2014 NPRM 60 Day Notice

Vol. 79

Friday,

No. 100

May 23, 2014

Part III

Department of Transportation

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14 CFR Parts 234, 244, et al.
Transparency of Airline Ancillary Fees and Other Consumer Protection
Issues; Proposed Rule

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Federal Register / Vol. 79, No. 100 / Friday, May 23, 2014 / Proposed Rules

DEPARTMENT OF TRANSPORTATION
Office of the Secretary
14 CFR Parts 234, 244, 250, 255, 256,
257, 259, and 399
[Docket No. DOT–OST–2014–0056]
RIN 2105–AE11

Transparency of Airline Ancillary Fees
and Other Consumer Protection Issues
Office of the Secretary (OST),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking.
AGENCY:

The Department is seeking
comment on a number of proposals to
enhance protections for air travelers and
to improve the air travel environment,
including a proposal to clarify and
codify the Department’s interpretation
of the statutory definition of ‘‘ticket
agent.’’ By codifying the Department’s
interpretation, the Department intends
to ensure that all entities that
manipulate fare, schedule, and
availability information in response to
consumer inquiries and receive a form
of compensation are adhering to all of
the Department’s consumer protection
requirements that are applicable to
ticket agents such as the full-fare
advertising rule and the code-share
disclosure rule.
This NPRM also proposes to require
airlines and ticket agents to disclose at
all points of sale the fees for certain
basic ancillary services associated with
the air transportation consumers are
buying or considering buying.
Currently, some consumers may be
unable to understand the true cost of
travel while searching for airfares, due
to insufficient information concerning
fees for ancillary services. The
Department is addressing this problem
by proposing that carriers share realtime, accurate fee information for
certain optional services with ticket
agents.
Other proposals in this NPRM to
enhance airline passenger protections
include: Expanding the pool of
‘‘reporting’’ carriers; requiring enhanced
reporting by mainline carriers for their
domestic code-share partner operations;

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SUMMARY:

requiring large travel agents to adopt
minimum customer service standards;
codifying the statutory requirement that
carriers and ticket agents disclose any
airline code-share arrangements on their
Web sites; and prohibiting unfair and
deceptive practices such as undisclosed
biasing in schedule and fare displays
and post-purchase price increases. The
Department is also considering whether
to require ticket agents to disclose the
carriers whose tickets they sell in order
to avoid having consumers mistakenly
believe they are searching all possible
flight options for a particular city-pair
market when in fact there may be other
options available. Additionally, this
NPRM would correct drafting errors and
make minor changes to the
Department’s second Enhancing Airline
Passenger Protections rule to conform to
guidance issued by the Department’s
Office of Aviation Enforcement and
Proceedings (Enforcement Office)
regarding its interpretation of the rule.
DATES: Comments must be received by
August 21, 2014. Comments received
after this date will be considered to the
extent practicable.
ADDRESSES: You may file comments
identified by the docket number DOT–
OST–2014–0056 by any of the following
methods:
• Federal eRulemaking Portal: Go to
http://www.regulations.gov and follow
the online instructions for submitting
comments.
• Mail: Docket Management Facility,
U.S. Department of Transportation, 1200
New Jersey Ave., SE., Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery or Courier: The
Docket Management Facility is located
on the West Building, Ground Floor, of
the U.S. Department of
Transportation,1200 New Jersey Ave.
SE., Room W12–140, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
• Fax: 202–493–2251.
Instructions: You must include the
agency name and the Docket Number
DOT–OST–2014–0056 or the Regulatory
Identification Number (RIN) for the
rulemaking at the beginning of your
comment. All comments received will
be posted without change to http://

www.regulations.gov, including any
personal information provided.
Privacy Act: Anyone is able to search
the electronic form of all comments
received in any of our dockets by the
name of the individual submitting the
comment (or signing the comment if
submitted on behalf of an association, a
business, a labor union, etc.). You may
review DOT’s complete Privacy Act
statement in the Federal Register
published on April 11, 2000 (65 FR
19477–78), or you may visit http://
DocketsInfo.dot.gov.
Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov or to the street
address listed above. Follow the online
instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT:
Kimberly Graber or Blane A. Workie,
Office of the Assistant General Counsel
for Aviation Enforcement and
Proceedings, U.S. Department of
Transportation, 1200 New Jersey Ave.
SE., Washington, DC 20590, 202–366–
9342 (phone), 202–366–7152 (fax),
[email protected] or
[email protected] (email).
SUPPLEMENTARY INFORMATION:
Executive Summary
1. Purpose of the Regulatory Action
The U.S. Department of
Transportation (DOT) is issuing this
notice of proposed rulemaking (NPRM)
to improve the air travel environment of
consumers based on its statutory
authority to prohibit unfair or deceptive
practices in air transportation, 49 U.S.C.
41712. The Department is taking action
to strengthen the rights of air travelers
when purchasing airline tickets from
ticket agents, ensure that passengers
have adequate information about
regional carriers’ operations to make
informed decisions when selecting
flights, increase notice to consumers of
some of the fees carriers charge for
optional or ancillary services, and
prohibit unfair and deceptive practices
such as post-purchase price increases
and undisclosed biasing in fare and
schedule displays.
2. Summary of Regulatory Provisions

Subject

Proposed rule

1 ..........

Codification of the Department’s Interpretation of ‘‘Ticket Agent’’.

2 ..........

Disclosure of Certain Ancillary Fee Information to Consumers (‘‘GDS Issue’’).

Codifies the Department’s broad interpretation of the statutory definition of the term
‘‘ticket agent’’ to include Global Distribution Systems (GDS), websites with flight
metasearch engines, and similar intermediaries in the sale of air transportation, if the
intermediary is compensated in connection with the sale of air transportation.
Two alternative proposals regarding disclosure of fee information for basic ancillary
services.
• Proposal #1: Requires carriers to disclose fee information for basic ancillary services to all ticket agents to which a carrier provides its fare information, including
GDSs.

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Federal Register / Vol. 79, No. 100 / Friday, May 23, 2014 / Proposed Rules

29971

Subject

Proposed rule

3 ..........

Expansion of Reporting Carriers for Service
Quality Data.

4 ..........

Data Reporting for Domestic Code-Share
Partner Operations.

5 ..........

Customer Service
Ticket Agents).

6 ..........

Transparency in Display of Code-Share Operations as Required by 49 U.S.C.
41712(c).

7 ..........

Disclosure of the Carriers Marketed (Applies to Large Travel Agents Only).

• Proposal #2: Requires carriers to disclose fee information for basic ancillary services to all ticket agents to which a carrier provides its fare information and which
sell air transportation directly to consumers; this would exclude ticket agents that
arrange but don’t sell air transportation, such as GDSs.
Both proposals would:
• Define basic ancillary services as first checked bag, second checked bag, one
carry-on item, and advance seat selection, to the extent these options are offered
by the carrier.
• Not require a carrier to allow ticket agents to sell these services; or if a carrier
permits ticket agents to sell those services, it would not require carriers to charge
the same fee for the service as the agents. If a carrier is not selling the service
through a ticket agent, the carrier and ticket agent are responsible for disclosing
to consumers when and how fees should be paid, and for baggage fees, must
honor the fee quoted at the time of purchase.
• Require all ticket agents and airlines that provide fare information to consumers
to also provide fee information for basic ancillary services to consumers. This information should be made available to the consumer at the point in which fares
are being compared.
• Prohibit ticket agents with existing contractual agreements with a carrier for the
distribution of the carrier’s fare and schedule information from charging additional
or separate fees for distribution of information about basic ancillary services—i.e.,
a ticket agent cannot unilaterally change contract terms to require additional payments to upload and disseminate the required ancillary service fee information.
Existing contracts should be honored until the contract expires unless mutually
renegotiated by the parties.
Expands the pool of reporting carriers from any carrier that accounts for at least 1% of
domestic scheduled passenger revenue to any carrier that accounts for at least 0.5%
of domestic scheduled passenger revenue.
(This definition would cover carriers such as Spirit Airlines, Allegiant Airlines, and Republic Airlines.)
Requires reporting carriers to include data for their domestic scheduled flights operated
by their code-share partners:
• On-time Performance
• Mishandled Baggage
• Oversales
Requires large ticket agents (those with annual revenue of $100 million or more) to
adopt certain customer service commitments, including a commitment to:
• Provide prompt refunds where ticket refunds are due, including fees for optional
services that consumers purchased from them but were not able to use due to
flight cancellation or oversale situation;
• Provide an option to hold a reservation at the quoted fare without payment, or to
cancel without penalty, for 24 hours;
• Disclose cancellation policies, seating configurations, and lavatory availability on
flights;
• Notify customers in a timely manner of itinerary changes; and
• Respond promptly to customer complaints.
Amends the Department’s code-share disclosure regulation to codify the statutory requirement that carriers and ticket agents must disclose any code-share arrangements
on their Web sites. Requires disclosure on the first display presented in response to a
search of a requested itinerary for each itinerary involving a code-share operation.
Disclosure must be in a format that is easily visible to a viewer.
Seeks comments regarding whether:

Commitments

(Large

8 ..........

Prohibition of Display Bias ...........................

9 ..........

Prohibition on Post-Purchase Price Increases For Ancillary Services.

• To require large ticket agents to maintain and display lists of carriers whose tickets they market and sell; and if required, how to disclose the carriers that are
marketed and sold by the ticket agent.
Prohibits undisclosed biasing by carriers and ticket agents in any Internet displays of
the fare and schedule information of multiple carriers.
Revises the existing prohibition on post-purchase increases with respect to the price of
ancillary services that are not purchased with the air transportation so carriers and
other sellers of air transportation are only prohibited from increasing the price for the
carriage of baggage. The price for other ancillary services not purchased at the time
of ticket purchase may be increased until the consumer purchases the service itself.

3. Summary of Preliminary Regulatory
Analysis

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Federal Register / Vol. 79, No. 100 / Friday, May 23, 2014 / Proposed Rules
SUMMARY OF MONETIZED COSTS AND MONETIZED BENEFITS OVER 10 YEARS, DISCOUNTED AT 7 PERCENT
[Millions $]
Provisions

Benefits

1: Definition of ticket agent ......................................................................................................................................
2: Disclosure of certain ancillary fees information to consumers ...........................................................................
3 & 4: Reduce reporting threshold to 0.50% and submit additional set of reports that includes code-share partners ......................................................................................................................................................................
5: Minimum customer service standards for ticket agents ......................................................................................
6: Display bias prohibition .......................................................................................................................................
7: Disclosure of code-share segments in schedules, advertisements and communications with consumers .......
8: Disclosure of carriers marketed ..........................................................................................................................
9: Prohibition of post-purchase price increase for ancillary services ......................................................................

N/A
$ 46.15

N/A
$ 25.1

29.75
2.97
N/A
N/A
N/A
N/A

N/A
N/A
N/A
N/A
N/A
N/A

Total (Proposed Provisions) .............................................................................................................................

80.51

25.1

The quantifiable costs of this
rulemaking exceed the quantifiable
benefits. However, when unquantified
costs and benefits are taken into
account, we anticipate that the benefits
of this rulemaking would justify the
costs. It was not possible to measure the
benefits of the proposals in this
rulemaking, except for the benefits for
provision 2. For example, there are a
number of unquantified benefits for the
proposals such as improved on time
performance for newly reporting carriers
and code-share flights of reporting
carriers, improved customer goodwill
towards ticket agents, and greater
competition and lower overall prices for
ancillary services and products. There
are also some unquantified costs such as
increased management costs to improve
carrier performance, increased staff time
to address consumer complaints, and
decreased carrier flexibility to
customize services, though we believe
these costs would be minimal. If the
value of the unquantified benefits, per
passenger, is any amount greater than
one cent and the unquantified costs are
minimal as anticipated, then the entire
rule is expected to be net beneficial.
Background

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Costs

This NPRM addresses several
recommendations to the Department
regarding aviation consumer protection
as well as two issues identified in the
second Enhancing Airline Passenger
Protections final rule. In that final rule,
the Department instituted many
passenger protections including
expanding the rules regarding lengthy
tarmac delays to non-U.S. carriers,
requiring U.S. and non-U.S. carriers to
adopt and adhere to minimum customer
service standards, increasing the
amounts of involuntarily denied
boarding compensation, enhancing Web
site disclosures for baggage fees and
other ancillary service fees, and
prohibiting post-purchase price
increases. See 76 FR 23110 (April 25,

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2011). However, the Department
declined to impose a requirement on
airlines to provide their fee information
for ancillary services to Global
Distribution Systems (GDSs), stating
that the Department needed to learn
more about the complexities of the
issue. This NPRM addresses the issue of
disclosure of ancillary services fee
information. Additionally, subsequent
to the publication of the 2011 final rule,
in response to questions received
regarding the post-purchase price
increase rule, the Department’s Office of
Aviation Enforcement and Proceedings
(Enforcement Office) issued Guidance
on Price Increases of Ancillary Services
and Products not Purchased with the
Ticket on December 28, 2011 available
at http://www.dot.gov/airconsumer. In
that guidance, the Enforcement Office
noted the Department’s decision to
revisit in this NPRM the rule as it relates
to post-purchase price increases for
certain ancillary services not purchased
with the ticket.
This NPRM also addresses certain
recommendations made by two Federal
advisory committees—the Future of
Aviation Advisory Committee (FAAC)
and the Advisory Committee on
Aviation Consumer Protection. The
FAAC was established on April 16,
2010, with the mandate to provide
information, advice, and
recommendations to the Secretary of
Transportation on ensuring the
competitiveness of the U.S. aviation
industry and its capability to address
the evolving transportation needs,
challenges, and opportunities of the
global economy. On December 15, 2010,
the FAAC delivered a report to the
Secretary with 23 recommendations.
FAAC Recommendation 11 addressed
disclosure of ancillary service fees,
code-share operations, and air travel
statistics. This NPRM incorporates
many aspects of FAAC
Recommendation 11. For more

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information regarding the FAAC, please
visit http://www.dot.gov/faac.
More recently, on May 24, 2012, the
Advisory Committee on Aviation
Consumer Protection was established to
advise the Secretary in carrying out
activities related to airline customer
service improvements. On October 22,
2012, this Committee submitted its first
set of recommendations to the Secretary
on a wide range of aviation consumer
issues, including adopting FAAC
Recommendation 11, which urged
greater transparency in the disclosure of
ancillary fees and code-share
operations. This NPRM addresses the
recommendations by the Committee to
ensure transparency in air carrier
pricing, to require on-time performance
data be reported to the Department for
all flights and airlines, and to mandate
disclosures by online travel agencies
and other agents as to which carriers’
services they sell. Records relating to
the advisory committee, including a
transcript and minutes of its meetings
and its full recommendation report, are
contained in the Department’s docket,
which is available at http://
www.regulations.gov under docket
number DOT–OST–2012–0087.
Notice of Proposed Rulemaking
1. Clarifying the Definition of ‘‘Ticket
Agent’’
This NPRM proposes a regulatory
definition for the statutory term ‘‘ticket
agent’’ to clarify for the industry what
type of entity the Department considers
to be a ticket agent and to ensure that
its consumer protection regulations
apply to all entities that hold out airfare,
schedule, and availability information
to consumers. Consumers and
stakeholders in the air transportation
industry have identified relatively new
entities, such as meta-search engines, as
primary information sources and entry
points for the purchase of air
transportation. However, such entities
do not consistently provide the

