[Federal Register Volume 89, Number 238 (Wednesday, December 11, 2024)]
[Proposed Rules]
[Pages 99760-99782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28930]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Chapter II
[Docket No. DOT-OST-2024-0062]
RIN 2105-AF20
Airline Passenger Rights
AGENCY: Office of the Secretary (OST), Department of Transportation
(DOT).
ACTION: Advanced notice of proposed rulemaking (ANPRM).
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SUMMARY: The U.S. Department of Transportation (Department or DOT)
seeks public comment on a rulemaking to ensure consumers experiencing
significant flight disruptions are taken care of and protected from
financial losses. Specifically, the Department is considering imposing
requirements on airlines to provide affected passengers cash
compensation, free rebooking, and amenities such as meals, lodging for
overnight delays, and transportation to and from lodging. The
Department also seeks comment on whether some protections should be
provided during any type of disruption, how to determine whether a
cancellation or delay is within an airline's control, and how to ensure
that passengers receive the correct information from the airline in a
timely manner. Additionally, the Department solicits comments on how to
ensure that the process for passengers to receive compensation and
amenities is clear, simple, straightforward, and prompt, and whether to
require certain aspects of the process to be automatic. Further, the
Department seeks comment on whether it should require airlines to offer
free rebooking on the same or partner airline to a passenger with a
disability and others in the same travel party when one or more
accessibility feature needed by the person with disability is
unavailable.
DATES: Comments should be filed by February 10, 2025. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: You may file comments identified by the docket number DOT-
OST-2024-0062 by any of the following methods:
Federal eRulemaking Portal: go to https://www.regulations.gov and follow the online instructions for submitting
comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Ave. SE, Washington, DC, between 9 a.m. and 5
p.m. ET, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
Instructions: You must include the agency name and docket number
DOT-OST-2024-0062 or the Regulatory Identification Number (RIN 2105-
AF20) for the rulemaking at the beginning of your comment. All comments
received will be posted without change to https://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, business, labor union, etc.). For information on
DOT's compliance with
[[Page 99761]]
the Privacy Act, please visit https://www.transportation.gov/privacy.
Docket: For access to the docket to read background documents and
comments received, go to https://www.regulations.gov or to the street
address listed above. Follow the online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Heather Filemyr, John Wood, or Blane
A. Workie, Office of Aviation Consumer Protection, U.S. Department of
Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-
9342, 202-366-7152 (fax), [email protected], [email protected],
or [email protected] (email).
SUPPLEMENTARY INFORMATION:
A. Background and Overview of Existing Requirements
The Department's regulation at 14 CFR 259.5 requires U.S. and
foreign airlines to have and adhere to a customer service plan that
identifies the services that an airline provides to mitigate passenger
hardships resulting from flight cancellations and misconnections. Under
this regulation, airlines are free to choose the services to provide
passengers affected by flight disruptions. In 2022, after an
unacceptable level of flight delays and cancellations, the Department
carefully reviewed these plans to determine how U.S. airlines were
caring for their passengers and found that the airlines' commitments in
these plans did not guarantee adequate services even for flight delays
and cancellations within the airline's control. However, after a two-
year DOT push to improve the passenger experience, today, almost all of
the largest U.S. airlines voluntarily commit in their customer service
plan to provide services such as meals, lodging, and free rebooking to
passengers impacted by cancellations and lengthy delays when airlines
are responsible.\1\ While the Department had also urged U.S. airlines
to voluntarily commit to compensating passengers experiencing
significant flight disruptions due to circumstances within the
airline's control, no U.S. airline currently guarantees cash
compensation, and only three airlines guarantee compensation in credits
or frequent flyer miles for airline-caused delays and cancellations.
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\1\ All ten of the largest U.S. airlines guarantee meals and
rebooking without charge on the ticketed airline, and nine of the 10
guarantee hotel accommodation and ground transportation to and from
the hotel for passengers affected by controllable overnight delays
and cancellations. Six of the 10 guarantee fee-free rebooking on a
partner airline or another airline with which it has an agreement
for controllable cancellations and five do so for lengthy,
controllable delays. See https://www.transportation.gov/airconsumer/airline-customer-service-dashboard.
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The ability of airlines to choose the services that they provide to
mitigate passenger inconveniences resulting from flight disruptions
under current U.S. law contrasts with consumer protection regimes in
other jurisdiction like the European Union (EU) and Canada, where
airlines are required to provide compensation and assistance to
consumers affected by flight disruptions. In the EU, airlines must
provide compensation to consumers facing cancellations or lengthy
delays unless the airline proves that the cancellation or delay is
``caused by extraordinary circumstances which could not have been
avoided even if all reasonable measures had been taken.'' \2\ Under
that regime, airlines must also provide services, including meals,
hotels, and ground transportation to and from the hotel (for overnight
cancellations and delays) to passengers facing lengthy delays or
cancellations and rebooking to passengers whose flights are cancelled,
regardless of the cause of the delay or cancellation and whether it is
unavoidable by the airline.\3\ United Kingdom regulations impose
similar requirements and also use the ``extraordinary circumstances''
construct for compensation, with compensation amounts established in
pounds.\4\ Current Canadian Air Passenger Protection Regulations
(APPRs) require airlines to provide compensation for lengthy delays and
cancellations that are controllable by the airline and not required for
safety purposes and to provide services, including meals, overnight
accommodations, and ground transportation to and from the hotel (for
overnight cancellations and delays), to passengers for lengthy delays
and cancellations that are controllable by the airline, regardless of
whether the controllable delay or cancellation is required for
safety.\5\ Brazilian regulations also contain similar protections for
air passengers, including a right to compensation, meals, and hotel
accommodations for cancellations and lengthy flight delays.\6\
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\2\ See EC No 261/2004, Article 5; see also Joined Cases C-402/
07 and C-432/07, Sturgeon v. Air France, 2009 E.C.R. I-10923, ] 69
(applying EU compensation requirements to delays of three hours or
more).
\3\ See EC No 261/2004, Articles 5.1, 6.1, 8.1; see also
European Commission Notice: Interpretative Guidelines on Regulation
(EC) No 261/2004 of the European Parliament and of the Council
Establishing Common Rules on Compensation and Assistance to
Passengers in the Event of Denied Boarding and of Cancellation or
Long Delay of Flights and on Council Regulation (EC) No 2027/97 on
Air Carrier Liability in the Event of Accidents as Amended by
Regulation (EC) No 889/2002 of the European Parliament and of the
Council (``EU Interpretive Guidelines'') (June 15, 2016) at C 214/13
(``According to the Regulation, the air carrier is obliged to fulfil
the obligation of care even when the cancellation of a flight is
caused by extraordinary circumstances, that is to say circumstances
which could not have been avoided even if all reasonable measures
had been taken''), available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016XC0615(01).
\4\ See https://www.caa.co.uk/passengers/resolving-travel-problems/delays-and-cancellations/delays/ and https://www.caa.co.uk/passengers/resolving-travel-problems/delays-and-cancellations/cancellations/.
\5\ APPRs, ]] 12, 19. Under the Canadian Regulations, airlines
must also provide rebooking for cancellations and lengthy delays
that are either within or outside the airline's control. See APPRs,
]] 17, 18. As discussed later in this ANPRM, the Canadian
Transportation Agency has initiated a consultation to revise the
APPRs.
\6\ See ANAC Resolution No. 400 (Dec. 13, 2016).
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In developing this ANPRM, Department staff met with individuals
from the Canadian Transportation Agency (CTA) on June 1, 2023, and the
European Commission (EC) on June 12, 2023, to better understand the
requirements under those existing regulatory regimes. On July 19, 2023,
at the request of the International Air Transport Association (IATA)
and Airlines for America (A4A), Department staff met with
representatives of those groups to hear their perspective on
compensation and assistance to passengers in the event of flight delays
and cancellations. On May 10, 2024, at the request of AirHelp,
Department staff met with representatives from that organization about
its experience filing claims on behalf of passengers with airlines
covered by compensation requirements in foreign jurisdictions,
including the EU. On September 10, 2024, Department staff attended a
panel discussion moderated by the National Consumers League, supported
by a grant from AirHelp, and featuring speakers from the Travel
Technology Association, U.S. Public Interest Research Group, the White
House, and AirHelp, at which those groups discussed this contemplated
rulemaking. Senator Edward Markey also gave remarks at that event. All
documents submitted to the Department pertaining to these meetings and
a summary of the panel discussion have been added to the rulemaking
docket.\7\
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\7\ Docket available at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
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B. Need for Rulemaking
(1) Data Indicates Controllable Cancellations and Lengthy Flight Delays
Affect Millions of Passengers
Cancellations and lengthy flight delays pose significant
inconvenience,
[[Page 99762]]
stress, and financial cost to impacted passengers. Such delays and
cancellations cause passengers to lose time, may disrupt other
reservations (such as hotel reservations), and may cause passengers to
miss important events.\8\ Flight cancellations, delays, and missed
connections occurred in significant numbers as airlines adjusted their
operations to meet the post-COVID pandemic air travel demand and have
been the subject of a large number of the complaints about airlines
that consumers have submitted to the Department since then.\9\
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\8\ See Airline Passenger Protections: Observations on Flight
Delays and Cancellations, and DOT's Efforts to Address Them, GAO-23-
105524 (``2023 GAO Report''), at 22 (Apr. 2023), available at
https://www.gao.gov/assets/gao-23-105524.pdf.
\9\ Of the 49,958 air travel service complaints that the
Department received in calendar year 2021, 13 percent concerned
flight problems. See https://www.transportation.gov/individuals/aviation-consumer-protection/february-2022-air-travel-consumer-report. Of the 77,656 air travel service complaints that the
Department received in calendar year 2022, 32 percent concerned
flight problems. See https://www.transportation.gov/resources/individuals/aviation-consumer-protection/february-2023-air-travel-consumer-report. While the Department does not have complaint data
available for calendar year 2023 because of revisions in how it
processes consumer complaints for efficiency, it estimates that it
received 88,136 complaints based on receiving 96,853 submissions
that year and complaints making up an average of 91 percent of
submissions over the past three years. See https://www.transportation.gov/resources/individuals/aviation-consumer-protection/june-december-2023-and-2023-annual-consumer. The
percentage of complaints that concern flight problems in calendar
year 2023 is not known.
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According to flight performance data reported by the largest U.S.
carriers to the Department's Bureau of Transportation Statistics (BTS),
in calendar year 2022, the carriers combined cancelled 190,038 domestic
scheduled passenger flights (approximately 2.7 percent of their total
domestic scheduled passenger flights), and over 1.4 million of their
domestic scheduled passenger flights (more than 20 percent of their
total domestic scheduled passenger flights) were delayed in arriving by
15 minutes or more.\10\ Of the more than1.4 million delayed flights,
85,892 (approximately 6.1 percent) were delayed three hours or
more.\11\
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\10\ Bureau of Transportation Statistics, On-Time Performance,
Marketing Carrier Flight Delays and Cancellations 2022 and 2023,
available at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
\11\ Id.
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In calendar year 2023, these carriers combined cancelled 93,897
domestic scheduled passenger flights (approximately 1.3 percent of
their total domestic scheduled passenger flights).\12\ Further, more
than 1.4 million of the carriers' domestic scheduled passenger flights
(approximately 20 percent of their total domestic scheduled passenger
flights) were delayed 15 minutes or more that year.\13\ Of the more
than 1.4 million delayed flights, 95,024 of them were delayed three
hours or more, which was approximately 6.8 percent of total flights
delayed that year.\14\
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\12\ Id.
\13\ Id.
\14\ Id.
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A significant percentage of the domestic cancellations that air
carriers reported to BTS in 2022 and 2023 were reported as ``air
carrier''-caused and most of the domestic delays of three hours or more
that air carriers reported to BTS listed ``air carrier'' as a cause of
the delay. Carriers reported to BTS that 38 percent of their domestic
scheduled passenger flight cancellations were ``air carrier''-caused in
calendar year 2022, and 28 percent of their domestic scheduled
passenger flight cancellations were ``air carrier''-caused in calendar
year 2023.\15\ For domestic scheduled passenger flight delays of three
hours or more, the carriers reported to BTS that 65 percent of those
delays included an ``air carrier'' cause of delay in 2022, and 62
percent included an ``air carrier'' cause of delay in 2023.\16\ These
delay percentages do not include additional delays that were reported
by carriers as caused by ``late arriving aircraft.'' Such delays are
not reported as ``air carrier''-caused even when the reason for the
``late arriving aircraft'' was within the carrier's control.
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\15\ Id.
\16\ Id.
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In April 2023, the U.S. Government Accountability Office (GAO)
published a report describing its examination of controllable
cancellations and delays following the initial disruption to air
transportation in 2020 due to the global COVID pandemic and documented
concerns with the gap in consumer protections available to passengers
facing cancellations and lengthy delays.\17\ GAO reviewed data from the
Department's BTS and concluded that as airlines recovered in 2021 and
2022 ``[s]ustained cancellation events, or a series of days where an
airline cancelled a large percentage of daily flights, lasted longer
and became more common as travel demand increased.'' \18\ GAO estimated
that flight cancellations from July 2021 through April 2022 potentially
affected over 15 million passengers, and flight delays during that time
period potentially affected over 116 million passengers.\19\ The 2023
GAO report also concluded that: ``[b]eyond DOT's requirement for
airlines to provide cash refunds to passengers for cancelled or
significantly changed flights, airline compensation to passengers is
generally limited. Airlines are not required to provide accommodations
for flight disruptions unless specified in an airline's contract of
carriage or customer service plan, although airlines may provide
additional accommodations in certain circumstances. As we have
previously reported, airline assistance to affected passengers can vary
significantly. Flight disruptions, particularly if they are long
lasting, can significantly inconvenience passengers.'' \20\
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\17\ 2023 GAO Report.
\18\ See id. at 13 (``In the last half of 2021, there were 6.3
percent more sustained cancellation events than during the same time
period in 2018, and 12.2 percent more than in 2019, despite 14
percent fewer scheduled flights compared to 2019. In the first 4
months of 2022, the number of sustained cancellation events
increased even more substantially, with 56.9 percent more events in
this time period compared to the same 4-month time period in 2018,
and 42.9 percent more than in the first 4 months of 2019. There were
12.6 percent fewer scheduled flights during the relevant 2022 time
period as compared to the same time period in 2019.'').
\19\ Id. at 17.
\20\ Id. at 9.
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The Department's Office of Aviation Consumer Protection
investigates large-scale and sustained disruptive events that impact
large numbers of passengers to ensure compliance with aviation consumer
protection requirements. At times, these investigations can also reveal
gaps in protections for aviation consumers, such as the importance for
consumers to know whether a cancellation or delay is considered
controllable and would entitle them to promised services and amenities.
For example, from late December 2022 through early January 2023,
Southwest Airlines cancelled 16,900 flights and stranded over two
million passengers, reporting most of the cancelled flights to BTS as
due to circumstances within the carrier's control.\21\ In July 2024,
following a global information technology (IT) systems issue, Delta Air
Lines cancelled more than 5,550 flights over a five-day period.\22\ The
[[Page 99763]]
Department immediately notified U.S. carriers that it considers the
flight disruptions resulting from the IT outage to be ``controllable''
since the issue is a computer outage of the carrier's equipment and
informed carriers that DOT expected the carriers to make good on the
commitments that they voluntarily made to customers affected by
controllable cancellations and delays. Notably, the Department saw a
significant uptick in consumer complaints following each of these
events, reflecting significant consumer harm, including financial harm
from these controllable cancellations and delays.
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\21\ In December 2023, the Department assessed a $140 million
civil penalty against Southwest Airlines for numerous violations of
consumer protection laws during and after its operational failures
between December 2022 through January 2023. The penalty was 30 times
larger than any previous DOT penalty for consumer protection
violations. The majority of the penalty will go towards compensating
future Southwest passengers affected by cancellations or significant
delays caused by the airline. See Southwest Airlines Co., DOT Order
No. 2023-12-11, Consent Order (Dec. 15, 2023).
\22\ Bureau of Transportation Statistics, Arrival Performance by
Carrier, July 19-24, 2024, available at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
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(2) Inconsistency in How Airlines Determine Controllable Cancellations
and Delays
The Department is exploring in this ANPRM how to determine which
delays and cancellations are controllable such that airlines are held
responsible for free rebooking, compensation, and payment for services
such as meals, lodging, or transportation to and from lodging.
Currently, when a flight disruption involves more than one cause,
airlines determine whether the event was or was not controllable in
different ways. For example, one airline might look at the first cause,
another the longest cause, and another may use yet a different method
to deem a multi-factor event controllable or not controllable,
potentially ignoring factors that were within their control that caused
or exacerbated consumer harm.
