[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 23110-23167]
[FR Doc No: 2011-9736]

Vol. 76

Monday,

No. 79

April 25, 2011

Part IV

Department of Transportation

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14 CFR Parts 244, 250, 253 Et al.

Enhancing Airline Passenger Protections; Final Rule

Federal Register / Vol. 76 , No. 79 / Monday, April 25, 2011 / Rules
and Regulations

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 244, 250, 253, 259, and 399

[Docket No. DOT-OST-2010-0140]
RIN 2105-AD92

Enhancing Airline Passenger Protections

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

ACTION: Final rule.

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SUMMARY: The Department of Transportation is issuing a final rule to
improve the air travel environment for consumers by: Increasing the
number of carriers that are required to adopt tarmac delay contingency
plans and the airports at which they must adhere to the plan's terms;
increasing the number of carriers that are required to report tarmac
delay information to the Department; expanding the group of carriers
that are required to adopt, follow, and audit customer service plans
and establishing minimum standards for the subjects all carriers must
cover in such plans; adding carriers to those required to include their
contingency plans and customer service plans on their websites;
increasing the number of carriers that must respond to consumer
complaints; enhancing protections afforded passengers in oversales
situations, including increasing the maximum denied boarding
compensation airlines must pay to passengers bumped from flights;
strengthening, codifying and clarifying the Department's enforcement
policies concerning air transportation price advertising practices;
requiring carriers to notify consumers of optional fees related to air
transportation and of increases in baggage fees; prohibiting post-
purchase price increases; requiring carriers to provide passengers
timely notice of flight status changes such as delays and
cancellations; and prohibiting carriers from imposing unfair contract
of carriage choice-of-forum provisions. The Department is taking this
action to strengthen the rights of air travelers in the event of
oversales, flight cancellations and delays, ensure that passengers have
accurate and adequate information to make informed decisions when
selecting flights, prohibit unfair and deceptive practices such as
post-purchase price increases and contract of carriage choice-of-forum
provisions, and to ensure responsiveness to consumer complaints.

DATES: This rule is effective August 23, 2011 except for the amendments
to 14 CFR 399.84 which become effective October 24, 2011.

FOR FURTHER INFORMATION CONTACT: Blane A. Workie, Tim Kelly or Daeleen
Chesley, 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), 202-
366-7152 (fax<EMAIL_ADDRESS>or<EMAIL_ADDRESS>(e-mail).

SUPPLEMENTARY INFORMATION:

Background

    On December 30, 2009, the Department published a final rule in
which it required certain U.S. air carriers to adopt contingency plans
for lengthy tarmac delays; respond to consumer problems; post flight
delay information on their websites; and adopt, follow, and audit
customer service plans. The rule also defined chronically delayed
flights and deemed them to be an ``unfair and deceptive'' practice. The
majority of the provisions in that rule took effect on April 29, 2010.
See 74 FR 68983 (December 30, 2009).
    In the preamble to that final rule, the Department noted that it
planned to review additional ways to further enhance protections
afforded airline passengers and listed a number of subject areas that
it was considering addressing in a future rulemaking. On June 8, 2010,
the Department published a notice of proposed rulemaking (NPRM), 75 FR
32318, in which it addressed the following areas: (1) Contingency plans
for lengthy tarmac delays; (2) reporting of tarmac delay data; (3)
customer service plans; (4) contracts of carriage; (5) responding to
consumer problems/complaints (6) oversales; (7) full fare advertising;
(8) baggage and other ancillary fees; (9) post-purchase price
increases; (10) notification to passengers of flight status changes;
(11) choice-of-forum provisions; and (12) peanut allergies. In response
to the NPRM, the Department received over 2100 comments, the vast
majority of which were related to the proposal to address peanut
allergies in air travel.
    The Department received comments on the NPRM from the following:
U.S. carriers and U.S. carrier associations; foreign air carriers and
foreign carrier associations; U.S. and foreign consumer groups; travel
agents and members of organizations in the travel industry; airports
and various airport-related industry groups; members of Congress;
embassies; peanut industry groups and allergy associations; as well as
a number of individual consumers. In addition, the Department received
a summary of the public discussion on the NPRM proposals that occurred
on the Regulation Room Web site, http://www.regulationroom.org. The
Regulation Room site is a site where members of the public can learn
about and discuss proposed federal regulations and provide feedback to
agency decision makers. To support this Administration's open
government initiative, the Department partnered with Cornell University
in this pilot project to discover the best ways to use Web 2.0 and
social networking technologies to increase effective public involvement
in the rulemaking process.
    The Department has carefully reviewed and considered the comments
received. The commenters' positions that are germane to the specific
issues raised in the NPRM and the Department's responses are set forth
below, immediately following a summary of regulatory provisions and a
summary of the regulatory analysis.

Summary of Regulatory Provisions

------------------------------------------------------------------------
              Subject                            Final rule
------------------------------------------------------------------------
Tarmac Delay Contingency Plans....   Requires foreign air
                                     carriers operating to or from the
                                     U.S. with at least one aircraft
                                     with 30 or more passenger seats to
                                     adopt and adhere to tarmac delay
                                     contingency plans.
                                     Requires U.S. and foreign
                                     air carriers to not permit an
                                     international flight to remain on
                                     the tarmac at a U.S. airport for
                                     more than four hours without
                                     allowing passengers to deplane
                                     subject to safety, security, and
                                     ATC exceptions.
                                     Expands the airports at
                                     which airlines must adhere to the
                                     contingency plan terms to include
                                     small hub and non-hub airports,
                                     including diversion airports.
                                     Requires U.S. and foreign
                                     carriers to coordinate plans with
                                     Customs and Border Protection (CBP)
                                     and the Transportation Security
                                     Administration (TSA).

                                     Requires notification
                                     regarding the status of delays
                                     every 30 minutes while aircraft is
                                     delayed, including reasons for
                                     delay if known.
                                     Requires notification of
                                     opportunity to deplane from an
                                     aircraft that is at the gate or
                                     another disembarkation area with
                                     door open if the opportunity to
                                     deplane actually exists.
------------------------------------------------------------------------
Tarmac Delay Data.................   Requires all carriers that
                                     must adopt tarmac delay contingency
                                     plans to file data with the
                                     Department regarding lengthy tarmac
                                     delays.
------------------------------------------------------------------------
Customer Service Plans............   Requires foreign air
                                     carriers that operate scheduled
                                     passenger service to and from the
                                     U.S. with at least one aircraft
                                     with 30 or more passenger seats to
                                     adopt, follow and audit customer
                                     service plans.
                                     Establishes standards for
                                     the subjects U.S. and foreign air
                                     carriers must cover in customer
                                     service plans. Examples include:
                                        delivering baggage on
                                        time, including reimbursing
                                        passengers for any fee charged
                                        to transport a bag if the bag is
                                        lost;
                                        where ticket refunds are
                                        due, providing prompt refunds
                                        including refund of optional
                                        fees charged to a passenger for
                                        services that the passenger was
                                        unable to use due to an oversale
                                        situation or flight
                                        cancellation; and
                                        allowing reservations to
                                        be held at the quoted fare
                                        without payment, or cancelled
                                        without penalty, for at least
                                        twenty-four hours after the
                                        reservation is made if the
                                        reservation is made one week or
                                        more prior to a flight's
                                        departure date.
------------------------------------------------------------------------
Posting of Customer Service Plans    Requires foreign carriers
 and Tarmac Delay Contingency        to post their required contingency
 Plans.                              plans, customer service plans, and
                                     contracts of carriage on their
                                     websites as is already required of
                                     U.S. carriers.
------------------------------------------------------------------------
Response to Consumer Problems.....   Expands the pool of
                                     carriers that must respond to
                                     consumer problems to include
                                     foreign air carriers operating
                                     scheduled passenger service to and
                                     from the U.S. with at least one
                                     aircraft with 30 or more passenger
                                     seats (i.e., monitor the effects of
                                     irregular flight operations on
                                     consumers; inform consumers how to
                                     file a complaint with the carrier,
                                     and provide substantives responses
                                     to consumer complaints within 60
                                     days).
------------------------------------------------------------------------
Oversales.........................   Increases the minimum
                                     denied boarding compensation limits
                                     to $650/$1,300 or 200%/400% of the
                                     one-way fare, whichever is smaller.
                                     Implements an automatic
                                     inflation adjuster for minimum DBC
                                     limits every 2 years.
                                     Clarifies that DBC must be
                                     offered to ``zero fare ticket''
                                     holders (e.g., holders of frequent
                                     flyer award tickets) who are
                                     involuntarily bumped.
                                     Requires that a carrier
                                     verbally offer cash/check DBC if
                                     the carrier verbally offers a
                                     travel voucher as DBC to passengers
                                     who are involuntarily bumped.
                                     Requires that a carrier
                                     inform passengers solicited to
                                     volunteer for denied boarding about
                                     all material restrictions on the
                                     use of transportation vouchers
                                     offered in lieu of cash.
------------------------------------------------------------------------
Full Fare Advertising.............   Enforces the full fare
                                     advertising rule as written (i.e.,
                                     ads which state a price must state
                                     the full price to be paid).
                                     Carriers currently may exclude
                                     government taxes/fees imposed on a
                                     per-passenger basis.
                                     Clarifies the rule's
                                     applicability to ticket agents.
                                     Prohibits carriers and
                                     ticket agents from advertising
                                     fares that are not the full fare
                                     and impose stringent notice
                                     requirements in connection with the
                                     advertisement of ``each-way'' fares
                                     available for purchase only on a
                                     roundtrip basis.
                                     Prohibits opt-out
                                     provisions in ads for air
                                     transportation.
------------------------------------------------------------------------
Baggage and Other Fees and Related   Requires U.S. and foreign
 Code-Share Issues.                  air carriers to disclose changes in
                                     bag fees/allowances on their
                                     homepage for three months, to
                                     include information regarding the
                                     free baggage allowance.
                                     Requires carriers (U.S. and
                                     foreign) and ticket agents to
                                     include on e-ticket confirmations
                                     information about the free baggage
                                     allowance and applicable fees for
                                     the first and second checked bag
                                     and carry-on but allows ticket
                                     agents, unlike carriers, to do so
                                     through a hyperlink.
                                     Requires carriers (U.S. and
                                     foreign) and ticket agents to
                                     inform passengers on the first
                                     screen on 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.
                                     Requires U.S. and foreign
                                     air carriers to disclose all fees
                                     for optional services to consumers
                                     through a prominent link on their
                                     homepage.
                                     Requires that the same
                                     baggage allowances and fees apply
                                     throughout a passenger's journey.
                                     Requires the marketing
                                     carrier to disclose on its website
                                     any difference between its optional
                                     services and fees and those of the
                                     carrier operating the flight.
                                     Disclosure may be made through 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 among code-
                                     share partners.
------------------------------------------------------------------------

Post-Purchase Price Increases.....   Bans the practice of post-
                                     purchase price increases in air
                                     transportation or air tours unless
                                     the increase is due to an increase
                                     in government-imposed taxes or fees
                                     and only if the passenger was
                                     provided full disclosure of the
                                     potential for the increase and
                                     affirmatively agreed to the
                                     potential for such an increase
                                     prior to purchase.
------------------------------------------------------------------------
Flight Status Changes.............   Requires U.S. and foreign
                                     air carriers operating scheduled
                                     passenger service with any aircraft
                                     with 30 or more seats to promptly
                                     notify consumers through whatever
                                     means is available to the carrier
                                     for passengers who subscribe to the
                                     carrier's flight status
                                     notification services, in the
                                     boarding gate area, on a carrier's
                                     telephone reservation system and on
                                     its website of delays of 30 minutes
                                     or more, cancellations and
                                     diversions within 30 minutes of the
                                     carrier becoming aware of a change
                                     in the status of a flight.
------------------------------------------------------------------------
Choice-of-Forum Provisions........   Prohibits U.S. and foreign
                                     air carriers from limiting a
                                     passenger's forum to pursue
                                     litigation to a particular
                                     inconvenient venue.
------------------------------------------------------------------------

Summary of Regulatory Analysis

    The regulatory analysis shows that the monetized benefits of the
proposed requirements exceed their monetized costs, even without
considering non-quantifiable benefits. This analysis, outlined in the
table below, has determined that the present value of monetized net
benefits for a 10 year period at a 7% discount rate is $14.3 million.
At a 3% discount rate, the present value of monetized net benefits is
estimated to be $20.3 million.