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information that the Department views
as vital to consumer protection such as
code-share disclosure. For example,
consumers may begin their search for air
transportation options by selecting their
flights on one Web site and then
completing their purchase on another
Web site and, in the process, not be
provided disclosures regarding codeshare operations, baggage fee
information, and other consumer
protection information that the
Department requires air carriers, foreign
air carriers, and ticket agents provide to
consumers early in the process.
The Department is considering
codifying in its regulations its
interpretation of the statutory definition
of ‘‘ticket agent’’ to make clear that all
entities involved in the sale or
distribution of air transportation,
including those intermediaries that do
not themselves sell air transportation
but arrange for air transportation and
receive compensation in connection
with the sale of air transportation, are
ticket agents subject to the Department’s
regulations regarding the display of
airfare information. The definition
would include all commercial entities
that are involved in arranging for the
sale of air transportation through the
Internet (among other channels),
regardless of whether an entity received
a share of revenue from a third party for
transactions that originated on the
entity’s Web site, or the entity charged
a commission for each transaction that
originated on its Web site, or the entity
was simply compensated on a cost-perclick for advertisements, or was
compensated on some other basis.
The means by which airline
itineraries are commonly displayed and
sold has changed dramatically and
continues to evolve. New entities that
were not previously involved in the
distribution of air transportation are
now an important source of information
for consumers as well as a means of
distribution for carriers. Online entities,
such as Web sites that provide a variety
of travel information, advertising, and
links as well as meta-search engines that
provide flight search tools including
fare and schedule information, are now
frequently used by consumers to
research airfares and schedules and to
connect to the airline or travel agent
Web site that ultimately books and/or
fulfills the consumer’s ticket purchase.
Meanwhile, some airlines provide direct
electronic access to their own internal
systems providing fare, schedule, and
availability information to certain
Internet entities with the condition that
when displaying that carrier’s flight
itineraries in flight search results, the
entity must provide a link only to the

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airline’s Web site and not to travel agent
Web sites that have similar information.
Staff members from the Department
have been informed that, in some cases,
entities such as meta-search engines and
other Web sites that operate flight
search tools receive a commission or
some other compensation for
transactions that originate on their Web
sites, for example, from a flight search
tool that allowed the consumer to select
a particular itinerary. However, in other
cases, entities that are involved in
arranging for air transportation by
allowing a consumer to select an
itinerary using a flight search tool are
compensated for advertising and not for
the individual transaction. But
regardless of the manner of
compensation, consumers are
increasingly relying on those Internet
entities in making their air
transportation purchasing decisions. In
some cases, these Internet entities
display schedules, fares and availability
but direct consumers to other Web sites
to purchase and are not the final point
of sale for an airline ticket. They may be
earning revenue through advertising
sales and providing flight search
capabilities based on data gathered from
other sources. These entities would be
included under our proposed definition
of ticket agent along with traditional
ticket agents. The Department seeks
comment on the differences between
traditional ticket agents and entities that
provide flight search tools but direct
consumers to another site to finalize
their purchase. Are there considerations
regarding entities that are not the final
point of sale for air transportation that
should be considered in connection
with the regulations proposed in this
rulemaking? DOT also seeks comment
on the impact on these entities of
complying with the Department’s
existing regulations applicable to ticket
agents. For example, what are the
impacts on ticket agents that are not the
final point of sale for air transportation
of the regulations in 14 CFR 399.80 (e.g.,
prohibition against misrepresentation of
quality or kind of service, type or size
of aircraft, time of departure or arrival,
and so forth; prohibition against
misrepresentation of fares and charges)?
Are those impacts different from the
impacts on traditional ticket agents or
other agents that have a different
business model?
As noted above, consumers may begin
their search by selecting their flights on
one Web site and then completing their
purchase on another Web site and, in
the process, bypass the pages containing
disclosures regarding code-share
operations, baggage fee information, and

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other consumer protection information
that the Department requires air carriers,
foreign air carriers, and ticket agents to
provide to consumers before an air
transportation purchase is finalized.
Accordingly, the Department is
considering a definition of ‘‘ticket
agent’’ that would clarify that global
distribution systems, meta-search
Internet sites that offer a flight search
tool and are compensated for
advertisements that are displayed on the
same Web site (even if the advertising
content is not directly related to air
travel), and other such compensated
intermediaries, regardless of the manner
in which they are compensated for their
role in arranging air transportation, are
ticket agents for the purposes of the
Department’s air transportation
consumer protection regulations. Such a
broad definition would ensure that all
commercial entities that receive
compensation in connection with air
transportation advertising/marketing
and that are involved in arranging for air
transportation would be required to
provide consumers with certain
essential information early in the
process (e.g., information regarding
code-share operations, disclosure about
baggage fees). A broad definition of
‘‘ticket agent’’ would better ensure
passengers are protected regardless of
the path they choose to arrange for air
transportation. Additionally, this
rulemaking proposes to prohibit ticket
agents from incorporating undisclosed
bias into their displays, and solicits
comment on whether ticket agents
should be required to disclose
information about incentive payments
and/or identify the carriers the ticket
agent markets or does not market.
We are not aware of whether there is
a widespread problem of consumers
being confused by Web sites that do not
sell tickets but do provide fare,
schedule, and availability information
that consumers are relying on in
planning their travel. However, we
believe that there is a risk of harm
because some Web sites do not provide
all of the disclosures required by the
Department. We seek comment from any
consumers who have faced these types
of problems.
Past litigation has made clear that
GDSs are ticket agents. Sabre v.
Department of Transportation, 429 F.3d
1113 (D.C. Cir. 2005). However, metasearch engines that offer a flight search
tool have entered into the marketing and
distribution of fare and schedule
information. In addition, new entities
have emerged that receive direct or
indirect compensation from the
advertising and/or sale of air
transportation, while offering flight

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search tools and fare displays. The
Department sees a benefit in clarifying
that those entities are ticket agents,
regardless of whether or not they are the
final point of sale for air transportation,
and are required to comply with air
transportation consumer protection
regulations that apply to ticket agents.
Additionally, at this point, the
Department cannot predict the new
types of entities that will engage in the
marketing and distribution of fare and
schedule information or how the
marketing and distribution of fare and
schedule information will change with
new developments in technology.
However, it appears that some of these
entities may have taken, or will take in
the future, a quasi-GDS role.
Accordingly, the Department believes
its regulations should be clear and
should apply equally to entities that are
new to the air transportation
marketplace as well as existing entities
already involved in the marketing and
distribution of air transportation. To be
clear, only entities operating Web sites
that provide flight search tools that
manipulate, manage, and display fare,
schedule, and availability information
and are tools that the Web site operator
creates or manipulates and has ultimate
control over would be covered. For
example, entities such as Kayak and
Google that offer flight search tools with
fare, schedule, and availability
information would be covered. An
entity that operated a Web site that
simply displayed airfare advertisements
without actual flight search capability
under its control would not be covered.
The Department seeks comment on
whether the definition of ‘‘ticket agent’’
should be codified in the regulation so
as to clarify the Department’s view that
it is a broad term and includes entities
such as meta-search engines that
provide a flight search tool and other
Web sites that act as intermediaries
between consumers and the ultimate
entity that sells the air transportation,
whether an airline or another ticket
agent. The Department also seeks
comment on whether the proposed
definition of a ticket agent, which
includes an entity that arranges for or
sells air transportation for compensation
(regardless of the form of
compensation), is sufficiently broad and
meets the Department’s goal of
encompassing the variety of entities that
use the Internet to arrange for the sale
of air transportation. For example,
under the proposed definition, an entity
that provides a flight search tool that
allows consumers to select an itinerary
that can be purchased on another site
and displays air transportation

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advertisements for which the entity is
compensated on a ‘‘cost-per-click’’ basis
would fall under the definition of a
ticket agent. The Department also seeks
comment on whether the definition of a
ticket agent should include all entities
that operate flight search tools that
display itineraries and allow consumers
to begin the booking process but are not
compensated for the specific
transaction. We also request comments
on the costs and benefits to consumers,
airlines, meta-search engines, and other
entities involved in arranging for and
selling air transportation, of codifying
the definition of ‘‘ticket agent’’ to
include air transportation
intermediaries such as meta-search
engines that offer a flight search tool.
As a related matter, the Department is
considering whether carriers should be
prohibited from restricting the
information provided by ticket agents
when those ticket agents do not sell air
transportation directly to consumers but
rather provide consumers with different
airlines’ flight information for
comparison shopping. For example, the
Department has been informed that
some carriers may not allow certain
entities with Web sites that operate
flight search tools to display the
carrier’s fare, schedule and availability
information. Should carriers be
prohibited from imposing restrictions
on ticket agents that prevent ticket
agents from including a carrier’s
schedules, fares, rules, or availability
information in an integrated display?
Also, we understand that a number of
carriers restrict the links ticket agents
may place next to a particular flight
itinerary on a display, and in many
cases only permit a link to the carrier’s
own Web site. Why might carriers place
such restrictions on travel agents?
Should the Department require carriers
to allow ticket agents to provide links to
the Web sites of the entities listed in an
integrated display, including non-carrier
Web sites?
2. Display of Ancillary Service Fees
Through All Sales Channels
Need for Rulemaking
Many services or products previously
included in the price of an airline ticket
such as checked baggage, advance seat
assignments and priority boarding are
now sold separately. Traditional and
online travel agents generally access
their airline ticket inventory through
large Global Distribution Systems
(GDSs) and often do not have access to
the fees associated with ancillary
services/products and thus cannot
disclose this information to consumers
without looking directly at carriers’ Web

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sites. In discussions with the
Department, consumers and corporate
travel companies have identified the
lack of complete transparency of fees for
unbundled services and products as a
problem. Specifically, when consumers
are making decisions on whether to
purchase air transportation and if so,
from which entity, they continue to
have difficulty determining the total
cost of travel because the fees for the
basic ancillary services are not available
through all sales channels. This lack of
transparency also creates challenges in
the corporate and managed travel
community. Currently, approximately
50% of air transportation is booked
through a channel that involves a ticket
agent rather than the airline’s own
reservation agents or its Web site,
whether it is through a traditional brickand-mortar travel agency, a corporate
travel agent, or an online travel agency.1
Consumers and corporate travel
companies often search various Web
sites to try to determine the fees for
ancillary services. They have raised
concerns with the Department regarding
how the lack of clear disclosure of
ancillary fees makes it difficult to
determine the true cost of travel and
compare different airline flight and fare
options.
In the NPRM that led to the second
Enhancing Airline Passenger Protections
rule, the Department reiterated its goal
of increasing notice to consumers of the
fees carriers charge for optional or
ancillary services, including checked
baggage fees and carry-on baggage fees,
by proposing a series of disclosure
requirements related to ancillary service
fees. When drafting the disclosure
regime in the second Enhancing Airline
Passenger Protections rule, the
Department recognized that a problem
in the marketplace existed because
ticket agents did not have access to realtime and accurate fee data for ancillary
services. Therefore, in the NPRM, the
Department asked whether it should
require that carriers provide fee
information for ancillary services and
products to the GDSs in which each
carrier participates, in an up-to-date and
useful fashion. Although the
1 According to estimates by PhoCusWright (2011),
31 percent of passengers purchased tickets through
Travel Management Companies (TMCs) (e.g.,
American Express, Carlson Wagonlit), and 16
percent via an online travel agency (OTA). Since
both TMCs and OTAs use GDSs to book air tickets,
the share of passengers who will benefit from
improved salience on ancillary service fees would
be the total of both ticket distribution channels (47
percent), unless TMCs or OTAs connect directly to
airlines. Other higher proxy estimates were also
found. InterVISTAS estimated that 50 percent of US
national round trip passengers book their ticket via
a GDS.

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Federal Register / Vol. 79, No. 100 / Friday, May 23, 2014 / Proposed Rules
Department did not propose rule text, it
invited comment on the ‘‘GDS
proposal.’’ The comment period closed
on September 24, 2010.
The Department received numerous
comments regarding the GDS proposal
from interested industry parties and
consumer advocacy groups both before
and after the closing of the comment
period. The comments demonstrated to
the Department that before it issued a
final rule it needed more information on
the contractual and historical
relationships between the GDSs and the
carriers, as well as an in-depth costbenefit analysis of such a requirement.
Therefore, in the Final Rule for
Enhancing Airline Passenger Protections
published in the Federal Register on
April 25, 2011, 76 FR 23110, the
Department did not include a
requirement that carriers provide all
ancillary service fee information to
GDSs. Instead, it stated that it would
continue to consider the issue, gather
more information, and defer final action
on this topic.
In the 2011 final rule, the Department
did impose various disclosure
requirements on both carriers and travel
agents via the new 14 CFR 399.85.
However, in recognition of the fact that
the Department had not required the
dissemination of ancillary service fee
information through GDSs and,
therefore, agents would not necessarily
have access to the most up-to-date and
accurate ancillary service fee
information, the Department
promulgated different baggage
disclosure requirements for ticket agents
from those required of carriers. For
example, the rule allows ticket agents
with Web sites marketed to consumers
in the United States to disclose baggage
fees through hyperlinks displayed with
itinerary search results and included in
e-ticket confirmations which link to
static lists. Also, 14 CFR 399.85(a)
requires carriers but not ticket agents to
disclose on their homepage for three
months any change to their baggage fees.
Additionally, under 14 CFR 399.85(d),
carriers must provide a listing of all
optional service fees on one Web page.
There must be a link to that listing on
the homepage. Agents are not required
to have this listing, as they do not
necessarily have access to all carriers’
current optional service fee information
on a real-time basis.
While the Department considers the
disclosure requirements in its 2011 final
rule to be a step in the right direction,
these requirements do not fully address
the problem of lack of transparency of
ancillary services and products.
Consumers who book transportation
through a ticket agent still do not

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receive accurate and real-time
information about fees for ancillary
services and products and are unable to
determine the total cost of travel.
Consumers also can’t use the list of
optional services and fees that airlines
post on their Web site to determine the
cost of travel since airlines generally
provide a range of fees for ancillary
services aside from baggage and
acknowledge that the fees vary based on
a number of factors such as the type of
aircraft used, the flight on which a
passenger is booked or the time at
which a passenger pays for the service
or product. Further, the list of optional
services and fees that the airlines post
on their Web sites are static lists. In
many cases, it is not possible for
consumers to know the specific fees that
would apply to them based on these
lists as there are numerous possible fare
and fee combinations and routings for
any given trip. With respect to baggage,
the existing disclosure requirements
mandate specific information, but
passengers must still review lengthy and
complex charts to determine the exact
fee that they would be charged for their
baggage.
The Department remains of the view
that as carriers continue to unbundle
services that used to be included in the
price of air transportation, passengers
need to be protected from hidden and
deceptive fees and allowed to price
shop for air transportation in an
effective manner. However, we lack
sufficient data to be able to quantify the
extent of this problem for consumers.
We request comment from consumers
about whether it is difficult to find
baggage and seat assignment fee
information and how much of an impact
this has on their ability to comparison
shop among carriers. The Department
also requests comment from consumers
on whether and how much the fee
disclosures required of carriers and
travel agents in Passenger Protections II
have improved their ability to find
information on fees.
Consumers and consumer groups
have reiterated to the Department
through comments in the second
Enhancing Airline Passenger Protections
rulemaking and comments to the docket
for the Advisory Committee on Aviation
Consumer Protection the difficulty in
determining the specific fees that apply
to ancillary services. Additionally,
members of Congress, representing their
constituents, have expressed support for
full disclosure of ancillary fees during
the rulemaking period for the second
Enhancing Airline Passenger Protections
rule. The Department also receives
consumer complaints that reflect the
confusion consumers experience

