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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 234, 259, and 399

[Docket No. DOT-OST-2007-0022]

RIN No. 2105-AD72

Enhancing Airline Passenger Protections

AGENCY: Office of the Secretary (OST), Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
SUMMARY: The Department of Transportation seeks comment on rules it is proposing to enhance airline passenger protections in the following ways: by requiring air carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage, by requiring air carriers to respond to consumer problems, by deeming the continued operation of a flight that is chronically late to be unfair and deceptive in violation of 49 U.S.C. 41712, by requiring air carriers to publish information on flight delays on their Web sites, and by requiring air carriers to adopt customer service plans, incorporate these into their contracts of carriage, and audit their own compliance with their plans. The Department takes this action on its own initiative in response to the many recent instances when passengers have been subject to waits on airport tarmacs for very long periods and also in response to the ongoing high incidence of flight delays.
DATES: Comments should be filed by February 6, 2009. Late-filed comments will be considered to the extent practicable.
ADDRESSES: *Federal eRulemaking Portal:go tohttp://www.regulations.govand follow the online instructions for submitting written comments. A standard form has been created for those who wish to use it in submitting comments.

*Mail:Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 20590-0001.

*Hand Delivery or Courier:West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal Holidays.

*Fax:(202) 493-2251.

Instructions:We strongly encourage you to use the standard form to submit comments. To access the form, go tohttp://www.regulations.govand use the SEARCH DOCUMENTS field provided to input the docket number for this rulemaking. Then, you can search the index for "Public comment standard form." This form may then be moved to your computer desktop, where you can type in your comments. You may then attach the form when you submit your comments to the docket.

Using the standard form will eliminate the need for you to type a title, headings and questions since the form identifies the rulemaking on which you are commenting, sets out the headings identified in theSUPPLEMENTARY INFORMATIONsection of this document and lists the questions that we have asked in the NPRM. It will also make it easier for you, other commenters and the Department to easily search or sort the comments submitted on the various issues in the rulemaking.

If you do not use the standard form, you must include the agency name and docket number DOT-OST-2007-0022 or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comment. All comments received will be posted without change tohttp://www.regulations.gov, including any personal information provided.

Privacy Act:Anyone is able to search the electronic form of all comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted on behalf of an association, a business, a labor union,etc.). You may review DOT's complete Privacy Act statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78), or you may visithttp://DocketsInfo.dot.gov.

Docket:For access to the docket to read background documents or comments received, go tohttp://www.regulations.govor to the street address listed above. Follow the online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie, 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),betsy.wolf@dot.govorblane.workie@dot.gov(e-mail).
SUPPLEMENTARY INFORMATION: Background

On November 15, 2007, the Department of Transportation (DOT or Department) issued an Advance Notice of Proposed Rulemaking (ANPRM) in Docket DOT-OST-2007-22 entitled “Enhancing Airline Passenger Protections.” This ANPRM was published in theFederal Registerfive days later.See“Department of Transportation, Office of the Secretary, 14 CFR Parts 234, 253, 259, and 399 [Docket No. DOT-OST-2007-0022], RIN No. 2105-AD72, 72 FR 65233et seq.(November 20, 2007).'' We announced in the ANPRM that we were considering adopting or amending rules to address several concerns, including, among others, the problems consumers face when aircraft sit for hours on airport tarmacs and the growing incidence of flight delays. We observed that beginning in December of 2006 and continuing through the early spring of 2007, weather problems had kept more than a few aircraft sitting for long hours on airport tarmacs, causing the stranded passengers undue discomfort and inconvenience. We observed further that passengers were also being harmed by the high incidence of less extreme flight delays: In the first seven months of 2007, only 72.23 percent of flights arrived on time, a lower percentage than for the same period in any of the previous 12 years. (On-time arrival performance remains problematic: It has improved only slightly since the issuance of the ANPRM. For the first five months of 2008, it was the second worst for these months in 14 years.) We acknowledged that the industry and interested observers have attributed both the marathon tarmac waits and the epidemic of flight delays to a number of factors besides weather, such as capacity and operational constraints, for example. Some of these are being addressed by the Federal Aviation Administration (FAA) and certain airports in other contexts, but in the meantime, we decided to explore the adoption of regulatory measures to address passengers' concerns.

Thus, citing our authority and responsibility under 49 U.S.C. 41712, in concert with 49 U.S.C. 40101(a)(4) and 40101(a)(9) and 49 U.S.C. 41702, to protect consumers from unfair or deceptive practices and to ensure safe and adequate service in air transportation, we called for comment on seven potential measures. We intended these measures to ameliorate difficulties that passengers experience without creating undue burdens for the carriers. We also posed questions for commenters to answer and invited themto suggest other measures to address the problems at issue.

The measures proposed in the ANPRM covered the following subjects: Contingency plans for lengthy tarmac delays, carriers' responses to consumer problems, chronically delayed flights, delay data on Web sites, complaint data on Web sites, reporting of on-time performance of international flights, and customer service plans. The specifics of the ANPRM's proposals are set forth below in the context of the measures we are proposing—or not proposing—in this notice.

We received approximately 200 comments in response to the ANPRM. Of these, 13 came from members of the industry—i.e., air carriers, air carrier associations, and other industry trade associations—and the rest came from consumers, consumer associations, and two U.S. Senators. On the consumer side, some 131 individual members of the Coalition for an Airline Passengers Bill of Rights (CAPBOR) filed identical or nearly identical comments. CAPBOR's founder and spokesperson, Kate Hanni, also filed comments with additional material on behalf of both CAPBOR and the Aviation Consumer Action Project (ACAP). Another 34 unaffiliated individuals filed comments, as did five other consumer associations: ACAP, the National Business Travel Association (NBTA), the Federation of State Public Interest Research Groups (US PIRG), Public Citizen, and the National Consumers League.

On the industry side, four carriers filed comments: Jet Airways (India), Ltd., Delta Air Lines, Inc., China Eastern Airlines, and Virgin Atlantic Airways, Ltd. Five carrier associations filed comments: The Association of Asia Pacific Airlines (AAPA), the National Air Carrier Association (NACA), the International Air Transport Association (IATA), the Air Transport Association of America (ATA), and the Air Carrier Association of America (ACAA). Two travel agency associations, the American Society of Travel Agents (ASTA) and the Interactive Travel Services Association (ITSA) also filed comments, as did the Airport Council International, North America (ACI-NA).

