proposals here are intended to provide additional measures to 
ensure that passengers and the general public know about flight delays 
and cancellations within a reasonable time so that they can, if 
possible, take steps to protect themselves and avoid unnecessary loss 
of time and expense. We are therefore proposing that carriers promptly 
notify passengers holding tickets or reservations on one of their 
flights as well as other interested parties about changes to a flight's 
status, i.e., delays and cancellations, which affect the planned 
operation of the flight by at least 30 minutes. Additional 
notifications would be required if any such delayed flight was further 
delayed by 30 minutes or more. By ``promptly'' we mean that a carrier 
must provide the required notification regarding the status of a flight 
as soon as possible but no later than 30 minutes after the carrier 
becomes aware or should have become aware of a change in the status of 
the flight due to a delay or cancellation. This requirement would apply 
to all the domestic scheduled flight segments that a reporting carrier 
``markets.'' For example, for a code-share flight this proposed 
notification requirement would be the responsibility of the carrier 
whose code is used, whether or not it is operated under a fee-for-
service arrangement.
    We note that many covered carriers already voluntarily provide 
flight status details via the proposed methods proposed in this notice 
(i.e., announcement in boarding area, Web sites, telephone reservation 
systems, airport display boards). In addition, most of the largest 
carriers generally make efforts to notify passengers of changes to the 
status of their flights by permitting passengers to subscribe to flight 
status update services via various widely-used media, including 
computer-generated telephone/voicemail, text messages, and e-mails. 
This proposal to promptly notify passengers and other interested 
parties of changes to flights as a result of delays or cancellations 
would not impose upon carriers a requirement to offer passengers the 
opportunity to subscribe to such a service but would require carriers 
to the extent that they use this or other methods of communication to 
ensure that the flight status changes are promptly updated.
    We seek comments on whether it is preferable to require carriers to 
provide prompt notification of flight status changes and leave it up to 
the carriers to determine how that notification is provided, or 
prescribe particular means by which carriers must communicate or must 
make available flight status updates. We ask for comment on the four 
proposed means of notification: an announcement in the boarding area, 
carriers' Web sites, carriers' telephone reservation systems, and 
airport displays under carriers' control. Commenters should support 
their opinions with as much detail as possible regarding the 
practicality, costs, and benefits of any standard they support or 
oppose. We also seek comment about the cost and benefit of flight 
status update services. It goes without saying that the quicker that 
changes to a flight's status can be provided to passengers, the more 
useful the information is likely to be. In addition to seeking comment 
on the need, in general, for this proposed notification requirement, we 
specifically ask for comment on whether the standard we propose--``30 
minutes after the carrier becomes aware or should have become aware of 
a change in the status of a flight''--is a reasonable notification 
standard to apply in requiring carriers to pass along updates to 
passengers and to the public. Does it provide consumers sufficient lead 
time in most cases to act to protect themselves? If not, why not, and 
could carriers be expected to meet a more stringent standard? Is the 
more stringent standard a reasonable standard for carriers to meet and, 
if not, why not?
    In addition, we are proposing that notification be provided 
regarding any changes that affect the planned operation of a flight by 
at least 30 minutes. While shorter flight delays occur more frequently, 
we believe they are less likely to significantly disrupt expectations 
or travel plans. We ask for comment on whether this 30-minute standard 
is appropriate. Do consumers in most instances require notice of flight 
delays that are less than 30 minutes? Would changing the standard of 
delays to less than 30 minutes impose unreasonable burdens or costs on 
carriers that outweigh any benefits to the public? According to data 
from the Department's Bureau of Transportation Statistics (BTS), in 
calendar year 2009, approximately 10% of departure delays and 11% of 
arrival delays were over 30 minutes. The majority of scheduled domestic 
passenger flights depart or arrive 1 to 14 minutes after their 
scheduled departure and arrival times, respectively.
    We note that the requirement to promptly update all domestic 
scheduled flight information under a carrier's control at airports 
would cover all communication methods that are under the control of a 
carrier at an airport. For example, flight information provided via 
electronic or other display boards at airport counters and departure 
gates would be covered. We are not proposing at this time that carriers 
establish new types of flight information outlets but this requirement, 
if made final, would apply to every type of outlet a carrier elects to 
use to provide flight information to the public at airports. With 
respect to flight status information outlets at an airport that are not 
under a carrier's control, e.g., flight arrival and departure displays 
that are under the control of an airport authority, a carrier's 
responsibility is limited to providing the updated flight information 
to the airport authority within the required 30 minutes.