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regarding fees for ancillary services,
particularly in connection with baggage
and seat assignments. For example,
consumers complain that when
shopping for air transportation they do
not know how much it will cost them
to book seats together for family
members or to transport all of their
baggage. Similarly, representatives of
business travelers complain that it is
difficult to advise clients on the best
and most cost-effective flights because
the fee information for seat assignments
or baggage is not readily available.
Additionally, the issue has been raised
at meetings of the Advisory Committee
on Aviation Consumer Protection by
various industry stakeholders and
consumer advocates. The Department
believes that regulation is needed to
address the lack of transparency
regarding the true cost of air
transportation and is proposing to
require that fees for certain ancillary
services be disclosed to consumers
through all sale channels. The
Department seeks input on this proposal
as well as any innovative solutions that
we may not have considered to address
the problem of lack of transparency.
Current Airline Distribution System
In the final rule that was issued on
April 25, 2011, the Department
announced its intention to address in a
future rulemaking the transparency of
ancillary fees at all points of sale. Since
that time, the Department has met with
numerous stakeholders with an interest
in the distribution of ancillary service
fee information and conducted an
inquiry regarding current distribution
models as well as the contractual and
historical relationships between the
GDSs and the carriers. Representatives
of carriers, GDSs, consumer advocacy
organizations, and trade associations, as
well as other interested entities,
including third-party technology
developers, have met with Department
staff to explain their views. They have
also provided information to the
Department’s economists. The
description of the current airline
distribution system provided below is
largely based on the information that the
Department received from these
stakeholders.
Today, airlines sell airfares in two
ways: Directly through their Web sites,
call centers, or employees at airports or
indirectly through ticket agents.
Approximately 50% percent of airline
tickets are purchased indirectly through
ticket agents, whether it is through a
traditional brick-and-mortar travel
agency, a corporate travel agent, or an
online travel agency. Ticket agents that
display or sell air transportation

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typically get the fare, schedule and
availability information about the air
transportation through a GDS. In the
United States, three GDSs (Sabre,
Travelport and Amadeus) control the
distribution of the airline product for
the ticket agent channel. In recent years,
Sabre had more than 50 percent of the
market, Travelport had approximately
40 percent and Amadeus had less than
10 percent of the market in the U.S.
though Amadeus has a much larger
percentage of the market worldwide.
Most U.S. airlines use GDSs to
distribute their products. Some low cost
carriers 2 such as Southwest participate
on a selective basis in GDSs while other
low cost carriers do not use GDSs,
presumably because there are costs
attached to each transaction. GDSs
charge airlines a booking fee based on
the total number of flight segments in
the consumer’s itinerary. Airlines
presently pay booking fees that can
range from a few dollars to much more
for each flight segment. For example, if
a booking fee is $5 per segment and a
passenger purchases an itinerary that
consists of four flight segments, the
airline will be charged approximately
$20 in booking fees. A transaction
through an airline’s own system costs
the carrier less. However, GDSs have
emphasized that there have been
substantial discounts of domestic
booking fees for the major airlines since
2005.
Nevertheless, airlines have expressed
frustration about paying what they view
as more in fees to GDS than the value
they feel they receive now that
technology provides new ways of selling
fares and ancillary services. Still these
airlines are not able to forgo using GDSs
to aggregate flight schedule and fare
information because airlines earn a large
percentage of their revenue from
business travelers, and the majority of
the world’s managed business travel is
booked through travel management
companies which use GDSs. Unlike
Southwest, the legacy carriers do not
have the option to participate on a
selective basis in GDSs (i.e., only for
business travel). Overall, airline revenue
from the GDS channel is higher than
direct channels mainly due to the
greater proportion of high-yield
business bookings.3
2 Low-cost carriers operate under a generally
recognized low-cost business model, which may
include a single passenger class of service, limited
in-flight services, and use of smaller and less
expensive airports.
3 GDSs process 64 percent of the total U.S. airline
gross sales by revenue. PhoCusWright, The Role
and Value of the Global Distribution Systems in
Travel Distribution, 2009.

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Airlines’ efforts to reduce their
reliance on GDSs and transition to
direct connections with travel agents
have also been difficult. By direct
connect, we are referring to agreements
between an airline and a travel agent in
which the airline provides fare,
schedule and availability information to
the travel agent directly, bypassing
GDSs. Various airlines have reported to
the Department that they as well as
new-entrant travel technology firms,
such as Farelogix, have had difficulty in
facilitating direct connections to ticket
agents because of highly restrictive
agreements between GDSs and ticket
agents. Similar assertions were made by
other third party technology providers.
GDSs have contracts with both airlines
and travel agents for use of their
services. These contracts tend to be
long-term agreements that are renewed
every 3 to 5 years. Historically, contracts
between carriers and the GDSs generally
provided that carriers compensate the
GDSs per flight segment booked. These
contracts also generally require that
carriers offer the same fares through
GDSs that are offered through other
channels, even if it is cheaper for the
carrier to distribute the fares in a
different manner, such as direct
connect. Contracts between travel
agencies and GDSs generally provide for
incentive payments to travel agencies
for booking travel through GDSs. GDSs
also provide travel agencies with the
technology used for mid- and backoffice solutions such as quality control
and office accounting. GDSs do not view
the contracts as a barrier to entry for
travel technology firms. They assert that
the direct connect services will succeed
or fail based on whether they meet the
needs of travel agencies and the
consumers they serve.
It is also worth noting that IATA has
filed an application with the
Department for approval of its
Resolution 787, the agreement that
establishes the framework for its New
Distribution Capability (NDC). NDC
would be based on a common XML
based technical standard for direct
connect services. Airlines contend that
this new standard would allow airlines
to custom-tailor product offers that
would include different combinations of
ancillary services in addition to air
transportation and would include a total
price. The new standard, if approved by
the Department, will be available for use
by any party. While the Department
acknowledges that carriers are working
towards technological solutions to
distribute information, such solutions
are prospective. Additionally, even if a
standard is agreed upon, its use is

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optional and the information
transmitted using the standard would be
determined by each carrier.
Accordingly, the development of a
standard would not solve the immediate
problem that some current consumers
are not receiving the information that
they need to determine the total cost of
travel including the cost of certain
ancillary services.
While fare, schedule, and availability
information is currently provided by the
airlines to the GDSs, and by GDSs to the
agents that display and sell to
consumers, information about the cost
of ancillary services is not typically
shared. One reason, as it has been
explained to Department staff by airline
representatives, is that GDSs do not
have the modern technology airlines
need to merchandise and sell their
products the way they choose. The
GDSs disagree with the airlines’
assessment and contend that they are
capable of handling the most complex
airline transactions and have worked
with airlines, airline associations, and
airline-owned intermediaries like
ATPCO, ARC and IATA to establish
technical standards for the distribution
of their products, including ancillary
offerings. While expressing a general
willingness to distribute ancillary
products to travel agents subject to
assurances that the technology is in
place to conduct transactions in an
efficient and cost-effective manner,
airlines expressed the need for the
flexibility to do so on terms that meet
their business needs. Airlines prefer to
negotiate with the GDSs for the business
terms acceptable to them. They argue
that market forces and not government
mandates are the best way to ensure that
information about ancillary services and
fees reaches consumers using the travel
agent channel.
Various airlines and airline
associations have also asserted to the
Department that if it were to require
carriers to provide ancillary service fee
information to all ticket agents that the
carrier permits to distribute its fare and
schedule information, including GDSs,
the Department would reinforce the
existing distribution patterns and stifle
innovation in the air transportation
distribution marketplace. These carriers
argue that since existing business
arrangements provide significant
benefits to most ticket agents, including
GDSs, those entities would strive to
retain existing distribution technology
and transaction patterns. The carriers
have also expressed concern that if they
are required to provide information to
GDSs, the GDSs will use existing
contractual agreements and market
power to pressure carriers to provide the

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information in the existing format for
fare filing. If that occurs, some
stakeholders allege that carriers would
no longer have sufficient financial
incentive to invest in new distribution
technologies which might ultimately
provide more useful and responsive
information to consumers by allowing
carriers to differentiate their services
from competitors. GDSs have disputed
the carriers’ assertions and contend that
Department action is needed because
airlines and ticket agents have been
unable come to agreements that would
allow fee information about ancillary
services to be disclosed to consumers at
all points of sale.
We agree with the GDSs that there is
a need for rulemaking because we
believe that consumers continue to have
difficulty finding ancillary fee
information. The Department is striving
to find the most beneficial disclosure
rule for consumers while avoiding any
adverse impact on innovations in the air
transportation marketplace, contract
negotiations between carriers and their
distribution partners, and a carrier’s
ability to set its own fees and fares in
response to its own commercial strategy
and market forces. Also, despite the
disputes regarding contract terms and
distribution methods, both carriers and
GDSs have assured the Department that
they share our goal of transparency of
ancillary service fee information.
Request for Public Input on Airline
Fees
Given our continuing concern that
consumers may not be getting sufficient
information about carriers’ fees, we
solicit comment from consumers on the
following questions:
• Do you have a problem finding fee
information? And if so, how significant
is that problem? If you have a problem
finding fees, how does it affect your
ability to comparison shop?
• What types of fees would you most
like to have more information about
during the shopping process, prior to
purchase?
• When would you like to see that
information displayed in your search
process—as soon as you see a list of
fares or later in the process? How would
you like to see the information regarding
ancillary fees displayed—as a link, as a
specific dollar amount shown with the
airfare quote, as a table or menu on the
homepage or flight search results list?
Should the Department require a
standardized format for disclosure?
• Do you feel that our proposed
disclosure requirements would improve
your search experience? Have we
selected the most ancillary fees that are
most important to your decision making

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process? Will disclosure of all these fees
at the point of search cause further
confusion on ticket agent Web sites (as
defined in this proposal), or diminish
your user experience (because of screen
clutter, diminished usability features,
etc.)?
• Is either of our co-proposals
outlined below likely to make fees easy
to find?
Proposed Solutions and Alternatives
Considered
Based on the information gathered,
the Department is co-proposing two
regulatory texts and seeking input
regarding those two proposals. One
proposal is to require each carrier to
distribute certain ancillary service fee
information to all ticket agents
(including GDSs) that the carrier
permits to distribute its fare, schedule,
and availability information. Carriers
would not be required to distribute
ancillary fee information to any GDS or
other ticket agent that the carrier did not
permit to distribute its fare, schedule,
and availability information.
Additionally, under this proposal, the
Department would not require carriers
to allow ticket agents to sell/transact its
ancillary services to consumers but
rather would require carriers to provide
‘‘usable, current and accurate’’
information on fees for certain ancillary
services to all ticket agents so this
information can be disclosed to
consumers at all points of sale. Each
airline would continue to determine
where and how its ancillary services
may be purchased. For instance, if a
carrier chooses to allow a ticket agent to
sell its ancillary services directly to
consumers, we expect that the carrier
and ticket agent would determine
through negotiation whether the ticket
agent would offer the ancillary services
at the same prices that the carrier offers
those services. In other words, the
proposal would require airlines to
provide certain ancillary fee information
to ticket agents, including GDSs, in
order to enable disclosure to consumers
of fees associated with certain ancillary
services at all points of sale but would
not require that these ancillary services
be transactable. Carriers and ticket
agents would negotiate regarding the
ability of ticket agents to sell a carrier’s
ancillary services and the price at which
those services would be sold.
The second proposal is similar to the
first in all ways except one. Unlike the
first proposal, the second would omit
the requirement that the information on
ancillary fees be distributed to GDSs or
other intermediaries since GDSs and
similar intermediaries would not be
subject to any direct consumer

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notification requirements. Instead, the
second alternative would require
carriers to distribute certain ancillary
service fee information to all ticket
agents that the carrier permits to
distribute its fare, schedule, and
availability information if the ticket
agent sells the carrier’s tickets directly
to consumers. Although this proposal
would not require carriers to provide
ancillary fee information to entities that
act as intermediaries and do not deal
directly with the public such as GDSs,
GDSs are the source through which
most travel agents obtain their fare
information, so as a practical matter,
they may be the most efficient vehicle
currently available for carriers to use for
dissemination of information on
ancillary fees. Additionally, the second
proposal would not require carriers to
provide ancillary fee information to
entities such as meta-search tools like
Kayak and Google.
The Department has proposed these
two options as it remains of the view
that as carriers continue to unbundle
services that used to be included in the
price of air transportation, passengers
need to be protected from hidden and
deceptive fees and allowed to price
shop for air transportation in an
effective manner. The Department
believes that failing to disclose basic
ancillary service fees in an accurate and
up-to-date manner before a consumer
purchases air transportation would be
an unfair and deceptive trade practice in
violation of 49 U.S.C. 41712.
Under both proposals, the Department
recognizes that not all ancillary service
fee information needs to be available
through all channels. However, there are
certain basic services that are intrinsic
to air transportation that carriers used to
include in the cost of air transportation
but that they now often break out from
the airfare, and the cost of those services
is a factor that weighs heavily into the
decision-making process for many
consumers. We consider these basic
ancillary services to consist of the first
and second checked bag, one carry-on
item and advance seat selection. This
rulemaking would require U.S. and
foreign air carriers to distribute to ticket
agents the fees for these basic ancillary
services. However, carriers would not be
required to provide ticket agents
information about individual customers,
such as their frequent flyer status or
type of credit card though these factors
may impact the fee for an ancillary
service. Carriers would, of course, be
required to provide ticket agents the fee
rules for particular passenger types (e.g.,
military, frequent flyers, or credit card
holders). Under the proposal, the failure
of airlines to share this fee information

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in an up-to-date and accurate fashion
would be considered an unfair and
deceptive trade practice in violation of
49 U.S.C. 41712.
As the requirement for carriers to
distribute this information to agents
would not be helpful to consumers
without a disclosure requirement, the
Department is also proposing to require
all carriers and agents to disclose the
fees for these basic ancillary services
before the passenger purchases the air
transportation. Airlines and agents that
have Web sites marketed towards U.S.
consumers must disclose, or at a
minimum display by a link or rollover,
the fees for these basic ancillary services
on the first page on which a fare is
displayed in response to a specific flight
itinerary search request in a schedule/
fare database. To comply with this
proposed requirement, airlines and
agents would have to modify their Web
sites to display these basic ancillary
service fees adjacent to the fare
information on the first page on which
a fare for the requested itinerary is
displayed. We solicit comment on
whether the Department should require
the ancillary service fee information to
be disclosed only upon the consumer’s
request, or require that the information
be provided in the first screen that
displays the results of a search
performed by a consumer. The
Department also seeks comments on
whether it should limit the applicability
of the disclosure requirement only to
agent and carrier Web site displays
marketed to members of the general
public, or whether the disclosure
requirement should include agent and
carrier Web site displays that are not
publicly available (e.g., displays used by
corporate travel agents).
Under both co-proposals, the fee
information disclosed to consumers for
a carry-on bag, the first and second
checked bag, and advance seat
assignment would need to be expressed
as specific charges. Airlines would be
required to disclose customer-specific
fees for these services to the extent the
customer provides identifying
information, and if the customer does
not provide that information, must
disclose itinerary-specific fees. Ticket
agents would be required to disclose
itinerary-specific fees for these services.
Ticket agents may also arrange/negotiate
with the airlines to obtain data that
would enable them to give customerspecific fees for basic ancillary services.
‘‘Customer-specific’’ refers to variations
in fees that depend on, for example, the
passenger type (e.g., military), frequent
flyer status, method of payment,
geography, travel dates, cabin (e.g., first
class, economy), ticketed fare (e.g., full

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fare ticket—Y class), and, in the case of
advance seat assignment, the particular
seat on the aircraft if different seats on
that flight entail different charges. In
other words, the response to a specific
flight itinerary search request by a
consumer on a carrier’s Web site would
need to display next to the fare the
actual fee to that consumer for his or her
carry-on bag, first and second checked
bags, and advance seat assignment.
Nothing in this proposal would require
carriers to compel consumers to provide
the passenger-specific details before
searching for airfare. Providing such
details before conducting a search
should be an option and not a
requirement for consumers. We note
that many carriers already offer seat
maps during the online booking process
on their Web site that permit consumers
to obtain a seat assignment at that time
and that disclose the charge for each
seat. This process would comply with
the proposed rule as long as there is a
statement adjacent to the fare on the
first screen where an itinerary-specific
fare is displayed that informs the
consumer that there are fees for advance
seat assignments and direct links to the
seat map.
The fee information that ticket agents
would be required to display to
consumers differs from what would be
required of airlines in that ticket agents
would not be required to include
variations in fees that depend on the
attributes of the passengers such as the
passenger type (e.g., military), frequent
flyer status, or method of payment.
Ticket agents would be required to take
into account variations in fees that are
related to the itinerary such as travel
dates, geography, ticketed fare and
cabin. In addition to providing itineraryspecific fees for a first checked bag, a
second checked bag, a carry-on bag and
an advance seat assignment, ticket
agents would also be required to clearly
and prominently disclose that these fees
may be reduced or waived based on the
passenger’s frequent flyer status,
method of payment or other
characteristic. Ticket agents who have
not negotiated an agreement with the
airlines to sell advance seat assignments
would also be required to disclose that
seat availability and fees may change at
any time until purchase of the seat
assignment. In addition, it is worth
noting that carriers and agents would be
permitted to offer an ‘‘opt out’’ option
for consumers who prefer to search for
fare information only, without any
ancillary fee information, and when this
option is selected carriers and agents
would not be required to present the fee
information.

