### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

------------------------------------------------------ In the matter of: :

: Final Rule : Enhancing Airline : Docket No. DOT

- OST

- 2010

- 0140 Passenger Protections :

------------------------------------------------------

REQUEST TO CLARIFY THE FINAL RULE AND TO EXTEND CERTAIN EFFECTIVE DATES

The Air Transport Association of America, Inc., 1 

### the Regiona l Airline Association

, 2 

### and the Air Carrier Association of America on behalf of their members, have a strong interest in achieving an effective, efficient and smooth transition for consumers and industry stakeholders under the multi

- faceted requirements of the final rule published in the Federal Register at 76 FR 23110 on April 25, 2011 . To that end we request that the Department extend the current Octobe r 24, 2011 effective date by 180 days for the full fare advertising amendments in 14 C.F.R. 399.84, and the current August 23, 2011 effective date by 18 0 days for amendments to 14 C.F.R. Part 250 ( Denied Boarding Compensation )

, as well as, requirements on n otice of baggage fees and other fees ( 14 C.F.R. § 399.85(c)), and b aggage allowance and fees ( 14 C.F.R. § 399.87). These extensions would give carriers a n additional six months to overcome substantial technological problems and properly train their employees, in order to comply with the new rules. We also request clarification of certain new provisio ns.

The Department mandated many new regulatory requirements in its April 25, 2011 final rule

, which applies to U.S. and foreign carriers

. Out of all the se new requirements, we have limited this request to four important provisions that to implement will require deployment of substantial
IT resources

, development of new protocols /procedures and the training of many employees.

The Department has previously granted similar year

- long periods for air carriers to compl y with new rules when the y create d compl icated technical challenges requiring great amounts of time and effort to overcome. Most recently

, this occurred in 2008 when the Department issued a new rule regarding passengers with disabilities, and the Department, correctly recognizing the

1 ATA airline members are: ABX Air, Inc.; AirTran Airways; Alaska Airlines, Inc.; American Airlines, Inc.; ASTAR Air Cargo, Inc.; Atlas Air, Inc.; Continental Airlines, Inc.; Delta Air Lines, Inc.; Evergreen International Airlines, Inc.; Federal Express Corporation; Hawaiian Airlines; JetBlue Airways Corp.; Southwest Airlines Co., Unite d Airlines, Inc.; United Parcel Service Co.; and US Airways, Inc. ATA Airline Associate Members are: Air Canada and Air Jamaica Ltd.
2 RAA members include: Aerolitoral ; Air Wisconsin Airlines Corp. ; AirNet Systems Inc. ; American Eagle
Airlines ; Atlanti c Southeast Airlines ; Cape Air ; Chautauqua Airlines ; Colgan Air ; Comair ; CommutAir ; Compass Airlines ; Empire Airlines ; Era Aviation ; ExpressJet ; GoJet ; Grand Canyon Airlines/Scenic ; Great Lakes Aviation ; Gulfstream Int'l Airlines ; Horizon Air ; Island Air ; Jazz Air ; Lynx Aviation, Inc. ; Mesaba Aviation ; New England Airlines ; Piedmont Airlines ; Pinnacle Airlines, Inc. ; PSA Airlines ; Republic Airlines ; Shuttle America ; SkyWest Airlines, Inc ; Trans States Airlines

.

### 2

complexity of the issue and the solutions involved, gave carriers a full year to comply with the new rules. (See Nondiscrimination on the Basis of Disability in Air Travel Final Rule amending Part 382, 73 Fed. Reg. 27614

- 27687, giving carriers one year to comply.)

The Department itself typically takes several years to complete the rulemaking process on a particular issue. In the current rulemaking, without counting the preparation for the NPRM, the Department spent 10 months analyzing the comments before issuing a final rule. In the previous rulemaking on Enhancing Passenger Protections, without counting the preparation for the NPRM (such as the ANPRM), the Department spent 12 months analyzing the comments before issuing a final rule. (74 Fed. Reg. 68983, December 30, 2009). Just as the Department needed adequate time to conduct the rulemaking, the carriers need adequate time to implement the four aspects of the rule that are the most complex. The carriers are preparing to make the required changes to their syst ems and programs, but they have quickly realized that the effective dates in the final rule are not practical and that those dates do not take into consideration the significant IT effort involved. 3



### Finally, the Department itself has acknowledged that there are issues requiring clarification if the carriers are going to successfully comply with the new regulations. Specifically, the Department has already arranged two separate stakeholder meetings on July 7 and 8 and July 21 and 22 in which it will ans wer questions and provide guidance. The Department must give carriers enough time to implement the newly clarified provisions.