11. Choice-of-Forum Provisions

    The Department is proposing to amend 14 CFR part 253, the Part that 
concerns notice of contract of carriage

[[Page 32332]]

terms, by adding a new section to codify the policy of the Department's 
Aviation Enforcement Office that choice-of-forum provisions are unfair 
and deceptive when used to limit a passenger's legal forum to a 
particular inconvenient venue. Choice-of-forum provisions purport to 
designate the court or jurisdiction where any lawsuit against the 
carrier concerning the purchased air transportation must be brought 
See, e.g., Notice of the Assistant General Counsel for Aviation 
Enforcement and Proceedings, ```Choice of Forum' Contract Provisions,'' 
http://airconsumer.dot.gov/rules/19960715.htm (July 15, 1996). It is 
the Department's view that for air transportation sold in the U.S., it 
would be an unfair or deceptive practice for the seller to attempt to 
prevent a passenger from seeking legal redress in any court of 
competent jurisdiction, including a court within the jurisdiction of 
the passenger's residence, provided that the carrier does business 
within that jurisdiction. Consumers should not be forced to litigate in 
a jurisdiction that could be thousands of miles from their United 
States residence. The Department believes that such narrow choice-of-
forum provisions would operate as a limitation on the right of a 
consumer to bring legitimate and viable suits. We invite interested 
persons to comment on this proposal and on the use of such choice-of-
forum provisions in contracts of carriage.

12. Peanut Allergies

    The Department is considering several different measures to provide 
greater access to air travel for individuals with severe peanut 
allergies in light of the significant number of children diagnosed with 
peanut allergies, some of whom do not fly because of health concerns 
related to peanut service on aircraft. The Air Carrier Access Act 
(ACAA) prohibits discrimination by U.S. and foreign air carriers 
against individuals with disabilities. The Department of Transportation 
defines an individual with a disability in 14 CFR part 382 (Part 382), 
the regulation implementing the ACAA. An individual with a disability 
is any individual who has a physical or mental impairment that, on a 
permanent or temporary basis, substantially limits one or more major 
life activities, has a record of such an impairment, or is regarded as 
having such an impairment. Generally, a person with an allergy is not 
an individual with a disability. However, if a person's allergy is 
sufficiently severe to substantially limit a major life activity, then 
that person meets the definition of an individual with a disability. 
Part 382 states that major life activities means functions such as 
caring for one's self, performing manual tasks, walking, seeing, 
hearing, speaking, breathing, learning, and working. Airline passengers 
with severe allergies to peanuts have a qualifying disability as 
defined in part 382.
    Part 382 requires airlines to change or make an exception to an 
otherwise general policy or practice to make sure that a passenger with 
a disability can take the trip for which he or she is ticketed unless 
the change would cause an undue burden on the airline or a fundamental 
alteration in its services. The Department has in the past told 
airlines that, based on this requirement, they must make reasonable 
accommodations for air travelers who are allergic to peanuts. 
Specifically, in August 1998 the Department's Aviation Enforcement 
Office sent an industry letter providing guidance on this issue. That 
letter suggested that, if given advance notice, providing a peanut-free 
buffer zone in the immediate area of a passenger with a medically-
documented severe allergy to peanuts would be a reasonable 
accommodation for the passenger's disability, and would not constitute 
an undue burden on the airline.
    After the issuance of the guidance letter, the Department was 
directed by Congress to cease issuing guidance on this subject or face 
a cutoff of funding for its Aviation Enforcement Office. See, for 
example, section 346 of Public Law 106-69, (October 9, 1999)--``DOT and 
Related Agencies Appropriations Act, 2000,'' which stated that none of 
the funds made available under that Act could be used to require or 
suggest that airlines provide peanut-free buffer zones or otherwise 
restrict the distribution of peanuts. This congressional prohibition 
was to remain in effect ``until 90 days after submission to the 
Congress of a peer-reviewed scientific study that determined 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.'' This specific congressional ban on 
our involvement in this issue has not appeared recently in any 
legislation. At this time, we are considering the following 
alternatives to provide greater access to air travel for individuals 
with severe peanut allergies: (1) Banning the serving of peanuts and 
all peanut products by both U.S. and foreign carriers on flights 
covered by DOT'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 passenger has requested a peanut-free flight in advance. We 
seek comment on these approaches as well as the question of whether it 
would be preferable to maintain the current practice of not prescribing 
carrier practices concerning the serving of peanuts. We are 
particularly interested in hearing views on how peanuts and peanut 
products brought on board aircraft by passengers should be handled. How 
likely is it that a passenger with allergies to peanuts will have 
severe adverse health reactions by being exposed to the airborne 
transmission of peanut particles in an aircraft cabin (as opposed to 
ingesting peanuts orally)? Will taking certain specific steps to 
prepare for a flight (e.g., carrying an epinephrine auto-injector in 
order to immediately and aggressively treat an anaphylactic reaction) 
sufficiently protect individuals with severe peanut allergies? Who 
should be responsible for ensuring an epinephrine auto-injector is 
available on a flight--the passenger with a severe peanut allergy or 
the carrier? Is there recent scientific or anecdotal evidence of 
serious in-flight medical events related to the airborne transmission 
of peanut particles? Should any food item that contains peanuts be 
included within the definition of peanut products (e.g., peanut butter 
crackers, products containing peanut oil)? Is there a way of limiting 
this definition?

