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OST-2005-20112 - Regulatory Review
See Also BTS-2004-19380 - Form 41 Confidential Treatment
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Regulatory Review OST-2005-20112 - Notice of Regulatory Review January 26, 2005 The Department of Transportation intends to conduct a review of its existing regulations and its current Regulatory Agenda. As part of this review, the Department invites the public to participate in a comment process designed to (1) help the Department improve its rules to make them more effective and less costly or burdensome, (2) identify rules no longer needed and/or new rules that may be needed, and (3) help the Department prioritize its rulemaking activities. The Department also intends to hold a public meeting to discuss and consider the public’s comments. Comments should be received on or before April 29, 2005. Late‑filed comments will be considered to the extent practicable. In addition, the Department intends to hold a public meeting on April 12 and 19, 2005, in Washington, DC, to discuss public comments. Commenters wishing to have time allocated to them at the public meeting should submit initial comments by February 25, 2005, and clearly indicate their desire to have time allocated at the public meeting. Counsel: Karen Starring, 202-366-4723, karen.starring@ost.dot.gov
February 15, 2005 By: Roxanne Wyant
February 22, 2005 Initial Comments of The Air Transport Association of America We believe that the Department and its agencies should undertake regulatory, certification, and enforcement actions based upon the following considerations:
The foregoing approach will require more responsive and collaborative relationships among the Department, carriers, public interest groups and vendors. This collaborative framework is not intended to usurp DOT's regulatory role. The airline industry does not want that statutory mandate to be compromised. The methods by which that mandate is discharged, however, need to be considered carefully for their efficacy and economy. Counsel: ATA, James Casey, 202-626-4000, jcasey@airlines.org
February 24, 2004 Re: Comments of American Society of Travel Agents | Word By: Paul Ruden
Comments of The Alliance of Automobile Manufacturers By: Robert Strassburger
February 25, 2005 American supports the comments submitted in this docket on February 22, 2005 by the Air Transport Association In addition, we wish to raise another matter that merits attention in the interest of reducing unnecessary burdens on the Department and air carriers alike. In administering the aviation statute, 49 USC 40101 et seq. the Office of the Secretary as a matter of practice has limited various international route authorities, in particular exemptions issued under 49 USC 40109, to a term not to exceed two years. This practice has generated an entirely needless and burdensome merry-go-round of routine renewal applications that are in virtually all cases unopposed, yet require a steady stream of applications, docket postings, service copies, approvals under assigned authority, and notices of action taken. Each year, American alone is required to file some 20 to 30 routine renewal applications, creating a substantial amount of unnecessary paperwork, and for no compelling public purpose. On January 23, 1998, American filed a petition in OST-1998-3375 (copy attached) seeking a policy statement under 14 CFR 399 to address this issue. Although American's petition was not opposed, and received support from other carriers, the Department has not taken action. In its Notice of Regulatory Review, the Department expressed interest in "improv[ing] its rules to make them more effective and less costly or burdensome," and in "identify[ing] rules no longer needed and/or new rules that may be needed" (70 Fed. Reg. 3761). American believes that favorable action on our petition in OST-1998-3375 would advance the Department's worthy goal of reducing unnecessary and burdensome regulations. Counsel: American, Carl Nelson, 202-496-5647, carl.nelson@aa.com
February 25, 2005 Re: Comments of The Association of American Railroads Counsel: Louis Warchot and Michael Rush, 202-639-2503
February 23, 2005 Comments of Lummi Nation Planning Department By: Kirk Vinish
February 25, 2005 Comments of Gregory Nieberding By: Gregory Nieberding
February 25, 2005 Initial Comments of United Air Lines There has been a paradigm shift in the provision of passenger air transportation service in the United States over the course of the last decade, and the changes continue; a comparably dramatic shift in DOT's approach to regulation is required to reflect the new realities. Regulation for regulation's sake (or because that is how things were done in the past) no longer is acceptable, if it ever was. DOT must adopt a new regulatory mindset that views regulations with a skeptical eye. Rules that are outdated or that serve no identifiable purpose should be eliminated. Rules that are disproportionately burdensome also should be scrapped or at least trimmed back and revised to make them more cost-effective and cost-beneficial. Rules and statutory provisions that place constraints or restrictions on carriers' operating flexibility and on their capacity to structure new service offerings through alliances and other contractual arrangements should be subjected to careful scrutiny-the question in all cases being whether the requirement really provides material benefits to consumers or is necessary to protect competition. If the answer is "no," DOT should remove the restriction-through rulemaking, interpretative action, or, where necessary, by exercising its authority to create appropriate exemptions consistent with the public interest under 49 U.S.C. § 40109(c). At the same time, DOT should take a more active role in seeking to achieve greater integration/harmonization of air transportation standards and requirements across the different jurisdictions in which U.S. carriers operate and should make sure that interagency consideration of air transportation policies reflects the needs and realities of the airline industry. Counsel: United and Wilmer Cutler, Bruce Rabinovitz, 202-663-6960, bruce.rabinovitz@wilmer.com