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We ask for comment on whether the
Department should only require carriers
and agents to provide information on
standard baggage fees without taking
into account variations based on
frequent flyer discounts, loyalty card
discounts, geography, ticketed fare, etc.
If all of the varieties of baggage fees are
displayed, how should the varying fees
be arranged? Regarding advance seat
assignments, the charges for which also
may vary considerably based on, among
other things, the location of the seat and
how far in advance the seat assignment
is purchased, should carriers and agents
be required to display all possible
advance seat assignment fees, or a range,
or the fee for each seat assignment
available at the time of the search for a
particular city-pair? What is the
technological feasibility and cost of
providing this information to consumers
in a usable fashion, particularly for
ticket agents?
As discussed earlier, neither of the
Department’s two alternative proposals
would require that carriers enable
agents to sell the carrier’s ancillary
services; in industry idiom, we are not
proposing to require that the fees be
‘‘transactable.’’ The Department is
addressing the harm caused to
consumers of not knowing the true cost
of travel before purchasing air
transportation. Under the proposed
disclosure regime, every point of sale for
a particular carrier’s fares would also
provide access to the carrier’s fee
information for first and second checked
bag, one carry-on bag, and an advance
seat assignment. This requirement
would place a legal obligation on
carriers to disseminate this information
to all of their agents; however, the
Department is not stating the method
the carriers must use to distribute the
information, as long as it is in a form
that would allow the fee information to
be displayed on the first itineraryspecific results page in a schedule/fare
database. Carriers would be free to
develop cost-effective methods for
distributing this information to their
agents. Carriers could use existing
channels, such as filing the fee
information through the ATPCO, or they
could develop their own systems to
disseminate the information, in
conjunction with the agents who would
receive the information.
Although neither of the Department’s
alternative proposals dictate the method
that carriers must use to distribute the
information, carriers should be mindful
that whatever distribution method they
might choose must be usable, accurate,
and current so the information is
accessible in real-time. Similarly, ticket
agents must work in good faith with

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carriers to come to agreement on the
method used to transmit the ancillary
service fee information. For example,
ticket agents should not use contractual
restrictions to prohibit travel agents,
carriers, or applications software
providers from integrating the ancillary
fee information with information
obtained from the GDSs. Since the
Department’s proposal would require
ticket agents to provide the ancillary fee
information to consumers, in cases
where carriers and ticket agents are able
to agree on a transmission mode for
ancillary fee information other than
through a GDS, we would expect GDSs
to work in good faith with carriers and
other ticket agents to permit the
integration of information obtained from
other sources with information obtained
through the GDS and allow the
distribution of fee information directly
to the agents. Additionally, under the
proposed disclosure requirement, to the
extent that carriers have existing
contractual relationships with ticket
agents acting as intermediaries, such as
GDSs, to distribute fare information,
those ticket agents would be prohibited
from imposing charges for the
distribution of ancillary service fee
information that are separate from or in
addition to the existing charges for the
distribution of fare information as it
would be unlawful to provide fare
information that does not include the
fees for the basic ancillary services. The
Department invites comments regarding
the two proposals: (1) Requiring a
carrier to disseminate certain ancillary
service fee information to the agents that
distribute the carrier’s fare, schedule,
and availability information and
requiring both carriers and agents to
disclose accurate and up-to-date fee
information to consumers, or (2)
requiring a carrier to disseminate certain
ancillary service fee information to the
agents that distribute the carrier’s fare,
schedule, and availability information
and are a point of sale for the carrier’s
tickets to consumers, and requiring both
carriers and agents to disclose accurate
and up-to-date fee information to
consumers. What are the costs and
benefits of requiring carriers to provide
ancillary fee information to all ticket
agents, including entities that have not
previously considered themselves to be
regulated but would fall under the
proposed definition of ‘‘ticket agent,’’
described above, and what are the costs
and benefits of requiring carriers to
provide ancillary fee information only
to ticket agents that act as sales outlets?
If DOT requires disclosure of certain
ancillary service fees, but does not
require the ability to purchase these

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services at the time of booking, what
would be the preferred way for carriers
to collect payment for such services? On
the Internet through the airline Web
sites prior to check-in, at the airport at
the time of check-in, etc.?
Proponents of the first alternative
have argued that, because most carriers
already rely on GDSs to transmit
information to ticket agents that act as
a point of sale, the Department could
ensure that the information was
disseminated in a quick and efficient
manner by requiring carriers to provide
the information to GDSs. They also
assert that such a proposal would
resolve the ‘‘market failure’’ that has
prevented carriers and ticket agents
from coming to agreements that would
allow the information to be provided to
consumers. Advocates of the second
alternative state that permitting carriers
to decide which intermediaries, if any,
to use to provide ancillary fee
information to ticket agents acting as
sales outlets still provides for consumer
disclosure but minimizes government
interference with business
arrangements. Additionally, they
contend that the second proposal
provides opportunities for the
development of new and innovative
technologies and methods of
distribution of air transportation while
allowing carriers the freedom to use
traditional methods if it makes
commercial sense for them to do so.
In addition to the two alternative
proposals under consideration, we also
solicit comment on whether any of the
alternatives rejected earlier in the
rulemaking process better address the
problem of lack of transparency of fees
associated with ancillary services. For
example, should the Department set
design standards (e.g., filing of fees for
ancillary services through ATPCO,
EDIFACT, XML or some other
technology) rather than using
performance standards for transmission
of ancillary fee data from airlines to
ticket agents or from airlines and ticket
agents to consumers? Under both
alternative proposals, the Department
does not prescribe particular standards
in order to avoid stifling innovation and
imposing more of a burden on industry
participants than is necessary to solve
the transparency problem. However, we
are interested in comments on whether
setting a specific technological/
information standard could potentially
enhance innovation and improve
transparency, and if so, how. Would
selecting a specific standard allow for
new market entrants in the transmission
or display of air travel information, by
making fare and fee information more
open and accessible?

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The Department also solicits comment
on the issue of whether the basic
ancillary services that are disclosed to
consumers should also be transactable.
Although the Department has
tentatively determined that it would be
sufficient to require carriers and agents
to disclose certain basic ancillary fee
information to consumers, it has not
closed the door on the possibility of also
requiring that those ancillary services be
available for purchase through all
channels that carriers decide should sell
their fares. In other words, should we
require these ancillary services to also
be ‘‘transactable’’?
Representatives of certain consumer
advocacy groups and trade associations
have argued to the Department that if
consumers are not entitled to purchase
the ancillary services at the time of
booking air transportation, the carrier
may increase the price of those ancillary
services before the consumer has a
chance to purchase the ancillary service
on the carrier’s Web site or through its
reservation center. In the case of
advance seat assignments, the problem
is particularly acute because in addition
to price increases, the consumer risks
the possibility that the advance seat
assignment that he or she wished to
purchase will no longer be available.
Carriers are prohibited from
increasing the price of baggage fees after
a consumer purchases air transportation
under the current 14 CFR 399.88, but
under the Guidance on Price Increases
of Ancillary Services and Products not
Purchased with the Ticket issued by the
Enforcement Office on December 28,
2011, and under the proposed change to
section 399.88 discussed below, carriers
would not be prohibited from increasing
the price of an advance seat assignment
until the seat assignment itself is
purchased. Prices for advance seat
assignment are often dynamic and
change based on route, aircraft size,
availability, and time of purchase.
Proponents of transactability argue that
without the ability to purchase the seats
at the time of ticket purchase,
consumers will be further harmed
because desired seats may not be
available when the passenger decides to
purchase them or is allowed by the
carrier to purchase them or they may
cost more. The Department seeks
comment on requiring disclosure plus
transactability of advance seat
assignment fees at all points of sale. We
also seek information on the costs and
benefits of requiring transactability and
how requiring transactability would
affect existing contracts between the
GDSs and the airlines. We also invite
interested persons to provide their
views on whether disclosure plus

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transactability should be required not
only for advance seat assignments but
also for fees associated with first and
second checked bags and carry-on bags.
As noted above, of the ancillary services
traditionally included in the price of a
ticket, the Department views the first
and second checked bag, one carry-on
bag, and an advance seat assignment as
the services that are intrinsic to air
transportation and of primary
importance to many consumers when
making air transportation purchasing
decisions. The Department invites
comments on whether the list should be
expanded to include services such as inflight wireless Internet access, seating
section upgrades, food and beverages, or
priority boarding. If the list should be
expanded, how should carriers and
agents display the information related to
these additional services?
The Department also solicits comment
on leaving the disclosure requirements
established in 14 CFR 399.85 unchanged
instead of adopting new proposed
requirements for customer-specific
information about one carry-on bag, the
first and second checked bag, and an
advance seat assignment. Under the
existing regulation, consumers may visit
individual carrier Web sites to ascertain
all of the fees associated with ancillary
services. This information is in a
centralized location accessible from a
link on each carrier’s homepage.
Leaving the existing requirements in
place would not require carriers to
enable agents to provide up-to-date and
real-time pricing for ancillary services,
but it would still require that passengers
be made aware that ‘‘baggage fees may
apply’’ on the first page on which a fare
quote is given for a flight search. The
Department asks consumers to comment
on the existing requirements,
particularly whether the disclosure
requirements under section 399.85 have
aided in their ability to price shop and
their ability to understand the true cost
of travel before purchasing. The
Department also asks carriers and ticket
agents to comment regarding whether
they believe the current disclosure
requirements are sufficient and effective
and why or why not. The Department
also asks agents to comment on how the
current disclosure requirements are
affecting their businesses and whether
consumers are aided under the
disclosure requirements. If the
Department decides to maintain the
current disclosure requirements, should
the Department require carriers to list
the fees for advance seat assignments in
a more specific manner, rather than a
range, on the page listing ancillary fees
and on e-ticket confirmations?

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Comments on the cost and benefits of
the proposal and all of the alternatives
are invited. Further, we encourage
interested parties to provide comment
regarding any innovative alternatives/
solutions that Department may not have
considered but that would address the
lack of disclosure of ancillary service
fees in all sales channels.
3. Expanding the Definition of
‘‘Reporting Carrier’’ Under 14 CFR Part
234
In 14 CFR Part 234, the Department
sets forth requirements for ‘‘reporting
carriers’’ to file certain performance data
with the Department and provide flight
on-time performance information to the
public. ‘‘Reporting carrier’’ is defined in
14 CFR 234.2 as an air carrier
certificated under 49 U.S.C. 41102 that
accounts for at least one percent of
domestic scheduled-passenger revenues.
In addition to reporting carriers, any
carrier that does not reach the reporting
carrier threshold may voluntarily file
Part 234 reports, provided that the
Department’s Bureau of Transportation
Statistics (BTS) is advised beforehand
and such data will be submitted
voluntarily for 12 consecutive months.
Pursuant to Part 234, reporting
carriers are required to submit to BTS’
Office of Airline Information their
domestic scheduled passenger on-time
performance data and mishandled
baggage information, and provide ontime performance codes to computer
reservation systems (CRS). These
carriers also must disclose to consumers
the on-time performance code, on a
flight-by-flight basis, for all domestic
scheduled flights that they market to the
public, including the flights operated by
code-share partners. The on-time
performance codes must be disclosed to
consumers during in-person or
telephone communication (including
but not limited to reservations or
ticketing transactions) upon reasonable
inquiry. For flight schedule Web site
displays, the on-time performance
information must be provided either on
the initial listing of the flights or via a
prominent hyperlink. Furthermore, to
implement a statutory requirement of
the Wendell H. Ford Aviation
Investment and Reform Act for the 21st
Century (Pub. L. 106–81), the
Department amended Part 234 in 2005
to require all U.S. air carriers (not only
‘‘reporting carriers’’) to file a report with
the Department’s Aviation Consumer
Protection Division on any incident
involving the loss, injury, or death of an
animal during air transportation.4
4 On June 29, 2012, the Department issued a
Notice of Proposed Rulemaking (RIN 2105–AE07,

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Additionally, under 14 CFR Part 250,
reporting carriers are also required to
submit to the Department information
on passengers denied boarding on their
domestic and outbound international
scheduled flights.
Since their implementation, Parts 234
and 250 have been effective tools for the
Department to collect on-time
performance, mishandled baggage, and
oversales data and use these data to
monitor the quality of service provided
by each reporting carrier to the flying
public and to provide such information
to consumers. On October 22, 2013, BTS
issued a Technical Reporting Directive
(Technical Directive #23) to update the
list of reporting air carriers that are
required to file ‘‘Airline Service Quality
Performance Reports’’ under 14 CFR
Part 234 for calendar year 2014.
Technical Directive #23 identified the
following 14 air carriers that reached the
reporting threshold of one percent of
domestic scheduled-passenger revenue
in the 12-month period ending June 30,
2013: AirTran Airways, Alaska Airlines,
American Airlines, American Eagle
Airlines, Delta Air Lines, ExpressJet
Airlines, Frontier Airlines, Hawaiian
Airlines, JetBlue Airways, SkyWest
Airlines, Southwest Airlines, United
Airlines, US Airways, and Virgin
America.
The one percent domestic scheduledpassenger revenue threshold for
reporting carriers was set in a final rule
that initiated the reporting requirements
contained in Part 234. 52 FR 34056
(September 9, 1987). In that final rule,
the Department considered some
comments asserting that flight delays
affect passengers without regard to the
size of the carrier or the length of the
flight. The Department concluded,
however, that compliance with the rule
was likely to be much more costly for
small carriers than for large carriers,
particularly due to the fact that, at the
time when the rule was finalized, large
carriers were more likely than small
carriers to maintain their flight
performance data in a computerized
form. Therefore, the Department made
the determination that as an initial
matter, it would limit the application of
Docket No. DOT–OST–2010–0211), seeking
comments on whether the Department should
expand the reporting carrier pool for reporting
animal death, loss and injury incidents to cover all
U.S. carriers operating domestic and international
scheduled passenger air transportation using at
least one aircraft with a design capacity of more
than 60 seats. See 77 FR 38747 (June 29, 2012).
Because our determination on the scope of
reporting carrier with respect to animal death, loss
or injury incidents will be addressed separately in
the final rule of that rulemaking, interested parties
should provide comments regarding animal
reporting to the Department through the docket
designated for RIN 2105–AE07.

