[Federal Register: December 8, 2008 (Volume 73, Number 236)]
[Proposed Rules]
[Page 74585-74603]
[DOCID:fr08de08-20]

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Part II

Department of Transportation

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14 CFR Parts 234, 259, and 399

Enhancing Airline Passenger Protections; Proposed Rule

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DEPARTMENT OF TRANSPORTATION

 Office of the Secretary

14 CFR Parts 234, 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: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Department of Transportation seeks comment on rules it is
proposing to enhance airline passenger protections in the following
ways: by requiring air carriers to adopt contingency plans for lengthy
tarmac delays and incorporate them in their contracts of carriage, by
requiring air carriers to respond to consumer problems, by deeming the
continued operation of 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 Web sites,
and by requiring air carriers to adopt customer service plans,
incorporate these into their contracts of carriage, and audit their own
compliance with their plans. The Department takes this action on its
own initiative in response to the many recent instances when passengers
have been subject to waits on airport tarmacs for very long periods and
also in response to the ongoing high incidence of flight delays.

DATES: Comments should be filed by February 6, 2009. Late-filed
comments will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2007-0022 by any of the following methods:
    [cir] Federal eRulemaking Portal: go to http://www.regulations.gov
and follow the online instructions for submitting written comments. A
standard form has been created for those who wish to use it in
submitting comments.
    [cir] Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC
20590-0001.
    [cir] Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal Holidays.
    [cir] Fax:<PHONE_NUMBER>.
    Instructions: We strongly encourage you to use the standard form to
submit comments. To access the form, go to http://www.regulations.gov
and use the SEARCH DOCUMENTS field provided to input the docket number
for this rulemaking. Then, you can search the index for ``Public
comment standard form.'' This form may then be moved to your computer
desktop, where you can type in your comments. You may then attach the
form when you submit your comments to the docket.
    Using the standard form will eliminate the need for you to type a
title, headings and questions since the form identifies the rulemaking
on which you are commenting, sets out the headings identified in the
SUPPLEMENTARY INFORMATION section of this document and lists the
questions that we have asked in the NPRM. It will also make it easier
for you, other commenters and the Department to easily search or sort
the comments submitted on the various issues in the rulemaking.
    If you do not use the standard form, you must include the agency
name and docket number DOT-OST-2007-0022 or the Regulatory
Identification Number (RIN) for the rulemaking at the beginning of your
comment. All comments received will be posted without change to http://
www.regulations.gov, including any personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment if submitted on behalf
of an association, a business, a labor union, etc.). You may review
DOT's complete Privacy Act statement in the Federal Register published
on April 11, 2000 (65 FR 19477-78), or you may visit http://
DocketsInfo.dot.gov.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.

FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie,
Office of the Assistant General Counsel for Aviation Enforcement and
Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave.,
SE., Washington, DC 20590,<PHONE_NUMBER> (phone),<PHONE_NUMBER> (fax),
<EMAIL_ADDRESS>or<EMAIL_ADDRESS>(e-mail).

SUPPLEMENTARY INFORMATION:

Background

    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 airport
tarmacs and the growing incidence of flight delays. 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 airport tarmacs, causing the stranded passengers undue
discomfort and inconvenience. We observed further that passengers were
also being harmed by the high incidence of less extreme flight delays:
In the first seven months of 2007, only 72.23 percent of flights
arrived on time, a lower percentage than for the same period in any of
the previous 12 years. (On-time arrival performance remains
problematic: It has improved only slightly since the issuance of the
ANPRM. For the first five months of 2008, it was the second worst for
these months in 14 years.) We acknowledged that the industry and
interested observers have attributed both the marathon tarmac waits and
the epidemic of flight delays to a number of factors besides weather,
such as capacity and operational constraints, for example. Some of
these are being addressed by the Federal Aviation Administration (FAA)
and certain airports in other contexts, but in the meantime, we decided
to explore the adoption of regulatory measures to address passengers'
concerns.
    Thus, citing our authority and responsibility under 49 U.S.C.
41712, in concert with 49 U.S.C. 40101(a)(4) and 40101(a)(9) and 49
U.S.C. 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 potential measures. We intended these
measures to ameliorate difficulties that passengers experience without
creating undue burdens for the carriers. We also posed questions for
commenters to answer and invited them

to suggest other measures to address the problems at issue.
    The measures proposed in the ANPRM covered the following subjects:
Contingency plans for lengthy tarmac delays, carriers' responses to
consumer problems, chronically delayed flights, delay data on Web
sites, complaint data on Web sites, reporting of on-time performance of
international flights, and customer service plans. The specifics of the
ANPRM's proposals are set forth below in the context of the measures we
are proposing--or not proposing--in this notice.
    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.
On the consumer side, some 131 individual members of the Coalition for
an Airline Passengers Bill of Rights (CAPBOR) filed identical or nearly
identical comments. CAPBOR's founder and spokesperson, Kate Hanni, also
filed comments with additional material on behalf of both CAPBOR and
the Aviation Consumer Action Project (ACAP). Another 34 unaffiliated
individuals filed comments, as did five other consumer associations:
ACAP, the National Business Travel Association (NBTA), the Federation
of State Public Interest Research Groups (US PIRG), Public Citizen, and
the National Consumers League.
    On the industry side, four carriers filed comments: Jet Airways
(India), Ltd., Delta Air Lines, Inc., China Eastern Airlines, and
Virgin Atlantic Airways, Ltd. Five carrier associations filed comments:
The Association of Asia Pacific Airlines (AAPA), the National Air
Carrier Association (NACA), the International Air Transport Association
(IATA), the Air Transport Association of America (ATA), and the Air
Carrier Association of America (ACAA). Two travel agency associations,
the American Society of Travel Agents (ASTA) and the Interactive Travel
Services Association (ITSA) also filed comments, as did the Airport
Council International, North America (ACI-NA).
    In general, the consumers and consumer associations maintained that
the Department's proposals do not go far enough, while the 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 expressed support for
consumer protections but not at their members' expense. The commenters'
positions that are germane to the issues raised in the ANPRM are set
forth below in the context of the measures we are proposing--or not
proposing--here.

Notice of Proposed Rulemaking

    Having considered the comments, we have decided to propose rules to
do the following: (1) Require air carriers to adopt contingency plans
for lengthy tarmac delays and to incorporate these plans in their
contracts of carriage, (2) require air carriers to respond to consumer
problems, (3) declare the operation of flights that remain chronically
delayed to be an unfair and deceptive practice and an unfair method of
competition, (4) require air carriers to publish delay data on their
Web sites, and (5) require air carriers to adopt customer service
plans, incorporate these in their contracts of carriage, and audit
their adherence to their plans. We have decided not to propose rules to
require air carriers to publish complaint data on their Web sites or to
report on-time performance of international flights. We are proposing
that the rules take effect 180 days after their publication.
    We invite all interested persons to comment on the proposals set
forth in this notice. Our final action will be based on the comments
and supporting evidence filed in this docket, on our own analysis and
regulatory evaluation, and on the ongoing work of our National Task
Force to Develop Model Contingency Plans to Deal with Lengthy Airline
On-Board Ground Delays (Tarmac Delay Task Force).

Proposals

1. Contingency Plans

    The ANPRM: We stated in the ANPRM that we were considering
requiring every certificated or commuter air carrier\1\ that operates
domestic scheduled passenger service using any aircraft with more than
30 passenger seats to develop and implement a contingency plan for
lengthy tarmac delays. (This plan would apply to all of the carrier's
flights, including those involving aircraft with 30 or fewer seats.)
Each covered carrier would be required to incorporate its plan in its
contract of carriage. This would enable passengers to sue for breach of
contract in the event that a carrier fails to adhere to its plan. Each
plan would have to include at least the following: The maximum tarmac
delay that the carrier will permit, the amount of time on the tarmac
that triggers the plan's terms, assurance of adequate food, water,
lavatory facilities, and medical attention, if needed, while the
aircraft remains on the tarmac, assurance of sufficient resources to
implement the plan, and assurance that the plan has been coordinated
with airport authorities at medium and large hub airports. Carriers
would also be required to make their complete contracts of carriage,
including contingency plans, available on their Web sites and to retain
for two years the following information for any ground delay that
either triggers their contingency plans or lasts at least four hours:
The length of the delay, the cause of the delay, and the actions taken
to minimize hardships for passengers. Our proposal did not contemplate
that the Department would review or approve the plans, but we stated
that the Department would consider failure to comply with any of the
above requirements--including implementing the plan as written--to be
an unfair and deceptive practice within the meaning of 49 U.S.C. 41712
and therefore subject to enforcement action.
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    \1\ A certificated air carrier is a U.S. direct air carrier that
holds a certificate issued under 49 U.S.C. 41102 to operate
passenger and/or cargo and mail service. Air taxi operators and
commuter air carriers operating under 14 CFR part 298 are exempted
from the certification requirements of 49 U.S.C. 41102. Some
carriers that would otherwise be eligible for the air taxi or
commuter exemption have opted to be certificated. An air taxi
operator is an air carrier that transports passengers or property
and is not a commuter air carrier as defined in 14 CFR part 298. A
commuter air carrier is an air taxi operator that carries passengers
on at least five round trips per week on at least one route between
two or more points according to a published flight schedule, using
small aircraft--i.e., aircraft originally designed with the capacity
for up to 60 passenger seats. See 14 CFR 298.2.
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    The Comments: CAPBOR and its members believe that this proposal
does not go far enough. They maintain that the Department should
establish minimum standards for contingency plans via regulation and
should also review and approve the plans rather than allow each carrier
the leeway to set what might well be overly lax standards. They also
maintain that the Department should monitor carriers' performance under
their plans. In their view, requiring carriers to incorporate their
contingency plans into their contracts of carriage will not protect
passengers, because as a practical matter these contracts cannot be
enforced. They do support publication of contingency plans in contracts
of carriage, however, and they argue that these plans should be
airport-specific to account for differences among airports. CAPBOR and
its members contend that because an airport's concessions are often
closed by the time that a flight is cancelled and passengers allowed to
deplane, we

