fare to higher taxes and fees, will be disadvantaged if it is required
to include those taxes and fees in the advertised price. It remarks
that this could negatively impact service to smaller communities. ATA
also raised concerns about the cost implications of the proposal,
because the proposal would require airlines to perform additional route
pricing analysis, programming changes, website changes, and auditing
and testing of changes. Many U.S. carriers raise similar points.
    The views of foreign carriers and associations varied, with many
opposing the proposed mandate that the advertised fare be the full fare
to be paid by the customer but some supporting it. IATA believes that
there is no evidence of widespread advertising deception to justify a
change in the Department's enforcement policy. Additionally IATA notes
that the complexity of non-airline charges makes listing a full fare
with ``all mandatory fees'' difficult, and would only confuse air
travel consumers because this complexity prevents a true fare
comparison as the actual fare is obscured by the additional government-
imposed taxes and fees. IATA also notes that passengers are made fully
aware of the purchase price before purchase. Most foreign airlines
support IATA's comments. Some foreign carriers, such as Singapore
Airlines, Qatar Airways, and Jetstar Airways, support the proposed
mandate that advertisements state the total price to be paid by the
consumer. Many of these airlines state that they already advertise the
total price to be paid by consumers due to regulations of other
governments. Some foreign carriers expressed concerns about the
applicability of this rule to advertisements on websites that are not
domiciled in the United States or directed to United States customers.
    Among other industry interests that commented, ASTA and ITSA
support this policy shift and note that full fare disclosure is the
best way to eliminate passenger confusion and ensure that passengers
understand the total cost of their air travel. ASTA asserts that the
full fare displayed in advertisements should include all mandatory
fees, regardless of their source. The United States Tour Operators
Association (USTOA) disagrees and states that the proposed change will
place costly burdens on travel agents while doing very little to ease
customer confusion in airline pricing. USTOA contends, as does ATA and
many U.S. airlines, that ending the practice of permitting sellers to
exclude government taxes and fees from the advertised price is not
justified because the airfare advertising landscape has not changed
since the Department last declined to revise the full-fare advertising
rule. USTOA states that tour operators would be especially negatively
affected by this shift in policy because government-imposed fees vary
widely depending on where the consumers choose to start their trip, and
therefore a tour operator would not be able to advertise a tour
effectively since the purchaser usually has the option of a number of
gateways.
    DOT Response: The Department has decided to adopt the proposed
policy change in relation to the full-fare advertising rule. We
disagree with comments that the Department has not shown true harm to
consumers in not having the full price quoted to them up front. On the
contrary, comments from individual commenters and persons participating
in Regulation Room show consumers feel deceived when the total

price, including taxes and fees, is not quoted to them after an initial
fare inquiry. Many consumers feel that advertising fares that exclude
mandatory charges is a ``bait and switch'' tactic by travel sellers.
The Department has also received complaints regarding fare advertising,
some of which specifically mention feeling deceived when they are not
quoted the full price to be paid after an initial inquiry.
    Also, contrary to the assertions of some commenters, the Department
has seen changes in the advertising methods used by sellers of air
transportation since the Department declined to revise its full-fare
rule in 2006. Sellers are now marketing air transportation through a
variety of methods that they were not using then. For example, some
carriers have started to sell tickets through Facebook and some have
Twitter feeds dedicated solely to advertising sale fares. Additionally,
in recent years, carriers are increasingly unbundling the cost of air
travel, which further obscures the total fare to be paid by the
consumer. Carriers and online travel agencies have also started to
offer more complicated routings with multiple connections in order to
provide the ``lowest'' airfare to consumers. However, with these
changes in routings, taxes and fees can increase and become a
significant portion of the price to be paid by consumers. In those
cases, consumers need a full picture of the total price to be paid in
order to compare fares and routings. In order to understand the true
cost of travel, consumers need to be able to see the entire price they
need to pay to get to their destination the first time the airfare is
presented to them.
    We also are not persuaded by argument that the Department should
not require that the advertised price for air transportation, a tour or
tour component be the total price to be paid by the customer for that
transportation, tour or tour component because other industries
advertise without including government-imposed taxes and fees. Airfares
are different from products in other industries for a variety of
reasons, including the multitude of methods of advertising that sellers
of air transportation employ and the various taxes and government fees
that apply. We believe that consumers are deceived when presented with
fares that do not include numerous required charges and, in our view,
air travelers will be better able to make price comparisons when they
can see the entire price of the air transportation, tour or tour
component being advertised. The advertised fare under this policy shift
must include all government-imposed taxes and fees as well as mandatory
carrier-imposed charges, including booking fees if the only way the
consumer can obtain the air transportation is by paying the booking
fee. While a carrier or ticket agent generally is not required to
include a booking fee in its advertised fare if there are other means
for the passenger to obtain the air transportation (e.g., a booking fee
only applies for tickets that are purchased over the telephone), where
airfares are advertised via an Internet site that permits consumers to
purchase fares, the fares advertised on the site must include all
charges required to make the purchase on the site. For example, it
would be unfair and deceptive to hold out on such an Internet site a
fare that can be purchased only at airport ticket counters but that
excludes a convenience fee that is applied to Internet sales.
    In regard to the costs related to this change, online travel
agencies that will face many of the same marketing and programming
challenges as carriers do, if not more, feel that the operational costs
of adhering to the rule will be overly burdensome. Sellers of air
transportation are constantly updating their fare matrices and the
methods by which they display fares. In addition, we believe many
carriers may already have programs in place to accommodate this policy
shift, as some foreign governmental entities such as Australia and the
European Union already require the total price to be shown to
consumers. We note also that the requirement for advertisements to
state the total price is limited to advertisements published in the
United States, including via the Internet if accessible in the U.S.
Further, recognizing the amount of print advertising slated for use by
tour operators that would need to be pulled thereby increasing costs of
print advertising revision, we have decided that the new full fare
adverting requirements will not take effect until 180 days after the
publication of this final rule in the Federal Register. This should
reduce the costs related to this requirement.
    Some airlines were concerned that passengers would not know how
much of their total price consists of government imposed taxes and
fees. We want to assure these carriers that nothing in this rule
prohibits them from making this information available to consumers.
This final rule allows carriers to advise the public in their fare
solicitations about government taxes and fees, or other mandatory
carrier or ticket agent imposed charges applicable to their airfares.
Sellers of air transportation may have pop-ups or links adjacent to an
advertised price to take the consumer to a listing of such charges, or
they may display these charges on the same page in fine print if they
prefer. Such charges must accurately reflect the actual costs to the
carrier of the service or matter covered, be displayed on a per
passenger basis, and be displayed in a manner that otherwise does not
deceive consumers. Consequently, the rule requires that any such
listing not be displayed prominently and be presented in significantly
smaller type than the listing of the total price to ensure that
consumers are not confused about the total price they must pay. Also,
we are prohibiting the presentation of any ``total'' fares in
advertising that exclude taxes, fees or other charges since the major
impact of such presentations is to confuse and deceive consumers.
B. Explicit Inclusion of Ticket Agents
    The NPRM: The Department proposed to explicitly apply the price
adverting rule to ticket agents. We have for years considered ticket
agents to be subject to the price advertising rule since the
Department's statutory authority to prohibit unfair and deceptive
practices and unfair methods of competition applies to both carriers
and ticket agents. However, the Department's price advertising rule
doesn't specifically indicate that ticket agents are covered by the
rule.
    Comments: Comments received from airlines, travel agents, consumer
groups and others all supported the inclusion of ticket agents in the
price advertising rule. Air New Zealand and Qantas indicate that their
support for including ticket agents in the rule is contingent on
airlines not being responsible for the compliance of ticket agents.
    DOT Response: The final rule explicitly includes ticket agents in
the price advertising rule. This is consistent with longstanding
Department policy and we did not receive any adverse comments. This
inclusion will ensure that consumers are more fully protected. With
regard to the Air New Zealand and Qantas comment, airlines have always
been legally responsible along with their agents for their agents'
advertising violations and they will continue to be under the revised
rule.
C. Each-Way Advertising
    The NPRM: The Department proposed to codify its enforcement policy
on each-way airfare advertising. Under this policy, advertisement of an
each-way airfare that is contingent on a round-trip purchase is an
unfair and deceptive practice unless the airfare is advertised

as ``each way'' and the round-trip purchase requirement is clearly and
conspicuously disclosed in a location that is prominent and proximate
to the advertised fare amount. The Department invited interested
parties to comment on this proposal and on whether the Department
should adopt a similar rule for air/hotel packages that advertise a
single price but are sold at that price on a double occupancy basis,
i.e., two individuals must purchase the package to obtain the
advertised fare.
    Comments: Individual consumers and consumer groups had divergent
views on whether the Department should allow each-way airfare
advertising even if the round-trip purchase requirement is clearly and
conspicuously disclosed proximately and prominently to the advertised
fare. Flyersrights.org opposes this proposal, believing that disclosure
of the full round-trip purchase price is most helpful to consumers.
Consumers Union and AAPR support the proposed regulation, as long as
the round-trip purchase requirement is clear and conspicuous. Most of
the commenters on Regulation Room and individual commenters generally
support this proposal but some, like Flyersrights.org, suggest the
Department require that the full round-trip purchase price be
disclosed. Airlines, airline associations and travel agency groups
express support for the each-way advertising regulation. ATA requests
clarification as to whether ``one way'' advertising would be allowed if
there was no round-trip purchase requirement. ASTA supports this
proposal as well, noting that specifically prohibiting the use of ``one
way'' to advertise fares that are contingent on round-trip purchases
will allow consumers to better comparison shop among fare quotes.
    We received relatively few comments on whether the Department
should adopt a rule requiring specific disclosure for air/hotel
packages that advertise a single price but are sold at that price only
on a double occupancy basis. Some commenters participating in the
Regulation Room discussion state that clear and conspicuous disclosure
concerning occupancy-related rates should be required. ASTA comments
that double occupancy rates should still be allowed, as long as the
``per person'' requirement is disclosed.
    DOT Response: The Department is codifying existing enforcement
policy allowing sellers of air transportation to advertise an each-way
price that is contingent on a round-trip ticket purchase so long as the
round-trip purchase requirement is clearly and conspicuously disclosed
in a location that is prominent and proximate to the advertised fare.
This codification of longstanding enforcement policy allows sellers of
air transportation to be flexible in the way they advertise round-trip
fares while still requiring all pertinent disclosures to consumers.
While the Department understands that some consumers would prefer the
full round-trip price to be displayed, the Department has not found
that the current regime has led to consumer confusion or deception and
it does permit certain types of advertising that are beneficial. We
note also that this final rule specifically prohibits referring to such
an airfare as ``one way'' even if the round-trip purchase requirement
is clearly disclosed, which should minimize or prevent consumer
confusion. In response to ATA's request for clarification, we agree
that ``one way'' advertising is allowed when purchase of that fare is
not contingent on a round-trip purchase. We are deferring to a later
date any requirement regarding double occupancy advertisements as we
received few comments on this matter. We do not have enough information
at this point to determine if consumers feel deceived by double
occupancy rates, and consequently we will not formulate a specific
regulation regarding the methods of such advertising at this time.
``Double occupancy'' advertising will still be subject to the general
provisions of 49 U.S.C. 41712.
D. Opt-Out Provisions
    The NPRM: The Department proposed to prohibit ``opt-out''
provisions by sellers of air transportation. ``Opt-out'' provisions
involve situations where a consumer is purchasing air travel or an air
tour package online and certain fees for ancillary services or products
are pre-selected for the consumer and added to the total price to be
paid by the consumer at the end of the transaction. The consumer is
deemed to have selected these services (and the charges for them)
unless the consumer ``unchecks'' the pre-selected box or boxes for the
relevant services. The NPRM proposed prohibiting this practice as
unfair and deceptive in violation of 49 U.S.C. 41712 and allowing
carriers and ticket agents to add an optional service to the total
airfare to be paid by the consumer only if the consumer affirmatively
``opts in'' to accept and purchase that service.
    Comments: There was wide support among individual commenters and
consumer groups for a prohibition against opt-out provisions. A few
individual commenters noted that this prohibition will allow consumers
to avoid unwanted fees. All of the individuals commenting through the
discussion on Regulation Room stated that all optional services should
be presented to consumers as an ``opt-in'' choice. Individual consumers
recounted how they were sometimes faced with paying for travel
insurance they did not need or a seat selection fee they were not aware
of because those options were ``pre-selected'' by the seller of air
transportation.
    Many industry commenters, though not all, also agree with a
prohibition on ``opt-out'' features in advertising. ATA and most U.S.
carriers, such as US Airways and Delta Air Lines, support this
proposal. American Airlines states that non-aviation services should be
offered on an ``opt in'' basis, but that aviation services that most
consumers expect as part of their travel should be pre-selected.
American notes that this will allow consumers to customize their travel
options. IATA does not oppose the prohibition on opt-out provisions.
AEA notes that EU Regulation 1008/2008 already has an opt-in
requirement. Qantas Airlines opposes this regulation, stating that it
feels customers appreciate pre-selected options. ASTA supports a
prohibition on ``opt-out'' features in price advertising.
    DOT Response: The Department has decided to prohibit the use of
opt-out provisions by carriers and ticket agents. The fact that
consumers often don't realize that optional services are included in
the total price of the ticket due to the deceptive nature of such opt-
out provisions, is borne out by consumer comments. Many industry
organizations also support prohibiting opt-out provisions. In addition,
this action will align the United States with the consumer protection
laws of other jurisdictions which prohibit opt-out provisions,
including the European Union through its regulation 1008/2008. We do
not agree with airline comments that consumers like having certain
airline related services preselected for convenience sake so that they
can see the total cost of travel with those services. We believe that
having opt-in selections achieves the same goals of allowing travelers
to customize their air transportation packages to their travel needs
and see the total cost of travel with those service while eliminating
the unfair and deceptive practice of pre-selecting items that the
consumer has not selected and does not necessarily realize are pre-
selected until late in the process -- sometimes after a purchase is
complete. This rule would prohibit opt-out provisions for any ancillary
fee for an optional service such as seat selection, seat upgrades, pre-
boarding, travel insurance, rental cars, and transfers to and from the
airport. Under