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Federal Register / Vol. 79, No. 100 / Friday, May 23, 2014 / Proposed Rules
this rule to large air carriers.
Nonetheless, the Department noted that
it would continue to review the carriers
covered and would extend the reporting
requirements to smaller carriers if it
became necessary.
Twenty-five years have passed since
the issuance of that final rule.
Technology innovations that have
fundamentally reshaped our world in
many ways have also profoundly
changed almost every aspect of the
commercial aviation industry’s
operations. In 1987, for a small carrier
to file data with the Department, it had
to commit to either a significant capital
investment in a comprehensive
computer data tracking system or to a
significant human resource investment
so it could compile and file reports
manually. Conversely, in this day and
age, virtually all air carriers are using
computerized recordkeeping methods to
store and distribute data to file reports
with the Department or are conducting
internal performance evaluations, or
both, which makes reporting data a
much easier and less costly task.
Moreover, we believe that requiring
smaller carriers to report service quality
data to the Department will greatly
benefit the public in several ways. First,
adding these smaller carriers’
performance data to the data currently
collected by BTS will enable the
Department to obtain and provide to the
flying public a more complete picture of
the performance of scheduled passenger
service in general. These data will, in
turn, provide consumers with more
meaningful information on which to
base their purchasing decisions. For
example, based on BTS-provided
domestic scheduled passenger revenue
and enplanement data for 2010, the
carriers that reach the one percent
threshold represent approximately 90
percent of total domestic scheduled
passenger revenue, and 80 percent of
total domestic scheduled passenger
enplanements. If we were to lower the
threshold to 0.5 percent of domestic
scheduled passenger revenue, the
reporting carrier pool would capture
approximately 98 percent of domestic
scheduled passenger revenue and 94
percent of the domestic scheduled
passenger enplanements.
Further, the public benefits of
including smaller carriers in the
reporting pool were also recognized and
supported by a September 2011 Report
to Congressional Requesters prepared by
the Government Accountability Office
(GAO). In the report titled Airline
Passenger Protections, More Data and
Analysis Needed to Understand Effects
of Flight Delays, GAO recommended
that in order to enhance aviation

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consumers’ decision-making, the
Department should collect and
publicize more comprehensive on-time
performance data to include information
on most flights, to airports of all sizes.
GAO specifically recommended that one
way this goal could be accomplished
was by requiring airlines with a smaller
percentage of total domestic scheduled
passenger service revenue, such as
airlines that operate flights for other
airlines, to report flight performance
information. Furthermore, expanding
the reporting carrier pool would
enhance the Department’s ability to
analyze the cause of flight disruptions
such as delays and cancellations,
particularly with respect to airports in
smaller communities and smaller
airlines. For example, according to
GAO’s analysis of the performance
record of two legacy airlines 5 and their
regional partners, the regional partners
generally have worse on-time
performance records. GAO further notes
that while flight cancellations to smaller
communities may inconvenience a
relatively small number of passengers,
they may result in long trip delays if
those smaller communities have
infrequent service. What’s more,
requiring smaller carriers to file on-time
performance, mishandled baggage, and
oversales data with the Department will
increase the level of public scrutiny of
these carriers’ performance, which in
turn will function as an incentive for
these carriers to continuously improve
the quality of their service. The
enhanced service quality will increase
these carriers’ competitiveness and
benefit the regional markets that they
primarily serve.
For these reasons, we are proposing in
this NPRM to amend the definition of
‘‘reporting carrier’’ under Part 234 to
include carriers that account for at least
0.5 percent of annual domestic
scheduled-passenger revenue.
Additionally, since for years BTS has
been using June 30, instead of March 31,
as the cutoff date to compile a carrier’s
annual domestic scheduled-passenger
revenue percentage, we propose to
codify this change in the definition of
‘‘reporting carrier.’’ We seek public
comments on whether 0.5 percent is a
reasonable threshold to achieve our goal
of maximizing the scope of data
collection from the industry while
balancing that benefit against the
burden of increasing reporting
requirements on carriers, particularly
small businesses. If 0.5 is not the most
5 A ‘‘legacy’’ airline is a carrier that was operating
when the industry was deregulated. They are
typically large airlines with a hub-and-spoke route
system.

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reasonable threshold, we seek comment
on an even larger expansion, e.g., to 0.25
percent of domestic scheduled
passenger revenue, or a smaller
expansion to 0.75 percent of domestic
scheduled passenger revenue.
Additionally, we seek comment on
whether we should require that all
carriers that provide domestic
scheduled passenger service report to
the Department. We especially welcome
comments that provide specific cost
estimates or analysis by small carriers
that would potentially be impacted by
this proposal. We also request
comments regarding whether a carrier’s
share of domestic scheduled passenger
revenue remains an appropriate
benchmark. Should we use a carrier’s
share of domestic scheduled passenger
enplanements instead? If so, what
percentage is a reasonable threshold for
triggering the reporting obligation?
Finally, in relation to the burden
associated with implementing a
reporting mechanism within a carrier’s
operation system, what is the
approximate time period that a newly
reporting carrier will likely need to
prepare for the new reporting duties?
Although not proposed in the rule text,
we are contemplating that should this
proposal be finalized, we would permit
carriers that otherwise would not have
been reporting carriers but become a
reporting carrier under a new threshold
to file their first Part 234 report by
February 15 for the first January that is
at least six months after the effective
date of this rule. We believe this would
provide carriers adequate time to
implement necessary procedures for
filing the reports and amending their
Web sites to comply with the flight ontime performance disclosure
requirements contained in section
234.11, to the extent that the Web sites
directly market flights to consumers.
Having the initial reports start in
January would provide the added
benefit of preserving the consistency of
the Department’s data for a full calendar
year during the transition. We seek
comments on whether this rationale for
determining the compliance date for the
reporting requirement would be helpful
to newly reporting carriers.
In addition to expanding the pool of
reporting carriers, we are also
contemplating expanding the scope of
‘‘reportable flights’’ in relation to
airports. The current rule only requires
reports for flights operated to and from
U.S. airports that count for at least 1%
of domestic enplanements (large hub
airports). However, since the inception
of the rule, the reporting carriers have
chosen to file reports for scheduled
passenger flights to all U.S. airports

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where they operate. In this NPRM, we
seek comments on whether we should
eliminate the concept of reportable
flights and simply mandate reports for
all scheduled flights operated by
reporting carriers to and from all U.S.
airports. Without this amendment, the
expansion of ‘‘reporting carrier’’ to
include smaller carriers could be
rendered less meaningful because a
large percentage of flights operated by
these smaller carriers are not to or from
large hub airports. In addition to
comments on whether and how such
expansion of scope of reportable flights
may benefit different stakeholders, we
also welcome information on cost
comparisons for carriers to report only
flights to and from (1) large hub airports,
(2) large, medium, small, and non-hub
U.S. airports, and (3) all airports.
4. Carriers To Report Data for Certain
Flights Operated by Their Code-Share
Partners
The Department of Transportation
provides information each month on the
quality of services provided by the
airlines through its Air Travel Consumer
Report (ATCR). This Report is divided
into six sections: Flight delays,
mishandled baggage, oversales,
consumer complaints, customer service
reports to the Transportation Security
Administration, and airline reports of
the loss, injury, or death of animals
during air transportation. The sections
that deal with flight delays, mishandled
baggage, and oversales are based on data
collected by BTS pursuant to 14 CFR
Part 234 and Part 250. The section that
deals with animal incidents during air
transport is based on reports required by
section 234.13 and collected by the
Aviation Consumer Protection Division.
With respect to flight delay
information, in addition to the monthly
overview of each reporting carrier, the
ATCR also ranks each reporting carrier’s
performance at all large hub U.S.
airports from which it operates. These
performance tables, particularly the
rankings, are widely accepted as
important indicators of the carriers’
quality of service, and are frequently
referred to in news reports, industry
analyses, and consumer commentaries
and forums. Moreover, it is not
uncommon that these rankings are used
as the key references in institutional
studies, the results of which are often
cited in news reports with attentiongrabbing headlines such as ‘‘The Best
and Worst Airlines of the U.S.’’
Although headlines like this tend to
over-simplify the complexity of airline
operations, being named as one of ‘‘the
best’’ or ‘‘the worst’’ airlines in the
country in a national news outlet does

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have a significant impact on a carrier’s
image and brand identity and either
affords the carrier a great marketing tool
or causes some consumers to avoid
selecting that carrier’s flights when
making purchase decisions which acts
as an incentive for the carrier to
improve its performance.
Because of the influence of the ATCR
on consumer perception of carriers as
well as its effect on the perception of
carriers within the industry, it is vitally
important that the information provided
by these reports remains accurate. Since
the Department began to issue the
ATCR, the Aviation Consumer
Protection Division and BTS have been
working closely to ensure that the
published reports accurately reflect the
data received by the Department.
However, this continuing effort does not
address the growing problem of an
inadequate scope of data collection, the
most significant area being that a
marketing carrier’s data do not include
its flights operated by code-share
partners.
The data that carriers file under Part
234 and Part 250 are the primary source
from which each monthly ATCR is
developed. A ‘‘reportable flight’’ under
Part 234 refers to any domestic
scheduled nonstop flight reported to the
Department by a reporting carrier
pursuant to 14 CFR Part 241, Uniform
System of Accounts and Reports for
Large Certificated Air Carriers. Part 241
in turn defines a ‘‘reporting carrier’’ for
the purpose of Form T–100 (U.S. air
carrier traffic and capacity data by
nonstop segment and on-flight market)
as ‘‘the carrier in operational control of
the flight, i.e., the carrier that uses its
flight crew under its own FAA operating
authority.’’ Therefore, the on-time
performance and mishandled baggage
data collected under Part 234 from each
reporting carrier are limited to the data
for a reporting carrier’s domestic
scheduled passenger nonstop flight
segments operated by that reporting
carrier. Part 250 also limits the oversales
reporting requirement to reporting
carriers, although it is not limited to
domestic flights (see 14 CFR 250.10).
If the reporting carrier engages in
code-sharing arrangements in which the
reporting carrier is the marketing carrier
but not the operating carrier, the
performance data for those flights are
not included in the reporting carrier’s
Part 234 and Part 250 reports. If the
operating carrier of a code-share flight is
a reporting carrier itself, the
performance data for its code-share
flights that are also marketed by another
carrier will be reported to the
Department, but data for those flights
will not be attributed to the marketing

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carrier. What’s more, some operating
carriers of code-share flights marketed
by larger carriers do not meet the
current reporting threshold of Part 234,
and a certain number of operating
carriers of code-share flights marketed
by larger carriers would not meet the
proposed lower reporting threshold of
0.5 percent of annual domestic
scheduled passenger revenue.
Therefore, the on-time performance,
mishandled baggage, and oversales data
for those flights are not currently
reported to the Department at all and,
even under a revised reporting
threshold, not all of those operating
carriers of code-share flights marketed
by larger carriers would necessarily be
required to report performance data.
The Department considers the current
scope of reportable flights under Part
234 inadequate to truly capture many
carriers’ quality of service, so as to be
accurately reflected in the ATCR. The
limited scope of the current reporting
requirements may result in consumer
confusion or misperception. We note
that the majority of legacy/mainline U.S.
carriers continue to seek brand
consolidation, while still maintaining
the ‘‘hub and spoke’’ operation
structure. For economic reasons, those
legacy carriers’ regional short-haul
flights are operated, in many markets,
by code-share partners on a fee-for-flight
basis and these operating carriers do not
engage in the sale of tickets at all.
According to the data contained in the
FAA’s Aerospace Forecast for fiscal
years 2012–2032, mainline carriers
provided 16 percent less domestic
passenger capacity in 2011 than they
did in 2001. Over the same ten-year
period, however, regional carriers’
capacity overall has increased to 153
percent of the 2001 level. Further, a
recent Official Airline Guide (OAG)
survey provides a snapshot of the
current operations of mainline carriers
and their regional partners and indicates
the comparative scope of code-share
operations. It shows that in 2011, each
of the top five legacy carriers had more
than 45% of its domestic scheduled
flights operated by code-share regional
partners, with the carrier on the top of
the survey list having almost 70% of its
domestic scheduled flights operated by
code-share regional partners. The
service quality data for these codeshared flights are not reported by the
legacy carriers and are not attributed to
these carriers’ records and rankings in
the ATCR. However, those flights are
marketed by the legacy carriers with
their own airline designator codes and
usually their own brands, sometimes
bearing trademarks such as

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‘‘Connection’’ or ‘‘Express’’ in addition
to the mainline carriers’ trade names. In
many instances, the mainline carriers
also handle virtually all aspects of
ground operations including scheduling
and customer service related issues,
such as dealing with oversales
situations, providing denied boarding
compensation, and resolving baggage
claims. Consumers may consider these
code-share flights operated by codeshare regional partners to be air
transportation service provided by the
mainline carrier just as much as the
flights actually operated by the mainline
carriers.
The Department is also concerned
that the inadequacy of the scope of
service quality reports may hinder
competition. The Department is mindful
that on-time performance data in the
ATCR may have a limited influence on
a consumer’s purchase decision
regarding a particular flight, because the
consumer is more likely to refer to that
specific flight’s on-time performance
record, which under 14 CFR 234.11
must be provided on a marketing
carrier’s Web site, regardless of whether
it is operated by a code-share partner.
Nonetheless, a carrier’s ATCR ranking
speaks of the carrier’s performance
quality from a macro perspective, and is
often used by carriers as a powerful
marketing tool in developing brand
loyalty, recruiting talented employees,
and negotiating with suppliers and
airports, as well as promoting its service
in a newly developed or targeted
geographic market. Most importantly,
the ATCR numbers and rankings are
benchmarks carriers use to assess their
performance among competitors and to
seek effective ways to improve. As
stated above, recent numbers show that
virtually all legacy carriers have at least
45% of their domestic scheduled
passenger flight segments operated by
code-share partners, which means data
for those flights are not reported by the
marketing carriers under Part 234 and
Part 250 or attributed to the carrier in
the ATCR. By contrast, most relatively
new carriers that are ranked in the
ATCR operate a ‘‘point-to-point’’
network and follow a different business
model, the so-called ‘‘low cost’’ model.
Under this business model, carriers
engage in very few, if any, code-share
arrangements. As a result, the ATCR is
comparing the service quality of all
flights marketed by a low-cost carrier
with the service quality of 55% or less
of the flights marketed under legacy
carriers’ brands and codes. We will not
seek to determine how including codeshare flight records in the ATCR would
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are of the tentative opinion that
requiring all reporting carriers to report
data for all flights marketed under that
carrier’s name and code would put
carriers on an equal footing in this
important competitive arena.
Additional support for our proposal
comes from the aforementioned final
report by FAAC, which noted that the
Competitiveness and Viability
Subcommittee recommended that the
Department should continue to require
marketing carriers to provide clear and
transparent notification of operations
conducted by an air carrier other than
the marketing carrier. Further, some
subcommittee members also believed
that more detailed disclosure regarding
regional carriers’ operations should be
included in the ATCR, and that the
report should include metrics organized
not only by operating air carrier, but by
the marketing air carrier.
For the reasons stated above, we are
proposing to expand the scope of
‘‘reportable flight’’ under Part 234, and
consequently under Part 250. Pursuant
to this proposal, a reporting carrier
would continue to file Form 234 and
Form 251 (the oversales report required
by Part 250) with respect to nonstop
scheduled flights operated by the
reporting carrier. In addition, each
reporting carrier would file a separate
Form 234 and a separate Form 251 to
include both flights that are operated by
the reporting carrier itself and all
nonstop scheduled flights that are
operated by a code-share partner and
sold under the reporting carrier’s code.
Reportable flights under Part 234 (ontime performance and baggage data) are
limited to domestic nonstop flight
segments. The Form 251 oversales
report has always included data for
outbound international flights from the
United States, and that will continue to
be the case for the proposed new report
that would include service operated by
code-share partners. However, this new
report, like the original report, would be
limited to service operated by ‘‘a
certificated carrier or commuter air
carrier’’—both of which are U.S. air
carriers—and consequently the new
report would not collect data on codeshare flights operated for a reporting
carrier by a foreign-carrier code-share
partner. Our primary regulatory interest
at this time is collecting and publishing
data on code-share service operated by
the regional-carrier partners of the larger
U.S. airlines. We are not proposing at
this time to collect oversales data for
flights from the United States (the
oversales rule doesn’t apply to inbound
international flights to the United
States) that are operated by large foreign

