Enhancing Airline Passenger Protections

OST-2007-0022

November 15, 2007

Advanced Notice of Proposed Rulemaking - Bookmarked | Word

As Published in Federal Register November 20, 2007

The Department of Transportation is seeking comment on whether it should adopt a rule to enhance airline passenger protections in the following ways: (1) require carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage, (2) require carriers to respond to consumer problems, (3) deem operating a chronically delayed flight to be unfair and deceptive, (4) require carriers to publish delay data, (5) require carriers to publish complaint data, (6) require on-time performance reporting for international flights, and (7) require carriers to audit their compliance with their customer service plans. We are proposing that most of these measures (specifically, 1, 2, 5, and 7) cover certificated or commuter air carriers that operate domestic scheduled passenger service using any aircraft with more than 30 passenger seats. We are proposing that measure 6 cover the largest U.S. and foreign carriers and that measures 3 and 4 cover the largest U.S. carriers.

By: Michael Reynolds

November 15, 2007

Executive Order - Chit Sheet

By: Joanne Petrie

January 22, 2008

Comments of the Air Carrier Association of America

The ACAA agrees with the Department's proposal that three of the new requirements cover only the largest carriers. For the largest carriers, it is indeed appropriate that the operation of a chronically delayed flight be deemed to be unfair and deceptive, that carriers be required to publish delay data on their websites, and that on-time performance reporting be required for international flights. The largest carriers have far more control over these issues than small carriers because the larger carriers have more flights, more gates, and more rerouting options. It is appropriate that small carriers not be subject to the above-mentioned requirements because delay data is skewed because these carriers have such a small number of flights total and in each market. The ability to compensate for delays or reroute customers varies by airport and airline size. Requiring small carriers to report this data would be misleading and would not serve the overall purpose to help travelers make informed decisions and protect passengers from being taken advantage of by the operation of chronically delayed flights.

Counsel: ACAA, Edward Faberman, 202-719-7420, epfaberman@acaa1.com

January 22, 2008

Comments of the Air Transport Association of America

ATA does not agree with the Department’s suggestion to require on-time performance reporting for international flights. International operations present a unique and different dynamic than domestic operations. For example, it is not unusual for carriers to purposefully hold an international flight for passengers who are delayed on an inbound connecting flight. Carriers do this as a positive customer service because such a flight may be the only operation to an international point for the day or even the week. With fewer flights on international segments, purposeful delays are important because leaving a passenger behind may result in stranding a passenger at an airport in a foreign country for an entire day or overnight. Carriers should not be penalized by having to report such delays. In addition, as wind speeds tend to be stronger over the oceans, carriers can face significant delays in travel when flying against prevailing winds. The result of international on-time reporting most likely would be for carriers to not wait for connecting passengers, stranding them in a foreign country for long periods of time. Therefore, ATA does not see a benefit to the public for international on-time reporting.

By: ATA, David Berg, 202-626-4000, dberg@airlines.org

January 24, 2008

Comments of the Airports Council International - North America

ACI-NA does not support the proposal that  a flight arriving late more than “70 percent” would be defined as chronically late.  It is very questionable that consumers would find this figure “reasonable”.  While the Department states in the ANPRM, consumers have a right to expect that an air carrier can arrive at the promised time “in most cases”, consumers rightfully expect more accurate information. Therefore, ACI-NA proposes that to maintain consumer confidence the minimum threshold for a chronically delayed flight should be set no higher than 50 percent of the time.

ACI-NA does not support the proposed  minimum of 45 flight operations per calendar quarter (approximately four flights/week).  We believe this level will exclude operations at many smaller airports, thus not providing passengers in these communities with the same protections as those who begin or end their travel in larger cities.  We propose that the definition be revised to  12 flight operations per calendar quarter (one flight per week).

ACI-NA wants to ensure that when defining a “covered carrier” the Department includes the operations of regional or feeder carriers that are  affiliated with the major/national airlines that account “for at least 1% of domestic scheduled passenger revenue”.  The reasons stated by the Department in its November 20, 2007, NPRM on “Oversales and Denied Boarding Compensation” for including aircraft with 30 to 60 seats are just as applicable here.  To the passenger, the effects of delays are the same regardless of which certificate holder actually operates the aircraft. Additionally, given the fact that regional airlines now transport one out of every four domestic passengers and operate half of daily domestic flights, as well as provide the only scheduled service to approximately 70 percent of U.S. airports, it is critical that DOT include their operations in the final rule.

By: ACI-NA, Greg Principato

January 22, 2008

Comments of the American Society of Travel Agents - Bookmarked

It is vital that the contingency plans have content that means something concrete. The description in the ANPRM refers to the plans having “assurance(s)” regarding components of passenger protection. An assurance is not a plan; it is, at best, an aspiration. Aspirational plans are not enough, as demonstrated by the failure of the so-called voluntary passenger service commitments adopted by many airlines in 1999. While it is surely impossible to predict everything that can or will occur to disrupt air travel in the future, there are a number of scenarios that have repeated frequently enough that specific action plans should be possible to address them.

The Department asks several questions about the costs and benefits of the proposed rules. There certainly will be some costs, but air travel should not be a form of reverse roulette in which some unlucky passengers suffer helplessly while the larger remainder go about their business untouched by the latest weather or other disruption. Taking care of passengers in irregular but foreseeable disturbances to the normal smooth flow of the system should be seen as a necessary cost of doing business. If all carriers are required to maintain meaningful response plans, passenger uncertainty and discomfort will decrease and consumer attitudes toward air travel will improve. There should be no competitive consequences to this form of regulation.

Counsel: ASTA, Paul Ruden, 703-739-6854, pruden@asta.org

January 22, 2008

Comments of the Association of Asia Pacific Airlines

The ANPRM seeks to apply the reporting requirement to “large foreign airlines”, in addition to domestic carriers as now, but with no indication on how such a criterion would be applied. In view of the stated objectives of this ANPRM, AAPA submits that the definition of “large foreign airlines” should preferably be based on frequency of flights in and out of the US, rather than on international airline revenues, since the proportion of revenues contributed by international routes to and from the US will vary significantly amongst international carriers. Setting a threshold for international airlines based on, for example, a minimum number of weekly frequencies to and from the US, would have the merits of simplicity whilst still supporting the intended objectives.

Counsel: AAPA, Beatrice Lim, 60-3-2145-5600

January 22, 2008

Comments of the Aviation Consumer Action Project

Granting each airline the unfettered right and power to determine the maximum tarmac delay is absurd on its face and would clearly constitute an unlawful delegation of DOT regulatory authority to the regulated parties. By including such in the contract of carriage, the airline and DOT would be imposing a contract of adhesion on all airline passengers that could be used by airlines as a legal tool to circumvent and vitiate existing common law rights of passengers and liabilities and duties of airlines under state tort and contract law. Such common law rights of false or wrongful imprisonment, infliction of emotional distress, prima facie tort, and outrage now form the only legal safety net for airline passengers subject to mistreatment by airlines in tarmac delay situations and form the only deterrent that prevents even greater use of tarmac confinements by airlines to avoid costs such as lodging, meals, alternate transportation long associated with mass stranding of passengers.