At the December 2021 meeting of the Department's Aviation Consumer
Protection Advisory Committee (ACPAC), presentations by a
representative of the Arizona Attorney General's Office (AAG) and
representatives of A4A, among others, addressed the causes of
cancellation and delay when weather is involved. The AAG representative
explained that airlines have incentive to blame delays on weather
because, when a delay is attributed to weather, the airline would not
have to provide vouchers, meals, or hotels, and other amenities, if
guaranteed in its customer service plan or contract of carriage for
controllable events, and air travelers likely are more understanding
about weather delays than delays due to mismanagement or short
staffing. Also at that meeting, representatives of A4A explained that a
weather event can affect multiple areas of airline planning in a scope
and scale unique to each circumstance, including scheduling, flight
planning, crew planning, aircraft routing, maintenance planning, gate
sequencing, and aircraft and passenger support. One A4A representative
stated that FAA data indicates that 70 percent of all air traffic
delays are caused by weather, which in the representative's view
explains why airlines often described weather as the root cause of a
delay. The representative asserted that there is no clear demarcation
of when a weather event stops being the original or primary factor for
a delay associated with a flight or sequence of flights. An additional
A4A representative added that some airlines' contracts of carriage, to
the extent they provide for amenities for flight irregularities,
exclude delays or cancellations where the cause is outside the
airline's control, such as weather. He said that if weather is the
original or primary factor, an airline's contractual obligation to
provide amenities may not apply based on the wording of the contract of
carriage.
Section 512 of the FAA Reauthorization Act of 2024 (2024 FAA Act)
requires the Department to direct certain air carriers ``to establish
policies regarding reimbursement for lodging, transportation between
such lodging and the airport, and meal costs incurred due to a flight
cancellation or significant delay directly attributable to the air
carrier.'' The statute does not further describe what ``directly
attributable'' to the air carrier means, including when multiple causal
factors are involved in a flight disruption. A regulation would be
necessary to require air carriers to establish policies under section
512. The regulation could also clarify which cancellations and delays
are directly attributable to a carrier.
(3) Challenges Remain for Passengers Seeking Rebooking, Compensation,
Notifications, and Services Such as Meals, Lodging, and Transportation
to and From Lodging
As previously discussed, current Department regulations do not
require an airline to provide compensation, services, notifications of
services due, or reimbursements to passengers impacted by cancellations
and lengthy delays that are within its control unless the airline
voluntarily commits to do so. Many airlines, including foreign
airlines, have not made voluntary guarantees in their customer service
plans to provide needed services and compensation to their customers
affected by controllable cancellations or delays. In addition, airlines
that have made enforceable commitments to their customers for
controllable flight cancellations and lengthy controllable delays,
including those reflected on the Department's Airline Customer Service
Dashboard,\23\ can remove these commitments from their customer service
plan at any time. Further, the competition encouraged by the Dashboard
has not resulted in any U.S. airline committing to provide cash
compensation to passengers for controllable flight cancellations and
lengthy controllable flight delays. Also, while many U.S. airlines have
committed to providing free rebooking on partner airlines, meals,
hotels for passengers affected by overnight cancellations or delays,
and transportation to and from the hotel, not all U.S. airlines have,
demonstrating a potential need for protections in this area.
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\23\ See https://www.transportation.gov/airconsumer/airline-customer-service-dashboard.
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In addition, on May 16, 2024, the President signed the 2024 FAA Act
into law.\24\ Section 512 of the 2024 FAA Act requires the Department
to ``direct all air carriers providing scheduled passenger interstate
or intrastate air transportation to establish policies regarding
reimbursement for lodging, transportation between such lodging and the
airport, and meal costs incurred due to a flight cancellation or
significant delay directly attributable to the air carrier.'' Before
the 2024 FAA Act was passed by Congress, the Executive Office of the
President released a Statement of Administration Policy explaining that
the Act ``include[d] key consumer protection provisions on airline
reimbursement for incurred costs due to controllable disruptions . . .
that would set a floor that the Department of Transportation could
build on as deemed appropriate by the Secretary of Transportation.''
\25\
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\24\ Public Law 118-63.
\25\ See Statement of Administration Policy, Senate Substitute
Amendment to H.R. 3935--FAA Reauthorization Act of 2024 (May 8,
2024), available at https://www.whitehouse.gov/wp-content/uploads/2024/05/SAP-SSA-HR3935.pdf.
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This ANPRM requests public comment to assist the Department in its
consideration of what regulations may be needed to implement the
requirements of section 512 of the 2024 FAA Act, ensure that airlines
do not engage in unfair or deceptive practices or unfair methods of
competition by establishing minimum requirements for when and how
airlines must compensate passengers and make relevant reimbursements
and services available to them, ensure that these protections are not
subject to removal at an airline's discretion, and ensure passengers
are protected from financial loss whether scheduled to be on a domestic
or international flight that is cancelled or significantly delayed due
to
[[Page 99764]]
circumstances within an airline's control.
The Department is also issuing this ANPRM to assist its
consideration of what regulations may be needed to ensure that
passengers receive timely notifications of available compensation,
rebooking, and services such as meals, lodging, and transportation to
and from lodging. Some airlines currently condition service guarantees
in their customer service plans on affirmative requests by consumers
for those services.\26\ Many passengers may not know the intricacies of
airlines' customer service plan guarantees, and, even when passengers
are aware of an airline's commitments, they may not know that a
particular cancellation or delay is within the airline's control and so
a service is owed.
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\26\ See, e.g., American Airlines Customer Service Plan (updated
July 19, 2024), available at https://www.aa.com/i18n/customer-service/support/customer-service-plan.jsp, and Southwest Airlines
Customer Service Plan (revised April 23, 2024), available at https://www.southwest.com/assets/pdfs/corporate-commitments/customer-service-plan.pdf?clk=7396032 (guaranteeing meals and hotel
accommodations ``upon request'' by the passenger).
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The Department's ACPAC recently considered the quality and quantity
of information on the causes of air carrier delays and cancellations
provided to passengers adversely affected by an airline cancellation or
delay, focusing on whether it is an unfair or deceptive practice for an
air carrier to inform a passenger that a flight is delayed or cancelled
due to weather alone when other factors are involved. At the December
2021 ACPAC meeting, a representative of the AAG and representatives of
A4A, among others, presented to the ACPAC on the topic. The AAG stated
that consumers need accurate information about the reasons for a delay
so that they can exercise their rights and make an informed decision
about their options at the time and whether to use that airline in the
future. Also at that meeting, an A4A representative stated that he did
not find withholding information on cause of delay meets the
Department's test for unfair or deceptive practices in air
transportation. The representative stated that the Department's
regulation that requires airlines to provide passengers flight status
notification in the event of a known delay, cancellation, or diversion,
14 CFR 259.8, is sufficient to inform consumers of the material
information. The representative noted that the current regulation does
not require airlines to provide the cause of a flight disruption but
addresses material information, such as information that would assist
the passenger in deciding when to go to the airport or when to request
a refund or rebooking on another flight. The representative added that
some airlines' contracts of carriage, to the extent they provide for
amenities for flight irregularities, exclude delays or cancellations
where the cause is outside the airline's control, such as weather. He
said that if weather is the original or primary factor, an airline's
contractual obligation to provide amenities may not apply based on the
wording of the contract of carriage. The representative raised concern
should airlines be required to provide real-time detailed explanations
of all subsidiary factors contributing to the delay that was
fundamentally caused by weather, stating that airlines may be compelled
to publish unsubstantiated information that the airlines lacked
adequate time to confirm, which he believed would be a disservice to
consumers.
At the December 2022 ACPAC meeting, the ACPAC deliberated on the
topic of information provided to consumers adversely affected by
airline delays or cancellations. The ACPAC member representing
consumers asked that the ACPAC consider recommending that airlines
notify passengers when a service or amenity becomes available due to a
controllable delay or controllable cancellation. This member stated
that his proposal reflected concern that, without such notifications,
passengers would be required to understand an airline's customer
service plan or contract of carriage and affirmatively request
amenities from the airline. The member representing airlines opposed
the recommendation, noting that information about services and
amenities is available through the Department's Airline Customer
Service Dashboard, and expressed concern about whether an airline would
have contact information for the passenger to provide a notification
for tickets sold through ticket agents. The member representing
consumers responded that the Dashboard is useful to consumers, but some
may not know about the Dashboard and those who do would be unsure
whether the commitments apply to them because they would not know the
cause of the delay or cancellation. After discussion, the ACPAC adopted
a recommendation that the Department issue a regulation requiring
airlines to notify affected consumers of the availability of services
and amenities for controllable delays and cancellations, with the
member representing airlines voting against the recommendation.
(4) Harm to Consumers, Including Passengers With Disabilities, When
Free Rebooking Is Not Provided
In April 2024, the Department published a final rule, Refunds and
Other Consumer Protections, codifying and clarifying its longstanding
interpretation that, under 49 U.S.C. 41712, airlines must provide
refunds to passengers for flights that are cancelled or significantly
changed, regardless of whether the cancellation or change is within the
airline's control.\27\ In August 2024, the Department issued a second
final rule, Refunds and Other Consumer Protections (2024 FAA
Reauthorization) to implement the refund-related provisions of the 2024
FAA Act.\28\ These final rules (collectively ``Refund Rules'') provide,
among other things, that passengers are entitled to an automatic refund
if their flight is cancelled and they do not accept any alternatives
offered. The Refund Rules also provide that passengers are entitled to
an automatic refund if they decide not to travel on a changed itinerary
when the change results in a flight departing from the origination
airport three hours or more for domestic itineraries and six hours or
more for international itineraries earlier or later than the original
scheduled departure time, or results in the flight departing from a
different origination airport or arriving at a different destination
airport.\29\
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\27\ 89 FR 32760.
\28\ 89 FR 65534.
\29\ 14 CFR 260.2 (see definition of significantly delayed or
changed flight at paragraphs (1) and (2)), 260.6(a).
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In addition, under the Department's Refund Rules, an airline must
provide an automatic refund to an individual with a disability (and
others in that individual's reservation) upon notification that the
individual decides not to travel on a changed itinerary because: (1)
the individual with a disability is downgraded to a lower class of
service that results in one or more accessibility features needed by
the individual becoming unavailable, (2) the airline changes the
aircraft to a substitute aircraft on which one or more accessibility
features needed by the individual are unavailable, or (3) the airline
changes the flight to schedule the passenger to travel through one or
more connecting airports different from the original itinerary.\30\
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\30\ 14 CFR 260.6(b)(1) through (3).
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The Department's recent Refund Rules provide important new refund
protections for passengers who are negatively impacted by a change in
an airline itinerary. Those rules, however, do not require airlines to
accommodate
[[Page 99765]]
passengers by offering rebooking to meet the passenger's needs,
including the accessibility needs of passengers with disabilities. In
the rulemaking on Refunds and Other Consumer Protections, the Paralyzed
Veterans of America submitted a comment requesting the Department
require airlines to ``expeditiously locate and offer alternative
transportation that meets the specific needs of the passenger with a
disability,'' explaining that a ``refund is purposeless if the
passenger is stranded.''
The Department is using this ANPRM to assist in its assessment of
whether it should require airlines to provide rebooking without charge
to a passenger when the airline makes a significant change to the
passenger's itinerary. This includes an assessment of whether an
airline should be required to provide rebooking without charge to a
passenger with a disability, and others in the same travel party, when
the carrier makes changes that result in the unavailability of an
accessibility feature needed by the passenger with a disability or when
the carrier makes other significant changes to the itinerary of an
individual with a disability, like a change in the origination or
destination airport or cancels a flight.
C. Statutory Authority
The Department's rulemaking would be based on several statutory
authorities.
(1) Unfair and Deceptive Practices and Unfair Methods of Competition
Section 41712 of title 49 of the U.S. Code authorizes the
Department to prohibit unfair and deceptive practices and unfair
methods of competition by air carriers, foreign air carriers, and
ticket agents in air transportation and the sale of air transportation.
The Department's rule at 14 CFR 399.79 outlines its policies related to
unfair and deceptive practices and defines the terms ``unfair'' and
``deceptive.'' A practice is ``unfair'' to consumers if it causes or is
likely to cause substantial injury, which is not reasonably avoidable,
and the harm is not outweighed by benefits to consumers or
competition.\31\ A practice is ``deceptive'' to consumers if it is
likely to mislead a consumer, acting reasonably under the
circumstances, with respect to a material matter.\32\ A matter is
material if it is likely to have affected the consumer's conduct or
decision with respect to a product or service.\33\ Proof of intent is
not necessary to establish unfairness or deception.\34\ The Department
elaborated further on the elements of ``unfair'' and ``deceptive'' in a
2022 guidance document.\35\
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\31\ 14 CFR 399.79(b)(1).
\32\ 14 CFR 399.79(b)(2).
\33\ Id.
\34\ 14 CFR 399.79(c).
\35\ 87 FR 52677 (Aug. 28, 2022).
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The Department may address unfair and deceptive practices under 49
U.S.C. 41712 and 49 U.S.C. 40113(a), which authorizes the Secretary to
``take action the Secretary . . . considers necessary to carry out
[part A of chapter 49 of the U.S. Code, which contains section 41712],
including . . . prescribing regulations, standards, and procedures.''
The Department is exploring through this ANPRM whether requirements
for services such as rebooking, meals, lodging, and transportation to
and from lodging or reimbursements for those services, or compensation
are needed to prevent unfair and deceptive practices or unfair methods
of competition in the event of cancellations and lengthy delays that
are within the airline's control. The Department is also examining
whether notifications by airlines to passengers of available services,
reimbursements, and compensation when such services are due are
necessary to address unfair and deceptive practices. Additionally, the
Department is considering whether it may be an unfair or deceptive
practice for an airline to fail to provide free rebooking for
significant changes, including changes applicable to passengers with
disabilities and others in the same travel party when a change in class
of service or aircraft affects available accessibility features or a
change in airport occurs. Finally, the Department is weighing whether
any other unfair methods of competition should be addressed in this
rulemaking. If the Department decides to propose regulations declaring
a practice unfair or deceptive, then notice and an opportunity to
petition the Department for a hearing will be provided in accordance
with procedures found in 14 CFR 399.75.
(2) FAA Reauthorization Act of 2024
As described previously, section 512 of the 2024 FAA Act requires
the Department to ``direct all air carriers providing scheduled
passenger interstate or intrastate air transportation to establish
policies regarding reimbursement for lodging, transportation between
such lodging and the airport, and meal costs incurred due to a flight
cancellation or significant delay directly attributable to the air
carrier.'' This ANPRM explores how the Department should implement this
statutory requirement.
In addition, section 505 of the 2024 FAA Act requires that certain
air carriers must maintain, without charge and available at all times:
(1) a customer service telephone line staffed by live agents, (2) a
customer chat option that allows for customers to speak to a live agent
within a reasonable time, to the greatest extent practicable, or (3) a
monitored text messaging number that enables customers to communicate
and speak with a live agent directly. Section 505 authorizes DOT to
issue such rules as may be necessary to carry out the requirement and
provides that airlines must comply with section 505's requirements
``without regard to whether the Secretary has promulgated any rules to
carry out'' section 505. This ANPRM explores whether the Department
should propose provisions regarding the manner and timeliness of
airline customer service during flight disruptions, whether
controllable or not, under this statutory requirement.
(3) Safe and Adequate Interstate Air Transportation
This ANPRM also involves topics related to air carriers \36\ that
may involve the Secretary's authority under 49 U.S.C. 41702, which
states that ``[a]n air carrier shall provide safe and adequate
interstate air transportation.'' \37\ The Civil Aeronautics Board
(CAB), the predecessor to the Department, had the authority to ensure
that air carriers provide ``safe and adequate service, equipment and
facilities'' under section 404(a) of the Federal Aviation Act of 1958,
which was later codified in 49 U.S.C. 41702.\38\ The CAB relied on
section 404(a) to adopt a regulation that restricted smoking on flights
by dividing aircraft cabins into smoking and nonsmoking sections. The
CAB reasoned that its authority to require air carriers to provide
``adequate service'' under section 41702 includes ensuring
[[Page 99766]]
that the service does not cause passenger discomfort.\39\ The CAB's
regulation and interpretation of ``adequate service'' was later
challenged by a passenger, but the U.S. Court of Appeals for the Fifth
Circuit found that ``adequate service'' referred both to the number of
flights provided by an air carrier and the quality of service provided
to passengers.\40\
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\36\ Pursuant to 49 U.S.C. 40102(a)(2), an ``air carrier'' means
a citizen of the United States undertaking by any means, directly or
indirectly, to provide air transportation.
