[Federal Register Volume 60, Number 107 (Monday, June 5, 1995)]
[Proposed Rules]
[Pages 29514-29518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13630]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 234
[Docket No. 50053; Notice No. 95-7]
RIN 2137-AC67
Amendments to the On-time Disclosure Rule
AGENCY: Research and Special Programs Administration, DOT.
ACTION: Notice of proposed rulemaking and denial of petitions for
emergency waiver.
-----------------------------------------------------------------------
SUMMARY: This document proposes to revise the on-time flight
performance reporting requirements by re-instituting the exclusion of
flights delayed or cancelled due to mechanical problems and seeks
comments on the retroactive application of the proposal. This action is
taken in response to recommendations made at the Federal Aviation
Administration's Aviation Safety Conference and a petition for
rulemaking by Northwest Airlines. This document denies the petitions of
Northwest, Southwest and America West for an emergency waiver from the
current on-time reporting requirements, and seeks comments concerning
the collection of flight completion data and the filing frequency of
the data collection.
DATES: Comments on the proposed rule must be received on or before July
5, 1995. Petitions for reconsideration of the staff action denying the
emergency waiver must be received on or before June 15, 1995.
ADDRESSES: Comments should be directed to the Docket Clerk, Docket
50053, Room PL 401, Office of the Secretary, Department of
Transportation, 400 Seventh Street SW., Washington, D.C. 20590-0001.
Comments should identify the regulatory docket number and be submitted
in duplicate to the address listed above. Commenters wishing the
Department to acknowledge receipt of their comments must submit with
those comments a self-addressed stamped postcard on which the following
statement is made: Comments on Docket 50053. The postcard will be
dated/time stamped and returned to the commenter. All comments
submitted will be available for examination in the Rules Docket both
before and after the closing date for comments.
FOR FURTHER INFORMATION CONTACT: Bernard Stankus or Jack Calloway,
Office of Airline Statistics, DAI-10, Research and Special Programs
Administration, 400 Seventh Street SW., Washington, D.C., 20590, (202)
366-4387 or 366-4383, respectively. [[Page 29515]]
SUPPLEMENTARY INFORMATION:
Background
On September 9, 1987, the Department of Transportation (DOT or
Department) issued a rule (52 FR 34056) which required the largest U.S.
airlines to report their on-time performance for every domestic
scheduled passenger flight operated to or from a reportable airport,
with the exception of qualifying flights that were delayed 15 minutes
or more or cancelled because of mechanical problems. A flight is
considered on-time if it arrives less than 15 minutes after its
published arrival time. The U.S. airlines covered by the reporting
requirement are those generating at least 1 percent of the U.S.
domestic scheduled-passenger revenues on a yearly basis. Reportable
airports are those airports in the contiguous 48 states generating at
least 1 percent of the domestic scheduled-passenger enplanements on an
annual basis. In practice, all reporting airlines are voluntarily
submitting data for their entire domestic scheduled-passenger
operations. The purpose of the rule was to reduce airline flight delays
and consumer dissatisfaction with airline service by providing a
persuasive, market-based incentive for airlines to improve their
quality of service and reliability of schedules. The reporting system
developed for the administration of these reporting requirements was
called the On-Time Flight Performance Reporting System.
Flights that were delayed 15 minutes or more, or cancelled, because
of mechanical problems which were reported to the Federal Aviation
Administration (FAA) under 14 CFR 121.703 or 121.705, were excluded
from the reporting requirements. Mechanical delays included delays of
the flight on which the mechanical problem was encountered and
subsequent delayed flights performed by the same or substitute aircraft
for which the delay was attributed to the initial mechanical problem.
However, flights delayed less than 15 minutes because of a mechanical
problem were included in the on-time performance data.
