Enhancing Airline Passenger Protections:

Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)

Rules and Regulations

Pages 45181-45184

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-18903

DEPARTMENT OF TRANSPORTATION

Office of the Secretary 14 CFR Parts 244, 250, 253, 259 and 399

Docket No. DOT-OST-2010-0140

RIN No. 2105-AD92

Enhancing Airline Passenger Protections: Limited Delay of

Effective Date for Certain Provisions

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

(DOT).

ACTION: Final Rule, limited extension of effective date for certain provisions.

SUMMARY: The Department of Transportation is delaying the effective date for certain requirements adopted in an April 25, 2011 final rule on enhancing airline passenger protections. Specifically, the

Department is delaying the effective date from August 23, 2011 to

January 24, 2012, for requirements pertaining to baggage fees, post purchase price increases, flight status changes and holding a reservation without payment for twenty-four hours. The Department is also delaying the effective date from October 24, 2011 to January 24, 2012 for requirements pertaining to full fare advertising. The effective date remains August 23, 2011 for all the other requirements in the April 25, 2011 final rule, including the requirement not to permit an international flight to remain on the tarmac at a U.S. airport for more than four hours without allowing passengers to deplane, the requirement increasing the denied boarding compensation airlines must pay to passengers bumped from flights, and the requirement to disclose prominently all fees for optional aviation services on carriers' Web sites.

DATES: This rule is effective on July 28, 2011. The effective date of the final rule published at 76 FR 23110, April 25, 2011, continues to be August 23, 2011, except for the amendments relating to 14 CFR 399.84, 399.85(b) and (c), 399.87, 399.88, 399.89, 259.8, and 259.5(b)(4) which become effective on January 24, 2012.

FOR FURTHER INFORMATION CONTACT: Blane A. Workie, Deputy Assistant

General Counsel, 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), blane.workie@dot.gov (e-mail).

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SUPPLEMENTARY INFORMATION: On April 25, 2011, the Department of

Transportation published a final rule in the Federal Register (76 FR 23110), titled ``Enhancing Airline Passenger Protections,'' containing many new requirements to improve the air travel environment for consumers, expanding upon the improved passenger rights included in a rule published on December 30, 2009. More specifically, the April 25, 2011, rule (1) Increases the number of carriers that are required to adopt tarmac delay contingency plans and includes additional airports at which they must adhere to the plan's terms; (2) increases the number of carriers that are required to report tarmac delay information to the

Department; (3) expands the group of carriers that are required to adopt, follow, and audit customer service plans and establishes minimum standards for the subjects all carriers must cover in such plans; (4) adds carriers to those required to include their contingency plans and customer service plans on their Web sites; (5) increases the number of carriers that must respond to consumer complaints; (6) enhances protections afforded passengers in oversales situations, including increasing the denied boarding compensation airlines must pay to passengers bumped from flights; (7) strengthens, clarifies and codifies the Department's enforcement policies concerning air transportation price advertising practices; (8) requires carriers to notify consumers of optional fees related to air transportation and of increases in baggage fees; (9) prohibits post-purchase price increases; (10) requires carriers to provide passengers timely notice of flight status changes such as delays and cancellations; and (11) prohibits carriers from imposing unfair contract of carriage choice-of-forum provisions.

As published, the effective date of the rule is August 23, 2011, except for the full fare advertising amendments which become effective on

October 24, 2011.

We received requests from U.S. carrier associations, foreign carrier associations and a travel agent association to delay the effective date of certain provisions in this rule. The Air Transport

Association of America (ATA), the Regional Airline Association (RAA) and the Air Carrier Association of America (ACAA) requested that the

Department of Transportation delay by 180 days the compliance time for the full fare advertising amendments in 14 CFR 399.84, the denied boarding compensation amendments in 14 CFR part 250, the requirement to disclose baggage fees in e-ticket confirmations in 14 CFR 399.85(c), and the requirement in 14 CFR 399.87 for the same baggage allowances and fees to apply to a passenger throughout an itinerary. These U.S. carrier associations state that they have limited their request to the four provisions that require deployment of additional IT resources, development of new protocols and the training of many employees. The

National Air Carrier Association (NACA) joined the request to delay the effective date and stated that it also believes compliance cannot be achieved within the time contemplated by the regulation without undue cost to the airlines and confusion to the traveling public.