By: ACAP, Paul Hudson, 410-940-8934, acapaviation@yahoo.com

January 22, 2008

Comments of China Eastern Airlines

The information which DOT proposes to collect from the 'largest foreign carriers' is already available at no charge to consumers on several Internet websites. For example, www.flightstats.com contains detailed real-time and historical flight information for foreign air carriers conducting flights to the United States. Flightstats.com breaks down the arrivals and departures for each carrier by route, and provides the carrier's percentage of on-time flights; the number of delayed flights, including the average and maximum delay times; and percentage of cancelled and diverted flights. Flightstats.com ranks each carrier for each route according to performance, and even provides an airline 'scorecard' that lists each carrier's overall on-time flight performance.

Since consumers thus already have up-to-date flight delay information at their fingertips for every scheduled carrier conducting flights to the United States, China Eastern respectfully asserts that it seems unnecessary to require that the largest foreign carriers submit this information to DOT. Adopting this requirement can only result in increased costs to carriers which must be passed to consumers, when this information will merely be duplicative of what is already in the public sphere.

Counsel: Eckert Seamans, Evelyn Sahr, 202-659-6622, esahr@eckertseamans.com

January 22, 2008

Comments of Delta Air Lines - Bookmarked

With respect to DOT’s proposal to require reporting of the percentage of arrivals more than 30 minutes late and the percentage of cancellations, in Delta’s view the resulting percentages will be statistically insignificant, but will nevertheless require substantial infrastructure modifications to collect and report the data. Internal estimates suggest that the percentage of flights arriving more than 30 minutes late is just over ten percent system-wide. Delta currently tracks system-wide mainline flight completion rates. The result for November, 2007 was a completion rate of 99.3 percent. This suggests the percentage of time a given flight is cancelled will be, on average, less than one percent. Further, approximately 40 percent of all cancellations result from mechanical problems, which do not correlate to a specific flight, route or schedule. We contend, therefore, that it is unlikely this information will benefit consumer decision making concerning flight selection.

DOT has asked for comments on whether reservation agents should be required to disclose on-time performance information at the time of booking, without being asked. Requiring on-time disclosures for every flight being considered by every passenger when booking a ticket will necessarily increase call times, call wait times, and the costs associated with each. The additional delays will irritate callers who are not interested in this information and impose significant costs on carriers who will be forced to increase call center staffing to manage the increased load. As previously noted, our experience indicates few if any customers are interested in receiving this information. It is also a very poor predictor of on time performance at the time the passenger will actually be traveling in the vast majority of cases, so requiring carriers to proactively deliver the information to customers who did not ask for it is not likely to provide any useful information to them, and may in fact confuse or mislead them into choosing not to book reservations on flights which are in fact highly likely to operate on time during the period of their planned travel. It follows, therefore, that making on-time performance disclosure compulsory will negatively impact customer reservation services and increase carrier costs without providing anything close to an equal benefit to the consumer.

Counsel: Delta, J. Scott McClain, 404-773-6514

January 22, 2008

Comments of the Interactive Travel Services Association

ITSA believes that publication of flight-specific on-time performance data should be a matter left to the marketplace. If travelers desire/demand it, vendors should be able to apply their business judgment in whether and how it is presented. Moreover, we believe that statistical data on the record of even particular flights will be of virtually no use to consumers in avoiding the highly unpredictable egregious delays at the heart of prompting this regulatory initiative. We respectfully urge the Department to withdraw its suggestion in section 4 of the ANPRM that it mandate the publication of flight-specific on-time performance data by online travel reservation services, including the OTC and GDS members of ITSA.

By: ITSA, Arthur Sackler, 202-955-0089

January 22, 2008

Comments of the International Air Transport Association

A large majority of on-time performance data is publicly available. As such, if the Department were to. proceed with its proposal, the benefit to consumers would be limited to providing the small percentage of data that isn't publicly available. This needs to be balanced against the time, effort and resources that the airlines would need to spend bridging such a small gap, and the additional difficulties that could be caused by other States implementing their own (possibly conflicting) reporting requirements. In addition, the Department's well-intentioned proposal could easily result in unintended disadvantages for the subjects of its good intentions, namely the consumers.

Counsel: IATA, Douglas Lavin, 202-628-9292

January 17, 2008

Comments of Jet Airways (India)

Concerning a determination of what constitutes the "largest" foreign carriers (i.e., those that should be subject to the contemplated on-time reporting requirements), Jet Airways urges the Department to adopt an approach that (a) minimizes administrative burdens on the greatest number of operators possible (particularly smaller airlines, which are less likely to have sufficient resources to commit to additional reporting requirements) and (b) places all reporting airlines -- both U.S. and foreign -- on an equitable footing, while maintaining the Department's ability to collect meaningful data. To that end, it would seem reasonable to consider both (1) the number of weekly flights a foreign airline performs to U.S. airports overall, and (2) the concentration of international flights operated by a single foreign airline at each international gateway. For instance, all foreign airlines that operate, e.g., 70 or more weekly frequencies (i e., 10 daily flights) to and from the United States could automatically be included as a reporting carrier, and any foreign airline that exceeds a certain threshold at a relevant U.S. gateway (e.g., 10% of scheduled international departures at Airport X), irrespective of how many flights it operates to the United States overall, could also be required to report with respect to its flights at that specific gateway.

Given that Jet Airways operates relatively few international flights at the U.S. gateways it serves (Newark, JFK and, in the future, San Francisco), by either measure it proposes, Jet Airways would most likely not be required to report on-time data in the near term. However, in the event the Department determines that Jet Airways' current level of operations to the United States does warrant on-time reporting, Jet Airways is prepared, and equipped, to do so, but would urge the Department to take into account its comments concerning the disclosure of cause-of-delay information and the fair and equitable treatment of carriers.