this rule, an optional service can be added to the total airfare to be
paid by the consumer only if the consumer affirmatively agrees to pay a
fee for such service, i.e. by checking a box for that service or other
concrete action.

8. Baggage and Other Fees and Related Code-Share Issues

A. Covered Entities
    The NPRM: In the NPRM, the Department proposed to require all U.S.
and foreign air carriers that have websites accessible to the general
public in the United States through which tickets are sold to provide
notice to consumers about baggage fees and allowances and other
ancillary fees that the carrier may charge. More specifically, the NPRM
proposed: (1) Disclosure on the homepage for at least three months of
any increase in the fee for passenger baggage or any change in the free
baggage allowance for checked or carry-on baggage; (2) notice on e-
ticket confirmations regarding the free baggage allowance for that
flight and any applicable fee for the first and second checked bag and
carry-on bag; and (3) disclosure of all fees for optional services in
one central place on the seller's website. The Department noted that
the recent trend to unbundle services and charge separate fees for
services that may have once been included in the cost of a ticket has
led to consumers having difficulty determining the total price they
must pay to travel by air. The Department requested comment on whether
these requirements to disclose baggage and other fees should apply to
ticket agents as well as carriers. We also invited comment on
alternative proposals, including whether the Department should limit
the applicability of the disclosure requirements to all flights
operated by U.S. carriers, U.S. and foreign carriers that operate any
aircraft with 60 or more seats, or U.S. and foreign air carriers that
operate any aircraft with or 30 or more seats.
    Comments: Many consumers state that the type of fee disclosures
contemplated in the proposed rule should apply to all sellers of air
transportation. Some consumers relayed experiences where they felt fees
were hidden when booking on online travel agency websites. CTA and BTC
state that this section should apply to ticket agents as well as
carriers, but they both note that the agents need accurate and up to
date information from the airlines via the GDSs in order to provide
accurate information to consumers.
    USTOA contends that the disclosure requirements, as proposed,
should not be applied to ticket agents because the airlines are
updating and changing fees constantly, and the cost to agents to ensure
that the various airline fees they display are correct would be
burdensome. USTOA proposes that instead ticket agents simply be
required to inform consumers on their websites and on e-ticket
confirmations that baggage and other charges may apply by stating that
``airline fees for baggage and other optional services may apply to
your journey; please consult with your airline for information on those
fees.'' USTOA further states that in the event that the Department
concludes that additional specific information should be provided by
ticket agents, it should allow ticket agents to provide hyperlinks to
the locations on the airline websites where specific information may be
obtained. ITSA does not object to extending the requirements to
disclose baggage and other fees to ticket agents, but notes that if the
information is not provided to the GDSs, the costs associated with
agencies constantly updating information are high and the possibility
exists that the information may not be accurate. ASTA takes a similar
position to ITSA in regards to applying the disclosure requirements to
ticket agents.
    DOT Response: The Department has decided that the requirements to
provide specific notice to consumers about baggage fees and allowances
and other ancillary fees shall apply to all U.S. and foreign carriers
that advertise or sell air transportation in the U.S. We are not
limiting the applicability of the disclosure requirements to flights of
only U.S. carriers, as the harm to the consumer is the same whether the
lack of information about baggage and other ancillary fees involve
flights operated by a U.S. carrier or a foreign carrier. We are also
not limiting the applicability of these requirements based on the size
of the aircraft that carriers operate as we believe that disclosure of
add-on fees is an issue of sufficient significance to warrant
application of this requirement to aircraft of all sizes. Consumers
want to be informed of the fees that they will be required to pay for
optional services regardless of the size of the aircraft on which they
travel.
    The Department also believes that it is important to ensure that
consumers are alerted to airline-imposed fees that may be applicable to
itineraries purchased through ticket agencies. However, we are
persuaded by USTOA and others to apply a more limited requirement to
ticket agents, particularly since the Department is deferring decision
on whether to require U.S. and foreign carriers to give ancillary fee
information to GDSs. Therefore, unlike the case for U.S. and foreign
air carriers, this final rule does not require ticket agents to
disclose on their website information about changes in baggage fees or
allowances or to list on their website all of the airlines' fees for
optional services. The final rule does, however, require ticket agents
(and carriers) to inform passengers on the first screen in which the
ticket agent or carrier offers a fare quotation for a specific
itinerary selected by a consumer that additional airline fees for
baggage may apply and where consumers can go to see these baggage fees.
This notification on the website must be clear, conspicuous and
prominent. To comply with this requirement, ticket agents can choose
between referring consumers to their own site where the baggage fees
are displayed or to the airline websites where specific information may
be obtained. This requirement is consistent with prior guidance
provided by the Department's Aviation Enforcement Office. See, Notice
of the Assistant General Counsel for Aviation Enforcement and
Proceedings, Guidance on Disclosure of Policies and Charges Associated
with Checked Baggage, May 13, 2008, http://airconsumer.dot.gov/rules/guidance.htm. The final rule also requires ticket agents (and carriers)
to include on e-ticket confirmations information about the free baggage
allowance and the applicable fee for the first and second checked bag
and carry-on but allows ticket agents, unlike carriers, to do so
through a hyperlink. We also want to make clear that when using the
term ``ticket agents'' we are referring not only to agents of the
carriers but also others who meet the definition of ``ticket agent''
contained at 49 U.S.C. 40102 (a)(40), i.e., one who as a principal
sells, offers for sale, negotiates for or holds itself out as selling,
providing or arranging for air transportation.
B. Disclosure of Baggage Fees
    The NPRM: In 2008, the Department's Aviation Enforcement Office
issued guidance concerning the disclosure of baggage fees to the
public. In that notice, the office stated that it views a carrier's
failure to clearly disclose significant conditions applicable to air
fares, such as baggage fees, to be an unfair and deceptive practice and
unfair method of competition in violation of 49 U.S.C. 41712. It
described steps that carriers should take to ensure that they are
providing prominent and timely notice of their baggage policies and
charges. For example, the office suggested carriers place a notice on
the home page of their website highlighting new

baggage policies and charges. See, Notice of the Assistant General
Counsel for Aviation Enforcement and Proceedings, Guidance on
Disclosure of Policies and Charges Associated with Checked Baggage, May
13, 2008, http://airconsumer.dot.gov/rules/guidance.htm.
    In the instant proceeding, the Department proposed to codify this
guidance document by requiring carriers that maintain a website that is
accessible to the general public to prominently disclose on the
homepage of that website for at least three months any increase in the
fee for passenger baggage or any change in the free baggage allowance
for checked or carry-on baggage. The Department proposed that this
notice could appear in its entirety on the home page or could be
accomplished through a prominent, conspicuous hyperlink (e.g.,
``Revised Baggage Fees'') that leads to an explanation of the carrier's
baggage policies and fees. The Department invited comment on this
proposal, including comment on how long the notice should remain on the
page and the best options for displaying the information to consumers.
    The NPRM also proposed to require carriers that issue e-ticket
confirmations to include information on that confirmation regarding the
free baggage allowance for that flight and the applicable fee for the
first and second checked bag and carry-on bag. The goal of this
proposed rule was to provide the specific information regarding a
particular consumer's baggage allowance well before that consumer
arrives at the airport with bags packed. The Department invited comment
on this proposed section.
    Comments: Most individual commenters and commenters from consumer
groups did not address this proposal specifically, but overwhelmingly
commented that, in general, they supported more disclosures. Individual
commenters, through the Docket and through Regulation Room, noted how
they are sometimes surprised by additional baggage fees when they
check-in at the airport. CTA states that two out of three travelers
responding to their survey were surprised by fees upon checking in for
a flight at the airport. Many commenters wanted the Department to limit
the carrier's ability to unbundle certain fees from the base fare,
particularly baggage fees for the first checked bag. These commenters
feel that carriers are ``nickel and diming'' passengers instead of
trying to improve service. Other commenters found value in the a la
carte pricing models of carriers because the models allow travelers to
customize their trips. The individual commenters who were not opposed
to unbundling fees generally support more disclosure of fees to the
consumer before purchase.
    ATA and most U.S. carriers support more disclosure regarding
changes in baggage fees. ATA supports the proposal to put notice of fee
changes on a carrier's homepage and states that the best method for
providing this notice is to put a hyperlink on the homepage. ATA notes
that three months is a long enough time to require the information on
the change to be on the website. Most U.S. carriers submitted comments
similar to ATA's on the proposal to disclose baggage fee changes.
Virgin America states, however, that the Department should refrain from
establishing too much specificity or detail because such a regulation
would detract from competitive market forces on how airlines design and
set up their own websites. Furthermore, Virgin America notes that many
carriers are developing mobile applications where screen space is
limited. Allegiant Airlines opposes what it sees as attempts by the
Department to micromanage how websites appear and how information is
shared with consumers in the absence of a clear attempt by carriers to
deceive consumers.
    Foreign carriers and carrier associations generally were not in
favor of what they view as increased U.S. government regulation of the
appearance of websites that are not maintained in the United States.
IATA warns that this proposal could be an extraterritorial application
of U.S. law. IATA further states that most carriers already have
baggage fee information readily available on their website, and most
carriers do not charge for one or two checked pieces of baggage to or
from the United States, so adding extra notice and advertising
requirements to a carrier's website would increase costs greatly. The
National Airlines Council of Canada agrees with disclosure of fees on
websites, but disagrees with the requirement to place a link to the
disclosure on the homepage. Jetstar Airways opposes posting notice
about the change directly on the homepage of the carrier, asserting
that space issues could limit airlines' ability to clearly disclose the
changes and advertise products and services. Qantas raises similar
concerns, noting that the Department should not dictate the content of
a carrier's website or homepage. Lufthansa believes that the Department
did not establish why these disclosure rules are necessary, but does
note that it already provides most of this information. Condor
Flugdienst notes its objection to requiring changes to baggage
allowances to be posted on the homepage, stating that failure to
provide notice of a change is a violation of 49 U.S.C. Sec.  41712
under Department guidance and that there is no need, therefore, for the
Department to codify this requirement. Air France and KLM contend that
having the information regarding baggage fee changes stand alone on the
homepage would be costly. Those carriers suggest that this
information's location on the website should be left to the airline's
discretion and that a time period of one to two months would be enough
time for consumers to be aware of the change.
    With regard to disclosure of baggage information on e-ticket
confirmations, as with the proposal to disclose such information on
carriers' websites, most individual consumers and consumer groups
support any provision that provides the consumer with more information
and prevents consumers from being surprised about hidden fees. Some
individuals specifically contend that baggage allowance disclosures
should also include information regarding excess weight and excess
baggage charges. Many consumers feel that the disclosure of baggage
fees should occur earlier in the process, not after purchasing the
ticket. One commenter noted that e-ticket confirmations are not
required, and that some carriers still use paper tickets. This
commenter noted that any requirement for disclosure of baggage fees on
an e-ticket confirmation would not help consumers who are provided
paper tickets because those consumers would not have that information.
This commenter believes that the Department should clearly define what
a ticket is, and then require baggage fee disclosures to be in the same
method as the purchaser receives the ticket.
    ATA and most U.S. airlines do not have an objection to this
requirement, as many carriers currently provide this information in the
e-ticket confirmation. US Airways and Delta Air Lines support baggage
disclosures on e-tickets. Spirit Airlines supports baggage fee
disclosures on e-tickets through a hyperlink to baggage information.
IATA is not opposed to a provision requiring airlines to include
information regarding optional services in e-tickets after a purchase
is complete. AEA also states that it is not opposed to providing this
information on an e-ticket. AEA points out that EU Regulation 1008/2008
mandates that optional price supplements be communicated in a ``clear,
transparent and unambiguous