The issuance of the rule was in response to the Department's year-
long study conducted in 1986-87 of airline operating performance at
eight of the country's largest airports. This study included all
flights, even those delayed or cancelled because of mechanical
problems, and it showed that only 40 to 50 percent of the flights
arrived on-time. In December 1994, the on-time flight performance for
the 10 reporting airlines ranged from 73 to 84 percent. These figures
are higher than the airlines' actual performance, since mechanical
delays and cancellations (estimated to impact about 4 percent of all
flights) are excluded. Nonetheless, there has been marked improvement
in airline on-time performance, to the benefit of consumers.
The improvement can be attributed to, among other things, more
realistic flight scheduling by the airlines and improved traffic
management by the FAA. The reporting requirements and the publication
by the Department of each reporting airline's on-time performance
created an incentive for the airlines to adjust scheduled flight times
and make other changes to improve schedule reliability. These actions
reduced unrealistic scheduling and resulted in improved on-time
performance.
On December 4, 1992, the Department's Research and Special Programs
Administration (``RSPA'') issued a Notice of Proposed Rulemaking
(``NPRM'') (57 FR 58755; December 11, 1992) seeking public comments on
a proposal to improve the on-time flight performance reporting
requirements in 14 CFR Part 234. The Department proposed to eliminate
the reporting exclusion for flights delayed or cancelled due to
mechanical problems; to add the aircraft tail number, and wheels-off
and wheels-on time for each flight reported; to define ``cancelled
flight,'' ``discontinued flight,'' ``diverted flight,'' and ``extra-
section flight''; to clarify the reporting requirement for a new
flight; and, to delete references to obsolete offices.
Comments on the NPRM were received from Alaska Airlines, Inc.
(Alaska), American Airlines, Inc. (American), America West Airlines,
Inc. (America West), Delta Air Lines, Inc. (Delta), Northwest Airlines,
Inc. (Northwest), Southwest Airlines Co. (Southwest), the Air Transport
Association of America (ATA), and The Port Authority of New York and
New Jersey (Port Authority).
The comments addressed safety, alternative data sources, the
proprietary nature of aircraft tail number data, elimination of the
rule in its entirety, the addition of new data items and definition
changes.
Northwest, Southwest and America West opposed the elimination of
the mechanical exclusion. They contended that including mechanicals in
their on-time reports could compromise safety. They believed airline
personnel might dispatch aircraft with mechanical problems to improve
on-time performance.
ATA, American, Delta and the Port Authority filed in support of the
proposed amendment. They contended the elimination of the exclusion
would not compromise safety.
Alaska stated the Department should initiate a rulemaking to see
whether the existing on-time performance requirements should be
eliminated in their entirety, rather than imposing additional reporting
requirements.
On September 30, 1994, the Department issued a final rule that
revised the reporting requirements in 14 CFR part 234 for the On-Time
Flight Performance Reporting System (59 FR 49793, September 30, 1994).
The rule change eliminated the exclusion of reporting flights delayed
or cancelled due to mechanical problems and added three new data items
(aircraft tail number, wheels-off time and wheels-on time) for each
flight reported. These changes were effective on January 1, 1995. The
initial monthly airline reports under the new requirements covering
January 1995 operations were due at DOT on February 15, 1995. These
reports have been filed. Since then February, March and April reports
have also been filed.
One of the main purposes of the original rule, adopted on September
9, 1987, was to create a market-based incentive for airlines to improve
their service quality and schedule reliability for consumers. The
public availability of comparative data on airline service created this
incentive. In issuing the September 30, 1994 final rule, the Department
believed the elimination of the exclusion for mechanical delays and
mechanical cancellations would provide better consumer information
since aircraft dispatch reliability would now be a factor in airline
on-time performance. At the same time, the new consumer reports would
provide more complete information on an airline's operation.
A benefit of the revised reporting requirement was an 840 hour
reduction in airline reporting burden. The elimination of a time-
consuming sort to exclude mechanical delays and cancellations more than
offset the increase in burden of adding three new data items.
The addition of the new data items--wheels-off and wheels-on times,
and the identification of aircraft by tail number--enables the FAA to
analyze air traffic operations and create system models for use in
reducing enroute and ramp delays. The reporting of these three data
items is not at issue in this notice, and airlines will continue to
report these items.