should require airports to contract with their vendors to require that
concessions remain open during lengthy tarmac delays. They request that
in any rule proposed or adopted, we refer to ``potable water'' and
``operable lavatories'' rather than simply ``water'' and ``lavatory
facilities,'' respectively, and that we include a requirement for
adequate ventilation.
    Individual commenters make similar points. For example, they, too,
tend to oppose allowing the carriers to set their own standards,
particularly those involving the amount of time that triggers the
provisions of the contingency plans or the maximum amount of time on
the tarmac before the carrier must return to a gate and allow
passengers to deplane.
    Of the other consumer associations, ACAP concurs with CAPBOR, as
does U.S. PIRG. The latter suggests three hours as the maximum interval
before passengers are allowed to deplane. Also concurring with CAPBOR
are Public Citizen and the National Consumers League. NBTA has a
different point of view: It contends that customer service is by nature
market driven and that airlines are better situated than the government
to gauge both their customers' expectations and whether putative
protective measures afford benefits that outweigh their costs--costs
that will inevitably be passed on to the traveling public. NBTA does
not support requiring the carriers to develop and publish contingency
plans, but it believes that carriers that do not do so will provide
poorer service and thus lose business. What NBTA does support is a
requirement that carriers provide what it calls ``baseline passenger's
rights'' in whatever way they find most effective and cost efficient.
NBTA's list of these rights includes access to lavatory facilities,
access to water or other liquids, access to food for tarmac delays
lasting more than six hours, ways for passengers with medical
emergencies to request and receive medical attention, and cabin
temperature suitable for normal travel attire. NBTA also supports
requiring carriers to maintain records on lengthy tarmac delays as a
tool for the Department and others to use for analyzing airline
performance.
    Senators Barbara Boxer and Olympia Snowe take the position that the
Department should set minimum standards for protecting passengers
during lengthy tarmac delays. They believe that passengers should be
permitted to deplane after three hours on the tarmac.
    As for members of the industry, Delta, the sole carrier that
commented individually on this proposal, both supports the principle of
contingency plans for lengthy tarmac delays and states that it has one
already. Its plan does not have a time limit for tarmac delays,
however, because in Delta's judgment passengers fare better overall if
Delta retains the flexibility to respond to each situation as it deems
appropriate at the time. It contends, for example, that categorically
requiring the return of planes to the gate after a specified interval
would probably result in more flight cancellations than occur now.
Delta opposes mandating coordination with airport authorities in the
preparation of a contingency plan as ``unnecessary and potentially
unmanageable.'' Delta does not object to a record-retention
requirement, but it believes that two years' retention is too long and
that six months would suffice. It maintains that any such requirement
should be triggered by a uniform delay interval, set by the Department,
rather than be permitted to vary from carrier to carrier according to
disparate contingency plans; Delta itself believes four hours to be a
reasonable standard. Delta does not address whether the contingency
plans should be incorporated into the contracts of carriage.
    Of the carrier associations that commented on this proposal, NACA
agrees in principle that carriers should meet their passengers' needs
for food, water, lavatories, and, if necessary, medical attention
during extraordinary ground delays and that they should formulate
contingency plans for achieving this goal. NACA thinks that the
Department should work with the carriers to develop guidance on the
following questions: What kinds of food should passengers reasonably
expect during a long delay; what should be required on flights whose
aircraft have limited or no kitchen resources because no food service
is provided in normal circumstances; what should be expected of
carriers whose aircraft lack storage capability for additional
``emergency'' food and that have no catering facilities and no contract
for catering services at the airport at which they are delayed; and
what sort of medical attention and supplies can passengers reasonably
expect? NACA opposes inclusion of carriers' contingency plans in their
contracts of carriage, because the contracts are legally binding, so
passengers would have a private right of action against any carrier
that did not adhere to the provisions of its plan. ``Given the vagaries
of what would constitute appropriate emergency services,'' NACA states,
``and in the absence of a specific statutory mandate, we believe that
the inclusion of such provisions within the contract of carriage
exposes carriers to a myriad of unfounded lawsuits.'' In lieu of
incorporation of the contingency plans in the contracts of carriage,
NACA supports requiring that each carrier provide public notice of its
plan--for example, by including a notice on its Web site, by posting
notices at check-in counters, or by including a notice in its in-flight
magazine or in other materials available to passengers on the plane. It
suggests that the Department could require all carriers to provide it
with copies of their plans and then itself make the plans available to
the public. NACA's comments are endorsed by ACAA.
    ATA commented extensively on this proposal, and IATA supports ATA's
comments. ATA prefaced its comments by asserting that the Department
should focus on addressing the root causes of delays, which it
characterizes as ``insufficient airspace capacity and an operating
environment handcuffed by outdated radar technology,'' in addition to
calling for passenger protections. ATA agrees in principle that
carriers should have contingency plans for lengthy tarmac delays,
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 not only supports the Department's
proposal not to prescribe the terms of carriers' contingency plans, but
it particularly opposes a set interval of time after which an aircraft
must be returned to the gate, claiming that such a requirement would do
passengers more harm than good. Among the potential negative
consequences ATA lists are the required return to the gate when the
aircraft is next in line for takeoff, potential conflicts with
governmental orders during a pandemic that passengers be kept on
aircraft, and conservative decisions that result in wasting passenger,
aircraft, and crew time and affect downstream connecting passengers
adversely. ATA also argues that a strict requirement that aircraft
return to the gate after a set interval would stifle competition: It
reasons that carriers might otherwise choose alternate ways to address
the competing passenger interests and needs that arise during a lengthy
tarmac delay.
    ATA reports that carriers already have both general contingency
plans and airport-specific contingency plans. It states that carriers
do not intend to publish the latter, and it recommends that the
Department allow them flexibility in how they notify consumers

of the former. Most carriers, it assumes, would post their contingency
plans on their Web sites. ATA opposes requiring carriers to include
their contingency plans in their contracts of carriage and in fact
doubts that the Department has the authority to do this in the
aftermath of deregulation. As a practical matter, ATA claims, inclusion
of carriers' general contingency plans in their contracts of carriage
would require the deletion of technical and operational terms that do
not belong in a contract and the addition of qualifying statements so
that carriers would retain the flexibility to make different
operational decisions depending on the facts of the situation,
including extraordinary circumstances. ATA also opposes requiring
incorporation of contingency plans in carriers' contracts of carriage
because this would expose them to litigation under inconsistent
standards among the states and among foreign countries. It predicts
that standards would fluctuate as carriers took steps to minimize their
exposure. ATA opposes the proposed recordkeeping requirement as
redundant of other existing and proposed regulations.
    RAA prefaced its comments by asking the Department to keep in mind,
when proposing rules, what it characterizes as ``the unique
relationship between most regional airlines subject to the proposals *
* * and their passengers.'' RAA states that over 90 percent of its
members' passengers fly under ticketing, marketing, scheduling, and
passenger processing and handling arrangements that are controlled by
the major-carrier partners of RAA's members--in fact, these passengers'
contracts of carriage are with the major carrier, not the regional
airlines. RAA states further that while its members are responsible for
operating their flights safely and can cancel or divert them for
reasons of safety, most delays, diversions, and cancellations are
determined by the FAA or the regional airlines' major-carrier partners.
RAA opposes regulations that would burden its members vis-[agrave]-vis
the railroads and bus companies with which they compete for passengers.
    Regarding contingency plans, RAA asks the Department to let
airlines adopt plans that reflect their own circumstances,
capabilities, and passenger service standards. It asks the Department
to apply requirements for contingency plans and recordkeeping only to
the airline that has a contract of carriage with the passenger and also
to require contingency plans of ``other critical parties such as the
FAA and the airports.'' In RAA's view, requiring enforceable
contingency plans would be contrary to deregulation and as a practical
matter would prevent carriers from responding flexibly to the many
kinds of delays that occur. It states that because contingency planning
varies from airport to airport, requiring a contingency plan for each
airport to be published and enforced through the contract of carriage
would be both impracticable and burdensome. RAA opposes requiring
carriers to retain records on delayed flights, both as redundant of
existing requirements of the Department's Bureau of Transportation
Statistics and as a burden that would yield little if any public
benefit. RAA contends that its members are constrained not only by
their major-carrier partners' control over delay decisions and their
differing standards for passenger service but also by the capacity
constraints of their own aircraft--aircraft with limited capacity for
food, water, and lavatory facilities. If contingency plans are to be
required, RAA takes the position that they should only be required of
major carriers, with implementation to be arranged by the major carrier
and its regional airline partners on flights operated with aircraft
with more than 30 passenger seats. RAA opposes coverage of flights
operated with smaller aircraft.
    ACI-NA supports this proposal and states that it recently convened
a meeting of more than 100 officials from airports, airlines, passenger
organizations, and the federal government to develop an outline for a
contingency plan. Along with ``best practices'' in place at North
American airports, this plan will be provided to the Department's
Tarmac Delay Task Force.
    Of the travel agency associations, ASTA strongly favors requiring
carriers to adopt contingency plans and requiring the incorporation of
these plans in air carriers' contracts of carriage, but it believes
that the proposal in the ANPRM does not go far enough. ASTA implies,
without explanation, that even with the plans incorporated in the
contracts of carriage, they will not be enforceable unless the
Department reviews them. ASTA suggests that any rule that we adopt
``require very specific plans in the general mode of `if this happens,
we will take the following specific steps to assure proper care of
passengers.' '' ASTA also supports the recordkeeping requirement and
suggests that it be triggered by a delay of three hours. Also, ASTA
believes that carriers should be required to coordinate not only with
airport authorities at medium and large hub airports but with the
authorities at ``all primary airports.'' ITSA did not address this
proposal.
    Proposed Rule: We have decided to propose a rule along the lines
set forth in the ANPRM, and we invite comment from all interested
persons. Specifically, we propose to adopt a new rule, 14 CFR part 259,
which, among other things, would require any certificated or commuter
air carrier that operates domestic passenger service using any aircraft
with a design capacity of more than 30 passenger seats to develop a
contingency plan for long tarmac delays of scheduled and public charter
flights and to adhere to this plan's terms. This plan would apply to
all of the carrier's scheduled and public charter flights, including
those with aircraft having a design capacity of 30 or fewer seats. We
are not proposing that the rule cover single-entity charters and other
charters in which consumers have some bargaining leverage. The rule
would require each carrier to incorporate its contingency plan in its
contract of carriage. At a minimum, each plan must include the
following: The maximum tarmac delay that the carrier will permit, the
amount of time on the tarmac that will trigger the plan's terms, the
assurance of adequate food, water, and lavatory facilities, as well as
medical attention if needed, while the aircraft remains on the ground,
assurance of sufficient resources to implement the plan, and assurance
that the plan has been coordinated with airport authorities at medium
and large hub airports. The rule would require carriers to retain for
two years the following information on any on-ground delay that either
triggers their contingency plans or lasts at least four hours: The
length of the delay, the cause of the delay, and the steps taken to
minimize hardships for passengers (including providing food and water,
maintaining lavatories, and providing medical assistance). Failure to
do any of the above would be considered an unfair and deceptive
practice within the meaning of 49 U.S.C. 41712 and subject to
enforcement action, which could result in an order to cease and desist
as well as the imposition of civil penalties.
    In adopting this approach, we are tentatively rejecting the
suggestions of those consumers and groups who believe that the
Department should set minimum standards for the contingency plans
rather than allow each carrier to set its own standards based on its
particular circumstances. We continue to be of the tentative view based
on the information available to us that the Department should not
substitute its judgment in this area for that of the air carriers.
Nevertheless, we ask interested