\37\ Pursuant to 49 U.S.C. 40102(a)(25) ``interstate air
transportation'' means the transportation of passengers or property
by aircraft as a common carrier for compensation, or the
transportation of mail by aircraft--(A) between a place in--(i) a
State, territory, or possession of the United States and a place in
the District of Columbia or another State, territory, or possession
of the United States; (ii) Hawaii and another place in Hawaii
through the airspace over a place outside Hawaii; (iii) the District
of Columbia and another place in the District of Columbia; or (iv) a
territory or possession of the United States and another place in
the same territory or possession; and (B) when any part of the
transportation is by aircraft.
\38\ Codification was effectuated in Public Law 103-272 (enacted
July 5, 1994).
\39\ ``[T]he extent and depth of passenger discomfort and
annoyance from unsegregated and unregulated smoking on aircraft
compels the conclusion that service which does not provide for the
effective separation of smokers constitutes neither adequate service
nor reasonable practice and cannot be permitted under the act.'' 38
FR 12209 (May 10, 1973).
\40\ See Diefenthal v. Civil Aeronautics Bd., 681 F.2d 1039 (5th
Cir. 1982) (adequate service can refer both to the number of flights
scheduled as well as the quality of service provided).
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More recently, the Department relied on its authority to provide
safe and adequate interstate transportation in section 41702 in its
2016 final rule prohibiting the use of e-cigarettes on-board
aircraft.\41\ In that final rule, the Department reasoned that it had
the authority to rely on the ``adequate'' prong in section 41702 to ban
the use of e-cigarettes. The Department argued that discomfort from e-
cigarettes was like the discomfort described by the CAB when it chose
to restrict smoking on aircraft in 1973.\42\
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\41\ 81 FR 11415 (Mar. 4, 2016).
\42\ Id. at 11421.
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Through this ANPRM, the Department is exploring whether providing
rebooking, meals, lodging, and transportation to and from lodging
during flight disruptions is necessary to ensure that passengers are
provided with adequate interstate transportation. In addition, the
Department is exploring whether an airline is failing to provide
adequate interstate air transportation when it doesn't offer and, if
accepted, provide free rebooking to passengers when there is a
significant change to the flight itinerary, including to passengers
with disabilities and others in the same travel party when a change in
airport, class of service, or aircraft affects available accessibility
features.
(4) Air Carrier Access Act
The Department's questions in this ANPRM about rebooking for
passengers with disabilities, and individuals in the same travel party,
relate to the Department's authority under the Air Carrier Access Act
(ACAA), in addition to the other authorities previously discussed.\43\
The ACAA prohibits discrimination in airline service because of
disability by U.S. and foreign air carriers. When it enacted the ACAA,
Congress directed the Department ``to promulgate regulations to ensure
non-discriminatory treatment of qualified handicapped individuals
consistent with safe carriage of all passengers on air carriers.'' \44\
The Department responded by issuing a final rule that required carriers
to provide nondiscriminatory service to individuals with
disabilities.\45\ The Department is exploring in this ANPRM whether
imposing rebooking requirements on airlines is necessary to ensure
individuals with disabilities are not denied reasonable access to air
transportation when a change in class of service or aircraft affects
available accessibility features or when a change in airport occurs.
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\43\ 49 U.S.C. 41705.
\44\ Public Law 99-435, sec. 3, 100 Stat. 1080, 1080 (1986).
\45\ 55 FR 8008 (Mar. 6, 1990).
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(5) Reporting and Recordkeeping
The Department is considering whether to impose any reporting
requirements under 49 U.S.C. 41708 or recordkeeping requirements under
49 U.S.C. 41709. Among other things, section 41708(b) authorizes the
Secretary to require U.S. and foreign air carriers to file annual,
monthly, periodical, and special reports in the form and way prescribed
by the Secretary and to provide specific answers to questions on which
the Secretary considers information to be necessary. Section 41709
authorizes the Secretary to prescribe the form of records to be kept by
an air carrier.
(6) Other Authorities
In carrying out aviation economic programs, the Department is
required to consider the factors identified in 49 U.S.C. 40101 as being
in the public interest and consistent with public convenience and
necessity. Among other things, under 49 U.S.C. 40101(a)(4), the
Department is required to consider the availability of a variety of
adequate, economic, efficient, and low-priced services without
unreasonable discrimination or unfair or deceptive practices as being
in the public interest. Under section 40101(a)(9), it is also in the
public interest to prevent unfair, deceptive, predatory, or
anticompetitive practices in air transportation. The Department is also
required by section 40101(a)(12) to consider as being in the public
interest encouraging, developing, and maintaining an air transportation
system relying on actual and potential competition to provide
efficiency, innovation, and low prices.
D. Request for Data, Analysis, Views, Recommendations, and Other
Comments
(1) Scope
(a) Covered Entities
Which carriers should be covered if DOT were to issue a rule
requiring compensation, services such as meals or lodging, or
reimbursements for such services when there are controllable
cancellations and lengthy, controllable delays? As its primary option,
the Department is considering covering certificated carriers, commuter
carriers, and foreign air carriers operating to, from, or within the
United States, conducting scheduled passenger service with at least one
aircraft having a designed seating capacity of 30 or more seats. This
would ensure the requirements would apply to substantially all
scheduled passenger air traffic to, from, or within the United
States.\46\ This coverage would be consistent with the carriers
currently required to have a customer service plan under 14 CFR 259.5,
which addresses the services airlines voluntarily commit to provide
their passengers to mitigate passenger inconveniences resulting from
flight cancellations or misconnections.\47\
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\46\ The largest 15 U.S. air carriers accounted for more than 95
percent of domestic scheduled passenger air transportation in 2023.
Bureau of Transportation Statistics, Transtats, T-100 Market Data,
available at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
Each of these airlines operate an aircraft of 30 or more seats.
Bureau of Transportation Statistics, Part 241 Financial Data, Form
B-43, available at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
\47\ See 14 CFR 259.5(b)(14).
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Alternatively, should the Department exclude from coverage carriers
that exclusively provide air transportation with aircraft of a designed
seating capacity of 60 seats or less and who are considered small
businesses for purposes of the Regulatory Flexibility Act? \48\ Or
should any requirements cover all certificated air carriers, commuter
air carriers, and foreign air carriers, regardless of size? Rather than
excluding only the smallest carriers entirely, should the Department
impose less stringent requirements on U.S. carriers who comprise less
than 10 percent of the domestic scheduled passenger revenue \49\ or
foreign air
[[Page 99767]]
carriers who have fewer than two million total enplanements to and from
the United States? \50\ That approach would be like current Canadian
regulations discussed further in the following sections, which impose
requirements for flight cancellations and delays, and have modified
rebooking and compensation requirements for small carriers based on the
number of passengers transported.\51\ What, if any, other approaches
should the Department consider when determining airline coverage
requirements?
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\48\ Under the Regulatory Flexibility Act carriers that
exclusively provide air transportation with aircraft originally
designed to have a maximum passenger capacity of 60 seats or less or
a maximum payload capacity of 18,000 pounds or less are small
entities. See 14 CFR 399.73.
\49\ Four U.S. carriers, American Airlines, Delta Air Lines,
United Airlines, and Southwest Airlines, comprised 10 percent or
more of domestic scheduled passenger revenue in 2023, all with over
15 percent. No other carrier comprised more than six percent of
domestic scheduled passenger revenue. See docket at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
\50\ Eighteen foreign carriers exceeded two million total
enplanements to and from the United States in 2023. See id.
\51\ Air Passenger Protection Regulations, SOR/2019-150, ]] 17,
19. Canadian regulations define small carrier to mean any carrier
that has not transported a worldwide total of two million passengers
or more during each of the two preceding calendar years. Id. ] 2.
The CTA has initiated a consultation to amend its regulations,
including improving the rebooking obligations for passengers of
small airlines but proposed to continue to apply reduced
compensation requirements and less stringent rebooking obligations
to small carriers. See Consultation Paper: Proposed Changes to
Clarify, Simplify and Strengthen the Air Passenger Protection
Regulations at 10, available at https://otc-cta.gc.ca/sites/default/files/consultation_paper_-_july_2023.pdf.
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The Department also seeks information about whether it may be
necessary and appropriate to impose any requirements on ticket agents
or indirect air carriers. For example, should the Department require
ticket agents or indirect air carriers to notify consumers of available
services, reimbursements, or compensation provided by airlines for
controllable delays or cancellations or refund the fare to consumers if
the ticket agent or indirect air carrier is the merchant of record and
the passenger elects to return to his or her origination point after
the passenger is delayed at a connecting airport?
(b) Covered Flights
To which flights should any requirements apply? The Department is
considering as its primary option applying any requirements to flight
itineraries to, from, or within the United States, including
itineraries with brief and incidental stopover(s) at a foreign point
without a break in the journey.
The Department is considering defining break in journey consistent
with the Department's recently issued Refund Rules.\52\ Under those
rules, a ``break in journey'' is any deliberate interruption by a
passenger of a journey between a point in the United States and a point
in a foreign country where there is a stopover at a foreign point that
is scheduled to exceed 24 hours. If the stopover at a foreign point is
24 hours or less, those rules specify that whether the stop is a break
in journey would depend on various factors, such as whether the segment
between two foreign points and the segment between a foreign point and
the United States were purchased in a single transaction and as a
single ticket/itinerary, whether the segment between two foreign points
is operated or marketed by a carrier that has no codeshare or interline
agreement with the carrier operating or marketing the segment to or
from the United States, and whether the stopover at a foreign point
involves the passenger picking up checked baggage, leaving the airport,
and continuing the next segment after a substantial amount of time.
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\52\ See 89 FR 32833.
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Should the Department impose requirements on airlines to provide
services and compensation to consumers experiencing significant flight
disruptions to, from, or within the United States? If so, should those
requirements apply to itineraries with brief and incidental stopover(s)
at a foreign point without a break in the journey like the Refund
Rules? Under that approach, delays or cancellations to flight segments
not initiated by the passenger, whether controllable by the airline or
not, would not result in a break in journey as only deliberate
interruptions by the passenger would constitute a break in journey. The
Department solicits comment on whether there is any reason not to cover
brief stopovers at a foreign point without a break in the journey. The
Department also asks whether there are flight segments or itineraries
involving a point in the United States that should be excluded from
coverage for any areas being contemplated by this rulemaking. If so,
why? Alternatively, should the Department consider establishing a
bright line rule on coverage of flights with a break in journey of less
than 24 hours rather than relying on a multi-factor test if airlines
would be required to promptly offer to provide rebooking and
reimbursements? If so, why?
(c) Multiple Entities Involved
Which carrier should bear responsibility for providing compensation
or services such as meals or hotels if required during a controllable
cancellation or delay when one carrier ``sold'' the airline ticket
(i.e., the merchant of record for the ticket transaction),\53\ but the
flight is operated by a different carrier? What if the merchant of
record is a ticket agent? Which option would be the easiest and
clearest for the consumer? Based on comments provided by the American
Society of Travel Advisors in the Department's Refund Rule, it is the
Department's understanding that the ticket agent's name appears as the
merchant of record in five to eight percent of all airline ticket
transactions by credit cards facilitated by ticket agents, the majority
of which involve group bookings, air-inclusive tour packages, or resale
of consolidated fares.\54\
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\53\ A merchant of record means the entity responsible for
processing payments for the airfare, as shown in the consumer's
financial charge statements such as debit or credit card charge
statements.
\54\ See comment at 4, available at https://www.regulations.gov/comment/DOT-OST-2022-0089-5192.
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Should the Department consider requiring the merchants of record to
be responsible for providing compensation for controllable delays and
cancellations? How would the Department account for situations where
the merchant of record is a ticket agent with no control on whether a
flight is delayed or canceled? The Department requires merchants of
record to be responsible for providing required refunds for airline
ticket transactions because they have direct visibility of the
passengers' payment instruments information and the total amounts paid
for the itineraries. Does that rationale apply to compensation?
One option under consideration is for the operating carrier to be
responsible for compliance. Would holding the operating carrier
responsible ensure that the carrier that is making the operational
decisions that affect the flight's performance is accountable? Are
there reasons the ``marketing carrier'' should be responsible? For
example, do ``marketing carriers'' often make planning decisions such
as which flights are cancelled? Should responsibility be tied to
consumer perception of which carrier is in control? Do consumers
associate branded codeshare partners and their marketing partners, for
example SkyWest operating as United Express, or Jazz Aviation operating
as Air Canada Express, as the same carrier? If the operating carrier
were responsible, should the operating carrier be allowed to rely on
their marketing codeshare partner to issue compensation to consumers or
assist in providing services such as meals or hotels to consumers on
their behalf? The
[[Page 99768]]
Department notes that the assignment of responsibility to the operating
carrier would be consistent with carrier responsibility for providing
compensation and services under the EU and Canadian regulations.\55\
Please provide any relevant information regarding the EU or Canadian
regulations that the Department should consider.
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\55\ See EC No 261/2004, Article 3.5; APPRs ] 2; see also
Canadian Transportation Agency, Application of the Air Passenger
Protection Regulations: A Guide at 7, available at https://otc-cta.gc.ca/sites/default/files/application_of_the_air_passenger_protection_regulations_a_guide.pdf.
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Should the Department consider assigning responsibility
differently, such as by assigning joint responsibility to carriers with
certain arrangements? If so, under what carrier arrangements would
joint responsibility be appropriate for domestic or foreign air
carriers, and what would be the appropriate terminology to describe the
relationship for which joint responsibility would apply (e.g., fee-for-
service arrangements, branded codeshare partnerships, or another
terminology)? Should carrier responsibility vary depending on the
service, reimbursement, or compensation owed? For example, should the
operating carrier be responsible for providing any rebooking, while the
marketing carrier bears responsibility for compensation and
reimbursements, which the carrier could have more time to provide?
Should the Department require joint and several liability in some or
all circumstances? Should any special considerations apply to the
assignment of responsibility for multi-carrier itineraries? Should the
final airline in a multi-carrier itinerary be responsible for any
compensation requirements, similar to how airlines have generally
handled responsibility for mishandled baggage traveling on multi-
carrier itineraries?
(2) Definition of Controllable
The Department is considering defining ``controllable''
cancellations or delays to be those due in whole or in part to any
circumstance within the control of the airline. Under this approach,
the requirements of any rule would apply if a delay or cancellation
involves any factors or event within the control of the airline,
including its operating partner, and their employees, subcontractors,
or other persons working on their behalf. This approach is being
considered to create a standard that can be applied consistently across
carriers. It could also address concerns that were noted by a State AG
office at the December 2021 ACPAC public meeting that airlines may
choose to attribute a delay to weather when the delay is also directly
attributable to an airline. This approach is also consistent with the
requirements of section 512 of the 2024 FAA Act, which instructs the
Department to direct air carriers to establish policies for
reimbursements for costs of meals, lodging, and transportation to and
from that lodging that are due to flight cancellations and significant
delays directly attributable to the air carrier.
The Department seeks comment on whether this approach for
consideration is the most appropriate or whether it should adopt any
alternatives. How should the Department treat cancellations or delays
with multiple causes, including when some airline cause is involved?
The Department's Bureau of Transportation Statistics (BTS), which
requires U.S. carriers that account for at least 0.5 percent of the
domestic scheduled-passenger revenues to report monthly on the causes
of delayed and cancelled flights, allows multiple causes to be reported
for delays but requires one cause to be reported for a
cancellation.\56\ Generally, airlines report on the predominant cause
of a cancellation when there are multiple causes for a cancellation. As
such, instead of treating a delay or cancellation as controllable if
any cause is within the airline's control, should the Department treat
a delay or cancellation as controllable only if the predominant cause
of the delay or cancellation is within the airline's control? If so,
how should the Department define predominant cause? What effect, if
any, would each of those approaches likely have on airline performance?
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\56\ 14 CFR part 234.
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Also, BTS requires airlines to report on the causes of delayed
flights in five broad categories--air carrier, extreme weather,
National Aviation System, security, and late arriving aircraft.\57\
Airlines may use the reporting category of ``late arriving aircraft''
even if the cause of the late arriving aircraft was due to a
circumstance within control of the air carrier. How should the
Department treat a delay caused by a late arriving aircraft for the
purposes of determining which delays are controllable under any rule?
Should the Department consider the root cause of any late arriving
aircraft for the purposes of determining whether a delay resulting from
an aircraft arriving late is controllable? Flight disruptions occurring
early in the day can disrupt multiple flights using the same aircraft
downline. If attributing the root cause of a late arriving aircraft is
appropriate, should there be a cut-off point at which a root cause
should not be considered for down-line delays? ``Late arriving
aircraft'' is not available as a causal category to airlines when
reporting causes for cancellations to BTS.\58\ U.S. carriers are
required to report causes of cancellations to BTS in four broad
categories--air carrier, extreme weather, National Aviation System, and
security.\59\
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\57\ 14 CFR 234.4(i).