13. Effective Date

    We propose that any final rule that we adopt take effect 180 days 
after its publication in the Federal Register. We believe this would 
allow sufficient time for carriers to comply with the various proposed 
requirements. We invite comments on whether 180 days is the appropriate 
interval for completing these changes.

Regulatory Analyses And Notices

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

    This action has been determined to be significant under Executive 
Order 12866 and the Department of Transportation's Regulatory Policies 
and Procedures. It has been reviewed by the Office of Management and 
Budget under that Order. The Regulatory Evaluation finds that the 
benefits of the proposal appear to exceed its costs, even without 
considering non-quantifiable benefits. The total present value of 
passenger

[[Page 32333]]

benefits from the proposed requirements over a 10 year period at a 7% 
discount rate is $87.59 million and the total present value of costs 
incurred by carriers and other sellers of air transportation over a 10 
year period at a 7% discount rate is $25.98 million. The net present 
value of the rule for 10 years at a 7% discount rate is $61.61 million.
    Below, we have included a table outlining the projected costs and 
benefits of this rulemaking. We invite comment on the quantification of 
costs and benefits for each provision, as well as the methodology used 
to develop our cost and benefit estimates. We also seek comment on how 
unquantified costs and benefits could be measured. More detail on the 
estimates within this table can be found in the preliminary Regulatory 
Impact Analysis associated with this proposed rule.

    Comparison of Requirement-Specific Benefits and Costs, 2010-2020
               [Discounted at 7%/year to 2010 $ millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
Requirement 1: Expand tarmac delay                       Total
 contingency plan requirements to smaller
 airports and require that foreign carriers
 have a tarmac delay contingency plan.
------------------------------------------------------------------------
Estimated Quantified Benefits................  $1.99
Estimated Quantified Costs...................  $3.24
                                              --------------------------
    Net Benefits.............................  -$1.25
Unquantified Benefits:
     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
     Towards Carriers
Unquantified Costs:
     Increased Flight Cancellations
     Increased Passenger Anxiety
     Associated with Potential Flight
     Cancellations
------------------------------------------------------------------------
Requirement 2: Expand carriers' reporting                Total
 tarmac delay info to DOT and require
 reporting by foreign carriers.
------------------------------------------------------------------------
Estimated Quantified Benefits................  not estimated
Estimated Quantified Costs...................  $2.31
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:
     Increased Efficiency of US DOT
     Oversight and Enforcement Office
     Operations
     Improved Planning by Passengers
     Improved Management of Flight
     Delays
     Improved Market Competition
------------------------------------------------------------------------
Requirement 3: Establish of minimum standards            Total
 for carriers' customer service plans and
 extend the customer service plan
 requirements to cover foreign carriers.
------------------------------------------------------------------------
Estimated Quantified Benefits................  $6.25
Estimated Quantified Costs...................  $8.58
                                              --------------------------
    Net Benefits.............................  -$2.33
Unquantified Benefits:
     Decreased Confusion and
     Uncertainty Regarding Department's
     Requirements
     Value of Improved Customer
     Service Based on Self-Auditing of
     Adherence to Customer Service Plans for
     Foreign Carriers
     Improved Customer Good Will
     Towards Carriers
------------------------------------------------------------------------
Requirement 4: Require incorporation of                  Total
 tarmac delay contingency plans and customer
 service plans into carrier contracts of
 carriage.
------------------------------------------------------------------------
Estimated Quantified Benefits................  not estimated
Estimated Quantified Costs...................  not estimated
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:
     Decreased Occurrence of Customer
     Complaints
     Improved Resolution of Customer
     Complaints
------------------------------------------------------------------------
Requirement 5: Extend requirements for                   Total
 carriers to respond to consumer complaints
 to cover foreign carriers.
------------------------------------------------------------------------
Estimated Quantified Benefits................  $0.00
Estimated Quantified Costs...................  $1.82
                                              --------------------------
    Net Benefits.............................  -$1.82
Unquantified Benefits:

[[Page 32334]]

