Enhancing Airline Passenger Protections: Limited Delay of Effective Date for Certain Provisions, 45181-45184 [2011-18903]

Agencies

• DEPARTMENT OF TRANSPORTATION
• Office of the Secretary

[Federal Register Volume 76, Number 145 (Thursday, July 28, 2011)]
[Rules and Regulations]
[Pages 45181-45184]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18903]


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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 No. 2105-AD92


Enhancing Airline Passenger Protections: Limited Delay of 
Effective Date for Certain Provisions

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

ACTION: Final Rule, limited extension of effective date for certain 
provisions.

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SUMMARY: The Department of Transportation is delaying the effective 
date for certain requirements adopted in an April 25, 2011 final rule 
on enhancing airline passenger protections. Specifically, the 
Department is delaying the effective date from August 23, 2011 to 
January 24, 2012, for requirements pertaining to baggage fees, post 
purchase price increases, flight status changes and holding a 
reservation without payment for twenty-four hours. The Department is 
also delaying the effective date from October 24, 2011 to January 24, 
2012 for requirements pertaining to full fare advertising. The 
effective date remains August 23, 2011 for all the other requirements 
in the April 25, 2011 final rule, including the requirement not to 
permit an international flight to remain on the tarmac at a U.S. 
airport for more than four hours without allowing passengers to 
deplane, the requirement increasing the denied boarding compensation 
airlines must pay to passengers bumped from flights, and the 
requirement to disclose prominently all fees for optional aviation 
services on carriers' Web sites.

DATES: This rule is effective on July 28, 2011. The effective date of 
the final rule published at 76 FR 23110, April 25, 2011, continues to 
be August 23, 2011, except for the amendments relating to 14 CFR 
399.84, 399.85(b) and (c), 399.87, 399.88, 399.89, 259.8, and 
259.5(b)(4) which become effective on January 24, 2012.

FOR FURTHER INFORMATION CONTACT: Blane A. Workie, Deputy Assistant 
General Counsel, 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), blane.workie@dot.gov (e-mail).

[[Page 45182]]


