DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
14 CFR PARTS 234, 253, 259, AND 399
Docket No. DOT-OST-2007-0022
RIN No. 2105-AD72
Enhancing Airline Passenger Protections
AGENCY: Office of the Secretary (OST), Department of Transportation (DOT).
ACTION: Final Rule
SUMMARY: The Department of Transportation is issuing a final rule to enhance airline passenger protections in the following ways: by requiring air carriers to adopt contingency plans for lengthy tarmac delays and to publish those plans on their websites; by requiring air carriers to respond to consumer problems; by deeming continued delays on a flight that is chronically late to be unfair and deceptive in violation of 49 U.S.C. §41712; by requiring air carriers to publish information on flight delays on their websites; and by requiring air carriers to adopt customer service plans, to publish those plans on their websites, and audit their own compliance with their plans. The Department took this action on its own initiative in response to the many instances when passengers have been subject to delays on the airport tarmac for lengthy periods and also in response to the high incidence of flight delays and other consumer problems.
DATES: This rule is effective [insert 120 days after date of publication in the Federal Register].
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 (email).
On November 15, 2007, the Department of Transportation (DOT or Department) issued an Advance Notice of Proposed Rulemaking (ANPRM) in Docket DOT-OST-2007-22 entitled “Enhancing Airline Passenger Protections.” This ANPRM was published in the Federal Register five days later. See “Department of Transportation, Office of the Secretary, 14 CFR Parts 234, 253, 259, and 399 [Docket No. DOT-OST-2007-0022], RIN No. 2105-AD72, 72 FR 65233 et seq. (November 20, 2007). We announced in the ANPRM that we were considering adopting or amending rules to address several concerns, including, among others, the problems consumers face when aircraft sit for hours on the airport tarmac. We observed that, beginning in December of 2006 and continuing through the early spring of 2007, weather problems had kept more than a few aircraft sitting for long hours on the tarmac, causing the passengers undue discomfort and inconvenience. We observed further that passengers were also being harmed by the high incidence of less extreme flight delays. We acknowledged that the industry and interested observers have attributed both the lengthy tarmac waits and many of the other flight delays to a number of factors besides weather, such as capacity and operational constraints, for example. We also noted that some of these issues are being addressed by the Federal Aviation Administration (FAA) in other contexts.
Citing our authority and responsibility under 49 U.S.C. §41712, in concert with 49 U.S.C. §§40101(a)(4), §40101(a)(9) and §41702, to protect consumers from unfair or deceptive practices and to ensure safe and adequate service in air transportation, we called for comment on seven tentative proposals intended to ameliorate difficulties that passengers experience without creating undue burdens for the carriers. The measures on which we sought comment in the ANPRM covered the following subjects: contingency plans for lengthy tarmac delays; carriers’ responses to consumer problems; chronically delayed flights; delay data on websites; complaint data on websites; reporting of on-time performance of international flights; and customer service plans.
We received approximately 200 comments in response to the ANPRM. Of these, 13 came from members of the industry—i.e., air carriers, air carrier associations, and other industry trade associations—and the rest came from consumers, consumer associations, and two U.S. Senators. In general, consumers and consumer associations maintained that the Department’s proposals did not go far enough, while carriers and carrier associations attributed the current problems mostly to factors beyond their control such as weather and the air traffic control system and tended to characterize the proposals as unnecessary and unduly burdensome. The travel agency associations generally expressed support for consumer protections.
On December 8, 2008, after reviewing and considering the comments on the ANPRM, we issued a Notice of Proposed Rulemaking (NPRM). See 73 FR 74586 (December 8, 2008). The NPRM covered the following subjects: contingency plans for lengthy tarmac delays; carriers’ responses to consumer problems; chronically delayed flights; reporting certain flight delay information; and customer service plans. It did not cover complaint data on web sites or reporting of on-time performance for international flights, both of which were raised in the ANPRM. We decided not to propose to require carriers to publish complaint data on their websites because we believe the data would be of little or no value to consumers since consumers already have access to a tabulation of airline complaints filed by passengers with the Department in the Air Travel Consumer Report. These complaints are a reliable indicator of the types of complaints about air travel filed by passengers with airlines. We also decided not to propose to require carriers to report on-time performance of international flights for a number of reasons, including concerns that a reporting requirement could make carriers less inclined to hold flights for inbound connections resulting in hardships for passengers in city-pairs with infrequent service.