In general, the consumers and consumer associations maintained that the Department's proposals do not go far enough, while the carriers and carrier associations attributed the current problems mostly to factors beyond their control such as weather and the air traffic control system and tended to characterize the proposals as unnecessary and unduly burdensome. The travel agency associations expressed support for consumer protections but not at their members' expense. The commenters' positions that are germane to the issues raised in the ANPRM are set forth below in the context of the measures we are proposing—or not proposing—here.

Notice of Proposed Rulemaking

Having considered the comments, we have decided to propose rules to do the following: (1) Require air carriers to adopt contingency plans for lengthy tarmac delays and to incorporate these plans in their contracts of carriage, (2) require air carriers to respond to consumer problems, (3) declare the operation of flights that remain chronically delayed to be an unfair and deceptive practice and an unfair method of competition, (4) require air carriers to publish delay data on their Web sites, and (5) require air carriers to adopt customer service plans, incorporate these in their contracts of carriage, and audit their adherence to their plans. We have decided not to propose rules to require air carriers to publish complaint data on their Web sites or to report on-time performance of international flights. We are proposing that the rules take effect 180 days after their publication.

We invite all interested persons to comment on the proposals set forth in this notice. Our final action will be based on the comments and supporting evidence filed in this docket, on our own analysis and regulatory evaluation, and on the ongoing work of our National Task Force to Develop Model Contingency Plans to Deal with Lengthy Airline On-Board Ground Delays (Tarmac Delay Task Force).

Proposals 1. Contingency Plans

The ANPRM: We stated in the ANPRM that we were considering requiring every certificated or commuter air carrier1 that operates domestic scheduled passenger service using any aircraft with more than 30 passenger seats to develop and implement a contingency plan for lengthy tarmac delays. (This plan would apply to all of the carrier's flights, including those involving aircraft with 30 or fewer seats.) Each covered carrier would be required to incorporate its plan in its contract of carriage. This would enable passengers to sue for breach of contract in the event that a carrier fails to adhere to its plan. Each plan would have to include at least the following: The maximum tarmac delay that the carrier will permit, the amount of time on the tarmac that triggers the plan's terms, assurance of adequate food, water, lavatory facilities, and medical attention, if needed, while the aircraft remains on the tarmac, assurance of sufficient resources to implement the plan, and assurance that the plan has been coordinated with airport authorities at medium and large hub airports. Carriers would also be required to make their complete contracts of carriage, including contingency plans, available on their Web sites and to retain for two years the following information for any ground delay that either triggers their contingency plans or lasts at least four hours: The length of the delay, the cause of the delay, and the actions taken to minimize hardships for passengers. Our proposal did not contemplate that the Department would review or approve the plans, but we stated that the Department would consider failure to comply with any of the above requirements—including implementing the plan as written—to be an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 and therefore subject to enforcement action.

1A certificated air carrier is a U.S. direct air carrier that holds a certificate issued under 49 U.S.C. 41102 to operate passenger and/or cargo and mail service. Air taxi operators and commuter air carriers operating under 14 CFR part 298 are exempted from the certification requirements of 49 U.S.C. 41102. Some carriers that would otherwise be eligible for the air taxi or commuter exemption have opted to be certificated. An air taxi operator is an air carrier that transports passengers or property and is not a commuter air carrier as defined in 14 CFR part 298. A commuter air carrier is an air taxi operator that carries passengers on at least five round trips per week on at least one route between two or more points according to a published flight schedule, using small aircraft—i.e., aircraft originally designed with the capacity for up to 60 passenger seats.See14 CFR 298.2.

The Comments: CAPBOR and its members believe that this proposal does not go far enough. They maintain that the Department should establish minimum standards for contingency plans via regulation and should also review and approve the plans rather than allow each carrier the leeway to set what might well be overly lax standards. They also maintain that the Department should monitor carriers' performance under their plans. In their view, requiring carriers to incorporate their contingency plans into their contracts of carriage will not protect passengers, because as a practical matter these contracts cannot be enforced. They do support publication of contingency plans in contracts of carriage, however, and they argue that these plans should be airport-specific to account for differences among airports. CAPBOR and its members contend that because an airport's concessions are often closed by the time that a flight is cancelled and passengers allowed to deplane, weshould require airports to contract with their vendors to require that concessions remain open during lengthy tarmac delays. They request that in any rule proposed or adopted, we refer to “potable water” and “operable lavatories” rather than simply “water” and “lavatory facilities,” respectively, and that we include a requirement for adequate ventilation.

Individual commenters make similar points. For example, they, too, tend to oppose allowing the carriers to set their own standards, particularly those involving the amount of time that triggers the provisions of the contingency plans or the maximum amount of time on the tarmac before the carrier must return to a gate and allow passengers to deplane.

Of the other consumer associations, ACAP concurs with CAPBOR, as does U.S. PIRG. The latter suggests three hours as the maximum interval before passengers are allowed to deplane. Also concurring with CAPBOR are Public Citizen and the National Consumers League. NBTA has a different point of view: It contends that customer service is by nature market driven and that airlines are better situated than the government to gauge both their customers' expectations and whether putative protective measures afford benefits that outweigh their costs—costs that will inevitably be passed on to the traveling public. NBTA does not support requiring the carriers to develop and publish contingency plans, but it believes that carriers that do not do so will provide poorer service and thus lose business. What NBTA does support is a requirement that carriers provide what it calls “baseline passenger's rights” in whatever way they find most effective and cost efficient. NBTA's list of these rights includes access to lavatory facilities, access to water or other liquids, access to food for tarmac delays lasting more than six hours, ways for passengers with medical emergencies to request and receive medical attention, and cabin temperature suitable for normal travel attire. NBTA also supports requiring carriers to maintain records on lengthy tarmac delays as a tool for the Department and others to use for analyzing airline performance.

Senators Barbara Boxer and Olympia Snowe take the position that the Department should set minimum standards for protecting passengers during lengthy tarmac delays. They believe that passengers should be permitted to deplane after three hours on the tarmac.