Counsel: Hogan & Hartson, George Carneal, 202-637-6546, gucarneal@hhlaw.com

January 22, 2008

Comments of the National Air Carrier Association | Word

We believe it is inappropriate to add an air carrier’s contingency plan to its contract of carriage.  The contract of carriage is a legally binding document between the carrier and the passenger.  To the extent the carrier does not meet the provisions of the contract, a passenger has a private right of action against the carrier.  Given the vagaries of what would constitute appropriate emergency services, and in the absence of a specific statutory mandate, we believe that inclusion of such provisions within the contract of carriage exposes carriers to a myriad of unfounded lawsuits.  Rather, the Department should require at a minimum, that each carrier provide some form of public notice with respect to its customer service plan.  Carriers should have the option to make this notification through a variety of means, such as including it on an airline reservation or passenger information webpage, posting of notices at check-in counters, and, written notices in in-flight magazines or other materials included in the passenger seatback.  Each carrier should have flexibility to design its program in accordance with its own corporate policy.  In an effort to maintain a good public policy, carriers would be required to provide a copy of their plan to the Department, which in turn could be made publicly available.

By: NACA, Thomas Zoeller, tzoeller@naca.cc

January 22, 2008

Comments of the National Business Travelers Association | Word

NBTA does not support generally requiring carriers to develop and publish contingency plans.  Rather, NBTA believes, as discussed later in these comments that airlines should be required to prepare for certain situations that imperil basic passenger needs.  Of course, airlines that fail to adopt or utilize contingency plans are extremely likely to provide poor service to passengers in lengthy delay situations, and such carriers are likely to be considered a much less desirable travel option.  This observation is especially true for markets prone to delays due to location or time of year.

However, NBTA does encourage DOT to require carriers to maintain records on lengthy tarmac delays as a useful tool for analysis by DOT and private sector entities on airline performance.  NBTA recognizes that DOT is conducting an additional rule-making in this regard, (Docket No. OST 2007-28522), and recommends that such a mandate be included in any requirements emerging from that rule-making.

Counsel: NBTA, Shane Downey, 703-684-0836, sdowney@nbta.org

February 5, 2008

Re: Comments of the National Consumer League

The National Consumers League, a nonprofit organization founded in 1899 to advocate for consumers' economic and social interests, strongly agrees with and supports the attached views of U.S. PIRG. on ANPRM on "Enhancing Airline Passenger Protections.

By: Sally Greenberg, 202-835-3323

February 4, 2008

Re: Public Citizen's Congress Watch in Support of Comments of US PIRG

In response to the Department of Transportation's advance notice of proposed rulemaking concerning enhancing national airline passenger protections, Public Citizen—on behalf of its 100,000 members nationally—concurs with the views of the federation of Public Interest Research Groups and the Coalition for an Airline Passengers' Bill of Rights as expressed in the attached statements.

By: David Arkush, 202-588-1000

January 22, 2008

Comments of the Regional Airline Association - Bookmarked

Since no airline wants to offend its passengers, much less be the subject of derogatory late-night television monologues, airlines are becoming ever more sensitive to consumer concerns. Regional airlines and their major airline codeshare partners have been working together to apply lessons learned from problems that have arisen as a result of severe weather in the recent past and to adopt creative solutions that will benefit passengers in the future. Creative solutions by airlines and their personnel on the front lines assisting passengers are the best way to improve the system. To the extent the Department can encourage these solutions without restricting carrier initiatives and improve the Department's own systems to enhance the passenger experience, the Department's efforts are more than welcome.

The Department must be wary, however, of imposing regulatory requirements that would limit airline flexibility and creativity and sidetrack airline employees from assisting passengers to comply with regulatory requirements. In addition to imposing additional regulatory requirements on airlines, the Department should recognize that regional airline flights in particular compete with rail and bus surface transportation modes which face similar challenges from weather and congestion and should be held to similar standards and comparable regulatory requirements to ensure that a competitive imbalance is not created by the Department's action burdening regional airlines unnecessarily

Counsel: RAA, Roger Cohen, cohen@raa.org

January 22, 2008

Comments of Senators Barbara Boxer (CA) and Olympia Snowe (ME)

As the DOT moves forward with this rulemaking, we urge you to set minimum standards for the contingency plans and ask the DOT to both review and approve the plans proposed by the airlines. These minimum standards should not only include necessary food and water, but also passengers' right to safely deplane if they have spent more than three hours on the tarmac either when arriving at, departing from, or being diverted to an airport.

We support the proposals to improve communication between the airlines and their customers, and require airlines to track and provide consumers with more information about the past performance of flights and their carriers. Better information will help consumers make an educated choice when purchasing their ticket, and provides airlines an incentive to compete on the quality of their service as well as price.

By: Senators Boxer and Snowe

January 30, 2008

Comments of US Public Interest Research Groups

We strongly disagree with the Department's position that DOT should not review and approve the airline contingency plans proposed to be required to be submitted to it under the ANPRM. The ANPRM currently proposes that each of the scheduled airlines be allowed to "craft its own standard" for passenger protections in its contingency plan for tarmac strandings. This is unacceptable. Either DOT must issue a traditional Federal regulation establishing minimum standards for protecting stranded airline passengers, including fixed financial payments to passengers for violations (along the lines of the Federal denied boarding regulation), or the Congress and/or the states will have to fill that regulatory void.

By: Edmund Mierzwinski, 202-546-9787

January 22, 2008

Comments of Virgin Atlantic Airways

Virgin Atlantic objects to DOT’s proposal to require large foreign carriers to produce OTP. Virgin Atlantic believes that this request is both inappropriate and unduly burdensome. Given that Virgin Atlantic is not required to supply this information to the UK or EU, it would be problematic if Virgin Atlantic were required to produce and provide this data to US authorities. Moreover, such a requirement would put a significant regulatory burden upon Virgin Atlantic with questionable benefit to the consumer.

We understand the reasons why the DOT requires large U.S. domestic carriers to produce OTP. Domestic carriers are all subject to the same requirements under U.S. laws and, therefore, a comparison on punctuality can easily be made by the consumer. However international airlines are governed by their respective countries and operate in a wide variety of environments. Given that foreign carriers that operate international services are subject to a wide variety of local rules and regulations, and comply with complex security rules that vary greatly from market to market, it is impossible (and unfair) to make direct comparisons between them using OTP.

Counsel: Virgin, Barry Humphreys, 44-1293-747-064, barry.humphrey@fly.virgin.com

January 22, 2008

Comments of Zoom Airlines

In adopting any measure aimed at reducing airline delays, the Department should be mindful that the only alternative to a heavily delayed flight is sometimes a cancellation, and a cancellation may leave consumers with no other options to travel on other flights In an environment where airline load factors are high, as they are now. Thus, if an air carrier is forced to cancel a flight because it is heavily delayed, there is no guarantee that alternative timely lift would be available for the affected passengers. Thus, the Department's proposal with respect to chronically delayed flights might actually have unintended negative consequences for passengers.

The Department should not issue any notices of proposed rulemakings on these issues without holding consultations required by the open skies agreement with the EU, should consider adopting measures patterned on existing EU delay regulation and should adopt measures and standards to assure that any required on-time data reporting requirements for international flights produces data useful to consumers.