------------------------------------------------------------------------
                                                         Present value
                                                           (millions)
------------------------------------------------------------------------
Monetized Benefits..............  10 Years, 7%                     $45.0
                                   discounting.
                                  10 Years, 3%                      53.5
                                   discounting.
Monetized Costs.................  10 Years, 7%                      30.7
                                   discounting.
                                  10 Years, 3%                      33.2
                                   discounting.
Monetized Net Benefits..........  10 Years, 7%                      14.3
                                   discounting.
                                  10 Years, 3%                      20.3
                                   discounting.
------------------------------------------------------------------------

A comparison of the monetized benefits and costs for each of the final
requirements is provided in the Regulatory Analysis and Notices
section, set forth below, along with information on additional benefits
and costs for which quantitative estimates could not be developed.

Comments and Responses

1. Tarmac Delay Contingency Plans

A. Entities Covered
    The NPRM: The NPRM proposed to require any foreign air carrier that
operates scheduled passenger or public charter service to and from the
U.S. using any aircraft originally designed to have a passenger
capacity of 30 or more passenger seats to adopt and comply with a
tarmac delay contingency plan for their flights to and from the U.S.
that includes minimum assurances identical to those currently required
of U.S. carriers. As proposed, it would apply to all of a foreign
carrier's flights to and from a covered U.S. airport, including those
involving aircraft with fewer than 30 seats if a carrier operates any
aircraft originally designed to have a passenger capacity of 30 or more
seats to or from the U.S.
    We sought comment on whether the requirement to have a contingency
plan should be narrowed or expanded, and if so, the cost burdens and
benefits of doing so. For example, we proposed to include foreign
carriers that operate aircraft originally designed to have a passenger
capacity of 30 or more seats to and from the U.S., but we invited
interested persons to comment on whether, in the event that we adopt a
rule requiring foreign carriers to have contingency plans, we should
limit its applicability to foreign air carriers that operate large
aircraft to and from the U.S.--i.e., aircraft originally designed to
have a maximum passenger capacity of more than 60 seats. We also asked
whether the requirement to adopt tarmac delay contingency plans should
apply not only to U.S. and foreign air carriers but also to U.S.
airports. We requested that proponents and opponents of these or other
alternative proposals provide arguments in support of their positions.
    Comments: A number of U.S. and foreign airlines and airline
associations support requiring airports to develop their own
contingency plans to address lengthy tarmac delays but generally agree
that these plans should be limited to coordinating with airlines and
government agencies and assisting airlines during tarmac delays. Some
of these commenters note that airports are in the best position to
address the logistics associated with lengthy delays, particularly with
respect to diverted flights. For example, they argue that an airport
authority is most likely to know the areas in the airport where
international passengers can be allowed to deplane without resulting in
U.S. Customs and Border Protection (CBP) or Transportation Security
Administration (TSA) concerns. Commenters also note that requiring only
carriers to have a contingency plan unreasonably places the burden of
the operations of the entire air transport industry on carriers.
Consumer groups are also in favor of requiring airports to adopt
contingency plans. Of the airport and airport industry commenters,
Dallas/Fort Worth Airport generally supports requiring U.S. airports to
adopt a tarmac delay contingency plan but notes that U.S. airports do
not have direct contact with airline passengers when they are on the
aircraft and have no control over deplaning. Airports Council
International (ACI) supports the airlines' plans being coordinated with
airports but does not support requiring airports to adopt separate
plans. ACI believes that separate airport and airline contingency plans
could result in confusion and states that it is committed to supporting
airlines in the development of their plans.
    With regard to the adoption of a tarmac delay contingency plan by

foreign carriers, the views of foreign carrier associations and
carriers differed significantly from those of other commenters. In
general, the foreign carriers and foreign carrier association
commenters object to the proposal that they adopt tarmac delay
contingency plans as unnecessary and note that the same issues with
tarmac delays do not arise as often with international flights as they
do with domestic flights. The International Air Carrier Association
(IACA) states that EU Regulation 261/2004 is an EU passenger rights
provision to which EU carriers are subject on all their flights,
including flights that depart from U.S. airports, and that the
Department's proposals could conflict with EU laws. The International
Air Transport Association (IATA) generally supports the principle of
contingency plans, but believes such plans should be developed
individually by each carrier according to its specific operations and
conditions as opposed to having terms set by the government. The Arab
Air Carrier Association (AACA) and the Latin American and Caribbean Air
Transport Association (ALTA) concur with IATA, as do many foreign
carriers. The Air Transport Users Council (AUC) and a number of
European carriers point out, similar to IACA, that many of the
provisions in the NPRM are covered under EU legislation. The National
Airlines Council of Canada (NACC) supports the need for contingency
plans in the event of irregular operations but states that they should
be developed in the interest of enhanced customer service rather than
being mandated by government regulation. TUI Travel notes that EU
carriers must comply with EU regulations and asks that carriers
originating outside the U.S. be excluded from the tarmac delay
contingency plan rule. Monarch Airlines commented that an exception to
any requirement should exist for flights that do not pick up passengers
in the United States.
    U.S. carrier associations such as the Air Transport Association of
America (ATA) and National Air Carrier Association (NACA) indicated
their support for requiring foreign air carriers to meet the same
standards as U.S. carriers for adopting tarmac delay contingency plans.
Of the U.S. carriers that commented, Spirit Airlines supports extending
the rule to foreign carriers, while Virgin America states that DOT
should not adopt any of the proposals related to tarmac delays.
    Most of the comments received from individuals on this issue noted
that a requirement to develop a tarmac delay contingency plan should be
extended to foreign carriers because it is important to protect
consumers on all flights to and from the United States, not merely on
flights operated by U.S. airlines. Among the consumer group commenters,
the Consumer Travel Alliance (CTA) supports the expansion of the tarmac
delay rules to foreign carriers, as does the Association for Airline
Passenger Rights (AAPR), National Business Travel Association (NBTA),
Flyersrights.org, Consumers Union and Aviation Consumer Action Project
(ACAP). The American Society of Travel Agents (ASTA) also supports
extending the tarmac delay contingency plan provisions to foreign
carriers and states that the rule should cover all aircraft types.
    Among the airports and airport industry commenters, ACI supports
requiring foreign air carriers to adopt plans that include minimum
assurances as required of U.S. airlines and strongly supports extending
the rule to foreign air carriers operating aircraft with 30 or more
seats. The American Association of Airport Executives (AAAE) agrees
that foreign carriers should comply with specified contingency plans in
order to provide equal and fair competition. The New York State
Consumer Protection Board supports requiring foreign carriers to adopt
tarmac delay contingency plans that provide for passengers to receive
the same basic necessities that U.S. carriers are required to provide.
    DOT Response: After fully considering the comments received, the
Department has decided not to promulgate a requirement that airports
adopt contingency plans addressing lengthy tarmac delays. The
Department is aware that many airports are voluntarily working with
U.S. carriers to develop policies and procedures to address lengthy
tarmac delays and to cooperate with U.S. carriers in the coordination
of the carriers' contingency plans as required of U.S. airlines by the
first tarmac delay rule. As such, it is not necessary to regulate in
this area at this time.
    However, the Department thinks it is reasonable and necessary to
require foreign carriers that operate scheduled passenger or public
charter service to and from the U.S. to adopt and adhere to tarmac
delay contingency plans. International air travel is a large and
increasingly significant market sector, and customers who use non-U.S.
airlines deserve no less protection from lengthy tarmac delays at U.S.
airports than do customers of U.S. airlines. We also wish to be
consistent with the application of our rules. The lengthy tarmac delays
experienced by a number of foreign carriers at John F. Kennedy
International Airport (JFK) during and after the December 26, 2010,
blizzard highlights the need to extend the rule to those carriers.
    In order to address commenters' concerns that certain European laws
(or laws of other countries) may conflict with this regulation, we want
to clarify that the requirement to adopt and follow a plan applies only
to tarmac delay events that occur at a covered U.S. airport. The rule
should not conflict with EU Regulation 261/2004, the EU rule on
compensation and assistance to be provided to passengers in the event
of denied boarding, flight cancellation or long flight delays. The
types of assistance required under the EU rule are for the most part
services that would not be available on board an aircraft during a
tarmac delay, e.g. phone calls, a hotel room, transportation between
the airport and the hotel room, and rerouting on another flight. The
context of the food and beverage requirement in regulation 261/2004
suggests that these services are to be provided in the airport terminal
during a normal (i.e., non-tarmac) flight delay before passengers have
been boarded. As such, although EU 261/2004 applies to EU carriers
departing from or traveling to an EU member state and to non-EU
carriers departing from an EU member state airport, we see no conflict
between that rule and this one. On a tarmac delay at a U.S. airport, EU
and non-EU carriers can comply with all provisions of both rules.
    With regard to charter flights, we agree with Monarch Airlines and
TUI Travel that an exception should exist for foreign-originating
charters that operate to and from the United States but do not pick up
any U.S. originating passengers. Consequently, carriers will not be
required to adopt a tarmac delay contingency plan as long as their
operations fall within these parameters. This is consistent with 14 CFR
382.7(d) of the DOT rule on air travel by passengers with disabilities
and with the minimal regulation of these flights by the Department's
public charter rule in 14 CFR part 380.
B. Time Frame for Deplaning Passengers on International Flights
    The NPRM: Under the proposed rule, a covered foreign air carrier
would be required to include in its tarmac delay contingency plan an
assurance that it will not permit an aircraft to remain on the tarmac
at a U.S. airport for more than a set number of hours as determined by
the carrier in its plan before allowing passengers the opportunity to
deplane. The proposal included appropriate safety, security, and ATC
exceptions. This is already