Aviation Safety Conference
On January 9 and 10, 1995, the DOT and FAA sponsored an aviation
safety [[Page 29516]] conference in Washington, D.C. The two-day
conference, with over 1,000 attendees, focused on ways to improve
safety measures and increase public confidence in airline
transportation. Six workshops dealt with specific safety areas, namely:
(1) Crew Training, (2) Air Traffic Control and Weather, (3) Safety Data
Collection and Use, (4) Application of New Technology, (5) Aircraft
Maintenance Procedures and Inspection, and (6) Development of Flight
Crew Procedures.
Workshop # 5, Aircraft Maintenance Procedures and Inspection,
recommended that DOT remove maintenance delays and cancellations from
the On-Time Flight Performance Reporting System stating that: (1) their
inclusion intimidates maintenance personnel, (2) their inclusion
encourages potentially unsafe practices, (3) the risk of abuse
outweighs the benefits of the information, and (4) the information is
already required for submission to local FAA offices.
Following the Aviation Safety Conference, Transportation Secretary
Federico Pena and FAA Administrator David Hinson issued a press release
on February 9, 1995, outlining the actions that government and industry
are taking to achieve a goal of ``zero accidents.'' Secretary Pena and
Administrator Hinson presented 173 safety action initiatives that the
government, industry and labor developed. The Aviation Safety Action
Plan of February 9, 1995, sets the timetable for achieving these safety
action initiatives. While 104 of the safety initiatives are scheduled
for completion by September 30, 1995, there is no specific time
schedule to resolve the issue of maintenance delays in the On-Time
Flight Performance Reporting System. However, the plan states
``Administrative policy determination necessary.''
Petitions for Reversal of the Final Rule
After the January 1995 safety conference, Northwest petitioned the
DOT (Docket 50053) on January 19, 1995, to (1) grant an emergency
waiver to all airlines permitting them to exclude mechanical delays or
cancellations from the monthly on-time reports; and (2) institute a
rulemaking proceeding to reinstate the mechanical exclusion.
Northwest maintained that the 220 industry representatives at the
Aircraft Maintenance Procedure and Inspection Workshop unanimously
recommended that mechanical delays and cancellations be eliminated from
the on-time performance reporting. Northwest believes the present rule
has the potential to jeopardize public safety by introducing the
possibility of conflict between an airline's commitment to on-time
performance and its commitment to safety. Northwest estimated that 60
hours of re-programming time would be required to convert back to the
previous system of excluding mechanical delays and cancellations from
on-time performance reporting.
Southwest and America West filed answers on February 1 and February
3, 1995, respectively, with motions to file late. The motions are
hereby granted. Both airlines supported Northwest's petition for
rulemaking and emergency waiver application.
On February 15, 1995, America West, Northwest, and Southwest (joint
petitioners) filed a joint emergency petition (Docket 50053). The
petition requested the immediate issuance of an order instructing all
reporting airlines covered by the On-Time Flight Performance Reporting
System to exclude mechanical delays and cancellations from the reports
submitted to the Department.
Senator Larry Pressler, Congressman James L. Oberstar, the
International Brotherhood of Teamsters (IBT), the Air Line Pilots
Association (ALPA), the International Airline Passenger Association
(IAPA), and the International Association of Machinist and Aerospace
Workers (IAM) have each sent letters to Secretary Pena on this subject.
They asked the Secretary to reverse the decision to include mechanical
delays and cancellations in the on-time reports and to restore the
previous data collection requirements. IAPA also proposed the exclusion
of delays and cancellations caused by weather, since airlines cannot
control these events. IAPA believes that passengers want to know which
airlines are not operating on-time because of their own shortcomings,
not external causes such as weather.
Comments in opposition were filed by American and Delta. Also,
American, Delta, United and USAir sent a letter (joint letter) to
Secretary Pena.