The Department received 21 comments in response to the NPRM. Of these, 10 comments were from members of the industry and the rest came from consumers and consumer associations. On the consumer side, eight individuals filed comments as did three consumer advocacy organizations: Flyersrights.org (formerly the “Coalition for an Airline Passengers Bill of Rights” or CAPBOR), the Aviation Consumer Action Project (ACAP) and the Federation of State Public Interest Research Groups (U.S. PIRG). Of the industry commenters, two carriers (US Airways and ExpressJet Airways), and two airport authorities (Dallas-Fort Worth International Airport and The City of Atlanta Department of Aviation) filed comments. Three industry associations filed comments: the National Business Travel Association (NBTA), the Air Transport Association of America (ATA), and the Regional Airline Association (RAA). Two travel agency associations, the American Society of Travel Agents (ASTA) and the Interactive Travel Services Association (ITSA), also filed comments, as did the Airports Council International, North America (ACI-NA).
In general, the consumers and consumer associations maintain that the Department’s proposals do not go far enough and contend that additional regulatory measures are needed to better protect consumers. One of the consumer organizations also expressed disappointment that the Department eliminated two of the proposals, while industry commenters generally supported that decision. Overall, carriers and carrier associations continue to characterize some of the proposals as unnecessary and unduly burdensome. ATA also expressed a number of concerns with the Department’s preliminary regulatory evaluation and suggests changes are best made by addressing weather-related and air traffic control related issues. The airport authorities support carriers having a contingency plan and coordination of the plans at medium and large hub airports, while the travel agency associations expressed support for consumer protections, with one noting a concern with “unfunded mandates” on travel agents to address problems for which they are not the cause. The commenters’ positions that are germane to the specific issues raised in the NPRM are set forth below. The Department plans to seek comment on ways to further enhance protections afforded airline passengers in a forthcoming notice of proposed rulemaking by addressing the following areas: (1) 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 services are pre-selected for consumers at additional costs (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.
COMMENTS AND RESPONSES
Tarmac Delay Contingency Plans
1. Covered Entities
The NPRM: Under the proposed rule, a certificated or commuter air carrier1 that operates domestic scheduled passenger service or public charter service using any aircraft with 30 or more passenger seats2 would be required to develop and implement a contingency plan for lengthy tarmac delays. As proposed, it would apply to all of a covered U.S. carrier’s flights, both domestic and international, including those involving aircraft with fewer than 30 seats if a carrier operates any aircraft with 30 or more passenger seats. We asked for comments on whether the Department should limit this section’s applicability to carriers that operate large aircraft—i.e., aircraft originally designed to have a maximum passenger capacity of more than 60 seats ― and we asked proponents and opponents of this alternative to provide arguments and evidence in support of their positions.
Comments: We did not receive any comments from individual consumers or consumer groups regarding which carriers should be required to develop and implement contingency plans for lengthy tarmac delays. We did receive comments on this point from carriers, carrier associations, and airports.
RAA takes the position that, if the rule is adopted, it should apply only to those carriers that hold out services to the public, ticket passengers, offer reservation services and control decisions regarding delays and food and beverage service. RAA states that over 90 percent of passengers flying on regional aircraft travel on flights that are ticketed and handled by mainline carriers who schedule the flights, and that most regional carriers have no direct interaction with consumers in this regard. RAA also notes that these passengers’ contracts of carriage are with the major carrier, not the regional airline, and that a regional carrier follows the contingency plan of its mainline airline partner. RAA explains that regional airlines that operate under agreements with more than one network partner must in some cases comply with different contingency plans at the same airport. According to RAA, at times multiple network carrier contingency plans could be in effect and even in conflict on the same flight in instances where a regional airline operates a single flight for several different network carriers. As such, RAA contends that requiring a regional carrier to have its own plan would increase the conflicts and inconsistencies that could arise as it is not clear if the regional carrier’s own contingency plan would supersede the contracts of the carriers who marketed and sold the ticket to the consumer. RAA further asserts that as proposed the rule unfairly targets regional carriers, which do not make scheduling and/or delay decisions and are most often the first carriers to be subjected to FAA ground stops.
ExpressJet Airlines agrees with the comments submitted by RAA. It emphasizes that regional carriers operate under code-share agreements with mainline carriers and that those contracts dictate scheduling, delay, and cancellation decisions. It asserts that, as a result of a regional carrier having limited control over these decisions, the rule would impose unfair burdens on regional carriers. ExpressJet comments that, should the Department require carriers to have a contingency plan, all Part 121 and 135 carriers should have to abide by the regulations, not just carriers which operate aircraft having 30 or 60 seats or more, since, it is the carrier’s opinion, the rule as proposed discriminates against the larger of the small regional carriers.
