Enhancing Airline Passenger Protections, 23110-23167 [2011-9736]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 76, Number 79 (Monday, April 25, 2011)]
[Rules and Regulations]
[Pages 23110-23167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9736]



[[Page 23109]]

Vol. 76

Monday,

No. 79

April 25, 2011

Part IV





Department of Transportation





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



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

[[Page 23110]]


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

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.

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

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, 202-366-9342 (phone), 202-
366-7152 (fax), tim.kelly@dot.gov or blane.workie@dot.gov (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, https://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).

[[Page 23111]]

 
                                     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.
------------------------------------------------------------------------

[[Page 23112]]

 
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

[[Page 23113]]

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

[[Page 23114]]

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

[[Page 23115]]

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

[[Page 23116]]

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

[[Page 23117]]

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 suppo