I. Part 250 Denied Boarding Compensation

The Department made multiple amend ments to Part 250 , including:

 A carrier offering free or reduced rate transportation to volunteers must disclose all material restrictions to the transportation before the pass enger accepts the carrier ‟s offer

 The maximum amount of denied boarding compensation was increased from $400/$800 to $650/$1350

 The m inimum required percentage of compensation was increased from 200% of the fare in all
circumstances to 200% or 400% depending on the circumstances

 The value of transportation offered in lieu of DBC cash must exclude any fees for using the transportation an d the carrier must disclose all material restrictions to the passenger

 DBC also applies to zero ticket fares

 Carriers must refund all unused ancillary fees in a DBC situation

 Written DBC notices that carriers must give to passengers have changed to reflect the new requirements described above

Implementation of these requirements will take more than the 120 days provided by the final rule. Each covered U.S. and foreign carrier will have to incorporate these changes into its company policies, procedures, and training programs and will require substantial systems changes and programming

. These

3 We note the Department based the 120 day ef fective date based on its experience with the final rule issued in December 2009. However, we ask the Department to reconsider its effective date decision in this rule because the four areas identified in this request are more complex to implement than th e 2009 final rule and require substantial IT changes.

### 3

efforts include purchasing, creating, installing and testing enhancements and upgrades to existing
systems

. E nsuring that every company station and office impacted by these changes is aware of and trained on these fundamental changes to DBC will take a significant amount of time. Changes will have

to be made to company websites, company policies and training materials, and new written notices to

consumers will have to be printed and distributed to all stations. In addition, many airport staff at all
stations will have to be trained not only on the new DBC amounts but also on providing notice of material
restrictions on DBC transportation compensation offers at the g ate

.

Based on a survey of carriers

, this project will take each carrier between 1,000 hours and 1,500 hours to complete

. Moreover, much of this work cannot begin until after the questions have been answered and
the issues have been clarified

. Given all the changes in this area and all the work that must be done to

ensure that these changes are implemented properly, the Department should allow an additional 180 days
from the effective date for carriers to comply

.

II. Notice of baggage fees and other fees (399.85(c))

A new section in the regulations provides that U.S. and foreign carriers, their agents, or ticket agents selling air transportation in the U.S.

, must provide notice of baggage fees in all e

- ticket confirmations for air transportatio n to, from, or within the U.S. The regulation also stipulates that “fee information provided for a carry

- on bag and the first and second checked bag must be expressed as specific charges taking into account any factors (e.g. frequent flyer status, early purchase, and so forth) that affect those charges.” We note that while ATA members supported including clear notice of applicable baggage fee
information on e

- ticket confirmations, the most efficient means to provide current and accurate detailed information is by hyperlink to the carrier website where this information is posted. Carriers did not support, and the Department did not propose (and did not discuss in the preamble) any r equirement that
detailed baggage fee information individualized to a particular passenger be provided in e

- ticket or purchase screen confirmations

. This is a substantially different and more burdensome requirement, and it
is un necessary to provide full n otice of fees to consumers

. 4

The Department should clarify that carriers and ticket agents can comply with this new rule by providing

a clear notice of applicable baggage fees in the e

- mail or purchase confirmation screen via hyperlink to a carrier webpag e that include s baggage fees and differentiates f ee levels by passe nger status

, without requir ing a set of fees particularized to an individual passenger. Simply put, a carrier

- created individualized statement of fees would not be as accurate as the Department may hope, because a passenger‟s status can change rapidly, if not instantly. These inaccuracies could come about in two ways. First, a passenger may purchase a ticket far enough in advance that by the date of travel, his/her status has changed. For example, the passenger may accept a carrier sponsored credit card or may reach a higher level frequent flyer status that lowers baggage fees from what appeared on the e

- ticket confirmation at the time a ticket was purchased. Second, at the time a passenger books a ticket, changes in the passenger ‟s status may not yet have been recorded by the carrier. For example, the carrier may not have been notified by the bank that the pas senger was approved for a branded credit card; or a partner airline of the carrier may not have advised the carrier that the passenger had earned additional frequent flyer miles. Providing

4 See 75 Fed. Reg. 32329, 32341.

### 4

a comprehensive schedule of fees in an e

- ticket confirmation or th rough a hyperlink to a carrier webpage will allow the passenger to easily look up the applicable fee and achieve the goal of ensuring that passengers have clear and accurate disclosure of all applicable baggage fees at the time of their ticket purchase. Ot her aspects of passenger status such as military status may be unknowable to the carrier until the passenger checks in.