SUPPLEMENTARY INFORMATION: On April 25, 2011, the Department of 
Transportation published a final rule in the Federal Register (76 FR 
23110), titled ``Enhancing Airline Passenger Protections,'' containing 
many new requirements to improve the air travel environment for 
consumers, expanding upon the improved passenger rights included in a 
rule published on December 30, 2009. More specifically, the April 25, 
2011, rule (1) Increases the number of carriers that are required to 
adopt tarmac delay contingency plans and includes additional airports 
at which they must adhere to the plan's terms; (2) increases the number 
of carriers that are required to report tarmac delay information to the 
Department; (3) expands the group of carriers that are required to 
adopt, follow, and audit customer service plans and establishes minimum 
standards for the subjects all carriers must cover in such plans; (4) 
adds carriers to those required to include their contingency plans and 
customer service plans on their Web sites; (5) increases the number of 
carriers that must respond to consumer complaints; (6) enhances 
protections afforded passengers in oversales situations, including 
increasing the denied boarding compensation airlines must pay to 
passengers bumped from flights; (7) strengthens, clarifies and codifies 
the Department's enforcement policies concerning air transportation 
price advertising practices; (8) requires carriers to notify consumers 
of optional fees related to air transportation and of increases in 
baggage fees; (9) prohibits post-purchase price increases; (10) 
requires carriers to provide passengers timely notice of flight status 
changes such as delays and cancellations; and (11) prohibits carriers 
from imposing unfair contract of carriage choice-of-forum provisions. 
As published, the effective date of the rule is August 23, 2011, except 
for the full fare advertising amendments which become effective on 
October 24, 2011.
    We received requests from U.S. carrier associations, foreign 
carrier associations and a travel agent association to delay the 
effective date of certain provisions in this rule. The Air Transport 
Association of America (ATA), the Regional Airline Association (RAA) 
and the Air Carrier Association of America (ACAA) requested that the 
Department of Transportation delay by 180 days the compliance time for 
the full fare advertising amendments in 14 CFR 399.84, the denied 
boarding compensation amendments in 14 CFR part 250, the requirement to 
disclose baggage fees in e-ticket confirmations in 14 CFR 399.85(c), 
and the requirement in 14 CFR 399.87 for the same baggage allowances 
and fees to apply to a passenger throughout an itinerary. These U.S. 
carrier associations state that they have limited their request to the 
four provisions that require deployment of additional IT resources, 
development of new protocols and the training of many employees. The 
National Air Carrier Association (NACA) joined the request to delay the 
effective date and stated that it also believes compliance cannot be 
achieved within the time contemplated by the regulation without undue 
cost to the airlines and confusion to the traveling public.
    According to the U.S. carrier associations, it will take more than 
the time allotted by the final rule to comply with the amendments to 
the denied boarding compensation rule because of the need to make 
additional systems and programming changes and the need to ensure the 
appropriate offices and employees are aware of and trained on the 
changes to this rule. The carrier associations also ask for additional 
time to comply with the requirement to disclose baggage fees in e-
ticket confirmations if detailed baggage fee information individualized 
to a particular passenger is required and if the notice of applicable 
baggage information must be in text form and a hyperlink is not 
allowed. In addition, the U.S. carrier associations assert that it is 
not possible to comply with the requirement to apply the same baggage 
allowances and fees to a passenger throughout an itinerary without an 
additional 180 days as no central repository for carrier baggage 
policies and fees currently exists. They note that carriers are working 
to develop an industry solution to comply with this requirement but 
more time is needed.
    The U.S. carrier associations are particularly concerned about the 
full fare advertising requirements, which they contend they cannot meet 
by the published effective date of October 24, 2011. They state that 
this aspect of the final rule requires the greatest IT investment and 
that carriers are preparing to reprogram and reconfigure their online 
search engines to incorporate the new advertising requirements but that 
carriers would need at least an additional 180 days to create, modify 
and test these changes. The associations ask that the Department delay 
the effective date for not only online advertising but also print 
advertising so that consumers receive consistent advertising of fares 
through all advertising channels.
    The foreign air carrier associations have indicated their strong 
support of the request by the U.S. carrier associations and have asked 
that the 180-day extension be expanded to cover all the requirements 
being imposed for the first time on non-U.S. airlines. These 
associations are the International Air Transport Association (IAT), 
Association of Asia Pacific Airlines (AAPA), Association of European 
Airlines (AEA), and Latin and Caribbean Air Transport Association 
(ALTA). They have stated that they believe investments and changes are 
needed to meet the new DOT requirements. They also state that the 
ability of the non-U.S. airlines to meet these requirements in a timely 
fashion is impacted by constraints on existing operations, staffing, IT 
support, local laws and regulations, labor practices and resources.
    In addition to the airlines, the American Society of Travel Agents 
(ASTA) has requested an extension of the effective date of the final 
rule. ASTA requests that the Department delay the effective date of the 
requirement in section 399.85(b) to disclose baggage fee information on 
Web sites when a fare quotation for a specific itinerary is selected by 
a consumer and the requirement in section 399.85(c) to disclose baggage 
fee information on all e-ticket confirmations. ASTA's request differs 
from the requests of the U.S. and foreign air carrier associations in 
that ASTA is not requesting a specific amount of additional time to 
implement the requirements. Rather, ASTA is asking that the Department 
defer the effective date of these two requirements until the Department 
concludes its upcoming rulemaking on disclosure of fees for ancillary 
services. ASTA, like the U.S. carriers, notes its uncertainty as to 
whether the requirement to provide specific information to passengers 
about baggage allowances and baggage fees means providing 
individualized information about those matters. ASTA also asserts that 
the two methods the rule describes for agents to provide baggage 
information to consumers are not feasible. It calls the first method 
(providing a link to an airline Web site) ``an act of commercial 
suicide'' and believes the second method (referring consumers to its 
own site if it displays airlines' baggage fees) impractical because of 
the labor cost to achieve it initially and to monitor airline Web sites 
constantly for updates.
    In addition to the requests to delay the effective date of the 
rule, we received a request from Allegiant Air and Spirit Airlines as 
well as Southwest Airlines to postpone or stay the effective