According to the U.S. carrier associations, it will take more than the time allotted by the final rule to comply with the amendments to the denied boarding compensation rule because of the need to make additional systems and programming changes and the need to ensure the appropriate offices and employees are aware of and trained on the changes to this rule. The carrier associations also ask for additional time to comply with the requirement to disclose baggage fees in e- ticket confirmations if detailed baggage fee information individualized to a particular passenger is required and if the notice of applicable baggage information must be in text form and a hyperlink is not allowed. In addition, the U.S. carrier associations assert that it is not possible to comply with the requirement to apply the same baggage allowances and fees to a passenger throughout an itinerary without an additional 180 days as no central repository for carrier baggage policies and fees currently exists. They note that carriers are working to develop an industry solution to comply with this requirement but more time is needed.

The U.S. carrier associations are particularly concerned about the full fare advertising requirements, which they contend they cannot meet by the published effective date of October 24, 2011. They state that this aspect of the final rule requires the greatest IT investment and that carriers are preparing to reprogram and reconfigure their online search engines to incorporate the new advertising requirements but that carriers would need at least an additional 180 days to create, modify and test these changes. The associations ask that the Department delay the effective date for not only online advertising but also print advertising so that consumers receive consistent advertising of fares through all advertising channels.

The foreign air carrier associations have indicated their strong support of the request by the U.S. carrier associations and have asked that the 180-day extension be expanded to cover all the requirements being imposed for the first time on non-U.S. airlines. These associations are the International Air Transport Association (IAT),

Association of Asia Pacific Airlines (AAPA), Association of European

Airlines (AEA), and Latin and Caribbean Air Transport Association

(ALTA). They have stated that they believe investments and changes are needed to meet the new DOT requirements. They also state that the ability of the non-U.S. airlines to meet these requirements in a timely fashion is impacted by constraints on existing operations, staffing, IT support, local laws and regulations, labor practices and resources.

In addition to the airlines, the American Society of Travel Agents

(ASTA) has requested an extension of the effective date of the final rule. ASTA requests that the Department delay the effective date of the requirement in section 399.85(b) to disclose baggage fee information on

Web sites when a fare quotation for a specific itinerary is selected by a consumer and the requirement in section 399.85(c) to disclose baggage fee information on all e-ticket confirmations. ASTA's request differs from the requests of the U.S. and foreign air carrier associations in that ASTA is not requesting a specific amount of additional time to implement the requirements. Rather, ASTA is asking that the Department defer the effective date of these two requirements until the Department concludes its upcoming rulemaking on disclosure of fees for ancillary services. ASTA, like the U.S. carriers, notes its uncertainty as to whether the requirement to provide specific information to passengers about baggage allowances and baggage fees means providing individualized information about those matters. ASTA also asserts that the two methods the rule describes for agents to provide baggage information to consumers are not feasible. It calls the first method

(providing a link to an airline Web site) ``an act of commercial suicide'' and believes the second method (referring consumers to its own site if it displays airlines' baggage fees) impractical because of the labor cost to achieve it initially and to monitor airline Web sites constantly for updates.