Counsel: Zoom, Jonathan Hinkles

February 1, 2008

Ex-Parte Letter to Senator Barbara Boxer

By: DJ Gribbin

February 1, 2008

Ex-Parte Letter to Senator Olympia Snowe

By: DJ Gribbin

March 3, 2008

DOT Request of Federal Register

We would appreciate your help in posting the attached Clarification Concerning Advance Notice of Proposed Rulemaking as soon as possible on Monday, March 3. If it is still possible to publish the document in the Wednesday, March 5 Federal Register, we would appreciate your doing that also. There is ongoing litigation that does not involve the Federal government; the matter we are clarifying in the attached notice is an issue in that litigation. There is a hearing on the matter on March 5. It is very important that the parties have notice of, and access to, this clarification as soon as possible; a citation to the Federal Register publication would be much better, if that is possible.

We would also appreciate it if you could advise us of the time of posting and the date of publication; if it is possible to be provided the citation to the document in the Federal Register before the date of publication, that, too, would be very helpful.

By: Neil Eisner

March 3, 2008

Advanced Notice of Proposed Rulemaking - Clarification

In a section of the ANPRM entitled "Regulatory Notices" the Department addressed a number of general regulatory issues as they relate to the ANPRM. including DOT Regulatory Policies and Procedures. Federalism, the Regulatory Flexibility Act and the Paperwork Reduction Act. In its discussion of Executive Order 13132, which sets forth certain requirements for Federal agencies when they are "taking action that preempts state law." the ANPRM concluded that it "does not propose any regulation that.. . preempts State law." Based upon comments DOT has received, and upon its own further review, the Department has determined that this statement has been misconstrued in the overall context of the proposed DOT regulation and its impact upon State law. This notice clarifies the Department's prior statement concerning preemption in this area.

Any State or local rules addressing, or related to, the services offered by air carriers are already preempted under the ADA. In addition, if the proposed rule addressed in the ANPRM is finalized, it is likely that the final rule would also separately preempt any such State or local regulations under other provisions of law. We need not further address any other grounds for preemption, particularly at the ANPRM stage, since, as explained above. States and localities are already precluded from regulating in this area.

By: Michael Reynolds

OST-2007-0022 - Enhancing Airline Passenger Protections
OST-2007-0108

February 26, 2008

Record of Meeting

By: Samuel Podberesky

OST-2007-0022 - Enhancing Airline Passenger Protections
OST-2007-0108

May 14, 2008

Re: Record of April 29, 2008 Meeting

Mr. Podberesky stated that there have been several other developments regarding the subject of tarmac delays since the last Task Force meeting. 

1. A final rule has been published regarding compensation for bumped passengers, titled Oversales and Denied Boarding Compensation (73 FR 21026, April 18, 2008). 

2. A final rule regarding Bureau of Transportation Statistics data collection for delayed and cancelled flights is in its final stages and will be published soon. 

3. Proposals to address the congestion in the New York Area airspace have been issued. 

4. The DOT is hosting a series of Aviation Consumer Forums to educate and receive comments from the public. The next forum, the Chicago Aviation Consumer Forum, will he in June and another forum will be held this fall. 

5. The comments received in response to the advance notice of proposed rulemaking that addresses similar issues as the Task Force, titled Enhancing Airline Passenger Protections (72 FR 65233, November 20, 2007), are still being reviewed. The DOT anticipates issuing a notice of proposed rulemaking by September 2008. 

By: Samuel Podberesky

October 6, 2008

Re: Comments of the Coalition for an Airline Passengers Bill of Rights

Under DOT's proposal, an airline's nine-hour stranding of passengers - such as I experienced on December 29, 2006- would be acceptable to DOT provided that the airline kept records on any strandings lasting four hours or longer. Worse, DOT "clarified" its ANPRM on March 5, 2008, maintaining that its proposed non-regulation would preempt any State or local law or regulation that attempted to establish real minimum standards for airline strandings (73 FR 11843). No standards and no legal relief for airline consumers.

Enclosed is the September 5, 2008, news release of the Government of Canada announcing its Flight Rights Canada regulatory system. We request DOT take formal notice of this broad-based program of passenger rights during its consideration of comments received in this Docket. DOT'S Notice at 72 FR 65233 indicated that "late-filed comments will be considered to the extent practicable."

However late-filed, the regulatory concepts in the Government of Canada's recently-adopted Flight Rights should be considered for inclusion in DOT's expected NPRM on "Enhancing Airline Passenger Protections."

By: Kate Hanni, 707-337-0328

November 18, 2008

Notice of Proposed Rulemaking - Bookmarked

The Department of Transportation seeks comment on rules it is proposing to enhance airline passenger protections in the following ways: by requiring air carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage, by requiring air carriers to respond to consumer problems, by deeming the continued operation of a flight that is chronically late to be unfair and deceptive in violation of 49 U.S.C. §41712, by requiring air carriers to publish information on flight delays on their websites, and by requiring air carriers to adopt customer service plans, incorporate these into their contracts of carriage, and audit their own compliance with their plans. The Department takes this action on its own initiative in response to the many recent instances when passengers have been subject to waits on airport tarmacs for very long periods and also in response to the ongoing high incidence of flight delays.

By: Michael Reynolds

September 11, 2008

Initial Regulatory Imact Analysis of Proposed Rulemaking - Bookmarked

The U.S. Department of Transportation is presenting this initial Regulatory Impact Analysis prepared by HDR|Decision Economics in support of the Notice of Proposed Rulemaking on Enhanced Passenger Protections. This RIA estimates the economic impact, in terms of all costs and benefits, accruing to passengers, air carriers and other entities regulated under this action, as required by Executive Order 12866. Economic impacts are measured on an incremental basis and against the current status of passenger rights on domestic airline carriers.

Public Comment Standard Form

The Department is inviting comment on our Notice of Proposed Rulemaking to enhance airUne passenger protections. We are providing this form to make it easier for you to submit comments and review those submitted by others. Use of this form will also make it easier for us to review your comments. The form identifies the seven areas addressed in the NPRM and the various questions and issues raised under each of these areas.

November 17, 2008 | On File at The Federal Register December 5, 2008

Notice of Proposed Rulemaking

As Published in Federal Register December 8, 2008

The DOT seeks comment on rules it is proposing to enhance airline passenger protections in the following ways: by requiring air carriers to adopt contingency plans for lengthy tarmac delays and incorporate them in their contracts of carriage, by requiring air carriers to respond to consumer problems, by deeming the continued operation of a flight that is chronically late to be unfair and deceptive in violation of 49 U.S.C. 41712, by requiring air carriers to publish information on flight delays on their websites, and by requiring air carriers to adopt customer service plans, incorporate these into their contracts of carriage, and audit their own compliance with their plans. The Department takes this action on its own initiative in response to the many recent instances when passengers have been subject to waits on airport tarmacs for very long periods and also in response to the ongoing high incidence of flight delays.

