[Federal Register: November 20, 2007 (Volume 72, Number 223)]
[Proposed Rules]
[Page 65233-65237]
[DOCID:fr20no07-12]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 234, 253, 259, and 399

[Docket No. DOT-OST-2007-0022]
RIN No. 2105-AD72

Enhancing Airline Passenger Protections

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

ACTION: Advance Notice of Proposed Rulemaking (ANPRM).

-----------------------------------------------------------------------

SUMMARY: The Department of Transportation (DOT or Department) is
seeking comment on whether it should adopt a rule to enhance airline
passenger protections in the following seven ways: require carriers to
adopt contingency plans for lengthy tarmac delays and incorporate them
in their contracts of carriage, require carriers to respond to consumer
problems, deem operating a chronically delayed flight to be unfair and
deceptive, require carriers to publish delay data, require carriers to
publish complaint data, require on-time performance reporting for
international flights, and require carriers to audit their compliance
with their customer service plans. We are proposing that most of these
measures cover certificated or commuter air carriers that operate
domestic scheduled passenger service using any aircraft with more than
30 passenger seats. We are proposing that one measure cover the largest
U.S. and foreign carriers and that two other measures cover the largest
U.S. carriers.

DATES: Comments should be filed by January 22, 2008. Late-filed
comments will be considered to the extent practicable.

ADDRESSES: You may file comments identified by the docket number DOT-
OST-2007-0022 by any of the following methods:
     Federal eRulemaking Portal: go to http://www.regulations.gov
 and follow the online instructions for submitting

comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave., SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    Instructions: You must include the agency name and docket number
DOT-OST-2007-0022 or the Regulatory Identification Number (RIN) for the
rulemaking at the beginning of your comment. All comments received will
be posted without change to http://www.regulations.gov, including any

personal information provided.
    Privacy Act: Anyone is able to search the electronic form of all
comments received in any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association,

business, labor union, etc.). You may review DOT's complete Privacy Act
statement in the Federal Register published on April 11, 2000 (65 FR
19477-78), or you may visit http://DocketsInfo.dot.gov.

    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or to the street

address listed above. Follow the online instructions for accessing the
docket.

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

SUPPLEMENTARY INFORMATION:

Background

    Beginning in December of 2006 and continuing through the early
spring, weather problems kept more than a few aircraft sitting for
hours on airport tarmacs. Many passengers were stranded on these
aircraft for periods of three hours, six hours, and in some cases even
longer. At the request of the Secretary of Transportation, the
Department's Office of the Inspector General has reviewed and reported
on these incidents, focusing its report on how the carriers can improve
passenger comfort and convenience during these extremely long delays on
the ground.
    Another significant issue for passengers is the high incidence of
less extreme flight delays. In the first seven months of this year,
only 72.23 percent of flights arrived on time, a lower percentage for
this period than in any of the past 12 years.
    The industry and interested observers have attributed both the
marathon tarmac waits and the epidemic of flight delays to a number of
factors in addition to the weather. Some posit that because carriers
are now flying full planes and have no excess capacity in their systems
and thus no margin for error in the event of problematic weather,
revenue concerns mandate that they delay a flight until it can take
off, even for hours if necessary, rather than cancel it. Some fault the
air traffic control system and the airports for acting too slowly to
relieve capacity and operational constraints. Some attribute the
overload problem to the widespread replacement of larger aircraft with
smaller regional jets scheduled at higher frequencies and call for the
Federal Aviation Administration (FAA) to require carriers to trim their
schedules. Others point to the steep rise in the use of private jets.
    Some of the capacity and operational constraints that have
undoubtedly contributed to tarmac delays and other flight delays are
being addressed by the FAA and certain airports in other contexts. In
the meantime, however, this Department is seeking comment on several
measures to address passengers' concerns. 49 U.S.C. 41712, in concert
with 49 U.S.C. 40101(a)(4) and 40101(a)(9) and also 49 U.S.C. 41702,
gives us the authority and the responsibility to protect consumers from
unfair and deceptive practices and ensure safe and adequate service in
air transportation. We are therefore seeking comment on eight potential
solutions, described below, intended to ameliorate some of the problems
facing passengers without creating undue burdens for the carriers. We
also invite commenters to suggest other consumer protection measures
that might help alleviate the problems that passengers face. Commenters
should bear in mind the Department's responsibility to strike the
proper balance between protecting consumers and affording carriers as
much leeway as possible to choose their responses to the rapid
developments that confront them in the marketplace.