persons to comment on whether any final rule that we may adopt should
include either or both of the following: A uniform standard for the
time interval that would trigger the terms of carriers' contingency
plans and a uniform standard for the time interval after which carriers
would be required to allow passengers to deplane. Commenters who
support the adoption of either or both requirements by rulemaking
should propose specific amounts of time and state why they believe
these intervals to be appropriate.
    As for incorporation of the contingency plans in carriers'
contracts of carriage, at this stage we are tentatively rejecting
consumers' arguments that this requirement would be ineffectual,
because no commenter has provided any support for its assertion that as
a practical matter the contracts of carriage cannot be enforced,
particularly where class-action litigation is available. We are also
tentatively rejecting carriers' arguments that we should not require
incorporation because this would subject them to the risk of
inconsistent standards among the various jurisdictions. This risk
exists already, since the carriers' contracts of carriage are
enforceable in state courts, and it is not increased with the addition
of new enforceable terms to these contracts. ATA has failed to
establish that we lack the authority to require that contingency plans
be incorporated in carriers' contracts of carriage. Our broad authority
under 49 U.S.C. 41712 to prohibit unfair and deceptive practices
encompasses this power. Indeed, 14 CFR part 253 shows that we have the
authority not only to require that contracts of carriage include
specified terms but also to regulate the means by which contract terms
are disclosed to consumers. We tentatively believe that in providing
for private enforcement of the plans as well as enforcement action by
the Department, we are creating a stronger incentive for carriers to
adhere to their plans. We invite interested persons to comment on the
implications of our creating a private right of action based on a
carrier's failure to follow the terms of its contingency plan.
Commenters should address the potential for multiple lawsuits by
classes as well as individual plaintiffs and the potential for
inconsistent judicial decisions among the various jurisdictions.
Commenters should also address whether and to what extent requiring the
incorporation of contingency plans in carriers' contracts of carriage
might weaken existing plans: That is, would the requirement encourage
carriers to exclude certain key terms from their plans in order to
avoid compromising their flexibility to deal with circumstances that
are both multifarious and unpredictable?
    As for the other points made by consumers, we are not proposing to
require the plans to be airport-specific, although carriers may choose
to adopt different standards for each airport in their plans. We are
not proposing here to require airports to provide for concessions to
remain open during lengthy tarmac delays, in part because we doubt that
we have the authority to do so. Our proposed rule does not refer to
``potable water'' or ``operable lavatories,'' because water and
lavatory facilities that are ``adequate'' are necessarily potable and
operable, respectively. Furthermore, the quality of drinking water on
aircraft is regulated by the Environmental Protection Agency (EPA). Our
proposed rule does not address ventilation, because we have no basis at
this stage to assess the adequacy of ventilation or to require
potentially significant modifications to aircraft.
    As for the other points made by carriers, those that rank
operational flexibility as their highest priority are free to adopt a
relatively long interval as their standard for returning a plane to the
gate and allowing passengers to deplane. Were a carrier to follow this
strategy only to see its market shares declining vis-[aacute]-vis its
competitors with shorter intervals in their contingency plans, the
carrier could amend its plan accordingly. Conversely, were a carrier to
decide that it wanted to amend its plan to allow itself more time
before returning the aircraft to the gate, the proposed rule provides
that the amended plan would only apply to flights that the carrier has
not yet offered for sale. This condition would protect consumers who
have booked flights under the impression that they will not be kept on
the tarmac more than, say, three hours from the unpleasant discovery
that by the time they actually fly the carrier has amended its
contingency plan to make that interval six hours.
    As for RAA's requests that we treat regional carriers and their
larger-carrier code-share partners differently, we have decided not to
do so at this stage in the rulemaking process. The rule that we are
proposing would apply to both partners in a code-share arrangement,
because even if the determination to cancel a flight or keep it on the
tarmac is made by the major carrier or results from action by the FAA,
it is the carrier operating the flight that remains directly
responsible for the passengers for the duration of the delay. We expect
that the major carriers and their regional code-share partners would
collaborate on their contingency plans to come up with standards that
suit both parties. We recognize that the regional carriers' plans would
reflect the limited size and capacity of their aircraft, and nothing in
the rule would bar a regional carrier from providing differently for
aircraft of different sizes.
    Nevertheless, while we are proposing here not to treat regional
carriers and larger carriers differently in the rule, we invite
interested persons to comment on whether, in the event that we adopt a
rule requiring contingency plans, we should limit its applicability to
carriers that operate large aircraft--i.e., aircraft originally
designed to have a maximum passenger capacity of more than 60 seats.
Proponents of this alternative approach should provide arguments and
evidence in support of their position, as should opponents.

2. Response to Consumer Problems

    The ANPRM: This proposal would require every certificated and
commuter air carrier that operates domestic scheduled passenger service
using any aircraft with a design capacity of more than 30 passenger
seats to address mounting consumer problems in the following ways: At
its system operations center and at each airport dispatch center,
designate an employee to be responsible for monitoring the effects of
flight delays, flight cancellations, and lengthy tarmac delays on
passengers and have input into decisions such as which flights are
cancelled and which are subject to the longest delays; on its Web site,
on all e-ticket confirmations, and, on request, at each ticket counter
and gate, inform consumers how to file a complaint with the carrier
(name of person or office, address, and telephone number); and send a
response to each consumer complaint received within 30 days of receipt.
    The Comments: CAPBOR and its members support the proposal and take
the position that carriers should be required to provide postal
addresses, telephone numbers, and e-mail addresses for customer
service, to acknowledge receipt of a complaint within 24 hours, to
resolve the complaint within 30 days of receiving it, and to notify the
Department if the passenger disagrees with the resolution. In addition,
CAPBOR calls for a requirement that consumers' complaints to the
carriers and complaints that the Department refers to the carriers be
combined and tabulated by category, with the results made available to
the public every month.
    Of the individual commenters, one agrees in principle with the
proposal

but voices concern over the cost of creating a position at each airport
for responding to complaints, reasoning that this would not affect
delays. Another voices concern that not all consumers have access to
the Internet and favors requiring travel agents to provide the
information on where to complain as well.
    Of the other consumer associations, ACAP and U.S. PIRG concur with
CAPBOR, Public Citizen concurs with CAPBOR and U.S. PIRG, and the
National Consumer League concurs with U.S. PIRG. NBTA, in contrast,
characterizes the proposal as micromanagement of airline customer
service. NBTA maintains that most if not all carriers have customer
service departments to address problems that arise and that poor
responses will affect consumers' business decisions.
    Delta is again the only carrier that commented individually on this
issue. Delta deems a regulation requiring the designation of carrier
employees responsible for what it characterizes as responding to and
managing extended ground delays and flight cancellations, and
prescribing such employees' locations, to be unnecessary, because such
a requirement is implicit if the Department mandates contingency plans.
Delta is concerned, moreover, that the proposal could work to undermine
carriers' ability to establish processes and management hierarchies
that ensure compliance with their contingency plans. Delta states that
it is committed to providing multiple customer-friendly channels for
complaints, and given the rapid development of communication
technologies, the carrier opposes making the use of particular channels
mandatory. Delta opposes a 30-day requirement for responding to
consumer complaints and posits 60 days as the current industry
standard. It cautions that in cases involving international travel,
particularly under code-sharing arrangements, ``coordinating the best
solution for the customer may require more than 30 days, especially if
a detailed investigation is needed.'' In addition, Delta is concerned
that seasonal surges in complaint volume or unexpected events could
mean financial hardship for a carrier that was required to increase
staffing temporarily to respond to all complaints within 30 days.
    Of the carrier associations, NACA states that its members already
monitor their flight operations at each airport and maintains that it
should be up to each carrier to decide if it wants to have this be one
employee's sole responsibility or include it with an employee's other
responsibilities. As for responding to complaints, NACA contends that
the Department should specify how complaints are to be lodged with the
carriers if it is going to require a response to each complaint.
Whether the complaint is handed to an airline agent at the airport,
submitted via e-mail, or sent by U.S. mail, the complainant should be
required to have proof that the carrier received the complaint. NACA
believes 30 days to be insufficient for responding to complaints but
would accept a 45-day requirement even though it prefers 60 days.
NACA's comments are endorsed by ACAA.
    ATA, with IATA's endorsement, supports requiring carriers to
respond to consumer problems and cites the voluntary commitments to do
so that a number of carriers have long had in place. ATA states that
its members agree that consumers should receive responses to their
complaints within 30 days when practicable, provided that by
``response'' the Department means notification that a complaint has
been received and is being reviewed and that by ``complaint'' the
Department means a passenger's complaint that raises customer service
concerns and that is submitted to the carrier's customer relations
department. It contends, however, that resolving complaints in only 30
days is difficult if not impossible. ATA supports the idea of
designating an employee at a carrier's systems operations center to
monitor the effects of flight delays and cancellations, provided that
the designee is a current employee who carries out other
responsibilities as well. It does not support requiring such an
employee at each airport dispatch center, claiming that this would
duplicate existing procedures and would strain carriers' resources
without lessening the problems that consumers face. ATA supports
allowing each carrier to choose the means by which it receives
complaints and responds to them, and it supports requiring carriers to
post information on contacts for complaints on their Web sites. It
opposes requiring this information on e-tickets as redundant, if the
information is on the carriers' Web sites, and burdensome, as carriers
would have to change the printing format for e-tickets to accommodate
the new information. Thus, ATA argues, the benefit of including
complaint information on e-tickets would outweigh the cost,
particularly in the absence of any evidence that users of e-tickets are
experiencing any difficulty in finding this information at present.
    RAA urges the Department to let carriers monitor the effects on
passengers of flight delays, flight cancellations, and lengthy tarmac
delays by whatever means they choose, given the wide variety of
circumstances among all carriers and between major and regional
carriers. It asserts that for its members, designating a single person
rather than making all employees responsible for taking passengers'
interests into account might be wasteful if not counterproductive given
how they may well have little if any control over decisions on delays,
diversions, and cancellations. As far as consumer complaints are
concerned, RAA asserts that the best means for giving contact
information may similarly vary among carriers and between major and
regional carriers. Tickets for RAA's members' code-share services are
typically sold and issued by their major-carrier partners, which often
staff the ticket counters and gates that consumers use as well. Under
these circumstances, RAA contends, its member carriers should not be
held responsible for telling consumers how to file complaints. RAA
states that when a major carrier receives a complaint that involves its
regional carrier partner, it coordinates with the latter to gather
facts so that it can respond to the consumer. Like ATA, RAA maintains
that 30 days is sufficient for acknowledging receipt of a complaint but
too little time for resolving one. Finally, RAA takes the position that
any requirements adopted should only apply to flights operated with
aircraft seating at least 30 passengers and not to flights operated
with smaller aircraft.
    ACI-NA supports this proposal but did not specifically address it.
    Of the travel agency associations, ASTA agrees in principle with
carriers' having an employee responsible for monitoring the effects of
schedule disruptions on passengers and having input in the decisions
made but doubts that this requires as many individuals as the proposal
contemplates given current communications technology. ASTA supports a
period of 30 days for responding substantively to consumer complaints.
It opposes allowing individual carriers to choose how complaints may be
filed, supporting instead a uniform requirement that complaints be
accepted by telephone, by U.S. mail, and by e-mail. ITSA did not
address this issue.
    Proposed Rule: We have decided to propose a rule along the lines
set forth in the ANPRM, and again we invite comment from all interested
persons. Specifically, our proposed new rule, 14 CFR part 259, includes
a requirement

that every certificated and commuter air carrier that operates
scheduled domestic passenger service using any aircraft with a design
capacity of more than 30 passenger seats respond to consumer problems
concerning its scheduled flights in three ways. First, at its systems
operations center and at each airport dispatch center, the carrier
would have to designate an employee who monitors the effects of flight
delays, flight cancellations, and lengthy tarmac delays on passengers
and has input into decisions on which flights to cancel and which to
delay the longest. We anticipate that these responsibilities would be
borne by current employees in addition to their other responsibilities;
we do not intend for any carrier to have to hire new employees to
comply with this regulation. Second, on its Web site, on all e-ticket
confirmations, and, upon request, at each ticket counter and gate, the
carrier would have to inform consumers how to file a complaint by
providing the name, address, telephone number, and e-mail or Web-form
address of the appropriate person or office. Carriers would be given
180 days to modify their Web sites and reformat their e-tickets before
this requirement would take effect. Third, for each complaint filed,
the carrier would have to acknowledge receipt to the consumer within 30
days and provide a substantive response within 60 days of receiving it.
By ``substantive response,'' we mean a response that addresses the
specific problems about which the consumer has complained. We are not
proposing that this provision cover public charter operations.
Complaints about public charter flights are filed not with the carrier
but with the Public Charter Operator; also, the carriers operating
these flights may not have employees at each airport that they serve.
    In adopting this approach, we are tentatively rejecting as
unrealistic CAPBOR's contention that we should require acknowledgement
of a complaint's receipt within 24 hours and a resolution of the
complaint within 30 days. The deadlines that we are proposing represent
standard practice in the industry and should allow carriers adequate
time to investigate and respond appropriately. We are addressing
carriers' opposition to hiring new employees to do work that is
redundant by clarifying that this is not our intent. We are tentatively
rejecting carriers' arguments that we should not make any particular
complaint channel mandatory, because we recognize that not all
consumers have access to the Internet. Some consumers traveling on e-
tickets purchased by a third party or by telephone may not have access
to the Internet themselves. We are tentatively rejecting ATA's
contention that requiring carriers to provide information on e-tickets
regarding how to complain is redundant and burdensome, because ATA has
not supported this contention. Under the proposed rule, an electronic
e-ticket confirmation or itinerary may include a link to the complaint
information in lieu of displaying the entire text. We invite ATA to
provide evidence on the costs to carriers of changing the format for e-
tickets to accommodate the new information in its comments on this
proposal. We are tentatively rejecting RAA's contention that its
members should not be required to tell consumers how to file
complaints. The rule by its terms would not require those regional
carriers that do not have Web sites or ticket counters or issue e-
tickets to provide information on filing complaints via these channels.
Passengers of these carriers who wish to complain should be able to
find out at the gate how to do so. RAA provides no basis for its
assertion that flights operated with aircraft seating fewer than 30
passengers should be exempt from this requirement.