American does not believe airline employees would risk their jobs
and threaten passenger safety by dispatching unsafe aircraft with
mechanical problems to improve on-time performance. American asserts
that there are many opportunities for airlines to behave recklessly in
order to improve on-time performance, if they are so inclined. American
believes Northwest could make the same argument about weather or a
medical emergency. For example, an airline could unsafely dispatch
aircraft or attempt landings in bad weather, or refuse to make an
emergency landing for an on-board medical emergency to avoid chargeable
delays and improve on-time performance. American believes that this
does not happen.
The joint emergency petitioners responded that American's comments
are without merit and frivolous. The joint petitioners do not believe
mechanicals can be equated with inclement weather or medical
emergencies. The decision to delay a flight based on mechanical
problems can be made by a single airline employee, while the decision
to delay a flight based on adverse weather conditions is a group
process in which the government is involved. Furthermore, the
petitioners contend it is absurd to think a pilot would not make a
landing for a medical emergency.
Delta stated that the Department has already fully examined the
safety issue and properly concluded that there is no safety risk. Delta
asserts that the mechanical exclusion generated considerable
unnecessary expenses for the reporting airlines. Delta believes that
Northwest was less than candid in its portrayal of the opposition to
reporting mechanical delays and cancellations at the safety conference.
Delta compared reporting mechanical delays with reporting flights
delayed because of time-consuming deicing procedures required by the
FAA. Delta notes that no one has suggested that airline employees are
exposed to undue pressures to meet schedules when they are faced with a
decision whether to deice an aircraft or not.
The joint letter expressed the carriers' concerns about the
Department reversing the on-time reporting requirements. They believe
that the Department performed a thorough analysis of the issues in its
final rule issued on September 30, 1994. They also believe the current
requirements provide better consumer information. They suggested that
the consumer information would be further improved by adding a
requirement for reporting completion factor.
Completion Factor
The Department seeks comments on whether it should publish the
percentage of scheduled domestic passenger departures completed or
scheduled domestic revenue-passenger miles completed by the reporting
carriers. Commenters should address whether the publication of this
information would allow consumers to make better decisions on air-
travel purchases.
Under the present reporting requirement of including mechanicals,
[[Page 29517]] the Department is able to calculate for each carrier's
domestic system the percentage of scheduled passenger departures
completed. However, if the Department reverts to the old system of
excluding flights impacted by mechanicals, it could calculate
departure-completion percentages for only the reported flights. Please
comment on (1) whether the departure-completion percentage should
exclude or include flights impacted by mechanical problems, and (2) if
flights impacted by mechanicals are included in the completion
percentage, how should the Department collect this data?
Commenters should also address the use of existing data such as the
T-100 System for calculating the percentage of scheduled domestic
revenue-passenger miles completed. While the Department can presently
make this calculation, the percentage is slightly overstated when an
airline operates extra-section flights. Aircraft miles for extra-
section flights are reported as aircraft-miles completed, but are not
reported as scheduled aircraft miles. If the Department uses this
system to determine a completion factor, there would be no special
treatment for flights cancelled because of mechanical problems.
Commenters, that propose additional data items, should address the
cost to the airlines to submit those data items.
Frequency of Reporting
A recent Presidential regulatory initiative directs federal
agencies to review their reporting regulations in order to reduce the
burden on business and the public. In many instances, less frequent
reporting may relieve some burden.
From our initial review of the likely benefits of less frequent
filing of on-time data, we believe that there would be no burden
reduction. Airlines are required to file data for each individual
flight segment, and less frequent reporting would not change this
requirement. Therefore, we are not proposing to amend the filing
frequency. However, if commenters can show a savings from less frequent
reporting, we may be agreeable to amending the regulations.
Commenters should address the burden reduction and the effect on
the usefulness of consumer information if the on-time performance data
were filed less frequently. For instance, commenters may want to
consider such options as: (1) Quarterly submissions to DOT with
consumer information published quarterly and quarterly tapes provided
CRS vendors; (2) quarterly submissions to DOT with consumer information
published quarterly and monthly tapes provided CRS vendors; and (3)
quarterly submissions to DOT but data separated by month, with monthly
tapes provided CRS vendors. Under option (3), the quarterly consumer
information could be shown by month, by quarter or by the last month of
the quarter.