\58\ 14 CFR 234.4(h).
\59\ Id.
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The Department is of the tentative view that it would not be
sufficient to define controllable cancellations or delays without
providing examples of the delay and cancellation causes that it
believes are within the control of the carrier. It is considering
basing these examples on a non-exclusive list used by BTS as a guide
for the type of occurrences that should be reported as ``air carrier
delay or cancellation'' when U.S. carriers categorize delays and
cancellations of domestic scheduled passenger flights and report these
delays to BTS. This list is available in the latest comprehensive BTS
reporting directive discussing causal reporting dated December 12,
2018.\60\ The BTS reporting categories, which were first developed by
the Department in 2002 through notice-and-comment rulemaking, are
further explained in reporting directives issued by BTS.\61\
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\60\ BTS has clarified that the Department's list of air carrier
caused delays and cancellations developed under 14 CFR 234.4
``should not be considered a complete list.'' BTS Technical
Reporting Directive #31--On-Time Performance (Dec. 12, 2018) at 27,
available at https://www.bts.gov/sites/bts.dot.gov/files/docs/explore-topics-and-geography/topics/airlines-and-airports/224571/technical-directive-no-31-time-2019_1.pdf.
\61\ Reporting the Causes of Airline Delays and Cancellations,
67 FR 70535 (Nov. 25, 2002); see, e.g., BTS Technical Reporting
Directive #31--On-Time Performance (Dec. 12, 2018).
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Under the December 2018 BTS directive, the following events are
considered air carrier-caused, or in other words, due to circumstances
within air carrier control: aircraft cleaning, aircraft damage (except
bird strikes, lightening/hail damage), airport curfew, awaiting the
arrival of connecting passengers or crew, awaiting alcohol test,
awaiting gate space, baggage loading, cabin servicing, cargo loading,
catering, computer outages involving carrier equipment, crew legality
(pilot or attendant rest), damage by hazardous goods, engineering
inspection, public health, flight paperwork, fueling, gate congestion,
government forms not properly completed (INS, FAA, Agriculture),
[[Page 99769]]
ground equipment out of service, hot brakes restriction, last minute
passenger, late mail from post office, late crew, lavatory servicing,
maintenance, medical emergency, out of service aircraft, oversales,
positive passenger baggage match, passenger services, potable water
servicing, pre-flight check, ramp congestion (blocked by another
aircraft under carrier's control), ramp service, removal of unruly
passenger, revised weight sheet, shortage of ramp equipment, slow
boarding or seating, snow removal (when it is a carrier ramp service
function), stowing carry-on baggage, and weight and balance delays.\62\
While not currently listed in the BTS directive, the Department is also
considering clarifying that delays and cancellations caused by labor
strikes of airline personnel are controllable because the Department
believes airlines are best capable of addressing or mitigating such
delays and cancellations through effective labor management. The
Department invites comment on this issue.
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\62\ BTS Technical Reporting Directive #31--On-Time Performance
(Dec. 12, 2018) at 27-28.
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Section 511 of the 2024 FAA Act instructed BTS to revise its
regulation covering the ``air carrier'' category for the purposes of
airline reporting to BTS under 14 CFR 234.4. Section 511 further
provides a list of causes of delay that shall not be included in the
``air carrier'' reporting category in the revised BTS reporting
regulation: (1) aircraft cleaning necessitated by the death of a
passenger; (2) aircraft damage caused by extreme weather, foreign
object debris, or sabotage; (3) a baggage or cargo loading delay caused
by an outage of a bag system not controlled by a carrier or its
contractor; (4) cybersecurity attacks (provided that the air carrier is
in compliance with applicable cybersecurity regulations); (5) a
shutdown or system failure of government systems that directly affects
the ability of an air carrier to safely conduct flights and is
unexpected; (6) overheated brakes due to a safety incident resulting in
the use of emergency procedures; (7) unscheduled maintenance, including
in response to an airworthiness directive, manifesting outside a
scheduled maintenance program that cannot be deferred or must be
addressed before flight; (8) an emergency that required medical
attention through no fault of the carrier; (9) the removal of an unruly
passenger; and (10) an airport closure due to the presence of volcanic
ash, wind, or wind shear. The Department issued the rule addressing the
reportable causes of delay and cancellation in 14 CFR 234.4 under
different statutory authorities than those it relies upon in this
rulemaking, and the 2024 FAA Act does not require the Department to
incorporate those statutory exclusions from the ``air carrier''
reporting category described in section 511 in this rulemaking.\63\
Nevertheless, the Department welcomes comments on whether it should or
shouldn't consider the aforementioned causes of delay as airline-caused
for purposes of this rulemaking.
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\63\ The Department issued 14 CFR part 234 under 49 U.S.C. 329,
41708, and 41709.
---------------------------------------------------------------------------
The Department notes that the EU and Canada have requirements for
services and compensation in similar circumstances to those addressed
in this ANPRM. The EU currently requires compensation for cancellations
and delays of three hours or more, unless the airline proves that the
cancellation or delay is ``caused by extraordinary circumstances which
could not have been avoided even if all reasonable measures had been
taken.'' \64\ The term ``extraordinary circumstances'' has been
interpreted and narrowly construed in a series of decisions by the
Court of Justice of the European Union.\65\ In 2013, the European
Commission proposed to revise its regulation, EC 261, to provide a list
of causes that would be included and excluded from the definition of
``extraordinary circumstances,'' but that proposal was not
finalized.\66\
---------------------------------------------------------------------------
\64\ EC No 261/2004, Article 5.3; see also Joined Cases C-402/07
and C-432/07, Sturgeon v. Air France, 2009 E.C.R. I-10923, ] 69
(applying EU compensation requirements to delays of three hours or
more).
\65\ See EU Interpretive Guidelines at C 214/15-17 (summarizing
cases).
\66\ The 2013 EU proposal would have included the following non-
exhaustive list of extraordinary circumstances: natural disasters
rendering impossible the safe operation of the flight; technical
problems which are not inherent in the normal operation of the
aircraft, including hidden manufacturing defects revealed by the
manufacturer or a competent authority and which impinges on flight
safety; security risks, acts of sabotage or terrorism rendering
impossible the safe operation of the flight; life threatening health
risks or medical emergencies necessitating the interruption or
deviation of the flight concerned; air traffic management
restrictions or closure of airspace or an airport; meteorological
conditions incompatible with flight safety; and labor disputes at
the operating carrier or at essential service providers. See
Proposal for a Regulation of the European Parliament and of the
Council Amending Regulation (EC) No 261/2004 Establishing Common
Rules on Compensation and Assistance to Passengers in the Event of
Denied Boarding and of Cancellation or Long Delay of Flights and
Regulation (EC) No 2027/97 on Air Carrier Liability in Respect of
the Carriage of Passengers and Their Baggage by Air, COM(2013),
available at eur-lex.europa.eu/legal-content/EN/TXT/PDF/
?uri=CELEX:52013PC0130.
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The Canadian APPRs currently require airlines to provide
compensation for cancellations and delays of three hours or more that
are within the airline's control and not required for safety
purposes.\67\ In 2023, the Canadian Transportation Agency (CTA) began a
consultation to revise the APPRs. In its consultation paper, the CTA
proposed to eliminate the categories in the existing APPRs and to move
to a mode more similar to EC 261, requiring ``compensation for
inconvenience for all flight disruptions unless there are exceptional
circumstances.'' \68\ To fall within the proposed definition of
exceptional circumstances, the CTA consultation paper would require
that the event causing the disruption ``must have been outside the
airline's control, and not inherent to the normal exercise of the
activities of the airline,'' and that the ``event could not be avoided
even if the airline took all reasonable measures to do so.'' \69\ The
CTA consultation paper provided a proposed list of events that would
and would not constitute exceptional circumstances.\70\
---------------------------------------------------------------------------
\67\ APPRs, ] 19.
\68\ Canadian Transportation Agency, Consultation Paper:
Proposed Changes to Clarify, Simplify and Strengthen the Air
Passenger Protection Regulations at 6, available at https://otc-cta.gc.ca/sites/default/files/consultation_paper_-_july_2023.pdf.
\69\ Id.
\70\ Those circumstances considered exceptional would include:
security risks such as war, political instability, illegal acts,
sabotage, and terrorism; weather or other atmospheric conditions, or
natural disasters, that make it impossible to safely operate the
flight, airport operational issues for which the airline is not
responsible; hidden manufacturing defects that come to light and
affect flight safety; health risks or medical emergencies on route
that require a flight diversion or discovered shortly before flight
departure that make it impossible to safely operate the flight; air
traffic management restrictions, airspace closures, and airport
closures; an official NOTAM; orders or instructions from state, law
enforcement agency, or airport security officials; and labor
disruptions at the airline or by essential air service providers
like airport managers, air navigation personnel, or ground handlers.
Those circumstances not considered exceptional would include flight
crew or cabin crew unavailability; staff shortages at the airline;
technical problems that are an inherent part of normal airline
operations; any situation the airline knew about, or should have
known about, when it sold the ticket to the passenger; and any
action, or failure to act, by the airline or others with which the
airline has a contractual relationship. Id. at 7-8.
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The Department seeks comment on whether this approach under
consideration, which is to rely largely on the list of ``air carrier''
causes from the 2018 BTS directive, is the most appropriate approach
for the Department to use to determine whether a delay or cancellation
is controllable and asks for feedback on potential alternatives. Are
there benefits to using the currently applicable EU or Canadian
[[Page 99770]]
categories or any categories for assessing delays and cancellations
that those jurisdictions have proposed but not enacted? In addition to
the Department's requests for comment on specific EU and Canadian
requirements throughout this ANPRM, the Department also requests
comment on whether there are any additional elements of any current or
proposed EU or Canadian regulations covering controllable cancellations
and delays (including services and compensation available to passengers
during such delays) that the Department should adopt in any rule.
Should the Department consider any alternatives for defining
controllable? Should the Department consider applying requirements for
services when a delay or cancellation is not within the control of the
airline? For example, the Department is considering requiring airlines
to provide certain services, such as rebooking, meals, and hotels on
domestic flights, regardless of the reason for the flight disruption,
as failing to provide those services may not be ``adequate'' service
under 49 U.S.C. 41702. If so, what provisions should apply and why?
(3) Rebooking
(a) General Rebooking Provisions
Should the Department require airlines to offer rebooking, at no
additional cost, to a passenger whose trip is disrupted because of a
lengthy, controllable flight delay or cancellation and, if so, under
what circumstances should rebooking be required? One option the
Department is considering is requiring airlines to promptly offer
rebooking without charge on the next available flight to any passenger:
(1) whose flight is cancelled due to circumstances, in whole or in
part, attributable to the carrier; (2) whose flight is delayed due to
circumstances, in whole or in part, attributable to the carrier
resulting in the passenger missing a connection on a single ticket; and
(3) whose departure on a flight is significantly delayed (i.e., delayed
three hours or more for domestic flight or delayed six hours or more
for an international flight), in whole or in part, attributable to the
carrier.
This method is generally consistent with the commitments the
largest U.S. airlines have already made in their customer service plans
to provide rebooking at no additional cost in the event of a
controllable cancellation or a significant controllable delay as
reflected on the Department's Airline Customer Service Dashboard.\71\
However, unlike some customer service commitments that do not define
when a delay is significant, the Department is considering requiring
airlines to offer rebooking when the passenger's departure is delayed
three hours or more for domestic flights and six hours or more for
international flights due to a lengthy, controllable flight delay or
cancellation. Additionally, regardless of the length of delay if a
controllable delay results in a missed connection, the Department is
considering requiring airlines to offer rebooking on the next available
flight.
---------------------------------------------------------------------------
\71\ See https://www.transportation.gov/airconsumer/airline-customer-service-dashboard.
---------------------------------------------------------------------------
Under this approach, the rebooking offered to a passenger whose
departure on a flight is significantly delayed would be prompt and
without charge on the next available flight. The Department is
considering defining significant delay to be a delay of three hours or
more for domestic flight or a delay of six hours or more for an
international flight, in whole or in part, attributable to the carrier.
This is consistent with section 512 of the 2024 FAA Act, which requires
the Department to direct certain air carriers to establish policies
regarding reimbursements for the costs of meals, lodging, and
transportation to and from that lodging incurred by passengers whose
flights are cancelled or ``significantly delayed.'' Section 512 defines
``significantly delayed'' to mean delayed three hours or more for a
domestic flight and six hours or more for an international flight.
These thresholds are also consistent with the definition of a
significantly delayed flight in section 503 of the 2024 FAA Act and
Department's recent Refund Rules.\72\ The Department is considering
whether to apply the delay standards in section 512 of the 2024 FAA Act
not only to rebooking requirements but also to compensation
requirements and invites comment on whether it should do so. Would a
consistent definition of significant delay that would entitle consumers
to services or compensation promote awareness of passenger rights and
reduce logistical burdens for airlines?
---------------------------------------------------------------------------
\72\ 89 FR 32833; 89 FR 65536-37.
---------------------------------------------------------------------------
The Department requests comment on the appropriateness of this
approach under consideration. Should the Department adopt this approach
or should it adopt a different approach? For example, EU and Canadian
rules provide for rebooking when a scheduled flight is cancelled,
regardless of the reason for the cancellation.\73\ Should the
Department, like the EU and Canada, require airlines to provide
rebooking regardless of the reason for the cancellation based on its
authority to require safe and adequate interstate transportation in 49
U.S.C. 41702? The Canadian rules require airlines to rebook passengers
on another flight if their original flight is delayed for three hours
or more whether that flight is domestic or international or if the
original flight is cancelled.\74\ Should requirements to provide
rebooking for controllable delays of international flights be based on
three-hour delays instead of six-hour delays?
---------------------------------------------------------------------------
\73\ EC No 261/2004, Articles 5.1(a), 8; APPRs ]] 10(3), 17, 18.
\74\ APPRs ]] 17, 18.
---------------------------------------------------------------------------
Are there any circumstances in which rebooking requirements for
controllable flight disruptions should not apply? What rebooking
requirements, if any, should apply when a passenger does not accept the
initial rebooking offered by the airline after a controllable delay or
cancellation? Under what circumstances do airlines typically offer free
rebooking? Under what circumstances do airlines typically charge for
rebooking?
(b) Rebooking on Other Airlines
The Department is considering requiring an airline to offer an
affected passenger the next available flight among flights operated by
the airline and its branded codeshare partners. As discussed earlier in
this ANPRM, a ``branded codeshare partner'' typically operates flights
for the mainline carrier using the mainline carrier's name. The
mainline carrier in this arrangement is generally responsible for
selling the tickets for the flight, and consumers likely would consider
the two carriers to be one entity when purchasing airline tickets.
If no flight operated by that airline or its branded codeshare
partner would depart within 24 hours of the passenger's original
scheduled departure time, the Department is also considering requiring
an airline to offer rebooking on the next available departing flight
among those operated by that airline, its branded codeshare partner,
and any carrier with which the airline has a commercial agreement,
interline or codeshare, to transport the airline's passengers. An
``interline agreement'' is a commercial agreement that enables the
airlines to work together in providing services to passengers when the
passengers travel on multiple airlines on a single itinerary. The
agreement typically covers baggage handling, so passengers can check
bags seamlessly to their final destination, and a ticketing agreement,
to allow a passenger to obtain boarding
[[Page 99771]]
passes to their destination. Typically, interline agreements enable the
airlines to rebook passengers on one another's flights at a pre-
negotiated below-market cost when there is an irregular operation.
Several of the largest U.S. airlines have committed in their
customer service plans to rebook passengers on a partner airline or
another airline with which it has an agreement at no additional cost
when there is a controllable cancellation or significant controllable
delay.\75\ Some airlines condition their commitment to use partner
carriers on their own flights not being available until the next day.
This is consistent with the option under consideration of requiring an
airline to offer rebooking on any carrier by with which the airline has
a commercial agreement to transport the airline's passengers only if
the airline cannot provide rebooking within 24 hours using its own
branded network.\76\ Some airlines do not have interline or rebooking
agreements with other carriers and have not made these commitments.
Usually, ultra low-cost carriers (ULCCs) do not have these agreements.
---------------------------------------------------------------------------
\75\ See https://www.transportation.gov/airconsumer/airline-customer-service-dashboard.
\76\ See e.g., American Airlines Customer Service Plan updated
July 19, 2024, available at https://www.aa.com/i18n/customer-service/support/customer-service-plan.jsp.