way.'' Some foreign carriers assert that requiring the information on
the e-ticket confirmation is regulatory overkill, as a consumer cannot
complete a purchase without becoming aware of the fees due to other
government regulations. Other carriers state that due to the abundance
of disclosure prior to completion of purchase, a carrier should not be
required to provide all of the information in full on an e-ticket as
that would be costly. All Nippon Airways expressed concerns about the
costs of redesigning their e-ticket confirmations, noting that a recent
overhaul cost upwards of $145,000. Some carriers, such as Air France
and KLM, note that they already have a system in place to provide
information about baggage on the e-boarding pass issued via Internet
check-in.
    DOT Response: The Department has decided to require U.S. and
foreign carriers that advertise or sell air transportation in the
United States to promptly and prominently disclose any increase in its
fees for carry-on or checked baggage and any change in the checked
baggage allowance for a passenger on the carrier's homepage. Such
notice must remain on the homepage for at least three months after the
change becomes effective. This rule is consistent with current
enforcement policies regarding the disclosure of changes in baggage
fees. Additionally, the Department feels that this rule will prevent
passenger surprise about changes in baggage fees or allowances. We
agree with consumers and consumer groups, who advocate that greater
disclosure of fees, and particularly baggage fees, is needed.
Recognizing the concerns raised by carriers, particularly foreign
carriers, about space on a carrier's homepage and a carrier's
legitimate need to be able to design a website that is competitive and
presents information in a clear way, the Department will allow carriers
to fulfill the notice requirements by providing a link from the
homepage directly to a pop-up or a place on another webpage that
details the change in baggage allowance or fees and the effective dates
of such changes. The link on the homepage needs to be descriptive,
clear and conspicuous, i.e., easy for a consumer to locate. The link
need only remain on the homepage for a period of three months after the
change becomes effective. Most commenters agreed that three months is a
long enough time to ensure that consumers are aware of any change in
baggage fees or allowances.
    The Department disagrees with Air France and KLM, which suggest
that the carriers be allowed to decide where on their website to
display the information and that the information should only remain
active on the website for one or two months. Changes that occur need to
be posted on the website for a sufficient time in order to allow
consumers to review the changes not only prior to choosing a flight but
also after they chose a flight and are preparing to travel. The
Department believes that allowing carriers to decide where the notice
should be given may result in some carriers placing the information in
an inconspicuous location on the website. If such information is
difficult for consumers to find, they may not be aware of the change
until after arrival at the airport and the consumer cannot evaluate the
impact of the change in baggage fees and allowances on his or her
scheduled transportation, which limits consumer choice.
    The Department has also determined that there is value in providing
a consumer information regarding baggage fees and allowances after the
consumer completes a purchase for air travel. Therefore, the final rule
requires U.S. carriers and foreign carriers and ticket agents that
advertise or sell air transportation in the United States to provide
information on e-ticket confirmations regarding the passenger's free
baggage allowance and/or the applicable fee for a carry-on bag and the
first and second checked bag. By ``applicable fee,'' we mean the
baggage fee information provided on the e-ticket confirmation cannot
simply be a range of fees but must include information about any price
that may exist for a carry-on bag and the first and second checked bag
and any differing price that may exist depending on the passenger's
status (e.g., frequent flyer, military personnel), on when the payment
for the bag is made, or and on whether a consumer checks his or her bag
online rather than at the airport. As explained in the section on
covered entities, because they may not know the most recent carrier
baggage policies, ticket agents may provide details on where to obtain
this information by a hyperlink to the locations on the airline
websites where specific information may be obtained since the airlines
often update and change fees. The Department notes that this
requirement will benefit consumers because it will reduce confusion
over whether, and, if so, how much they will have to pay to check or
carry-on bags. Additionally, this will save the time of both consumers
and airline employees at the airport, because consumers will be
notified in advance of check-in what the applicable fees are for a
carry-on bag and the first and second checked bags. The Department
notes that carriers are already providing this information to consumers
in compliance with existing enforcement policies. We disagree with the
assertion by some carriers that consumers cannot complete a purchase
without first becoming aware of the applicable baggage fees. Given the
advent of new fees, such as fees for carry-on bags, the differing price
for first and second checked bags, and the price difference that
sometimes exists if a consumer checks his or her bag online versus
checking the bag in at the airport, the Department believes that it is
not a simple matter for consumers to determine the total price to
transport their baggage. Additionally, the Department disagrees with
airlines that assert that the disclosure requirements are burdensome,
as most carriers already provide this information in one form or
another.
C. Disclosure of all Ancillary Fees
    The NPRM: The Department proposed to require carriers that have a
website accessible to the general public to disclose all fees for
optional aviation services in one central place on their website, so
that consumers have an easily accessible reference guide for the cost
of these services. This disclosure was proposed to be made through a
link from the carrier's homepage directly to a listing of those fees.
The Department invited general comment on this proposal. We also asked
for comment on whether only ``significant'' fees for optional services
should have to be listed and, if so, how to define a ``significant
fee.'' The Department also asked for suggestions for alternatives to
the easily accessible link from the homepage for this disclosure.
    Comments: Generally, the majority of consumers and consumer groups
agreed with requiring carriers to disclose ancillary fees on their
website. They contend that airlines hide their fees, and that requiring
disclosure will benefit consumers' ability to comparison shop and avoid
surprise fees. Many consumer commenters urge the Department to require
that the listing of optional fees on carriers' websites be
standardized. However, some commenters, commenting through the
discussion on Regulation Room, expressed concern that a large fee table
could be confusing to inexperienced or unsavvy casual travelers. Some
consumers and consumer organizations assert that requiring the
disclosure of ancillary fees does not go far enough and ask that the
Department establish a list of ancillary services for which airlines
are prohibited from charging a fee.

    ATA generally supports the proposal requiring airlines to disclose
fees for ancillary services on a carrier's website through a link, but
feels that disclosure of such fees on e-ticket confirmations would be
burdensome. ATA contends that some fees vary based on the flight and
itinerary, such as food and beverage items. ATA, as well as industry
groups such as ASTA and ITSA, do not see a reason why the disclosure
should be limited to significant fees. US Airways generally supports
this proposal, but requests sufficient lead time to fully implement the
website changes required to list the fee information. US Airways notes
that if the Department requires disclosure of these fees earlier in the
process, the programming costs would increase to cover the complexity
of new programming, and sufficient lead time would be required. Delta
states that it already has a page that lists these fees, and does not
object to a requirement that all carriers maintain such pages.
    DOT Response: The Department has decided to require U.S. and
foreign carriers to have one, central webpage on their website, linked
from the carrier's homepage, which lists all ancillary fees. The reason
for this requirement is that Department considers it too difficult
currently for consumers to effectively comparison shop and determine
the total cost for travel, including ancillary fees for optional
services. Not all carriers provide information regarding charges for
various services, such as seat assignments, extra leg room, priority
boarding, telephone reservations, and seat upgrades in a centralized
location so that it is easily accessible for the consumer to review
prior to purchase. The Department considers it to be unfair and
deceptive to charge an ancillary fee to a consumer, when that consumer
had no simple, practical, and reasonable way of knowing about the fee
prior to purchasing the ticket. Having a single listing of all of the
ancillary fees that a carrier charges for optional services allows the
consumer access to greater information without unduly burdening the
carrier or stifling the carrier's need to compete on such services.
    The Department agrees with commenters that state that all fees
should be listed. We believe that there is no practical way to identify
what is ``significant,'' as each traveler, and even airline, might
differ over what is significant. Therefore, the Department believes
that to ensure adequate protection of consumers, as well as to ensure a
level playing field among airlines, it is best to require carriers to
list all fees. This includes, but is not limited to, fees for checked
baggage, carry-on baggage, overweight bags, meals, on-board
entertainment, Internet connections, pillows, blankets, advanced or
upgraded seating assignments, telephone reservations, early boarding,
canceling or changing reservations, unaccompanied minors, and pet
transportation. ATPCO has identified more than a hundred optional
services and assigned each of those services a code. While the ATPCO
list may not be an exhaustive list of services that are now offered or
that will in the future be offered, the Department suggests that
carriers may wish to use the ATPCO list of charges as a reference in
developing a list of all optional services and fees to put on their
websites.
    The Department understands the carriers' concern that the
availability and price of some items vary depending on a number of
factors such as the type of aircraft being used, the frequent flyer
elite status of a passenger, the flight on which a passenger is booked,
or the time at which a passenger pays for the optional service. For
non-baggage related optional services, carriers can provide a range of
fees, acknowledging that they vary based on those types of factors. For
example, if food and beverage service prices vary among flights, an
airline can state that meals or snacks are available for purchase, and
then give a range of prices for such meals and snacks.
    This use of a range of fees would not, however, be acceptable under
the rule with regard to fees in connection with checked or carry-on
baggage, which are so fundamental to air travel and have until
relatively recently been included in the price paid for travel on all
carriers. With regard to those fees, we are specifically requiring that
carriers, at a minimum, provide information about (1) any differing
price that may exist for the first, second, third, or more checked and
carry-on bag or overweight/oversized bag and (2) any differing price
and allocation (e.g., whether or not a bag checked for free counts
toward overall allowance) that may exist for each bag depending on the
passenger's status (e.g., frequent flyer, military personnel), on when
the payment for the bag is made, or whether a consumer checks his or
her bag online versus checking the bag at the airport. If an airline
offers discounted baggage fees through status as a member in a paid or
unpaid membership ``club,'' information regarding these programs should
be offered as well. The Department believes that listing the fees in
one place will allow consumers greater access to information, prevent
the problem of hidden fees, and prevent confusion at the airport or in-
flight due to an unexpected charge. It should also enhance competition,
as consumers will be better able to compare costs among carriers for
the trip that they plan to take with the services that they would like
to have. With regard to commenters who wanted the Department to mandate
certain ancillary items that must be free, the law does not provide us
the authority to do so.
D. Global Distribution Systems
    The NPRM: The Department stated in the NPRM that it was considering
requiring carriers to make information about charges for optional
services available to global distribution systems (GDSs). The
Department considered this proposal due to the fact that a significant
portion of consumers purchase their air travel and air tours though
travel agencies, both online and traditional brick-and-mortar agencies.
The Department invited comments on the ability of carriers to provide
this information in a usable format and the potential costs and
benefits associated with providing this information to GDSs.
    Comments: ATA and most of its members strongly oppose a requirement
that forces airlines to provide ancillary fee information to GDSs.
First, ATA notes that this is a competitive issue and would interfere
with ongoing negotiations among carriers, GDSs, and travel agents, and
would inject government regulation into private market decision making.
ATA notes that GDSs already have a great share of the market for air
transportation bookings, and warns that fares could increase to cover
the charges the GDSs would likely levy on carriers that are required to
provide this information to them. ATA also questions the existence of
any unfair or deceptive practice this requirement would prevent.
    Most U.S. carriers agree with ATA's position. US Airways does not
believe the Department should mandate disclosure in a particular
format, seeing this as interference with market forces. Delta Air Lines
believes that this rule would affect its bargaining position with the
GDSs and their ability to explore different options for sharing of this
information with the GDSs. American Airlines contends that a carrier
should have the ability and power to decide how to market its ancillary
services. American states that requiring disclosure would unfairly
bolster the GDS market power. In a joint filing, American Airlines,
Continental Airlines, Delta Air Lines, United Air Lines, and US Airways
reiterate the carriers' commitment to providing fee information to
consumers, but assert