required of U.S. carriers for their international flights under the
Department's existing rule. As for domestic flights, U.S. carriers are
required to provide an assurance that they will not permit an aircraft
to remain on the tarmac for more than three hours without deplaning
passengers subject to the same safety, security and ATC exceptions. In
the NPRM, we noted that there are ongoing questions as to whether
mandating a specific time frame for deplaning passengers on
international flights as currently exists for domestic flights is in
the best interest of the public. We asked for comments on whether any
final rule that we may adopt should set a uniform standard for the time
interval after which U.S. or foreign air carriers would be required to
allow passengers on international flights to deplane rather than
allowing the carriers to set their own tarmac delay time limit for such
flights. We also asked commenters who support the adoption of a uniform
standard to propose specific time limits and state why they believe
these intervals to be appropriate.
    Comments: Of the U.S. carriers and carrier associations that
commented, ATA objects to a hard time limit on tarmac delays for
international flights. NACA supports requiring foreign air carriers to
meet the same standards as U.S. carriers for adopting tarmac delay
contingency plans.
    In general, the non-U.S. carriers and carrier associations object
to the proposal as unnecessary, asserting that the same problems with
tarmac delays do not exist with international flights as with domestic
flights. For example, Condor Flugdienst Airlines (Condor) states that
it sees no reason to enforce a mandatory deplaning requirement for a
problem that occurs only very rarely. Many of these carriers also
comment that a ``one size fits all'' approach is not practical and note
that there are large differences between domestic and international
operations, and between long-haul and short-haul operations. IATA and
IACA object to a uniform time limit entitling passengers to deplane.
IACA states that the proposal may conflict with EU passenger rights
requirements since EU carriers must follow EU requirements on all their
flights, including flights that depart from U.S. airports. The
Association of European Airlines (AEA) and foreign airlines' comments
are similar to IATA's. Many object to the proposal to require carriers
to set a time limit to deplane due to various operational concerns.
Specifically, a number of foreign industry groups and airlines noted
the following:
     International flights operate less frequently and a
cancellation could result in missed connections with serious
consequences for passengers;
     Returning to the gate and/or a flight cancellation may
result in the crew ``timing-out'' and many foreign carriers do not have
U.S.-based crews, which could result in a delay of 24 hours or more;
     International flights have limited windows of opportunity
to depart due to gate constraints at foreign airports;
     Larger aircraft used for international flights take much
longer to enplane and deplane (up to 40 minutes), which can cause even
further delay;
     International flights are often better equipped to meet
passenger needs on-board the aircraft; and
     Long-haul and ultra-long haul operations can make up time
while in the air.
    Some carriers, such as Air New Zealand, support a 3 hour time
limit, but note that consideration should be given to crew restrictions
and gate allocations, or situations where resolution of the delay is
less than an hour away and deplaning would further delay the flight.
Qantas also supports the 3 hour limit in principle, but thinks such an
assurance is limited by the carrier's ability to control the
circumstances. Of the travel agents and other industry group commenters
that commented on this issue, ASTA agrees that a specific standard for
international flights is important but supports a four hour rather than
three hour rule.
    Among the consumer commenters, the Association for Airline
Passenger Rights (AAPR) and Flyersrights.org strongly advocate for a
maximum permissible tarmac delay of three hours for international
flights. Flyersrights.org urges that tarmac delays of over three hours
not be permitted for international flights and notes that the ``health
and inconvenience problems'' are the same regardless of whether the
flight is domestic or international. Consumer Action, along with
Consumer Federation of America, the National Consumers League, Public
Citizen, and U.S. PIRG support the extensive comments filed by
Flyersrights.org. Some individual commenters also expressed concern
about lengthy tarmac delays on international flights and advocated for
a uniform time limit for deplaning passengers. Of the commenters on
``Regulation Room,'' almost half noted, generally, that the Department
should apply a uniform federal time limit on tarmac delays to all
flights and airlines, regardless of aircraft size, airport size, and
whether the flight is domestic or international.
    DOT Response: As noted above, the Department is expanding its
requirement to adopt a tarmac delay contingency plan to foreign
carriers, as we believe that it is important to ensure that passengers
on these carriers are also afforded protection from unreasonably
lengthy tarmac delays. With regard to a required time period for
deplaning passengers on international flights operated by U.S. or
foreign carriers, we are requiring that these carriers provide an
assurance that they will not permit an aircraft to remain on the tarmac
at a U.S. airport for more than four hours without providing passengers
an opportunity to deplane. As in our initial rulemaking to enhance
airline passenger protections, this new requirement will allow
exceptions for safety and security considerations and in instances
where Air Traffic Control advises the pilot-in-command that returning
to the gate or permitting passengers to disembark elsewhere would
significantly disrupt airport operations. We decided to impose a
uniform time limit for deplaning passengers on international flights
rather than allowing carriers to establish their own tarmac delay time
limits because we believe the consistency in standard will provide
passengers with clearer expectations as to when they would be allowed
off aircraft in the event of a tarmac delay. A uniform standard will
also make it clearer to the other stakeholders such as airports of the
need to assist airlines in deplaning passengers on international
flights before the four hour mark. Further, the Department believes
that a uniform time limit will reduce or prevent lengthy tarmac delay
incidents such as those that occurred at JFK during and after the
December 26, 2010, blizzard and the resulting impact on passengers
traveling on those flights.
    We decided to impose a four hour time limit for lengthy tarmac
delays on international flights as opposed to the three hour limit that
applies to lengthy tarmac delays on domestic flights for a number of
reasons. First, because international flights are of much longer
duration on average than domestic flights, it is possible that delays
may not have as negative an impact on international passengers as they
were already planning on spending a significant amount of time in the
aircraft and some of the time spent on the tarmac can be made up while
in the air. We also reviewed the contingency plans for the U.S.
carriers as they are already required to establish their own tarmac
delay time limits for international flights, and found that most of
these carriers have chosen to set a four hour

time limit for deplaning passengers from their international flights
that experience a tarmac delay. In addition, we are persuaded by
comments of the different environment in which international flights
operate and the need to provide greater leeway for international
flights than we allow for domestic flights. For these reasons, we have
decided to impose a four hour time limit for deplaning passengers on
international flights and not allow U.S. and foreign carriers to
establish their own longer tarmac delay time limits for international
flights.
    As clarified in the first rule to enhance airline passenger
protections, an international flight for purposes of this requirement
is a nonstop flight segment that departs from the United States and
lands in another country, or vice-versa, exclusive of non-traffic
technical stops. For example, if a U.S. carrier operates a direct
flight Chicago-New York-Frankfurt, with some Chicago-originating
passengers destined for New York and others destined for Frankfurt, and
the aircraft experiences a tarmac delay in Chicago, then we would
consider the tarmac delay to be on a domestic flight. This is because
Chicago-New York is a domestic flight segment even though the final
destination of the flight is Frankfurt, Germany. If, on the other hand,
the aircraft only stops for refueling or a crew change in New York and
the flight carries no Chicago-New York traffic and no Frankfurt-bound
passengers enplane in New York, then we would consider the tarmac delay
in Chicago to be a tarmac delay on an international flight.
C. Provision for Adequate Food and Water, Operable Lavatories, and
Medical Attention if Needed
    The NPRM: As proposed in the NPRM, the tarmac delay contingency
plans adopted by foreign air carriers for international flights that
depart from or arrive at a U.S. airport would need to include: (1) An
assurance that the carrier will provide adequate food and potable water
no later than two hours after the aircraft leaves the gate in the case
of departure or touches down in the case of an arrival if the aircraft
remains on the tarmac, unless the pilot-in-command determines that
safety or security considerations preclude such service; (2) an
assurance of operable lavatory facilities while the aircraft remains on
the tarmac; and (3) an assurance of adequate medical attention if
needed while the aircraft remains on the tarmac. These requirements
already apply to U.S. carriers under the current rule.
    Comments: With regard to the provision for adequate food and water,
ATA notes that generally aircraft used for international flights are
able to comfortably accommodate passengers onboard for longer periods
of time, with food service and entertainment options often available
given the type of equipment used and the expected length of these
flights. Among the foreign air carriers that commented, Condor Airlines
notes that when a longer delay becomes inevitable, Condor has snacks
and drinks available for passengers. Similarly, Qatar Airways notes
that the logistics of the ultra long-haul flights operated to and from
the U.S. already require that Qatar Airways provide extra catering and
potable/bottled water to allow for extra time beyond that scheduled
during which its customers and crew may have to spend in the aircraft.
Qatar explains that it already ensures that its customers are regularly
offered water and soft drinks by cabin crew. Qantas indicates that it
too provides passengers access to potable water and refreshments during
tarmac delays but does not consider it reasonable to impose a mandatory
requirement to provide food to all passengers after two hours in all
cases, as the commencement of a meal service may lead to further delays
and missed opportunities for departure. The carrier also thinks that
the term ``adequate food'' is too broad and open to different
interpretations. South African Airways wants the Department to
understand that foreign airlines have significantly less flexibility
than U.S. airlines to store extra catering items onboard. In the
absence of evidence that lengthy delays are a problem for passengers
traveling on foreign airlines, the airline believes the Department is
not justified in imposing the costs associated with these requirements.
    Regarding assurance of operable lavatory facilities, a number of
carriers noted that this is a reasonable requirement and that they have
working lavatories and toilet serviceability is maintained at the
highest levels. However, one carrier expressed concern about unforeseen
maintenance issues.
    With regard to providing medical attention, Condor states that its
flight attendants are capable of providing basic first aid when needed
and have access to remote medical advice for more serious medical
emergencies. Similarly, Qatar Airways notes that its cabin crews are
highly trained in first aid. Qantas Airlines believes that it is
reasonable to require carriers to seek medical assistance for any
onboard emergency and states that it engages the services of an
external medical provider to provide advice and assistance as required,
but thinks the extent of this requirement needs clarification. South
African Airways expresses similar concerns as Qantas and notes that the
NPRM is not clear regarding what comprises medical attention within the
meaning of the proposal. South African Airways states that while its
in-flight crewmembers have basic first-aid capabilities, the carrier
relies on consultations with remote medical-care contractors and other
passengers with medical training to provide good-Samaritan assistance.
South African explains that it sees no practical way to ensure medical
attention during tarmac delays that exceeds this basic assistance. The
National Airlines Council of Canada (NACC) states that many airlines
are not in a position to provide adequate medical attention as airlines
are not medical organizations and in-flight staff in not medical staff.
As such, it believes that such assistance is up to local authorities to
provide.
    Among consumer groups and individual commenters, the AAPR urges the
Department to require the tarmac delay contingency plans of U.S. and
foreign air carriers contain minimum guidelines for accommodating
passengers with disabilities. The New York State Consumer Protection
Board states that foreign carriers should be required to adopt a plan
that provides for passengers to receive the same basic necessities that
U.S. carriers are required to provide, i.e., adequate food and water,
operable lavatories, and medical attention if needed. By and large,
individual commenters also support the Department imposing identical
requirements for foreign and U.S. carriers. Of those that commented on
Regulation Room, they generally support the Department requiring
airlines to provide working bathrooms, water, beverages, snacks and, in
some cases, meals on delayed flights. A few commenters also mention the
need for adequate temperature control and the ability to walk around an
aircraft during a delay in order to stretch and use the restroom.
    DOT Response: The Department continues to believe that passengers
stuck on an aircraft during lengthy tarmac delays deserve to be
provided some type of food, potable water, operable lavatories, and if
necessary, medical care. It appears from the comments that most
carriers already have procedures to provide food and water during long
tarmac delays, and ensure that their lavatory facilities are operable
while the aircraft remains on the tarmac. The concern expressed by
South African Airways about storage