3. Chronically Delayed Flights as Violations of 49 U.S.C. 41712

    The ANPRM: This proposal would codify the Department's 2007
enforcement policy on chronically delayed flights. The proposed new
text would define a chronically delayed flight as a flight by a covered
carrier that is operated at least 45 times in a calendar quarter and
arrives more than 15 minutes late more than 70 percent of the time. It
would define a covered carrier as one that reports on-time performance
data to the Department under 14 CFR part 234--i.e., a certificated U.S.
carrier that accounts for at least one percent of domestic scheduled
passenger revenue. The text would state that the Department considers a
chronically delayed flight to be an unfair and deceptive practice and
an unfair method of competition within the meaning of 49 U.S.C. 41712
if it is not corrected before the end of the second calendar quarter
following the one in which it is first chronically delayed.
    The Comments: CAPBOR supports this proposal but believes that
carriers should not be allowed a full six months to correct chronically
delayed flights and that the Department should automatically impose
civil penalties whenever a flight becomes chronically delayed in any
given quarter. CAPBOR also favors stricter standards than the ones that
we proposed: Specifically, that the rule should apply to flights
operated at least 24 times in a calendar quarter and that flights
should be deemed chronically late if they arrive at least 15 minutes
late more than 50 percent of the time. Ms. Hanni goes further and calls
for an even lower threshold of 40 percent. CAPBOR wants the Department
to make certain that carriers cannot evade the rule by changing the
number of a flight or changing its departure time by a few minutes. Ms.
Hanni adds that the Department should also address the problem of
chronically cancelled flights by regulation.
    None of the individual commenters addressed this proposal. Of the
other consumer associations, ACAP concurs with CAPBOR, as do U.S. PIRG,
Public Citizen, and the National Consumers League. NBTA alone supports
the proposal as drafted.
    Delta, the only carrier that commented individually on this issue,
takes the position that the Department should use the standard proposed
as a rebuttable presumption that a flight violates 49 U.S.C. 41712
rather than as a rule. In Delta's view, the Department must also
consider in each case whether the carrier has intended to deceive the
public or compete unfairly, because flights may fail to operate on time
for an extended period for many reasons that are beyond the carrier's
control. For example, if a flight performs erratically due to
unpredictable delays attributable to problems in the national air
traffic control system, the carrier cannot solve the problem by
extending the block time to make the flight operate on time more
consistently: This would make the flight arrive early when the system
functions properly, which in turn could cause disruptions and tarmac
delays at the destination airport. Another example would be a period of
harsh and unexpected weather arriving just when a carrier thought that
it had solved the problems that had made a flight late. Delta warns
that adopting a rigid standard for enforcement could result in
carriers' cancelling flights or arbitrarily retiming them
significantly, thus creating ``new'' flights, solely to avoid
enforcement action and even though they might otherwise have eventually
solved the scheduling problems. Delta warns that this approach is in
turn likely to cause passengers more inconvenience than would
continuing to try to address the real issues affecting a flight's
performance. In cases where the actual individual delays of a given
flight are relatively small--say 16 minutes, for example--passengers
fare better if the flight is maintained than if it is cancelled
altogether.

    Delta opposes expanding the definition of a chronically delayed
flight to include international flights to and from the United States.
It claims that any carrier's ability to adjust the timing of such
flights is limited by time zone issues and consumers' preference to
arrive at foreign destinations at particular times. Additionally,
foreign laws and airport authorities may limit a carrier's ability to
adjust schedules or address other operational factors that affect on-
time performance.
    In Delta's opinion, adopting the proposal as a rule would not
result in improvement of on-time performance, because carriers already
deem customer satisfaction to be critical to their success and are
therefore already doing whatever they can to meet their schedules.
Rather, Delta suggests, the government should use its resources to
improve the air traffic control system. The carrier concludes that in
any enforcement action, if a carrier can show that it has done all it
reasonably can to resolve the problem but that the underlying primary
cause is outside of its control, no sanction should be imposed.
    Of the carrier associations that commented, ATA, with IATA's
endorsement, agrees with Delta that the proposed standard should only
be a rebuttable presumption and not a rule, because in some
circumstances a carrier may have legitimate reasons for not being able
to comply. ATA supports the proposed definition of a chronically
delayed flight and prefers it to the standard proposed by the
Department's Inspector General (IG), i.e., flights arriving 30 minutes
late 40 percent of the time. ATA opposes expanding the definition to
include international flights.
    RAA does not oppose defining chronically delayed flights, but it
does oppose treating them as an unfair and deceptive practice subject
to enforcement action. RAA believes that the market will punish
carriers that fail to satisfy consumers and that the Department should
rely on market forces rather than enforcement. If the Department
persists nevertheless, RAA takes the position that the rule should
apply only to the carrier that sets the schedules and enters into
contracts of carriage with passengers when that carrier is not the
carrier operating the flights. In a similar vein, ACAA contends that
any rule on chronically delayed flights should apply only to the
largest carriers.
    ACI-NA states that chronically delayed flights can harm both
airports and their local communities economically by causing passengers
to lose confidence in an airport's operations. A smaller airport can
sustain greater harm, according to ACI-NA, because even though larger
airports may have more delayed flights, delayed flights at a smaller
airport may constitute a larger percentage of that airport's flights.
Also, delays at small airports whose flights feed a large carrier's hub
are more disruptive to passengers, because they cause more missed
connections. Regarding the proposal, ACI-NA maintains that a threshold
of 45 flight operations per calendar quarter, or approximately four
flights per week, will improperly exclude operations at many small
airports and thus fail to protect their passengers. Instead, ACI-NA
proposes a threshold of 12 flight operations per calendar quarter, or
one flight per week. ACI-NA also maintains that a late-arrival
threshold of more than 70 percent is too lenient to carriers and unfair
to consumers, and it proposes a threshold of 50 percent. Finally, ACI-
NA maintains that any rule should apply not only to the major and
national carriers that account for at least one percent of domestic
scheduled passenger revenue but also to the operations of regional or
feeder carriers that are affiliated with the larger carriers. ACI-NA
reasons that delays harm passengers just as much regardless of which
certificate holder operates the aircraft. Furthermore, with regional
carriers now transporting one of every four domestic passengers,
operating half of daily domestic flights, and providing the only
scheduled service to about 70 percent of U.S. airports, ACI-NA deems it
critical that their operations be covered by the rule.
    Of the travel agency associations, ASTA supports defining
chronically delayed flights as an unfair and deceptive practice but
suggests that the proposal can be improved in a number of ways. First,
the threshold should be set at 50 percent rather than 70 percent, which
will be a stronger incentive for airlines to adjust their schedules or
operations. Second, rather than permitting a carrier two calendar
quarters to correct a chronically delayed flight, correction should be
required within the first calendar quarter following the one in which
the flight became chronically delayed: ASTA maintains that three months
should usually suffice, and in cases where a carrier can show why it
should be granted additional time, the Department would have the
discretion to accommodate it. Third, ASTA supports applying this rule
to international scheduled passenger service by both U.S. and foreign
carriers. ITSA did not address this issue.
    Proposed Rule: With some modification to the details, we have
decided to propose a rule along the lines set forth in the ANPRM, and
we invite comments from all interested persons. Specifically, we
propose to amend 14 CFR 399.81 to define chronically delayed flights
and to specify that the Department considers flights that continue to
be chronically delayed for three consecutive calendar quarters to be an
unfair and deceptive practice and an unfair method of competition
within the meaning of 49 U.S.C. 41712 and subject to enforcement
action. This proposal defines a flight as chronically delayed if it is
operated at least 30 times in a calendar quarter and arrives more than
15 minutes late more than 70 percent of the time. As far as substitute
flights are concerned, all flights in a given city-pair market whose
scheduled departure times are within 30 minutes of the most frequently
occurring scheduled departure time would be considered to be one single
flight for purposes of assessing chronic delays. The revised proposal
reflects the Department's 2008 enforcement policy, and we tentatively
believe that it strikes the appropriate balance between consumers' need
to have reliable information about the real arrival time of a flight
and the carriers' inability to control or predict the weather and
certain other factors that can contribute to delays. In addition, for
the reasons set forth below in support of our decision not to propose a
rule requiring on-time reporting of international flights, we have also
decided against proposing to include foreign air transportation--i.e.,
international flights--in the definition of a chronically delayed
flight.
    We further invite interested persons to comment on an alternate
definition of a chronically late flight as one that is operated at
least 30 times in a calendar quarter and that arrives at least 30
minutes late at least 60 percent of the time. While this latter
approach could theoretically yield more benefits for consumers, we are
concerned that adopting this more stringent standard could lead to a
large number of flight cancellations and possibly even the elimination
of service to some communities. Also, we invite comment on whether we
should adopt an even stricter definition favored by the Department's
Inspector General: A flight that is cancelled or delayed 30 minutes or
more at least 40 percent of the time. The Inspector General calculated
in 2006 that using this definition would yield 5,369 chronically
delayed flights, a very high number (Follow-Up Review:

Performance of U.S. Airlines in Implementing Selected Provisions of the
Airline Customer Service Commitment, Report Number AV-2007-012, Issued
November 21, 2006, at page 5, footnote 8, and Attachment, page 17).
Because we are concerned that any consequential increase in enforcement
responsibilities might require the diversion of resources from other
aviation compliance activities, commenters should assess both the
benefits that this definition would engender and the costs that it
would entail. Of course, regardless of which definition we adopt, we
always have the authority to take enforcement action against flights
that do not meet the definition but that appear to involve unrealistic
scheduling and thus to constitute unfair and deceptive practices and
unfair methods of competition within the meaning of 49 U.S.C. 41712.
    For enforcement purposes, we are considering the option of not
treating a flight that remains chronically delayed for three
consecutive quarters as an unfair and deceptive practice and an unfair
method of competition if every prospective passenger using any
available channel of purchase is informed before buying a seat on that
flight that the flight is chronically delayed. There is no deception or
unfairness if a consumer who knows that a flight is chronically delayed
chooses it for travel nonetheless. We invite comment on this approach.
    We are tentatively rejecting as too draconian the consumers'
contentions that we should not allow a full six months for the
correction of a chronically delayed flight, that we should
automatically impose civil penalties in the calendar quarter when a
flight becomes chronically delayed, and that we should define
chronically delayed flights more broadly. As we have stated above, our
aim in proposing rules is to strike a balance between a passenger's
need to have the best possible information about the real arrival time
of a flight and the carriers' inability to control--or foresee--the
weather and various other factors that can cause delays. As for
chronically cancelled flights, the proposed rule would treat each
flight that is cancelled within seven days of departure as a delayed
flight for purposes of our analysis, but we decline at this time to
consider regulating chronically cancelled flights in other respects. We
are addressing consumers' concerns that carriers could evade the rule
by changing a flight's number or departure time by providing for the
treatment of substitute flights as the same flight.
    We are also tentatively rejecting the carriers' contention that we
should use the standard we adopt as a rebuttable presumption and not a
rule. Chronic delays are a serious problem that must be addressed, and
we consider the standard we are proposing here to be a reasonable and
feasible approach. We invite carriers to provide evidence to the
contrary in their comments on this proposal. Furthermore, as the
carriers know, the Department's enforcement procedures afford a
potential respondent ample opportunity to show extenuating or
mitigating circumstances and thus perhaps avoid penalty. For example,
our enforcement procedures are sufficiently flexible for us to take
account of the contract terms between a major carrier and its regional
code-share partner in any investigation of the latter's delayed
flights. As for ACAA's contention that any rule should apply only to
the largest carriers, while ACI-NA's comments attest to the importance
of addressing unrealistic scheduling by small and regional carriers, by
its terms the proposed rule would not apply to any carrier that does
not account for at least one percent of domestic scheduled passenger
revenue. These carriers already collect and report on-time performance
data. Their operations account for nearly 90 percent of all domestic
passenger enplanements. In our view, the substantial cost burden that
compliance with this proposal would impose on the smaller carriers,
which are not required to collect or report on-time performance data,
would outweigh any corresponding public benefits.