February 25, 2005 Comments of The Air Carrier Association of America Government agencies should periodically review and modify regulations as an industry impacted by those regulations evolves and as the economics of the industry change. As the Department has noted at various times, the airline industry is a much different industry than it was even five years ago. As a result of the competition offered by low fare carriers, more people are flying and competition in some markets is expanding. Moreover, total market share for low fare carriers is expanding. At the same time, because of some Department regulations, low fare carriers are frequently blocked from competing at various airports. The Department needs to review those regulations and modify them to reflect current industry conditions and its total statutory responsibilities. The Department should consider regulatory reviews that include representatives of all types of carriers and others impacted by existing regulations. The Department also needs to look at enforcement actions. The Department's enforcement program must also reflect industry realities and changes. Counsel: ACAA, Edward Faberman, 202-719-7402
February 25, 2005 Comments of The American Road & Transportation Builders Association By: T. Peter Ruane
February 25, 2005 Re: Initial Comments of The Association of American Railroads and a Request for Hearing Time By: Michael Rush
February 25, 2005 Re: Comments of Marion C. Pulsifer Consulting By: Marion Pulsifer
March 3, 2005 Re: Comments of ASTAR Air Cargo By: Steven Jones, Quality Control, 236 Wendell H. Ford Blvd., Erlanger KY 41018
March 8, 2005 Initial Comments of Federal Express Requiring Carriers to report mail volumes by pound and revenue is expensive, time consuming, and unnecessary. These archaic regulations have been in place for at least thirty years. If they ever served a useful purpose, that purpose has long since been lost. All Carriers provide detailed freight information to the DOT, and mail volumes are included in these general freight reports. We have found no ascertainable reason why mail should be segregated and individually accounted for in filings. There are several reasons for our views on this issue. The nature of modern USPS agreements (such as the one between FedEx and the USPS) makes the required information difficult, if not impossible, to provide. In the last few years, there have been fundamental changes in both the way mail is transported and in the way the USPS contracts for transportation services. The new alliance between FedEx and USPS illustrates this change. The USPS no longer simply compensates all carriers "by the pound" for moving mail. The FedEx/USPS alliance involves much more than just "transportation". FedEx provides the USPS service based on shipping containers of freight. FedEx performs sorting and gives fast, reliable, cost effective, handling, tracking, and time definite movement of USPS mail. FedEx provides services far in excess of the traditional "belly" movement of mail associated with passenger carriers. And, because of the additional value provided the USPS, the USPS does not compensate FedEx on a "pound" basis. Compensation is spelled out in a lengthy, tailored Agreement. Charges are based on the "service" and on a volume or space arrangement. Counsel: Federal Express, Sarah Prosser, 901-434-8579
March 30, 2005 Comments of Aircraft Owners and Pilots Association By: AOPA
Published in Federal Register April 6, 2005 The public meeting will be on April 12, 2005, in Washington, DC, beginning at 9:30 a.m. The comment period for this regulatory review closes on April 29, 2005. The meeting is designed to solicit public views and gather additional information for our regulatory review. Therefore, the meeting will be conducted in an informal and nonadversarial manner. No individual will be subject to cross-examination by any other participant; however, DOT representatives may ask questions. In developing prepared remarks, participants should leave time for questions and discussion by the panel during their remarks. By: Karen Starring
April 8, 2005 Initial Comments of the Airline Dispatchers Federation By: James Jansen, jjansen@dispatcher.org
April 21, 2005 Comments of the Airline Dispatchers Federation Public Charters are subject to various financial and contractual consumer protection safeguards. These include the requirement that the charter operator must obtain a surety bond, surety trust, or letter of credit and, unless these security arrangements exceed the cost of all flights in the charter program, establish an escrow account into which passenger payments are to be paid and held until after each flight is completed. The charter operator must also enter into a contract with the passenger that sets forth, among passenger has if there is a major change in the itinerary of the charter. A charter operator must also file a charter prospectus with the Department certifying that all of these safeguards are in place prior to being authorized to advertise the Public Charter flights. By: Airline Dispatchers, James Jansen
April 12, 2005 By: Department of Transportation
April 29, 2005 Comments of The Air Transport Association of America In an industry suffering from the financial adversity that ours does, unwarranted regulatory costs loom large. The costs of unnecessary regulatory mandates cannot be automatically passed on to airline consumers. Market forces‑which in the airline industry impede the recoupment of costs that firms in other industries can pass on to their customers‑determine the prices that airlines can charge. Passengers and shippers have repeatedly demonstrated their aversion to increased fares and rates; they demand low prices. In this unforgiving pricing environment, airlines are left to bear the burden of additional costs. Whether a regulatory requirement is justified or unjustified, therefore, it can easily become an unfunded levy on the regulated community. Regulation thus is another form of taxation, which takes resources from airlines and their customers, and applies them to governmental purposes. Counsel: ATA, James CAsey, 202-626-4000, jcasey@airlines.org
April 29, 2005 The routine renewal applications are routinely approved. Yet in every case, the Department's policy of imposing arbitrary time limits on the exemptions and authorities imposes a persistent regulatory tax on every carrier that offers scheduled foreign air transportation. It creates a never-ending outflow of administrative and legal expense incurred solely for the purpose of ensuring that none of these endless renewal deadlines are missed, lest the carrier lose its ability to continue operating its schedule. The process also wastes the finite resources of the Department, which must expend its energy processing these renewal applications rather than focusing on the many more substantive demands competing for its time.