As for members of the industry, Delta, the sole carrier that commented individually on this proposal, both supports the principle of contingency plans for lengthy tarmac delays and states that it has one already. Its plan does not have a time limit for tarmac delays, however, because in Delta's judgment passengers fare better overall if Delta retains the flexibility to respond to each situation as it deems appropriate at the time. It contends, for example, that categorically requiring the return of planes to the gate after a specified interval would probably result in more flight cancellations than occur now. Delta opposes mandating coordination with airport authorities in the preparation of a contingency plan as “unnecessary and potentially unmanageable.” Delta does not object to a record-retention requirement, but it believes that two years' retention is too long and that six months would suffice. It maintains that any such requirement should be triggered by a uniform delay interval, set by the Department, rather than be permitted to vary from carrier to carrier according to disparate contingency plans; Delta itself believes four hours to be a reasonable standard. Delta does not address whether the contingency plans should be incorporated into the contracts of carriage.

Of the carrier associations that commented on this proposal, NACA agrees in principle that carriers should meet their passengers' needs for food, water, lavatories, and, if necessary, medical attention during extraordinary ground delays and that they should formulate contingency plans for achieving this goal. NACA thinks that the Department should work with the carriers to develop guidance on the following questions: What kinds of food should passengers reasonably expect during a long delay; what should be required on flights whose aircraft have limited or no kitchen resources because no food service is provided in normal circumstances; what should be expected of carriers whose aircraft lack storage capability for additional “emergency” food and that have no catering facilities and no contract for catering services at the airport at which they are delayed; and what sort of medical attention and supplies can passengers reasonably expect? NACA opposes inclusion of carriers' contingency plans in their contracts of carriage, because the contracts are legally binding, so passengers would have a private right of action against any carrier that did not adhere to the provisions of its plan. “Given the vagaries of what would constitute appropriate emergency services,” NACA states, “and in the absence of a specific statutory mandate, we believe that the inclusion of such provisions within the contract of carriage exposes carriers to a myriad of unfounded lawsuits.” In lieu of incorporation of the contingency plans in the contracts of carriage, NACA supports requiring that each carrier provide public notice of its plan—for example, by including a notice on its Web site, by posting notices at check-in counters, or by including a notice in its in-flight magazine or in other materials available to passengers on the plane. It suggests that the Department could require all carriers to provide it with copies of their plans and then itself make the plans available to the public. NACA's comments are endorsed by ACAA.

ATA commented extensively on this proposal, and IATA supports ATA's comments. ATA prefaced its comments by asserting that the Department should focus on addressing the root causes of delays, which it characterizes as “insufficient airspace capacity and an operating environment handcuffed by outdated radar technology,” in addition to calling for passenger protections. ATA agrees in principle that carriers should have contingency plans for lengthy tarmac delays, provided that each air carrier is permitted to decide on the details of its own plan based on its own unique facilities, equipment, operating procedures, and network. ATA not only supports the Department's proposal not to prescribe the terms of carriers' contingency plans, but it particularly opposes a set interval of time after which an aircraft must be returned to the gate, claiming that such a requirement would do passengers more harm than good. Among the potential negative consequences ATA lists are the required return to the gate when the aircraft is next in line for takeoff, potential conflicts with governmental orders during a pandemic that passengers be kept on aircraft, and conservative decisions that result in wasting passenger, aircraft, and crew time and affect downstream connecting passengers adversely. ATA also argues that a strict requirement that aircraft return to the gate after a set interval would stifle competition: It reasons that carriers might otherwise choose alternate ways to address the competing passenger interests and needs that arise during a lengthy tarmac delay.

ATA reports that carriers already have both general contingency plans and airport-specific contingency plans. It states that carriers do not intend to publish the latter, and it recommends that the Department allow them flexibility in how they notify consumersof the former. Most carriers, it assumes, would post their contingency plans on their Web sites. ATA opposes requiring carriers to include their contingency plans in their contracts of carriage and in fact doubts that the Department has the authority to do this in the aftermath of deregulation. As a practical matter, ATA claims, inclusion of carriers' general contingency plans in their contracts of carriage would require the deletion of technical and operational terms that do not belong in a contract and the addition of qualifying statements so that carriers would retain the flexibility to make different operational decisions depending on the facts of the situation, including extraordinary circumstances. ATA also opposes requiring incorporation of contingency plans in carriers' contracts of carriage because this would expose them to litigation under inconsistent standards among the states and among foreign countries. It predicts that standards would fluctuate as carriers took steps to minimize their exposure. ATA opposes the proposed recordkeeping requirement as redundant of other existing and proposed regulations.

RAA prefaced its comments by asking the Department to keep in mind, when proposing rules, what it characterizes as “the unique relationship between most regional airlines subject to the proposals * * * and their passengers.” RAA states that over 90 percent of its members' passengers fly under ticketing, marketing, scheduling, and passenger processing and handling arrangements that are controlled by the major-carrier partners of RAA's members—in fact, these passengers' contracts of carriage are with the major carrier, not the regional airlines. RAA states further that while its members are responsible for operating their flights safely and can cancel or divert them for reasons of safety, most delays, diversions, and cancellations are determined by the FAA or the regional airlines' major-carrier partners. RAA opposes regulations that would burden its membersvis-à-visthe railroads and bus companies with which they compete for passengers.

Regarding contingency plans, RAA asks the Department to let airlines adopt plans that reflect their own circumstances, capabilities, and passenger service standards. It asks the Department to apply requirements for contingency plans and recordkeeping only to the airline that has a contract of carriage with the passenger and also to require contingency plans of “other critical parties such as the FAA and the airports.” In RAA's view, requiring enforceable contingency plans would be contrary to deregulation and as a practical matter would prevent carriers from responding flexibly to the many kinds of delays that occur. It states that because contingency planning varies from airport to airport, requiring a contingency plan for each airport to be published and enforced through the contract of carriage would be both impracticable and burdensome. RAA opposes requiring carriers to retain records on delayed flights, both as redundant of existing requirements of the Department's Bureau of Transportation Statistics and as a burden that would yield little if any public benefit. RAA contends that its members are constrained not only by their major-carrier partners' control over delay decisions and their differing standards for passenger service but also by the capacity constraints of their own aircraft—aircraft with limited capacity for food, water, and lavatory facilities. If contingency plans are to be required, RAA takes the position that they should only be required of major carriers, with implementation to be arranged by the major carrier and its regional airline partners on flights operated with aircraft with more than 30 passenger seats. RAA opposes coverage of flights operated with smaller aircraft.