4. Delay Data on Carriers' and Other Sellers' Web Sites

    The ANPRM: This proposal would require both carriers that report
on-time performance data to the Department and online travel agencies
to include on their Web sites, at a point before the passenger selects
a flight for purchase, the following information on each listed
flight's performance during the previous month: The percentage of
arrivals that were on time, the percentage of arrivals that were more
than 30 minutes late, special highlighting of any flight that was late
more than 50 percent of the time, and the percentage of cancellations.
    The Comments: CAPBOR and its members support requiring carriers to
publish delay data on their Web sites for all flights but they assert
that flights should be defined as ``late'' if they arrive more than 15
minutes late, not 30 minutes as proposed. CAPBOR believes that
passengers will use this information to make better choices and that as
a consequence, carriers with more delayed flights will have a greater
incentive to correct their problems. CAPBOR takes the position that
carriers should be required to provide the information not only on
their Web sites before booking but also upon request to consumers who
book by telephone. CAPBOR also takes the position that third-party
reservations services should be required to provide this information as
well and that carriers ``should be required to provide open interfaces
for internet applications to access [these] data from their servers so
as not to impose undue costs [on] third parties.'' CAPBOR favors
applying this rule to the international flights of U.S. carriers and to
all domestic scheduled passenger service using aircraft with more than
30 passenger seats. Ms. Hanni adds that special highlighting should be
required for any flight that is late more than 40 percent of the time.
In her view, however, it would not be enough to require disclosure of
the performance information by telephone only upon request. Rather, she
maintains, we should require disclosure of information about both
chronically delayed and chronically cancelled flights whenever a
consumer is booking flights, be it on line, by telephone, or even in
person.
    Those individual commenters who addressed this issue agree that
disclosure of this information should be required for telephone sales
as well as internet sales. They also agree that the disclosure
requirement should apply to third-party reservations services.
    Of the other consumer associations, ACAP agrees with CAPBOR, as
does U.S. PIRG. Public Citizen concurs with U.S. PIRG and CAPBOR; the
National Consumers League concurs with U.S. PIRG. NBTA supports
requiring carriers to provide on-time performance information to
consumers ``so long as these requirements are aligned with performance
reports that carriers must file with DOT.''
    Senators Boxer and Snowe support this proposal.
    As for members of the industry, Delta, again the only carrier that
commented individually on this issue, agrees that giving interested
consumers information on historical on-time performance is good
customer service, but the carrier strongly objects to detailed
regulation of how this information is provided. In Delta's view,
carriers should be free to decide what to tell consumers and how. On
its Web site, Delta currently makes available the percentage of
operations that were on time for any flight for which it is required to
file on-time performance data with the Department. Once a consumer has
selected dates and

routes, the screen for flight availability and pricing provides access
to the following information via a click on the flight number:
equipment type, flight duration and distance, and on-time performance
for the previous month. In Delta's view, its practice meets consumers'
reasonable wishes for information on a flight's historical performance,
and the other categories of information that the Department proposes to
require are unnecessary. Delta also contends that requiring carriers to
change their Web sites to provide this additional information would
impose substantial costs without yielding offsetting benefits for
consumers. Unlike on-time performance data, Delta maintains, the data
needed to deliver the additional information are not already collected,
and Delta's existing software would not support collecting them or
displaying and highlighting the results.
    Delta also contends that the additional information that the
proposal would require is of little relevance to consumers when
purchasing air transportation. First, it reasons, a flight's
performance over a month does not predict its performance today,
tomorrow, or in three months, because reasons for delays can vary with
seasons and from week to week or day to day according to weather,
special events, or infrastructure problems (e.g., ATC system failures,
runway or taxiway closures). Delta states that it is constantly
identifying and analyzing flights that perform poorly and taking
measures to improve their performance by adjusting schedules and block
times, crew rotations, maintenance schedules, and other operational
factors. As a result, Delta states, a flight that performs poorly in
one month rarely performs poorly the next month, and it is even less
likely to perform poorly several months in the future. Second, Delta
states that it has monitored customer calls at the rate of about 5,000
per month and that between March and September of 2007 it did not
observe even one request for information on on-time performance.
    Delta maintains that the percentages of its arrivals that are more
than 30 minutes late and the percentage of its cancellations would be
``statistically insignificant'' (Delta estimates that just over ten
percent of its flights system wide arrive more than 30 minutes late and
states that in November of 2007 its completion rate was 99.3 percent),
but it claims that collecting the underlying data to comply with the
proposal would ``require substantial infrastructure modifications.''
Delta also maintains that about 40 percent of all cancellations result
from mechanical problems, which are not specific to flight, route, or
schedule, and therefore, providing this information during the booking
process would not alert consumers to problematic flights.
    Delta objects to requiring reservations agents to disclose on-time
performance at the time of booking without being asked. It states that
this would increase call times and call wait times and the costs
associated with each. The delays, it states, would irritate callers who
do not seek this information--i.e., in Delta's experience, most
callers. Consumers would not benefit, Delta contends, because historic
performance is a poor predictor of performance when the passenger plans
to fly.
    Of the carrier associations that commented on this proposal, ATA,
with IATA's support, favors the disclosure of delay information on
carriers' Web sites or via a link to a third-party Web site only when
consumers request this information. Stating that carriers already have
commercial incentives to provide information that is of interest to
consumers and that many already post on-time data on their Web sites,
ATA contends that requiring the disclosure of data that consumers
demand only occasionally would waste resources by increasing
programming costs and consuming valuable screen space. Such a
requirement would also waste the time of those consumers who do not
find the information useful.
    Like Delta, ATA strongly opposes requiring carriers' reservations
agents to disclose on-time information without being asked, because the
high cost of compliance would outweigh its speculative benefit.
Furthermore, ATA maintains, requiring carriers' reservations agents to
provide this information but not requiring the same of travel agents
would prejudice competition between the two channels by imposing the
added costs only on the carriers. ATA estimates the cost of compliance
at $0.50 per call, which would translate into an additional $25 million
per year for a carrier that receives over 50 million calls at its
reservations center just for agents' time and not including training
and programming costs. ATA also maintains that Computer Reservations
Systems' (CRSs') displays currently have no space to show the extra on-
time information covered by the proposal. The costs of modifying the
displays would be high but the benefits few, ATA argues, because
carriers' reservation centers account for only about 20 percent of all
bookings. This requirement would also waste the time of those
passengers who do not want the additional information. At the FAA's
valuation of passenger time at about $30 per hour, the waste could run
to tens of millions of dollars each year.
    ATA also maintains that requiring ``special highlighting'' of
flights would entail high costs for extensive reprogramming of internal
carrier software and extensive changes to carriers' Web sites but would
yield benefits that are dubious at best. ATA does not believe that the
proposed disclosures would give consumers better information or help
them make better choices, because historic performance data do not
predict future performance.
    RAA believes that this proposal would burden the reservation
process and Web sites by giving passengers information that they may
not want and by cluttering display screens so that they could not
accommodate as many flights as they do now. RAA agrees with Delta and
ATA that historic performance information may well have no predictive
value for a consumer's flight, given variations in weather, for
example. RAA argues that ``subjecting passengers to information
overload could only further confuse them, lengthen the time required
for booking a flight, substantially increase the workloads of
reservation agents and webmasters and lengthen customer wait times, all
to the detriment of the passenger.'' RAA maintains that passengers who
want information on their flights' past performance can find it in the
Department's reports and can also use this source to compare the
performance of flights in the same city-pair offered by competing
carriers. It states that most carriers' Web sites already offer
performance information on the previous and current day's flights, and
it opines that this is the information that consumers find most useful
as their travel days draw near. In addition, some historic performance
information is already available from reservations agents on request.
RAA suggests that carriers could offer those passengers who want
additional information a link to the Department's Web site, a solution
it deems superior to ``imposing unwanted information on travelers who
would rather expedite their bookings.'' Finally, RAA observes that
regional airlines that operate services for major carrier code-share
partners and that do not offer their own reservations and ticketing
services would not be covered by this proposal.
    ACI-NA supports the proposal but did not specifically address it.
    Of the travel agency associations, ASTA opposes this proposal as
unworkable and unhelpful to consumers. Noting that current