ACI-NA opposes limiting the application of the rule to air carriers that operate aircraft with more than 60 seats and notes that the rule should extend to regional airlines as they serve the vast majority of airports. ASTA also opposes limiting the application of the rule to carriers that operate large aircraft and asserts that the proposal should be extended to all carriers, pointing out that the regional airlines carried 160 million passengers in 2007.
US Airways suggests that airports, as well as other service providers, should be held equally accountable as a fair way to share the burden among regulated entities, and that international operations should not be part of the proposed requirements. ATA, which strongly opposes any requirement for hard time limits for returning to a gate and/or deplaning passengers remotely, specifically requests that international flights be excluded from any hard time limits, (1) due to the difficulty associated with accommodating passengers if flights are cancelled, (2) because those flights are better equipped to keep passengers comfortable for longer periods of time, and (3) because the time, costs, and planning associated with those flights is much higher.
DOT Response: After fully considering the comments received, the Department maintains that it is reasonable to apply the requirement to any certificated or commuter U.S. air carrier that operates passenger service using any aircraft with a design capacity of 30 or more passenger seats. In determining to do so, we note that, according to RAA’s own statistics, regional airlines now carry one out of every five domestic air travelers in the United States. Moreover, most regional flights are operated by regional carriers affiliated with a major carrier via a code-share agreement, a fee-for-service arrangement, and/or an equity stake in the regional carrier. DOT statistics also demonstrate a substantial number of passengers are carried on flights operated by aircraft with 30 through 60 seats. According to data from the Department’s Bureau of Transportation Statistics (BTS), a total of 668,476,000 domestic passengers were transported in 2008, 96,310,000 of which were on flights using aircraft with 30 through 60 seats. The large number of passengers carried on such aircraft accompanied by the increase in the “branding” of those operations with the codes of major carriers has blurred the distinction between small-aircraft and large-aircraft service in the minds of many passengers. As such, it seems appropriate to extend the rule to these operations in order to better protect the majority of consumers.
In reaching this decision, we have concluded that we cannot agree with RAA’s reasoning that regional carriers should be treated differently than their mainline code-share partners and not be responsible to the passengers they transport on the vast majority of their operations because of their relationships to those partners. We recognize that the larger carrier’s personnel may provide pre-flight services and make most of the decisions from an operational standpoint on code-shared flights with a regional carrier. As we pointed out in the NPRM, however, even if the determination to cancel a flight or keep it on the tarmac is made by the mainline carrier or results from action by the FAA, it is the carrier operating the flight that has direct contact with the passengers on the aircraft during a tarmac delay and that remains directly responsible for serving them. Accordingly, we have decided to apply the rule to both carriers in a code-share arrangement. We expect that the mainline carriers and their regional code-share partners will collaborate on their contingency plans to come up with standards that suit both parties. When multiple network carrier contingency plans are effective on a single flight operated by a regional carrier, it would likely not be practical for the regional carrier to apply different standards to individuals on the same flight who bought their tickets from different mainline partners. Instead, we expect the regional carrier to choose to use the contingency plan that is most beneficial to all the passengers on that flight.
With regard to the international flights of U.S. carriers, while we understand the concerns about applying hard time limits on deplaning passengers on international flights because of the different environment in which those flights operate, we believe that it is still important to ensure that passengers on international flights are also afforded protection from unreasonably lengthy tarmac delays. Therefore, we have decided to apply the requirement to develop and implement a contingency plan for lengthy tarmac delays to both the domestic and international flights of each U.S. carrier operating any aircraft with 30 or more passenger seats. This requirement applies to U.S. carriers even if they operate only international scheduled or charter service.
However, we have arrived at more flexible requirements with regard to the content of the contingency plans for a U.S. carrier’s international flight (i.e., flexibility to determine the time limit to deplane passengers on tarmac) as compared to its domestic flights, recognizing that international flights operate less frequently than most domestic flights, potentially resulting in much greater harm to consumers if carriers cancel these international flights. Although carriers are free to establish their own tarmac delay time limits for international flights, and even to have different limits for different specified situations, these limits must be included in each carrier’s contingency plan ― they are not to be ad hoc decisions made during the course of a flight delay.
