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