technology could not deliver on-time data for display by online travel
agencies until the first week of the month following the deadline for
reporting the data to the Department, which itself is 15 days after the
applicable reporting month, ASTA maintains that ``[w]hat happened on a
flight two months ago (on average) is not particularly instructive for
what flights will do today, especially if the seasonality factor is
considered.'' ASTA agrees with Delta and ATA that the costs of
reprogramming to comply with the proposal would be significant and that
the reprogramming could complicate the web displays of all online
sellers of air transportation. If the Department does adopt a rule
requiring disclosure of flights that are late more than a certain
percentage of time, ASTA believes that the percentage should be the
same as the percentage the Department uses to define flights that are
chronically delayed. In addition, ASTA believes that if the Department
uses enforcement aggressively against chronically late flights,
carriers may be expected to take steps to avoid enforcement, which in
turn would lower the incidence of late flights and make the proposed
rule superfluous.
    ITSA opposes this proposal, taking the position that the
publication of flight-specific on-time performance data should be left
to the marketplace. In ITSA's view, vendors should be allowed to
exercise their business judgment to determine the extent to which
consumers demand this information and whether and how to present it.
ITSA contends that consumers who use its members' services would not
hesitate to let these vendors know if they wanted to have the historic
performance data covered by the proposal when they book flights, and it
asserts that so far they have not done so, not even in surveys and
focus groups conducted by vendors. ITSA agrees with the other industry
parties who contend that historic flight data have little if any
predictive value. ITSA points out that the proposal's requirements
would affect not only online reservations services, including those of
the carriers, but also the CRSs on which all vendors rely. If, over
ITSA's objections, the Department does propose a rule requiring
disclosure of historic on-time performance, ITSA seeks clarification of
whether all, some, or none of the rule's provisions would apply to
third-party vendors as well as to the carriers. ITSA also raises the
issue of liability for performance data's accuracy and asks the
Department to specify that online vendors and CRSs rely entirely on
carriers for these data.
    Proposed Rule: We have decided to propose a rule mostly along the
lines set forth in the ANPRM, and we invite comment from all interested
persons. Specifically, we propose to amend 14 CFR 234.11 to require air
carriers that report on-time performance to publish the following
information on their web sites for each listed flight regarding its
performance during the latest reported month: the percentage of
arrivals that were on time (i.e., within 15 minutes of scheduled
arrival time), the percentage of arrivals that were more than 30
minutes late, with special highlighting if the flight was late more
than 50 percent of the time, and the percentage of cancellations.
Carriers will be able to comply with the rule in one of the following
ways: by showing the percentage of on-time arrivals on the initial
listing of flights and disclosing the remaining information on a later
page at some stage before the consumer buys a ticket, or by showing all
of the required information via a hyperlink on the page with the
initial listing of flights. To ensure that all carriers are posting
information covering the same month, we are proposing to require that
they load the information for the previous month into their internal
reservations systems between the 20th and the 23rd days of the current
month. (This latter requirement would also apply to Sec.  234.11(a),
the existing requirement that carriers disclose on-time performance
information during reservation calls, ticketing discussions or
transactions, or flight inquiries.) We invite comment from carriers on
whether they would find it more convenient to load the information
overnight on the third Saturday of the month than between the 20th and
23rd days as proposed.
    In adopting this approach, we are tentatively rejecting consumers'
request for disclosure of the percentage of arrivals that were more
than 15 minutes late and special highlighting of flights that are late
more than 40 percent of the time as excessive and unnecessary. We also
tentatively reject the contention that the same disclosures should be
required during telephone bookings. Section 234.11 already requires
disclosure of on-time performance when requested during live
discussions, transactions, or inquiries. We tentatively agree with the
carriers that the costs of providing this and other information to all
callers whether requested or not would be unduly burdensome and of
dubious benefit, especially given that the rule will give consumers
access to this information on the carriers' web sites. We are
tentatively rejecting the arguments that flight performance data are
irrelevant to consumers: the consumers' comments show otherwise. We
invite those who file comments in opposition to this proposal to
support their arguments with data on the costs of modifying their web
sites to comply with the proposed disclosure requirements.
    We have tentatively decided not to propose requiring on-line travel
agencies to post the same information. For one thing, the costs of
doing so would probably far outweigh the benefits for at least several
years. Our preliminary economic analysis indicates that the costs to
on-line travel agencies of complying with this proposed rule would run
to $53.4 million in the first year and that benefits to passengers in
this first year would amount to only $3.4 million. (Initial Regulatory
Impact Analysis of Proposed Rulemaking on Enhanced Airline Passenger
Protections at 56.) Applying the requirement only to carriers would
cost the carriers $1.9 million in the first year while conferring
benefits of $2.8 million on passengers. (Id. at 53.)
    We would also like commenters to address one additional question:
should we require covered carriers to provide the required information
for domestic code-share flights, and if so, should this requirement
apply to all domestic code-share flights or only to those operated by
carriers that report on-time performance?

5. Complaint Data on Carriers' Web Sites

    The ANPRM: This proposal would require certificated and commuter
carriers that operate domestic scheduled passenger service using any
aircraft with more than 30 passenger seats to publish complaint data on
their Web sites. Each carrier would have to disclose the number of
consumer complaints it has received within a defined time frame
concerning subjects such as tarmac delays, missed connections, and the
failure to provide amenities to passengers affected by a flight that is
delayed or canceled.
    The Comments: CAPBOR and its members support the proposal and favor
requiring carriers to publish complaint data on the following
categories: involuntary bumping, baggage issues, frequent flyer miles,
unaccompanied minors, delays, tarmac strandings, and disabilities. In
Ms. Hanni's opinion, the complaints submitted only to the Department
give an incomplete picture of the state of the industry.
    Of the individual commenters, one does not think that consumers
would use this information to make booking

decisions, because they base their decisions on price, availability,
and schedule. This commenter also does not think that the proposal
would lessen flight delays. Another individual agrees in general with
the proposal but is concerned that the same information should be
available to consumers who do not use the Internet.
    Of the other consumer associations, ACAP concurs with CAPBOR, as do
US PIRG, Public Citizen, and the National Consumers League. NBTA does
not support this proposal. It argues that despite the desirability of
transparency in general, the benefits to consumers of carriers'
highlighting their complaints would be dubious. NBTA also cautions that
many complaints are not sufficiently clear-cut to fall into simple
categories and that the proposal makes no distinction between problems
under carriers' control and problems resulting from uncontrollable
factors such as the weather.
    As for members of the industry, Delta, again the sole carrier to
comment individually, strongly opposes this proposal. First, it
maintains that carriers' communications on their Web sites are
protected by the First Amendment and that there are constitutional
restrictions on the government's ability to force carriers to
communicate content on their Web sites with which they disagree and
which does not show themselves in a positive light. Second, it asserts
that consumers who would like to know other consumers' views of any
carrier's customer service record can consult other sources, such as
the Department's complaint data and a variety of third-party Web sites.
Third, it contends, the proposal would be impossible to enforce,
because carriers would inevitably adopt disparate standards. Fourth, it
claims that the information would not be useful to consumers, because
the carriers would not be able to indicate whether complaints were
reasonable, how serious they were, or how they were handled.
    Of the carrier associations that commented on this proposal, NACA,
with ACAA's endorsement, opposes it. Like Delta, NACA believes that the
subjective coding of complaint letters would render the cumulative
numbers that would be published meaningless and devoid of context. Also
like Delta, NACA contends that the proposal represents overreaching by
the government. NACA states that the government does not force private
businesses in any other industry to disclose their customer service
results. NACA predicts, moreover, that the costs of collecting and
disseminating the complaint data would be particularly onerous for the
smaller carriers that do not file delay and baggage data with the
Department and are not included in the Department's Air Travel Consumer
Report.
    ATA, with IATA's support, also opposes this proposal, because
complaint data are already available from the Department and other
online sources, because the information would not be useful to
consumers, and because the Department provides no support for its
implicit assumption that complaint data reflect a carrier's actual
performance. ATA also maintains that compliance with the proposal would
be costly, and, like NACA, it asserts that in no other industry are
firms required to publish complaint data. In addition, ATA agrees with
Delta that the proposal may well run afoul of the First Amendment.
    RAA opposes this proposal as well, suggesting as an alternative
that the Department encourage carriers to inform consumers on their Web
sites of, and perhaps provide links to, the Department's Aviation
Consumer Protection Division's Web site. This approach, it states,
would give consumers standardized information that would be more
helpful to them and would avoid burdening consumers with additional
screen clutter and carriers with data storage and retrieval
requirements.
    ACI-NA supports this proposal but did not specifically address it.
    Of the travel agency associations, ASTA opposes this proposal for
the same reasons that it opposes requiring delay data on sellers' Web
sites, and it questions the value of complaint data to consumers. ITSA
opposes requiring online vendors to publish complaint data.
    No Proposal: We have decided not to propose a rule requiring the
publication of complaint data. Both the comments and our own further
consideration have persuaded us that these data would be of little or
no value to consumers. Specifically, consumers have access to a
tabulation of complaints filed with the Department in the Air Travel
Consumer Report, available on our Aviation Consumer Protection
Division's Web site (http://airconsumer.ost.dot.gov/). In our
experience with disability and discrimination complaints, consumers'
complaints to the Department provide a reliable indication both of the
types of complaints that individual carriers receive and, in relative
terms, of which carriers receive the most complaints. Also, although
carriers may receive 20 or 30 times as many complaints as the
Department does, the Department's consumer complaint data are not
subject to the disparate and subjective counting and coding that would
inevitably occur under the original proposal.

6. International Flights' On-Time Performance

    The ANPRM: This proposal would require U.S. carriers that report
on-time performance to the Department and the largest foreign carriers
to report on-time performance for international flights to and from the
United States.
    The Comments: CAPBOR and its members support a requirement that on-
time performance be reported for all domestic and international
scheduled passenger service using aircraft with more than 30 passenger
seats. ACAP, U.S. PIRG, Public Citizen, and the National Consumers
League concur. NBTA supports requiring U.S. and foreign carriers to
report on-time performance for international flights as ``a reasonable
mechanism to bring greater transparency to a growing market of
[increasing] significance to NBTA and its international partners.'' It
believes that the requirement should be comparable to that for domestic
flights and that its implementation should be cost effective.
    As for the industry commenters, of the carriers, Jet Airways
generally supports initiatives to protect passengers without imposing
unreasonable or unbalanced burdens on carriers, and it deems this
proposal to be reasonable. Jet Airways suggests that to determine ``the
largest foreign carriers'' the Department should consider the number of
weekly flights a foreign carrier operates to U.S. airports and the
concentration of international flights a single foreign carrier
operates at each international gateway: for example, any foreign
carrier that operates at least 70 flights a week to and from the United
States could be included, as could any foreign carrier that accounts
for at least 10 percent of scheduled international departures at a U.S.
gateway.
    Delta opposes the proposal. It believes on-time performance
information to be of little use to consumers as a predictor of any
given flight's performance on any given day, and it reports that
consumers almost never request it. Delta doubts that on-time
performance information for international flights will be useful to the
Department for enforcement purposes, particularly flights to the United
States, because factors that affect performance are often beyond a
carrier's control, and because carriers often have little leeway to
adjust schedules due to local airport restrictions, time zones, and
other features of international aviation. In addition, Delta contends