     Decreased Occurrence of Conduct
     that Would Produce Complaints
     Improved Resolution of Customer
     Complaints
     Decreased Anger Toward Carriers
     During Resolution of Complaints
------------------------------------------------------------------------
Requirement 6: Changes in denied boarding                Total
 compensation (involuntary bumping) policy:
 increase minimum compensation, add inflation
 adjustment, greater passenger information
 about policies.
------------------------------------------------------------------------
Estimated Quantified Benefits................  not estimated
Estimated Quantified Costs...................  $0.66
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:
     Decrease in Confusion Regarding
     Denied Boarding Compensation Provisions
     More Accurate Compensation for
     those Denied Boarding
     Decreased Resentment among Some
     Passengers Regarding Different
     Compensation Received
------------------------------------------------------------------------
Requirement 7: Require that carriers include             Total
 taxes and fees in advertising (``full-fare
 advertising'') and prohibit use of sales
 provisions that require purchasers to opt
 out of add-ons such as trip insurance.
------------------------------------------------------------------------
Estimated Quantified Benefits................  $73.50
Estimated Quantified Costs...................  $6.86
                                              --------------------------
    Net Benefits.............................  $66.64
Unquantified Benefits:
     Travelers Less Likely to
     Mistakenly Purchase Unwanted Services
     and Amenities
     Improved Market Competition
     Improved Customer Good Will
     Towards Carriers
------------------------------------------------------------------------
Requirement 8: Require carriers to disclose              Total
 baggage and other optional fees on their Web
 sites.
------------------------------------------------------------------------
Estimated Quantified Benefits................  not estimated
Estimated Quantified Costs...................  $2.51
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:
     Decrease in Time at Check-in
     Avoidance of Unfair Surprise
     Improved Customer Good Will
     Towards Carriers
     Improved Market Competition
------------------------------------------------------------------------
Requirement 9: Ban the practice of post-                 Total
 purchase price increases.
------------------------------------------------------------------------
Estimated Quantified Benefits................  $5.83
Estimated Quantified Costs...................  not estimated
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:
     Improved Customer Good Will
     Towards Carriers
     Avoidance of Unfair Surprise
Unquantified Costs:
     Inability to Increase Prices
     Based on Unanticipated or Changed
     Circumstances
------------------------------------------------------------------------
Requirement 10: Require prompt passenger                 Total
 notification of flight status changes
 (cancellations, delays, etc.) at the
 boarding gate area, on Web site and on
 telephone reservation systems.
------------------------------------------------------------------------
Estimated Quantified Benefits................  not estimated
Estimated Quantified Costs...................  not estimated
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:
     Reduced Passenger Anxiety
     Greater Comfort and Certainty
     from Knowing that Information Will Be
     Available In Timely Manner
Unquantified Costs:
     Expense of Providing
     Notification
------------------------------------------------------------------------
Requirement 11: Permit consumers to file suit            Total
 wherever a carrier does business.
------------------------------------------------------------------------
Estimated Quantified Benefits................  not estimated
Estimated Quantified Costs...................  not estimated
                                              --------------------------
    Net Benefits.............................  not estimated
Unquantified Benefits:

[[Page 32335]]

     Greater compliance with DOT
     regulations
     Improved Customer Good Will
     Towards Carriers
Unquantified Costs:
     Need to Defend Suit in Location
     of Consumer's Choice
------------------------------------------------------------------------
Requirements 1-11: TOTAL.....................            Total
------------------------------------------------------------------------
Estimated Quantified Benefits................  $87.6
Estimated Quantified Costs...................  $26.0
    Net Benefits.............................  $61.6
------------------------------------------------------------------------

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. 
The regulatory initiatives discussed in this NPRM would have some 
impact on some small entities, as discussed in the Initial Regulatory 
Flexibility Analysis.
    The Initial Regulatory Flexibility Analysis determined that no more 
than 12 independently-owned small U.S. carriers operating at least one 
aircraft with 30 or more passenger seats but none with more than 60 
passenger seats would have to comply with the proposed requirements 
relating to denied boarding compensation and lengthy tarmac delays. 
These 12 U.S. carriers and an additional 35 small U.S. carriers that 
only operate aircraft with fewer than 30 seats would potentially have 
to comply with the requirements pertaining to full fare advertising 
(requirement to display full fares on Web sites and in print 
advertising and prohibition on opt-out provisions), disclosure of 
baggage and other fees, and prohibition on post-purchase price 
increases. The compliance costs associated with the full fare 
advertising requirements are estimated at $6,000 or less per carrier. 
The estimated unit costs for complying with the other requirements are 
nominal.
    The proposed initiatives may have a more substantial impact on 
small foreign carriers that provide scheduled service on flights to and 
from the U.S. using only aircraft with 60 or less passenger seats. 
There is only one small foreign carrier that operates service to and 
from the U.S. using aircraft with more than 29 but fewer than 61 seats. 
It would be required to comply with the proposed requirements described 
above for U.S. carriers of this size-class, as well as requirements 
relating to tarmac delay contingency plans, customer service plans, and 
customer problems/complaints (these requirements were instituted for 
covered U.S. carriers in a previous proceeding). Each of these sets of 
requirements may entail compliance costs of $3,000 or more per-carrier, 
but only the requirement to develop and implement a compliant tarmac 
delay contingency plan is likely to involve single-year cost in excess 
of $10,000 per carrier. There are also two small foreign carriers that 
operate service to and from the U.S. exclusively with aircraft that 
have fewer than 19 seats; these two carriers would potentially have to 
comply with the requirements pertaining to full fares advertising 
(requirement to display full fares on Web sites and in print 
advertising and prohibition on opt-out provisions), disclosure of 
baggage and other fees, and prohibition on post-purchase price 
increases. The per-carrier compliance costs for these two small foreign 
carriers are expected to be similar to those for U.S. carriers of the 
same size-class.
    It may also be necessary for some small travel agencies and tour 
operators to revise air travel prices displayed in Web site and print 
media advertising to comply with the proposed requirements relating to 
full fare advertising of air fares. Costs for small firms to revise Web 
sites and update print media advertising are estimated at no more than 
$3,000 each on a per-firm basis. Finally, a limited number of personnel 
at some small airports will incur time costs of a few hours on average 
to interact with carriers that are required to coordinate tarmac 
contingency plans with airport authorities. We invite comment to 
facilitate our assessment of the potential impact of these initiatives 
on small entities.