---------------------------------------------------------------------------
The Department requests comment on whether it should adopt the
options described for rebooking or if it should adopt an alternate
option and why. What effect, if any, would a requirement to provide
rebooking on a carrier with which an airline has an interline or
rebooking agreement have on competition among airlines, including those
who do not have interline agreements? If the Department should require
an airline to offer rebooking on a carrier with which it has an
interline or rebooking agreement, should the Department require
airlines to publish a list of their interline partners?
At what point, if at all, should the Department require an airline
to offer rebooking on another carrier that is not its partner airline?
The Canadian APPRs require large airlines to use any carrier to rebook
passengers if they cannot rebook passengers on their own or a partner's
next available flight leaving that airport within nine hours for
controllable cancellations and controllable delays of three hours or
more. For cancellations and delays outside the carrier's control, the
Canadian APPR requires large airlines to use a non-partner carrier if
the airline cannot rebook passengers on their own or a partner's next
available flight leaving that airport within 48 hours of the departure
time on the passenger's ticket for cancellations and delays of three
hours or more.\77\ Also, under the Canadian APPRs, if the airline
cannot provide rebooking from the airport where the passenger is
located that departs within 48 hours, large airlines must use any
airline leaving from a nearby airport for rebooking and must get the
passenger to the other airport free of charge.\78\ Should DOT impose
similar requirements? What effect, if any, would a requirement to
provide rebooking on any carrier, including non-partner carriers, have
on competition among airlines?
---------------------------------------------------------------------------
\77\ See APPRs ]] 17 (1)(a), 18(1).
\78\ See APPRs ]] 17(1)(a)(iii), 18(1.1)(a).
---------------------------------------------------------------------------
The Canadian APPRs currently do not require small airlines to
rebook passengers using a non-partner airline.\79\ In 2023, the CTA
initiated a consultation to revise the APPRs. In its consultation
paper, the CTA proposed to expand requirements to rebook using any
airline to small airlines, if they cannot rebook on their flight or
their partner's flight within 24 hours.\80\ In addition, the CTA
proposed expanding the requirement to use nearby airports after 48
hours to small carriers.\81\
---------------------------------------------------------------------------
\79\ See APPRs ]] 17(1)(b), 18(1.1)(b).
\80\ Canadian Transportation Agency, Consultation Paper:
Proposed Changes to Clarify, Simplify and Strengthen the Air
Passenger Protection Regulations at 10, available at https://otc-cta.gc.ca/sites/default/files/consultation_paper_-_july_2023.pdf.
\81\ Id. at 11.
---------------------------------------------------------------------------
Public comments on the Canadian proposal highlight consumer
organizations' general support for eliminating distinctions between
large and small airlines to better protect passengers.\82\ Small
airlines raised issues that rebooking on another airline and/or
rebooking within 24 hours is not realistic if one airline operates from
the airport or there is a low volume of flights.\83\ Some industry
members proposed that rebooking obligations only apply when there are
viable rebooking options.\84\ One airline suggested that rebooking on
an unaffiliated airline should not be a requirement and that the
passenger should be able to choose the rebooking options that best
suits their needs, including being able to choose to rebook with the
same airline versus a different one.\85\
---------------------------------------------------------------------------
\82\ Canadian Transportation Agency, Consultations on Proposed
Changes to Strengthen the Air Passenger Protection Regulations: What
We Heard at 11-12, available at https://otc-cta.gc.ca/sites/default/files/consultations_on_proposed_changes_to_strengthen_the_air_passenger_protection_regulations_what_we_heard.pdf.
\83\ Id. at 12.
\84\ Id.
\85\ Id.
---------------------------------------------------------------------------
The Department's options under consideration currently apply the
same rebooking requirements to smaller airlines as to larger airlines.
However, the Department invites comment on whether it should adopt that
approach or a different one. Should the Department not impose any
requirements or have reduced requirements to rebook passengers on other
airlines after controllable flight disruptions by small airlines given
these airlines may not have interline agreements and may need to pay
the ticket price to transport their passengers on another airline? Is
it fair to passengers flying on small airlines not to be provided
rebooking on other airlines for controllable flight disruptions,
particularly when the network of a small airline may be more limited?
How, if at all, can the Department incentivize large airlines to
provide rebooking reciprocity to small airlines during cancellations
and lengthy delays, or disincentivize large airline practices that
prevent reciprocity, in order to improve the options for consumers and
facilitate competition? What additional requirements might be necessary
to ensure that small carriers are not disadvantaged by the size and
scale of their networks or other competitive factors that impact their
ability to rebook passengers at the same general rate and cost as
larger carriers? If small airlines are not required to rebook on other
airlines, how should the Department determine which airlines are
small--based on size of aircraft, number of U.S. enplanements, revenue,
number of employees, or other criteria? Also, what is the best way to
ensure passengers are aware of a two-tiered approach? For example, what
sorts of disclosures, if any, should passengers flying on small
airlines be provided regarding rebooking should there be flight
disruptions under any two-tiered approach?
In the alternative, should the Department require rebooking on
other airlines by small airlines but consider more stringent rebooking
requirements for large U.S. and foreign airlines with flights to,
within, and from the United States? For example, should the Department
require large U.S. and foreign airlines to provide rebooking on any
carrier if the airline cannot rebook passengers on their own or a
partner's next available flight within nine hours instead of within 24
hours? This would be similar to the current Canadian
[[Page 99772]]
APPRs, which apply that requirement to large airlines. If the
Department were to adopt more stringent requirements for large
airlines, how should the Department determine which airlines are
large--based on size of aircraft, number of U.S. enplanements, revenue,
or other criteria? If based on revenue, should the focus be on any U.S.
carrier that accounts for at least 10 percent of the domestic scheduled
passenger revenue in the most recently reported 12-month period? \86\
If based on enplanements, is the appropriate threshold for foreign air
carriers at least two million total enplanements to or from the United
States? \87\
---------------------------------------------------------------------------
\86\ Four U.S. carriers--American Airlines, Delta Air Lines,
United Airlines, and Southwest Airlines--exceeded this threshold in
2023, all with over 15 percent of domestic scheduled passenger
revenue. No other carrier comprised more than six percent of
domestic scheduled passenger revenue. See docket at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
\87\ Eighteen foreign carriers exceeded two million total
enplanements to and from the United States in 2023. See id.
---------------------------------------------------------------------------
(c) Rebooking on Next Available Flight
The option under consideration is to require airlines to offer to
rebook affected passengers on their next available departing flight in
the passenger's reserved class of service that would advance the
passenger to the final stop of their itinerary. Does this option ensure
passengers are reaccommodated as soon as possible on a reasonable and
productive route, without adversely affecting passengers with confirmed
seats or passengers that might need priority or blocked seats, such as
passengers with disabilities? If the Department should require
rebooking on the next available flight, how should the Department
define available? How, if at all, should the Department address
rebooking for multiple passengers traveling on the same reservation?
How do airlines currently approach free rebooking during controllable
disruptions? How long from the time of a cancellation or significant
delay does it typically take for an airline to place a passenger on a
replacement flight? How do the airlines decide which passengers to
rebook when upcoming flights have limited capacity? Are there current
industry rebooking practices that the Department should consider either
incorporating into a regulation or prohibiting as part of this
rulemaking? Would rebooking a passenger on the next available flight be
feasible for airlines in practice? Is this option appropriate to best
serve affected passengers? Should any rebooking requirement provide
more flexibility for passengers? Even if the airline can rebook the
passenger within 24 hours, should the Department require an airline to
offer a passenger the option to select any comparable future rebooking
on that airline in case the original itinerary no longer meets the
passenger's travel needs? If so, how long should airlines be required
to make that option available, and how far in the future should the
passenger be permitted to rebook without charge? For example, should
the passenger be required to rebook within 24 hours of the flight
disruption, a week, or another time period? Should the future flight
selected be limited to comparable flights departing within a month, a
year, or another time period? How would the Department define
comparable future rebooking? If rebooking is not comparable, should
airlines explicitly be required in a rule to also provide a refund to
account for any difference in cost or value? For example, should
airlines explicitly be required in a rule to rebook and refund the
difference in fare if the passenger is downgraded in fare class?
(d) Returning Consumers to the Point of Origin When Rebooking Is
Declined
The Department is considering requiring that, when a passenger
misses a connection because of a controllable flight cancellation or
flight delay and the rebooking offered by the airline would cause the
passenger to be delayed in arriving at their final stop 24 hours or
more, the airline must offer the passenger the option of the next
available return flight to the passenger's original departure point of
that portion of their itinerary (outbound, intermediate, return) at no
additional cost and a refund of the cost of the entire portion of their
itinerary with the missed connection (including used segments of that
portion) and all subsequent portions of their itinerary. This would be
similar to a provision of the Canadian APPRs, which require an airline
to provide a refund and return to the point of origin if the
passenger's travel no longer serves its purpose because of the
cancellation or lengthy delay and the passenger is no longer at the
point of origin (e.g., is delayed departing at a connecting point).\88\
Should the Department impose a requirement on airlines to return
consumers to the point of origin when the passenger is delayed at a
connecting point and no longer wishes to continue their journey? Why or
why not? If the Department were to impose such a requirement, should it
apply only for extended delays or, similar to the Canadian APPRs, be
based on whether the passenger states that his or her travel no longer
serves its purpose? Should delays at a connecting point of 24 hours or
more be considered extended delays or is there a more appropriate
threshold on what is an extended delay? Are there reasons the
Department should not require a refund for portions of the itinerary
already traveled?
---------------------------------------------------------------------------
\88\ APPRs ]] 17(2)(a), 18(1.2).
---------------------------------------------------------------------------
(e) Rebooking Protections When the Airline Makes a Significant Change
to a Passenger's Flight Itinerary, Including for Passengers With
Disabilities
What rebooking protections should apply when an airline makes
significant changes to a passenger's itinerary, including a significant
change that affects accessibility for a passenger with a disability?
The Department is considering proposing to require airlines to promptly
offer rebooking at no additional cost to a passenger who is an
individual with a disability (and any individuals in the same travel
party) upon notification that the individual decides not to travel on
the flight due to any of the following changes: the individual with a
disability (1) is downgraded to a lower class of service that results
in one or more accessibility features needed by the individual becoming
unavailable; (2) is scheduled to depart from, arrive to, or connect
through one or more airports that are different from the original
itinerary; or (3) is scheduled to travel on substitute aircraft on
which one or more accessibility features available on the original
aircraft needed by the individual are unavailable. The Department is
considering proposing that the airline must offer rebooking on the next
departing flight by that airline or its branded codeshare partner that
advances the passenger to the final stop of their itinerary,
accommodates the individual with a disability, and has open seats for
the individual and for all other in the same travel party. The
Department is considering proposing to apply this requirement
regardless of whether the reason for the change was within the
airline's control. In addition, if no flight operated by that airline
or its branded codeshare partner would depart within 24 hours of the
passenger's original scheduled departure time, the Department is also
considering requiring an airline to offer rebooking on the next
available departing flight among those operated by that airline, its
branded codeshare partner, and any carrier with which the airline has a
commercial agreement, interline or codeshare, to transport the
airline's passengers.
[[Page 99773]]
In the rulemaking, Refunds and Other Consumer Protections, two
disability rights advocacy groups, Paralyzed Veterans of America and
United Spinal Association, commented that, from the perspective of
passengers with disabilities, any change to the origination,
connection, and destination airport should be considered a
``significant change of flight itinerary.'' \89\ These commenters
stated that when booking flights, passengers with disabilities may rely
on the specific accessibility features of an airport to select the
flights and itinerary, and this may include selecting a particular
connecting airport based on the accessibility features needed to
accommodate their disabilities during the layover time. In addition,
the Paralyzed Veterans of America noted that a ``refund'' is
purposeless if the passenger is stranded and requested the Department
require airlines to ``expeditiously locate and offer alternative
transportation that meets the specific needs of the passenger with a
disability.'' \90\
---------------------------------------------------------------------------
\89\ See Comment from Paralyzed Veterans of America at 2,
available at https://www.regulations.gov/comment/DOT-OST-2022-0089-5262, comment from United Spinal Association, available at https://www.regulations.gov/comment/DOT-OST-2022-0089-5304.
\90\ See Comment from Paralyzed Veterans of America at 3.
---------------------------------------------------------------------------
For example, when finding alternative transportation for
individuals with disabilities who use wheelchairs, it is imperative
that the alternative transportation selected is one where the
passenger's wheelchair can be safely stowed. In February 2022, the
Department's Air Carrier Access Act (ACAA) Advisory Committee issued a
report that recognized the importance of logistical planning to ensure
that wheelchairs are safely accommodated on aircraft. The Advisory
Committee unanimously agreed on the benefit of passengers with
disabilities completing airline forms describing their wheelchairs
(e.g., device dimensions, battery type) and recommended that a group
that includes disability organizations, airlines, airports, aircraft
manufacturers, and wheelchair manufacturers work together to improve
consistency within existing airline forms for handling wheelchairs. It
is the Department's understanding that this working group, led by the
International Air Transport Association (IATA), intends to complete its
work by the end of 2024.\91\ To ensure that any rebooking requirements
provide equitable access to air transportation to people with
disabilities, there may be a need for consistent forms for wheelchairs.
Should the Department require a consistent wheelchair handling form
across airlines for air transportation to, from and within the United
States? If so, what information should be included? Should the
Department adopt the form developed by the working group led by IATA?
---------------------------------------------------------------------------
\91\ See Final Report, ACAA Advisory Committee Recommendations
at 9-10 (Feb. 4, 2022), available at https://www.regulations.gov/document/DOT-OST-2018-0204-0040.
---------------------------------------------------------------------------
Should the Department propose the rebooking requirements for
passengers with disabilities regardless of whether the reason for the
cancellation or significant change was within the airline's control as
stated earlier in this section? Should the Department only require
airlines to provide rebooking without charge to passengers who are
individuals with disabilities when lengthy delays and cancellations are
within the airline's control or responsibility? Are there circumstances
in which airlines should not be required to accommodate passengers by
rebooking the passenger on another carrier with which the airline has a
codeshare or interline agreement? Are there circumstances in which
airlines should be required to accommodate passengers on a carrier with
which the airline does not have a codeshare, interline, or any other
agreement? If the Department proposes that airlines must provide free
rebooking to members in the same travel party as a passenger with a
disability, how should the Department define ``travel party,'' and how
can airlines determine which passengers belong to the same ``travel
party?'' Should the travel party be determined based on whether the
passengers purchased their tickets in a single transaction, are on the
same reservation or on linked Passenger Name Record (``PNR''), or based
on other criteria?
Should airlines be required to offer the option of free rebooking
for any cancellation or significant delay or change of a domestic
flight that qualifies for a refund under section 503 of the 2024 FAA
Act or under the Department's Refund Rules?
(4) Compensation
(a) Compensation Amounts
The Department is considering requiring airlines to pay cash
compensation to passengers whose trip is disrupted because of a
cancellation or delay due, in whole or in part, to any circumstance
within the control of the airline. The Department seeks comment on the
effect that requiring compensation for lengthy, controllable delays and
cancellations may have on airline performance and profitability as well
as the effect that such requirements would have on consumers. A working
paper by the European University Institute supports that European
compensation and service requirements (discussed later in this ANPRM)
have reduced the likelihood and duration of flight delays under that
regime, finding ``an economically important and statistically
significant effect of EC261 regulation [covering compensation and
services] on both departure and arrival delay, as well as on-time
performance.'' \92\ In reaching that conclusion, the working paper
compared flights operating on the same route around the same time that
were covered by EC 261 with those that were not.\93\ A separate study
contracted by the European Commission documented an overall increase in
the number of cancellations and lengthy delays of flights covered by
the EU regulation between 2011 and 2018.\94\ That study also documented
reduced delays on flights covered by the EU regulation compared with
those that were not, concluding that it was ``possible'' that the EU
regulation ``has a marginal impact on the proportion of flights
delayed'' but stating that the impact ``does not appear to be
significant compared to other factors.'' \95\ In addition, the
Department requests comment on how requiring cash compensation may
impact consumer behavior. For example, would requiring cash
compensation make consumers impacted by cancellations and lengthy
flight delays more likely to continue to travel by air in the future?
---------------------------------------------------------------------------
\92\ See Hinnerk Gnutzmann and Piotr [Sacute]piewanowki, Can
Regulation Improve Service Quality? Evidence from European Air
Passenger Rights, European University Institute Working Paper, RSCAS
2018/44 (2018) at 8, available at https://cadmus.eui.eu/bitstream/handle/1814/58304/RSCAS_2018_44.docx.pdf?sequence=1&isAllowed=y.