ACI-NA supports this proposal and states that it recently convened a meeting of more than 100 officials from airports, airlines, passenger organizations, and the federal government to develop an outline for a contingency plan. Along with “best practices” in place at North American airports, this plan will be provided to the Department's Tarmac Delay Task Force.

Of the travel agency associations, ASTA strongly favors requiring carriers to adopt contingency plans and requiring the incorporation of these plans in air carriers' contracts of carriage, but it believes that the proposal in the ANPRM does not go far enough. ASTA implies, without explanation, that even with the plans incorporated in the contracts of carriage, they will not be enforceable unless the Department reviews them. ASTA suggests that any rule that we adopt “require very specific plans in the general mode of ‘if this happens, we will take the following specific steps to assure proper care of passengers.’ ” ASTA also supports the recordkeeping requirement and suggests that it be triggered by a delay of three hours. Also, ASTA believes that carriers should be required to coordinate not only with airport authorities at medium and large hub airports but with the authorities at “all primary airports.” ITSA did not address this proposal.

Proposed Rule: We have decided to propose a rule along the lines set forth in the ANPRM, and we invite comment from all interested persons. Specifically, we propose to adopt a new rule, 14 CFR part 259, which, among other things, would require any certificated or commuter air carrier that operates domestic passenger service using any aircraft with a design capacity of more than 30 passenger seats to develop a contingency plan for long tarmac delays of scheduled and public charter flights and to adhere to this plan's terms. This plan would apply to all of the carrier's scheduled and public charter flights, including those with aircraft having a design capacity of 30 or fewer seats. We are not proposing that the rule cover single-entity charters and other charters in which consumers have some bargaining leverage. The rule would require each carrier to incorporate its contingency plan in its contract of carriage. At a minimum, each plan must include the following: The maximum tarmac delay that the carrier will permit, the amount of time on the tarmac that will trigger the plan's terms, the assurance of adequate food, water, and lavatory facilities, as well as medical attention if needed, while the aircraft remains on the ground, assurance of sufficient resources to implement the plan, and assurance that the plan has been coordinated with airport authorities at medium and large hub airports. The rule would require carriers to retain for two years the following information on any on-ground delay that either triggers their contingency plans or lasts at least four hours: The length of the delay, the cause of the delay, and the steps taken to minimize hardships for passengers (including providing food and water, maintaining lavatories, and providing medical assistance). Failure to do any of the above would be considered an unfair and deceptive practice within the meaning of 49 U.S.C. 41712 and subject to enforcement action, which could result in an order to cease and desist as well as the imposition of civil penalties.

In adopting this approach, we are tentatively rejecting the suggestions of those consumers and groups who believe that the Department should set minimum standards for the contingency plans rather than allow each carrier to set its own standards based on its particular circumstances. We continue to be of the tentative view based on the information available to us that the Department should not substitute its judgment in this area for that of the air carriers. Nevertheless, we ask interestedpersons to comment on whether any final rule that we may adopt should include either or both of the following: A uniform standard for the time interval that would trigger the terms of carriers' contingency plans and a uniform standard for the time interval after which carriers would be required to allow passengers to deplane. Commenters who support the adoption of either or both requirements by rulemaking should propose specific amounts of time and state why they believe these intervals to be appropriate.

As for incorporation of the contingency plans in carriers' contracts of carriage, at this stage we are tentatively rejecting consumers' arguments that this requirement would be ineffectual, because no commenter has provided any support for its assertion that as a practical matter the contracts of carriage cannot be enforced, particularly where class-action litigation is available. We are also tentatively rejecting carriers' arguments that we should not require incorporation because this would subject them to the risk of inconsistent standards among the various jurisdictions. This risk exists already, since the carriers' contracts of carriage are enforceable in state courts, and it is not increased with the addition of new enforceable terms to these contracts. ATA has failed to establish that we lack the authority to require that contingency plans be incorporated in carriers' contracts of carriage. Our broad authority under 49 U.S.C. 41712 to prohibit unfair and deceptive practices encompasses this power. Indeed, 14 CFR part 253 shows that we have the authority not only to require that contracts of carriage include specified terms but also to regulate the means by which contract terms are disclosed to consumers. We tentatively believe that in providing for private enforcement of the plans as well as enforcement action by the Department, we are creating a stronger incentive for carriers to adhere to their plans. We invite interested persons to comment on the implications of our creating a private right of action based on a carrier's failure to follow the terms of its contingency plan. Commenters should address the potential for multiple lawsuits by classes as well as individual plaintiffs and the potential for inconsistent judicial decisions among the various jurisdictions. Commenters should also address whether and to what extent requiring the incorporation of contingency plans in carriers' contracts of carriage might weaken existing plans: That is, would the requirement encourage carriers to exclude certain key terms from their plans in order to avoid compromising their flexibility to deal with circumstances that are both multifarious and unpredictable?

As for the other points made by consumers, we are not proposing to require the plans to be airport-specific, although carriers may choose to adopt different standards for each airport in their plans. We are not proposing here to require airports to provide for concessions to remain open during lengthy tarmac delays, in part because we doubt that we have the authority to do so. Our proposed rule does not refer to “potable water” or “operable lavatories,” because water and lavatory facilities that are “adequate” are necessarily potable and operable, respectively. Furthermore, the quality of drinking water on aircraft is regulated by the Environmental Protection Agency (EPA). Our proposed rule does not address ventilation, because we have no basis at this stage to assess the adequacy of ventilation or to require potentially significant modifications to aircraft.

As for the other points made by carriers, those that rank operational flexibility as their highest priority are free to adopt a relatively long interval as their standard for returning a plane to the gate and allowing passengers to deplane. Were a carrier to follow this strategy only to see its market shares decliningvis-á-visits competitors with shorter intervals in their contingency plans, the carrier could amend its plan accordingly. Conversely, were a carrier to decide that it wanted to amend its plan to allow itself more time before returning the aircraft to the gate, the proposed rule provides that the amended plan would only apply to flights that the carrier has not yet offered for sale. This condition would protect consumers who have booked flights under the impression that they will not be kept on the tarmac more than, say, three hours from the unpleasant discovery that by the time they actually fly the carrier has amended its contingency plan to make that interval six hours.