space for extra catering items seems to be based on a misconception
that extensive supplies are needed. There also appears to be confusion
as to what the Department means by the term ``adequate food.'' The
Department would consider snack foods such as granola bars that
carriers typically provide on flights to suffice as ``adequate'' food.
Carriers are, of course, free to provide more complete meals to
passengers if they so wish. We note that the requirement to provide
food and water within two hours would not apply if the pilot-in-command
determines that safety or security precludes such service, so the
commencement of a meal service should not lead to further delays or
missed opportunities for departure as feared by at least one commenter.
As for the requirement to provide medical care if necessary, the
Department's expectation is that carriers would have the capabilities
to provide basic first aid assistance on the aircraft and would seek
further medical assistance as necessary for any onboard emergency,
including disembarking the passenger for treatment if needed with the
assistance of airport emergency personnel.
D. Coordination With Covered Airports
    The NPRM: In the initial rulemaking to enhance airline passenger
protections, we required U.S. carriers to have contingency plans for
tarmac delays to large-hub and medium-hub airports, as well as
diversion airports that the carrier serves or utilizes. In the NPRM for
the current proceeding, we proposed to extend this requirement to small
hub and non-hub airports and to require all covered carriers (U.S. and
foreign) to coordinate their plans with each covered U.S. airport that
they serve or utilize for diversions. In making this proposal, the
Department noted its belief that the same issues and discomfort to
passengers during an extended tarmac delay are likely to occur
regardless of airport size or layout. We also noted our strong belief
that it is essential that airlines involve airports in developing their
plans in order to enable them to effectively meet the needs of
passengers. We invited comment on whether it was workable to require
covered carriers coordinate with small hub and non-hub airports to
which they regularly operate scheduled passenger or public charter
service. We also asked if the rule should be expanded to include other
commercial U.S. airports (i.e., those with less than 10,000 annual
enplanements). Finally, we specifically solicited comments from
airlines, airports and other industry entities on whether there are any
special operational concerns affecting such airports.
    Comments: Of the U.S. carriers and carrier association commenters,
ATA supports expanding the number of airports where carriers must
coordinate plans to include small hub and non-hub airports. The
Regional Airline Association (RAA) opposes extending the rule to small-
hub and non-hub airports because it believes there is no evidence that
doing so is necessary or beneficial and believes that the cost to
expand tarmac delay contingency plans to smaller airports outweighs the
benefits, as requiring regional and other carriers serving small
airports to coordinate plans with all such airports would require
significant resources.
    In general, non-U.S. carrier and carrier association commenters
object to the proposal as unnecessary and note that they have limited
presence or service at these smaller airports. Air France and KLM
specifically oppose this provision. On the other hand, Alitalia
supports the idea of coordination, but believes the proposal is
extremely burdensome. Singapore Airlines supports coordinating
contingency plans with airports to handle diverted flights, but states
that the plans should focus on customer care such as swiftly
disembarking passengers, returning baggage, accommodating passengers if
necessary in hotels or on alternate flights, and ensuring that
passengers continue their journey. Monarch Air disagrees and states
that coordination with airports is not necessary, as it would let the
airport determine what is best for the customer.
    Of the travel agent interests that commented, ASTA supports
expanding contingency plan coordination obligations to include small
hub and non-hub airports. TUI Travel states that coordinating
contingency plans is not necessary, as the airport can determine what
is in the best interest of the airline customer and notes restrictions
on gate availability that may be determined on the day of arrival, so
pre-coordination will reduce operational flexibility.
    Of the airport and airport industry commenters, Dallas/Fort Worth
Airport supports requiring carriers to coordinate their contingency
plans with all airports that they serve and notes that important
airport factors such as terminal capacity, equipment, and government
services are taken into account during such coordination. ACI also
supports the need for airlines to coordinate with airports of all sizes
and states that it is committed to supporting airline development of
contingency plans with accurate and relevant information about the
airports the carriers serve.
    Of the consumer and consumer group commenters, CTA supports the
expansion of the tarmac-delay rules to smaller airports. AAPR and
Flyersrights.org fully support increasing the number of covered
airports to include small hub and non-hub airports. NBTA also supports
these provisions. The New York State Consumer Protection Board supports
expanding the rule to all airports, as do many Regulation Room
commenters, some of whom state that airlines and airports should be
required to work together to develop and implement tarmac delay
contingency plans.
    DOT Response: The Department is adopting the requirement that
covered carriers, both U.S. and foreign, include small hub and non-hub
airports in their tarmac delay contingency plans and ensure that the
plan has been coordinated with airport authorities at those airports.
We continue to maintain that the same issues and discomfort to
passengers during an extended tarmac delay are likely to occur
regardless of airport size or layout. Similar to the expansion of the
scope of the requirement to adopt contingency plans to include foreign
carriers, this requirement will protect a greater number of passengers
at more airports.
    We are not convinced by commenters' concerns that requiring
carriers to coordinate their plans with small hub and non-hub airports
will have a significant financial impact on carriers. U.S. carriers are
already required to coordinate plans with large-hub and medium-hub
airports and should be able to tailor existing plans to apply to these
smaller airports. We recognize that the requirement to coordinate
contingency plans with airports is a new requirement for foreign
carriers, but expect that it will not be overly burdensome for foreign
carriers as the large-hub and medium-hub airports are familiar with the
coordination process after having worked with the U.S. carriers on
tarmac delay contingency plans this past year. The need for such
coordination was recently highlighted by the events at JFK airport
following the December 26, 2010 blizzard. Also, during the past two
years significant amount of work has been done through a project funded
by the Federal Aviation Administration (FAA) to produce a best-practice
guidance document for developing coordinated contingency plans for
tarmac delays at small hub and non-hub airports.
    The benefit of airlines coordinating with airports on contingency
plans becomes particularly clear when there are flight diversions. In
situations where flights must be diverted from their

intended destination airports, it is imperative that airlines and the
airports that regularly serve as their diversion airports have already
discussed things such as locations within the airport where passengers
are allowed to wait when TSA or CBP personnel are not present and the
availability of equipment to deplane/bus passengers to the terminal to
minimize the hardship to travelers. It is essential that airlines
involve airports in developing their plans to enable them to
effectively meet the needs of passengers. The rule on coordination with
airports is also being clarified to ensure that at airports, like JFK,
where operations such as snow removal and gate use are managed by
entities other than the airport authority (e.g., a carrier, a
consortium of carriers, or a contractor), carriers covered by this rule
must also coordinate with these terminal operators.
E. Coordination With CBP and TSA
    The NPRM: As recommended by the Tarmac Delay Task Force,\1\ we
proposed to require carriers to include TSA in their coordination
efforts for any large, medium, small, and non-hub U.S. airports,
including U.S. diversion airports which they regularly use. We also
proposed to require carriers to coordinate with CBP for any U.S.
airport that the carrier regularly uses for its international flights,
including diversion airports. We proposed these measures as it had come
to the Department's attention on more than one occasion that passengers
on international flights were held on diverted aircraft for extended
periods of time because there were reportedly no means to process those
passengers and allow them access to terminal facilities. At that time,
the U.S. Department of Homeland Security (TSA and CBP are part of DHS)
had advised this Department that, subject to coordination with CBP
regional directors, passengers on diverted international flights may be
permitted into closed/sterile terminal areas without CBP screening. In
the NPRM, we invited interested persons to comment on this proposal and
asked what costs and benefits would result from imposing this
requirement.
---------------------------------------------------------------------------

    \1\ In January 2008, the Department established a Tarmac Delay
Task Force to coordinate and develop contingency plans to deal with
lengthy delays. The Task Force comprising of individuals who
represented airlines, airports and consumer groups issued a report
that set forth guidelines for airlines, airports, and other
stakeholders to use when dealing with long ground delays.
---------------------------------------------------------------------------

    Comments: Of the U.S. carriers and carrier associations that
commented, ATA states that carriers already coordinate with TSA and CBP
and will continue to do so but stresses that interagency coordination
between CBP and TSA as well as coordination between the airports and
CBP/TSA is needed in order to get diverted passengers who so desire off
airplanes. USA3000 suggests that airports may not be properly staffed
by CBP during irregular operations and urges DOT to review this issue
with CBP and local airports.
    The non-U.S. carrier and carrier association commenters object in
general to the proposal as unnecessary. IACA notes that tarmac delays
of more than three hours are very rare and believes the NPRM imposes a
disproportionate burden on airlines to coordinate plans not only with
airports, but with federal agencies. IATA supports the need for the
United States government to be more responsive to the needs of airline
passenger who arrive at airports where TSA and CBP personnel are not
normally stationed or are not present during off hours, but think it is
the responsibility of those agencies to work together to put systems in
place. The comments of the Association of European Airlines (AEA) and
many foreign airlines' are similar to or support IATA, while NACA adds
that DOT should work with CBP and other government agencies on a
memorandum of understanding to address issues regarding extended tarmac
delays. The National Airlines Council of Canada (NACC) adds that
carriers have limited influence over TSA and CBP, so obligations should
be on the U.S. government to ensure these agencies have their own
contingency plans in place. The Arab Air Carrier Association (AACA)
states that coordinating contingency plans with diversion airports as
well as TSA and CBP will be very costly and suggests, along with other
commenters, that TSA and CBP should design their own contingency plans
for any airport that receives international flights.
    Some foreign carriers assert that this proposal is flawed because
TSA and CBP can provide only limited assistance at some airports due to
limited after-hours federal inspection capabilities or limited federal
personnel available at the smaller airports. Carriers also ask how they
can ensure that passengers will remain in one area of the airport or
that a sterile area will be available for containing such passengers.
British Airways supports the proposal that passengers on diverted
international flights be permitted into closed terminal areas without
CBP screening and notes, as do some other foreign carriers, that these
carriers generally do not have a presence at diversion airports. As
such, British Airways and other carriers assert that CBP and the
airport operator should be responsible to ensure that passengers can
disembark the aircraft. Cathay Pacific adds that the burden to
coordinate plans should be on all the stakeholders, while Malaysia
Airlines does not support coordinating delay contingency plans with CBP
and TSA, but thinks those agencies should design their own plans.
Cathay Pacific notes that not all airports can handle aircraft carrying
300+ passengers and states that airports not suitable for deplaning
international passengers should fall outside the scope of the proposed
rules.
    Of the travel agents and other industry group commenters, ASTA
supports extending the rule to include coordination with CBP and TSA.
NBTA expresses concern that costs associated with requiring
coordination with TSA and CBP may outweigh the benefits and may be
passed on to the business traveler. As such, NBTA thinks DOT should
develop a clearer picture of cost-benefits before implementing this
provision. TUI believes that it is not necessary to coordinate plans
with TSA or CBP, and is concerned that this would add another layer of
planning.
    Of the consumer and consumer group commenters, CTA supports rules
being promulgated by CBP and TSA that will allow passengers on inbound
international flights forced to land at a diversion airport to be
processed, as does the AAPR, Flyersrights.org and the Consumers Union.
Dallas/Fort Worth Airport supports requiring carriers to coordinate
plans with CBP and TSA and states that plans should be in place to deal
with the process of handling international passengers and allowing them
access to terminal facilities at small and medium size airports with no
CBP services. ACI applauds DOT for proposing to expand coordination to
TSA and CBP.
    DOT Response: After considering all the comments, the Department is
adopting the requirement that carriers coordinate plans with CBP and
TSA at large, medium, small, and non-hub airports that they regularly
serve, including at diversion airports they plan to utilize. Because
tarmac delays are a particular problem in situations where flights must
be diverted from their intended destination airports, this rule
requires carriers to coordinate their plans with airports that serve as
diversion airports for such operations. As recommended by the Tarmac
Delay Task Force, it is also important for carriers to include in their
coordination efforts appropriate government authorities such as Customs
and Border Protection and the Transportation