1. Require Contingency Plans for Lengthy Tarmac Delays and Incorporate
Them in Their Contracts of Carriage

    We seek comment on amending 14 CFR part 253 to require any
certificated or commuter air carrier \1\ that operates domestic
scheduled passenger service using any aircraft with more than 30
passenger seats to develop a contingency plan for long ground delays on
the tarmac for all of its flights (including those that use aircraft
with 30 or fewer seats) and to incorporate this plan in its contract of
carriage. Among other things, each such plan would have to include the
following:
---------------------------------------------------------------------------

    \1\ A certificated air carrier is a U.S. direct air carrier that
holds a certificate issued under 49 U.S.C. 41102 to operate
passenger and/or cargo and mail service or that holds an exemption
to conduct direct passenger operations under 49 U.S.C. 41102. Air
taxi operators or and commuter air carriers operating under 14 CFR
part 298 are not certificated air carriers. Some carriers that would
otherwise be eligible for air taxi or commuter status have opted to
be certificated. A commuter air carrier is an air taxi operator that
carries passengers on at least five round trips per week on at least
one route between two or more points according to published flight
schedules. See 14 CFR 298.2. An on-demand air taxi is an air taxi
operator that carries passengers or property and is not a commuter
air carrier as defined in 14 CFR part 298.
---------------------------------------------------------------------------

     The maximum tarmac delay that the carrier will permit,
     The amount of time on the tarmac that triggers the plan's
terms,
     Assurance of adequate food, water, and lavatory
facilities, and medical attention if needed while the aircraft remains
on the tarmac,
     Assurance of sufficient resources to implement the plan,
and
     Assurance that the plan has been coordinated with airport
authorities at medium and large hub airports.
    With the contingency plan incorporated in the contract of carriage,
passengers would be able to sue in court for damages if a carrier
failed to adhere to its plan. Carriers would also be required to make
their complete contracts of carriage (including contingency plans)
available on their Web sites. Further, carriers would be required to
retain for two years the following information about any on-ground
delay that either triggers their contingency plans or lasts at least
four hours: (1) The length of the on-ground delay, (2) the cause of the
delay, and (3) the actions taken to minimize hardships for passengers,
including the provision of food and water, the maintenance of
lavatories, and medical assistance. The regulation would specify that
the Department would consider failure to do any of the following to be
an unfair and deceptive practice within the meaning of 49 U.S.C. 41712
and subject to enforcement action: (1) Adopt a contingency plan and
incorporate it in the contract of carriage, (2) implement the plan as
written, (3) make the plan available on line, or (4) retain information
about every on-ground delay that either triggers the contingency plan
or lasts at least four hours.
    We believe that requiring the retention of records for tarmac
delays that last at least four hours would enhance the Department's
ability to monitor, analyze, and address the problems associated with
long delays. We have chosen four hours as the threshold in order to
foster consistency for purposes of analysis, given that carriers are
likely to make disparate time choices for their own contingency plans.
(We do not intend to suggest, nor are we proposing to adopt, a specific
amount of time during or after which carriers must allow passengers to
deplane. Rather, we expect each carrier to craft its own standard on
this issue.) We invite comment on whether four hours is an appropriate
delay duration for triggering this new recordkeeping requirement.
    We are also not proposing at this time to have the Department
review and approve carriers' contingency plans. We believe the better
approach to be to allow the carriers to set the terms of their plans
and rely on the legal system and our enforcement powers to ensure that
the terms are followed. If this

approach proves inadequate, we can always revise it.
    We invite interested persons to comment on this proposal. What
costs would it impose on the carriers? Would it have any negative
consequences? Is it likely to succeed in protecting passengers from the
conditions described above? If not, why not? What additional or
different measures should we consider adopting? Would incorporation of
the contingency plan in the contract of carriage give consumers
adequate notice of what might happen in the event of a long delay on
the tarmac? When prolonged delays occur, would these measures succeed
in reducing the resultant uncertainty and discomfort for passengers?
Should the types of carriers covered by the regulation be expanded or
limited? What would be the cost or benefit of narrowing or expanding
coverage? Should the requirement of coordinating the plan with airport
authorities apply to all primary airports (i.e., commercial service
airports that enplane more than 10,000 passengers annually) rather than
only to medium hub airports (primary airports that enplane between 0.25
and 1 percent of total U.S. passengers) and large hub airports (primary
airports that enplane at least 1 percent of total U.S. passengers)?