As for RAA's requests that we treat regional carriers and their larger-carrier code-share partners differently, we have decided not to do so at this stage in the rulemaking process. The rule that we are proposing would apply to both partners in a code-share arrangement, because even if the determination to cancel a flight or keep it on the tarmac is made by the major carrier or results from action by the FAA, it is the carrier operating the flight that remains directly responsible for the passengers for the duration of the delay. We expect that the major carriers and their regional code-share partners would collaborate on their contingency plans to come up with standards that suit both parties. We recognize that the regional carriers' plans would reflect the limited size and capacity of their aircraft, and nothing in the rule would bar a regional carrier from providing differently for aircraft of different sizes.

Nevertheless, while we are proposing here not to treat regional carriers and larger carriers differently in the rule, we invite interested persons to comment on whether, in the event that we adopt a rule requiring contingency plans, we should limit its applicability to carriers that operate large aircraft—i.e., aircraft originally designed to have a maximum passenger capacity of more than 60 seats. Proponents of this alternative approach should provide arguments and evidence in support of their position, as should opponents.

2. Response to Consumer Problems

The ANPRM: This proposal would require every certificated and commuter air carrier that operates domestic scheduled passenger service using any aircraft with a design capacity of more than 30 passenger seats to address mounting consumer problems in the following ways: At its system operations center and at each airport dispatch center, designate an employee to be responsible for monitoring the effects of flight delays, flight cancellations, and lengthy tarmac delays on passengers and have input into decisions such as which flights are cancelled and which are subject to the longest delays; on its Web site, on all e-ticket confirmations, and, on request, at each ticket counter and gate, inform consumers how to file a complaint with the carrier (name of person or office, address, and telephone number); and send a response to each consumer complaint received within 30 days of receipt.

The Comments: CAPBOR and its members support the proposal and take the position that carriers should be required to provide postal addresses, telephone numbers, and e-mail addresses for customer service, to acknowledge receipt of a complaint within 24 hours, to resolve the complaint within 30 days of receiving it, and to notify the Department if the passenger disagrees with the resolution. In addition, CAPBOR calls for a requirement that consumers' complaints to the carriers and complaints that the Department refers to the carriers be combined and tabulated by category, with the results made available to the public every month.

Of the individual commenters, one agrees in principle with the proposalbut voices concern over the cost of creating a position at each airport for responding to complaints, reasoning that this would not affect delays. Another voices concern that not all consumers have access to the Internet and favors requiring travel agents to provide the information on where to complain as well.

Of the other consumer associations, ACAP and U.S. PIRG concur with CAPBOR, Public Citizen concurs with CAPBOR and U.S. PIRG, and the National Consumer League concurs with U.S. PIRG. NBTA, in contrast, characterizes the proposal as micromanagement of airline customer service. NBTA maintains that most if not all carriers have customer service departments to address problems that arise and that poor responses will affect consumers' business decisions.

Delta is again the only carrier that commented individually on this issue. Delta deems a regulation requiring the designation of carrier employees responsible for what it characterizes as responding to and managing extended ground delays and flight cancellations, and prescribing such employees' locations, to be unnecessary, because such a requirement is implicit if the Department mandates contingency plans. Delta is concerned, moreover, that the proposal could work to undermine carriers' ability to establish processes and management hierarchies that ensure compliance with their contingency plans. Delta states that it is committed to providing multiple customer-friendly channels for complaints, and given the rapid development of communication technologies, the carrier opposes making the use of particular channels mandatory. Delta opposes a 30-day requirement for responding to consumer complaints and posits 60 days as the current industry standard. It cautions that in cases involving international travel, particularly under code-sharing arrangements, “coordinating the best solution for the customer may require more than 30 days, especially if a detailed investigation is needed.” In addition, Delta is concerned that seasonal surges in complaint volume or unexpected events could mean financial hardship for a carrier that was required to increase staffing temporarily to respond to all complaints within 30 days.

Of the carrier associations, NACA states that its members already monitor their flight operations at each airport and maintains that it should be up to each carrier to decide if it wants to have this be one employee's sole responsibility or include it with an employee's other responsibilities. As for responding to complaints, NACA contends that the Department should specify how complaints are to be lodged with the carriers if it is going to require a response to each complaint. Whether the complaint is handed to an airline agent at the airport, submitted via e-mail, or sent by U.S. mail, the complainant should be required to have proof that the carrier received the complaint. NACA believes 30 days to be insufficient for responding to complaints but would accept a 45-day requirement even though it prefers 60 days. NACA's comments are endorsed by ACAA.

ATA, with IATA's endorsement, supports requiring carriers to respond to consumer problems and cites the voluntary commitments to do so that a number of carriers have long had in place. ATA states that its members agree that consumers should receive responses to their complaints within 30 days when practicable, provided that by “response” the Department means notification that a complaint has been received and is being reviewed and that by “complaint” the Department means a passenger's complaint that raises customer service concerns and that is submitted to the carrier's customer relations department. It contends, however, that resolving complaints in only 30 days is difficult if not impossible. ATA supports the idea of designating an employee at a carrier's systems operations center to monitor the effects of flight delays and cancellations, provided that the designee is a current employee who carries out other responsibilities as well. It does not support requiring such an employee at each airport dispatch center, claiming that this would duplicate existing procedures and would strain carriers' resources without lessening the problems that consumers face. ATA supports allowing each carrier to choose the means by which it receives complaints and responds to them, and it supports requiring carriers to post information on contacts for complaints on their Web sites. It opposes requiring this information on e-tickets as redundant, if the information is on the carriers' Web sites, and burdensome, as carriers would have to change the printing format for e-tickets to accommodate the new information. Thus, ATA argues, the benefit of including complaint information on e-tickets would outweigh the cost, particularly in the absence of any evidence that users of e-tickets are experiencing any difficulty in finding this information at present.