that interfering in market negotiations would harm competition and
ultimately would harm consumers. These airlines note that providing fee
information about optional services to consumers is good for the
airlines because airlines are in the business of selling tickets and
selling these ancillary services. They assert that carriers should be
allowed to market their services how they see fit and to decide how to
provide their customers with the greatest access to information and
choice. The carriers reiterate ATA's point that requiring airlines to
furnish this information to GDSs would harm consumers by increasing
airline distribution costs, arguing that GDSs would charge the airlines
fees to upload the information into the GDS system. The carriers note
that many travel agents, including online travel agents, already have
access to and disclose fee information, referring to the Expedia
website which has a chart of baggage fees. The carriers contend that
the GDS distribution system is anti-competitive and not efficient, and
that requiring the airlines to provide fee information will further
bolster the market power of the GDSs without allowing for substantive
competition from third-party vendors.
    Two U.S. carriers did not object to providing ancillary fee
information to GDSs. Spirit Airlines does not oppose the proposal,
unless it would impose significant costs on carriers to change the
format the carriers already use to provide the information to the GDSs.
Southwest Airlines supports limited transmittal of fee information to
GDSs in order to provide information to all consumers, regardless of
how they book their flights. Southwest states, however, that the
requirement should only obligate carriers to furnish this information
to existing GDS partners. Southwest opposes allowing GDSs to charge
fees for collecting data on ancillary services. Southwest notes that
carrier participation in GDSs and other distribution channels for
selling air transportation is a strategic business decision by each
carrier. The carrier also supports a provision that would require all
carrier-imposed surcharges, such as seasonal fare adjustments, to be
included in the fare information provided to GDSs.
    IATA and most of the other foreign air carrier organizations oppose
requiring carriers to provide ancillary fee information to GDSs as
well, although they support carriers providing information about
ancillary fees and services on carrier websites. The National Airlines
Council of Canada agrees with the disclosure of fees in general, but
recommends that the Department not mandate the method of disclosure. It
notes that this information is most effective when presented to the
customer within the flow of the transaction, as Air Canada does on its
website. Some carriers, such as Jetstar Airways and Qantas, oppose
providing the fees for optional services to consumers via a static
webpage, stating that it is more helpful for consumers and airlines to
focus ancillary fee information to a particular booking. Other
carriers, such as Virgin Atlantic, note that they already file this
information with ATPCO, thus allowing for access by GDSs.
    The vast majority of consumers and consumer groups (e.g., BTC, CTA,
Flyersrights.org) support the Department requiring airlines to disclose
their ancillary fee information to the GDSs. BTC and CTA urge the
Department to establish uniform standards for fee disclosures, on the
basis that airlines may add new fees in the future. Both of those
organizations state that airlines artificially deflate the cost of a
fare so that they can tack on high ancillary fee charges that are
hidden from the consumer during an initial fare search.
    ITSA and ASTA implore the Department to require airlines to share
ancillary fees with the GDSs. ITSA notes that a passenger who wants to
search for a fare that includes a checked bag and a pre-assigned seat
will have to spend a great deal of time and have to be especially
computer savvy to find the total amount he or she would have to pay for
their travel because the fees are hidden on carriers' websites. ITSA,
representing GDSs, states that at least 50% and possibly as high as 60%
of the traveling public relies on travel agents to comparison shop for
fares. ITSA argues that without this information from GDSs, brick and
mortar travel agencies and online travel agencies cannot adequately
state the total cost of travel to their clients. ITSA notes that the
Department already requires information beyond the base fare to be
provided to the GDSs such as code-share information and change of gauge
information. ITSA asserts that the costs of this requirement would be
low as it believes the technology is already in place to distribute the
fee information. ITSA further adds that the Department's mandate to
prevent unfair and deceptive practices trumps claims that disclosure
should be left to private market negotiations. ITSA believes that
merely requiring carriers to post the fee information on a webpage is
not adequate to alleviate the problems of hidden fares or reduce the
time it takes to comparison shop. Uniglobe Travel, Travizon, Inc., and
individual travel agents that commented in the docket support the
proposal to require that carriers provide ancillary fee information to
GDSs.
    Many third party commenters submitted comments related to providing
ancillary fee information to GDSs. Several members of Congress wrote in
support of a requirement obligating carriers to submit their ancillary
fee information to GDSs. A member of the European Parliament also
expressed his support for issuing a rule so that passengers booking
through a GDS system are aware of the total price of the ticket before
purchase. The New York State Consumer Protection Board states a similar
position that information about fees should be distributed to consumers
through a wide variety of channels, not just through a link on the
carrier's website.
    Farelogix, a third party distribution and management technology
firm, opposes the proposal to require that the carriers provide
information to GDSs. Farelogix believes that GDSs should coordinate
directly with the airline. The firm does not think that the GDSs should
be able to mandate the format of the information. Farelogix notes that
the GDSs are resistant to third party technology to transfer
information in order to preserve their place in the travel market, and
states that this proposed requirement will further limit third parties
from entering the travel technology marketplace. An airline consultant
makes several similar points. This consultant points out that if the
Department requires carriers to provide information about fees for
optional services to GDSs, the airlines' bargaining leverage is eroded
and the higher distribution costs the airlines will face will be passed
on to consumers. The consultant notes that negotiations to sell
ancillary services are working in some respects, using examples of
United Airlines selling Economy Plus service through Sabre, Midwest
Airlines selling seat assignments through Sabre, and Finnair selling
ancillary services through Amadeus. This individual believes that these
fees are not hidden, and notes that most of these fees are not charged
until check-in or onboard the flight. A professor at Harvard Business
School comments that compelling airlines to provide fee information to
GDSs will have far-reaching and unintended consequences on existing
contractual structures between airlines and GDSs. He believes that if a
requirement to provide fees for optional services is adopted, the GDSs
will mark up prices considerably because airlines will be

forced to disclose pursuant to government rule. The Airline Tariff
Publishing Company (ATPCO), without taking a position on the merits of
the proposal, notes that it has systems in place that could help
implement any requirement regarding carriers sharing fee information
with GDSs.
    DOT Response: We have decided to defer final action on this
proposal. The Department's goal to protect consumers from hidden and
deceptive fees and to allow consumers to price shop for air
transportation in an effective manner remains paramount. The
Department's goal is to provide all air travel consumers with easy
access to information about fares and optional fees, particularly
baggage fees. As discussed earlier, this final rule requires U.S. and
foreign carriers to disclose on their website information about changes
in baggage fees or allowances and to list on their website all of the
airlines' fees for optional services. The final rule also requires both
carriers and ticket agents to provide information on the first screen
in which the ticket agent or carrier offers a fare quotation for a
specific itinerary selected by a consumer that additional airline fees
for baggage may apply and where consumers can go to access these
baggage fees. In addition, ticket agents and carriers must include on
e-ticket confirmations information about the free baggage allowance and
the applicable fee for the first and second checked bag and carry-on.
We believe that these steps partially address the problem of hidden and
deceptive fees and allow consumers to price shop for air
transportation. The Department is cognizant that some parties feel that
requiring carriers to provide information on their ancillary fees to
GDSs would be a reasonable way, if not the best way, to ensure
consumers can easily comparison shop for air fares. We cannot at this
time agree that it is in the public interest to mandate that step,
since we lack information critical to a decision on the issue. Thus, in
order to permit us time to obtain additional information about costs,
benefits and consequences of requiring U.S. and foreign carriers to
provide ancillary fee information to GDSs, including those involving
competition, the Department is deferring final action on this matter.
The Department wants to ensure that any action it takes does not have
unintended consequences, particularly given the sensitive nature of the
market and the negotiations currently taking place between carriers and
the GDSs.
E. Display of Two Fares in Advertising
    The NPRM: The Department asked for comment on the costs and
benefits of displaying two fares in airfare advertising. The first
price would be the full fare (i.e., fare with all mandatory charges)
and the second price would be that full fare plus the cost of baggage
charges that traditionally have been included in the price of the
ticket, if these prices differ. The Department asked whether the second
fare should only include the price of baggage charges or whether it
should also include other services traditionally included in air travel
such as obtaining a seat assignment in advance. The Department also
solicited comment on the cost and feasibility of requiring sellers of
air transportation to allow consumers to conduct fare queries for their
specific needs (e.g., airfare and two checked bags, or airfare, one
checked bag and extra legroom) and select the services they wish to
include in the price of the travel.
    Comments: Individual consumers and consumer groups are divided on
the helpfulness of any requirement for a carrier to display two fares
in response to a fare inquiry. Some commenters and groups assert that
this type of fare display system could be helpful for comparison
shopping. Commenters who participated in the discussion on the
Regulation Room site were divided. Some state that such a dual fare
display could be helpful, but others claim it would be confusing.
Individuals commenting to the docket expressed similar opinions. Most
were in favor of more robust disclosure, especially regarding baggage
fees. Many who favored a dual fare disclosure disagreed, however, on
what should be included in the second fare of a two-fare display
system. Some state that just the cost of baggage should be included.
Others contend that baggage, blankets, pillow, and a seat assignment
should also be included. The idea that consumers could select the
ancillary services they wished before receiving a fare quote had many
supporters. CTA supports the approach to airfare searching that would
allow a consumer to select the services and fees they wish to be
included in their travel.
    ATA does not support the two-fare model. ATA states it would be
confusing for passengers. It adds that the Department does not have
enough information to impose this requirement. ATA and certain U.S.
carriers note that there are questions and ambiguities as to what is
``traditionally included in the price of a ticket.'' As many U.S.
carriers noted, each passenger's needs are different, so the second
fare would be confusing or of little help to many consumers.
    IATA contends that a two-fare display system could be confusing and
should not be mandated, as many carriers already have an established
online advertising regime that includes an online menu of optional
services presented to the consumer through the course of their
purchase. IATA asserts that requiring a two-fare model would be an
unwarranted government intrusion on business practices. The Arab Air
Carriers Organization states that a two-fare model would be unworkable
and prohibitively expensive, as most carriers' reservations systems
would have to be reworked to accommodate a two-fare requirement. Many
individual foreign carriers echoed the sentiments of IATA, including
South African Airways and Lufthansa, which note that a carrier can
always choose to adopt a two-fare system. British Airways states that
if this proposal were to become a requirement, the requirement should
only apply to fares that do not include one checked bag, and this
requirement should apply to GDSs and travel agents as well as carriers.
ITSA is not opposed to a two-fare system, as long as the Department is
clear about what would be included in the price. ATPCO notes that it
has technology that could implement any required two-fare pricing model
or a consumer self-selection model.
    DOT Response: The Department agrees with the commenters who feel
that a ``two-fare'' display system would be too confusing for
travelers. We agree that each traveler is unique with regard to what
ancillary services he or she needs or wants on a particular flight, and
therefore one ``all-inclusive'' price that includes baggage and a seat
assignment may not be helpful to most passengers. The Department will
also not require, at this time, that sellers of air transportation
revise their online systems to allow consumers to conduct queries for
specific optional services and the fees for those services before
displaying a price. Although the Department understands that some Web
sites may exist that have these capabilities and that some carriers
utilize online menus for consumers from which to choose services during
the booking process, the Department does not have enough information
regarding the costs of implementing such a system to require that every
carrier implement such an online system.