Security Administration, when appropriate.
    In adopting this requirement, we note that more than one incident
of concern to the Department has occurred at a diversion airport where
passengers could not deplane the aircraft due at least in part to
security concerns or issues with processing international passengers.
It is important to ensure that there is a contingency plan in place in
order to address the objective of deplaning passengers in those
situations. The Department is actively working with TSA and CBP to
develop policies and procedures in order to assist carriers with
coordinating their plans and complying with this regulation. We would
consider an airline to have complied with the requirement to coordinate
its plan with CBP and TSA if the carrier submits its plan to CBP's
Regional Director and TSA's Federal Security Director for that airport
and considers any issues raised in response to those agencies.
F. Passenger Notification
    The NPRM: In the NPRM we proposed to require that U.S. and foreign
air carriers update passengers every 30 minutes during a tarmac delay
regarding the status of their flight and the reasons for the tarmac
delay. We also proposed that carriers announce that passengers have the
opportunity to deplane the aircraft when the flight is delayed and the
doors are open. In proposing these requirements, the Department gave
consideration to passengers' frustration with lack of communication by
carrier personnel about the reasons a flight is experiencing a long
tarmac delay. We noted that it did not seem unreasonable or unduly
burdensome to require carriers to address this issue and verbally
inform passengers as to the flight's operational status on a regular
basis during a lengthy tarmac delay. We did not anticipate that a
carrier's flight crews will know every nuance of the reason for the
delay, but we noted our expectation that they inform passengers of the
reasons of which they are aware and make reasonable attempts to acquire
information about the reasons for that delay.
    We also invited comment on whether carriers should be required to
announce that passengers may deplane from an aircraft that is at the
gate or other disembarkation area with a door open. The Department's
Office of Aviation Enforcement and Proceedings had previously explained
that a tarmac delay begins when passengers no longer have an option to
get off an aircraft, which usually occurs when the doors of the
aircraft are closed, and has encouraged carriers to announce to
passengers on flights that remain at the gate with the doors open for
lengthy periods that the passengers are allowed off the aircraft if
that is the case. However, we noted that such an announcement is not
explicitly required in the existing rule. Consequently, we sought
comment on the benefit to consumers of mandating such announcements and
asked commenters, including carriers and carrier associations, to
address any costs and/or operational concerns related to implementing a
rule requiring such announcements.
    Comments: Non-U.S. carrier and carrier association comments
generally object to the proposal to update passengers every 30 minutes
during a tarmac delay regarding the status of their flight and the
reasons for the tarmac delay, characterizing it as unnecessary. IACA
states that notifying passengers every 30 minutes as to reason for a
tarmac delay is unnecessary overregulation. Some foreign carriers, such
as Air France and KLM note that requiring announcements every 30
minutes will have unintended consequences and state that keeping
passengers informed is already important to carriers and a regulation
is not needed. Other carriers, such as Qantas and JetStar, agree that
notifying passengers every 30 minutes is reasonable, but state that too
much detail may lead to false expectations on the part of the
passengers. AACA expresses concern about the broad language regarding
the format of communication and when a carrier should be aware of
information to provide to the passenger, and the ability of airlines to
prove they have relayed information to the passenger. NACC does not
support updates every 30 minutes as this could result in relaying
incomplete or inaccurate information to the passengers.
    U.S. carriers and carrier association commenters generally agree
that it would be beneficial for passengers to be updated frequently on
flight status changes when there is a tarmac delay but expressed
concern that carriers are not always updated by FAA on a timely basis.
Of the travel agents and other industry group commenters, ASTA supports
the provision for carriers to make tarmac delay announcements every 30
minutes. However, TUI Travel does not believe DOT should be overly
prescriptive or detail the circumstances or time intervals upon which
updates on delays should be given, but agrees that information needs to
be given and updated at regular intervals.
    Consumers and consumer group commenters support a requirement to
provide updates every 30 minutes. More specifically, AAPR and
Flyersrights.org fully support requiring carriers to communicate with
passengers during delays. Of the airport industry commenters, the AAAE
agrees that essential communication with passengers is necessary. The
New York State Consumer Protection Board adds that communication with
passengers during a delay is important because failure to update the
flight's status adds to the frustration caused by the situation. As
such, it strongly supports the proposal that air carriers update
passengers every 30 minutes during a delay.
    We received various differing comments on whether carriers should
be required to announce that passengers may deplane from an aircraft
that is at the gate or other disembarkation area with the door open.
Spirit Airlines opposes DOT requiring carriers to permit passenger to
leave an aircraft that remains at the gate for a delay of less than
three hours but notes that its practice is to permit deplaning after
two hours. It states that deplaning could create operational problems
and raise costs and notes that the window of time to enplane may be
small, passengers may be hard to locate and re-boarding will be time
consuming and delay departure. Spirit believes that the airline can
exercise the best judgment regarding whether passenger should be
allowed to deplane.
    IATA also does not support the proposal to announce that passengers
may deplane from an aircraft with the door open and states that the
option to deplane raises a number of issues (e.g. removing baggage if a
passenger doesn't travel, DHS personal data accountability issues,
passenger manifest issues, length of time to deplane and enplane large
aircraft, short windows for departure). Comments of AEA and foreign
airlines' comments are similar to IATA's. Many foreign carriers object
to the proposal to notify passengers that they can deplane due to
various operational concerns similar to those posited by IATA and other
foreign carrier associations. ALTA raises additional concerns with
safety issues, and questions who will have control over passengers that
temporarily deplane and, miss flights. Air France and KLM also state
that a carrier should be given the option to make the announcement that
passengers can deplane depending on the specific circumstances. Air
Tahiti asks for clarification on whether there is a minimum duration an
air carrier must wait for passenger to re-enplane the

aircraft and whether deplaned passengers' baggage must be deplaned.
    CTA states carriers should be required to communicate with
passengers on a regular basis and agrees that carriers should inform
passengers during delays while the aircraft is at a loading bridge with
its doors open that they may deplane at any time, to stretch their
legs, to be rebooked on another flight or to cancel their flight and
get a refund. NBTA also supports this provision.
    DOT Response: After considering the comments received, the
Department has decided to require that carriers notify passengers every
30 minutes about the status of a tarmac delay, including the reasons
for the delay if known. In implementing this requirement, we note that
we expect the carrier to make reasonable attempts to acquire
information about the status of the delay and to provide this
information to consumers. A carrier would not be held responsible for
failing to provide a status that was not known to it so long as the
carrier made reasonable efforts to find out the status.
    We have also decided to require U.S. and foreign air carriers to
notify passengers that they can deplane from an aircraft that is at the
gate or another disembarkation area with the door open, if that is the
case. The purpose of this requirement is to address problems that have
arisen since the first tarmac delay rule has been in effect where U.S.
carriers have asserted that the three hour clock should not yet be
running but where passengers did not know that the door to the aircraft
was open and that they had the option to get off of the aircraft,
particularly on a departure delay at the gate or on large aircraft. We
are not requiring carriers to provide passengers the opportunity to
deplane in less than three hours but simply to inform them that the
opportunity to deplane exists, if it does. Of course, in situations
where an aircraft is at the gate with the door open and passengers are
not allowed off the aircraft, the tarmac delay begins at the point when
passengers are no longer permitted to deplane and not when the doors of
the aircraft are shut.
    As for commenters' concerns with reconciling passenger manifests
and dealing with the checked baggage of passengers who choose to
deplane, we are not requiring airlines to re-board a passenger who
chooses to deplane and therefore misses a flight, or to remove the
checked baggage of a passenger that has deplaned. DHS/TSA also doesn't
require that passenger's checked baggage be removed if the passenger is
no longer on that flight. We encourage airlines to announce to
passengers that they are deplaning at their own risk and that the
flight could depart at any time without them if this is the case.
G. Code-Share Flights
    The NPRM: We sought comment on whether, in the case of a code-share
flight, we should expand coverage of the requirement to adopt tarmac
delay contingency plans so that the obligation to adopt such a plan and
adhere to its terms is not only the responsibility of the operating
carrier but also the carrier under whose code the service is marketed,
if different.
    Comments: Of the U.S. carrier and carrier association commenters,
ATA states that the operating carrier has sole operating authority and
is in sole control of how a passenger is treated, so it is unreasonable
to also hold the marketing carrier accountable, especially if the
contingency plans differ or are in conflict. The U.S. carriers that
commented on this issue concur with ATA. RAA disagrees and states that,
if DOT insists that operating carriers adopt contingency plans, it
should place primary responsibility for adoption and compliance with
the plan on the marketing carrier. RAA asserts that carriers that hold
out, sell and ticket passengers should have sole responsibility to the
Department and that liability of the operating carrier should be
determined by its contract with the marketing carrier.
    Of the non-U.S. carrier and carrier association commenters, IATA
believes that only the operating carrier should be responsible for the
terms of the contingency plan. AEA and ALTA, among others, concur with
IATA. Of the foreign carriers that commented, most believe that only
operating carriers should be responsible in a code-share situation
based on their assertion that the operating carrier has responsibility
for how the passengers are treated. Some commenters also note that the
marketing carrier might not operate its own aircraft to all of the
airports served by its code-share partners and thus would not have a
relationship with those airport authorities. Others, such as Air Tahiti
and Swiss International, note that the proposed regulations fail to
consider the intricacies of the code-share relationship and suggest
that there may be issues with collusion and antitrust concerns in some
jurisdictions.
    We received few comments from travel agents and other travel
industry commenters on this issue. ASTA believes that code-share
partners should be responsible for harmonizing their consumer
protection processes so consumers don't worry about which carrier does
the marketing, ticketing or flying. Among the consumer and consumer
group comments, CTA states that given the expansion of code-shares and
with the antitrust immunity granted to airline alliances, there should
be no difference between flights operated by U.S. or foreign carriers.
AAPR supports expanding coverage of the requirement to adopt tarmac
delay contingency plans to the carrier under whose code the service is
marketed if different than the operating carrier.
    DOT Response: After considering all the comments, the Department
has decided to require that the tarmac delay contingency plan of the
carrier under whose code the service is marketed governs if different
from the plan of the operating carrier, unless the marketing carrier
specifies in its contract of carriage that the operating carrier's plan
governs. In adopting this rule, we have considered the comments stating
that the operating carrier should be responsible for following the
terms of a plan, as it is in the best position to address passenger
concerns in the event of a tarmac delay. However, on balance, we have
concluded that the expectation of the types of services a passenger
will be provided is based on the information given to him or her by the
marketing carrier, as this is the carrier that held out, sold, and
ticketed passengers for the flight. It is reasonable for a consumer to
expect the marketing carrier's tarmac delay contingency plan to apply
unless the marketing carrier specifies in its contract of carriage that
the operating carrier's tarmac delay plan governs. Irrespective of
whether the marketing carrier's or operating carrier's contingency plan
governs in a particular situation, we intend to hold both the marketing
carrier and the operating carrier (i.e., the carrier that sold the
passenger a ticket under its name as well as the carrier that operates
the aircraft in which that passenger travels) legally responsible. We
encourage code-share partners to the extent possible to align their
tarmac delay contingency plans. In situations where there are multiple
marketing carriers on a single flight and the marketing carriers have
not specified in their contracts of carriage that the operating
carrier's plan governs, it becomes even more critical that the
carriers' plans are aligned. If not, several different contingency
plans may apply to passengers on the same flight.
H. Retention of Records
    The NPRM: As is the case for U.S. carriers under the existing rule,
the NPRM proposed to require foreign carriers to retain for two years
the following information on any tarmac

delay that lasts at least three hours: the length of the delay, the
specific cause of the delay, and the steps taken to minimize hardships
for passengers (including providing food and water, maintaining
lavatories, and providing medical assistance); whether the flight
ultimately took off (in the case of a departure delay or diversion) or
returned to the gate; and an explanation for any tarmac delay that
exceeded three hours, including why the aircraft did not return to the
gate by the three-hour mark.
    Comments: We received few comments on this issue. Of the carriers
and carrier associations that did comment, they expressed concerns that
this provision would be burdensome and time consuming.
    DOT Response: The requirement to retain tarmac delay records
already applies to U.S. carriers. We are extending it here to foreign
carriers operating passenger service to and from the U.S. on at least
one aircraft with a passenger capacity of 30 or more seats. The tarmac
delay information that the Department is requiring foreign airlines to
retain is not available to it through other means. This information
will help the Department obtain a more complete picture about lengthy
tarmac delays and ensure carrier compliance with the tarmac delay
requirements. The Department also believes that the requirement to
retain tarmac delay data would not be burdensome for carriers, since we
believe most carriers would as a matter of good business practice,
obtain this information for their own purposes and, in any event, there
are relatively few tarmac delays of more than three hours. In addition,
the Department is not prescribing the manner in which this information
must be kept and there is no requirement that a carrier submit the
information to the Department unless specifically requested to do so,
all of which should reduce any costs associated with this requirement.