Counsel: Delta, J. Scott McClain, 404-773-6514
April 29, 2005 Comments of National Air Carrier Association Since the Airline Deregulation Act of 1978, we often hear of the deregulated airline industry. Nothing could be further from the truth. While the Airline Deregulation Act has been hugely successful in lowering airline fares, increasing airline efficiency, and stimulating air travel, the U.S. airline industry can in no manner be considered deregulated. Neither that Act nor any action since then has stemmed the tide of new regulations nor decreased the mounting economic and operating burden of Government regulations on the airline industry. In fact, the industry is staggering under the existing set of regulations. Many of those regulations are holdovers from bygone days, and current technology or operating practices have overcome their necessity. Thus we appeal to the Department to conduct a thorough review and rescind regulations where they are clearly no-longer necessary and to enforce rigorous discipline in requiring clear justification and thorough cost analysis for any new regulations. We cannot afford to do otherwise. By: Ronald Riddy, President
April 29, 2005 Comments of Regional Airline Association We consider the safety regulations are for the most part, well written. However when local FAA inspectors place a high priority on extremely low safety risk issues (both rules and FAA policy) we find that our members have to spend considerable time and effort to accommodate these misplaced priorities. Our members endorse a "system safety" concept which embraces risk management; if you focus on the issues that address the higher safety risks the result will be a safe operation. We believe that the FAA itself should endorse "system safety" in establishing their priorities in what they ask of our members. By: Regional Airline Association, David Lotterer
April 29, 2005 Re: Comments of Regional Aviation Partners The small community air service industry is in a state of crisis. In 1978, Congress had the foresight to recognize that market conditions alone would not be enough to sustain commercial air service to rural America. Congress, therefore, created the Essential Air Service program to subsidize air service to these communities, ensuring that small communities would remain connected to the national air transportation system. It is our belief of that the EAS program was created and reauthorized to act as a safety net for those communities who could not otherwise retain commercial air service after airline deregulation and the changing dynamics of the industry. It is our opinion that unnecessary government regulation has played a key role in escalating the costs of essential air service (EAS) while at the same time those responsible for administering the program have been slow to implement laws put in place by Congress to maintain this vital component of air transportation to rural communities. By: RAP, Maurice Parker
April 29, 2005 Final Comments of United Airlines - Bookmarked First, and most importantly, DOT and its modal agencies must reorient their policy outlook and regulatory mindset to reflect current realities - notably, the new industry structure, financial pressures, and competitive environment in which U.S. air carriers now operate. The Department should eliminate requirements that serve no demonstrated public purpose yet hinder or delay carriers from taking commercially desirable actions that improve and expand the provision of air transportation services. The Department should work more actively to promote harmonization and coordination of policies and regulatory requirements across national borders and should be a strong voice for sensible policies that affect air transportation in the domestic political and inter-agency consultation arenas. The Department should better understand the scope and magnitude of the costs that its regulatory interventions impose on air carriers and look for ways to reduce such costs. Counsel: Wilmer Cutler, Jonathan Moss, 202-663-6960
April 29, 2005 Re: National Air Carrier Association Rebuttal to Comments of the Airline Dispatchers Federation The National Air Carrier Association does not concur with the recommended changes advanced by the Airline Dispatchers Federation. NACA finds these recommendations starkly bare of any data-based recommendations, and the proposals are totally lacking in any cost-based analysis, two essentials in the evaluation of any regulatory initiative. For those reasons, we simply ask that the DOT take no action on ADA's requested dismantling of the Public Charter and Supplemental rules in 14 CFR. If ADA has data to support their safety claims, which we sincerely doubt, they should file a formal petition for rulemaking. Even if that petition is filed, the Department need not expend its limited resources unless ADA provides significantly more facts, analysis and justification than is provided in this docket. By: NACA, Ron Priddy, 703-358-8061