F. Services Provided by Code-Share Partners
    The NPRM: The Department sought comments as to whether in a code-
share situation the marketing/ticketing carrier should be required to
disclose through reservation agents, Web sites, and/or e-ticket
confirmations any differences in services and fees applicable to a
consumer between the marketing carrier and the operating carrier. The
Department also asked whether there were any ancillary fees for
services that should not be permitted to vary among code-share
partners, such as the allowances and charges for baggage. The
Department noted that its policy states that, for passengers whose
ultimate ticketed origin or destination is a U.S. point, the baggage
rules that apply at the beginning of the itinerary apply throughout the
itinerary and provides that the marketing carrier's rules take
precedence.
    Comments: Most individual commenters and consumer groups, including
Flyersrights.org, favor a rule that would require the marketing or
ticketing carrier's fees to apply for the whole trip. Some commenters,
through Regulation Room, expressed the opinion that the lesser of the
two fees should apply if the marketing carrier's fees differ from the
operating carrier's fees. Most commenters support greater notice
requirements regarding differing fee structures between code-share
partners. Some commenters on Regulation Room specifically felt that the
marketing carrier should provide greater information, especially if the
operating carrier has more stringent or restrictive luggage
requirements.
    ATA believes that disclosure of fees between code-share partners
can be accomplished effectively through a hyperlink on the marketing
carrier's website directly to the operating carrier's fee list. It
opposes any attempt by the Department to standardize optional fees
amongst code-share partners. ATA notes that attempts at standardization
would be counter to the goals of deregulation and could be anti-
competitive. It further states that standardization of fees could be
impractical and costly for flights that have multiple code-share
partners selling tickets on the same flight. US Airways comments that
applying the marketing carrier's rule is not feasible and would create
different classes of passengers on the same aircraft. Delta states that
ancillary fees should not be uniform amongst carriers and code-share
partners as that requirement would stifle competition.
    IATA states that requiring the marketing carrier to disclose fees
of operating carriers is consistent with the Department's policy
regarding code-share situations. IATA believes this notice can be
accomplished through a hyperlink to the code-share partner's website
that details their fees. Singapore Airlines notes that it already
provides information to consumers regarding significant differences in
services and fees among partners. It states that the best way to
accomplish this is to provide a link to the partner's listing. The
carrier also notes that its call center agents are trained to provide
this information. However, Singapore Airlines states that if the
Department proposes a harmonized scheme it should incorporate
reasonable and commercially viable allowances and fees. Qatar Airways
refers the Department to IATA Resolution 302 (``Baggage Provisions
Selection Criteria'') which will go into effect in April 2011. The
carrier states that under this resolution, there will be no standard
baggage allowances or charges, and each carrier will publish its own
rules. Qatar Airways notes that in the event of a conflict between
baggage allowances, the provision of the ``Most Significant Carrier,''
as determined by the Resolution, would apply. Qatar Airways urges the
Department to adopt a similar proposal. Many foreign carriers such as
Qantas, Air France, and KLM oppose a Department rule that would
prohibit differences in baggage fees between the marketing and
operating carrier, but do support disclosure of any differences between
the carriers.
    DOT Response: After considering the comments regarding the
differences between the ancillary services and fees between code-share
and interline carriers, the Department has decided not to require code-
share carriers to standardize their optional services and fees but to
specify with respect to baggage which carrier's allowances and fees
apply. We believe that baggage rules and fees should be treated
differently from fees for other optional services, as variations in
baggage fees among code-share and interline partners are likely to
result in significant inconvenience and confusion for many passengers.
The Department has received complaints from consumers who have been
faced with multiple, differing, and uncertain baggage allowances and
charges on both code-share and interline flights. Passengers experience
significant difficulties when the baggage allowances and fees that
apply at the beginning of their trip differ from what is applied later
because their itineraries include sectors where the baggage rules
differ, notwithstanding the fact that the passenger was traveling on a
single, code-share or interline ticket, service that carriers continue
to tout as ``seamless.''
    This final rule requires that for passengers whose ultimate
ticketed origin or destination is a U.S. point, the baggage allowances
and fees that apply at the beginning of the itinerary apply throughout
the itinerary. In the case of code-share flights that form part of an
itinerary whose ultimate ticketed origin or destination is a point in
the U.S., the final rule requires that the baggage allowances and fees
of the marketing carrier apply throughout the itinerary to the extent
that they differ between the marketing carrier and the operating
carrier. The Department is aware that these requirements may result in
the situation foreseen by ATA and US Airways of consumers on the same
flight being subject to different baggage allowances or fees. The
Department does not find anything unfair or deceptive about passengers
on the same flight being subject to different baggage provisions --
just as many passengers on the flight would have typically paid
different fares. Further, we believe this method of determining baggage
rules is consistent with Department policy and affords the greatest
protection to consumers from unfair application of baggage rules
throughout their itineraries. The Department also believes these
requirements align with the goals of IATA Resolution 302, which was
adopted by IATA members to bring transparency and clarity to baggage
rules on code-share and interline itineraries.
    As to whether in the case of code-share flights whether the
marketing/ticketing carrier should be required to disclose all of the
operating carrier's fees for optional services, we have decided to
require the marketing carrier to disclose on its website any difference
between its optional services and fees and those of the carrier
operating the flight. This disclosure may be made through providing a
hyperlink to the operating carriers' websites that detail the operating
carriers' fees for optional services, or to a page on its website that
lists the differences in policies amongst code-share partners. A
marketing/ticketing carrier may also choose to make this information
available to consumers through notice on its own website of differences
between its optional services and fees and those of the carrier
operating the flight. We are not requiring disclosure of the fees for
optional services of the operating carrier through reservation agents
or e-ticket

confirmations because we believe the costs to carriers of providing
this information in those formats far outweigh the benefit to
consumers, particularly since this final rule already requires U.S. and
foreign carriers to list on their website all of their fees for
optional services. Further, of all the fees for optional services
charged by airlines, consumers are generally most interested in fees
charged for baggage and the final rule already requires ticket agents
and carriers to disclose baggage fees and allowances on e-ticket
confirmations. As discussed earlier, the final rule also requires
carriers and ticket agents to inform passengers on the first screen in
which the ticket agent or carrier offers a fare quotation for a
specific itinerary selected by a consumer that additional airline fees
for baggage may apply and where consumers can go to see these baggage
fees.

9. Post-Purchase Price Increase

    The NPRM: The Department proposed to revise its current regulation
in 14 CFR 253.7 which allows post purchase price increases as long as
the consumer receives direct notice on or with the ticket of any
contract of carriage term that allows a carrier to increase the price
after purchase. Under the proposed rule, the Department would prohibit
all post-purchase price increases by carriers, tour operators, or other
sellers of air transportation, tours or tour components. The seller
would be prohibited from increasing the price after the consumer
completes the purchase. The Department asked for comment on the
proposal to ban post-purchase price increases as well as two
alternatives. The first proposed alternative would allow post-purchase
price increases, as long as the seller of air transportation
conspicuously disclosed to the consumer the potential for such an
increase and the maximum amount of such increase before the consumer
purchased the air transportation, and the consumer affirmatively agreed
to such an increase prior to the completion of the purchase. The second
alternative would allow post-purchase price increases (with disclosure)
that the consumer agrees to in advance of purchasing the ticket, but
would prohibit such an increase within thirty or sixty days of the
first flight in the purchased itinerary.
    Comments: Individual travelers and consumer organizations
representing travelers support the proposal to ban post-purchase price
increases in air transportation or tours by carriers and ticket agents.
Most consumer commenters state that an outright ban on post-purchase
price increases is fair. One commenter asserts that the practice of
increasing the price after purchase is egregious, especially in the
case of tour operators that raise prices due to fuel surcharges.
Another commenter asks for clarification on what an increase in the
price of the ticket means, because the commenter is concerned about
change fees being applied to an already purchased ticket. Most
commenters participating in Regulation Room favor an outright ban,
rejecting the alternatives that allow for conspicuous disclosure of a
potential price increase. A small number felt that the proposed
alternative of requiring conspicuous notice of a potential maximum
amount of an increase would adequately protect consumers.
    We also received comments from carriers and carrier organizations
regarding this proposal. ATA and its members support the primary
proposal to ban post-purchase price increases outright, and do not feel
that any alternative is necessary. ATA states that this is consistent
with industry practice. IATA and many foreign carriers are not opposed
to this proposal, but they do request that an exception be made for
post-purchase imposition of government-imposed taxes and fees. AEA,
ALTA, and AACO all support a limited exception to a complete ban in the
case of an increase in government-imposed taxes and fees. IACA states
that an outright ban on post-purchase increases is not consistent with
the European Union regulations which allow post-purchase price
increases in limited circumstances and with certain disclosures. IACA
seems to support one of the alternatives which would allow some
increase in the purchase price after purchase is completed.
    Air France, KLM and Qantas generally support the proposal with the
exception of government-imposed taxes and fees. Additionally Air
France, KLM and Qantas ask for clarification on when a ``purchase'' is
complete. Both airlines suggest that a booking that is being ``held''
by the airline but has not been purchased should not be a completed
purchase for purposes of this rule. Air New Zealand further comments
that change fees should be allowed because those apply when a consumer
is purchasing a new ticket and not traveling on the same ticket.
    USTOA is against the proposal for an outright ban without some
contingency built into the rule regarding tax increases and partial
customer payments. USTOA views a purchase as being complete if the
consumer has paid in full. USTOA also states that an exception to a ban
on post-purchase increases should be made for increases in government
taxes and fees, provided that the consumer is made aware of such a
potential increase. USTOA points out that the tour operators have no
control over the increase of the price of scheduled air transportation.
USTOA supports the alternatives, but believes that sellers should not
be required to state the maximum amount of a price increase because the
tour operator will not know the maximum amount.
    ASTA contends that in order to protect all sellers, a post-purchase
price increase should only be applied on ticketed reservations,
contracted group travel arrangements, and business to business
transactions between tour operators and airlines. ASTA states that a
travel agent does not impose the additional increases in price; rather,
the government or carriers impose taxes, fees and fuel surcharges. ASTA
prefers the first alternative which allows a post-purchase price
increase with specific notice of the increase and a maximum amount of
such increase identified to the consumer. ASTA suggests modifying the
first alternative so that the sellers of air transportation also
identify when they have imposed such post-purchase price increases in
the past.
    DOT Response: After fully considering the comments received, the
Department has decided to adopt the rule as proposed, but allow for an
exception related to an increase in government-imposed taxes and fees.
Although taxes and fees are not retroactively applied in the United
States, the Department is aware that government-imposed taxes and fees
levied by entities outside of the United States might be applied
retroactively to a completed ticket purchase. As these fees and taxes
are outside of the control of the seller of air transportation, the
Department agrees with ASTA and foreign carriers that sellers should be
protected from having to absorb the costs imposed by retroactive
application of government taxes and fees. This exception to a total ban
on post-purchase price increases is limited to government-imposed taxes
and fees imposed on a per-passenger basis. It does not include
increases in fuel surcharges or other carrier or ticket agent imposed
charges. The Department recognizes that changes may be necessary in the
way a tour operator prices or advertises packages to comply with the
prohibition on post-purchase prices increases with an exception only
for government-imposed taxes and fees imposed on a per-passenger basis.
    The final rule also requires sellers of air transportation to
disclose the potential for a post-purchase price increase related to an
increase in a