2. Require Carriers To Respond to Consumer Problems

    We seek comment on adopting a new regulation, 14 CFR part 259, that
among other things would require every certificated and commuter
carrier that operates domestic scheduled passenger service using any
aircraft with more than 30 passenger seats to respond to mounting
consumer problems in the following ways:
     At its system operations center and at each airport
dispatch center, designate an employee who is responsible for
monitoring the effects of flight delays, flight cancellations, and
lengthy tarmac delays on passengers and who has input on decisions such
as which flights are cancelled and which are subject to the longest
delays,
     On its Web site, on all e-ticket confirmations, and, upon
request, at each ticket counter and gate, make information available on
filing a complaint with the carrier (name of person or office, address,
and telephone number), and
     Send a response to each consumer complaint it receives
within 30 days of receiving the complaint.
    We invite interested persons to comment on this proposal. What
costs would it impose on the carriers? Would it have any negative
consequences? Should we require carriers to accept complaints via
phone, letter and e-mail, or should the choice of complaint channels be
left to each carrier? Would these procedures result in carriers'
devoting adequate attention to the needs of passengers? If not, what
additional or different measures would achieve this result? What
specific responsibilities should the designated employee have? Is it
reasonable to expect a carrier to provide a response within 30 days of
receipt of a complaint? Should the types of carriers covered by the
regulation be expanded or limited? What would be the cost or benefit of
narrowing or expanding coverage?

3. Declare the Operation of Flights That Remain Chronically Delayed To
Be an Unfair and Deceptive Practice and an Unfair Method of Competition

    We seek comment on amending 14 CFR 399.81 so that it sets forth the
Department's enforcement posture on chronically delayed flights. First,
the new text would define a chronically delayed flight as a flight by a
covered carrier that operates at least 45 times in a calendar quarter
and arrives more than 15 minutes late more than 70 percent of the time.
We propose to define a covered carrier as a carrier that reports on-
time performance data to the Department pursuant to 14 CFR part 234,--
i.e., a certificated U.S. carrier that accounted for at least 1% of
domestic scheduled passenger revenue in the 12 months ending March 31.
Second, the new text would specify that the Department considers a
chronically delayed flight to be an unfair and deceptive practice and
an unfair method of competition within the meaning of 49 U.S.C. 41712
if it is not corrected in a timely manner--i.e., during the second
calendar quarter following the one in which the flight is first
chronically delayed.
    We invite interested persons to comment on this proposal. What
costs, if any, would it impose on carriers? Would it have any negative
consequences? Does it strike the appropriate balance between
passengers' need to have the best possible information about the real
arrival time of a flight and the carriers' inability to control the
weather and certain other factors that can contribute to delays?
Commenters who think that it does not strike the appropriate balance
should explain why and provide alternate proposals.
    We tentatively consider that in setting the threshold for a
chronically late flight as high as 70 percent and in allowing up to six
months for the carrier to adjust its schedule, its operations, or both
so that the flight comes below this threshold, we would not be creating
undue burdens for carriers. When a carrier publishes a schedule, it
assumes the obligation to adhere to it insofar as is feasible.
Consumers buy transportation in reliance on a carrier's published
schedule, and they have a right to expect that the carrier both intends
to arrive at the promised time and can do so in most cases. Consumers'
reliance on chronically inaccurate schedules works to their detriment
both personally and professionally. Furthermore, a carrier's
publication of a schedule that it does not achieve most of the time can
harm its competitors. This in turn further harms consumers by reducing
the number of travel options from which they can choose.
    Commenters who think that the proposed standards would not result
in an improvement of on-time performance should explain why and suggest
alternate approaches. We also solicit comment on whether the definition
of a chronically delayed flight should be expanded to include
international scheduled passenger service to and from the United States
operated by U.S. and foreign air carriers.

4. Require Carriers To Publish Delay Data on Their Web Sites

    We seek comment on amending 14 CFR 234.11 to require airlines that
report on-time performance to the Department pursuant to 14 CFR part
234 (i.e., certificated U.S. carriers that account for at least 1% of
the domestic scheduled passenger revenue) and online reservation
services to include on their Web sites, at a point before the passenger
selects a flight for purchase, the following information for each
listed flight about its performance during the previous month:
     The percentage of arrivals that were on time,
     The percentage of arrivals that were more than 30 minutes
late,
     Special highlighting if the flight was late more than 50
percent of the time, and
     The percentage of cancellations.
    We invite interested persons to comment on this proposal. What
costs would it impose on carriers and online reservation services?
Would it have any negative consequences?
    Would it help consumers make better-informed choices when booking
flights? Would it increase carriers' incentives to correct problem
flights through adjustments to their schedules or their operations, or
both? What other information, if any, should this regulation require?

    Would requiring carriers to post on-time flight performance
information on their Web site give passengers adequate notice before
booking about the likelihood of a flight's arriving on time? Should we
require airline Web sites and reservation agents to disclose on-time
flight information to consumers at the time of booking, without being
asked? What would be the benefit or cost of such a requirement? Should
any disclosure requirement be limited to flights that are chronically
delayed or cancelled?
    Should this regulation cover all on-line reservation services or
only those of a certain size? If the latter, what threshold would be
appropriate (in terms of revenue or number of employees)? Should the
regulation cover more types of carriers? What would be the cost or
benefit of expanding coverage?