C. Executive Order 13132 (Federalism)

    This Notice of Proposed Rulemaking has been analyzed in accordance 
with the principles and criteria contained in Executive Order 13132 
(``Federalism''). This notice does not propose any 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 NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because none of the 
options on which we are seeking comment would significantly or uniquely 
affect the communities of the Indian tribal governments or impose 
substantial direct compliance costs on them, the funding and 
consultation requirements of Executive Order 13084 do not apply.

E. Paperwork Reduction Act

    This NPRM proposes three new collections of information that would 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13, 49 U.S.C. 3501 et 
seq.). Under the Paperwork Reduction Act, before an agency submits a 
proposed collection of information to OMB for approval, it must publish 
a document in the Federal Register providing notice of the proposed 
collection of information and a 60-day comment period, and must 
otherwise consult with members of the public and affected agencies 
concerning the proposed collection.
    The first collection of information proposed here is a requirement 
that foreign air carriers that operate scheduled passenger service to 
or from the U.S. using any aircraft originally designed to have a 
passenger capacity of 30 or more seats 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

[[Page 32336]]

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 second information collection is a requirement that any foreign 
air carrier that operates scheduled passenger service to and from the 
U.S. using any aircraft originally designed to have a passenger 
capacity of 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 plans to review the audits to monitor 
carriers' compliance with their plans and take enforcement action when 
appropriate.
    The third 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 exceeding three hours or more, including diverted flights 
and cancelled flights. This requirement would apply to reporting 
carriers under 14 CFR part 234 only with respect to their public 
charter service and international service. 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.
    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: 0 to 1 hour per respondent.
    Estimated Total Annual Burden: 15 hours and 25 minutes for all 
respondents.
    Frequency: One information set to submit per three hour plus tarmac 
delay for each respondent .
    2. Requirement that carrier retain for two years the results of its 
annual self-audit 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 22 hours for all 
respondents.
    Frequency: One information set to retain per year for each 
respondent.
    3. Requirement that carrier report certain tarmac delay data 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: 5 to 160 hours per 
respondent in the first year (average of 40 hours) and no more than 3 
hours in subsequent years per respondent.
    Estimated Total Annual Burden: 5,200 hours in the first year and no 
more than 390 hours in subsequent years for all respondents.
    Frequency: One information set to submit per month for each 
respondent.
    The Department invites 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. Comments submitted in response to 
this notice will be summarized or included, or both, in the request for 
OMB approval of these information collections.

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 NPRM.

List of Subjects

14 CFR Parts 234, 250, and 259

    Air carriers, Consumer protection, Reporting and recordkeeping 
requirements.

14 CFR Part 244

    Air carriers, Consumer protection, and Tarmac delay data.

14 CFR Part 253

    Air carriers, Consumer protection, and Contract of carriage.

14 CFR Part 399

    Administrative practice and procedure, Air carriers, Air rates and 
fares, Air taxis, Consumer protection, Small businesses.

    Issued June 2, 2010 in Washington, DC.
Ray LaHood,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department proposes 
to amend title 14 CFR Chapter II as follows:

PART 234--[AMENDED]

    1. The authority citation for 14 CFR part 234 continues to read as 
follows:

    Authority:  49 U.S.C. 329 and chapters 401 and 417.

    2. Section 234.11 is amended by revising paragraph (d) and adding 
paragraph (e) to read as follows:

Sec.  234.11  Disclosure to consumers.

* * * * *
    (d) For each scheduled domestic flight segment, including domestic 
segments of a code-share flight operated by another carrier, a 
reporting carrier shall promptly provide to passengers who are ticketed 
or hold reservations, and to other interested persons information about 
a change in the status of a flight, defined for this purpose as 
cancellation of a flight or a delay of 30 minutes or more in the 
planned operation of a flight, including additional delays of 30 
minutes or more to flights for which notification has already been 
provided. This information must at a minimum be provided in the 
boarding gate area, via a carrier's telephone reservation system and on 
the homepage of a carrier's Web site.
    (1) With respect to any carrier that permits passengers to 
subscribe to flight status notification services, the reporting carrier 
shall 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 or should have become aware of 
a change in the status of a flight.
    (2) The reporting carrier shall incorporate such notification 
service commitment into its Customer Service Plan as specified in 
section 259.5 of this chapter.