government-imposed tax or fee in a clear and conspicuous manner to the
consumer. The consumer must affirmatively agree to the potential for
such an increase prior to the purchase, for example by checking a box
on the final page prior to purchase. After purchase, the seller of air
transportation can only impose an increase due to government-imposed
taxes or fees if such an increase applies to that particular consumer
(e.g., the increase cannot be collected from consumers to whom a
general increase did not apply because they had purchased and fully
paid for their ticket months earlier, and/or because an increase has
been announced but is not yet in effect). For purposes of this section,
a purchase is not deemed to have occurred until the full amount agreed
upon has been paid by the consumer. Therefore, in the context of a tour
that contains an air component, a purchase is complete when the
consumer tenders the entire amount paid for the tour to the tour
operator. The Department finds it to be unfair for consumers to bear
the brunt of any increase in price after they have paid the full amount
agreed upon for air transportation or a tour.
    To further protect consumers, the final rule requires sellers of
air transportation, tours or tour components to notify a consumer of
the potential for a price increase that could take place prior to the
time that the full amount agreed upon has been paid by the consumer,
including but not limited to an increase in the price of the seat, an
increase in the price for the carriage of passenger baggage, an
increase in an applicable fuel surcharge, or an increase in a
government-imposed tax or fee. These entities must provide the consumer
an opportunity to decline the purchase without penalty or affirmatively
agree to the potential for such an increase prior to making any payment
for the scheduled air transportation, or tour or tour component that
includes scheduled air transportation. The Department believes that
such a disclosure will provide consumers with important information to
help them determine whether they want to purchase the air
transportation or tour and if so, the appropriate time to make payment.
    With regard to the comments relating to change fees, the Department
agrees with commenters that change fees do not constitute an increase
in the price of an already-purchased ticket, as technically the
consumer is purchasing a new ticket for new travel. However, the
Department considers it to be an unfair and deceptive practice within
the meaning of 49 U.S.C. 41712 for a seller of air transportation to
impose any fee on a consumer to change a travel itinerary unless this
possibility was disclosed to the consumer prior to purchase.
Additionally, to address the comments about the applicability of this
section to tickets marketed and sold in Europe, the final rule
specifies that with respect to ticket agents and foreign air carriers,
these requirements only apply to advertising or selling in the United
States of air transportation or tours.

10. Flight Status Change

    The NPRM: In the NPRM we proposed to require U.S. carriers that
account for at least 1 percent of domestic scheduled passenger revenues
(reporting carriers) to promptly provide passengers and other
interested parties notice of flight status changes, defined as a
cancellation of a flight or a delay of 30 minutes or more, for their
domestic scheduled passenger flights. We proposed to require that this
notification take place within 30 minutes after the carrier becomes
aware or should have become aware of the status change. A carrier would
be required to provide such information updates at boarding gate areas,
on airport display boards that are under a carrier's control, on the
homepage of a carrier's websites and through a carrier's telephone
reservation systems. To the extent that carriers permit passengers and
other interested persons to subscribe to receive flight information
updates, we proposed that carriers provide those updates in a timely
fashion, i.e., providing the information and subsequent updates within
30 minutes after the carrier becomes aware or should have become aware
of such information.
    We sought comments on whether these flight status notification
requirements should be extended to smaller U.S. carriers and/or
international operations of U.S. and foreign carriers, particularly
since we proposed to require U.S. and foreign air carriers conducting
scheduled passenger service with at least one aircraft with 30 or more
seats to adopt a customer service plan that pledged to notify consumers
in the boarding gate area, on board aircraft, via a carrier's telephone
reservation system and on a carrier's website of known delays,
cancellations and diversions. We specifically asked for information
about the cost or benefit of applying these requirements to smaller
carriers. We also asked for comments on whether the proposed means of
notification, i.e., website, telephone reservation system, airport
display boards under carriers' control, and boarding area, should be
mandatory, or whether we should leave it to the carriers to determine
what means they prefer to use. With respect to the timeliness standard,
we invited the public to comment on whether ``within 30 minutes after
the carrier becomes aware or should have become aware'' is a reasonable
standard. We also sought public opinion on whether the proposed
requirement that updated information should be provided for flight
delays of 30 minutes or more is an appropriate standard.
    Comments: Comments from consumers and consumer rights advocacy
groups overwhelmingly support our proposal for the largest U.S.
carriers to promptly notify passengers of changes in the status of
particular flights as a result of delays or cancellations. The New York
State Consumer Protection Board, AAPR, FlyersRights.org, Consumers
Union, and most commenters on RegulationRoom.org support expanding the
requirements to cover smaller U.S. carriers and international
operations of U.S. and foreign carriers. ACI-NA suggests that the rule
should include small carriers that serve small and non-hub airports,
arguing that the impact of delays and cancellation occurring at those
airports may have great adverse effect on larger connection hubs.
    Several foreign carriers specifically oppose applying the
notification requirements to foreign carriers. IACA states that the
proposed rule may potentially be an extraterritorial application of
U.S. law to activities in a foreign jurisdiction. Qantas and JetStar
Airways aver that the rule should not apply to foreign marketing code-
share partners, as the operating carriers are in the best position to
notify passengers of any flight status changes. ATA, on the other hand,
states that the marketing carrier should have the responsibility to
update flight information up until the date of flight departure, at
which point the operating carrier should be responsible for the
notification. ANA raises the issue of technical difficulties faced by
foreign carriers in complying with the electronic notification rule
when they must conduct extensive automation modifications including
sharing data with code-share partners. Many carriers contend that when
information is not timely transmitted to carriers by FAA, carriers
should not be held liable. TUI Travel asks that foreign leisure travel
charter operators be exempted from the rule based on its assertion that
there are already established communication channels between passengers
and carriers through the tour operators.
    With respect to the means of notification, many commenters from the

consumer side urge the Department to mandate all four methods (i.e., at
gate boarding areas, on airport display boards that are under carrier's
control, and through carriers' website and telephone reservation
systems). The New York State Consumer Protection Board also recommends
that we require carriers to offer passengers the opportunity to
subscribe to flight status service updates via voicemail and electronic
media. Industry commenters, however, argue that the Department should
provide carriers flexibility in choosing what means they use. ATA
specifically requests that the Department not require any new
technology or program that is not currently implemented by the
carriers.
    ATA raises concern that our proposal on flight status change
notification may conflict with the Federal Communication Commission
(FCC)'s Telephone Consumer Protection Act rule. In a March 2010 NPRM,
the FCC proposed to require consumers' prior written consent for
prerecorded calls, eliminating the exemption for parties that have
already established business relationships (75 FR 13471, March 22,
2010). If adopted, the FCC rule would prohibit carriers from leaving
prerecorded telephone messages concerning flight delays and
cancellations with any passengers from whom carriers do not have prior
written consent.
    Regarding the proposed timeliness standard, the New York State
Consumer Protection Board states that the 30-minute standard is good
but urges the Department to adopt a more stringent standard that
requires notification to be provided ``no later than 20 minutes'' after
the carrier is aware or should have become aware of the flight status
change. Other commenters from the consumer side generally welcome the
30-minute standard as being reasonable and not too burdensome to the
carriers. Among the carriers and carrier associations that commented on
this proposal, there is little objection to the ``30 minutes after the
carrier becomes aware'' requirement. However, most of those commenters
are concerned about the ``30 minutes after the carrier should have
become aware of the flight status change'' standard. IATA asks the
Department to clarify the meaning of this standard, and ATA argues that
this is a subjective standard that makes compliance difficult.
Southwest Airlines supports ATA's position and states that this
standard is too vague and is likely to be inconsistently applied and
enforced.
    Regarding the proposal that notification should be provided to
passengers for any flight delays that are expected to last for 30
minutes or more, both consumers and carrier commenters are supportive
of this standard. ATA also recommends that the Department require the
airports to update display boards under the airports' control every 30
minutes when a flight's status changes. ASTA supports ATA's position
and states that it is important that the information provided by the
carriers and airports be current in order to avoid passenger confusion.
    DOT Response: The final rule requires U.S. and foreign carriers
conducting scheduled passenger service to and from the U.S. with any
aircraft with 30 or more seats to make information available to
passengers and other interested parties about a change in flight
status. It is important for passengers as well as persons dropping
passengers off for outbound flights or meeting passengers on incoming
flights to stay informed on a timely basis of delays, diversions or
cancellations affecting their flights in order to avoid unnecessary
waits at, or pointless trips to, an airport. The need for, and
importance of timely notification regarding flight delays, diversions
and cancellations exists whether it is a U.S. or foreign carrier
operating the flight and whether it is a non-reporting or reporting
carrier operating the flight. On code-shares, the final rule leaves it
up to the carriers to determine whether the marketing or operating
carrier will provide the required notification about change in flight
status. We expect that foreign carriers and non-reporting U.S. carriers
will work with their code-share reporting-carrier partners, most of
which already have the necessary systems in place, to comply with the
notification requirements contained in this final rule. For enforcement
purposes, the Department's Aviation Enforcement Office will hold both
the code-share marketing carrier and the operating carrier responsible,
jointly and severally, for failure to comply with this rule.
    The final rule mandates that the flight status notifications be
provided through the four methods proposed: at the boarding gate area,
on carriers' websites, through carriers' telephone reservations
systems, and by airport display boards that are under the carriers'
control. If an airport-controlled display system accepts flight status
updates from carriers, covered carriers must furnish this information
to that airport within the timeframes provided in this rule. We do not
believe mandating all four methods is burdensome to carriers as it is
our opinion that these four methods represent the most common ways used
by carriers to communicate with passengers and other interested parties
who seek and obtain information about the status of the schedules for
their flights.
    These varied flight status notification methods make it more likely
that passengers and other interested parties will be able to access
this information when they need it. For example, individuals who do not
have access to the Internet may call a carriers' reservation telephone
system to learn about delays, cancellations, or diversions.
Notification at the airports through the airport display boards and in
the boarding gate area is also essential when passengers are already at
the airports. Regarding notification at the boarding gate area, the
responsibility of a carrier to notify passengers does not begin until
the gate is staffed for the specific flight in question. With respect
to notification provided through carriers' telephone reservation
systems, we clarify that such notification is only required upon the
request by a consumer.
    In addition to these four methods, we are also requiring carriers
that offer passengers the opportunity to subscribe to a flight status
update service to ensure that required information is provided promptly
and accurately. We note that many carriers already have in place
subscription services for passengers to receive flight status
notifications through various widely used media, including computer-
generated telephone/voicemail, text messages and emails. To the extent
such services are offered to the public, this final rule requires that
the notifications be delivered to the passenger by whatever means is
available to the carrier and of the passenger's choice within 30
minutes after the carrier becomes aware of a change in the status of a
flight. We do not believe, as asserted by some commenters, that
applying this standard will dissuade carriers from voluntarily
providing such subscription services for fear of the potential
enforcement consequences. We are confident that market forces and
competition will continue to be the driving force for carriers to
improve the quality of their customer care.
    In response to ATA's concern that the Department's flight status
notification requirement may conflict with the FCC's rule, the
Department wishes to provide the following clarification. The
Department has submitted comments on the FCC's rulemaking, requesting
the FCC to maintain its current ``established business relationship''
exemption to the extent necessary to permit carriers to notify their
customers of flight status