May 6, 2005 Additional Comments of The Air Carrier Association of America Several major airports in this country remain closed to competition and affordable fares. As a result, some carriers cannot expand in multiple markets and some communities will never have affordable and direct service to important business markets. Those major airports include the high density airports ‑ Ronald Reagan Washington National Airport and LaGuardia Airport ‑ and O'Hare International Airport. While FAA has taken some steps to allow expansion of competition at O'Hare, few actions have been taken to expand entry and competition at the other two airports. Although the evidence is clear that entry has been limited and that the Department has a responsibility to take steps to promote competition, one of the country's legacy carriers has made comments that ask the Department to protect it from competition. A review of the following comments demonstrates why the government cannot leave air service in the hands of carriers such as United Airlines and why the Department must expand all options for new entrants and limited incumbents. Counsel: ACAA, Edward Faberman, 202-719-7420, epfaberman@acaa1.com
July 20, 2005 Supplemental Comments of United Air Lines Earlier this year (but after the DOT's regulatory review notice had beenpublished) a Chinese-flag carrier filed an application for exemption authority to operate services behind its Chinese gateway point (Shanghai) to other points in China, namely Shenyang and Shenzen, on flights that also served the U.S. It was clear that all services originating or terminating in Shenyang or Shenzen would operate via Shanghai as the gateway point in China (Docket OST-2005-20561). More recently, the same carrier filed another application for similar authority for services behind Shanghai to Dalian and Chengdu (Docket OST-2005-21810). United has no objection to the Chinese carrier's proposed service and did not want to delay it by filing answers with the Department. United questioned the need for this authority in communications to the carrier's counsel. On the occasion of the second filing, we were advised that DOT staff had told them that exemption authority was required to offer these behind‑gateway services. When we contacted DOT staff, this position was confirmed. It was explained that because the foreign carrier was offering "single flight number" service between the U.S. and the behind gateway points in China, the carrier required specific exemption authority from DOT to operate over those internal Chinese sectors. United again urges DOT to review its regulatory process and adopt policies and procedures that will avoid the recrudescence of regulatory sprawl exemplified by the new licensing requirements imposed on the Chinese carriers in the cases described above. The precedent of these orders will not be limited to this particular carrier or these particular markets or even carriers of this particular country. Other foreign carriers seeking advice as to what authority they require to operate services behind their homeland gateways may well follow the reinterpretation reflected in these cases. And, as noted above, that same interpretation may be applied reciprocally to U.S. carriers by foreign governments. Counsel: Wilmer Cutler, Jeffrey Manley, 202.663.6670
July 26, 2005 Delta concurs that regulation of behind‑gateway services operated by duly licensed foreign flag carriers within or behind their own homeland countries is an unnecessary and inappropriate extra‑territorial application of the Department's licensing rules. All carriers operating to the United States must hold economic authority issued by the Department of Transportation in the form of a foreign carrier permit or exemption. Further, such carriers must hold Part 129 operations specifications issued by the FAA. Any consumer protection issues and/or safety concerns regarding the foreign operator can and should be fully addressed within these existing regulatory mechanisms. The United States is a global leader in terms of promoting liberalization, open skies, and eliminating superfluous regulation. The Department should act consistently with those objectives and avoid unnecessary regulation of foreign carrier behind‑gateway flight numbers. Counsel: Delta and Hogan & Hartson, Robert Cohn, 202-637-4999, recohn@hhlaw.com
OST-2005-20112 - Notice of Regulatory Review October 7, 2005 In its application, Air Sahara seeks an exemption for authority to offer code-share services to and from the U.S. on services to be operated by American Airlines, Inc.. Air Sahara does not seek by this application authority to operate its own aircraft to or from the U.S. In support of its exemption application, Air Sahara offers an abbreviated description of its operations and management rather than the detailed description that has previously been required by the Department to support such applications. United has previously urged that the Department should reduce the regulatory filing requirements relating to code-share services. The application filed by Air Sahara is consistent with the sort of reduced filing requirements that United has in mind and would seem to offer DOT sufficient information on which to award authority to a foreign carrier proposing to offer only code-share service. If the Department is now prepared to accept an abbreviated application for exemption authority for a foreign carrier proposing to offer only code-share services such as that filed by Air Sahara, then it should include in the order granting Air Sahara's application a statement that, in the future, other foreign carriers seeking similar authority may rely on the abbreviated format used by Air Sahara, Such a declaration will help relieve an unnecessary regulatory burden that has been imposed on foreign carriers whose only interest in offering service subject to a DOT-imposed authorization requirement is in conjunction with a code share. In future, a foreign carrier proposing to offer services on aircraft operated by another authorized carrier or to offer code-share services solely outside the U.S. for a U.S. carrier should be allowed to rely on the application submitted here by Air Sahara as a template for its own application for similar authority related to code-share services not involving the operation of its own aircraft to or from the US. Counsel: Wilmer Cutler, Jeffrey Manley, 202-663-6670, jeffrey.manley@wilmerhale.com