The Proposal
The Department is proposing to reinstate the exclusion of
mechanical delays and cancellations in the on-time performance reports.
At the January 1995 Aviation Safety Conference, representatives of the
mechanics and pilots unions expressed concerns that there may be undue
pressure on mechanics to dispatch aircraft in the name of on-time
performance. Neither the pilots nor the mechanics responded to the
December 4, 1992 NPRM. In the interest of public safety, we wish to
fully explore this issue.
When the Department decided to eliminate the mechanical exclusion,
the decision was based on information in the docket and the belief that
the majority of the air transportation industry, including the
airlines, labor, ATA, and the general public did not oppose the change.
There was no evidence in the record to indicate that safety would be
adversely affected by eliminating the mechanical exclusion. The only
airlines opposing the change were America West, Northwest and
Southwest. These airlines generally ranked in the top three for on-time
performance.
Since the Department's September 30, 1994 final rule, safety
concerns have been raised. The purpose of this rulemaking is to fully
explore these concerns. We do not, however, believe a safety emergency
exists. As American, Delta, United, USAir and even Northwest have
stated, airlines are faced with many instances where an airline must
decide between safety and on-time performance, and safety always is
given first priority. Accordingly, the emergency waiver requests of
Northwest, America West and Southwest are hereby denied. Airlines have
10 days to appeal for review of this action to the Administrator,
Research and Special Programs Administration, under 14 CFR 385.50 et
seq.
For historical data base purposes, we are also asking airlines to
comment on the retroactive application of the proposal. Specifically,
the Department proposes to require airlines to refile all relevant
monthly on-time reports beginning with January 1995, to exclude
mechanical delays or cancellations. Comments should discuss, among
other things, the availability of historical data, and burden and
monthly costs involved.
Until this rulemaking is completed, airlines will continue to
report according to the final rule issued on September 30, 1994. All
back issues of the Department's monthly Air Travel Consumer Report,
which includes data from the On-Time Flight Performance Reporting
System, will be issued contemporaneously with the publication of this
proposed rulemaking. Future issues will be issued monthly on a current
basis as the data are received.
IAPA's proposal to exclude weather-related delays and cancellations
will not be considered in this rulemaking, as it is beyond the scope of
the September 30, 1994 final rule. Moreover, while airlines do not have
control over the weather, they do control where they establish hub
airports. The various hub airports throughout the country are not
affected by weather to the same degree. Consumers should have this
information.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This notice of proposed rulemaking is not considered a significant
regulatory action under section 3(f) of Executive Order 12866,
therefore it was not reviewed by the Office of Management and Budget.
This rule is considered significant under the regulatory policies
and procedures of the Department of Transportation (44 FR 11034),
because it involves Departmental policy concerning the reporting of
flight delays and their potential impact on safety.
Executive Order 12612
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12612
(``Federalism'') and DOT has determined the proposed rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment.
Regulatory Flexibility Act
I certify this proposed rule will not have a significant economic
impact on a substantial number of small entities. The proposal will
affect only large certificated U.S. airlines accounting for at least 1
percent of U.S. domestic scheduled passenger revenues (over $450
million annually for the 12 months ended March 31, 1994). The
Department's economic regulations define ``large certificated air
carrier'' to include U.S. air carriers holding a certificate issued
under section 401 of the Federal Aviation Act of 1958, as
[[Page 29518]] amended, that operate aircraft designed to have a
maximum passenger capacity of more than 60 seats or a maximum payload
capacity of more than 18,000 pounds. Consequently, small carriers are
not affected by this final rule.