that it would be unfair to impose the proposed requirement on U.S.
carriers without holding foreign carriers to the same standards, which
in turn would pose a risk that foreign authorities would retaliate by
imposing burdensome requirements on U.S. carriers operating abroad,
thus raising the costs of international flights.
    China Eastern also opposes the proposal. It maintains that any
benefits to consumers would be far outweighed by the costs to foreign
carriers of devising the means to comply, especially those carriers
that do not operate multiple daily flights to the United States. China
Eastern also states that the information at issue is already available
to consumers on Web sites such as http://www.flightstats.com. China
Eastern cautions that if the Department adopts this proposal, other
countries could impose similar requirements, resulting in ``a global
patchwork of reporting requirements, imposing significant costs on
foreign carriers and their customers.'' If the Department does adopt
the proposal, China Eastern endorses Jet Airways' approach to defining
``the largest foreign carriers.'' China Eastern adds that if data are
collected, the reasons for delays, such as the holding of flights for
connecting passengers, weather, and airport congestion and traffic,
should be clearly stated in conjunction with the delay statistics.
    Virgin Atlantic opposes the proposal, stating that it is not
required to supply on-time performance data to the UK or the EU and
that producing such data and providing them to the Department would be
a significant regulatory burden with questionable benefits for
consumers. Virgin Atlantic contends that many factors affecting on-time
performance are beyond any carrier's control. Virgin Atlantic also
expresses concern over how to determine which foreign carriers are
``large,'' given that Virgin itself, like most foreign carriers, serves
most of its international destinations only once or twice per day.
    AAPA, a trade association of 17 major international carriers,
states that it needs clarification from the Department on how it would
use the on-time performance data, the level of detail the rule would
require, and who would have access to the data before it can assess the
costs involved with complying with this proposal. As for how to define
``large foreign airline,'' AAPA proposes that the definition be based
on flight frequency to and from the U.S. rather than on carrier
revenues.
    IATA opposes the proposal. It states that sufficient on-time
performance data are available through Web sites such as http://
www.flightstats.com to give consumers all the information they might
want or need. It maintains that any benefits the proposal might yield
would be outweighed by its costs. In IATA's experience, consumers of
international air transportation are swayed more by price and route
convenience than by on-time performance. IATA's foreign-carrier members
have not been required to report on-time performance data and would
therefore incur significant costs in setting up the infrastructure to
comply with the proposal. IATA contends that these costs would be
especially onerous for the many foreign carriers that serve the United
States infrequently. Like other industry commenters, IATA expresses
concern that the proposal could prompt other governments to establish
their own multifarious on-time performance reporting requirements, with
each such requirement imposing another new set of costs, and with all
of them together causing additional confusion for consumers. IATA notes
that carriers sometimes delay long-haul international flights to
accommodate delayed connecting passengers and cautions that the
proposal could discourage this practice if carriers had to consider the
consequences of poorer on-time performance results. This in turn would
harm consumers, because frequently a carrier will only operate one such
flight per day, so those passengers who missed it would have to stay
overnight at their departure gateway.
    ATA opposes the proposal for some of the same reasons as IATA.
First, carriers frequently hold international flights for passengers
who are delayed on inbound connecting flights, because an international
flight may be a carrier's only operation to the foreign destination for
that day or even for the week. These delays avoid stranding passengers,
and ATA contends that carriers should not be penalized by having to
report them. Second, ATA states that wind speeds tend to be stronger
over the oceans, causing significant delays when carriers have to fly
against prevailing winds. Third, ATA maintains that while equity and
fairness would require the Department to impose the same requirements
on foreign carriers as on U.S. carriers, the proposal would nonetheless
place U.S. carriers at a competitive disadvantage, since they report
all of their domestic flights as well as international flights, while
most foreign airlines would report only a few flights per day, and
``[t]his severe disparity in the data would result in skewed and
misleading information to consumers.'' Fourth, the proposal could
subject U.S. carriers to new foreign regulations country by country.
Fifth, the burden the proposal would impose on many foreign carriers
would outweigh any theoretical benefit to consumers. ATA asserts that
if the Department adopts the proposal over its objections, it should
take care to ensure that domestic on-time performance data and
international on-time performance data are kept separate in any source
seen by consumers.
    RAA opposes the proposal, fearing new reporting requirements on the
part of foreign governments and the associated cost burdens. If the
Department does adopt the proposal, however, RAA favors requiring
reports only of the largest airlines in the largest markets.
    ACI-NA supports the proposal but did not specifically address it.
    Of the travel agency associations, ITSA takes the position that any
reporting requirement for international flights ``should be carefully
harmonized with the home nations of any such carriers, or through any
appropriate multinational body, in advance, in order to avoid
[responsive] additional and potentially inconsistent requirements on
U.S. carriers'' which ``could lead to additional and possibly
inconsistent publishing requirements for [online vendors, CRSs,] and
others from multiple nations.'' ASTA did not address this issue.
    No proposal: We have decided for several reasons not to propose a
rule requiring the reporting of on-time performance for international
flights. First, as some carriers report, this information is already
available on the internet. Second, many international flights involve
slot-controlled airports, which means that the carriers operating them
already have an incentive to meet their schedules. Third, we do not
have sufficient evidence of a problem to justify the costs of reporting
on-time performance of international flights, and on the many
international routes that are only served by one carrier, access to on-
time performance data would not affect consumers' choices. Fourth, as
some carriers contend, a reporting requirement could make carriers less
inclined to hold flights for incoming connections, which would create
hardships for passengers in city-pairs served once a day or less.
Fifth, the operating environment for international flights is much less
homogeneous than that for domestic flights: For example, a variety of
transoceanic weather patterns and long stage lengths can affect
operating times. Finally, a reporting requirement, particularly one
based on

carrier size, could raise issues regarding carriers' ``fair and equal
opportunity to compete'' if the requirement differentiated between U.S.
and foreign carriers or among foreign carriers.

7. Carriers' Adherence to Customer Service Plans

    The ANPRM: This proposal would require certificated and commuter
carriers that operate domestic scheduled passenger service using any
aircraft with more than 30 passenger seats to audit their own adherence
to their customer service plans. We stated that in conjunction with
this proposal we are considering requiring any covered carrier that
does not already have a customer service plan in place to adopt one
and, and we called for comments on what provisions should be mandatory
in such plans.
    The Comments: CAPBOR and its members support the proposal and take
the position that carriers should be required to audit their customer
service plans every three years and submit the results of the audits to
the Department for approval.
    Of the two individuals who commented on this issue, one supports
the proposal and believes that carriers should all be required to have
customer service plans and that audits should be standardized. The
other also supports the proposal but believes that the Department
should review a percentage of the audits every year.
    Of the other consumer associations, ACAP endorses CAPBOR's comments
but adds its view that customer service plans are at present ``largely
illusory exercises in public relations rather than genuine,
enforceable, and measurable standards for customer service'' and
concludes that therefore self-auditing of these plans would be
meaningless. ACAP maintains that any auditors should be independent,
that they should use the standards required for financial audits, and
that the audits themselves should be ``reviewed and audited by [the
Department] on a statistically significant sample basis to determine
their effectiveness and validity.'' US PIRG concurs with CAPBOR; Public
Citizen concurs with US PIRG and CAPBOR, and the National Consumers
League concurs with US PIRG.
    NBTA doubts that self-audits of customer service plans would make
these plans credible, so it favors giving the Department's IG the
resources to conduct audits of carriers' customer service, whether or
not they have adopted specific plans, and to make the results public.
NBTA suggests that these audits be conducted every three years or more
and ``at similar times in the year to provide accurate comparative
information.''
    As for members of the industry, Delta, again the only carrier to
comment individually, opposes the proposal as unnecessary. It contends
that compliance with public customer service plans represents good
business, particularly given the highly competitive state of the
aviation marketplace at present. It contends that conducting a single,
unified audit of compliance may not make sense, and it states that it
has audit processes and controls in place within each of the business
units involved in meeting its own service commitments. Rather than
performing one comprehensive audit of all twelve points of its plan,
Delta runs continuous quality assurance and performance management
programs and has done so for many years. The carrier adapts these
programs as appropriate to achieve its customer service goals. Delta
therefore believes that a unified audit would be redundant and
unnecessary. Delta also contends that aside from compliance with
customer service plans being good business, a carrier's failure to
comply with its plan is subject to enforcement by the Department.
Audits are thus not necessary to give carriers a strong incentive to
comply.
    Of the carrier associations that addressed this issue, NACA, with
ACAA's endorsement, opposes independent auditing as an unnecessary
added cost. ATA, with IATA's support, objects to external auditing but
not to self-auditing. Also, ATA believes that the Department should
require all carriers to adopt customer service plans, but it opposes a
requirement that these plans be incorporated in carriers' contracts of
carriage on the same grounds as those on which it opposes requiring
incorporation in the contracts of carriage of contingency plans for
lengthy tarmac delays.
    RAA is opposed to requiring all carriers operating any aircraft
with more than 30 seats to adopt customer service plans reviewed by the
Department and to audit their own compliance with these plans. The
audits, it maintains, would impose significant expenses on the smaller
carriers that are least able to afford them. RAA contends that many of
the commitments in existing customer service plans would be
inappropriate if applied to carriers that neither market nor sell air
transportation directly to passengers and that do not enter into
contracts of carriage with them. Moreover, it states that the major
carriers that belong to ATA have already undertaken in their
``Customers First 12-Point Customer Service Commitment'' to ensure good
customer service by their code share partners.
    ACI-NA supports the proposal but did not specifically address it.
    Of the travel agency associations, ASTA asserts that carriers have
a history of not living up to their customer service commitments and
that therefore some form of auditing should be mandatory. It maintains,
however, that auditing assumes specific standards by which performance
can be empirically measured and tested, and ASTA does not see clearly
how this could work in the context of customer service commitments.
ASTA does not think that rulemaking is the appropriate means for
devising auditing standards. ITSA did not address this issue.
    Proposed Rule: We have decided to propose a rule along the lines
set forth in the ANPRM but with one significant addition, and again we
invite comment from all interested persons. Specifically, our proposed
new rule, 14 CFR part 259, would require every U.S. air carrier that
accounts for at least one percent of domestic scheduled passenger
revenue to adopt a customer service plan for its scheduled service and
any public charter flights that it sells directly to the public and to
adhere to this plan's terms, but unlike the proposal in the ANPRM, this
proposed rule would require carriers to incorporate their customer
service plans in their contracts of carriage. This incorporation would
enable passengers to sue for breach of contract in the event that a
carrier failed to adhere to its plan. We are proposing that this rule
include public charter flights because the operating carrier is the
party responsible for ensuring that charter passengers receive
necessary and promised services. The rule would require each carrier to
audit its own adherence to its plan annually and to make the results of
its audits available for the Department's review for two years. At a
minimum, each plan would have to address the same subjects as ATA's
Customers First Customer Service Commitment (http://www.airlines.org/
customerservice/passengers/Customers_First.htm): Offering the lowest
fare available, notifying consumers of known delays, cancellations, and
diversions, delivering baggage on time, allowing reservations to be
held or cancelled, providing prompt ticket refunds, properly
accommodating disabled and special-needs passengers, meeting customers'
essential needs during long on-aircraft delays, handling ``bumped''
passengers in cases of oversales with fairness and consistency,
disclosing travel itinerary, cancellation policies, frequent flyer
rules, and aircraft configuration,

ensuring good customer service from code-share partners, and improving
response to customer complaints. The provision on meeting customers'
essential needs during long on-aircraft delays would be required at
least to refer to the carrier's contingency plan for lengthy tarmac
delays. Failure to do any of the above would be considered an unfair
and deceptive practice within the meaning of 49 U.S.C. 41712 and
subject to enforcement action.
    In adopting this approach, we are tentatively rejecting consumers'
arguments that the Department should set standards for the audits,
review all audits, or even have them done by our IG. The comments do
not persuade us that we are more qualified than the carriers to carry
out audits. We are also tentatively rejecting carriers' arguments
against requiring audits. We are concerned that some carriers may not
be living up to their customer service commitments. By requiring the
relevant carriers to adopt plans, incorporate them in their contracts
of carriage, audit their own compliance, and make the results of their
audits available for us to review, we intend to afford consumers better
protection than they have experienced up to now. The plans would be
enforceable not only by the Department under 49 U.S.C. 41712 but also
by individual consumers or classes of consumers under state contract
law. The auditing requirement should bring further pressure to bear on
carriers to live up to their commitments. As in the case of the
contingency plans for lengthy tarmac delays, we invite interested
persons to comment on the implications of our creating a private right
of action here, particularly potential benefits to passengers,
potential negative consequences, and the costs to carriers. Would
requiring incorporation lead to carriers' weakening their existing
plans? We also invite those carriers that oppose self-auditing as
unduly burdensome to provide evidence of the costs that they
anticipate. We further invite comment on whether we should also require
carriers to describe in their customer service plans the services they
provide to mitigate passengers' inconvenience resulting from flight
cancellations and missed connections and to specify whether they
provide these services in all circumstances or only when the
cancellations and missed connections have been within their control.

8. Retroactive Applicability of Amendments to Contracts of Carriage

    Although we are not proposing specific regulatory language on
amendments to contracts of carriage here, we are considering adopting a
rule to prohibit carriers from retroactively applying any material
amendment to their contracts of carriage with significant negative
implications for consumers to people who have already bought tickets.
We would like commenters to address the implications of a carrier's
being held to different contract terms vis-[agrave]-vis different
passengers on the same flight if some bought their tickets before the
contract of carriage was amended and some afterwards.

9. Effective Date

    We propose that any final rules that we adopt take effect 180 days
after its publication in the Federal Register. We intend to afford
carriers sufficient time to adopt their plans, modify their computer
programs, and take other necessary steps to be able to comply with the
new requirements before we begin enforcing them. We invite comments on
whether 180 days is the appropriate interval for completing these
changes.