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carriers that do not already report these
data.
For this purpose it is irrelevant
whether the actual operating carrier in
the code-share arrangement is a
reporting carrier itself and is required to
file data for that flight under the
reporting requirements applicable to the
operating carrier. Under our proposed
rule, the marketing carrier reporting
data on flights operated by another
carrier would not need to distinguish
flights operated by different code-share
partners. We are proposing to require
the marketing carrier to provide
aggregated consumer statistics for all
flights operated under its code (i.e.,
flights it operates and flights operated
by its code-share partners). This would
be an additional reporting requirement
(second set of reports) and is not
intended to replace the existing
requirement for a reporting carrier to
provide separate data for flights it
operates. We seek comment on whether
the second sets of reports should only
contain the performance records of all
flights operated for the reporting carrier
by its code-share partners but not the
flights operated by the reporting carrier.
Alternatively, rather than having all
code-share partners’ records in
aggregation, we ask if we should require
the marketing carrier to provide separate
data on flights operated by each of its
code-share partner’s operations. What
are the benefits of separating each codeshare partner’s records and what are the
costs, if any, added to the reporting
carriers? Finally, since many regional
carriers operate flights under the code of
more than one large carrier, we seek
comment on whether ‘‘doublecounting,’’ i.e., situations where a given
flight carries the code of more than one
large carrier, is an issue and if so, how
to avoid it. Do regional carriers that
have code-share agreements with more
than one large carrier ever operate a
given flight for more than one marketing
carrier, or on the other hand, do these
flights always operate in discrete citypair markets? How should we deal with
the situation of large U.S. carriers that
code-share with each other?
Our proposal to expand the scope of
reportable flights will necessitate
amendments to the rule text of 14 CFR
234.6, Baggage Handling Statistics. On
July 15, 2011, the Department issued an
NPRM, Reporting Ancillary Airline
Passenger Revenues (RIN 2105–AE31,
Docket No. DOT–RITA–2011–0001) that
proposes, among other things, to amend
section 234.6 by changing the way it
computes mishandled baggage rates,
from mishandled baggage reports per
unit of domestic enplanements to
mishandled baggage per unit of checked

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bags. The proposed amendments to
section 234.6 also include a new and
separate requirement for collecting
statistics for mishandled wheelchairs
and scooters used by passengers with
disabilities. In this NPRM, our proposed
amendments to section 234.6 are
tentatively based on the proposed rule
text in the ancillary revenues reporting
NPRM. Our adoption of the rule text as
proposed in RIN 2105–AE31 in this
rulemaking is not indicative of whether
we are going to adopt the text as
proposed in the final rule for the
ancillary revenue reporting proposal.
Further, although that NPRM’s comment
period has ended, any comments
regarding the proposed computation
method for mishandled baggage and the
proposed inclusion of mishandled
wheelchairs and scooters in the
reporting should be submitted to the
ancillary revenue reporting rulemaking
docket and will be considered to the
extent practicable.
We note that if the operating carrier
is already a reporting carrier, the data
for the code-share flights that will be
added to the marketing carrier’s report
will have to be prepared and submitted
to the Department by the operating
carrier to meet the existing reporting
requirement. In these instances, we
expect that the cost to the marketing
carrier to obtain this data would be
negligible. With respect to flights
operated by a code-share partner that is
not a reporting carrier, we believe the
cost of obtaining data would be higher
but not significant, as most carriers,
large or small, already have internal
systems in place that track the major
elements of flight performance quality.
There are also costs related to compiling
data for the code-share flights and
setting up the reporting infrastructure to
file the compiled report with the
Department. We seek comments from
carriers and the public regarding the
costs associated with adding data on
flights operated by code-share partners
to reports filed with the Department. We
further note that 14 CFR 234.8 requires
reporting carriers to calculate and assign
an on-time performance code for each
‘‘reportable flight.’’ Currently section
234.8 only covers domestic scheduled
flights operated by a reporting carrier, so
our proposal to expand the scope of
‘‘reportable flight’’ under Part 234 will
require that reporting carriers also
calculate and assign an on-time
performance code for each domestic
scheduled flight operated by a codeshare partner. However, since April 29,
2010, all current reporting carriers have
been required by section 234.11 to
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schedule information detailed on-time
performance records, on a monthly
basis, for each domestic scheduled
flight, including each domestic codeshare flight. In this regard, we expect
that these current reporting carriers are
already adequately prepared to comply
with requirement of section 234.8 with
respect to code-share flights. Finally, we
ask what the reasonable implementation
period should be if this proposal
becomes a final rule.
5. Minimum Customer Service
Standards for Ticket Agents
In the Department’s first Enhancing
Airline Passenger Protections final rule,
74 FR 68983, the Department required
U.S. carriers in 14 CFR 259.5 to adopt
a customer service plan. In the second
Enhancing Airline Passenger Protections
final rule, 76 FR 23110, the Department
extended this requirement to foreign
carriers and required both U.S. and
foreign carriers to adopt minimum
standards for their customer service
plans. Among other standards, the
Department requires carriers to provide
prompt ticket refunds where ticket
refunds are due, in accordance with
existing Department rules; hold a
reservation at the quoted fare or permit
the reservation to be cancelled without
penalty for at least 24 hours after a
customer books the ticket; disclose
cancellation policies, seating
configuration, and lavatory availability
to consumers; notify travelers of
changes in travel itineraries; and
respond to consumer-related complaints
in a timely manner. Section 259.5 only
applies to U.S. and foreign carriers that
provide scheduled passenger service
using at least one aircraft with an
original designed passenger capacity of
30 or more seats. In a Frequently Asked
Questions guidance document issued by
the Department’s Enforcement Office, in
response to questions regarding whether
section 259.5 applies to ticket agents,
the Enforcement Office clarified that
these customer service provisions are
not applicable to agents. Therefore,
agents are not currently required to hold
a reservation for 24 hours or respond to
consumer complaints or notify
passengers of changes to travel
itineraries.
The Department is proposing to
amend 14 CFR 399.80, which addresses
unfair and deceptive practices by ticket
agents, because the Department believes
that all airline passengers should benefit
from certain customer service plan
protections. Not all of the customer
service standards set forth in 14 CFR
259.5 should apply to agents, but the
Department sees no reason not to extend
the standards related to ticket purchases

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and information dissemination to ticket
agents that sell air transportation. As
such, the Department is proposing to
require these ticket agents to adopt
minimum customer service standards in
select areas. The customer service
standards would not apply to ticket
agents that don’t sell air transportation
but rather arrange for air transportation
and receive compensation in connection
with air transportation sold by others.
Additionally, as proposed, the standards
would only apply to those ticket agents
with annual revenue of $100 million or
more that market to the general public
in the United States. A majority of U.S.
travelers who bought their airline tickets
through an avenue other than a carrier
used large ticket agents.
As carriers are already required to
allow reservations to be held at the
quoted fare without payment or
cancelled without penalty for at least 24
hours after a reservation is made if the
reservation is made one week or more
prior to a flight’s departure, the
Department is proposing to extend this
requirement to ticket agents that sell air
transportation. The Department feels
that such agents should be able to allow
reservations to be held at the quoted
fare, as carriers are already required to
provide this option. Moreover, through
this proposal, the benefits of reserving
without payment or canceling without
penalty will reach consumers who use
an agent to book air transportation.
Similar to carriers, this proposal would
only require ticket agents that sell air
transportation to hold the fare at the
quoted price. The proposal would not
require agents to hold for 24 hours the
price for other related items such as fees
associated with ancillary services or
tour components (e.g., hotel stay)
although agents are, of course, free to do
so if they wish. We solicit comment on
whether the Department should require
specific disclosure by agents and
airlines about what is and is not being
held for 24 hours.
The Department also seeks comments
on requiring both agents and carriers to
inform consumers, when engaging in
oral communications with them about
changes to a reservation, of the
consumer’s right to cancel without
penalty if applicable. The Department
has received complaints alleging that
airlines are not disclosing to consumers
when they are eligible to change their
reservation without penalty and
charging consumers change fees when
consumers are unaware that they can
cancel without penalty and rebook.
Should carriers and agents be required
to disclose the 24-hold policy to a
consumer who is making a change
within 24 hours of booking? Should the

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Department require that the policy be
prominently disclosed during the
booking process? Currently, many
carriers only disclose the policy in their
‘‘Customer Service Commitment’’ but
not during the booking process. Would
it be beneficial for consumers to have
this information during booking?
Additionally the Department is
proposing to require agents to provide
prompt refunds where ticket refunds are
due. This requirement would mirror 14
CFR 259.5(b)(5), which requires carriers
to submit a refund for a credit card
purchase within 7 days of the complete
refund request, and in the case of cash
or check purchases, within 20 days of
receiving a complete refund request.
Oftentimes, if a consumer has to cancel
a trip, and a refund is due, they find
themselves going between the airline
and the agent for the refund in cases
where the passenger purchased the
airline ticket through an agent. This
requirement would prevent this type of
hassle and back-and-forth for consumers
and clarify the agent’s responsibility in
assisting consumers when ticket refunds
are due.
The Department is also proposing that
agents disclose cancellation policies,
seating configuration, and lavatory
availability upon request to a passenger
before a consumer books a selected
flight. Many consumers who choose to
book through a ticket agent are unaware
of restrictions or fees associated with
canceling the ticket. Additionally,
consumers are not always aware that
they are booking a flight on a smaller
aircraft or an aircraft that may not have
a bulkhead seat or lavatory available. As
carriers are required to provide this
information to consumers on their Web
sites and upon request from their
telephone reservation staff, the
Department feels agents should also
provide the information. Under this
proposal, agents would have to make
this information available on their Web
sites that are marketed to U.S.
consumers, and upon request for
reservations made over the telephone.
The Department invites interested
parties to comment on this proposal,
specifically whether agents already have
this information to share with
consumers. If agents do not have
information about carriers’ cancellation
policies, aircraft seating configurations
and lavatory availability, should the
Department impose a requirement for
carriers to provide their agents this
information or should agents be
required to provide links so that
consumers can obtain that information?
The Department also invites comments
regarding the methods for disclosing
cancellation policies, seating

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configurations, and lavatory availability
information to consumers. Should the
Department require that this
information be placed at a particular
location on a carrier’s Web site, e.g.,
next to every flight in a search-result list
for a particular itinerary?
The Department is also proposing that
agents adopt a customer service
standard to notify consumers of changes
in travel itineraries in a timely manner.
A carrier is not required to notify a
consumer about a change in his or her
travel itinerary if the carrier does not
have contact information for that
individual, and an agent is not required
to provide a client’s contact information
to an airline. Therefore, consumers who
use agents that do not provide contact
information to carriers may not receive
direct or timely notice of changes to
their itinerary. This requirement is
intended to ensure that consumers are
timely notified of such changes.
Finally, the Department is proposing
that agents be required to substantively
respond to consumer complaints.
Agents would be required to
acknowledge receipt of a consumerrelated complaint within 30 days of
receipt of the complaint. Where the
complaint (in whole or in part) is about
the agent’s service, the agent must
substantively respond to the complaint
within 60 days. If all or part of the
complaint is about services furnished
(or to be furnished) by an airline or
other travel supplier, the agent must
forward the complaint to that supplier
for response. If no part of the complaint
is about the agent’s service and the
agent sends the complaint to the
appropriate supplier(s), the agent’s
substantive reply can consist of the
agent informing the passenger that his
or her complaint has been forwarded to
the appropriate party and providing
contact information to the passenger for
that entity. This proposal closes the gap
that exists in 14 CFR 259.5(b)(11) and
259.7, which require carriers to respond
to consumer complaints but do not
provide for complaints related to a
ticket agent’s services.
Although the subjects that we are
proposing that ticket agents that sell air
transportation address in their customer
service plans are identical to those that
carriers are already required to include
in their customer service plans with
respect to ticket purchases and
information dissemination, we request
comment on whether any of these
subjects would be inappropriate if
applied to ticket agents. Why or why
not? Some of these items may be under
direct control of the air carrier, and not
the ticket agent. In commenting on these
customer service commitments, large

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ticket agents should address the extent
to which they are responsible for each
of these items. Moreover, we seek
comment on whether the Department
should require that ticket agents address
any other subjects in their customer
service plans. For example, should
ticket agents be required to prominently
disclose to individuals who will be
issued more than one ticket for their trip
that their bags may not be checked
through, as airlines typically check a
passenger’s baggage between the origin
and destination points that are issued
on a single ticket? Should ticket agents
also be required to disclose to such
individuals that they may have to pay
multiple and different bag fees if
ticketed separately as the Department’s
requirement for one set of baggage
allowances and fees throughout a
passenger’s itinerary only applies when
there is a single ticket? If so, when
should this disclosure occur—before or
after a ticket is purchased? We also seek
comment on the appropriate form for
such a disclosure (e.g., orally, on the
ticket agent’s Web site, on e-ticket
confirmation). The Department is
proposing to apply these customer
service standards only to large ticket
agents (those with annual revenue of
$100 million or more) that market to the
general public in the United States. The
Department invites comment on
whether the applicability should be
expanded to cover other ticket agents,
e.g., smaller ticket agents, or ticket
agents who do not sell to members of
the general public.
The Department recognizes that
requiring these minimum customer
service standards for agents would place
a cost burden on these agencies.
However, the Department believes that
the benefits to consumers of receiving
timely information, permitting
reservations to be held for 24 hours
without risk, and having their
complaints addressed outweigh the
costs. These proposals put all airline
passengers on an equal footing when it
comes to customer service standards,
regardless of how they purchased their
tickets.
The Department invites comments on
the costs and benefits of these proposed
customer service standards. For
consumers who use agents, have you
had problems in the past determining
the cancellation policies associated with
your ticket or being informed of changes
in travel itineraries? For carriers, do you
see any cost in sharing the information
with the agents that the agents would be
required to provide to consumers? For
agents, what are the costs and benefits
that you see in the proposal? Are you
already receiving the information that