Paperwork Reduction Act
The reporting and recordkeeping requirement associated with this
rule is being sent to the Office of Management and Budget for approval
in accordance with 44 U.S.C. Chapter 35 under OMB NO: 2138-0041;
ADMINISTRATION: Research and Special Programs Administration; TITLE:
Airline Service Quality Performance Reports; NEED FOR INFORMATION:
Consumer Information and Flight Data for Air Traffic Control; PROPOSED
USE OF INFORMATION: Consumer Publications; FREQUENCY: Monthly; BURDEN
ESTIMATE: 1,920; AVERAGE BURDEN HOURS PER RESPONDENT 192. For further
information contact: The Information Requirements Division, M-34,
Office of the Secretary of Transportation, 400 Seventh Street, SW,
Washington, D.C. 20590-0001, (202) 366-4735 or Transportation Desk
Officer, Office of Management and Budget, New Executive Office
Building, Room 3228, Washington, D.C. 20503.
Regulation Identifier Number
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number 2137-AC67 contained in
the heading of this document can be used to cross reference this action
with the Unified Agenda.
List of Subjects in 14 CFR Part 234
Advertising, Air carriers, Consumer protection, Reporting
requirements, Travel agents.
Proposed Rule
Accordingly, it is proposed to amend 14 CFR Part 234, Airline
Service Quality Performance Reports, as follows:
PART 234--AIRLINE SERVICE QUALITY PERFORMANCE REPORTS
1. The authority for Part 234 continues to read as follows:
Authority: 49 U.S.C. 40101, 40114, 41702, 41708, 41712; 5 U.S.C.
553(e) and 14 CFR 302.38.
2. Section 234.2, Definitions, is amended by revising the
definition of ``reportable flight'' and by adding the definitions for
``mechanical delay'' and ``mechanical cancellation'' in alphabetical
order as set forth below, and the introductory text is republished as
follows:
Sec. 234.2 Definitions.
For the purpose of this part:
* * * * *
Mechanical delay and mechanical cancellation mean respectively, the
arrival delay (by 15 minutes or more) or cancellation of a flight
scheduled to be operated with a particular aircraft on a particular day
due to mechanical problems on that aircraft that are reported to the
Federal Aviation Administration pursuant to 14 CFR 121.705 or 121.703.
Mechanical delays will include delays in both the flight on which the
mechanical problem was encountered and subsequent delayed flights
performed by the same aircraft, or the aircraft substituted for it, on
the same day, where the delay was attributable to the initial
mechanical problem.
* * * * *
Reportable flight means any nonstop flight to or from any airport
within the contiguous 48 states that accounted for at least 1 percent
of domestic scheduled passenger enplanements in the previous calendar
year, as reported in reports submitted to the Department pursuant to
part 241 of this title. Qualifying airports will be specified
periodically in reporting directives issued by the Office of Airline
Statistics. Flights delayed or cancelled because of qualifying
mechanical problems are excluded from the carriers reports.
3. Section 234.4 is amended by redesignating paragraphs (b), (c),
(d), (e), and (f) as (c), (d), (e), (f), and (g), respectively, and
adding a new paragraph (b) to read as follows:
Sec. 234.4 Reporting of on-time performance.
* * * * *
(b) A reporting carrier shall not report any of the information
specified in paragraph (a) of this section for any scheduled operation
that was late or cancelled due to a mechanical cancellation or
mechanical delay.
* * * * *
4. Section 234.8 is amended by revising paragraph (b)(1) as set
forth below, and the introductory text of paragraph (b) is republished
as follows:
Sec. 234.8 Calculation of on-time performance codes.
* * * * *
(b) The on-time performance code shall be calculated as follows:
(1) Based on reportable flight data provided to the Department,
calculate the percentage of on-time arrivals of each nonstop flight.
Calculations shall not include discontinued, extra-section flights, nor
flight operations affected by mechanical delays or mechanical
cancellations for which data are not reported to the Department.
* * * * *
Issued in Washington, D.C. on May 26, 1995.
Ana Sol Gutierrez,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 95-13630 Filed 6-1-95; 8:45 am]
BILLING CODE 4910-62-P