OST-2005-22640 - Sahara Airlines - Exemption - India-US Codeshare with American October 7, 2005 Reply of Sahara Airlines to Comments of United Air Lines United does not oppose the Air Sahara Application, but instead asks the Department to include in the order that grants Air Sahara's exemption a general policy statement regarding the format for codesharing applications by foreign carriers. The Department's action on Air Sahara's Application is not, however, an appropriate forum for such a policy statement. The Department's action based on the Application will speak for itself, and DOT should not delay action on Air Sahara's Application in order to formulate a response to United's Comments. Counsel: Roller & Bauer, 202-331-3300, mroller@rollerbauer.com
OST-2005-22640 - US-India Codeshare with American Airlines Continental has not opposed, and does not oppose, either the application of Air Sahara in this proceeding or the application of American in Docket OST-2005-22622, but Continental is constrained to submit this reply to United's "comments" in this proceeding, which are part of United's campaign to eliminate regulatory review and supervision of international codeshare service. Continental does not object to abbreviated applications by foreign airlines, such as the application presented by Air Sahara, in appropriate circumstances. In some circumstances, however, the Department may well require additional information to address consumer, reciprocity, competition or other issues. For this reason, the Department should not hamstring its ability to secure additional information or delay its processing of the Air Sahara application to address United's proposal for a new policy on the information required for any and all foreign airline applications for international codeshare authority. Instead, the Department should continue its current practice of requiring applications for codeshare authority and tailoring information requirements to specific situations. Counsel: Crowell & Moring, Bruce Keiner, 202-624-2615, rbkeiner@crowell.com
OST-2005-22640 - US-India Codeshare with American Airlines October 21, 2005 Response of United Air Lines and Motion for Leave to File The mischief done by the present unwritten requirement may be illustrated by comparing the Application of Air One SpA. filed on October 20, 2005, in Docket OST-2005-22809 with that of Air Sahara herein. Both carriers are from open skies countries and both are seeking exemption authority solely to support code-share services involving U.S. carriers, with neither seeking to operate its own aircraft to the U.S. And yet, Air One has filed a 68-page application (35 pages excluding a code-share agreement) with exhibits corresponding to the detailed requirements of 14 CFR §302.303 while Air Sahara has filed a more abbreviated 15 page application with exhibits consisting primarily of a reproduction of its internet site. The information the Department needs is provided by Air Sahara's application, and future applicants should be spared the expense of the preparation of the more detailed application in the format followed by Air One. To assure consistency, the Department should simply include a formal statement in its order granting Air Sahara's application confirming that it is deemed to contain sufficient information for the Department's regulatory review of this type of application. To the extent that oversight may be needed to address "competition, bilateral or reciprocity and consumer issues and to ensure coordination as needed regarding security and safety issues", as urged by Continental, this could be accomplished by requiring authorized carriers to submit a simple notice of their codeshare arrangement in advance of its implementation. This would give the Department whatever opportunity it might need to intervene in the unusual situation where "regulatory oversight" was called for. At the same time, it would avoid the wasteful determination" that "codeshare services constitute a form of wet lease). At no time did the Department ever provide the necessary statement of basis and purpose for including "code‑share arrangement" in this rule. Rather, it merely inserted it into Part 212 instead of including it in a specific proposal accompanied by an explanation for its need. Counsel: Wilmer Cutler, Jeffrey Manley, 202-663-6670, jeffrey.manley@wilmerhale.com
April 14, 2006 Final Report - Bookmarked | As Published in the Federal Register for June 12th This is the Department's final report providing a brief response, including a description of further action we intend to take, to the public's participation in the Department of Transportation's review of its existing regulations and its current Regulatory Agenda. By: Norman Mineta |
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