By: Michael Reynolds

December 8, 2008

Re: DOT Letter to Coalition for an Airline Passengers' Bill of Rights

Secretary of Transportation. Mary E. Peters, asked that I respond to your October 6, 2008, letter regarding the Coalition for an Airline Passengers' Bill of Rights' supplemental comments on the consumer initiatives described in the advanced notice of rulemaking titled "Enhancing Airline Passenger Protections." Thank you for submitting CAPBOR's comments. We always appreciate new ideas.

We have considered the comments that CAPBOR submitted on January 22, 2008, in developing the notice of proposed rulemaking. Unfortunately, however, CAPBOR's supplemental comments were received too late to be considered in connection with the drafting of the NPRM, but we will consider them in developing the final rule. The NPRM was published in the Federal Register on Monday, December 8.

By: Samuel Podberesky

November 25, 2008

Executive Order 12866 and Congressional Review Requirements

By: Blane Worrne

December 29, 2008

Re: Request of Air Transport Association to Extend Public Comment Period

The Air Transport Association of America, Inc., on behalf of our members, has a strong interest in the proposed rule (published in the Federal Register at 73 FR 74586 on December 8, 2008 that proposes to change airline passenger protections. A 60- day comment period, closing February 6, 2009, has been provided. By this filing, ATA requests the comment period be extended an additional 60 days.

The Initial Regulatory Evaluation for this proposal lacks substantial factual data in several areas that need to be developed to complete the cost-benefit analysis required by Executive Order 12866. As the IRE notes on page 18, “…the likely impact of these actions on costs are estimated without input from affected carriers other than that available in comments to the ANPRM.” The absence of carrier input is obvious because whole areas of costs are excluded. For instance, the IRE fails to address what likely will be the greatest cost of this proposal: the litigation costs that will result directly from the private right of action against any carrier that does not adhere to the provisions of its contingency or customer service plan, which the proposed rule seeks to create. The Department is well aware of the substantial costs associated with litigation and to omit any costs associated with potential litigation in all 50 states renders this IRE incomplete. In addition, if included in this analysis, litigation costs alone could easily tip the cost-benefit ratio into a negative number. Using the IRE’s own calculations of 10 year net present value of economic benefits of $106 million and 10 year NPV costs of $45 million, the 10 year NPV of litigation costs would only have to reach $61 million to result in a proposed rule that is not cost justified by Executive Order 12866 standards.

We also note that other factual data is missing or vastly underestimated, including costs associated with the following: (1) incorporating specialized delay data into carrier websites, particularly for those items not currently reported to the Bureau of Transportation Statistics, which would require additional programming to capture flights more than 30 minutes late and the percentage of cancellations, and (2) costs associated with a hard time limit and gate returns, especially lost consumer time costs resulting from overly conservative scheduling, return to gate or cancelations resulting from any hard time limits. Finally, the original copy of the IRE placed in the docket was very difficult to read on more than 30 pages, making most of the conclusions unintelligible and preventing the public from formulating a response.

All parties will have to develop as much information as possible about future costs associated with implementing a final rule in order to provide meaningful input. Speculation will not assist the Department, the public or stakeholders, could lead to inappropriate benefit-cost analysis and decision-making, and would detract from the validity of this rulemaking process. It will be difficult, at best, for our members to develop information that will inform the judgment of the Department regarding this rulemaking.

Given the extensive coordination this proposal will require and the coincidence of the comment period with the holiday season, and in light of the importance of this rulemaking – both in terms of customer service and the potential cost burden on industry that will result from a final rule – the proposed 60 day time period is inadequate. We therefore request that the public comment period for this proceeding be extended for an additional 60 days.

Counsel: ATA, Douglas Mullen, 202-626-4000

January 28, 2009

Re: Comments of City of Atlanta Department of Aviation

As the busiest airport in the world in terms of both passengers and operations, we strongly believe customer service contingency plans for lengthy tarmac delays are necessary at medium and large hub airports.

DOT should require contingency plans for lengthy tarmac delays to include:

• A uniform standard (2 hours) for the time interval that would trigger the terms of the carriers' contingency plan.
• Communication, coordination, and collaboration between the airport operator, airlines. Federal agencies, and the other service providers are clearly articulated in the local plans.
• Assurance of adequate food, water, lavatory facilities, medical attention, sufficient resources, and coordination with the airport operator

By: Benjamin DeCosta

January 29, 2009

On File at Federal Register January 29, 2009

Extension of Comment Period on Proposed Rule

The Department is extending through March 9, 2009, the period for interested persons to submit comments to its proposed rule on enhancing airline passenger protections.

By: Office of Regulation and Enforcement, Neil Eisner

On File at The Federal Register February 5, 2009

Extension of Comment Period on Proposed Rule

The Department is extending through March 9, 2009, the period for interested persons to submit comments to its proposed rule on enhancing airline passenger protections.

By: Neil Eisner

February 6, 2009

Re: Comments of the National Business Travel Association

NBTA does not support generally requiring carriers to develop and publish contingency plans. While NBTA supports carriers developing contingency plans and adopting recommendations set forth by the DOT Tarmac Delays Task Force, actions regarding use and implementation of such plans should not be required by regulation. NBTA believes that airlines that fail to adopt or utilize contingency plans are extremely likely to provide poor service to passengers in lengthy delay situations, and such carrier are likely to be considered a much less desirable travel option. Unfortunately, the causes of any specific lengthy tarmac delay is likely to be a combination of fact-specific occurrences related to weather, mechanical problems, or other factors. We continue to believe that an airline, working through its pilot with local air traffic control and airport operators, is more likely to resolve a tarmac delay in a manner most beneficial to the largest number of passengers, than trying to resolve through previously-prepared scenarios.

NBTA supports requiring carriers to provide performance data to prospective purchasers so long as these requirements are aligned with performance reports that carriers must file with DOT. NBTA recognizes that DOT is conducting an additional rule-making related to flight delays, and encourages DOT to align the requirements that might emerge from that rule-making with any new mandates in this area.

NBTA believes that customers flying on the same flight should be subject to the same contract of carriage terms regardless of when their ticket was purchased. Often times business travelers schedule their trips at the last minute and should not be subjected to different regulations due to the nature of their business.

By: NBTA

February 24, 2009

Re: DFW Airport in Support of Contingency Plan for Lengthy Tarmac Delays

Of the proposals under consideration, this letter specifically addresses the first of the proposed rules - Part 259.4 Contingency Plan for Lengthy Tarmac Delays. I strongly recommend approval of those elements of this rule which require: 1) air carriers to develop and implement a contingency plan for lengthy tarmac delays, 2) that the plan include defining and making public the maximum tarmac delay that would trigger the plan's terms, and 3) the assurance that the plan has been" coordinated with airport authorities at medium arid large hub airports that the carrier serves.