RAA urges the Department to let carriers monitor the effects on passengers of flight delays, flight cancellations, and lengthy tarmac delays by whatever means they choose, given the wide variety of circumstances among all carriers and between major and regional carriers. It asserts that for its members, designating a single person rather than making all employees responsible for taking passengers' interests into account might be wasteful if not counterproductive given how they may well have little if any control over decisions on delays, diversions, and cancellations. As far as consumer complaints are concerned, RAA asserts that the best means for giving contact information may similarly vary among carriers and between major and regional carriers. Tickets for RAA's members' code-share services are typically sold and issued by their major-carrier partners, which often staff the ticket counters and gates that consumers use as well. Under these circumstances, RAA contends, its member carriers should not be held responsible for telling consumers how to file complaints. RAA states that when a major carrier receives a complaint that involves its regional carrier partner, it coordinates with the latter to gather facts so that it can respond to the consumer. Like ATA, RAA maintains that 30 days is sufficient for acknowledging receipt of a complaint but too little time for resolving one. Finally, RAA takes the position that any requirements adopted should only apply to flights operated with aircraft seating at least 30 passengers and not to flights operated with smaller aircraft.

ACI-NA supports this proposal but did not specifically address it.

Of the travel agency associations, ASTA agrees in principle with carriers' having an employee responsible for monitoring the effects of schedule disruptions on passengers and having input in the decisions made but doubts that this requires as many individuals as the proposal contemplates given current communications technology. ASTA supports a period of 30 days for responding substantively to consumer complaints. It opposes allowing individual carriers to choose how complaints may be filed, supporting instead a uniform requirement that complaints be accepted by telephone, by U.S. mail, and by e-mail. ITSA did not address this issue.

Proposed Rule: We have decided to propose a rule along the lines set forth in the ANPRM, and again we invite comment from all interested persons. Specifically, our proposed new rule, 14 CFR part 259, includes a requirementthat every certificated and commuter air carrier that operates scheduled domestic passenger service using any aircraft with a design capacity of more than 30 passenger seats respond to consumer problems concerning its scheduled flights in three ways. First, at its systems operations center and at each airport dispatch center, the carrier would have to designate an employee who monitors the effects of flight delays, flight cancellations, and lengthy tarmac delays on passengers and has input into decisions on which flights to cancel and which to delay the longest. We anticipate that these responsibilities would be borne by current employees in addition to their other responsibilities; we do not intend for any carrier to have to hire new employees to comply with this regulation. Second, on its Web site, on all e-ticket confirmations, and, upon request, at each ticket counter and gate, the carrier would have to inform consumers how to file a complaint by providing the name, address, telephone number, and e-mail or Web-form address of the appropriate person or office. Carriers would be given 180 days to modify their Web sites and reformat their e-tickets before this requirement would take effect. Third, for each complaint filed, the carrier would have to acknowledge receipt to the consumer within 30 days and provide a substantive response within 60 days of receiving it. By “substantive response,” we mean a response that addresses the specific problems about which the consumer has complained. We are not proposing that this provision cover public charter operations. Complaints about public charter flights are filed not with the carrier but with the Public Charter Operator; also, the carriers operating these flights may not have employees at each airport that they serve.

In adopting this approach, we are tentatively rejecting as unrealistic CAPBOR's contention that we should require acknowledgement of a complaint's receipt within 24 hours and a resolution of the complaint within 30 days. The deadlines that we are proposing represent standard practice in the industry and should allow carriers adequate time to investigate and respond appropriately. We are addressing carriers' opposition to hiring new employees to do work that is redundant by clarifying that this is not our intent. We are tentatively rejecting carriers' arguments that we should not make any particular complaint channel mandatory, because we recognize that not all consumers have access to the Internet. Some consumers traveling on e-tickets purchased by a third party or by telephone may not have access to the Internet themselves. We are tentatively rejecting ATA's contention that requiring carriers to provide information on e-tickets regarding how to complain is redundant and burdensome, because ATA has not supported this contention. Under the proposed rule, an electronic e-ticket confirmation or itinerary may include a link to the complaint information in lieu of displaying the entire text. We invite ATA to provide evidence on the costs to carriers of changing the format for e-tickets to accommodate the new information in its comments on this proposal. We are tentatively rejecting RAA's contention that its members should not be required to tell consumers how to file complaints. The rule by its terms would not require those regional carriers that do not have Web sites or ticket counters or issue e-tickets to provide information on filing complaints via these channels. Passengers of these carriers who wish to complain should be able to find out at the gate how to do so. RAA provides no basis for its assertion that flights operated with aircraft seating fewer than 30 passengers should be exempt from this requirement.

3. Chronically Delayed Flights as Violations of 49 U.S.C. 41712

The ANPRM: This proposal would codify the Department's 2007 enforcement policy on chronically delayed flights. The proposed new text would define a chronically delayed flight as a flight by a covered carrier that is operated at least 45 times in a calendar quarter and arrives more than 15 minutes late more than 70 percent of the time. It would define a covered carrier as one that reports on-time performance data to the Department under 14 CFR part 234—i.e., a certificated U.S. carrier that accounts for at least one percent of domestic scheduled passenger revenue. The text would state that the Department considers a chronically delayed flight to be an unfair and deceptive practice and an unfair method of competition within the meaning of 49 U.S.C. 41712 if it is not corrected before the end of the second calendar quarter following the one in which it is first chronically delayed.

The Comments: CAPBOR supports this proposal but believes that carriers should not be allowed a full six months to correct chronically delayed flights and that the Department should automatically impose civil penalties whenever a flight becomes chronically delayed in any given quarter. CAPBOR also favors stricter standards than the ones that we proposed: Specifically, that the rule should apply to flights operated at least 24 times in a calendar quarter and that flights should be deemed chronically late if they arrive at least 15 minutes late more than 50 percent of the time. Ms. Hanni goes further and calls for an even lower threshold of 40 percent. CAPBOR wants the Department to make certain that carriers cannot evade the rule by changing the number of a flight or changing its departure time by a few minutes. Ms. Hanni adds that the Department should also address the problem of chronically cancelled flights by regulation.

None of the individual commenters addressed this proposal. Of the other consumer associations, ACAP concurs with CAPBOR, as do U.S. PIRG, Public Citizen, and the National Consumers League. NBTA alone supports the proposal as drafted.