[[Page 45183]]

date pending judicial review of various provisions in this regulation 
by the United States Court of Appeals for the District of Columbia 
Circuit. In June, Allegiant and Spirit filed petitions for review 
before that court asserting that the rule unlawfully: (1) Ends the 
practice of permitting sellers of air transportation to exclude 
government taxes and fees from the advertised price; (2) prohibits the 
sale of nonrefundable tickets by requiring airlines to hold 
reservations at the quoted fare without payment or cancel 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; 
(3) prohibits post-purchase price increases, including increases in the 
price of ancillary products and services, after the initial ticket 
sale; (4) requires baggage fees to be disclosed on e-ticket 
confirmations; and (5) mandates notification of flight schedule 
changes. Spirit's and Allegiant's request to the Department to stay the 
rule pending judicial review covers all the specific provisions that 
are part of the litigation. Southwest is requesting that the Department 
stay the effective date of the new full fare advertising rule.
    A few other organizations have also provided the Department their 
views on the requests to stay the rule and the requests to delay the 
effective date of the rule. The Consumer Travel Alliance (CTA) has 
expressed its opposition to any delay in implementation of the 
rulemaking. CTA appears particularly concerned about requests to delay 
the requirement to disclose baggage fee information to consumers. It 
notes that airlines have the means through the Airline Tariff 
Publishing Company (ATPCO) to disclose all baggage fee information so 
that both airlines and ticket agents can easily disclose baggage fee 
information to consumers. The Airports Council International-North 
America (ACI-NA) has also noted its concern with the recent filings 
requesting extensions to the effective date of the rule but states that 
it recognizes that the Department may determine that the implementation 
date for some portions of the regulations may need to be delayed. ACI-
NA does urge the Department to not delay the implementation date for 
U.S. carriers to extend their tarmac delay plans to small and non-hub 
airports.
    Similarly, an individual commenter who works in the travel industry 
stated that it may be appropriate to delay the effective date of 
certain provisions in the final rule such as the full fare advertising 
requirements but expressed his strong opposition to the blanket request 
for an extension of the effective date of all the consumer protection 
requirements in the rule. This individual identified the provisions 
pertaining to denied boarding compensation and baggage fees as ones 
that should not be delayed based on his belief that airlines can easily 
comply with these provisions and their importance to consumers.
    After carefully considering all the requests and comments provided, 
the Department has decided to delay the effective date of the 
requirements pertaining to full fare advertising (section 399.84) by an 
additional three months to January 24, 2012, and delay the effective 
date of certain specific requirements pertaining to baggage fees 
(sections 399.85(b) and (c) and 399.87), post-purchase price increases 
(sections 399.88 and 399.89), flight status notifications (section 
259.8) and holding a reservation without payment (section 259.5(b)(4)) 
to the same date. We are denying the request of U.S. carrier 
associations to delay the effective date of denied boarding 
compensation amendments and the request of the foreign carrier 
associations to delay the effective date of the entire rule.
    The Department took a number of factors into consideration in 
deciding to delay certain provisions of the rule until January 24, 
2011, including the fact that there are limited objections to the 
requests for an extension of time. We are persuaded that additional 
time is needed to comply with the full fare advertising amendments as 
they relate to online advertising as they may require the deployment of 
IT resources, and to allow maximum flexibility to make alterations to 
Web sites with minimal disruption. We also believe that we should apply 
the same effective date to print advertising so that consumers do not 
see different advertising displays in different media which could 
result in consumer confusion.
    With regard to baggage fees, there appears to be some confusion 
regarding what the Department meant by the requirement in section 
399.85 (b) that ``specific baggage fee information'' must be disclosed 
on Web sites when a fare quotation for a specific itinerary is selected 
by a consumer and by the requirement in section 399.85(c) that carriers 
must provide information on all e-ticket confirmations regarding the 
free baggage allowance and fee for a carry-on bag and the first and 
second checked bag ``as specific charges taking into account any 
factors (e.g., frequent flyer status, early purchase, and so forth) 
that affect those charges.'' We want to clarify that the rule does not 
require passenger-specific information concerning baggage allowances 
and baggage fees on e-ticket confirmations or on Web sites providing 
fare quotations. We used the term ``specific charges'' to ensure that 
the regulated entities understood that a range of fees would not be 
acceptable under the rule. In other words, carriers must provide 
specific information to consumers about all the factors that cause the 
fee for a carry-on bag or the first and second checked bag to vary so 
passengers can determine for themselves the fees that would apply to 
them. For example, it would not be sufficient for a carrier to state 
that the fee for the first checked bag ranges from $0 to $50. However, 
it would be acceptable if the carrier states that the fee for the first 
checked bag would be $0 for its elite frequent flyer passengers or 
those who purchased their ticket with a specified credit card, $25 for 
passengers who pay for baggage online, and $50 for those passengers who 
pay at the airport. Of course, carriers are free to provide 
individualized baggage charge information to passengers but this is not 
required by the rule.
    Although individualized baggage fee information is not required by 
the final rule, the Department still sees merit in delaying the 
effective date of the requirements in Sec.  399.85(b) and (c) as the 
travel agencies need time to determine the method they will use to 
ensure that specific baggage fee information is available to their 
consumers. We are also persuaded that additional time is needed by the 
carriers as they are not permitted under the rule to provide the 
required notice of applicable baggage charges through a hyperlink. 
However, we don't believe that it will be in the best interest of 
consumers to delay the effective date of these provisions until the 
Department concludes its rulemaking on disclosure of ancillary fees as 
requested by ASTA.
    With respect to the U.S. carrier associations request to delay the 
effective date of the provision requiring consistent baggage rules 
across an entire itinerary, the associations have adequately 
demonstrated the difficulties in applying the same baggage allowances 
and fees across an itinerary when they cannot readily access each 
other's fee schedules. We are encouraged that they are working towards 
an industry solution and have provided them additional time so that an 
industry standard can be developed. We have also decided to delay the 
effective date of the provisions pertaining to post purchase price 
increases, flight status changes and holding a reservation without 
payment for twenty-four hours to provide