[[Page 32337]]

    (e) Each reporting carrier shall update all flight status displays 
and other sources of flight information that are under the carrier's 
control at airports with information on each flight delay of 30 minutes 
or more or flight cancellation, within 30 minutes after the carrier 
becomes aware or should have become aware of a change in the status of 
a flight.
    3. A new part 244 is added 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.

Sec.  244.1  Definitions.

    For the purposes of this part:
    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, 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. air carrier holding a 
certificate issued under 49 U.S.C. 41102 to conduct passenger service 
or holding an exemption to conduct passenger operation under 49 U.S.C. 
40109.
    Commuter air carrier means a U.S. commuter air carrier as described 
in 14 CFR 298.3(b) that 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.
    Covered carrier means a certificated carrier, a commuter carrier, 
or a foreign air carrier operating to and from or within the United 
States, conducting scheduled passenger service or public charter 
service with at least one aircraft originally designed to have a 
passenger 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.
    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 been boarded and aircraft 
doors have been closed. In cases where the flight returned to the 
departure gate before wheels-off time and departed a second time, the 
reportable gate departure time is the last gate departure time before 
wheels-off time. In cases of an air return, 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 passenger door was 
closed. Also, the official ``gate-departure 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 seconds is then subtracted from the recorded time to 
obtain the appropriate out time.
    Gate return means that the aircraft leaves the boarding gate only 
to return to a gate for the purpose of allowing passengers to disembark 
from the aircraft.
    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.

Sec.  244.2  Applicability.

    (a) This part applies to U.S. certificated air carriers, U.S. 
commuter air carriers and foreign air carriers that operate passenger 
service to a U.S. airport with an aircraft originally designed to have 
a passenger capacity of 30 or more seats. Carriers must report all 
passenger operations that experience a tarmac time of 3 hours or more 
at a U.S. airport.
    (b) If a U.S. or a foreign air carrier has no 3-hour tarmac times 
in a given month, it still must submit a monthly report stating there 
were no 3-hour tarmac times.
    (c) U.S. carriers that submit Part 234 Airline Service Quality 
Performance Report must only submit 3-hour tarmac information for 
public charter flights and international passengers flights as the 
domestic scheduled passenger flight information is already being 
collected in part 234 of this chapter.

Sec.  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 and Statistics on a monthly basis, setting 
forth the information for each of its 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 of the end of each 
month and shall be made in the form and manner set forth in accounting 
and reporting directives issued by the Director, Office of Airline 
Statistics, 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 diverted flight.
    (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 
(a)(17) of this section must be provided for each subsequent diverted 
airport landing.

PART 250--[AMENDED]

    4. The authority citation for 14 CFR part 250 continues to read as 
follows:

    Authority: 49 U.S.C. chapters 401, 411, 413 and 417.

    5. Section 250.1 is amended by removing the definition of ``sum of 
the values of the remaining flight coupons'' and adding a definition of 
``confirmed reserved space'' to read as follows:

Sec.  250.1  Definitions.

* * * * *

[[Page 32338]]

    Confirmed reserved space means space on a specific date 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'' (e.g., consolidator ticket that does not show a fare amount on 
the ticket, frequent-flyer award ticket, or ticket obtained using a 
travel voucher), 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.
* * * * *
    6. Section 250.2b is amended by revising paragraph (b) and adding 
paragraph (c) to read as follows:

Sec.  250.2b  Carriers to request volunteers for denied boarding.

* * * * *
    (b) Every carrier shall advise each passenger solicited to 
volunteer for denied boarding, no later than the time the carrier 
solicits that passenger to volunteer, whether he or she is in danger of 
being involuntarily denied boarding (in doing so, the carrier must 
fully disclose the boarding priority rules that the carrier will apply 
for that specific flight), and the compensation the carrier is 
obligated to pay if the passenger is involuntarily denied boarding. If 
an insufficient number of volunteers come forward, the carrier may deny 
boarding to other passengers in accordance with its boarding priority 
rules.
    (c) If a carrier offers free or reduced rate air transportation as 
compensation to volunteers, the carrier must disclose all material 
restrictions on the use of that transportation before the passenger 
decides whether to give up his or her confirmed reserved space on that 
flight in exchange for the free or reduced rate transportation.
    7. Section 250.5 is revised to read as follows:

Sec.  250.5  Amount of denied boarding compensation for passengers 
denied boarding involuntarily.