We note that the new rule itself makes clear that this disclosure of detailed baggage fee information via hyperlink is adequate to ensu re that consumers reasonable notice of these fees. T he same “unfair and deceptive” standard in the statute , 49 U.S.C. § 41712, applies equally to carriers and travel agents

, and the new rule makes clear that providing baggage fee information via hyperlink to the carrier websites is adequate and not deceptive when the ticket is sold by a ticket agent. The same baggage fee notice requirements should apply equally when the sale is by the carrier itself

. Providing different baggage
notice fee standards for d ifferent methods of purchase creates an uneven approach that will confuse passengers and treat regulated entities differently. Creating an individualized set of fees for each

passenger will be highly complex, very difficult to accomplish, and mislead passengers who become eligible for waiver of baggage fees (or whose eligibility for special pricing or waivers expires) after they purchase their ticket.

Finally, i f the Department seeks to requir e that carriers and agents provide on the e

- ticket confirmation bag policies and charges individualized to each passenger

, it should provide notice to the public of this proposed significant change, which does not appear in the NPRM, an d reopen the record to provide the opportunity to comment as required by the APA. As the Department has explained, “the APA notice

- and

comment process recognizes that changes may be made to the proposed rule based on the public comments received, but the courts have required that any changes made in the final rule be of a t ype that could have been reasonably anticipated by the public

– a logical outgrowth of the proposal. If the „logical outgrowth test‟ is not met, we would need to provide a second notice with an opportunity for public comment on the changes.”)

. 5 A fter a su pplemental NPRM and comment period , if the Department reaches the same result, the effective date should be no sooner than 180 days after the final rule is published

.

If the Department decides not to publish this change for comment, carriers request an additional 180 days
from the effective date to comply with this new rule to create a whole new individualized passenger service, as described above

.

III. Baggage allowance and fees (399.87)

In a nother new section, the Department also requires that the same baggage allowances and fees apply to

a passenger throughout an i tinerary that originates or ends in the U.S. In the case of a codeshare itinerary originating or ending in the U.S., the marketing carrier ‟s baggage allowances and fees must apply throughout the itinerary.

5 See http://regs.dot.gov/informalruleprocess.html ; See also Environmental Integrity Project v. EPA, 425 F.3 d 992, 996 (D.C. Cir. 2005) (“We have refused to allow agencies to use the rulemaking process to pull a surprise switcheroo on regulated entities.”).

### 5

As the Department notes in the preamble, IATA Resolution 302 is one initiative to apply consistent baggage rules across one itinerary. However, Res olution 302 conflicts with section 399.87 in that it requires the baggage policies of the “most significant carrier” to apply if there is a conflict between the marketing and operati ng carrier. While carriers are taking steps to comply with Res olution 302, it is a complex and time

- consuming

.

In almost all cases, carriers do not have the abil ity to access information on marketing carriers within check

- in systems and also cannot readily access each other‟s fee schedules ; indeed, no central repository for carrier baggage policies and fees currently exists. Under the new rules, there are hundred s of carriers and hundreds of fee policies that each carrier must be able to access and charge. 6 Each individual fee polic y has many rules and conditions that change regularly and take into account external factors such as frequent flyer status and carrie r credit card member ship. There is no comprehensive solution currently in place to exchange data between carriers about (1) general allowances and fee levels ; (2) which customers qualify for special fees or exemptions , or; (3) which passengers are elite

- level, U.S. military, have subscribed and paid for an annual baggage program etc. This information would be needed in order to accurately tailor baggage prices by passenger. I t will be extremely difficult for each individual ca rrier to build a solution that will account for hundreds of carrier policies and each set of conditions within each policy. Carriers are working with partners to develop an industry solution to comply with the Department‟s new rule but this will take time

. Based on a carrier survey this project will take in excess of 3,000 hours. The IATA Res olution 302 process was first adopted in 2008 and many carriers are still d eveloping solutions to comply. 7

If an extension is not granted, carriers may have to ma nually pull PNR data on an individual passenger basis to comply with the rule, just as a first step towards determining which carrier‟s policies and fees apply to a particular passenger. They would then have to determine bag prices and policies again by

p assenger. This process would be error prone

, confuse passengers

, and destroy the efficiencies of
automated self

- service check

- in, inclu ding popular remote check

- in systems

. 8 I nhibit ing automated
check

- in would drive passengers to lobby check

- in with carrier agents

, generating congestion in airports to the detriment of passengers

. Moreover, to automate this process

, carriers will have to develop baggage
fee solutions for multiple types and locations of check

- in, e.g. online, airport and hotel kiosks, and agents at the airport ; to the extent that carrier solutions are not completed by the deadline, certain baggage check options would have to be inhibited

. It is not feasible to create such a complex system, test, populate and update it with infor mation by the current deadline. We therefore request the Department to extend the
effective date of section 399.87 for an additional 180 days while industry continues to work on a solution.