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you would have to disclose to
consumers from carriers? Should agents
also be required to review their
adherence to the customer service plans
each year and retain the records of the
audits for two years following the date
of any audit, just as carriers are required
to do today? Should agents be required
to post their customer service plans on
their Web sites if the Web sites are
marketed towards U.S. consumers? Are
there unforeseen consequences of the
proposal, and, if so, what are they?
6. Codifying 49 U.S.C. 41712(c)
Regarding Web site Disclosure of CodeShare Service and Other Amendments
to 14 CFR Part 257
Code-sharing is an arrangement
whereby a flight is operated by a carrier
other than the airline whose designator
code is used in schedules and on
tickets. The Department’s current
regulation on the disclosure of codesharing and long term wet lease
arrangements, 14 CFR 257.5, was
initially issued in 1999. Based on the
statutory prohibition against unfair and
deceptive practices in the sale of air
transportation, 49 U.S.C. 41712, the
purpose of § 257.5 is to ensure that
consumers are aware of the identity of
the airline actually operating their flight
in code-sharing and long-term wet lease
arrangements in domestic and
international air transportation. See 64
FR 12838 (March 15, 1999). The
Department has long recognized the
economic benefits of airline codesharing and long term wet lease
arrangements but has been aware that
such arrangements may cause consumer
confusion regarding the identity of the
operating carrier of a flight. For
simplicity, we refer to both code-sharing
arrangements and long term wet lease
arrangements (covered in Part 258) as
‘‘code-share’’ arrangements, as the
disclosure requirements for both types
of operations are essentially identical.
Code-share disclosure is important
because the identity of the operating
carrier is a factor that affects many
consumers’ purchasing decisions. In
that regard, we believe that
strengthening the code-share disclosure
requirements by codifying requirements
in Part 257 is an effective way to
prevent potential consumer confusion.
Pursuant to § 257.5, carriers and ticket
agents are required to inform
consumers, when engaging in oral
communications with the public, of
code-share service ‘‘before booking
transportation’’ and to ‘‘identify the
transporting carrier by its corporate
name and any other name under which
that service is held out to the public’’
(section 257.5(b)). Written notice of

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code-sharing arrangements is also
required when a ticket purchase is
made, regardless of whether an itinerary
is issued (section 257.5(c)). In ‘‘printed’’
advertisements, including those
appearing on a Web site, the codesharing relationship must be
‘‘prominently’’ disclosed and an
abbreviated notice must be included in
any radio or television advertisement
(section 257.5(d)). With respect to all
schedule information that is publicly
available in writing, including on Web
site displays, section 257.5(a) requires
that any code-share service be indicated
with ‘‘an asterisk or other easily
identifiable mark and that the corporate
name of the transporting carrier and any
other name under which that service is
held out to the public’’ also be
disclosed. As a matter of enforcement
policy, since the issuance of section
257.5, we have permitted entities
providing schedules on Web sites to
provide disclosure of an operating
carrier’s corporate name and other
pertinent names through rollover or
hyperlinked displays.
In February 2009, a flight operated by
a regional air carrier under a mainline
air carrier’s code crashed during
landing. In the aftermath of that fatal
incident, family members of some
victims questioned the adequacy of
disclosure regarding the code-sharing
nature of that operation. In response to
these concerns and in recognition of the
necessity of further strengthening the
disclosure requirements of code-sharing
arrangements, Congress amended 49
U.S.C. 41712 in August 2010 to add a
subsection (c) that requires that in any
oral, written, or electronic
communications with the public, U.S.
and foreign air carriers and ticket agents
disclose the name of the carrier
providing the air transportation for each
flight segment prior to the ticket
purchase. In addition, subsection (c)
provides that if an offer to sell tickets is
provided on a Web site, such
information must be disclosed ‘‘on the
first display of the Web site following a
search of a requested itinerary in a
format that is easily visible to a viewer.’’
Airline Safety and Federal Aviation
Administration Extension Act of 2010,
Public Law 111–216, Title II, section
210, 124 Stat. 2362 (August 1, 2010). In
light of Congress’ specific requirement
regarding Web site ticket offer
disclosure, on January 14, 2011, the
Department’s Enforcement Office issued
Guidance on Disclosure of Code-Share
Service Under Recent Amendments to
49 U.S.C. 41712, in which the
Enforcement Office revised its
enforcement policy and explained that

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under the statute any disclosure of codeshare service in the context of Web site
displays by carriers and ticket agents
must be on the same screen as the
itinerary and immediately adjacent to
that itinerary and to each alternative
itinerary, if any. The guidance provided
notice that carriers or ticket agents
whose Web sites failed to provide full
disclosure of code-share service
arrangements or that provided
disclosure only through rollovers or
hyperlinks would potentially be subject
to enforcement action.
In this NPRM, we are proposing to
amend 14 CFR 257.5 to codify the
requirements of 49 U.S.C. 41712(c) and
the Department’s current enforcement
policy with respect to Web site
disclosure of code-share and long term
wet lease arrangements. In addition, we
are proposing to update certain other
disclosure requirements of 14 CFR 257.5
in order to reflect the technology
changes in the airline industry’s
reservation and ticketing systems that
have resulted in the predominance of
electronic ticketing and the significant
use of online transactions. As noted in
the background section of this NPRM,
these proposals are also intended to
implement the Future of Aviation
Advisory Committee and the Advisory
Committee on Aviation Consumer
Protection recommendation that the
Secretary should ensure transparency
regarding flight operators, such as
disclosure of the identity of the operator
on regional-carrier code-share flights.
See FAAC Final Report, April 11, 2011.
It is important to emphasize that we
believe the changes proposed in this
NPRM to the text of section 257.5 are
primarily non-substantive and would
not affect what carriers and ticket agents
are already obligated to do under the
combination of the current section
257.5, the amended 49 U.S.C. 41712,
and the Department’s guidance
document.
(a) Disclosure in Flight Itinerary and
Schedule Displays
14 CFR 257.5 contains subsections (a)
through (d), which deal with disclosure
in schedule displays, oral notice to
prospective consumers, written notice
to ticket purchasers, and disclosure in
advertisements, respectively. Most codeshare disclosure requirements under 14
CFR 257.5 cover both carriers and ticket
agents, but section 257.5(a), notice in
schedules, only covers U.S. air carriers
and foreign air carriers. On the other
hand, 49 U.S.C. 41712(c) (enacted in
2010), as well as the January 10, 2011,
notice issued by the Department’s
Enforcement Office, are explicit that the
same heightened requirements regarding

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code-share disclosure, including Web
site schedule display disclosure, apply
to both carriers and ticket agents. As a
result of this inconsistency, under the
current rule, ticket agents that fail to
adequately disclose code-share
arrangements in schedule displays
would violate section 41712 but not
section 257.5(a).
The inclusion of ticket agents in
section 41712(c) reflects the fact that,
through the growth and development of
the Internet and related technologies,
more and more ticket agents, especially
online travel agencies (OTAs), are able
to provide flight schedules and itinerary
search functions to the public. The
Department applauds new technologies
that increase the number of venues from
which consumers can search and
compare airfares and schedules and
perform one-stop shopping for airfares
along with other components of travel
packages. However, it is our firm belief
that information is useful and beneficial
to the public only if it is accurate and
complete. As a result, we are proposing
to codify the code-share disclosure
requirement in section 41712(c)
concerning schedule displays and make
it applicable to both carriers and ticket
agents doing business in the United
States with respect to flights in, to, or
from the United States. Although the
rule text and the preamble of the final
rule issued in 1999 did not specify what
constitutes ‘‘doing business in the
United States,’’ we are tentatively of the
opinion that any ticket agent that
markets and is compensated for the sale
of tickets to consumers in the United
States, either from a brick-and-mortar
office located in the United States or via
an Internet Web site that is marketed
towards consumers in the United States,
would be considered as ‘‘doing business
in the United States.’’ This
interpretation would cover any travel
agent or ticket agent that does not have
a physical presence in the United States
but has a Web site that is marketed to
consumers in the United States for
purchasing tickets for flights within, to,
or from the United States. We also note
that with the usage of mobile devices
gaining popularity among consumers,
our code-share disclosure requirement
with respect to flight schedule and
itinerary displays covers not only
conventional Internet Web sites under
the control of carriers and ticket agents,
but also those Web sites and
applications specifically designed for
mobile devices, such as mobile phones
and tablets.
Furthermore, the text of section
257.5(a) states that any code-sharing
arrangements must be disclosed in flight
schedules provided to the public in the

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United States, which we interpret to
include electronic schedules on Web
sites marketed to the public in the
United States, by an asterisk or other
easily identifiable mark. As discussed
above, the new amendment to section
41712 and the guidance provided by the
Enforcement Office make it clear that for
schedules posted on a Web site in
response to an itinerary search,
disclosure though a rollover, pop-up
window or hyperlink is no longer
sufficient. Moreover, as stated in the
rationale behind our recently amended
price advertising rule, 14 CFR 399.84,
which ended the practice of permitting
sellers of air transportation to disclose
airfare taxes and mandatory fees
through rollovers and pop-up windows,
we believe that the extra step a
consumer must take by clicking on a
hyperlink or using a rollover to find out
about code-share arrangements is
cumbersome and may cause some
consumers to miss this important
disclosure.
Our proposal codifies the requirement
of section 41712(c)(2) that the codeshare disclosure must appear on the first
display of the Web site following an
itinerary search. Further, section
41712(c)(2) requires that the disclosure
on a Web site must be ‘‘in a format that
is easily visible to a viewer.’’ In that
regard, we are proposing that the
disclosure must appear in text format
immediately adjacent to each code-share
flight displayed in response to an
itinerary request by a consumer. We ask
whether the proposed requirement is
sufficient to meet the statutory
requirement that the disclosure must be
in a format that is easily visible by a
viewer. We further seek comments on
whether we should specify minimum
standards on the text size of the
disclosure in relation to the text size of
the schedule itself. As an alternative to
the proposed standard, we ask whether
a code-share disclosure appearing
immediately adjacent to the entire
itinerary as opposed to appearing
immediately adjacent to each code-share
flight would be a sufficient way to meet
the ‘‘easily visible’’ standard.
With regard to flight schedules
provided to the public (whether the
schedules are in paper or electronic
format), we propose that the code-share
disclosure be provided by an asterisk or
other identifiable mark that clearly
indicates the existence of a code-sharing
arrangement and directs the readers’
attention to another prominent location
on the same page where the identity of
the operating carrier is fully disclosed.
We seek public comments on whether
we should impose the same standard for
flight schedules as for flight itineraries

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provided on the Internet in response to
an itinerary search, i.e., requiring that
the disclosure be provided immediately
adjacent to each applicable flight.
(b) Disclosure to Prospective Consumers
in Oral Communications
Section 257.5(b) requires that carriers
and ticket agents must identify the
actual operator of a code-share flight the
first time that a code-share flight is cited
to a consumer in person, over the
telephone, or through other means of
oral communication. With respect to
covered entities, this section currently
applies to, and, under this proposal,
will continue to apply to, both U.S. and
foreign air carriers, as well as ticket
agents doing business in the United
States. We are not proposing any
changes to this provision, but we
propose to interpret the phrase ‘‘ticket
agent doing business in the United
States’’ in the same manner as described
in the discussion of that phrase in
section 259.5(a) above. Consequently, a
ticket agent that sells air transportation
via a Web site marketed toward U.S.
consumers (or that distributes other
marketing material in the United States)
is covered by section 259.5(b) even if
the agent does not have a physical
location in the United States, and such
an agent must provide the disclosure
required by section 259.5(b) during a
telephone call placed from the United
States even if the call is to the agent’s
foreign location.
(c) Disclosure of Code-Share at Time of
Purchase
With respect to written notice of codeshare arrangements provided to ticket
purchasers, we propose to retain the
basic requirements listed in 14 CFR
257.5(c)(1) but delete the language in 14
CFR 257.5(c)(3). The basic requirements
in section 257.5(c)(1) are as follows: if
a code-share flight segment has its own
designated flight number, the codeshare disclosure must be immediately
adjacent to that flight number; if a
single-flight number service involves
one or more code-share segments, each
code-share segment must be identified
immediately adjacent to that flight
number in the format ‘‘Service between
XYZ City and ABC City will be operated
by Jane Doe Airlines d/b/a ORS
Express.’’ Section 257(c)(3) states that
the written code-share notice required
by section 257.5(c) must accompany the
ticket if the transportation is purchased
far enough in advance of travel to allow
for advance delivery of the ticket. If time
does not allow for advance delivery of
the ticket, ‘‘or in the case of ticketless
travel,’’ the required written notice is to
be provided no later than the time that

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the consumer checks in at the airport for
the first flight in his or her itinerary.
The first part of section 257.5(c)(3)
appears to refer to paper tickets, as it
speaks of the time required for delivery
of the ticket, and it draws a contrast
with ‘‘ticketless travel’’ in the next
sentence. (Ticketless travel is a term that
used to be used for what is now referred
to as electronic ticketing or e-tickets.)
We believe that the required written
notice should in all cases be provided
‘‘at the time of purchase’’ as indicated
at the beginning of section 257.5(c),
regardless of whether a paper ticket is
subsequently issued or the consumer
will receive an e-ticket. Section
257.5(c)(2) states that if a consumer does
not receive an itinerary, the selling
carrier or ticket agent must provide a
separate written notice that identifies
the operating carrier. Thus, the existing
rule anticipates situations in which the
required written code-share notice is not
automatically generated by industry
purchase/ticketing systems and states
that in such cases the selling carrier or
ticket agent must manually generate and
furnish a written disclosure of the
identity of the carrier(s). We do not
believe that a written code-share notice
that is provided at the airport is
sufficient though currently permitted
under section 257.5(c)(3) for passengers
who purchase their air transportation in
advance but do not receive a paper
ticket until a date close to the scheduled
departure date and for e-ticketed
passengers including those who have
purchased their transportation weeks or
months in advance. Accordingly, we
propose to make it clear that written
code-share disclosure must be provided
at the time of purchase.
(d) Disclosure in City-pair Specific
Advertisements
Subsection (d) deals with disclosure
requirements in city-pair specific
advertisements. We are proposing to use
the phrase ‘‘written advertisement’’ to
replace the phrase ‘‘printed
advertisement,’’ which in the current
rule text refers to both advertisements
printed in paper and advertisements
published on the Internet. We believe
the word ‘‘written’’ is more accurate in
describing both formats of
advertisements.
In addition, we are proposing to add
a descriptive phrase to specify the scope
of the disclosure requirements on
Internet advertisements in an effort to
eliminate any possible ambiguity.
Specifically, the current rule states that
our requirements cover advertisements
‘‘published in or mailed to or from the
United States’’ including those
published on the Internet. As the