Delta, the only carrier that commented individually on this issue, takes the position that the Department should use the standard proposed as a rebuttable presumption that a flight violates 49 U.S.C. 41712 rather than as a rule. In Delta's view, the Department must also consider in each case whether the carrier has intended to deceive the public or compete unfairly, because flights may fail to operate on time for an extended period for many reasons that are beyond the carrier's control. For example, if a flight performs erratically due to unpredictable delays attributable to problems in the national air traffic control system, the carrier cannot solve the problem by extending the block time to make the flight operate on time more consistently: This would make the flight arrive early when the system functions properly, which in turn could cause disruptions and tarmac delays at the destination airport. Another example would be a period of harsh and unexpected weather arriving just when a carrier thought that it had solved the problems that had made a flight late. Delta warns that adopting a rigid standard for enforcement could result in carriers' cancelling flights or arbitrarily retiming them significantly, thus creating “new” flights, solely to avoid enforcement action and even though they might otherwise have eventually solved the scheduling problems. Delta warns that this approach is in turn likely to cause passengers more inconvenience than would continuing to try to address the real issues affecting a flight's performance. In cases where the actual individual delays of a given flight are relatively small—say 16 minutes, for example—passengers fare better if the flight is maintained than if it is cancelled altogether.

Delta opposes expanding the definition of a chronically delayed flight to include international flights to and from the United States. It claims that any carrier's ability to adjust the timing of such flights is limited by time zone issues and consumers' preference to arrive at foreign destinations at particular times. Additionally, foreign laws and airport authorities may limit a carrier's ability to adjust schedules or address other operational factors that affect on-time performance.

In Delta's opinion, adopting the proposal as a rule would not result in improvement of on-time performance, because carriers already deem customer satisfaction to be critical to their success and are therefore already doing whatever they can to meet their schedules. Rather, Delta suggests, the government should use its resources to improve the air traffic control system. The carrier concludes that in any enforcement action, if a carrier can show that it has done all it reasonably can to resolve the problem but that the underlying primary cause is outside of its control, no sanction should be imposed.

Of the carrier associations that commented, ATA, with IATA's endorsement, agrees with Delta that the proposed standard should only be a rebuttable presumption and not a rule, because in some circumstances a carrier may have legitimate reasons for not being able to comply. ATA supports the proposed definition of a chronically delayed flight and prefers it to the standard proposed by the Department's Inspector General (IG),i.e., flights arriving 30 minutes late 40 percent of the time. ATA opposes expanding the definition to include international flights.

RAA does not oppose defining chronically delayed flights, but it does oppose treating them as an unfair and deceptive practice subject to enforcement action. RAA believes that the market will punish carriers that fail to satisfy consumers and that the Department should rely on market forces rather than enforcement. If the Department persists nevertheless, RAA takes the position that the rule should apply only to the carrier that sets the schedules and enters into contracts of carriage with passengers when that carrier is not the carrier operating the flights. In a similar vein, ACAA contends that any rule on chronically delayed flights should apply only to the largest carriers.

ACI-NA states that chronically delayed flights can harm both airports and their local communities economically by causing passengers to lose confidence in an airport's operations. A smaller airport can sustain greater harm, according to ACI-NA, because even though larger airports may have more delayed flights, delayed flights at a smaller airport may constitute a larger percentage of that airport's flights. Also, delays at small airports whose flights feed a large carrier's hub are more disruptive to passengers, because they cause more missed connections. Regarding the proposal, ACI-NA maintains that a threshold of 45 flight operations per calendar quarter, or approximately four flights per week, will improperly exclude operations at many small airports and thus fail to protect their passengers. Instead, ACI-NA proposes a threshold of 12 flight operations per calendar quarter, or one flight per week. ACI-NA also maintains that a late-arrival threshold of more than 70 percent is too lenient to carriers and unfair to consumers, and it proposes a threshold of 50 percent. Finally, ACI-NA maintains that any rule should apply not only to the major and national carriers that account for at least one percent of domestic scheduled passenger revenue but also to the operations of regional or feeder carriers that are affiliated with the larger carriers. ACI-NA reasons that delays harm passengers just as much regardless of which certificate holder operates the aircraft. Furthermore, with regional carriers now transporting one of every four domestic passengers, operating half of daily domestic flights, and providing the only scheduled service to about 70 percent of U.S. airports, ACI-NA deems it critical that their operations be covered by the rule.

Of the travel agency associations, ASTA supports defining chronically delayed flights as an unfair and deceptive practice but suggests that the proposal can be improved in a number of ways. First, the threshold should be set at 50 percent rather than 70 percent, which will be a stronger incentive for airlines to adjust their schedules or operations. Second, rather than permitting a carrier two calendar quarters to correct a chronically delayed flight, correction should be required within the first calendar quarter following the one in which the flight became chronically delayed: ASTA maintains that three months should usually suffice, and in cases where a carrier can show why it should be granted additional time, the Department would have the discretion to accommodate it. Third, ASTA supports applying this rule to international scheduled passenger service by both U.S. and foreign carriers. ITSA did not address this issue.

Proposed Rule: With some modification to the details, we have decided to propose a rule along the lines set forth in the ANPRM, and we invite comments from all interested persons. Specifically, we propose to amend 14 CFR 399.81 to define chronically delayed flights and to specify that the Department considers flights that continue to be chronically delayed for three consecutive calendar quarters to be an unfair and deceptive practice and an unfair method of competition within the meaning of 49 U.S.C. 41712 and subject to enforcement action. This proposal defines a flight as chronically delayed if it is operated at least 30 times in a calendar quarter and arrives more than 15 minutes late more than 70 percent of the time. As far as substitute flights are concerned, all flights in a given city-pair market whose scheduled departure times are within 30 minutes of the most frequently occurring scheduled departure time would be considered to be one single flight for purposes of assessing chronic delays. The revised proposal reflects the Department's 2008 enforcement policy, and we tentatively believe that it strikes the appropriate balance between consumers' need to have reliable information about the real arrival time of a flight and the carriers' inability to control or predict the weather and certain other factors that can contribute to delays. In addition, for the reasons set forth below in support of our decision not to propose a rule requiring on-time reporting of international flights, we have also decided against proposing to include foreign air transportation—i.e., international flights—in the definition of a chronically delayed flight.