changes through telephone messages without obtaining each customer's
prior written consent. To the extent FCC adopts a final rule as it
proposed, the Department does not see a direct conflict between the FCC
rule and our rule. In this final rule, we do not require carriers to
call each passenger on the affected flight to notify them about the
flight status change. Likewise we do not mandate subscription services.
Therefore, if carriers choose to provide subscription services, they
could either eliminate the voice message choice from the choices of
contact available to subscribers, or obtain the subscribers' written
consent at the time of subscription.
    Most carriers that commented on the proposals objected to the ``30
minutes after the carrier should have become aware of flight status
change'' standard for notifying consumers about the flight
irregularity, arguing that it is vague and subjective. The Department
agrees with the concerns expressed that this standard may become
challenging to comply with and enforce. Therefore, we are removing the
``should have become aware'' standard from the final rule. With respect
to the ``30 minutes after the carrier becomes aware'' standard, we
believe further clarification is necessary. For enforcement purpose, we
consider that the carrier has become aware of the flight status change
as soon as the carrier's system operation control center (SOCC) or
equivalent facility, if it goes by another name, learns of it. We
recognize that carriers cancel, delay and divert flights based on
information from many sources, both internal as well as from third
parties, such as FAA and airports. Whatever the source of information
leading to the decision for a flight status change, it is the carrier's
sole responsibility to distribute the information, within 30 minutes,
to the downstream operational staff, such as webmasters, airport
station managers, reservation system managers, and gate agents. A
carrier has an affirmative duty at all times to keep track of flight
status changes and maintain open channels of communication. We consider
it an unfair and deceptive practice when the carrier's failure to
obtain and pass on to consumers up-to-date and accurate information is
caused by the carrier's own procedural shortcomings.
    Much less contested is our proposed standard that carriers notify
passengers and other interested parties regarding flight delays of 30
minutes or more. Many consumer and industry commenters agree that this
is a reasonable standard that strikes a balance between providing the
most useful and accurate update to the passengers and the costs
incurred by the carriers associated with providing such information.
Consequently, the final rule maintains this standard. We emphasize that
this is a minimum standard and carriers are free to and urged to
provide notification about briefer delays, as many already have done
for their subscription services.
    Under the final rule, the ``30 minutes after the carrier becomes
aware of the flight status change'' standard also applies to any
information updates provided to passengers who have already received
previous notification regarding the status change of their flights. We
disagree with some commenters' contention that updating flight status
change every 30 minutes if the flight is delayed again is not necessary
if it is close to the scheduled departure time and passengers are
already at the airport. This information is important for passengers
whose flights downline depend on the schedule of aircraft used for the
flight experiencing the irregularity, as well as for persons who may be
meeting passengers on the affected flight. Finally, we note that the
Department does not directly have the authority to require airports to
provide flight status information to consumers as some commenters
suggested.

11. Choice-of-Forum Provisions

    The NPRM: The Department proposed to codify the policy of the
Department's Aviation Enforcement Office that choice-of-forum
provisions are unfair and deceptive for air transportation sold in the
U.S. when used to limit a passenger's legal forum to a particular
inconvenient venue. The proposed rule would specifically permit
consumers to file suit where they live provided that the carrier does
business within that jurisdiction. The Department requested comments on
this proposal and on the use of such choice-of-forum provisions in
contracts of carriage.
    Comments: Consumer groups and individual consumers support this
proposal. Flyersrights.org, while supporting the proposal, does not
think the proposal goes far enough to address the real barrier to legal
relief for consumers in court, which they say is Federal preemption of
state laws. ATA and most carriers support this proposal, most noting
that they do not have such restrictive choice-of-forum provisions in
their contracts of carriage. Spirit Airlines opposes this provision.
Spirit believes small carriers should not have to face the costs and
burdens associated with litigating complaints in jurisdictions far from
their headquarters location. IATA and IACA, in addition to many foreign
airlines, expressed concerns about this provision's applicability to
foreign airlines and interference with European rules governing the
forum for claims. The Air Transport Association of Canada does not feel
the use of choice-of-forum restrictions should be banned and feels that
making clear the forum in which consumers must litigate consumer
complaints is helpful to consumers.
    DOT Response: The Department has decided to adopt the rule as
proposed, i.e., to prohibit a U.S. carrier from including language in
its contract of carriage precluding a passenger from bringing a
consumer-related claim involving a domestic flight against the carrier
in any court of competent jurisdiction. The Department feels that if a
carrier reaches out to do business in a particular jurisdiction, i.e.,
reaches out to solicit business within that jurisdiction, and sells
tickets in a jurisdiction, then it is fair and reasonable to expect
that the carrier can defend itself against litigation brought by a
consumer who resides in that jurisdiction. The cost of this proposal is
minimal, as most U.S. carriers already face litigation throughout the
United States. As a point of clarification, the forum for consumer
claims related to travel on international flights to or from the United
States is governed by the Montreal Convention or Warsaw Convention,
depending on the type of flight and its origination/destination.
Additionally this change does not apply to charter flights. The choice
of forum for charter flights can be addressed in the individual
contracts between the charter operator and the participant.

12. Peanut Allergies

    The NPRM: In the NPRM, the Department described various measures to
provide greater access to air travel for individuals with severe peanut
allergies. The Department solicited comment on several alternatives to
accommodate air travelers with severe peanut allergies including (1)
banning the serving of peanuts and all peanut products by both U.S. and
foreign carriers on flights covered by the Department's disability
rule; (2) banning the serving of peanuts and all peanut products on all
such flights where a passenger with a peanut allergy is on board and
has requested a peanut-free flight in advance; or (3) requiring a
peanut-free buffer zone in the immediate area of a passenger with a
medically documented severe allergy to peanuts if the passenger has
requested a peanut-free flight in advance. The Department asked several
questions associated with accommodating passengers who have a

severe peanut allergy on flights. For instance, we asked about the
likelihood of a person with a severe allergy experiencing a serious
adverse health reaction due to exposure to airborne peanut particles
onboard an aircraft. The Department asked about steps a person with a
severe peanut allergy could take to prepare for a flight. We also asked
about how we should define a peanut product if we chose to take action
on the issue.
    Comments: Most of the comments regarding accommodations for persons
with peanut allergies were from individual consumers who favor a total
ban on peanuts and peanut products on aircraft, including peanut
products that other passengers bring on board aircraft. Most of these
consumers either suffer from a peanut allergy or are related to someone
with an allergy. A smaller number of individual commenters oppose any
ban on peanut products while others support prohibiting carriers from
serving peanuts or peanut products on aircraft. Commenters who oppose a
ban on peanut and peanut products as well as commenters who favor only
a service ban on peanut and peanut products contend that a total ban on
peanuts and peanut products is impractical and unenforceable because
there is no way to stop passengers from bringing peanut products into
the cabin. There was also disagreement as to whether peanut-free
flights or peanut buffer zones are a viable option. Many commenters
assert that neither peanut-free flights nor peanut buffer zones are a
feasible option since the peanut protein could be present in the buffer
zones or on the `peanut free' flight as residue from previous flights.
These consumers state that it is unreasonable to expect, and unlikely,
that a carrier would thoroughly clean the aircraft between each flight
to ensure that all peanut residue is removed from the cabin.
    The peanut trade organizations, led by the American Peanut Council
(APC), Peanut & Tree Nut Processors Association (PTNPA) and the Western
Peanut Growers Association (WPGA), oppose any Department action that
would limit the availability of peanuts on commercial aircraft. All
three organizations point out the Department is restricted from issuing
any regulation regarding the service of peanuts on aircraft per Public
Law 106-69, which is discussed below. APC also states that research
indicates that a severe anaphylactic reaction to peanuts can only occur
when there is oral ingestion.
    The Food Allergy & Anaphylaxis Network (FAAN) states that the
scientific literature does not, at this time, address whether a
passenger would have a severe adverse reaction by being exposed to
airborne peanut particles but notes that airborne reactions have been
anecdotally reported. FAAN, and other allergy support organizations,
believe that the most practical solution is for carriers not to serve
packaged peanut snacks on flights. FAAN acknowledges that many
carriers, both U.S. and foreign, are already taking this approach. FAAN
is opposed to the creation of ``buffer zones'' as it believes that to
be effective the seats in a buffer zone would need to be peanut-free
for all flights on a particular aircraft.
    Twenty-five members of the U.S. House of Representatives submitted
a joint letter expressing their opposition to any ban on peanuts and
peanut products and requesting that the Department not proceed with a
rulemaking or any other anti-peanut measures pending the completion of
a peer-reviewed study as described in Public Law 106-69. Senator
Christopher Dodd also commented, stating that a complete ban on peanuts
and tree nuts would be the most direct solution but that this step is
drastic in nature and impractical. Senator Dodd suggests that DOT
encourage a focus on further education and training for airline
employees regarding passengers with peanut allergies as well as a
consistent application of policies by individual airlines.
    ATA, the Air Transport Association of Canada, and IACA are against
a ban on peanuts, stating that carriers cannot ensure that other
passengers will not bring their own peanut products on board for
consumption. ATA and IACA also state that carriers have adopted their
own policies and procedures to handle accommodations for peanut
allergies. In general, individual carriers have deferred this topic to
their respective trade organizations. However, some carriers such as
Southwest and Delta point out that they already have voluntarily
adopted policies regarding buffer-zones for peanut allergy sufferers.
Some foreign carriers, such as Lufthansa, Air France and KLM, state
that a service ban on peanut products is not efficient and would create
increased burdens and costs for airlines. Additionally Lufthansa points
out that the creation of a service ban on peanut products could give a
passenger the false impression that the flight is totally safe and free
of peanuts.
    DOT Response: On June 25, 2010, DOT published a clarification
notice stating that the Department will comply with the requirements of
the Department of Transportation and Related Agencies Appropriations
Act of 2000, Public Law 106-69--Oct. 9, 1999. This law states:

    Hereafter, none of the funds made available under this Act, or
any other Act, may be used to implement, carry out, or enforce any
regulation issued under section 41705 of title 49, United States
Code, including any regulation contained in Part 382 of title 14,
Code of Federal Regulations, or any other provision of law
(including any Act of Congress, regulation, or Executive order or
any official guidance or correspondence thereto), that requires or
encourages an air carrier (as that term is defined in section 40102
of title 49, United States Code) to, on intrastate or interstate air
transportation (as those terms are defined in section 40102 of title
49, United States Code)--(1) provide a peanut-free buffer zone or
any other related peanut-restricted area; or (2) restrict the
distribution of peanuts, until 90 days after submission to the
Congress and the Secretary of a peer-reviewed scientific study that
determines that there are severe reactions by passengers to peanuts
as a result of contact with very small airborne peanut particles of
the kind that passengers might encounter in an aircraft.