In addition to the requests to delay the effective date of the rule, we received a request from Allegiant Air and Spirit Airlines as well as Southwest Airlines to postpone or stay the effective

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date pending judicial review of various provisions in this regulation by the United States Court of Appeals for the District of Columbia

Circuit. In June, Allegiant and Spirit filed petitions for review before that court asserting that the rule unlawfully: (1) Ends the practice of permitting sellers of air transportation to exclude government taxes and fees from the advertised price; (2) prohibits the sale of nonrefundable tickets by requiring airlines to hold reservations at the quoted fare without payment or cancel without penalty for at least twenty-four hours after the reservation is made if the reservation is made one week or more prior to a flight's departure;

(3) prohibits post-purchase price increases, including increases in the price of ancillary products and services, after the initial ticket sale; (4) requires baggage fees to be disclosed on e-ticket confirmations; and (5) mandates notification of flight schedule changes. Spirit's and Allegiant's request to the Department to stay the rule pending judicial review covers all the specific provisions that are part of the litigation. Southwest is requesting that the Department stay the effective date of the new full fare advertising rule.

A few other organizations have also provided the Department their views on the requests to stay the rule and the requests to delay the effective date of the rule. The Consumer Travel Alliance (CTA) has expressed its opposition to any delay in implementation of the rulemaking. CTA appears particularly concerned about requests to delay the requirement to disclose baggage fee information to consumers. It notes that airlines have the means through the Airline Tariff

Publishing Company (ATPCO) to disclose all baggage fee information so that both airlines and ticket agents can easily disclose baggage fee information to consumers. The Airports Council International-North

America (ACI-NA) has also noted its concern with the recent filings requesting extensions to the effective date of the rule but states that it recognizes that the Department may determine that the implementation date for some portions of the regulations may need to be delayed. ACI-

NA does urge the Department to not delay the implementation date for

U.S. carriers to extend their tarmac delay plans to small and non-hub airports.

Similarly, an individual commenter who works in the travel industry stated that it may be appropriate to delay the effective date of certain provisions in the final rule such as the full fare advertising requirements but expressed his strong opposition to the blanket request for an extension of the effective date of all the consumer protection requirements in the rule. This individual identified the provisions pertaining to denied boarding compensation and baggage fees as ones that should not be delayed based on his belief that airlines can easily comply with these provisions and their importance to consumers.

After carefully considering all the requests and comments provided, the Department has decided to delay the effective date of the requirements pertaining to full fare advertising (section 399.84) by an additional three months to January 24, 2012, and delay the effective date of certain specific requirements pertaining to baggage fees

(sections 399.85(b) and (c) and 399.87), post-purchase price increases

(sections 399.88 and 399.89), flight status notifications (section 259.8) and holding a reservation without payment (section 259.5(b)(4)) to the same date. We are denying the request of U.S. carrier associations to delay the effective date of denied boarding compensation amendments and the request of the foreign carrier associations to delay the effective date of the entire rule.

The Department took a number of factors into consideration in deciding to delay certain provisions of the rule until January 24, 2011, including the fact that there are limited objections to the requests for an extension of time. We are persuaded that additional time is needed to comply with the full fare advertising amendments as they relate to online advertising as they may require the deployment of

IT resources, and to allow maximum flexibility to make alterations to

Web sites with minimal disruption. We also believe that we should apply the same effective date to print advertising so that consumers do not see different advertising displays in different media which could result in consumer confusion.

With regard to baggage fees, there appears to be some confusion regarding what the Department meant by the requirement in section 399.85 (b) that ``specific baggage fee information'' must be disclosed on Web sites when a fare quotation for a specific itinerary is selected by a consumer and by the requirement in section 399.85(c) that carriers must provide information on all e-ticket confirmations regarding the free baggage allowance and fee for a carry-on bag and the first and second checked bag ``as specific charges taking into account any factors (e.g., frequent flyer status, early purchase, and so forth) that affect those charges.'' We want to clarify that the rule does not require passenger-specific information concerning baggage allowances and baggage fees on e-ticket confirmations or on Web sites providing fare quotations. We used the term ``specific charges'' to ensure that the regulated entities understood that a range of fees would not be acceptable under the rule. In other words, carriers must provide specific information to consumers about all the factors that cause the fee for a carry-on bag or the first and second checked bag to vary so passengers can determine for themselves the fees that would apply to them. For example, it would not be sufficient for a carrier to state that the fee for the first checked bag ranges from $0 to $50. However, it would be acceptable if the carrier states that the fee for the first checked bag would be $0 for its elite frequent flyer passengers or those who purchased their ticket with a specified credit card, $25 for passengers who pay for baggage online, and $50 for those passengers who pay at the airport. Of course, carriers are free to provide individualized baggage charge information to passengers but this is not required by the rule.