2. Tarmac Delay Data

    The NPRM: The proposed rule would require any U.S. or foreign
carrier that operates passenger service (charter or scheduled) to, from
or within the U.S. using any aircraft with a passenger capacity of 30
or more seats to submit monthly to the Department a set of data
regarding tarmac delays of three hours or more at a U.S. airport to the
extent that the carrier doesn't already provide such data to the
Department. If a covered carrier has no flight with 3-hour tarmac
delays, the proposed rule would require the carrier to submit a
negative report, i.e., a report stating there are no 3-hour tarmac
times. The report would be due within 15 days after the end of each
month being reported.
    Reporting carriers (carriers that account for at least one percent
of domestic scheduled passenger revenue which in calendar year 2009
consisted of the 16 largest U.S. carriers by scheduled passenger
revenue plus two carriers that voluntarily file under Part 234) already
file with the Department on-time flight performance data which includes
all the data fields proposed to be reported here and more for their
domestic scheduled flights pursuant to 14 CFR part 234. In recognition
of this fact, the NPRM proposed that these U.S. carriers file tarmac
delay data only for other types of transportation covered by the
proposed rule, i.e., their charter and international flights. The NPRM
proposed to require other U.S. carriers and foreign carriers to provide
data on tarmac delays that occurred at a U.S. airport and lasted for
three hours or more for any of their flights--scheduled and charter
flights as well as domestic and international flights. We sought
comments on whether we should limit the tarmac delay reporting
requirement to U.S. and foreign air carriers that operate large
aircraft, i.e., aircraft originally designed to have a maximum
passenger capacity of 60 seats or more.
    Comments: Individual consumers or consumer groups who submitted
comments on this proposal unanimously support this proposal. Consumers
Union states that it supports expanding the pool of reporting carriers
to all U.S. and foreign carriers that operate any aircraft with 30 or
more seats. It maintains that such a requirement is particularly
important because it will reach many airline passengers who are
currently not protected by these policies. One individual commenter
states that equal treatment for all carriers is necessary to ensure
competitive equality. Consumers Union also supports requiring Part 234
reporting carriers to provide tarmac delay data for public charter and
international flights.
    The Association for Airline Passenger Rights points out that the
Department is attentive to the potential burden to small carriers and
has narrowed the data fields it proposed to be reported for tarmac
delays from the comprehensive on-time reporting scheme that exists. One
commenter adds that most carriers already collect some of the data
required under this proposal so it should not be overly burdensome for
carriers to comply with the requirements. Several commenters from the
Regulation Room state that technology development makes compliance
relatively easy.
    A few consumers and consumer organization commenters believe that
the Department should go further in this respect. FlyersRights.org
suggests that, in addition to filing reports under this Part and
complying with the record retention requirement in Part 259, the
Department should require carriers to submit a comprehensive written
report within 14 days of the occurrence of any lengthy tarmac delay.
One individual commenter asserts that data should be reported for
tarmac delays of one hour or more to reflect a better picture of the
tarmac delay problem.
    Among U.S. carriers and carrier associations that commented on this
proposal, ATA states that it generally supports expanding the reporting
carrier pool. RAA, on the other hand, argues that all carriers that are
not required to report tarmac delay data under Part 234 should be
exempted from this reporting requirement. RAA reasons that the new
reporting requirements are not necessary because most carriers,
including carriers not covered under Part 234, are already required to
retain tarmac delay data for two years. Thus, according to RAA, the
Department may request such information for policy-making purpose
whenever necessary. Additionally, RAA contends that the Department
failed to provide a quantifiable cost/benefit analysis in the NPRM to
justify such a requirement. NACA expresses its uncertainty regarding
the purpose of requiring smaller carriers (which it defines as those
that operate fewer than 25 aircraft) to report tarmac delay data. As a
compromise, NACA suggests that carriers should be required to file
tarmac delay reports under any rule only if during any given month the
occurrences of tarmac delays have exceeded a certain threshold, e.g.,
more than 10 incidents.
    Comments provided by foreign carriers and carrier associations
generally oppose this proposal or request that the reporting obligation
be limited. Several commenters contend that the Department has not
provided justification as to how the proposed data collection from
foreign carriers would address the causes of tarmac delays and benefit
consumers. Some commenters take the position that requiring foreign
carriers to report tarmac delay data is not necessary because
international flights operate less frequently than domestic flights and
tarmac delay incidents for international flights are rare. Thus,
according to these commenters, the cost for carriers to set up a
reporting infrastructure outweighs the benefit. Furthermore, they
believe it is inappropriate to require smaller

carriers to submit and retain tarmac delay data due to their lesser
administrative resources and the small segment of the market these
carriers serve. A number of commenters state that tarmac delays usually
occur as the result of airport infrastructure problems. Therefore,
these commenters believe that the Department should require airports to
report this data. Likewise, some carriers argue that the data collected
from this proposal is readily available from FAA's Air Traffic Control
System Command Center. A few commenters note that the burden on foreign
carriers is increased if the Department maintains the proposal that
negative reports must be filed when no reportable tarmac delay has
occurred during a month.
    Qantas and JetStar Airways state that they would not oppose a rule
if it imposed the reporting responsibility on operating carriers
instead of the marketing code-share partners and limited the reporting
fields to the identification of aircraft, airport, relevant times, and
a brief explanation for the tarmac delay. They also request that easy
methods of report submission should be permitted, such as email
submission.
    Virgin Atlantic raises the concern that publishing reported data
may be misleading to consumers who tend to judge a carrier's
performance based on raw tarmac delay records, and overlook the causes
for such delay, which could be factors that are not under carrier's
control. Lufthansa also requests that any publication of the tarmac
delay data by the Department should also include the cause of the
delay. National Airlines Council of Canada further states that such
misjudgments will cause undue commercial damage to Canadian carriers
that face the most challenging weather conditions, which could
contribute to more tarmac delays.
    Monarch Airlines and TUI Travel contend that foreign charter
carriers that operate roundtrip flights to limited U.S. destinations
should be exempted from the reporting requirements. In addition to
consumers and industry commenters, NBTA and ACI-NA both provided
comments in support of the Department's proposal.
    DOT Response: After thoroughly considering all the comments
received, the Department continues to believe that the proposed data
collection requirement is crucial to obtaining a more complete picture
of the tarmac delays at U.S. airports. Without such data, we do not
have adequate statistical foundations to support a determination
regarding whether lengthy tarmac delays are or will be a significant
problem for consumers on international flights or charter flights. We
reiterate that the causes of lengthy tarmac delays are comprehensive
and there is not a universal solution that would cure all problems at
all airports. We continue to believe that a more complete picture of
lengthy tarmac delays is the first step to obtaining a baseline that
the Department can use to analyze the issue by carrier, by region/
airport, by month, or by the type of flight, as appropriate.
    We note that several recent tarmac delays that attracted
significant public attention were international arrivals. Tarmac delays
involving international flights, although rare, tend to be particularly
lengthy and complicated. In that regard, we reiterate that collecting
tarmac delay information for international flights is important. The
data that we are seeking to obtain here are not available to us through
other means. Commenters are mistaken when they assert that the FAA has
this information readily available. Furthermore, the publication of the
tarmac delay data would increase public awareness of the issue,
providing incentives for airline management to focus on addressing
tarmac delay problems.
    With respect to whether the costs for foreign carriers to set up
the reporting infrastructure justifies the benefits obtained from such
reports in light of the relatively less frequent occurrence of tarmac
delay incidents on international flights, we note that none of the
commenters opposing extension of the reporting requirement to foreign
carriers has provided any cost/benefit analysis in support of their
position. We understand that most data contained in the reporting
fields under this proposal are already collected by the carriers
internally. BTS already has a system in place to accept reports
electronically. Reporting to the BTS would incur a one-time IT
infrastructure setup cost and minimal maintenance expenditure. We do
not expect these costs to be significant.
    We have also considered some commenters' suggestion that we should
not require a negative report to be filed when no reportable tarmac
delay occurred during a given month. Based on data submitted by the
reporting carriers, during the past six months the total number of
tarmac delay incidents that lasted for two hours or more at U.S.
airports was less than 0.1% of the total domestic scheduled passenger
flights operated by those carriers for each month. We agree that these
data indicate that international flights that experience reportable
tarmac delays will only represent a fraction of the total number of
flights. As such, the vast majority of carriers filing reports if the
rule is adopted as proposed would be filing a negative report for most
months. Although negative reports are an effective enforcement tool for
ensuring accurate reporting of tarmac delay, we have decided not to
require negative reports to be filed, in order to further reduce the
carriers' burden in complying with this rule.
    With respect to some foreign carriers' suggestion that for code-
share arrangements we should require the marketing carrier rather than
the operating carrier to file the report, we are of the opinion that it
is up to the code-share partners to designate who has the
responsibility to file the report. Based on each carrier's resources
and ability, it may be more convenient for a foreign carrier to use its
U.S. code-share partner to file the reports, but the Department will
not dictate which carrier has the reporting responsibility and will
hold both marketing and operating carriers legally responsible if data
for a reportable tarmac delay are not timely or accurately filed.
    Regarding some foreign carriers' comments on roundtrip charter
services between foreign points and U.S. destinations, we agree that as
long as these flights carry only passengers that originate at a foreign
point and do not pick up any U.S.- originating passengers, tarmac
delays on those flights will have minimal impact on U.S. consumers.
Moreover, the Department is not applying its requirement for carriers
to adopt contingency plans for lengthy tarmac delays to such
operations. Therefore, we have decided that this reporting requirement
should not apply to such flights.
    We have also considered some carriers' concern that publishing
tarmac delay information may lead the public to compare carriers'
performance quality based on the raw data, while carriers may not be at
fault for all tarmac delay incidents. We are not convinced that this
will create overall false perceptions. The public is generally well
informed about the causes contributing to a lengthy tarmac delay, not
only through Departmental reports and press releases, but also through
supplemental resources such as the media and the Internet. This
information will normally enable the public to look beyond the net
number of tarmac delays by each carrier. Moreover, carriers are always
free to provide the public information about the cause of their tarmac
delays, so long as that information is correct and not misleading.