    At this time, given the provisions of Public Law 106-69, the
Department will decline to take action due to a lack of the peer-
reviewed study referred to in the law.

13. Effective Date of Rule

    The NPRM: In the NPRM, we proposed that the final rule take effect
180 days after its publication in the Federal Register. We stated that
we believe 180 days would allow sufficient time for carriers to comply
with the various proposed requirements and invited comment on whether
180 days is the appropriate interval for completing the changes.
    Comments: We received few comments on the effective date of the
final rule. Among carrier and carrier association commenters, RAA
states that its members need a minimum of 180 days to implement the new
rule. On the consumer side, AAPR supports the Department's 180-day
proposal. FlyersRights.org and its supporters suggest that the
effective date should be no longer than 120 days after the final rule's
publication date. CTA believes the rule should become effective 120-150
days after the publication date so it will become effective before the
summer travel season starts. One consumer stated that 180 days is
reasonable for implementing most items but carriers may need additional
time for some of the proposed changes.
    DOT Response: Based on our experience in implementing the December
2009 final rule, which became effective on April 29, 2010, we believe
that 120 days is sufficient for

U.S. and foreign carriers to implement the various requirements in this
final rule, with the exception of the requirements pertaining to full-
fare advertising. The new full fare advertising requirements will not
take effect until 180 days after the publication of this final rule in
the Federal Register to mitigate the costs of print advertising
revision by reducing the amount of advertising slated for use that will
have to be pulled. We are imposing a 120-day effective date for the
other requirements in the final rule to enable consumers to begin
benefiting from these requirements as soon as possible.

Regulatory Analyses And Notices

A. Executive Order 12866 (Regulatory Planning and Review), DOT
Regulatory Policies and Procedures, and Executive Order 13563
(Improving Regulation and Regulatory Review)

    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 in accordance with Executive Order 12866 (Regulatory Planning
and Review) and Executive Order 13563 (Improving Regulation and
Regulatory Review) and is consistent with the requirements in both
orders. Executive Order 13563 refers to nonquantifiable values,
including equity and fairness. This rule promotes such values by
improving transparency, and by preventing unexpected charges to
passengers. The final Regulatory Evaluation concludes that the
monetized benefits of the final rule exceed its monetized costs, even
without considering non-quantifiable benefits. The expected present
value of monetized passenger benefits from the final rule over a 10
year period using a 7% discount rate is estimated at $45.0 million and
the expected present value of monetized costs incurred by carriers and
other sellers of air transportation to comply with the final rule over
a 10 year period using a 7% discount rate is $30.7 million. The present
value of monetized net benefits over a 10 year period at a 7% discount
rate is $14.3 million.
    Below, we have included a table outlining the costs and benefits of
the requirements in this final rule. A copy of the final Regulatory
Evaluation has been placed in the docket.

    Comparison of Requirement-Specific Benefits and Costs, 2012-2021
          [Discounted at 7 percent annually to 2012 $ millions]
------------------------------------------------------------------------
                                                                Total
------------------------------------------------------------------------
Area 1: Expansion of tarmac contingency plan requirements
 and extension of EAPP1 requirements to cover foreign
 carriers:
    Monetized Benefits.....................................         $1.2
    Monetized Costs........................................          3.0
    Monetized Net Benefits.................................         -1.8
Additional unquantifiable benefits and costs that are
 directly or indirectly related to this rulemaking, which
 result in benefits that the Department has determined
 justify the costs:
    Improved Management of Flight Delays
    Decreased Anxiety With Regard to Flying
    Reduced Stress Among Delayed Passengers and Crew
    Improved Overall Carrier Operations
    Improved Customer Good Will Toward Carriers
    Additional Gate Return Costs Incurred by Carriers
    Time Required for Airport/Terminal Authorities, CBP/TSA
     to Coordinate Plans
Area 2: Expanded tarmac delay reporting and application to
 foreign carriers:
    Monetized Benefits*....................................          0.0
    Monetized Costs........................................          0.8
    Monetized Net Benefits.................................         -0.8
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Increased Efficiency of US DOT Oversight and
     Enforcement Office Operations
    Improved Management of Flight Delays
Area 3: Establishment of minimum standards for customer
 service plans (CSPs) and extension of EAPP1 Final Rule
 Areas to cover foreign carriers:
    Monetized Benefits.....................................          7.7
    Monetized Costs........................................          7.4
    Monetized Net Benefits.................................          0.3
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Decreased Confusion and Uncertainty Regarding
     Department CSP Requirements
    Improved Customer Service From Foreign Carrier Self-
     Auditing of Adherence to CSPs
    Improved Customer Good Will Toward Carriers
Area 4: Foreign carrier posting of tarmac delay contingency
 plans, CSPs, and contracts of carriage on websites:
    Monetized Benefits*....................................          0.0
    Monetized Costs........................................          1.0
    Monetized Net Benefits.................................         -1.0
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Decreased Occurrence of and Improved Resolution of
     Customer Complaints
Area 5: Extension of EAPP1 Final Rule Areas for carriers to
 respond to consumer complaints to cover foreign carriers:
    Monetized Benefits.....................................          0.0
    Monetized Costs........................................          1.9
    Monetized Net Benefits.................................         -1.9
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:

    Decreased Anger Toward Carriers During Resolution of
     Complaints
Area 6: Changes in denied boarding compensation (DBC)
 requirements:
    Monetized Benefits*....................................          0.0
    Monetized Costs........................................          1.0
    Monetized Net Benefits.................................         -1.0
Additional unquantifiable benefits and costs that are
 directly or indirectly related to this rulemaking, which
 result in benefits that the Department has determined
 justify the costs:
    Decreased Confusion Regarding DBC Provisions
    Decreased Resentment Among Some Passengers Regarding
     Different Compensation Received
    Programming and Training Costs for Foreign Carriers
Area 7: Full-fare advertising and prohibition on opt-out
 provisions:
    Monetized Benefits.....................................         29.0
    Monetized Costs........................................          6.8
    Monetized Net Benefits.................................         22.2
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Travelers Less Likely to Mistakenly Purchase Unwanted
     Services and Amenities
    Improved Customer Good Will Toward Carriers
Area 8: Expanded disclosure of baggage and other optional
 fees:
    Monetized Benefits*....................................          0.0
    Monetized Costs........................................          7.9
    Monetized Net Benefits.................................         -7.9
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Decreased Time at Check-in
    Improved Customer Good Will Toward Carriers
Area 9: Limitations on post-purchase price increases:
    Monetized Benefits.....................................          7.2
    Monetized Costs........................................          1.1
    Monetized Net Benefits.................................          6.1
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Improved Customer Good Will Toward Carriers
Area 10: Prompt passenger notification of flight status
 changes:
    Monetized Benefits*....................................          0.0
    Monetized Costs*.......................................          0.0
    Monetized Net Benefits.................................          0.0
Additional unquantifiable benefits that are directly or
 indirectly related to this rulemaking, which result in
 benefits that the Department has determined justify the
 costs:
    Greater Comfort and Certainty From Knowing That
     Information Will Be Available in Timely Manner
Area 11: Limitations on venue provisions in contracts of
 carriage:
    Monetized Benefits*....................................          0.0
    Monetized Costs*.......................................          0.0
    Monetized Net Benefits.................................          0.0
Additional unquantifiable benefits and costs that are
 directly or indirectly related to this rulemaking, which
 result in benefits that the Department has determined
 justify the costs:
    Improved Customer Good Will Toward Carriers
    Reduced Costs for Consumers to File/Adjudicate Claims
    Increased Costs for Carriers to Settle/Adjudicate
     Claims
Requirement Areas 1-11 Total:
    Monetized Benefits.....................................         45.0
    Monetized Costs........................................         30.7
    Monetized Net Benefits.................................         14.3
------------------------------------------------------------------------
* Monetized estimates could not be developed from the information
  available on the record.

B. 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.
Our analysis identified a total of 50 small U.S. air carriers (i.e.,
carriers that provide air transportation exclusively with aircraft that
seat no more than 60 passengers), 50 small airports (i.e., privately-
owned airports that have annual revenues of no more than $7 million or
publicly-owned airports owned by jurisdictions with less than 50,000
inhabitants), as many as 11,625 small travel agencies (i.e., travel
agencies with no more than $3.5 million in annual revenues) and as many
as 2,720 small tour operators (i.e., tour operators with no more than
$7.0 million in annual revenues) potentially affected by the
requirements of the final rule. While most regulation of the air
transportation sector is concerned with carriers, certain elements of
this final rule impose new requirements on small travel agents and tour
operators. Small U.S. carriers will need to comply with additional
requirements relating to coordination of tarmac contingency plans,
reporting tarmac delays, specific customer service plan provisions,
denied boarding compensation,

advertising of air fares, and disclosure of baggage and other optional
fees. Small travel agents and tour operators will have to comply with
the requirements relating to advertising of air fares, disclosure of
baggage and other optional fees, and pre-purchase disclosures on price
increases.
    The Department believes that the economic impact will not be
significant for a number of reasons. First, most small U.S. air
carriers operate passenger service exclusively with aircraft that have
fewer than 30 seats. The requirements relating to tarmac contingency
plans, reporting tarmac delays, specific customer service plan
provisions, and denied boarding compensation will not apply to these
carriers. In addition, the per-carrier and per-ticket agent compliance
costs estimated in the final regulatory analysis for the remaining
requirements are very small--less than $17,000 per affected small
carrier operating aircraft with between 30 and 60 seats, less than
$4,500 per small carrier operating aircraft with fewer than 30 seats,
and about $3,500 per small travel agent or tour operator with online
booking capability to achieve compliance during the first year the
final rule takes effect and no more than a few hundred dollars to
maintain compliance in subsequent years. On the basis of this
examination, the Department certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
A copy of the Final Regulatory Flexibility Analysis has been placed in
docket.
C. Executive Order 13132 (Federalism)
    This Final Rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule does not include any provision that: (1) 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; (2) imposes
substantial direct compliance costs on State and local governments; or
(3) preempts State law. States are already preempted from regulating in
this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore,
the consultation and funding requirements of Executive Order 13132 do
not apply.
D. Executive Order 13084
    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13084 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not significantly or uniquely affect the communities of the Indian
Tribal governments or impose substantial direct compliance costs on
them, the funding and consultation requirements of Executive Order
13084 do not apply.
E. Paperwork Reduction Act
    As required by the Paperwork Reduction Act of 1995, DOT has
submitted the Information Collection Requests (ICRs) abstracted below
to the Office of Management and Budget (OMB). Before OMB decides
whether to approve those proposed collections of information that are
part of this final rule and issue a control number, the public must be
provided 30 days to comment. Organizations and individuals desiring to
submit comments on the collection information requirements should
direct them to the Office of Management and Budget, Attention: Desk
Officer for the Office of the Secretary of Transportation, Office of
Information and Regulatory Affairs, Washington, DC 20503, and should
also send a copy of their comments to: Department of Transportation,
Office of Aviation Enforcement and Proceedings, Office of the General
Counsel, 1200 New Jersey Avenue, SE., Washington, DC 20590. OMB is
required to make a decision concerning the collection of information
requirements contained in this rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication.
    We will respond to any OMB or public comments on the information
collection requirements contained in this rule. OST may not impose a
penalty on persons for violating information collection requirements
which do not display a current OMB control number, if required. OST
intends to renew current OMB control numbers for the three new
information collection requirements resulting from this rulemaking
action. The OMB control number, when renewed, will be announced by
separate notice in the Federal Register.
    The ICRs were previously published in the Federal Register as part
of NPRM (75 FR 32318, June 8, 2010) and the Department invited