    (a) Subject to the exceptions provided in Sec.  250.6, a carrier to 
whom this part applies as described in Sec.  250.2 shall pay 
compensation to passengers denied boarding involuntarily from an 
oversold flight at the rate of 200 percent of the fare (including any 
surcharges and air transportation taxes) to the passenger's next 
stopover, or if none, to the passenger's final destination, with a 
maximum of $1,300. However, the compensation shall be one-half the 
amount described above, with a $650 maximum, if the carrier arranges 
for comparable air transportation [see Sec.  250.1], or other 
transportation used by the passenger that, at the time either such 
arrangement is made, is planned to arrive at the airport of the 
passenger's next stopover, or if none, the airport of the passenger's 
final destination, not later than 2 hours after the time the direct or 
connecting flight from which the passenger was denied boarding is 
planned to arrive in the case of interstate air transportation, or 4 
hours after such time in the case of foreign air transportation.
    (b) Carriers may offer free or reduced rate air transportation in 
lieu of the cash due under paragraph (a) of this section, if:
    (1) The value of the transportation benefit offered is equal to or 
greater than the cash payment otherwise required;
    (2) The carrier fully informs the passenger of the amount of cash 
compensation that would otherwise be due and that the passenger may 
decline the transportation benefit and receive the cash payment; and
    (3) The carrier fully discloses all material restrictions on the 
use of such free or reduced rate transportation before the passenger 
decides to give up cash payment in exchange for such transportation.
    (c) For the purpose of calculating the denied boarding compensation 
for a passenger with a ``zero fare ticket'', the requirements in 
paragraph (a), (b), and (c) of this section apply. The fare paid by 
these passengers for purpose of this calculation shall be the lowest 
cash, check, or credit card payment charged for a comparable class of 
ticket on the same flight.
    (d) The Department of Transportation will review the maximum denied 
boarding compensation amounts prescribed in this part every two years. 
The Department will use the Consumer Price Index for All Urban 
Consumers (CPI-U) as of July of each review year to calculate the 
revised maximum compensation amounts. The Department will use the 
following formula:

Current Denied Boarding Compensation 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 July 2010 when the inflation adjustment 
provision was added to Part 250.

    8. Section 250.9 is amended by revising the section heading and 
paragraph (c) to read as follows:

Sec.  250.9  Written explanation of denied boarding compensation and 
boarding priorities, and verbal notification of denied boarding 
compensation.

* * * * *
    (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 restrictions or conditions applicable to the free or 
discounted transportation and that they are entitled to choose cash or 
check compensation instead.

PART 253--[AMENDED]

    9. 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.

    10. Section 253.7 is revised to read as follows:

Sec.  253.7  Direct notice of certain terms.

    A passenger shall not be bound by any terms restricting refunds of 
the ticket price or imposing monetary penalties on passengers unless 
the passenger receives conspicuous written notice of the salient 
features of those terms on or with the ticket.
    11. Section 253.9 is revised to read as follows:

Sec.  253.9  Notice of contract of carriage choice-of-forum provisions.

    The Department considers any contract of carriage provision 
containing a choice-of-forum clause that attempts to preclude a 
passenger from bringing a consumer-related claim against a carrier in 
any court of competent jurisdiction, including a court within the 
jurisdiction of the passenger's residence in the United States, 
provided that the carrier does business within that jurisdiction, to be 
an unfair and deceptive practice prohibited by 49 U.S.C. 41712.

PART 259--[AMENDED]

    12. 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.

    13. Section 259.2 is revised to read as follows:

Sec.  259.2  Applicability.

    This rule 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

[[Page 32339]]

a passenger capacity of 30 or more seats, and to all the 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, with the exception that Sec.  259.5 and Sec.  259.7 do not 
apply to charter service.
    14. Section 259.3 is revised to read as follows:

Sec.  259.3.  Definitions.

    For the purposes of this part:
    Certificated air carrier means a U.S. air carrier that holds a 
certificate issued under 49 U.S.C. 41102 to operate passenger service 
or an exemption from 49 U.S.C. 41102.
    Commuter air carrier means a U.S. air carrier as established by 14 
CFR 298.3(b) that 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.
    Covered carrier means a certificated carrier, a commuter carrier, 
or a foreign air carrier operating to and from or within the United 
States, conducting scheduled passenger service or public charter 
service with at least one aircraft originally designed to have a 
passenger 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.
    15. Section 259.4 is revised to read as follows:

Sec.  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 large U.S. hub airport, medium hub airport, 
small hub airport and non-hub airport at which it operates 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 
security-related 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 a set number of hours as determined by the carrier and 
set out in its contingency plan, before allowing passengers to deplane, 
unless:
    (i) The pilot-in-command determines there is a safety-related or 
security-related 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 pilot-in-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 tarmac 
delay every 30 minutes while the plane is delayed, including the 
reasons for the tarmac delay;
    (6) Assurance of sufficient resources to implement the plan; and
    (7) Assurance that the plan has been coordinated with airport 
authorities 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;
    (8) 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
    (9) Assurance that the plan has been coordinated with the 
Transportation Security Administration (TSA) at each large U.S. hub 
airport, medium hub airport, small hub airport and non-hub airport that 
the carrier serves, including diversion airports.
    (c) 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 
amended plan shall apply only to those flights that are first offered 
for sale after the plan's amendment.
    (d) 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 at least 
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).
    (e) Unfair and deceptive practice. A carrier's failure to comply 
with the assurances required by this rule and as contained in its 
Contingency Plan for