    To address the suggestion of some consumer commenters that we
should require carriers to report tarmac delays of less than three
hours, we note that the three-hour standard is consistent with the
current tarmac delay contingency plan regulations and have reached the
conclusion that this threshold represents the proper balance between
the reporting burden placed on carriers and the benefits to the public.
In addition, we do not believe it is necessary to mandate that a
detailed explanation for each tarmac delay be filed with the tarmac
delay report. Such detailed explanation is of little use to BTS, which
is a data collecting and analysis agency. If the Department believes
that a particular tarmac delay warrants further investigation, its
Aviation Enforcement Office will request information from the carrier,
which the carrier is required to retain for tarmac delays of more than
3 hours.
    Finally, we would like to provide further clarification regarding
the reporting duties for carriers that are currently filing Part 234
Airline Service Quality Performance Reports. According to BTS Technical
Directive 20, issued on November 5, 2010, and effective on
January 1, 2011, there are 15 U.S. carriers whose domestic scheduled
passenger revenues meet the threshold for mandatory filing of Part 234
reports. These carriers are identified as Part 234 ``reporting air
carriers.'' The carriers on this list may change from time to time due
to carriers' revenue fluctuation and corporate restructuring, and BTS
updates the list annually. In addition to the 15 reporting air
carriers, Express Jet will submit on-time data under Part 234 in 2011
as a ``volunteer air carrier.'' Although Part 234 only requires data
for domestic scheduled passenger flights to and from a large hub U.S.
airport, all reporting carriers, including the volunteer air carriers,
are currently filing data for all domestic scheduled flights to and
from all U.S. airports, including medium, small, and non-hub airports.
As long as they continue to do so, they are only required to file
tarmac delay data for international and charter flights to a U.S.
airport under the new reporting regulation, 14 CFR part 244. However,
if any Part 234 reporting carrier decides to report only the minimum
required data under Part 234, i.e., on-time performance data for
domestic scheduled flights to and from large hub U.S. airports, it must
report any tarmac delay of three hours or more for domestic scheduled
flights to and from a medium, small, or non-hub U.S. airport under Part
244. The same rationale applies to any volunteer air carriers under
Part 234. If a volunteer air carrier ceases to file any or all reports
under 234, it must file tarmac delay data for reportable flights under
Part 244. As we have explained in the NPRM, the purpose of Part 244 is
to fill in the tarmac delay data gap that is not covered by Part 234.
In that regard, no carrier is required to file both Part 234 and Part
244 reports for the same flight.

3. Customer Service Plans

A. Entities Covered
    The NPRM: The NPRM proposed to increase the protections afforded
consumers in the first Enhancing Airline Passenger Protections rule by
requiring foreign air carriers to adopt, follow, and audit customer
service plans, as covered U.S. carriers have been required to do since
April 2010. We proposed to cover foreign air carriers operating
scheduled passenger service to and from the U.S. that use any aircraft
designed to have a passenger capacity of 30 or more. We noted that the
rule would apply to all flights to and from the U.S. of those carriers,
including flights involving aircraft with fewer than 30 seats, if a
carrier operates any aircraft with 30 or more passenger seats to and
from the U.S. We asked interested persons to comment on whether the
proposed requirement for foreign air carriers to adopt, follow and
audit customer service plans should be narrowed in any fashion. (e.g.,
should never apply to aircraft with fewer than 30 seats).
    Comments: Of the foreign-carrier industry commenters, the majority
expressed their strong belief that the customer service plans
requirement should not be extended to foreign carriers. IACA states
that DOT's regulatory proposals ignore the fact that airlines have
designed customer service in a way to attract their customer and
asserts that these provisions intervene in the airline's business and
service practices. IATA strongly opposes any customer service
requirements being imposed on foreign carriers unless those
requirements are harmonized with the regulations of other
jurisdictions. IACA and IATA also assert that the proposals are
extraterritorial in that they would apply to all flights to and from
the U.S. and could be interpreted in such a way that these obligations
would also cover sales generated outside the U.S. AACO, AEA and ALTA
concur with IATA.
    Of the foreign air carrier commenters, LAN Airlines (LAN Ecuador,
LAN Peru, LAN Argentina), Emirates, and SAS, among others, oppose DOT
requiring them to adopt customer service provisions. Swiss
International contends that the application of customer service plans
to the conduct of foreign carriers on foreign soil or in foreign
airspace poses several issues under U.S. and international law related
to extraterritorial application of U.S. regulations. TAP Portugal makes
similar comments regarding extraterritorial concerns, as do, among
others, Lufthansa and Austrian Airlines. Other carriers, such as
British Airways, note that they are already subject to customer service
provisions in their own countries (e.g. EU provisions) and, therefore,
the Department's proposal is unnecessary and redundant, as well as
potentially inconsistent with those countries' requirements. Singapore
Airlines adds that competition is more effective than government
mandates in improving customer service, and the Department does not
need to be involved in customer service matters.
    All Nippon states that the customer service provisions should apply
only to sales made within the U.S. Qantas states that it is not
necessary, practical or efficient to require foreign carriers to
provide customers with additional or different customer service plans
when carriers already have such provisions in place (e.g., Qantas has a
Customer Charter on its website) and states that any requirement should
be limited to carriers that do not already have a customer service plan
in place. JetStar essentially concurs with Qantas. JAL makes similar
comments and notes that some of its standards are more stringent than
the service requirements proposed and that foreign airlines compete on
service and should determine their own service standards. JAL also
expresses concern about the potential costs associated with this
provision, characterizes it as an intrusive service regulation and
states that it is not justified. VivaAerobus opposes the Department
requiring small carriers to have a customer service plan. The
Washington Aviation Assembly, representing 35 Embassies in the U.S.,
notes general issues with extraterritoriality, operational consequences
for foreign airlines, and the potential economic burden for foreign
airlines if they are required to comply with the customer service
provisions.
    As for U.S. airlines and associations, ATA expresses concern that
DOT requiring foreign carriers to adopt a customer service plan could
drive foreign governments to retaliate against U.S. carriers operating
outside the U.S., which could create conflicting standards and
unnecessarily drive additional costs. Among the travel agency interests
that commented, ASTA

agrees that customer service plan rules and standards should apply
equally to foreign air carriers, with no aircraft-size exceptions. ITSA
supports in general the Department's efforts to provide passengers with
the means to make better informed decisions and more informed choices
in travel.
    Commenters on ``Regulation Room,'' who primarily identified
themselves as air travelers, generally support DOT's proposal. However,
some of those that commented oppose the regulation and fear the costs
will be passed on to consumers. The consumer groups that commented on
this issue generally supported the provision and note that passengers
should have the ability to know that certain customer service standards
will be defined and met regardless of the carrier that a passenger
chooses to travel on. CTA notes that foreign carriers operating as
members of any international airline alliance must be included in these
rules. AAPR, Consumers Union and Flyersrights.org generally support the
proposal to require foreign air carriers to adopt, follow, and audit
customer service plans. NBTA supports extending customer service
provisions to foreign carriers using aircraft with 30 or more passenger
seats.
    DOT Response: After fully considering the comments, we have decided
to require foreign carriers that operate scheduled passenger service to
and from the U.S. using any aircraft with 30 or more seats to adopt,
follow and audit customer service plans. As noted previously, a
substantial number of passengers travel to and from the U.S. on flights
operated by foreign air carriers and the Department continues to
believe that it is important to protect these passengers, as well as to
be consistent with the application of our consumer protection rules to
both U.S. and foreign carriers.
    Foreign carriers' and others entities' concerns with
extraterritoriality have persuaded us, however, that some
clarifications are needed. First, we want to point out that out of the
twelve customer service commitments in this final rule, the substance
of two of them already applies to foreign air carriers under existing
DOT rules, i.e., 14 CFR part 250 concerning passengers who are
``bumped'' from flights that are oversold and 14 CFR part 382 which
addresses air travel of passengers with disabilities. Prior to issuing
those final rules, the Department addressed the issue of
extraterritoriality and determined how best to apply each of these
requirements to foreign air carriers. For instance, the Department
determined not to apply its oversales rule to international flights
inbound to the United States and determined not to apply U.S.
disability rules to a foreign carrier simply because a foreign
carrier's flight between two foreign points carried passengers under a
code-sharing arrangement with a U.S. carrier. The manner in which we
are applying these existing requirements to foreign air carriers
through the customer service commitments is not new and is not an
extraterritorial extension of U.S. jurisdiction.
    We note also that several of the other customer service commitments
are merely reinforcing new requirements imposed elsewhere in this final
rule, i.e., 14 CFR 259.8 which addresses notification of delays and
cancellations, 14 CFR 259.4 which addresses lengthy tarmac delays, and
14 CFR 259.7 which addresses responding to consumer complaints.
Concerns with extraterritoriality are specifically addressed in those
sections of this preamble that deal with those issues. In this final
rule, for example, we explain in the tarmac delay section that the
requirement to adopt and follow a tarmac delay contingency plan applies
only to tarmac delay events that occur at a covered U.S. airport.
Likewise, we clarify in the section on known delays, cancellations and
diversions that the requirement to notify consumers of flight
irregularities on a carrier's website and via the carrier's telephone
reservation system applies to a foreign carrier only if the carrier
markets to U.S. consumers. We also make clear that the requirement to
make this information available in the boarding gate areas applies only
to boarding gate areas at a U.S. airport. We believe that these types
of clarifications address the foreign carriers' main objections, which
are the application of the customer service plan to sales made outside
the U.S. and to the conduct of foreign carriers on foreign soil.
    We have made similar changes to other customer service commitments
that involve foreign carriers' websites and reservation centers to
ensure that we are not applying U.S. rules to a foreign carrier when
that carrier does not market its services to the U.S. For example, the
customer service commitment to disclose, among other things,
cancellation policies and frequent flyer rules on the selling carrier's
website and upon request from the selling carrier's telephone
reservations staff or the commitment to disclose the availability of
the lowest fare on a carrier's website or through its reservation
center will apply to a foreign carrier only if it markets its services
to U.S. consumers. We are also making changes to the customer service
commitments related to services to be provided generally or services to
be provided at the ticket counter and boarding gate area to specify
that such action is required only at U.S. airports.
    Finally, we want to clarify that for purposes of this section,
except as otherwise provided in individual customer service provisions
in this section, a ``flight'' that a foreign carrier operates to and
from the U.S. means a continuous journey in the same aircraft or with
one flight number that begins or ends at a U.S. airport. For example,
if a carrier were to operate flight 100, a direct flight from San
Francisco to Singapore with a stop in Hong Kong, the customer service
plan applies to both segments of this flight with respect to U.S.-
originating passengers. It would not apply to any Hong Kong originating
passengers who board the aircraft there and go to Singapore. On the
reverse routing, the plan would apply to passengers who board in
Singapore or Hong Kong and travel to the U.S.; it would not apply to
passengers boarding in Singapore whose destination is Hong Kong.
Temporarily deplaning at the intermediate stop on a direct flight (Hong
Kong in the above example) does not break the journey for purposes of
the applicability of the customer service plan requirements for
passengers who re-board and continue on that same flight operation. If
an international passenger whose journey originates or terminates in
the U.S. makes a connection to a flight with a different flight number,
the carrier's customer service plan applies only to the direct flight
to or from the U.S. In the case of change of gauge, all flight segments
with the same flight number that begin or end in the U.S. are covered
by the Customer Service Plan even if passengers must change aircraft
due to a change of gauge.
    As for the comments concerning the cost involved in adopting
customer service plans, we note that a number of carriers state that
they already have customer service plans or similar plans in place and
that these plans contain provisions similar or more stringent than
those the Department is requiring them to adopt, or that their
governments have similar requirements. To the extent provisions in
existing plans are more stringent than the minimum standards set in
this rule, carriers are encouraged to continue to apply these more
stringent provisions. To the extent provisions in existing plans vary
from our requirements, even if they are similar to them, it does not
seem overly burdensome for a carrier to amend those plans with respect
to flights to and from the U.S. to comply with this rule. Also, while
we understand that some foreign