We believe minimum standards should be established for elements of contingency plans to ensure that such plans effectively address long on-board tarmac delays and provide for the health and safety of passengers.

By: James Crites

March 4, 2009

Comments of the American Society of Travel Agents

Given the substantial conformity of ASTA’s views with the substance of the NPRM, we were somewhat taken aback by the Background statement that “the travel agency associations expressed support for consumer protections but not at their members’ expense.” 73 Fed. Reg. 74587. We have re-searched our ANPMR comments for the source of this pejorative conclusion and cannot find it. We did say, twice, that we objected to costly unfunded mandates being imposed on travel agencies “without exhausting all other possibilities first.” This is quite different from saying ‘we’re for it, but only if we’re not inconvenienced.’

We maintain our opposition to further unfunded mandates even more dearly now in light of two developments since the ANPRM: (1) the collapse of the world economy, too well known to describe, and with it the free-fall in travel that has left many travel agencies fighting for their business lives, and (2) the adoption of the final Secure Flight rules which will result in large unfunded mandates on travel agencies of all types and sizes (notwithstanding which travel agencies supported the underlying principle of Secure Flight to move terrorist vetting from the airlines to the government). Unfunded mandates to address problems for which travel agents are not the cause should be reserved for the most pressing matters of national security or something of a similar gravity.

With that out of the way, ASTA strongly endorses the NPRM proposals that require airlines to (1) adopt and comply with contingency plans which must be incorporated into contracts of carriage to enable more effective private enforcement, and (2) make specific provision for substantively and timely response to consumer complaints. We also strongly support the conclusion that chronically delayed flights should be treated as unfair practices under 49 USC 41712. These are the most critical elements in improving the responsiveness of airlines to the problem of long on-board flight delays.

Counsel: ASTA, Paul Ruden, 703-739-6854

March 4, 2009

Re: Comments of the Interactive Travel Services Association

ITSA filed comments in response to the ANPRM in this docket. To reiterate our core position, ITSA believes that publication of flight-specific on-time performance data should be a matter left to the marketplace. If travelers desire/demand it, vendors should be able to apply their business judgment in whether and how it is presented. Moreover, we believe that statistical data on the record of even particular flights will be of virtually no use to consumers in avoiding the highly unpredictable egregious delays at the heart of prompting this regulatory initiative.

ITSA believes the Department has undertaken insightful analyses of the sections of the rule suggested in the ANPRM that would apply to OTCs and, by extension, the GDSs that provide information to them. We support the conclusions reached about the requirements contemplated in sections 5 and 6 of the ANPRM. And we once again urge the Department to make its tentative decision to not apply section 4 to the OTCs final.

Counsel: ITSA, Arthur Sackler, 202-955-0089

March 9, 2009

Comments of The Air Transport Association of America - Bookmarked

While we share the Department’s goal, we disagree with the view that additional regulation is necessary to achieve it. In almost all cases, extended flight delays are caused by a weather system that prevents airlines from operating as scheduled, and safety considerations become even more important. In these circumstances aircraft movements are largely out of the control of the airline -- as they are limited under guidelines established by the Federal Aviation Administration – Air Traffic Control authorities and by the individual airport specifying when it is safe for normal operations to resume and when and how passengers experiencing a long tarmac delay can be deplaned if they choose to do so. When these extreme circumstances occur, market forces and existing Department regulations, backed up by the Department’s enforcement authority, are sufficient to ensure airlines uphold their customer service obligations. In point of fact, carriers have learned from their experiences over the past two years and long delays have dropped in number and severity, while carrier responses have improved.

Counsel: ATA, David Berg, 202-626-4000

March 9, 2009

Re: Comments of Aviation Consumer Action Project

This NPRM is a last gasp Bush Administration/Airline Industry effort to turn over DOT regulatory authority to the regulated party. It would lead to a multiplicity of unenforceable “standards” and “plans.” Some airlines already are using a 4 to 6 hour guideline for tarmac confinements. As there is presently no federal standard, state common law standards for negligence and false imprisonment, state criminal statutes involving unsafe operation of aircraft and wrongful imprisonment or reckless endangerment, and possibly constitutional protections against unreasonable seizure are the only legal protections airline passengers have against indefinite tarmac confinements.

By: Paul Hudson

March 9, 2009

Comments of ExpressJet Airlines

These ExpressJet comments will make clear the limited role that most regional carriers play in initiating flight cancellations (other than those based on safety-related concerns) and how the proposed rules should be revised to take these important factors into account. It would be more than unfair to impose new regulatory burdens on regional carriers to the extent they operate solely at the request of mainline carriers that, in turn, make most of the non-safety related flight delay and cancellation decisions that are at the core of this rulemaking action. This is not to say that regional carriers like ExpressJet do not have a proper role to play in ensuring passengers comfort if they are subjected to lengthy ground delays. But failing to recognize the secondary part regional carriers play in providing code share services for mainline carriers, the Department could end up adopting regulations that place responsibility on regional carriers when they lack the direct means to alleviate the passenger's concerns.

Counsel: ExpressJet and Silverberg Goldman, Robert Silversberg, 202-944-3300

Comments of The Regional Airline Association - Bookmarked

Rather than penalizing airlines for circumstances beyond their control, the Department should focus on improving the efficiency of our nation's ATC system. To the extent the Department adopts the policy in proposed Section 399.81, the policy should apply only to airlines that hold out services to the public and ticket passengers. Such a limitation would be consistent with current Department enforcement policy with respect to disclosure of on‑time performance information and with the fundamental basis of the Department's authority under Section 41712, which is to prohibit unfair and deceptive practices. Since regional airlines fly schedules established by major airlines and do not advertise or publish flight times to the public independent of the mainline partner, it is difficult to understand how they could engage in the behavior the Department seeks to outlaw.

By: Faye Malarkey Black

March 9, 2009

Comments of US Airways

US Airways urges the Department to step back and reconsider the extent of the reregulation at work in this NPRM. The Department's effort is well‑intentioned, but overbroad. We urge the Department to revisit the cause of the majority of delays, and reconsider whether regulation is necessary. We also request that the Department consider making two important revisions to any contingency plan requirement that it promulgates: (a) excluding international operations; and (b) holding airports accountable for compliance with the contingency plans. The Department would benefit all stakeholders by avoiding proscriptive measures that attempt to prevent rare instances that are more often than not, beyond the direct control of the air carrier

Counsel: US Airways, Howard Kass, 202-326-5162

March 19, 2009

Re: Comments of National Consumer Groups - Consumer Action, Consumer Federation of America, Consumers Union, National Consumers League and U.S. PIRG

In general, our organizations support DOT’s taking an activist role in issuing regulations that protect airline passengers during long tarmac delays, that assure that air travelers will receive timely and accurate information from airlines when there are flight delays, and that provide for the effective enforceability of DOT requirements directly by passengers in state courts on understandable provisions in airline Contracts of Carriage, along with an activist DOT enforcement program. Thus we support the proposals in the NPRM but believe they should be strengthened.