An international flight for purposes of this requirement is a nonstop flight segment that takes off in the United States and lands in another country, or vice-versa, exclusive of non-traffic technical stops. For example, if a U.S. carrier operates a direct flight Chicago-New York-Frankfurt, with some Chicago-originating passengers destined for New York and others destined for Frankfurt, and the aircraft experiences a tarmac delay in Chicago, then we would consider the tarmac delay to be on a domestic flight. This is because Chicago-New York is a domestic flight segment even though the final destination of the flight is Frankfurt, Germany. If, on the other hand, the aircraft only stops for refueling or a crew change in New York and the airline carries no Chicago-New York traffic, then we would consider the tarmac delay in Chicago to be a tarmac delay on an international flight.
We have decided against applying this requirement to carriers that operate using only aircraft with fewer than 30 seats because these entities carry a very small percentage of passenger traffic and we are not aware of incidents of lengthy tarmac delays involving carriers that only operate aircraft of this size (i.e., carriers that exclusively operate aircraft with a design capacity of 29 passenger seats or less). We note that the requirement to develop and implement contingency plans applies to carriers who have any aircraft with 30 or more seats, meaning that it would apply to all aircraft of those carriers, including those with fewer than 30 seats.
2. Content of Contingency Plan
The NPRM: Under the NPRM, each plan would have been required to include at least the following: the maximum tarmac delay that the carrier would permit; the amount of time on the tarmac that would trigger the plan’s terms; an assurance of adequate food, water, lavatory facilities, and medical attention, if needed, while the aircraft remains on the tarmac; an assurance of sufficient resources to implement the plan; and an assurance that the plan has been coordinated with all of the airport authorities at medium and large hub U.S. airports served by the carrier. We specifically asked for comment on whether the Department should set a uniform standard for the time interval that would trigger the terms of carriers’ contingency plans and a time interval after which carriers would be required to allow passengers to deplane. If establishing a time interval was recommended, we asked commenters to propose specific amounts of time and explain why they believe those time intervals to be appropriate.
Comments: Consumer associations and individuals generally support a stronger proposal than that proposed by the Department. For example, Flyersrights.org continues to maintain that the Department should establish minimum standards for contingency plans through regulation and should also review and approve the plans rather than allow each carrier the leeway to set what it fears might be overly lax standards. Specifically, the organization requests that the Department set a “three hours plus” time limit for an aircraft to return to the gate and deplane passengers, if the pilot determines this can be accomplished safely. It also requests that in any rule proposed or adopted, we refer to “potable water” and “operable lavatories” rather than simply “water” and “lavatory facilities” respectively.
Other consumer associations concur with Flyersrights.org. ACAP asserts that this proposal is “an unlawful delegation of DOT authority and responsibility to regulate airlines in the public interest by delegating this function to the airlines themselves” and that the proposal will lead to a multiplicity of unenforceable “standards” and “plans” that will offer fewer passenger protections. ACAP also suggests three hours as the maximum interval before passengers are allowed to deplane and, without being specific, suggests payments should be made to passengers who are confined for longer periods of time.
Individual commenters make similar points. For example, they tend to think the Department should set minimum standards, particularly regarding the amount of time that triggers the provisions of the contingency plans and the maximum amount of time an aircraft can remain on the tarmac before the carrier must return the aircraft to a gate and allow passengers to deplane. Some comments also suggested specific times to trigger the terms of a carrier’s contingency plan and/or for passengers to be allowed to deplane. For example, one commenter suggested 1.5 hours and three hours, respectively.
The industry commenters expressed a different point of view. NBTA stated that it does not support DOT requiring carriers to develop contingency plans and specifically the content of those plans. It does support the recommendations issued by the Tarmac Delay Task Force, but does not believe plans should be required by regulation; rather, NBTA contends that airlines, under marketplace constraints, are more likely to resolve tarmac delay issues in a manner most beneficial to the largest number of passengers.
ATA agrees in principle that carriers should have contingency plans covering lengthy tarmac delays on domestic flights, provided that each air carrier is permitted to decide on the details of its own plan based on its own unique facilities, equipment, operating procedures, and network. ATA reports that carriers already have both general contingency plans and airport-specific contingency plans that reflect the diverse facilities, equipment and network of each carrier. ATA notes that the Tarmac Delay Task Force recommends coordination among air carriers, airports, and the appropriate government agencies, and supports coordinating contingency plans with airports, but notes that a carrier cannot force an airport to cooperate in that coordination. As such, ATA thinks this part of the proposed rule should not be adopted, but if it is, suggests that some changes are necessary to ensure, for example, that a carrier is not held responsible for the airport’s failure to provide services within its control or for an airport’s failure to coordinate with a carrier in executing a plan.