countries have rules requiring customer service standards in air
carriage, we are not aware, nor are we convinced based on the comments
received, that any of those rules or standards conflict with the
requirements of this provision in a manner that would prevent a carrier
from complying with both requirements.
B. Content of Customer Service Plan
    The NPRM: In the NPRM, we noted that under the final rule published
on December 30, 2009, U.S. carriers are required to adopt customer
service plans for their scheduled flights that address, at a minimum,
the following service areas: (1) Offering the lowest fare available;
(2) notifying consumers of known delays, cancellations, and diversions;
(3) delivering baggage on time; (4) allowing reservations to be held or
cancelled without penalty for a defined amount of time; (5) providing
prompt ticket refunds; (6) properly accommodating disabled and special-
needs passengers, including during tarmac delays; (7) meeting
customers' essential needs during lengthy on-board delays; (8) handling
``bumped'' passengers in the case of oversales with fairness and
consistency; (9) disclosing travel itinerary, cancellation policies,
frequent flyer rules, and aircraft configuration; (10) ensuring good
customer service from code-share partners; (11) ensuring responsiveness
to customer complaints; and (12) identifying the services they provide
to mitigate passenger inconveniences resulting from flight
cancellations and misconnections. We proposed to extend the requirement
to address these twelve subjects in the customer service plan to
foreign air carriers and requested comment on whether any of these
subjects would be inappropriate if applied to a foreign carrier.
    The NPRM also proposed to require that U.S. and foreign carriers'
customer service plans meet minimum standards to ensure that the plans
are specific and enforceable. The minimum standards that we proposed
are as follows: (1) Offering the lowest fare available on the carrier's
website, at the ticket counter, or when a customer calls the carrier's
reservation center to inquire about a fare or to make a reservation;
(2) notifying consumers in the boarding gate area, on board aircraft,
and via a carrier's telephone reservation system and its website of
known delays, cancellations, and diversions; (3) delivering baggage on
time, including making every reasonable effort to return mishandled
baggage within twenty-four hours and compensating passengers for
reasonable expenses that result due to delay in delivery; (4) allowing
reservations to be held at the quoted fare without payment, or
cancelled without penalty, for at least twenty-four hours after the
reservation is made; (5) where ticket refunds are due, providing prompt
refunds for credit card purchases as required by 14 CFR 374.3 and 12
CFR part 226, and for cash and check purchases within 20 days after
receiving a complete refund request; (6) properly accommodating
passengers with disabilities as required by 14 CFR part 382 and other
special-needs passengers as set forth in the carrier's policies and
procedures, including during lengthy tarmac delays; (7) meeting
customers' essential needs during lengthy tarmac delays as required by
14 CFR 259.4 and as provided for in each covered carrier's contingency
plan; (8) handling ``bumped'' passengers with fairness and consistency
in the case of oversales as required by 14 CFR part 250 and as
described in each carrier's policies and procedures for determining
boarding priority; (9) disclosing cancellation policies, frequent flyer
rules, aircraft configuration, and lavatory availability on the selling
carrier's website, and upon request, from the selling carrier's
telephone reservations staff; (10) notifying consumers in a timely
manner of changes in their travel itineraries; (11) ensuring good
customer service from code-share partners operating a flight, including
making reasonable efforts to ensure that its code-share partner(s) have
comparable customer service plans or provide comparable customer
service levels, or have adopted the identified carrier's customer
service plan; (12) ensuring responsiveness to customer complaints as
required by 14 CFR 259.7; and (13) identifying the services it provides
to mitigate passenger inconveniences resulting from flight
cancellations and misconnections.
    In addition, we invited comment on whether the minimum standards
for any of the subjects contained in the customer service plans should
be modified or enhanced in some way. With regard to delivering baggage
on time, we solicited comment on whether we should also include as
standards (1) that carriers reimburse passengers the fee charged to
transport a bag if that bag is lost or not timely delivered, as well as
(2) the time when a bag should be considered not to have been timely
delivered (e.g., delivered on the same or earlier flight than the
passenger, delivered within 2 hours of the passenger's arrival). With
regard to providing prompt refunds, we sought comment on whether we
should also include as a standard that carriers refund ticketed
passengers, including those with non-refundable tickets, for flights
that are canceled or significantly delayed if the passenger chooses not
to travel as a result of the travel disruption. In addition, we
requested comment on whether it is necessary to include as a standard
the requirement that when a flight is cancelled carriers must refund
not only the ticket price but also any fees for optional services that
were charged to a passenger for that flight (e.g., baggage fees,
``service charges'' for use of frequent flyer miles when the flight is
canceled by the carrier). With respect to notifying passengers on board
aircraft of delays, we sought comment on how often updates should be
provided and whether we should require that passengers be advised when
they may deplane from aircraft during lengthy tarmac delays.
    Finally, we requested comment as to whether it is workable to set
minimum standards for any of the subjects contained in the customer
service plans and invited those that oppose the notion of the
Department setting minimum standards for customer service plans as
unduly burdensome to provide evidence of the costs that they
anticipate. We also sought comment on whether the Department should
require airlines to address any other subject in their customer service
plans. We specifically asked if mandatory disclosure to passengers and
other interested parties of past delays or cancellations of particular
flights before ticket purchase should be a new subject area covered in
customer service plans.
    Comments: U.S. carriers and carrier associations are generally
opposed to the Department setting minimum standards for the customer
service plans, particularly if the Department requires that the plans
be incorporated into the carriers' contracts of carriage. ATA notes
that, although U.S. carriers are already required under the current
regulation to address each of the proposed customer service plan
topics, the current regulation does not mandate minimum requirements
and allows carriers to set their own standards for their customer
service plans based on their own particular circumstances. ATA asserts
that for the Department to set the minimum standards for carriers'
plans would face a major change to existing carrier policies in areas
where U.S. carriers currently compete and could dampen innovation, harm
competition and reduce the flying public's options. Many U.S. carriers
concur with ATA.
    RAA is opposed not only to the establishment of minimum standards
but also to any continued requirement for its members to adopt customer

service plans. RAA explains that most regional carriers do not offer
fares, take reservations, ticket passengers, receive payment from
passengers, provide refunds to passengers, or have their own frequent
flyer rules or cancellation policies. RAA maintains that the subjects
to be addressed in the customer service plan would be inappropriate if
applied to an airline that does not hold out, market, sell tickets for
its operations and asks that the customer service requirements apply
only to carriers that hold out, market, sell and ticket air
transportation.
    Most foreign carriers and carrier associations expressed strong
opposition both to the requirement to have a customer service plan and
for that plan to meet minimum standards set by the Department. A number
of foreign carriers such as Air Berlin and associations such as IATA
and IACA raised the issue of extraterritoriality and argued that the
Department was overreaching as the customer service requirements could
be interpreted in such a way as to cover sales generated outside the
U.S. and to cover the conduct of foreign carriers on foreign soil or in
foreign airspace. There were also assertions that the Department's
regulatory proposals ignore the fact that airlines have designed their
customer service initiatives in a way to attract customers and the fact
that carrier customer service plan provisions are a way for carriers to
differentiate their services. South African Airways contends that
prescriptive regulations should not take the place of competitive
forces, especially when there is no evidence of market failure. Virgin
Atlantic, while agreeing that defining a baseline standard is
acceptable, states that forcing all carriers to be the same denies them
the right to compete commercially and does not allow carriers to
innovate.
    Others raised the existence of customer service requirements
imposed by other entities as a reason for the Department not to issue a
rule in this area. For instance, Air France and KLM state that the
customer service proposals should not be finalized as to EU carriers
where they are inconsistent with or more stringent than EU regulations.
Still other foreign carriers raised concerns that some of the minimum
service levels are impracticable for a carrier to meet (for example, if
a carrier sells a number of tickets via a travel agent and the
passenger contact information is not passed on then the carrier may not
have that passenger's contact information in order to advise them of a
change in itinerary). Some carriers also expressed concerns that
certain provisions may be outside of a carrier's control (e.g., ``good
customer service'' from a code-share partner).
    Travel agent organizations such as ASTA and consumer groups such as
AAPR, Flyersrights.org, NBTA, and CTA all support requiring carriers to
adopt customer service plans and for those plans to meet the minimum
standards as proposed in the NPRM. Most individual commenters also
support these DOT proposals, but a few oppose the regulation as
burdensome and fear the costs will be passed on to consumers. Many
``Regulation Room'' commenters want the Department to go further in
setting minimum standards and prohibiting certain practices.
    The Department received a number of comments on some of the minimum
standards proposed to be included in the customer service plans as well
as some of the questions we posed on modifying or enhancing these
standards and we address those issues more fully below.
1. Offering the Lowest Fare Available
    Many foreign air carrier associations, including AACO and NACC,
contend that requiring carriers to offer the lowest fare on the
carrier's website, at the ticket counter, or when a customer calls the
carrier's reservation center to inquire about a fare or make a
reservation would interfere in airline business practices. ALTA seeks
clarification on the meaning of ``offering the lowest fare available''
and asserts that a ``one size fits all'' fare will prejudice passengers
by increasing fares and limiting competition.
    Among the foreign air carriers that commented, Cathay Pacific
states it can only publish the fare at the time a request is made, as
fares are driven by complex inventory and fare managing systems and a
fare guarantee cannot be made. JetStar basically concurs and states
that the proposal fails to take account of legitimate distribution and
pricing practices. Qantas strongly opposes this requirement on the
basis that it fails to take into account the numerous possible options
and fare constructions that may be applicable to a consumer, and there
may be a false perception that a carrier is not quoting the best price
when the lowest priced inventory sells out. It is also concerned that
carriers will not be able to enforce the proposed requirement against
ticket agents and should not be responsible for ticket agent actions.
British Airways states that it offers the lowest fare that meets
customers' needs and its website allows consumers to find the lowest
fare. Similarly, JAL states that it already offers the lowest fare on
its website, at the ticket counter and via telephone reservations as
appropriate. Singapore Airlines states that, if this requirement is
adopted, the Department should confirm that this provision is intended
to conform with ATA's Customers First initiative and should make it
clear that the airline does not have to offer to a customer shopping
via one point-of-sale the lowest fare available in any channel.
    Of the U.S. carriers that commented, Spirit Airlines (Spirit)
opposes a requirement that all fares available on its website should be
made available through its telephone reservation service. Should DOT
impose such a standard, it must be limited to a carrier's generally
available fares and not apply to special sales fares because many of
these lower fares cannot be purchased over higher-cost channels.
2. Allowing Reservations To Be Held at the Quoted Fare
    A number of foreign carriers and carrier industry groups also
expressed serious concerns with the proposal to allow reservations to
be held at the quoted fare without payment, or cancelled without
penalty, for at least twenty-four hours after the reservation is made
and thought this provision may lead to inconsistent sales policies. For
example, Air New Zealand strongly opposes this provision because it
takes inventory off the market for the duration of the refund period,
blocking it from sale to other customers and risking that the seat may
not be sold again. The carrier points out that passengers have the
option to buy refundable fares, and choosing whether to allow a
passenger to hold a reservation without payment is a commercial
decision. Air France and KLM oppose this proposal primarily for the
reasons stated above, as does Qatar Airways. Alitalia opposes this
proposal and thinks the airline should be the party that establishes
commercial terms and conditions with its customers. Singapore Airlines
states that it is not set up to permit reservation holds and
reprogramming the system to do so is costly. It also notes that this
proposal interferes with the free market and deprives other passengers
of the lowest fare, as well as compromises an airline's ability to
adjust to overnight currency fluctuations. British Airways notes that
its current selling systems do not allow for reservations to be held
without penalty, but passengers that book via call centers have a ``24
hour cooling off'' period. It also states that consumers that visit
BA.com have several opportunities to review exactly what they are
booking and to confirm knowledge of details prior to booking.