[[Page 45184]]

additional time to overcome any technical difficulties in implementing 
the rules.
    In delaying the effective date for these requirements, the 
Department is balancing the benefit of having these protections in 
place for consumers as soon as practical with the capability of 
airlines to comply with the additional requirements being imposed upon 
them in a reasonable timeframe. We believe the January 24, 2012, date 
will provide the airlines adequate time to comply with the 
requirements.

Regulatory Analyses and Notices

A. Administrative Procedure Act

    Section 553(b) of the Administrative Procedure Act (``APA'') 
generally requires an agency to publish notice of a proposed rule 
making in the Federal Register. This requirement does not apply, 
however, if the agency ``for good cause finds that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest.'' Because August 23, 2011 (the effective date for the 
April 2011 final rule) is fast approaching, the Department finds good 
cause that this action delaying the effective date should take effect 
immediately. Today's final rule makes no substantive changes to the 
rule, but simply delays the effective date of certain provisions until 
January 24, 2012.

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

    This rulemaking action is not a significant regulatory action under 
Executive Order 12866 and the Department of Transportation's Regulatory 
Policies and Procedures. Accordingly, this action has not been reviewed 
by the Office of Management and Budget (OMB).

C. Regulatory Flexibility Act

    Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement 
and Fairness Act of 1996 (SBREFA), DOT certifies that this action will 
not have a significant impact on a substantial number of small 
entities. This action imposes no duties or obligations on small 
entities.

D. Executive Order 13132 (Federalism)

    This action will not have a substantial direct effect on the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, and therefore will not have federalism 
implications.

E. Executive Order 13084

    This notice has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because the provisions 
for which we are delaying the effective date would not significantly or 
uniquely affect the communities of the Indian tribal governments or 
impose substantial direct compliance costs on them, the funding and 
consultation requirements of Executive Order 13084 do not apply.

F. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that DOT consider the impact of paperwork and other 
information collection burdens imposed on the public and, under the 
provisions of PRA section 3507(d), obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. DOT has determined 
that there are no new information collection requirements associated 
with this action. The action merely postpones the effective date of a 
regulatory provision whose paperwork impact has already been analyzed 
by the Department, and consequently no additional OMB approval is 
necessary.

G. Unfunded Mandates Reform Act

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

    Issued this 20th day of July 2011, in Washington, DC.
Susan Kurland,
Assistant Secretary for Aviation and International Affairs.
[FR Doc. 2011-18903 Filed 7-27-11; 8:45 am]
BILLING CODE 4910-9X-P