Specifically, we are opposed to the DOT concept that would turn Federal regulatory authority over to individual airlines -- who would each decide how much protection to offer airline passengers stuck on airline aircraft at airports for many hours. In lieu of setting minimum Federal standards for airlines to provide water, food, working restrooms, comfortable cabin temperatures and an option to deplane when it is safe to do so, DOT is proposing to let each U.S. airline set its own guidelines without any Federal review and approval.

We support the recommendations of FlyersRights.org in the extensive comments they filed on March 9 on each of the sections of the NPRM.

By: National Consumer Groups, Ed Mierzwinski

August 11, 2009

Re: Comments of Secretary LaHood - Official Blog

DOT has a rulemaking in progress that proposes to require airlines to take certain steps to deal with lengthy tarmac delays, including establishing contingency plans that meet basic passenger needs during a lengthy tarmac delay. Some have proposed that DOT go further and set a time limit for carriers to deplane passengers. While I can't comment on the merits of the proposed rule yet, we will use the information Continental provides to help us reach a decision about what direction to go in that rulemaking.

Whatever shape any rule might take, I want readers to know that DOT is trying to help reduce the discomfort - and the resentment - that can turn a lengthy delay into a nightmare.

http://fastlane.dot.gov/ - Welcome to the Fast Lane - Official Blog of the US Secretary of Transportation

By: Ray LaHood

August 25, 2009

Comments of The American Society of Travel Agents

Respectfully moves for leave to file a brief supplemental comment reflecting new and pertinent information bearing on a major issue in this proceeding and a change of position by ASTA in light of that new information. The new facts relate to the flight diversion/delay incident involving Continental Express Flight 2816 on August 8, 2009. The passengers were stranded on the tarmac in Rochester, MN with dysfunctional toilets and only pretzels to each for seven and half hours. Preliminary investigations indicate that, this time, the problem lay not with the crew of the aircraft but with another airline that mistakenly believed the passengers could not be deplaned because the airport was “closed” and Transportation Security Administration personnel were not available.

ASTA has generally opposed the governmental imposition of a single standard for the number of hours that must pass before passengers should be permitted to deplane from a delayed/diverted flight. We hoped that the continuing problems encountered by the airlines in living up to promises contained in passenger service commitments, combined with pressures from the terrible publicity generated by the repetition of the tarmac delay incidents and from the prospect of government regulation of which this rulemaking is an example, would suffice to induce the airlines to meaningful and effective action.

Our hopes have been dashed on the rocks of reality. Despite the passage of much time, the exposure of service response deficiencies in case after case, and the consumption of many man-hours in the Department’s tarmac delay task force (whose report was issued more than nine months ago), nothing much has changed. Passengers continue to face inexplicable situations in which they are forced to endure extreme discomfort trapped on board aircraft that are delayed/diverted and for which no realistic relief if provided.

Counsel: ASTA, Paul Ruden, 703-739-6854

September 22, 2009

Email Message - Meeting of Air Transport Association and DOT Counsel

David Berg and Jim May of ATA dropped by my office yesterday at their request for a brief meeting that they had recently scheduled. At the meeting, they asked whether it would be helpful for me to have their members' perspective on DOT's proposed passenger bill of rights, and in particular on the issue of tarmac delays. They said they had discussed the issue with their membership and might be prepared to agree to a firm time limit on tarmac delays for domestic flights. I told them that, while we had discussed safety and operational implications of the proposed rule with the FAA, I was always interested in learning about any operational issues they believed a tarmac delay rule might entail, and encouraged them to send any such comments to me in writing. I added that while a final rule would inevitably impose costs and obligations on the airlines, we wanted to ensure that we struck the right balance in protecting consumers. They agreed to consider whether to send me a letter containing their members' views. If I receive any such letter, I will transmit it to you for posting in the docket.

By: Robert Rivkin

December 18, 2009

Final Rule - Bookmarked

The Department of Transportation is issuing a final rule to enhance airline passenger protections in the following ways: by requiring air carriers to adopt contingency plans for lengthy tarmac delays and to publish those plans on their websites; by requiring air carriers to respond to consumer problems; by deeming continued delays on a flight that is chronically late to be unfair and deceptive in violation of 49 USC §41712; by requiring air carriers to publish information on flight delays on their websites; and by requiring air carriers to adopt customer service plans, to publish those plans on their websites, and audit their own compliance with their plans. The Department took this action on its own initiative in response to the many instances when passengers have been subject to delays on the airport tarmac for lengthy periods and also in response to the high incidence of flight delays and other consumer problems.

By: Ray LaHood

December 17, 2009

Final Regulatory Impact Analysis of Rulemaking on Enhanced Passenger Protections - Bookmarked

The U.S. Department of Transportation is presenting this Final Regulatory Impact Analysis prepared by HDR|Decision Economics in support of the Final Rulemaking on Enhanced Airline Passenger Protections. This RIA estimates the economic impact, in terms of all costs and benefits, accruing to passengers, air carriers and other entities regulated under this action, as required by Executive Order 12866. Economic impacts are measured on an incremental basis and against the current status of passenger rights on domestic airline carriers.

By: DOT

Issued December 18, 2009 | On File at Federal Register December 29, 2009

Final Rule

The Department of Transportation is issuing a final rule to enhance airline passenger protections in the following ways: by requiring air carriers to adopt contingency plans for lengthy tarmac delays and to publish those plans on their websites; by requiring air carriers to respond to consumer problems; by deeming continued delays on a flight that is chronically late to be unfair and deceptive in violation of 49 USC 41712; by requiring air carriers to publish information on flight delays on their websites; and by requiring air carriers to adopt customer service plans, to publish those plans on their websites, and audit their own compliance with their plans. The Department took this action on its own initiative in response to the many instances when passengers have been subject to delays on the airport tarmac for lengthy periods and also in response to the high incidence of flight delays and other consumer problems.

By: Ray LaHood

January 22, 2010

Re: Request of Air Transport Association, Regional Airline Association and Air Carrier Association of America to Extend Effective Date

By this filing, ATA requests the Department extend the effective date 90 days for the disclosure requirements in 14 CFR 234.11(b) that will require extensive changes to carrier reporting systems.