Regulatory Notices

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

    This action has been determined to be significant under Executive
Order 12866 and the Department of Transportation's Regulatory Policies
and Procedures. It has been reviewed by the Office of Management and
Budget under that Order. A preliminary discussion of the proposed
solutions to enhance airline passenger protections without creating
undue burdens for the carriers is presented above and in the
accompanying Regulatory Evaluation. On the cost side, we recognize that
many of the measures suggested in this NPRM would impose costs for both
implementation and operation on the entities that its proposed
requirements would cover. The benefits we seek to achieve entail
relieving consumers of the burdens they now face due to lengthy ground
delays, chronically delayed flights, and other problems discussed in
the NPRM. The benefits would be achieved by affording consumers
significantly more information than they have now about delayed and
cancelled flights and about how carriers will respond to their needs in
the event of lengthy ground delays. Making this information accessible
should not only alleviate consumers' difficulties during long delays
but also enable them to make better-informed choices when booking
flights. The Regulatory Evaluation has concluded that the benefits of
the proposal appear to exceed its costs. A copy of the Regulatory
Evaluation has been placed in the docket.

B. Executive Order 13132 (Federalism)

    This Notice of Proposed Rulemaking has been analyzed in accordance
with the principles and criteria contained in Executive Order 13132
(``Federalism''). This notice does not propose any regulation that has
substantial direct effects on the States, the relationship between the
national government and the States, or the distribution of power and
responsibilities among the various levels of government. It does not
propose any regulation that imposes substantial direct compliance costs
on State and local governments. It does not propose any regulation that
preempts state law, because states are already preempted from
regulating in this area under the Airline Deregulation Act, 49 U.S.C.
41713. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.

C. 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 none of the
options on which we are seeking comment would significantly or uniquely
affect the communities of the Indian tribal governments or impose
substantial direct compliance costs on them, the funding and
consultation requirements of Executive Order 13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have a
significant economic impact on a substantial number of small entities.
The regulatory initiatives discussed in this NPRM would have some
impact on some small entities, as is discussed in the Regulatory
Evaluation, but I certify that it would not have a significant economic
impact on a substantial number of small entities. We invite comment to
facilitate our assessment of the potential impact of these initiatives
on small entities.

E. Paperwork Reduction Act

    This NPRM proposes three new collections of information that would
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (Pub. L. 104-13, 49 U.S.C. 3501 et
seq.)

Under the Paperwork Reduction Act, before an agency submits a proposed
collection of information to OMB for approval, it must publish a
document in the Federal Register providing notice of and a 60-day
comment period on, and otherwise consult with members of the public and
affected agencies concerning, each proposed collection of information.
    This NPRM proposes three new collections of information. The first
is a requirement that certificated and commuter air carriers that
operate domestic scheduled passenger service using any aircraft with
more than 30 passenger seats retain for two years the following
information about any ground delay that either triggers their
contingency plans for lengthy tarmac delays or lasts at least four
hours: the length of the delay, the cause of the delay, and the actions
taken to minimize hardships for passengers. The Department plans to use
the information to investigate instances of long delays on the ground
and to identify any trends and patterns that may develop. The second is
a requirement that each air carrier that accounts for at least one
percent of scheduled domestic passenger revenue audit its own adherence
to its Customer Service Plan annually and retain the results for two
years. The Department plans to review the audits to monitor carriers'
compliance with their plans and take enforcement action when
appropriate. The third is a requirement that each air carrier that
accounts for at least one percent of scheduled domestic passenger
revenue and maintains a web site display information on each listed
flight's on-time performance for the previous month. This information
will help consumers to select their flights.
    For each of these information collections, the title, a description
of the respondents, and an estimate of the annual recordkeeping and
periodic reporting burden are set forth below:
    1. Requirement to retain for two years information about any ground
delay that triggers the respondent's contingency plan for lengthy
tarmac delays or lasts at least four hours.
    Respondents: Certificated and commuter air carriers that operate
domestic scheduled passenger service using any aircraft with more than
30 passenger seats.
    Estimated Annual Burden on Respondents: 0 to 9 hours and 50 minutes
(570 minutes) per year for each respondent. The estimate was calculated
by multiplying the estimated time to retain information about one
ground delay (15 minutes) by the total number of ground delay incidents
lasting at least four hours per respondent (0 to 38 incidents).
    Estimated Total Annual Burden: A maximum of 73 hours and 35 minutes
(4,401 minutes) for all respondents. The estimate was calculated by
multiplying the estimated time to retain information about one ground
delay (15 minutes) by the total number of ground delay incidents
lasting at least four hours in calendar year 2007 for the reporting
carriers (276) and adding the product of the estimated time to retain
information about one ground delay (15 minutes) multiplied by 6.3
percent of the total number of ground delay incidents lasting at least
four hours in calendar year 2007 for the reporting carriers (17.4).
(The reporting carriers accounted for 93.7 percent of domestic
scheduled passenger service, so we have assumed that nearly all of the
remaining 6.3 percent was provided by other certificated and commuter
carriers using aircraft with more than 30 passenger seats.)
    Frequency: 0 to 38 ground delay information sets to retain per year
for each respondent. (N.b. Some air carriers may not experience any
ground delay incident of at least four hours in a given year, while
some larger air carriers could experience as many as 38 in a given year
according to data on ground delays in calendar year 2007.)
    2. Requirement that each covered carrier retain for two years the
results of its annual self-audit of its compliance with its Customer
Service Plan.
    Respondents: Every U.S. air carrier that accounts for at least one
percent of scheduled domestic passenger revenue (18 carriers).
    Estimated Annual Burden on Respondents: 15 minutes per year for
each respondent. The estimate was calculated by multiplying the
estimated time to retain a copy of the carrier's self-audit of its
compliance with its Customer Service Plan by the number of audits per
carrier in a given year (1).
    Estimated Total Annual Burden: A maximum of 4 hours and 30 minutes
(270 minutes) for all respondents. The estimate was calculated by
multiplying the time in a given year for each carrier to retain a copy
of its self-audit of its compliance with its Customer Service Plan (15
minutes) by the total number of covered carriers (18).
    Frequency: One information set to retain per year for each
respondent.
    3. Requirement that each covered carrier display on its Web site,
at a point before the consumer selects a flight for purchase, the
following information for each listed flight regarding its on-time
performance during the last reported month: the percentage of arrivals
that were on time (with special highlighting if the flight was late
more than 50 percent of the time), the percentage of arrivals that were
more than 30 minutes late, and the percentage of flight cancellations.
    Respondents: Every U.S. carrier that accounts for at least one
percent of scheduled passenger revenue, maintains a Web site, and is
not already displaying the required information (15 carriers).
    Estimated Annual Burden on Respondents: 623 hours (37,380 minutes)
in the first year and no more than 12 hours (720 minutes) in subsequent
years for each respondent. The estimate for the first year was
calculated by adding the estimated number of hours per respondent for
developing its Web site for data posting (611 hours [36,660 minutes],
the quotient of a one-time programming cost of $20,000 divided by
$32.73, the median hourly wage for computer programmers) to the
estimated number of hours for management of data links (12 hours [720
minutes], estimated at one hour per month).
    Estimated total annual burden: 9,345 hours (560,700 minutes) in the
first year and no more than 180 hours (10,800 minutes) in subsequent
years for all respondents. The estimate for the first year was
calculated by multiplying the number of hours per respondent for
developing its Web site for data posting (611 hours) by the number of
covered carriers (15) and adding the product of the number of hours per
year for management of data links (12) and the number of covered
carriers (15). The estimate for subsequent years was calculated by
multiplying the number of hours per year for management of data links
(12) by the number of covered carriers (12).
    Frequency: Development of Web site for data posting: 1 time for
each respondent. Updating information for each flight listed on Web
site: 12 times per year (1 time per month) for each respondent.
    The Department invites interested persons to submit comments on any
aspect of each of these two information collections, including the
following: (1) The necessity and utility of the information collection,
(2) the accuracy of the estimate of the burden, (3) ways to enhance the
quality, utility, and clarity of the information to be collected, and
(4) ways to minimize the burden of collection without reducing the
quality of the collected information. Comments submitted in response to
this notice will be summarized or included, or both, in the request for
OMB approval of these information collections.

F. Unfunded Mandates Reform Act

    The Department has determined that the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply to this notice.

List of Subjects:

14 CFR Parts 234 and 259

    Air carriers, Consumer protection, Reporting and recordkeeping
requirements.

14 CFR Part 399

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

    For the reasons set forth in the preamble, the Department proposes
to amend title 14, chapter II, subchapters A and F as follows:

PART 234--[AMENDED]

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

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

    2. Section 234.11 is revised to read as follows:

Sec.  234.11  Disclosure to consumers.

    (a) During the course of reservations or ticketing discussions or
transactions, or inquiries about flights, between a carrier's employees
and the public, the carrier shall disclose upon reasonable request the
on-time performance code for any flight that has been assigned a code
pursuant to this part.
    (b) For each flight for which schedule information is available on
its Web site, a reporting carrier shall display the following
information regarding the flight's performance during the most recent
calendar month for which the carrier has reported on-time performance
data to the Department: the percentage of arrivals that were on time--
i.e., within 15 minutes of scheduled arrival time (including special
highlighting if the flight was late more than 50 percent of the time),
the percentage of arrivals that were more than 30 minutes late, and the
percentage of flight cancellations. The information may be provided in
either of the following ways:
    (1) By showing the percentage of on-time arrivals on the initial
listing of flights and disclosing the remaining information on a later
page at some stage before the consumer buys a ticket, or
    (2) By showing all of the required information via a hyperlink on
the page with the initial listing of flights.
    (c) Each carrier shall load the information whose disclosure is
required under paragraphs (a) and (b) of this section into its internal
reservation system between the 20th and 23rd days of the month after
the month for which the information is being provided.
    3. A new part 259 is added to read as follows:

PART 259--ENHANCED PROTECTIONS FOR AIRLINE PASSENGERS

Sec.
259.1 Purpose.
259.2 Applicability.
259.3 Definitions.
259.4 Contingency plan for lengthy tarmac delays.
259.5 Customer service plan.
295.6 Contract of carriage.
259.7 Response to consumer problems.

    Authority: 49 U.S.C. 40101(a)(4), 40101(a)(9), 40113(a), 41702,
and 41712.

Sec.  259.1  Purpose.

    The purpose of this part is to mitigate hardships for airline
passengers during lengthy tarmac delays and otherwise to bolster air
carriers' accountability to consumers.

Sec.  259.2  Applicability.

    This rule applies to all certificated and commuter air carriers
that operate domestic scheduled passenger service or public charter
service using any aircraft with a design capacity of more than 30
passenger seats, with the following exceptions:
    (a) Section 259.5 only applies to U.S. air carriers that account
for at least one percent of domestic scheduled passenger revenue, and
    (b) Section 295.7 does not apply to charter service.

Sec.  259.3.  Definitions.

    (a) Certificated air carrier means a U.S. direct air carrier that
holds a certificate issued under 49 U.S.C. 41102 to operate passenger
service and/or cargo and mail service or an exemption from 49 U.S.C.
41102.
    (b) Commuter air carrier means an air carrier as established by 14
CFR 298.3(b) that carries passengers on at least five round trips per
week on at least one route between two or more points according to
published flight schedules and uses small aircraft.
    (c) Large hub airport means an airport that accounts for at least
1.00 percent of the total enplanements in the United States.
    (d) Medium hub airport means an airport accounting for at least
0.25 percent but less than 1.00 percent of the total enplanements in
the United States.
    (e) Small aircraft means any aircraft originally designed to have a
maximum passenger capacity of up to 60 seats.
    (f) Tarmac delay means the holding of an aircraft on the ground
either before taking off or after landing with no opportunity for its
passengers to deplane.

Sec.  259.4  Contingency plan for lengthy tarmac delays.

    (a) Adoption of plan. Each certificated air carrier and each
commuter air carrier that operates scheduled domestic passenger service
using any aircraft with a design capacity of more than 30 seats shall
adopt a contingency plan for lengthy tarmac delays for its scheduled