We further invite interested persons to comment on an alternate definition of a chronically late flight as one that is operated at least 30 times in a calendar quarter and that arrives at least 30 minutes late at least 60 percent of the time. While this latter approach could theoretically yield more benefits for consumers, we are concerned that adopting this more stringent standard could lead to a large number of flight cancellations and possibly even the elimination of service to some communities. Also, we invite comment on whether we should adopt an even stricter definition favored by the Department's Inspector General: A flight that is cancelled or delayed 30 minutes or more at least 40 percent of the time. The Inspector General calculated in 2006 that using this definition would yield 5,369 chronically delayed flights, a very high number (Follow-Up Review:Performance of U.S. Airlines in Implementing Selected Provisions of the Airline Customer Service Commitment, Report Number AV-2007-012, Issued November 21, 2006, at page 5, footnote 8, and Attachment, page 17). Because we are concerned that any consequential increase in enforcement responsibilities might require the diversion of resources from other aviation compliance activities, commenters should assess both the benefits that this definition would engender and the costs that it would entail. Of course, regardless of which definition we adopt, we always have the authority to take enforcement action against flights that do not meet the definition but that appear to involve unrealistic scheduling and thus to constitute unfair and deceptive practices and unfair methods of competition within the meaning of 49 U.S.C. 41712.

For enforcement purposes, we are considering the option of not treating a flight that remains chronically delayed for three consecutive quarters as an unfair and deceptive practice and an unfair method of competition if every prospective passenger using any available channel of purchase is informed before buying a seat on that flight that the flight is chronically delayed. There is no deception or unfairness if a consumer who knows that a flight is chronically delayed chooses it for travel nonetheless. We invite comment on this approach.

We are tentatively rejecting as too draconian the consumers' contentions that we should not allow a full six months for the correction of a chronically delayed flight, that we should automatically impose civil penalties in the calendar quarter when a flight becomes chronically delayed, and that we should define chronically delayed flights more broadly. As we have stated above, our aim in proposing rules is to strike a balance between a passenger's need to have the best possible information about the real arrival time of a flight and the carriers' inability to control—or foresee—the weather and various other factors that can cause delays. As for chronically cancelled flights, the proposed rule would treat each flight that is cancelled within seven days of departure as a delayed flight for purposes of our analysis, but we decline at this time to consider regulating chronically cancelled flights in other respects. We are addressing consumers' concerns that carriers could evade the rule by changing a flight's number or departure time by providing for the treatment of substitute flights as the same flight.

We are also tentatively rejecting the carriers' contention that we should use the standard we adopt as a rebuttable presumption and not a rule. Chronic delays are a serious problem that must be addressed, and we consider the standard we are proposing here to be a reasonable and feasible approach. We invite carriers to provide evidence to the contrary in their comments on this proposal. Furthermore, as the carriers know, the Department's enforcement procedures afford a potential respondent ample opportunity to show extenuating or mitigating circumstances and thus perhaps avoid penalty. For example, our enforcement procedures are sufficiently flexible for us to take account of the contract terms between a major carrier and its regional code-share partner in any investigation of the latter's delayed flights. As for ACAA's contention that any rule should apply only to the largest carriers, while ACI-NA's comments attest to the importance of addressing unrealistic scheduling by small and regional carriers, by its terms the proposed rule would not apply to any carrier that does not account for at least one percent of domestic scheduled passenger revenue. These carriers already collect and report on-time performance data. Their operations account for nearly 90 percent of all domestic passenger enplanements. In our view, the substantial cost burden that compliance with this proposal would impose on the smaller carriers, which are not required to collect or report on-time performance data, would outweigh any corresponding public benefits.

4. Delay Data on Carriers' and Other Sellers' Web Sites

The ANPRM: This proposal would require both carriers that report on-time performance data to the Department and online travel agencies to include on their Web sites, at a point before the passenger selects a flight for purchase, the following information on each listed flight's performance during the previous month: The percentage of arrivals that were on time, the percentage of arrivals that were more than 30 minutes late, special highlighting of any flight that was late more than 50 percent of the time, and the percentage of cancellations.

The Comments: CAPBOR and its members support requiring carriers to publish delay data on their Web sites for all flights but they assert that flights should be defined as “late” if they arrive more than 15 minutes late, not 30 minutes as proposed. CAPBOR believes that passengers will use this information to make better choices and that as a consequence, carriers with more delayed flights will have a greater incentive to correct their problems. CAPBOR takes the position that carriers should be required to provide the information not only on their Web sites before booking but also upon request to consumers who book by telephone. CAPBOR also takes the position that third-party reservations services should be required to provide this information as well and that carriers “should be required to provide open interfaces for internet applications to access [these] data from their servers so as not to impose undue costs [on] third parties.” CAPBOR favors applying this rule to the international flights of U.S. carriers and to all domestic scheduled passenger service using aircraft with more than 30 passenger seats. Ms. Hanni adds that special highlighting should be required for any flight that is late more than 40 percent of the time. In her view, however, it would not be enough to require disclosure of the performance information by telephone only upon request. Rather, she maintains, we should require disclosure of information about both chronically delayed and chronically cancelled flights whenever a consumer is booking flights, be it on line, by telephone, or even in person.

Those individual commenters who addressed this issue agree that disclosure of this information should be required for telephone sales as well as internet sales. They also agree that the disclosure requirement should apply to third-party reservations services.

Of the other consumer associations, ACAP agrees with CAPBOR, as does U.S. PIRG. Public Citizen concurs with U.S. PIRG and CAPBOR; the National Consumers League concurs with U.S. PIRG. NBTA supports requiring carriers to provide on-time performance information to consumers “so long as these requirements are aligned with performance reports that carriers must file with DOT.”

Senators Boxer and Snowe support this proposal.

As for members of the industry, Delta, again the only carrier that commented individually on this issue, agrees that giving interested consumers information on historical on-time performance is good customer service, but the carrier strongly objects to detailed regulation of how this information is provided. In Delta's view, carriers should be free to decide what to tell consumers and how. On its Web site, Delta currently makes available the percentage of operations that were on time for any flight for which it is required to file on-time performance data with the Department. Once a consumer has selected dates androutes, the screen for flight availability and pricing provides access to the following information via a click on the flight number: equipment type, flight duration and distance, and on-time performance for the previous month. In Delta's view, its practice meets consumer