\93\ Flights arriving to the EU from locations outside the EU
are covered by EC 261 only if the carrier is an EU carrier. See id.
at 1 (explaining that differences in EC 261 coverage based on the
nationality of the carrier ``makes it possible to identify the
impact of the regulation while allowing for carrier fixed effects
and controlling for route-time effects (e.g., caused by airspace
congestion)'').
\94\ See Study on the Current Level of Protection of Air
Passenger Rights in the EU, No. MOVE/B5/2018-541 (2020), available
at https://op.europa.eu/en/publication-detail/-/publication/f03df002-335c-11ea-ba6e-01aa75ed71a1.
\95\ Id. at 20.
---------------------------------------------------------------------------
The Department is contemplating proposing that cash compensation
would be due to a passenger whose arrival at the final stop of the
itinerary is delayed by three hours or more for a domestic flight and
six hours or more for an international flight because of a
[[Page 99774]]
controllable flight cancellation or delay. This structure is similar to
that used in the Canadian APPRs.\96\ In addition, using a three-hour
delay threshold for domestic flights and six-hour thresholds for
international flights to determine whether compensation is owed is
consistent both with the definition of significantly delayed in section
512 of the 2024 FAA Act and with the definition of significantly
delayed flight in the Department's recent Refund Rules.\97\ The
Department invites comment on these time thresholds for compensation,
including whether any compensation should be required for delays of
less than three hours.
---------------------------------------------------------------------------
\96\ See APPRs, ] 19(1).
\97\ 89 FR 32833.
---------------------------------------------------------------------------
To determine the compensation amounts that should be paid to
consumers, the Department is considering two options. The first option
is using amounts comparable to Canadian amounts of compensation
applicable to large airlines. The second option is to base the cash
compensation amounts on the value of passenger time and the weighted
average flight delay. The Department seeks public comment on these
options and will also consider additional options recommended by
commenters.
For the first option, the Department is considering using the same
compensation amounts required for large airlines under the Canadian
APPRs, converted from Canadian to U.S. dollars. Canada currently
applies the following tiers of cash compensation requirements to
cancellations and flight delays that are within the airline's control
and not required for safety: \98\
---------------------------------------------------------------------------
\98\ APPRs ] 19(1).
\99\ Conversions from CAD to USD estimated based on the average
conversion rate on the Bank of Canada website for the week of
September 3-September 10, 2024.
Canadian Compensation Requirements \99\
------------------------------------------------------------------------
Large carriers Small carriers
------------------------------------------------------------------------
Delayed Arrival of 3-5:59 hours. $400 Canadian $125 (CAD),
Dollars (CAD), Approximately $92
Approximately USD.
$295 U.S. Dollars
(USD).
Delayed Arrival of 6-8:59 hours. $700 (CAD), $250 (CAD),
Approximately Approximately
$517 USD. $185 USD.
Delayed Arrival of 9+ hours..... $1,000 (CAD), $500 (CAD),
Approximately Approximately
$738 USD. $369 USD.
------------------------------------------------------------------------
The Department is considering whether to use amounts similar to
Canada to ensure U.S. passenger compensation requirements are in line
with other similar international requirements.
Under this first option, the Department is considering requiring an
airline to pay compensation of $300 USD to a passenger whose arrival at
the final stop of a domestic flight is delayed at least three hours but
less than six hours; $525 USD to a passenger whose arrival at the final
stop of a domestic flight is delayed at least six hours but less than
nine hours; and $750 USD to a passenger whose arrival at the final stop
of a domestic flight is delayed at least nine hours.\100\ The
Department is considering requiring an airline to pay $525 USD to a
passenger whose arrival at the final stop of an international flight is
delayed at least six hours but less than nine hours; and $750 USD to a
passenger whose arrival at the final stop of an international flight is
delayed at least nine hours. If the Department proposes this option,
should it also include reduced compensation amounts for small airlines
like the Canadian APPRs? Why or why not?
---------------------------------------------------------------------------
\100\ The Department rounded the converted values of Canadian
compensation to the nearest $25 for purposes of providing
compensation amounts for comment in this ANPRM. Conversion rates
from Canadian to U.S. Dollars are provided in the docket at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
---------------------------------------------------------------------------
The second option the Department is considering is to require
airlines to pay compensation based on the Department's hourly value of
travel time savings for air travel from DOT's Benefit-Cost Analysis
Guidance for Discretionary Grant Programs \101\ and the weighted
average flight segment delay of flights delayed at least three but less
than six hours, at least six hours but less than nine hours, and nine
hours or more on flight segments within the United States using 2022
and 2023 full-year domestic flight performance data collected by
BTS.\102\ Under this second option the Department would require an
airline to pay compensation of $200 to a passenger whose arrival at the
final stop of a domestic flight is delayed at least three hours but
less than six hours; $375 to a passenger whose arrival at the final
stop of a domestic flight is delayed at least six hours but less than
nine hours; and $775 to a passenger whose arrival at the final stop of
a domestic flight is delayed at least nine hours. The Department is
considering requiring an airline to pay $375 to a passenger whose
arrival at the final stop of an international flight is delayed at
least six hours but less than nine hours; and $775 to a passenger whose
arrival at the final stop of an international flight is delayed at
least nine hours.
---------------------------------------------------------------------------
\101\ The value was weighted by the proportion of travel that is
business and personal. See U.S. Department of Transportation,
Benefit-Cost Analysis Guidance for Discretionary Grant Programs,
2024 Update (Dec. 5, 2023), Table A-2, p. 40, n. 2 and 3, available
at https://www.transportation.gov/sites/dot.gov/files/2023-12/Benefit%20Cost%20Analysis%20Guidance%202024%20Update.pdf. The value
of travel time in air transportation is $47.70 per hour for personal
travel and $80.20 for business travel, with a ratio of 88.2 percent
personal travel and 11.8 percent business travel.
\102\ The largest U.S. airlines report certified flight
performance data for their domestic scheduled operations to BTS on a
monthly basis. Based on 2023 BTS T-100 domestic market-based traffic
data, these airlines account for more than 95 percent of domestic
passenger air traffic. Bureau of Transportation Statistics, T-100
Market Data, available at https://www.regulations.gov/docket/DOT-OST-2024-0062/. Additional information on the Department's
calculations is available in the docket at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
---------------------------------------------------------------------------
In calculating the compensation amounts for the second option, the
Department relies on the BTS data because that data is reported and
certified correct by U.S. airlines to the Department. The Department
recognizes that BTS data have some limitations as applied to this
rulemaking. Notably, BTS only collects flight performance data from
U.S. airlines for domestic flight segments, and the data does not
reflect passenger trip delay. Accordingly, the data used to establish
any compensation amounts from BTS data would necessarily be limited to
domestic segment-based delays, not overall delays for passengers
arriving at their destinations. The Department invites comment on
whether it should use BTS data to establish any compensation amounts or
whether an alternate data source would provide information more
appropriate to establishing compensation amounts.
To arrive at the dollar value for compensation for purposes of
soliciting comment on option two in this ANPRM, the Department
multiplied its estimated
[[Page 99775]]
weighted average arrival delay for each compensation tier (3-5:59
hours; 6-8:59 hours; 9+ hours) \103\ by the Department's hourly value
of travel time savings for air travel from DOT's Benefit-Cost Analysis
Guidance for Discretionary Grant Programs. This hourly value of travel
time savings for air transportation is $51.54.\104\ The Department
developed its value of travel time savings ``to be used in all DOT
benefit-cost or cost-effectiveness analyses.'' \105\ Although the value
of travel time savings was not specifically developed for the purpose
of assessing the value of time lost due to air travel delays, the
Department views the factors used to establish the value of travel time
savings--trip purpose, passenger characteristics, passenger income,
mode and distance of transportation, and passenger comfort--are also
potentially relevant to time lost due to air travel delays.\106\
---------------------------------------------------------------------------
\103\ Additional information about these calculations is
provided in the docket for this rulemaking, available at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
\104\ See U.S. Department of Transportation, Benefit-Cost
Analysis Guidance for Discretionary Grant Programs, 2024 Update
(Dec. 5, 2023), Table A-2, p. 40, n. 2 and 3.
\105\ U.S. Department of Transportation, Revised Departmental
Guidance on Valuation of Travel Time in Economic Analysis (Sept. 27,
2016) at 1, https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20Travel%20Time%20Guidance.pdf.
\106\ Id. at 4-7.
---------------------------------------------------------------------------
The Department also closely reviewed the EU compensation regime
when developing this ANPRM. The EU, like Canada, uses a three-tiered
compensation system, but those compensation regimes have different
criteria. Canadian compensation requirements are based on the length of
a passenger's delayed arrival and whether the carrier is a large or
small carrier.\107\ The EU compensation amounts are based on the
distance and location of the flight (i.e., whether the flight is
entirely within the EU), with a reduction of 50 percent if passengers
arrive with delays of less than two, three, or four hours depending
upon the distance and location of the flight.\108\ The EU applies the
following requirements for compensation in the form of cash, electronic
bank transfer, bank order or bank check for cancellations and delays of
three hours or more unless the airline proves that the cancellation or
delay is ``caused by extraordinary circumstances which could not have
been avoided even if all reasonable measures had been taken.'' \109\
---------------------------------------------------------------------------
\107\ Canadian regulations define a large carrier as one that
has transported a worldwide total of two million passengers or more
during each of the two preceding calendar years. APPRs ] 1.
\108\ EC No 261/2004, Articles 5, 7.
\109\ Id. By court decision, the EU's compensation requirements
also apply to delays of three hours or more. Joined Cases C-402/07
and C-432/07, Sturgeon v. Air France, 2009 E.C.R. I-10923, ] 69.
EU Compensation Requirements \110\
------------------------------------------------------------------------
Reduced
compensation if
Compensation rerouting is
provided
------------------------------------------------------------------------
All flights 1500km or less...... 250 Euros, Reduced to 125
Approximately Euros
$278 USD. (approximately
$139 USD) if
passenger arrives
less than 2 hours
later than
scheduled.
All flights entirely within the 400 Euros, Reduced to 200
EU and all flights between the Approximately Euros
EU and a location outside the $445 USD. (approximately
EU between 1500 and 3500 km. $223 USD) if
passenger arrives
less than 3 hours
later than
scheduled.
All other flights............... 600 Euros, Reduced to 300
Approximately Euros
$668 USD. (approximately
$334 USD) if
passenger arrives
less than 4 hours
later than
scheduled.
------------------------------------------------------------------------
Should the Department use a tiered model if it imposes compensation
requirements or should the Department require a single level of
compensation for all lengthy, controllable delays and controllable
cancellations? A tiered approach based on the length of delay as under
options one and two would be similar to Canadian regulatory
requirements. It would also reflect that passengers lose more time and
are likely to experience greater inconvenience and discomfort during
longer delays and may provide added incentive for airlines to rebook
delayed and cancelled passengers on replacement flights arriving close
to the passengers' originally scheduled arrival times. Instead of a
tiered approach based on length of delay, should the Department adopt a
different compensation model, such as a model more similar to the EU,
with different compensation amounts applicable to domestic and
international flights?
---------------------------------------------------------------------------
\110\ Conversions from Euros to USD estimated based on the
conversion rate on the Forbes Advisory website on September 16,
2024.
---------------------------------------------------------------------------
If the Department requires airlines to pay compensation, what
methodology should the Department use to establish compensation
amounts? Should the Department establish compensation amounts using a
methodology that provides compensation based on the value of a
passenger's lost time, such as the methodology in option two discussed
above that would calculate compensation amounts using the Department's
hourly value of travel time savings for air travel from DOT's Benefit-
Cost Analysis Guidance for Discretionary Grant Programs and BTS data on
flight segment delays? \111\ Or, instead of determining any
compensation amounts based on the value of a passenger's time, should
the Department establish any compensation amounts with reference to the
rates used in other jurisdictions as under option one? Are there
additional or alternate data sources that the Department should examine
in order to establish any compensation amounts? Should the Department
consider a compensation requirement that includes periodic updates to
compensation amounts, such as for inflation using the consumer price
index or based on another method?
---------------------------------------------------------------------------
\111\ The value was weighted by the proportion of travel that is
business and personal. See U.S. Department of Transportation,
Benefit-Cost Analysis Guidance for Discretionary Grant Programs,
2024 Update (Dec. 5, 2023), Table A-2, p. 40, n. 2 and 3, available
at https://www.transportation.gov/sites/dot.gov/files/2023-12/Benefit%20Cost%20Analysis%20Guidance%202024%20Update.pdf. The value
of travel time in air transportation is $47.70 per hour for personal
travel and $80.20 for business travel, with a ratio of 88.2 percent
personal travel and 11.8 percent business travel.
---------------------------------------------------------------------------
Should any compensation methodology impose lower compensation
requirements on some airlines, similar to the current Canadian
regulatory requirements which apply lower compensation requirements to
small airlines, or exclude some airlines entirely? \112\ For example,
should the Department impose lower compensation requirements on
airlines that meet the definition of a small entity for purposes of the
Regulatory Flexibility Act or
[[Page 99776]]
airlines that are small based on other criteria? \113\
---------------------------------------------------------------------------
\112\ See APPRs ] 19(1).
\113\ Under the Regulatory Flexibility Act carriers that
exclusively provide air transportation with aircraft originally
designed to have a maximum passenger capacity of 60 seats or less or
a maximum payload capacity of 18,000 pounds or less are small
businesses. See 14 CFR 399.73.
---------------------------------------------------------------------------
Should the Department apply higher compensation requirements to
those carriers that comprise a large percentage of domestic scheduled-
service passenger revenues (e.g., 10 percent or greater) \114\ or
comprise a large number of total enplanements to and from the United
States (e.g., have two million or more total enplanements to and from
the United States)? \115\ Would higher compensation requirements
further incentivize the largest carriers to make operational changes to
reduce the prevalence of controllable cancellations and delays?
---------------------------------------------------------------------------
\114\ Four U.S. carriers, American Airlines, Delta Air Lines,
United Airlines, and Southwest Airlines, comprised 10 percent or
more of domestic scheduled passenger revenue in 2023, all with over
15 percent. No other carrier comprised more than six percent of
domestic scheduled passenger revenue. See docket at https://www.regulations.gov/docket/DOT-OST-2024-0062/.
\115\ Eighteen foreign carriers exceeded two million total
enplanements to or from the United States in 2023. See id.
---------------------------------------------------------------------------
Are there circumstances in which compensation requirements should
not apply? For example, should compensation requirements not apply if
the airline provides sufficient advance notice of the cancellation or
delay? Among other options, the Department is considering not requiring
compensation if the airline notifies the passenger of the flight
cancellation or arrival delay at least eight days before the first
scheduled departure for that part of the trip (e.g., before the
scheduled departure for the first flight segment of an inbound or
outbound portion of the itinerary). An eight-day time period is
consistent with the BTS reporting rule which defines a cancelled flight
as a flight not operated, but that was listed in the carrier's computer
reservation system within seven calendar days of the scheduled
departure.\116\ Under those rules, a flight removed for the carrier's
reservation system more than seven days out are not reportable to the
Department. Should the Department instead adopt a longer or shorter
period during which any exclusion would apply, such as 14 days before
the first scheduled departure? If commenters recommend a period longer
than eight days, please provide a rationale for the recommended
approach along any available data source that the Department can
consult to estimate the number of flights that are cancelled more than
eight days in advance of the flight. Should higher compensation
requirements apply to cancellations and delays that occur closer in
time to the scheduled flight to reflect the likelihood of greater
inconvenience and costs to passengers from last-minute cancellations
and delays? If so, at what point in time should higher compensation
requirements apply?
---------------------------------------------------------------------------
\116\ 14 CFR 234.2.
---------------------------------------------------------------------------
What compensation, if any, should be required if a passenger does
not accept any flight offered by the airline and instead elects to
receive a refund? In that circumstance, should the Department require
compensation in the full amount that would otherwise be required based
on the earliest arriving rebooking offered by the airline? Is there any
reason for compensation not to be required when a passenger decides not
to continue travel because of a controllable delay or cancellation and
receives a refund? Canadian regulations require the airline to pay the
lowest level of its tiered compensation structure if the passenger
elects to accept a refund rather than rebooking.\117\ Should the
Department similarly require reduced compensation in those
circumstances? If the passenger elects to receive a refund, should the
Department require different compensation if the airline is unable to
offer prompt rebooking (for example, because alternate flights are
unavailable) than if the airline offers prompt rebooking?
---------------------------------------------------------------------------
\117\ APPRs ] 19(2).
---------------------------------------------------------------------------
What compensation, if any, should be required if a passenger
accepts rebooking, but does not accept the earliest flight offered by
the airline? Should the compensation amount be calculated based on the
earliest scheduled arrival of the itinerary offered by the carrier? The
Department requests comment on whether there are other options that the
Department should consider.