[[Page 32340]]

Lengthy Tarmac Delays will be considered an unfair and deceptive 
practice within the meaning of 49 U.S.C. 41712 that is subject to 
enforcement action by the Department.
    16. Section 259.5 is revised to read as follows:

Sec.  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 
this 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) Offering the lowest fare available on the carrier's Web site, 
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 Web 
site 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 Sec.  374.3 of this chapter 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 Part 382 of this chapter and for 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 Sec.  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 configuration, and lavatory availability on the selling 
carrier's Web site, 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, 
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 
section 259.7 of this chapter; and
    (13) 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.
    17. Section 259.6 is revised to read as follows:

Sec.  259.6  Contract of carriage.

    (a) Each U.S. and foreign air carrier that is required to adopt a 
contingency plan for lengthy tarmac delays shall incorporate this plan 
into its contract of carriage.
    (b) Each U.S. and foreign air carrier that is required to adopt a 
customer service plan shall incorporate this plan in its contract of 
carriage.
    (c) Each U.S. and foreign air carrier that has a Web site shall 
post its entire contract of carriage on its Web site in easily 
accessible form, including all updates to its contract of carriage.
    18. Section 259.7 is revised to read as follows:

Sec.  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 
carrier's Web site (if any), on all e-ticket 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 
receipt of each complaint regarding its scheduled service to the 
complainant within 30 days of receiving it and shall send a substantive 
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.

PART 399--[AMENDED]

    19. The authority citation for 14 CFR part 399 continues to read as 
follows:

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

    20. Section 399.84 is revised to read as follows:

Sec.  399.84  Price advertising and opt-out provisions.

    (a) The Department considers any advertising or solicitation by a 
direct air carrier, indirect air carrier, an agent of either, or a 
ticket agent, for passenger air transportation, a tour (e.g., a 
combination of air transportation and ground accommodations), or a tour 
component (e.g., a hotel stay) 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 separate 
charges included within the total price (e.g., taxes or a fuel 
surcharge) may be stated in fine print or through links or ``pop ups'' 
on Web sites, fares that exclude any required charges may not be 
displayed in advertising or solicitations.
    (b) The Department considers any advertising by the entities listed 
in paragraph (a) of this section of an each-way 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 way 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. Each-way fares may not be referred to as 
``one-way'' fares.
    (c) When offering a ticket for purchase by a consumer, for 
passenger air transportation or for an air tour or air tour component, 
a direct air carrier, indirect air carrier, an agent of either, or

[[Page 32341]]

a ticket agent, may not include ``opt-out'' provisions for additional 
optional services in connection with air transportation, an air tour, 
or air tour component that will automatically be added to the purchase 
if the consumer takes no other action. The consumer must affirmatively 
``opt in'' (i.e., agree) to such a fee for the services 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. A new Sec.  399.85 is added to read as follows:

Sec.  399.85  Notice of baggage fees and other fees.

    (a) If a U.S. or foreign air carrier has a Web site accessible for 
ticket purchases by the general public, the carrier must promptly and 
prominently disclose any increase in its fee for carry-on or checked 
baggage and any change in the checked baggage allowance for a passenger 
on the homepage of the carrier's Web site. Such notice must remain on 
the homepage for at least three months after the change becomes 
effective.
    (b) 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 e-mail confirmation, a U.S. 
or foreign air carrier must include information regarding the free 
passenger's baggage allowance and/or the applicable fee for a carry-on 
bag and the first and second checked bag.
    (c) If a U.S. or foreign air carrier has a Web site where it 
advertises or sells air transportation, on its Web site the carrier 
must disclose information on fees for optional services that are 
charged to a passenger purchasing air transportation. Such disclosure 
must be clear, with a conspicuous link from the air carrier's homepage 
to the fee disclosure. For purposes of this section, the term 
``optional services'' is defined as any service the airline provides 
beyond the provision of 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, 
and seat upgrades.
    (d) The Department considers the failure to give the appropriate 
notice described in paragraphs (a), (b), and (c) of this section to be 
an unfair and deceptive practice within the meaning of 49 U.S.C. 41712.
    22. A new Sec.  399.87 is added to read as follows:

Sec.  399.87  Prohibition on post-purchase price increase.

    It is an unfair and deceptive practice within the meaning of 49 
U.S.C. 41712 for any seller of scheduled air transportation, or of a 
tour or tour component that includes scheduled air transportation to 
increase the price of that air transportation to a consumer, including 
but not limited to increase in the price of the seat, increase in the 
price for the carriage of passenger baggage, or increase in an 
applicable fuel surcharge, after the air transportation has been 
purchased by the consumer.

[FR Doc. 2010-13572 Filed 6-7-10; 8:45 am]
BILLING CODE 4910-9X-P
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