BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

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In the matter of: :

:

Final Rule :

Enhancing Airline : Docket No. DOT-OST-2010-0140

Passenger Protections :

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REQUEST TO CLARIFY THE FINAL RULE AND TO EXTEND CERTAIN 

EFFECTIVE DATES

The Air Transport Association of America, Inc.,1the Regional 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 October 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 180 days for amendments to 14 C.F.R. Part 250 

(Denied Boarding Compensation), as well as, requirements on notice of baggage fees and other 

fees (14 C.F.R. § 399.85(c)), and baggage allowance and fees (14 C.F.R. § 399.87). These 

extensions would give carriers an 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 provisions.

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 these 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 comply with 

new rules when they created complicated 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., 

United 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; Atlantic 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 systems 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 answer 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 amendments to Part 250, including:

 A carrier offering free or reduced rate transportation to volunteers must disclose all material 

restrictions to the transportation before the passenger accepts the carrier‟s offer

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

$650/$1350

 The minimum 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 and 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 effective 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 the 2009 final rule and require substantial 

IT changes.
3

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

systems. Ensuring 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 gate. 

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 transportation 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 requirement 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 unnecessary to provide full notice 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 webpage that includes baggage fees and differentiates fee levels by passenger status, without

requiring 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 passenger 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 through 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. Other 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 ensure that consumers reasonable notice of these fees. The 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 different 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, if the Department seeks to require 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, and reopen the record to provide the

opportunity to comment as required by the APA. As the Department has explained, “the APA notice-andcomment 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 type 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

 After a supplemental 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 another new section, the Department also requires that the same baggage allowances and fees apply to 

a passenger throughout an itinerary 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.3d 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, Resolution 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 operating carrier. While carriers are taking steps to comply with Resolution 302, it is a 

complex and time-consuming.

In almost all cases, carriers do not have the ability 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 hundreds of carriers 

and hundreds of fee policies that each carrier must be able to access and charge.6 Each individual fee 

policy has many rules and conditions that change regularly and take into account external factors such as 

frequent flyer status and carrier credit card membership. 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. It will be extremely difficult for each individual carrier 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 Resolution 302 process was first adopted in 2008 and many carriers are still 

developing solutions to comply.7 

If an extension is not granted, carriers may have to manually 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 

passenger. This process would be error prone, confuse passengers, and destroy the efficiencies of 

automated self-service check-in, including popular remote check-in systems.

8

Inhibiting 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 information 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 requirements, 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 fees will vary depending 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 analyzing 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 online advertising 

solutions will take several thousand additional hours. 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. Finally, 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 requirement 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 that 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 fares through all advertising channels. In order to create, 

modify, test, and implement these changes carriers would need at least an additional 180 days. The 

Department‟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, many 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 fares 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 business 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.

Respectfully 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 America

1776 K Street, NW

Washington, DC 20006

(202) 719-7420

epfaberman@acaa1.com

June 7, 2011