Do certain groups of passengers, such as passengers with
disabilities, encounter unique costs associated with significant
cancellations and delays? If so, should a compensation requirement
address the potential for increased costs for certain groups of
passengers, and how should it address these costs?
(b) Form of Compensation
The Department is contemplating requiring airlines to pay
compensation in the form of cash or a cash equivalent for controllable
flight disruptions rather than in alternative formats such as travel
credits or vouchers or airline miles. In the Department's recent Refund
Rules, the Department defined ``cash equivalent'' as a form of payment
that can be used like cash, including but not limited to a check, a
prepaid card, funds transferred to the passenger's bank account, funds
provided through digital payment methods (e.g., PayPal, Venmo), or a
gift card that is widely accepted in commerce.\118\ The Department does
not consider a form of payment to be ``cash equivalent'' if consumers
bear the burden for transaction, maintenance, or usage fees related to
the payment. The Department notes that cash or a cash equivalent would
provide the highest degree of flexibility to a consumer inconvenienced
by a controllable cancellation or delay in how and when to spend the
required compensation.
---------------------------------------------------------------------------
\118\ See 89 FR 32833.
---------------------------------------------------------------------------
Should the Department propose to allow airlines to provide
compensation in a form other than cash or cash equivalent, and if so,
under what circumstances would a non-cash option provide more benefit
to consumers? Given that cash or a cash equivalent has no restriction
on how and where it can be spent, under what conditions, if any, might
non-cash compensation with limited use represent a better option? If
non-cash or non-cash equivalent compensation is an acceptable
compensation option, are additional consumer protections needed to
ensure consumers are treated fairly and to ensure fair competition? How
would the Department determine whether consumers have received the
required compensation value with non-cash alternative compensation
options? For example, if airlines were to offer miles or rewards
points, how would the Department determine whether the miles or points
represent a dollar value equivalent to or greater than the compensation
amount required, particularly for miles or points that expire, cannot
be converted into cash or a cash equivalent, and/or have a dynamic
dollar value that changes at the discretion of the airline? How would
the Department ensure that any vouchers or airline miles provided as an
alternative to cash or cash equivalent compensation provide a benefit
and maintain a value equal to or greater than cash or a cash
equivalent? What misleading or unfair practices, if any, may occur when
airline miles, travel credits or vouchers, or other similar types of
compensation are offered in lieu of cash or cash equivalent
compensation?
(c) Automatic Compensation Payments
Should the Department require airlines to make automatic cash or
cash equivalent compensation payments to
[[Page 99777]]
consumers who are entitled to receive compensation? Under what
circumstances, if any, should the Department require airlines to pay
cash or cash equivalent compensation automatically, without requiring
the submission of information by the consumer? What should a regulatory
framework establishing automatic cash or cash equivalent compensation
payment process look like to ensure automatic payments are provided
effectively and efficiently to affected passengers? What information
would airlines need to process automatic cash and cash equivalent
compensation payments? Would cash-equivalent compensation (e.g., a Visa
gift card) enable airlines to provide compensation without having to
obtain passenger information, such as bank account information? If
automatic compensation is required, how should the regulatory framework
address disagreements between an airline and passenger about the
compensation amounts or whether a given cancellation or delay was
outside of the airline's control? Further, in cases where compensation
is owed under the laws of multiple jurisdictions, how could a
regulatory framework for automatic compensation enable passenger choice
to receive compensation under the passenger's preferred regime?
Instead of requiring automatic compensation, should the Department
allow airlines to require passengers to submit requests for
compensation? What would be the necessary elements of such claims
process, if needed? Should airlines be required to accept compensation
requests through airline websites, by email, or by phone? If the
Department were to allow airlines to require passengers to request
compensation, are there ways to ensure that all passengers get the
compensation they are entitled to receive? For example, if one
passenger submits a compensation request, should that be sufficient to
trigger a requirement that all passengers on the flight receive
compensation if owed? Should airlines be required to proactively
provide a way to request compensation as part of a notification
process? What other requirements might be necessary to ensure that a
request process results in all passengers getting the compensation they
are entitled to, ensure that the request process is easy to navigate,
and ensure that compensation disbursement is prompt?
In circumstances in which a third party, such as a private- or
public-sector employer, has paid for a passenger's ticket, should any
compensation be paid to the passenger or should it be paid to the
third-party payor? Are there challenges to either approach?
(5) Meals, Lodging, and Transportation to and From Lodging
As reflected on the Department's Airline Customer Service
Dashboard, the largest U.S. airlines all currently guarantee in their
customer service plans that they will cover a meal for passengers
affected by a cancellation or delay within the airline's control that
results in a passenger waiting three hours or more, and all but one of
the largest U.S. carriers currently commit to providing hotel
accommodations and travel to and from the hotel when there are
controllable overnight delays and cancellations.\119\ Some of those
airline policies contain limitations, for example, limiting their hotel
guarantees to non-local passengers and limiting any reimbursements for
hotels to reasonable costs.\120\
---------------------------------------------------------------------------
\119\ See https://www.transportation.gov/airconsumer/airline-customer-service-dashboard.
\120\ See, e.g., Alaska Airlines Customer Service Plan,
available at https://www.alaskaair.com/content/about-us/customer-commitment/customer-commitment-delay-care (guaranteeing a hotel only
if the passenger is delayed overnight at ``an airport located 100 or
more miles away from [the passenger's] home''), American Airlines
Customer Service Plan (updated July 19, 2024), available at https://www.aa.com/i18n/customer-service/support/customer-service-plan.jsp
(guaranteeing a hotel if the passenger is delayed overnight ``away
from [their] city of residence'').
---------------------------------------------------------------------------
Section 512 of the 2024 FAA Act requires the Department to ``direct
all air carriers providing scheduled passenger interstate or intrastate
air transportation to establish policies regarding reimbursement for
lodging, transportation between such lodging and the airport, and meal
costs incurred due to a flight cancellation or significant delay
directly attributable to the air carrier.'' For the purposes of section
512, ``significantly delayed'' means, ``the departure or arrival at the
originally ticketed destination associated with such transportation has
changed--(1) in the case of a domestic flight, three or more hours
after the original scheduled arrival time; and (2) in the case of an
international flight, six or more hours after the original scheduled
arrival time.'' As explained earlier in this ANPRM, the Administration
views the 2024 FAA Act to ``set a floor that the Department of
Transportation could build on as deemed appropriate by the Secretary of
Transportation.'' \121\
---------------------------------------------------------------------------
\121\ See Statement of Administration Policy, Senate Substitute
Amendment to H.R. 3935--FAA Reauthorization Act of 2024 (May 8,
2024), available at https://www.whitehouse.gov/wp-content/uploads/2024/05/SAP-SSA-HR3935.pdf.
---------------------------------------------------------------------------
(a) Service Standards
Consistent with the Administration's position that the 2024 FAA Act
is a floor, the Department is considering requiring airlines to
guarantee in their customer service plans that they will cover the cost
of meals when a controllable cancellation results in passengers waiting
for three hours or more for a new flight or when a flight delay results
in passengers waiting for three hours or more. This is consistent with
the commitments that the large U.S. airlines have made at the urging of
DOT. Should the Department use the three-hour delay threshold from the
Dashboard for any meal requirements for both domestic and international
delays? Or should it apply different thresholds, such as requiring
airlines to cover the cost of meals for domestic delays of three hours
or more and international delays of six hours or more?
Canadian, EU, and United Kingdom regulatory meal requirements
consider waiting time.\122\ Should the Department similarly require
airlines to cover more than one meal for longer delays based on actual
or expected length of delay, based on a daily per diem allotment per
passenger, or based on another metric? Should the Department consider
requirements ensuring airlines cover a meal with certain qualities, for
example that the meal includes a non-alcoholic beverage and an
entr[eacute]e or that the meal meets the dietary restrictions of the
affected passenger?
---------------------------------------------------------------------------
\122\ The Canadian regulation currently requires airlines to
provide ``food and drink in reasonable quantities, taking into
account the length of the wait, the time of day and the location of
the passenger.'' See APPRs section 14(1)(a). Similarly, EC 261
requires ``meals and refreshments in a reasonable relation to the
waiting time.'' Article 9(1)(a). The EU has further explained that
this means that ``operating air carriers should provide passengers
with appropriate care corresponding to the expected length of the
delay and the time of day (or night) at which it occurs, including
at the transfer airport in the case of connecting flights, in order
to reduce the inconvenience suffered by the passengers as much as
possible, while bearing in mind the principle of proportionality.''
EU Interpretative Guidelines. The United Kingdom's Civil Aviation
Authority explains on its website that, in the case of a covered
delay or cancellation, the airline must provide passengers with
meals and hotel ``until it is able to fly you to your destination,
no matter how long the delay lasts or what has caused it.'' See
https://www.caa.co.uk/passengers/resolving-travel-problems/delays-and-cancellations/cancellations/.
---------------------------------------------------------------------------
The Department is also considering requiring airlines to guarantee
in their customer service plans that they will cover lodging for
passengers affected by an overnight delay or cancellation or reimburse
passengers for expenses incurred for lodging. If the Department
proposes this approach, how should
[[Page 99778]]
``overnight delay or cancellation'' be defined? The Department notes
that neither the EU nor Canadian regulations define when a delay is
overnight for purposes of their requirements for overnight
accommodations. How do those requirements apply in practice in those
jurisdictions? Should the Department consider passengers delayed past
10 p.m. or 11 p.m. to be affected by an overnight delay or cancellation
and thus entitled to receive lodging, or is there another measure that
the Department should consider? Should the original scheduled time of
the flight and length of delay be considered in making this
determination (e.g., a flight was originally scheduled for 9 p.m. and
is delayed for two hours to 11 p.m.)? Should the Department use the
three hours for domestic delays and six hours for international delays
from the 2024 FAA Act to establish a minimum waiting time that must
occur before a passenger would be entitled to receive overnight
accommodation? How should the length of the delay impact lodging
requirements when a consumer experiences excessive delay (e.g., 12
hours) but the delay is not overnight? Should any requirement to cover
lodging be based on the duration of the delay because the passenger may
need to obtain lodging for multiple nights during an extended
cancellation or delay?
How should the Department define lodging? Should the Department
define lodging to include types of accommodation beyond traditional
hotels and motels, and if so, what types of accommodation should be
included? Are there circumstances when an airline should be required to
cover lodging with more than one bedroom for a traveling party, and if
so, in what circumstances? How should a traveling party be defined?
In addition, the Department is considering requiring any lodging
provided by the airline must be reasonable in quality (i.e., a safe and
healthy environment that is accessible to a passenger who self
identifies as a person with a disability) and be nearby to the airport,
when available. The Department seeks comment on any options that would
ensure lodging requirements appropriately address passenger needs,
including any standards to determine what is reasonable and nearby for
the purposes of lodging, as well as any additional or different
requirements that the Department should apply. The Department also
requests comment on whether airlines should be required to cover
ancillary lodging costs such as extra bedding, a baby crib, or parking
at the lodging, and if so, which ancillary costs should be required to
be covered.
The Department is considering allowing airlines to limit lodging to
non-local travelers as provided in some current airline policies. If
the Department allows airlines to limit lodging to non-local travelers,
how should the Department define which travelers are ``local''? If the
Department does not require airlines to cover the cost of lodging for
local travelers, should the Department require airlines to cover travel
to and from the passenger's residence or airport parking costs
associated with a controllable cancellation or lengthy, controllable
delay for those travelers?
The Department is also considering requiring airlines to guarantee
in their customer service plans that they cover transportation to and
from lodging to affected passengers, including transportation that is
accessible to a passenger who self identifies as a person with a
disability. What costs to and from lodging should airlines be required
to cover? For example, should airlines be required to cover the cost of
shuttle service, driver service such as taxi or ride share, rental car,
or gas mileage for the passenger's vehicle or for friend's vehicle if
picking up the passenger? Should the Department require airlines to
cover the cost of a driver service such as a taxi or ride share to and
from the lodging in all circumstances, or some circumstances, and if
so, which circumstances should not be covered and why? The Department
is considering allowing airlines to provide in their policies that they
will not cover services if the passenger is provided sufficient advance
notice of a cancellation or delay. If the Department proposes this
approach, what time period should constitute sufficient advance notice?
For example, should the Department allow airlines not to cover meals if
the passenger is notified of the delay or cancellation at least 12
hours in advance of the scheduled departure because the passenger is
less likely to need to purchase a meal at the airport in that
circumstance? Should any differing time periods apply to any
requirements for meals and lodging and transportation to and from
lodging? If so, why?
What requirements for meals, lodging, and transportation to and
from lodging, if any, should apply if a passenger accepts a refund,
rather than rebooking, in the event of a controllable cancellation or a
lengthy, controllable flight delay?
Should the Department, under its authority to ensure ``adequate''
transportation in 49 U.S.C. 41702, extend any requirement that airlines
cover the costs of meals, and lodging for overnight delays, and
transportation to and from lodging to all cancellations and lengthy
flight delays when the passengers are flying domestically, regardless
of whether the cancellation or delay is controllable? Why or why not?
Are there additional circumstances in which the Department should
consider requiring these services?
(b) Upfront Services
The Department is seeking comment on the best way to ensure that
passengers receive the services they are entitled to, with minimal
expense and hassle. The Department is considering proposing a multi-
tiered approach for airlines to provide meals, lodging, and
transportation to and from lodging to passengers. Under this approach,
an airline would be required to dispense all upfront vouchers or
credits for these services as soon as the airline becomes aware of the
flight disruption that triggers a passenger's entitlement to services,
and, if the airline does not offer and provide those services upfront,
then the airline would be required to reimburse passengers for the cost
of those services.
The Department is of the tentative view that passengers are best
served when airlines cover the upfront costs of meals, lodging, and
travel to and from lodging during flight disruptions so that passengers
do not have to pay out of pocket for those services. Passengers may not
have the means to pay for these unexpected costs, and some passengers
may not be able to navigate the process of procuring some or all these
services on their own. Under this option, the required services would
be provided by airlines directly through physical or electronic
vouchers, e-credits, or other mechanisms that ensure passengers receive
the services upfront. The Department is concerned that airlines'
current policies and procedures for distributing services upfront may
be inadequate for meeting passengers' needs and may not be consistently
or evenly provided, particularly during widespread flight disruptions.
Airlines have disparate policies and processes for distribution and may
not plan appropriately to have enough vouchers or credits to provide
them to all affected passengers who are entitled to them. Moreover,
frontline staff may lack training or instruction regarding when
passengers are entitled to each of these services, what services are
available upfront, who to prioritize when vouchers or credits are
limited, and what costs will be reimbursed when
[[Page 99779]]
vouchers or credits run out or are not provided. Additionally, long
waits to receive vouchers or credits for services may result in
passengers giving up and paying for these services directly themselves.
How should the Department define ``upfront'' in terms of process
and timing? What, if any, requirements might be necessary to ensure
that the manner and timeliness of distribution is adequately meeting
passengers' needs? Does this option best address the Department's
concerns, or would an alternate approach better ensure that passengers
receive needed services with minimal expense and hassle?
(c) Reimbursements for Services
The Department is contemplating proposing to require airlines to
reimburse passengers for costs incurred for meals, lodging, and
transportation to and from lodging when the airline fails to offer
those services or those services are not offered and provided in a
timely manner. In lieu of providing vouchers or credits, some airlines
currently reimburse passengers for the costs of the services during
wide-spread controllable disruptions. However, airlines do not
consistently disclose when passengers are eligible for reimbursements
for services and what costs the airlines will reimburse for and how
much they will cover. Moreover, because the process for requesting
reimbursement is different for each airline, it can be difficult for
passengers to navigate, and the timing of the reimbursement payment is
discretional and often lengthy.
The Department believes frustrated and inconvenienced passengers
may purchase a service that the airline should be providing if the
passenger is unaware of when and where a service or voucher is
available. How should any proposed requirements ensure that passengers
are aware of the airlines' obligations to provide a service, so that
the consumer would not purchase the service out-of-pocket expecting
reimbursement? How should any requirements for airlines to provide
reimbursements apply, if at all, if the passenger purchased the service
themselves before the airline notifies the passenger that the airline
will provide the service? Should the Department require airlines to
offer passengers the option of choosing reimbursements even if the
airline also offers to provide a service or a voucher for the service?
Should airlines be required to provide documentation that the passenger
received the service upfront in lieu of reimbursement, if so, what kind
of documentation should be required?