The Department mandates several reporting requirements in this final rule that will require system and protocol changes, design work, programming, and testing of the new procedures to ensure data integrity. Specifically, the Department mandates that for each domestic flight for which schedule information is available on its Web site, including domestic code-share flights, a reporting carrier must display (1) the percentage of arrivals that were on time, i.e. a flight that arrives less than 15 minutes after its published arrival time, (2) the percentage of arrivals that were more than 30 minutes late, (3) special highlighting if the flight was more than 30 minutes late more than 50 percent of the time, (4) the percentage of flight cancellations if 5 percent or more of the flight’s operations were canceled in the month covered.

Most carriers already comply with the first item but all of the remaining items represent new parameters and items (2) and (3) are not currently reported to the Bureau of Transportation Statistics. Each carrier will have to develop a method to capture the percentage of arrivals more than 30 minutes late and to identify any flights that are 30 minutes late more than 50 percent of the time. In addition to designing how the information will be captured, each carrier will have to program their internal systems to make these changes and test the new procedures to ensure data integrity. Carriers will also have to modify their websites to display this new information. Finally, in addition to all of the internal carrier changes, each carrier will also have to complete the same processes for each domestic codeshare partner whose flights are displayed on its website. This inter-carrier coordination to display historic flight information for domestic codeshare partner(s) is unprecedented and will take a significant amount of time.

Counsel: Doug Mullen, 202-626-4000 for ATA / Roger Cohen, 202-367-1250 for RAA / Edward Faberman, 202-719-1420 for ACAA

February 12, 2010

Supplemental Information from The Air Transport Association of America to Support the Request to Extend Effective Date

Submits this supplemental filing to support our January 22, 2010 request to extend the effective date for certain flight time metrics required by the Department’s consumer protection final rule published in the Federal Register at 74 FR 68983 on December 30, 2009 with an effective date of April 29, 2010. We provide additional information concerning the process and time required for carriers to comply with 14 CFR 234.11(b).

Counsel: ATA, David Berg, 202-626-4000

Letter to DOT from Disgruntled Continental Airlines Passenger Concerning an International Flight

OST-2010-0039
OST-2007-0022 - Enhancing Airline Passenger Protections

February 26, 2010

Re: Comments of FlyersRights.org on Request of Airline Associations to Extend Effective Date of Certain Disclosure Requirements

FlyersRights.org is concerned that airlines can nullify the intended purposes of the DOT regulation - and any Congressional tightening of its requirements - by "padding their schedules" to mask poor operating performance. A recent article in the Wall Street Journal, "How a Six-Hour N.Y. to L.A. Flight Grew to Seven Hours" February 4, 2010, at page D-1, documented how airlines have been increasing departure-to-arrival "block time" solely to boost their apparent on- time performance.' We ask that DOT take notice of that article.

We can understand that block time could reasonably be increased because of system congestion. However, increasing block time to nullify the new DOT regulation's publication of chronically delayed flights should be considered a violation of 49 USC 41712, as an unfair and deceptive practice.

By: FlyersRights.org, Kate Hanni

OST-2007-0022
OST-2010-0039

March 4, 2010

Request of JetBlue Airways for an Exemption

JetBlue Airways Corporation submits this request for an exemption from the requirements of 14 CFR § 259.4. JetBlue requests this exemption for the time period that operations at John F. Kennedy International Airport are disrupted by the closure of the main runway at that airport. Specifically, JetBlue requests relief from 14 CFR §§ 259.4(b)(1) and (b)(2) to the extent that those sections require JetBlue to “comply and adhere to” a contingency plan pursuant to which JetBlue will not permit an aircraft to remain on the tarmac for more than three hours or, in the case of international flights, for a determined period of time. JetBlue will inform passengers before boarding that significant delays may be encountered because of the Bay Runway closing and will ensure that each of its aircraft is stocked with sufficient food and beverages to accommodate any such delay. In addition, lavatories will be available and LiveTV will be provided to passengers on each aircraft. Although JetBlue has already taken several steps to minimize the impact of this closure on its JFK operations, including a voluntary and significant reduction in planned flight operations and implementing guidelines for passenger comfort and convenience in such situations that are more stringent than current law, this exemption is necessary to ensure that JetBlue is not penalized if JFK becomes gridlocked at peak operating times.

Counsel: JetBlue, Robert Land, 718-709-3089

OST-2007-0022
OST-2010-0039

March 5, 2010

Re: Comments of Delta Air Lines in Support of jetBlue Petition and Request for Exemption

On March 4, 2010, jetBlue submitted a request for a temporary exemption from the new tarmac delay rules which take effect on April 29, 2010. jetBlue requested an exemption at JFK for the limited time period that operations at that airport will be impacted by the closure of the main runway for construction. This construction is estimated to be completed by November, 2010.

Delta supports jetBlue’s request for an exemption, and further requests that the identical relief be extended to Delta and other similarly situated carriers. Like jetBlue, Delta operates a hub at JFK. Delta has already trimmed its JFK schedule and will take all reasonable measures to minimize inconvenience to passengers. However, Delta agrees with jetBlue that rigid and inflexible application of the new tarmac delay rule would have the unintended and undesirable effect of exacerbating passenger inconvenience and disruption by forcing the cancellation of flights that could otherwise be operated. Airline recovery and reaccommodation efforts will be further hampered by the reduced capacity of the airport.

Delta is willing to abide by the same terms and conditions proposed by jetBlue, including informing passengers of the likelihood of delays, and ensuring that there is adequate food, beverage, and sanitary facilities available.

Counsel: Delta, Sascha Van der Bellen, 202-842-4184

OST-2010-0039
OST-2007-0022

Issued March 5, 2010 | On File at Federal Register March 9, 2010

Notice of Proposed Rulemaking

As Published in Federal Register March 10, 2010

The Department of Transportation is proposing to extend by 45 days, or until June 14, 2010, the compliance date of the provision in its final rule entitled “Enhancing Airline Passenger Protections,” published December 30, 2009, and effective April 29, 2010, that requires airlines to publish flight delay information on their websites. This proposal is in response to the petition of the Air Transport Association of America, the Regional Airline Association and the Air Carrier Association of America for an additional 90 days time for airlines to comply with the requirement to display flight delay data on websites in view of the extensive changes to carriers’ reporting systems that are necessitated by the rule and their contention that completion of these tasks is not possible by April 29, 2010, the current effective date of the requirement. The Department acknowledges that additional time to comply with the posting of flight delay information on the carriers’ websites may be warranted to ensure the posting of complete and accurate information but is not persuaded that the full 90 days requested by the carrier associations is needed. Therefore, this NPRM proposes to extend the compliance date for the provision in question for an additional 45 days, from April 29, 2010, to June 14, 2010.

By: Ray LaHood