Although individualized baggage fee information is not required by the final rule, the Department still sees merit in delaying the effective date of the requirements in Sec. 399.85(b) and (c) as the travel agencies need time to determine the method they will use to ensure that specific baggage fee information is available to their consumers. We are also persuaded that additional time is needed by the carriers as they are not permitted under the rule to provide the required notice of applicable baggage charges through a hyperlink.

However, we don't believe that it will be in the best interest of consumers to delay the effective date of these provisions until the

Department concludes its rulemaking on disclosure of ancillary fees as requested by ASTA.

With respect to the U.S. carrier associations request to delay the effective date of the provision requiring consistent baggage rules across an entire itinerary, the associations have adequately demonstrated the difficulties in applying the same baggage allowances and fees across an itinerary when they cannot readily access each other's fee schedules. We are encouraged that they are working towards an industry solution and have provided them additional time so that an industry standard can be developed. We have also decided to delay the effective date of the provisions pertaining to post purchase price increases, flight status changes and holding a reservation without payment for twenty-four hours to provide

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additional time to overcome any technical difficulties in implementing the rules.

In delaying the effective date for these requirements, the

Department is balancing the benefit of having these protections in place for consumers as soon as practical with the capability of airlines to comply with the additional requirements being imposed upon them in a reasonable timeframe. We believe the January 24, 2012, date will provide the airlines adequate time to comply with the requirements.

Regulatory Analyses and Notices

1. Administrative Procedure Act

   Section 553(b) of the Administrative Procedure Act (``APA'') generally requires an agency to publish notice of a proposed rule making in the Federal Register. This requirement does not apply, however, if the agency ``for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.'' Because August 23, 2011 (the effective date for the

   April 2011 final rule) is fast approaching, the Department finds good cause that this action delaying the effective date should take effect immediately. Today's final rule makes no substantive changes to the rule, but simply delays the effective date of certain provisions until

   January 24, 2012.

2. Executive Order 12866 (Regulatory Planning and Review) and DOT

   Regulatory Policies and Procedures

   This rulemaking action is not a significant regulatory action under

   Executive Order 12866 and the Department of Transportation's Regulatory

   Policies and Procedures. Accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).

3. Regulatory Flexibility Act

   Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5

   U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), DOT certifies that this action will not have a significant impact on a substantial number of small entities. This action imposes no duties or obligations on small entities.

4. Executive Order 13132 (Federalism)

   This action will not have a substantial direct effect on the

   States, on the relationship between the national Government and the

   States, or on the distribution of power and responsibilities among the various levels of government, and therefore will not have federalism implications.

5. Executive Order 13084

   This notice has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (``Consultation and

   Coordination with Indian Tribal Governments''). Because the provisions for which we are delaying the effective date would not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

6. Paperwork Reduction Act

   The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) requires that DOT consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of

   Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. DOT has determined that there are no new information collection requirements associated with this action. The action merely postpones the effective date of a regulatory provision whose paperwork impact has already been analyzed by the Department, and consequently no additional OMB approval is necessary.

7. 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 rulemaking.

   Issued this 20th day of July 2011, in Washington, DC.

   Susan Kurland,

   Assistant Secretary for Aviation and International Affairs.

   FR Doc. 2011-18903 Filed 7-27-11; 8:45 am

   BILLING CODE 4910-9X-P