IV. Full Fare Advertising (399.84(a))

This aspect of the final rule will require the greatest IT investment because carriers will be changing the way fares are displayed on their web sites

. 9 Carriers are preparing to substantially reprogram and

6 There is no industry standard in determining baggage fees, charges and allowances. Resolution 302 only states which carrier‟s allowances and charges apply. Without a defined standard, some airlines may file 1st and 2nd bag fees as handling fees on free baggage allowance where others may list 1st and 2nd bag fees as ancillary charges.

7 See http://www.iata. org/whatwedo/stb/Pages/abr.aspx

8 We note one source of confusion to passengers will be currency fluctuations that will result in odd charges in different currencies. The bag that cost $50 to check in the United States would be assessed at EUR 37.51, with exchange rate fluctuations.

9 We note that the Department has changed its position on full fare advertising after 25 years of permitting posting of air transportation prices separate from government taxes and fees. Carriers have relied on this government policy

### 6

reconfigure their online search engines to incorporate the new advertising requirem ents, both on revenue
and non

- revenue sites. 10 The carriers will also need to determine how to display fares in city pairs when
government charges and fees will be different for nonstop and connecting flights

, and where connecting flight fee s will vary dep ending on the intermediate airport(s). In addition, even if the carrier were to
advertise the lowest fare for any city pair it would have to constantly monitor availability to ensure the lowest priced fare on the nonstop flight is still available

.

Carriers have already spent, and continue to spend

, a substantial amount of time analyz ing the new rule to
determine all of the impacted areas, including multiple revenue and frequent flyer search engines, mobile device advertising, and print advertising. It will take thousands of hours for carriers to complete this

process. It will then take carriers several thousand additional hours to design changes that will meet the new requirements for each of these advertising portals. Coding and testing for onlin e advertising
solutions will take several thousand additional h ours. New online advertising changes will then have to be tested for compatibility with a carrier‟s highly integrated overall IT system, which will take another
several thousand hours. Finall y, carriers will have to ensure that each impacted business area within the company is ready to implement the new advertising changes, which will take another several thousand
hours. In total, it will take a minimum of 9 months to implement this new requi rement and it is likely to take 12 months given the commitment of resources to comply with other requirements of this final rule.

We can appreciate the Department‟s desire for quick implementation of the new final rule. But we respectfully submit t hat in order to ensure a smooth transition to the new system of fare displays, it is necessary to give carriers adequate time to make the changes without disruption to the booking engines.

The Department should extend the effective date for both print and online advertising so that consumers
receive compliant and consistent advertising of fare s through all advertising channels. In order to create, modify, test, and implement these changes carriers would need a t least a n additional 180 days. The Departmen t‟s advertising rules have been in place for a quarter of a century and reaffirmed many times,
and carriers have spent tremendous resources and built complex advertising systems based on decades of past practice. This requested extension request is minimal in the context of the effort required

. 

### * * *

The new Department consumer regulatory requirements are broad in scope, and require many substantial changes in order for carriers to comply. As described herein, ma ny of the changes require carriers to expend significant time, effort, and money to re

- program and upgrade their technology systems. Carriers must carefully test these changes, as changes made to these

and built their advertising practices around it. Dismantling the current advertising system and reassembling it to meet the new standards will take multiple steps and will be difficult and time consuming. It requires changes not only to the way fa res are advertised but also revisions to the language accompanying those fares. At this point carriers are still determining how they can advertise prices in print and online that meet the new standard, and what additional revisions are needed to language they have used for many years.

10 We note the Department cited print advertising as the reason for an effective date in October 2011 (see 76 Fed. Reg. 23156

- 23157 ) , however, we have found that changes to online advertising will be as challenging as print advertising and therefore ask the Department to consider the complexity of online advertising as an additional reason to extend the effective date for full fare advertising

.

### 7

systems can ripple through other areas of the busines s creating unintended harmful side effects for not just carriers, but consumers and travelers as well.

Accordingly, we respectfully request that the Department extend the effective dates to the four
sections described herein for an additional 180 days

.

R espectfully submitted,

Douglas Mullen Roger Cohen Senior Attorney Regulatory Affairs President Air Transport Association of America, Inc. Regional Airline Association 1301 Pennsylvania Avenue, NW 2025 M Street, NW Washington, DC 20004 Washington, DC 20036 202

- 626

- 4000 (202) 367

- 1250 dmullen@airlines.org cohen@raa.org

Edward P. Faberman Executive Director Air Carrier Association of Amer ica 1776 K Street, NW Washington, DC 20006 (202) 719

- 7420 epfaberman@acaa1.com

June 7 , 2011