5. Require Carriers To Publish Complaint Data on Their Web Sites

    We seek comment on adopting a new regulation, 14 CFR part 259, that
would also require certificated and commuter carriers that operate
domestic scheduled passenger service using any aircraft with more than
30 passenger seats to publish complaint data on their Web sites. Each
carrier would have to disclose the number of consumer complaints it has
received within a defined time frame concerning subjects such as tarmac
delays, missed connections, and the failure to provide amenities to
passengers affected by a delayed or canceled flight. We ask interested
persons to comment on this proposal. What costs would it impose on
carriers? Would it have any negative consequences? Should we prescribe
a uniform location for all carriers' Web sites, or should we leave this
decision to the carriers? If the former, where should the data be
posted? What complaint subjects should be covered by this requirement,
and what time period would be appropriate? Would the proposed
regulation help consumers make better-informed choices when booking
flights? Would it increase carriers' incentives to avoid the problems
that elicit complaints? Should the types of carriers covered by the
regulation be increased or decreased? What would be the cost or benefit
of narrowing or expanding coverage?

6. Require Carriers To Report On-Time Performance of International
Flights

    We seek comment on amending 14 CFR 234.4 and 234.11 to require
carriers that report on-time performance to the Department pursuant to
14 CFR part 234 (i.e., certificated U.S. carriers that account for at
least 1% of the domestic scheduled passenger revenue) and the largest
foreign carriers to report on-time performance for international
flights to and from the United States. Our publication of these data
would give consumers information about on-time performance to use in
choosing international flights. We invite interested persons to comment
on this proposal. What costs would it impose on the carriers? Would it
have any negative consequences? Would the benefits of making this
information available to the public outweigh the burdens that this
requirement would impose on carriers that provide international
service? How should we determine whether a foreign carrier is large
(e.g., by total revenue, by number of flights to and from the U.S.)?
Should we devise a size threshold for foreign carriers similar to the
current 1% threshold for U.S. carriers?

7. Require Carriers To Audit Their Adherence to Their Customer Service
Plans

    We seek comment on adopting a new regulation that would require
certificated and commuter carriers that operate domestic scheduled
passenger service using any aircraft with more than 30 passenger seats
to audit their adherence to their own customer service plans. This
proposal tracks a recommendation from the Department's Inspector
General, who found carrier failings in this area. We solicit comment on
the costs and benefits of self-audits, suggestions for appropriate
auditing standards, including whether the carriers should be required
to hire independent auditors to conduct the audits, and suggestions for
how the Department might verify compliance without auditing the
airline's practices itself. Further, we solicit comment on whether we
should require any covered carrier that does not have a customer
service plan in place to adopt one and, if so, what provisions such
plans should include. For example, should they include some or all of
the provisions of the 12-point Airline Service Commitment made by 13
members of the Air Transport Association (which can be found at http://www.airlines.org/customerservice/passengers/Customers_First.htm
)?

Also, should we require that carriers incorporate their customer
service plans in their contracts of carriage?

Regulatory Notices

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

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

B. Executive Order 13132 (Federalism)

    This Advance Notice of Proposed Rulemaking has been analyzed in
accordance with the principles and criteria contained in Executive
Order 13132 (``Federalism''). This notice does not propose any
regulation that (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. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply.

C. Executive Order 13084

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

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

D. Regulatory Flexibility Act

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

E. Paperwork Reduction Act

    The ANPRM proposes several new collections of information that
would require approval by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act (49 U.S.C. 3501 et seq.) The ANPRM
solicits comment on requiring certificated and commuter airlines that
operate domestic scheduled passenger service using any aircraft with
more than 30 passenger seats to retain for two years the following
information about any ground delay that triggers their contingency plan
or lasts at least four hours: (1) The length of the delay, (2) the
cause of the delay, and (3) actions taken to minimize hardships for
passengers. The Department plans to use this information to conduct
reviews of incidents involving long delays on the ground and to
identify any trends and patterns that may develop. The ANPRM further
proposes to require the collection of flight delay data from certain
U.S. and foreign air carriers regarding their flights to and from the
U.S. and also to require certain U.S. carriers to compile and publish
complaint information. We invite comments regarding any aspect of these
information collections, including the following: (1) The necessity and
utility of the information collection, (2) the estimated burden, (3)
ways to enhance the quality, utility, and clarity of the information
collected, and (4) ways to minimize the collection burden without
reducing the quality of the information collected.

F. Unfunded Mandates Reform Act

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

    Issued this 15th day of November, 2007, at Washington, DC.
Michael W. Reynolds,
Deputy Assistant Secretary for Aviation and International Affairs.
[FR Doc. 07-5760 Filed 11-15-07; 4:15 pm]

BILLING CODE 4910-13-P