ATA continues to oppose any requirement for a set interval of time after which an aircraft must be returned to the gate, particularly on international flights, claiming that such a requirement would do passengers more harm than good and equate to artificial scheduling restrictions. Among the potential negative consequences ATA lists are potential conflicts with government agency directives governing safety or security that could require that passengers be kept on aircraft, and increased flight cancellations in any one place that could affect passengers further down the line. In addition, ATA suggests that, if the proposal is adopted, the Department should include an exception that exempts carriers from the rule if returning to the gate would conflict with orders of the FAA or other agencies (e.g. Customs & Border Protection), and notes, among other things, that in weather delay situations taxiway configurations are such that returning to the gate may not even be possible.
In general, RAA maintains that the rule requiring contingency plans should not be adopted because, it contends, the rule will not solve the current delay problem and the Department should instead focus on initiatives that increase the efficiency of the Air Traffic Control (ATC) system. Regarding the content of contingency plans, similar to ATA, RAA maintains that the Department should permit airlines to adopt their own plans that allow flexibility and reflect their own circumstances, capabilities, and passenger service standards. RAA also asserts that the proposed requirement of providing “adequate” food and water is unreasonable and impracticable for regional airlines because most regional airlines have no catering facilities and do not have storage room on smaller aircraft for contingency supplies. RAA further states that regional airlines serve small community airports that do not have vendors or facilities from which the airlines could readily obtain supplies of food and water.
Similar to comments of the airline associations, US Airways believes that a rule will not reduce tarmac delays, as those delays occur due to circumstances outside a carrier’s control (i.e. weather, ATC system, etc.), and states that it already has a plan in place that addresses how to handle a tarmac delay of longer than one hour. US Airways states that a carrier should not be mandated to return to the gate at a fixed time, rather this decision should be left to carrier expertise, and that forcing an aircraft to return to the gate at a fixed time may lead to more flight cancellations. Additionally, the carrier notes that it has improved its own performance based on pressure from market forces. ExpressJet Airlines, who also asserts that most delays are beyond the direct control of carriers, thinks that a DOT rule could have unintended consequences for the consumer, which could lead to increased flight cancellations.
Of the airports and airport authorities that commented on this proposal, Dallas-Fort Worth International Airport approves of the elements of the rule that require air carriers to (1) develop and implement contingency plans for lengthy tarmac delays, (2) include in their plan the maximum delay that will trigger the plan’s terms in order to provide adequate warning to service providers that may be called upon for support during the event, and (3) ensure that the plan has been coordinated with airport authorities at large and medium hub airports that the carrier serves. It also states that “coordination of each air carrier’s contingency plans with the airports they serve is an important part of this process to enable shared situational awareness and timely response to lengthy delay events in an effective manner.”
The City of Atlanta, Department of Aviation, supports the guidance as provided by the DOT Tarmac Delay Task Force, and the Department’s proposal for carriers to coordinate contingency plans for lengthy tarmac delays with medium and large hub airports. It states that 2 hours is an appropriate time to trigger the terms of a carrier’s contingency plan and agrees that passengers should be provided basic services as proposed by the Department. Finally, it states that carriers’ plans should provide for communication, coordination, and collaboration among airport operator, airlines, Federal agencies, and other service providers.
ACI-NA supports the proposal, in general. ACI-NA opines that DOT should not impose a maximum time limit for deplaning passengers during lengthy tarmac delays and that airport-specific plans should not be required, in order to give airlines flexibility, but it does support requiring carriers to post information regarding their plans at their ticketing and gate areas. ACI states that DOT should review the plans prior to their implementation and that airlines should coordinate their plans with all airports at which they provide scheduled or charter service, not just medium and large hub airports. ACI also suggests a template be developed that can be used to assist airlines and airports in addressing the appropriate elements for coordination.
As for the travel agency associations, ASTA strongly supports the notion of carriers adopting and complying with contingency plans and believes that the DOT should review the plans to ensure they contain specific promises that are enforceable. ASTA also supports the imposition of a single mandatory deplanement time limit, the three hours provided in the legislation introduced by Senators Boxer and Snowe and Representative Mike Thompson. However, in its initial comments, ASTA took a different position and opposed the federal government mandating a specific time after which passengers must be deplaned. Rather, it suggested allowing each carrier to adopt its own time limits for each requirement, and requiring carriers to publish their policies in print ads and on their websites. ITSA did not comment on this proposal.