(i) Automatic Reimbursements for Services
The Department is considering how reimbursements for services
should be provided, including whether reimbursements should be
automatic or requested by the passenger. Due to concerns that the
process for requesting reimbursements can be cumbersome for passengers,
one option would be to require automatic reimbursements in some
circumstances without submission of information by the passenger. The
Department is considering requiring automatic reimbursement for a
minimum amount after an established time period if an affected
passenger does not submit receipts of their costs for meals, lodging,
or transportation to and from lodging, and the airline has no
documentation of the passenger receiving the service upfront. On the
other hand, if the passenger submits receipts during that time period,
the Department is considering proposing that the airline must reimburse
the passenger for those expenses up to a pre-established maximum
threshold for each service. The Department invites comment on what time
period should apply to the submission of receipts and the minimum and
maximum amounts for reimbursement if the Department proposes this
approach. In addition, in both scenarios, the Department would consider
requiring the airline to provide the reimbursement within a defined
period and solicits comment on what that time period should be.
The Department is seeking comment on this approach and what
requirements would be necessary to ensure that it produces the expected
outcomes for passengers. Under what circumstances, if any, should the
Department require airlines to pay reimbursements automatically,
without requiring the submission of information by the consumer? How
would the automatic payment process work? Would an airline need to
obtain a passenger's bank account information to process a
reimbursement? Would cash-equivalent compensation (e.g., a Visa gift
card) enable airlines to provide reimbursements without having to
obtain passenger information, such as bank account information?
Would establishing minimums and maximums make obtaining meals,
lodging, and transportation to and from lodging more predictable for
consumers during a cancellation or lengthy delay compared with current
airline practices? If it proposes this approach, how should the
Department determine the minimum and maximum amounts that airlines must
reimburse consumers for these services? Should these values be
nationwide or regional? Should the Department adjust these minimum and
maximum values periodically to account for market pricing? Should the
values for lodging be adjusted seasonally? Should any minimum payments
for meals, lodging, and transportation to and from lodging, apply
regardless of whether the consumer submits receipts? If the Department
establishes minimum reimbursement amounts, should the Department
require that if the airline offers a meal, lodging, or transportation
to and from the lodging instead of providing reimbursement for that
service, the airline must provide a service with equal value to the
minimum reimbursement amount? How should that value be determined?
Should the airline be required to provide reimbursement unless they
present the passenger with documentation that the passenger received
the service upfront?
Instead of requiring reimbursements based on minimum and maximum
cost thresholds, should the Department require airlines to provide
reimbursements for ``reasonable'' costs? If so, how should the
Department establish the amount of reasonable reimbursements in any
proposal? For example, should the Department establish reasonable
reimbursement amounts for lodging or meals based on what airlines
provide their own crews, based on per diem rates established by the
U.S. General Services Administration, or using another methodology?
\123\
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\123\ See https://www.gsa.gov/travel/plan-book/per-diem-rates.
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(ii) Claims for Reimbursement
For passenger claims for reimbursements supported by receipts, the
Department is considering whether it is appropriate to require airlines
to approve and pay a complete claim or deny a complete claim, with a
written explanation of the airline's reason for denying the claim if it
does so, no later than a set timeframe after the complete claim is
received. The Department invites comment on what timeframe should apply
if the Department proposes this approach. If the Department does not
propose automatic reimbursements for services during a set time period,
should it establish a set time period during which passengers must
submit claims for reimbursement, and, if so, what should that time
period be?
Should the Department place any limits on information that airlines
may
[[Page 99780]]
request from passengers to process their claims or establish a minimum
basis for what qualifies as a ``claim'' the airline must accept? What
other requirements, if any, should the Department establish for any
process for consumer-provided information? For example, should the
Department require airlines to establish their own policies and
procedures for which reimbursements will be approved and not approved,
provide opportunity for passengers to resubmit claims if corrections
are needed and establish an internal appeals process? Should the
Department require that airlines make any claims process streamlined,
easy to access, available at any time, and with clear and conspicuous
instructions and disclosures of airline policies for compensation or
reimbursements? Are there circumstances in which the Department should
permit airlines to reject, rather than respond to, submissions that do
not provide sufficient information to process the claim? If an airline
rejects a claim for reimbursement because they provided the service
upfront, should the airline be required to present documentation of the
passenger having received the service?
(6) Cancellations and Delays Covered by Foreign Legal Requirements
As previously discussed, EU and Canadian regulations require
services and compensation similar to those on which the Department
solicits comment in this ANPRM. How can the Department best avoid
duplicative burdens on airlines? Are there provisions that are needed
to ensure passengers receive favorable outcomes when more than one law
applies to a controllable cancellation or lengthy controllable delay?
Both the EU and Canadian regulations limit entitlement to
compensation if the passenger has already received compensation for the
same delay or cancellation in another jurisdiction.\124\ The EU
regulation also limits entitlement to other services if the passenger
has already received that service for the same delay or cancellation
under another regime.\125\ The European Commission has further
clarified that if a passenger accepts only compensation or a service
(but not both) under a different regime, the passenger's entitlement to
receive the compensation or service not accepted is unaffected under EU
law.\126\ Should the Department adopt similar limits to those under EU
and Canadian regulations? How do these limits operate in practice? Can
airlines efficiently provide a consumer their choice of benefits when
more than one jurisdiction's regulation applies to an event?
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\124\ See CTA, Air Passenger Protection Regulations--Regulatory
Impact Analysis Statement, available at https://otc-cta.gc.ca/eng/air-passenger-protection-regulations-regulatory-impact-analysis-statement (noting that ``passengers would only be able to receive
compensation . . . if they have not already received compensation
for the same event under a different regime''), see also EC No 261/
2004, Article 3.1(b). Canadian regulations clarify that mere
eligibility for compensation under another jurisdiction's law is not
a permissible basis for refusing compensation. See APPRs, ] 3(3).
\125\ EC No 261/2004, Article 3.1(b); see also EU Interpretive
Guidelines at C 214/7.
\126\ EU Interpretive Guidelines at C 214/7.
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The Department is considering whether to require the airline to
notify passengers of any differences in value of reimbursements,
services, and compensation owed under any DOT requirements and the law
of a foreign jurisdiction, if applicable, so that passengers would have
the ability to accept a reimbursement, service, or compensation on an
informed basis when the laws of multiple jurisdictions apply. The
Department seeks comment on whether these options are appropriate,
feasible for airlines, and benefit consumers, particularly if the
Department were to decide to require automatic compensation and
reimbursements. Would the value of services, such as lodging or a meal,
likely be the same under any DOT-imposed requirement and the law of a
foreign jurisdiction?
(7) Information Provided to Passengers
The Department is concerned that airlines do not sufficiently
inform passengers about their rights when there are controllable
cancellations and lengthy delays that entitle passengers to services
such as meals, lodging, and rebooking. To address harm to consumers,
the Department solicits comment on whether to require airlines to: (1)
notify passengers of the required or promised services, (2) disclose
proactively whether the cancellation or delay is controllable and would
entitle passengers to services, (3) respond to passengers' questions
about reasons for disruptions and whether they qualify for services,
(4) make information about services and reimbursements clear, easy to
find, and accurate, and (5) explain the differences, if there are any,
in the policies between codeshare partners for services and
reimbursements.
If the Department requires airlines to provide compensation or
rebooking without charge or to cover the costs of meals, lodging, and
transportation to and from lodging, should the Department require
notifications of available compensation, rebooking, or costs of meals,
lodging, and transportation to and from lodging? As discussed earlier
in this ANPRM, at the December 2022 ACPAC meeting, the ACPAC
recommended that the Department issue a regulation requiring airlines
to notify affected consumers of the availability of services and
amenities for controllable delays and cancellations, with three of the
four members voting in favor of the recommendation.\127\ The Department
is considering requiring airlines to promptly notify consumers when a
required service, reimbursement, or compensation is owed. The
Department is considering requiring airlines to provide such
notification when the airline expects that an entire flight segment
will be subject to a controllable cancellation or delay that would
entitle the passengers to services, reimbursements, and compensation.
As an alternative, the Department is also considering instead requiring
individualized notifications when only some passengers on a flight
would be owed compensation, rebooking, or a service (e.g., when some
passengers on a flight miss a connecting flight due to a controllable
cancellation or delay) and seeks comment on whether it is feasible for
airlines to do so. Are there challenges to providing individualized
notifications or to providing these notifications to passengers who
purchase air transportation from ticket agents, and if so, how should
the Department address such challenges? What would be the costs for
airlines to provide individualized notifications?
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\127\ See ACPAC December 8 and 9, 2022 Meeting Minutes at 26,
available at https://www.regulations.gov/document/DOT-OST-2018-0190-0110.
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Where and by what means should any required notifications be
provided? The Department is considering requiring that airlines provide
notifications on the carrier's primary website, to passengers who
contact the airline's customer service representative, at the boarding
gate area, and/or through a method that the passenger has elected to
receive flight status notifications. Should these or different
notification methods apply? Should the Department require airlines to
establish reasonable policies, procedures, and/or training for airline
customer service staff to ensure that staff provide passengers proper
notification of available reimbursements, compensation, and services
and provide services promptly where applicable? If airlines are
permitted to require passengers to affirmatively request compensation
or services, should airlines be required to
[[Page 99781]]
proactively provide information on how to make that request or provide
a link or other avenue for submitting the request in any notification
regarding the cancellation or delay? The Department also requests
comment on what requirements are needed to ensure passengers who
identify to airlines as persons with disabilities receive effective
notification.
What timing requirements, if any, should apply to any
notifications? The Department is considering a proposal that
notifications for reimbursements, services, and compensations must be
promptly provided to consumers. If the Department should require prompt
notifications, is additional clarification needed regarding when a
notification is ``prompt?'' Should the Department establish a set
timeframe following the occurrence of a cancellation or delay during
which an airline must provide any required notifications? The
Department would expect airlines to begin to provide notifications soon
after the delay or cancellation rather than hours after it. Should
different timeframes apply to any notifications about compensation and
to any notifications about rebooking or services that are likely needed
during or soon after the delay or cancellation?
Should the Department require airlines to notify passengers in real
time of the specific cause of a lengthy delay or cancellation? If so,
how can the Department ensure that information provided by the airline
is accurate?
(8) Timely Customer Service
Section 505 of the 2024 FAA Act requires that air carriers selling
tickets for scheduled passenger air transportation on an aircraft that,
as originally designed, has a passenger capacity of 30 or more seats
must maintain, without charge and available at all times: (1) a
customer service telephone line staffed by live agents, (2) a customer
chat option that allows for customers to speak to a live agent within a
reasonable time, to the greatest extent practicable, or (3) a monitored
text messaging number that enables customers to communicate and speak
with a live agent directly. Section 505 authorizes DOT to issue such
rules as may be necessary to carry out the requirement and provides
that airlines must comply with section 505's requirements ``without
regard to whether the Secretary has promulgated any rules to carry
out'' section 505.
In enforcement matters, the Department has taken the position that
the practice of not providing adequate customer service assistance when
a carrier cancels or significantly changes a passenger's flight is an
unfair practice and also that the practice is deceptive when a carrier
advertises a particular service to consumers as an available means of
obtaining customer service assistance and fails to provide that service
or fails to provide the service within a reasonable time period.\128\
However, the Department's regulations do not currently set forth
specific requirements for timely customer service assistance or contain
provisions addressing section 505 of the 2024 FAA Act. The Department
is considering whether to propose minimum timely customer service
requirements, particularly for passengers affected by cancellations and
delays. Should the Department establish specific minimum wait times for
customer service during or after a cancellation or lengthy delay, and
what should the minimum wait times be or what should minimum wait times
be based on? Should any minimum customer service wait time be based on
the type of customer service the passenger seeks, for example, customer
service about rebooking, refunds, compensation, etc.? Should the
Department consider requiring airlines to make call center service
available at all times during a disruption, regardless of whether the
other means of assistance are available as well? Should the Department
consider as an option letting airlines determine a minimum standard of
customer service and requiring the airline to put it in their customer
service plan? The Department invites comments on these options for
improving the timeliness of customer service.
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\128\ See Southwest Airlines Co., DOT Order No. 2023-12-11,
Consent Order (Dec. 15, 2023).
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(9) Reporting and Recordkeeping
What recordkeeping and reporting requirements should apply to the
areas covered by this ANPRM, if any? The Department is considering
proposing that airlines must submit periodic reports regarding
compliance with any requirements adopted. The intent of this option
would be to enable the Department to monitor airline implementation of
and compliance with any requirements effectively and efficiently and to
facilitate enforcement of noncompliance, when appropriate. Such reports
may include, for example, information about cancellations and lengthy
flight delays that the airline determined were controllable and not
controllable and the specific bases for the carrier's determinations;
information about notifications, services, reimbursements, and
compensation provided; and information about requests for services and
claims for reimbursements and/or compensation, including the airline's
responses. Should the Department require reports and, if so, should the
Department require airlines to report on a fixed interval? Should
different reporting requirements, if any, apply to foreign carriers,
and, if so, why?
Regulatory Notices
A. Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The Office of Management and Budget (OMB) has determined that this
ANPRM is a significant regulatory action under Executive Order 12866.
Executive Order 12866 requires agencies to provide a meaningful
opportunity for public participation. Accordingly, we have asked
commenters to answer a variety of questions to elicit practical
information about alternative approaches and relevant data. These
comments will help the Department evaluate whether a NPRM is needed and
if so, the content of the NPRM. If the Department issues a NPRM after
the completion of the comment period on this ANPRM, it will prepare a
regulatory impact analysis for the proposed rule, assessing the
potential benefits, costs, and transfers. The Department seeks any
information, data, and analysis that would help the Department
understand the economic impacts of the potential regulatory options
discussed within this ANPRM.
B. Executive Order 13132 (Federalism)
This ANPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
ANPRM does not propose any requirement that (1) has substantial direct
effects on the States, the relationship between the National Government
and the States, or the distribution of power and responsibilities among
the various levels of government, (2) imposes substantial direct
compliance costs on State and local governments, or (3) preempts State
law. States are already preempted from regulating in this area by the
Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation
and funding requirements of Executive Order 13132 do not apply.
C. Executive Order 13175
This ANPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because none of the
options on which we are seeking comment would
[[Page 99782]]
significantly or uniquely affect the communities of the Indian Tribal
governments or impose substantial direct compliance costs on them, the
funding and consultation requirements of Executive Order 13175 do not
apply.
D. Regulatory Flexibility Act
When a Federal agency is required to publish a notice of proposed
rulemaking (5 U.S.C. 553), the Regulatory Flexibility Act of 1980 (5
U.S.C. 601 et seq.) requires the agency to conduct an initial
regulatory flexibility analysis (IRFA). An IRFA describes the impact of
the rule on small entities (5 U.S.C. 603). An IRFA is not required if
the agency head certifies that a rule will not have a significant
economic impact on a substantial number of small entities (5 U.S.C.
605). Under the Regulatory Flexibility Act, carriers that exclusively
provide air transportation with aircraft originally designed to have a
maximum passenger capacity of 60 seats or less or a maximum payload
capacity of 18,000 pounds or less are small businesses.\129\ If the
Department proposes to adopt the consumer protections discussed in this
ANPRM, it is possible that it may have some impact on small entities.
We invite comment to facilitate DOT's assessment of the potential
impact of adopting the possible regulatory requirements discussed in
this ANPRM on small entities.
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\129\ See 14 CFR 399.73.
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E. Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), no
person is required to respond to a collection of information unless it
displays a valid OMB control number. This ANPRM is not covered by the
Paperwork Reduction Act because it does not propose any new information
collection burdens. If the Department proposes to adopt information
collections in a NPRM, the burdens associated with such a collection
will be analyzed at that time.
F. Unfunded Mandates Reform Act
The Department has determined that the requirements of Title II of
the Unfunded Reform Act of 1995 do not apply to this document.
G. National Environmental Policy Act
The Department has analyzed the environmental impacts of this ANPRM
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321 et seq.) and has determined that it is categorically
excluded pursuant to DOT Order 5610.1C, Procedures for Considering
Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical
exclusions are actions identified in an agency's NEPA implementing
procedures that do not normally have a significant impact on the
environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS).\130\ In
analyzing the applicability of a categorical exclusion, the agency must
also consider whether extraordinary circumstances are present that
would warrant the preparation of an EA or EIS.\131\ Paragraph
4(c)(6)(i) of DOT Order 5610.1C provides that ``actions relating to
consumer protection, including regulations'' are categorically
excluded. The Department does not anticipate any environmental impacts,
and there are no extraordinary circumstances present in connection with
this rulemaking.
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\130\ See 40 CFR 1508.4.
\131\ Id.
Signed this 3rd day of December, 2024, in Washington, DC.
Peter Paul Montgomery Buttigieg,
Secretary of Transportation.
[FR Doc. 2024-28930 Filed 12-10-24; 8:45 am]
BILLING CODE 4910-9X-P