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Internet is a global information network,
this language may leave it unclear what
would constitute an Internet
advertisement that is ‘‘published’’ in the
United States. For example, a Web site
that is hosted on a server located in the
United States could arguably fall within
the scope of our rule. Conversely, a Web
site hosted on a server located outside
of the United States could still be
marketing airfares to consumers in the
United States. For this reason, and to
achieve consistency with the
Department’s other airline consumer
protection rules, we are proposing to
specify that our code-share disclosure
requirements regarding advertisements
published on the Internet would apply
to advertisements for service in, to or
from the United States that are marketed
to consumers in the United States. This
standard is consistent with the recently
amended full-fare advertising rule, 14
CFR 399.84, which only covers Internet
advertisements published on Web sites
marketed to United States consumers.
As explained in a Frequently Asked
Questions document issued by the
Department’s Enforcement Office
following the publication of that rule,
we will look at a variety of factors to
determine whether a Web site is
marketed to United States consumers,
such as whether the Web site is in
English, whether the seller of air
transportation displays prices in U.S.
dollars, or whether sales can be made to
persons with addresses or telephone
numbers in the United States.
We note that this proposed standard
will cover all advertisements appearing
on a carrier’s or a ticket agent’s own
Web site, as well as advertisements that
are presented to U.S. consumers through
other paid advertising venues on the
Internet (such as a news media Web site
or a travel blog Web site) and social
media Web sites (such as Facebook or
Twitter). We seek comments with regard
to whether imposing the same standard
to advertisements on all of these Web
sites is reasonable and technically
practical. We specifically ask what type
of code-share disclosure is considered
adequate from a consumer’s point of
view, in light of the brevity of the
Facebook and Twitter posting formats.
Finally, we are proposing some editorial
changes to 14 CFR 257.5. First, we
propose to replace the term
‘‘transporting carrier’’, which is used
throughout section 257.5, with the term
‘‘operating carrier’’ to refer to the carrier
in a code-share or wet lease arrangement
that has the operational control of a
flight but does not market the flight in
its own name. In doing so, we are trying
to achieve consistency with other

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recently amended consumer protection
rules, see, e.g., 14 CFR 259.4(c) (codeshare partners’ responsibilities in
tarmac delay contingency plans) and 14
CFR 399.85(e) (notice of baggage fees for
code-share flights). Another stylistic
change proposed in this NPRM concerns
the example disclosure statement that a
seller of air transportation must include
in a radio or television broadcasting
advertisement. The current sample
statement includes the phrase ‘‘[s]ome
services are provided by other airlines.’’
Because the words ’’ services’’ and
‘‘provided’’ cover a wide range of
activities, including ground operations,
customer service, etc., they do not
accurately convey the information we
intended to relate, which was regarding
the actual operation of a flight.
Accordingly, we propose to change the
sentence to read ‘‘[s]ome flights are
operated by other airlines.’’
7. Disclosure That Not All Carriers are
Marketed and Identification of Carriers
Marketed on Ticket Agent Web sites
The Department is considering
requiring large travel agents to disclose
in online displays the fact that not all
carriers that serve a particular market
are marketed by the travel agent if that
is the case. Consumers deserve complete
information regarding whether a
particular ticket agent provides flight
and fare information for all carriers or
just a subset of carriers. Many online
travel agents provide flight and fare
information for a significant number of
carriers serving a particular city-pair
market but not all carriers that serve that
market. In some markets, they may not
provide information regarding any
carrier serving the market. Online travel
agents do not necessarily identify the
carriers whose schedule and fare
information is or is not provided in
search results. As a result, consumers
may believe they are searching all
possible flight options for a particular
city-pair market when in fact there may
be other options available. The Advisory
Committee for Aviation Consumer
Protection recommended that DOT
require ticket agents, including online
ticket agents, to disclose the fact that
they do not offer for sale all airlines’
tickets, if that is the case, and that
additional airlines may serve the route
being searched, so that consumers know
they may need to search elsewhere if
they want to find all available air travel
options. Accordingly, the Department is
considering requiring large ticket agents,
such as online travel agents, that operate
Web sites that display schedules or fares
and/or sell tickets for air transportation
of more than one carrier to disclose
whether they display the airfares of all

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carriers serving any market that can be
searched on the travel agent’s Web site.
One alternative would be to merely
require travel agents to prominently
note on their Web sites that not all U.S.
air carriers and non-U.S. air carriers
serving the U.S. are displayed on the
Web site or marketed by the travel
agent. Another option would be to
prominently display a statement in
connection with a search of a particular
city pair that not all air carriers serving
those cities are displayed on the Web
site or marketed by the travel agent.
Alternatively, online travel agents could
be required to specifically identify all of
the air carriers that are marketed by the
travel agent.
The Department is not providing rule
text for this proposal. Instead, it seeks
comment on how such a requirement
should be implemented. For example,
should the disclosure be made with a
general statement on the travel agent’s
home page with a link to more detailed
information? Or should the disclosure
be made through a statement on the
search results page that displays
itineraries in response to a consumer
search? If the general disclosure
statement is linked to a page with more
detailed information, what additional
information should be provided?
Additionally, the Department seeks
comment on whether such a rule should
be limited to ticket agents of a certain
size or should include all ticket agents,
and if the rule should be limited to
ticket agents of a certain size, what
parameters should the Department use
to define the ticket agents included in
the requirement. The Department also
seeks comment on the costs and benefits
of requiring Web sites to state whether
a particular carrier’s schedule
information is provided on that Web site
and of identifying those air carriers that
must be included in such disclosure.
For example, what are the costs and
benefits of a disclosure that says, ‘‘These
schedules do not include all carriers in
these markets’’ versus a disclosure that
would list the carriers that are included?
8. Prohibition on Undisclosed Airfare
Display Bias by Ticket Agents and
Carriers
In connection with electronic displays
of multiple carriers’ airfares and
schedules, the Department is proposing
to prohibit any undisclosed bias in any
presentation of carrier schedules, fares,
rules or availability. A Department
prohibition on airfare display bias is not
unprecedented. In the past, Department
regulations contained a limited
prohibition on bias of computer
terminal displays provided to travel
agents by computer reservation systems

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(CRSs), the precursors to GDSs. At that
time, there was a concern that the
owners of the CRSs (initially airlines
and, subsequently, other entities) would
potentially engage in display bias or
other unfair, deceptive, predatory, or
anticompetitive practices absent
Department regulation of their
operations (14 CFR Part 255). This rule
prohibited CRSs used by travel agents
from using factors relating to carrier
identity in determining how airfares
were displayed. Among other things, the
CRSs were required to use the same
editing and ranking criteria for ‘‘both
on-line and interline connections and
not give on-line connections a systemimposed preference over interline
connections.’’ 14 CFR 255.4(a)(1).
However, Part 255 sunset on July 31,
2004 (see 14 CFR 255.8).
Recently, the Enforcement Office has
been informed of allegations that certain
ticket agents, including GDSs, have
biased their displays to disadvantage
certain airlines in the course of hardfought contract negotiations. Those
ticket agents have allegedly biased the
listing of available itineraries displayed
in response to searches by consumers or
travel agents on their Web sites. The
display bias allegedly resulted in
consumers and travel agents being
presented with favored carriers’ fare and
schedule information first.
Complainants also assert that although
some ticket agents may have received
limited disclosure regarding certain
instances of display bias, the general
public received no notice or disclosure.
Moreover, we are concerned that GDSs
and other ticket agents could sell bias to
certain airline competitors or bias
displays toward carriers that pay higher
segment fee compensation to GDSs and
such bias could be difficult to detect.
The prohibition would also apply to
flight search tools operated by metasearch engines and similar entities
engaged in the distribution of certain air
transportation information. As
discussed earlier, the Department would
view such entities as being ticket agents.
The Department is considering a
regulation that would require any
carrier or ticket agent that provides
electronic display of airfare information
to provide unbiased displays or disclose
the biases in the display. The regulation
would apply to all electronic displays of
multiple carriers’ fare and schedule
information, whether the display is
available on an unrestricted basis, e.g.,
to the general public, or is only
available to travel agents who sell to the
public. The requirement to provide
unbiased displays or disclose biases in
the display would also apply to
electronic displays used for corporate

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travel unless a corporation agrees by
contract to biases in the display used by
its employees for business travel. If not,
the regulation would require carriers
and ticket agents that provide airfare
information electronically to display the
lowest generally available airfares and
most direct routings that meet the
parameters of the search in response to
an inquiry for an airfare quotation for a
specific itinerary. It would also prohibit
biasing displays such that less direct
routings that are equivalently priced, or
more expensive fares with an equally
direct routing, and that meet the
parameters of a search, are displayed
more prominently or earlier in the
search results list than a more direct
routing or a lower fare simply to benefit
a particular favored carrier or penalize
a disfavored carrier. In the alternative,
carriers and ticket agents could provide
biased displays so long as they have
prominent and specific disclosure of the
bias. The requirements would apply to
displays in response to airfare inquiries
by a consumer for a particular itinerary
and displays in response to airfare
inquiries made by a travel agent or other
intermediary in the sale of air
transportation for a particular itinerary.
Under this proposal, undisclosed
display bias would not be permitted on
displays publicly available directly to
consumers or displays directed toward
travel agents, such as those working for
corporations or other travel management
companies. To the extent the consumer
or travel agent placed restrictions on the
search, for example, by limiting to one
or more specific carriers or classes of
service, the display would not be
considered to contain undisclosed
display bias as long as the display
disclosed the lowest available fares and
most direct itineraries that met the
search parameters. In addition to
prohibiting display bias, the Department
is considering requiring any ticket agent
that decided to bias its displays and
disclose the existence of bias to also
disclose any incentive payments it is
receiving. We seek comment on what
kind of disclosure of the existence of
incentive payments would be most
helpful for consumers. When providing
notice, should the ticket agent list the
companies, air carriers, and foreign air
carriers offering the incentives? If so,
should the list rank companies in order
of the company providing the incentives
of the greatest monetary value? Or
should it group them based on whether
the incentive is provided in the form of
payments, rebates, discounts,
commissions, volume-based
compensation, or another method?
Should the requirement apply to

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incentives earned by the travel agent in
the previous calendar year or some
other time period? Should it be limited
to incentives with a certain monetary
value?
The Department seeks comment on
whether the prohibition on display bias
should be limited to airfare and
routings. We also seek comment on the
costs and benefits of a prohibition on
display bias.
9. Prohibition on Post-Purchase Price
Increases for Baggage Fees
In the second Enhancing Airline
Passenger Protections rule, the
Department prohibited an air carrier or
agent from increasing the price of air
transportation after the passenger
purchases a ticket. Under 14 CFR
399.88, carriers and other sellers of air
transportation are now prohibited from
increasing the price of air transportation
to a particular passenger after the
purchase of a ticket, including but not
limited to the price of a seat, the price
for the carriage of passenger baggage,
and the price for any applicable fuel
surcharge. The rule includes a limited
exception for an increase in a
government-imposed tax or charge. In
response to questions received after
publication of the final rule, the
Department’s Enforcement Office
clarified that there could not be an
increase to a particular passenger in the
charge for any ancillary service after a
ticket is purchased, including services
not purchased with the ticket. The
reasoning behind this was twofold.
First, by using the phrase ‘‘including but
not limited to’’ when describing the
types of items that sellers of air
transportation are prohibiting from price
increases after ticket purchase, the
Department made it clear that these
items are simply examples and not an
exhaustive list. Second, under the
disclosure requirements of 14 CFR
399.85(c), sellers of air transportation
are required to inform passengers about
baggage charges on their e-ticket
confirmations as a means of preventing
consumers from being surprised about
hidden fees. If these fees could change
after the passenger purchases the ticket,
the information provided in the e-ticket
would be useless.
However, after the rule became final,
certain carriers raised concerns that had
not been raised previously: That a
prohibition on an increase in the price
of any ancillary service after a ticket
purchase could prove cumbersome for
carriers in practice. For example, one
passenger might be entitled to pay a
lesser amount for a drink or a snack
than the passenger sitting next to him or
her. They contended that the cost of

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developing systems to keep track of the
price of every ancillary service at the
time of passenger purchase and charging
those prices on an individualized basis
would be prohibitive.
In light of the problems in application
of the rule as it relates to ancillary
services that are not purchased with the
ticket, the Enforcement Office issued
Guidance on Price Increases of
Ancillary Services and Products not
Purchased with the Ticket on December
28, 2011. In that guidance, the
Department’s Enforcement Office noted
that the Department had decided to
revisit the issue through a further
rulemaking to examine the application
of the rule to fees for ancillary services
not purchased with the ticket. The
Department also announced that with
respect to fees for ancillary services that
were not purchased with the air
transportation, it would only enforce the
prohibition on post-purchase price
increases for carry-on bags and first and
second checked bags. The application of
the prohibition of the post-purchase
price increase was also at issue in a
lawsuit filed by two airlines against the
Department. The court considered the
rule as applied under the December 28,
2011, guidance and upheld the
Department’s rule prohibiting postpurchase price increases as it is
currently being applied. Spirit Airlines,
Inc., v. U.S. Dept. of Transportation
(D.C. Cir. July 24, 2012), slip op. at 20–
21. Petition for Writ of Certiorari denied
on April 1, 2013.
The Department is now proposing to
modify 14 CFR 399.88 to prohibit a
price increase after the purchase of air
transportation for any mandatory charge
the consumer must pay (such as the air
fare or an applicable fuel surcharge),
and the price for the carriage of any
passenger baggage. Sellers of air
transportation would also continue to be
prohibited from increasing the price of
any ancillary service after it is
purchased. The logistical and financial
burdens placed on carriers related to
ancillary services other than baggage
that are not purchased with the ticket
are too great. Ensuring that in-flight
crew have the information and tools to
impose varying service fees depending
on when a passenger purchased a ticket
would likely lead to unreasonable costs
for carriers, significant confusion, and
ultimately consumer harm by
incentivizing carriers to set prices for
ancillary services artificially high.
However, the Department believes that
transporting baggage is intrinsic to air
transportation and baggage fees are a
major factor for consumers when
deciding which air transportation to
purchase, and should be subject to the

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rule prohibiting post-purchase price
increases. Therefore, under the
proposed rule, the price for the
transportation of passenger baggage that
applies when a passenger buys a ticket
is the price that they will pay, even if
they do not pay for the transportation of
baggage at the time they purchase the
ticket. This interpretation is consistent
with guidance given by the Department
in 2008 which states that ‘‘[i]n no case
should more restrictive baggage policies
or additional charges be applied
retroactively to a consumer who
purchased his or her ticket at a time
when the charges did not apply, or
when a lower charge applied.’’ Notice of
the Assistant General Counsel for
Aviation Enforcement and Proceedings,
‘‘Guidance on Disclosure of Policies and
Charges Associated with Checked
Baggage,’’ May 13, 2008.
In addition, under the revised 14 CFR
399.88, after a ticket is purchased,
carriers and other sellers of air
transportation would continue to be
prohibited from raising the price of the
air transportation or of ancillary services
that are purchased with the ticket. For
example, if a passenger buys a ticket
that costs $200 (total fare, inclusive of
taxes and fees) and pays an additional
$25.00 for a priority boarding pass, and
the carrier subsequently increases the
price of a priority boarding pass
effective on a date before this passenger
travels, the carrier cannot retroactively
increase the price for the consumer who
already purchased their priority
boarding pass. The new 14 CFR 399.88
would still allow for the limited
exception of an increase in the price of
a ticket if there is an increase in a
government-imposed tax or fee; that tax/
fee could still be retroactively applied to
the passenger’s travel if the required
notice is provided to consumers prior to
the ticket purchase. However, any other
increase in price of any already
purchased ancillary service would
constitute an unfair and deceptive
practice.
The Department is also considering
the alternative of keeping the original
interpretation of the rule. Under this
interpretation, the price of ancillary
services and products for a given
consumer is capped at the time that he
or she purchases the air transportation
whether or not these items are
purchased along with the air
transportation, as the existence of a fee
for other services or products related to
the air transportation, as well as the
amount of any such fee, can influence
a customer’s purchasing decision. The
Department invites comments on the
costs and benefits of retaining the rule
as originally interpreted and on the new

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proposal to prohibit only an increase in
the price of the carriage of baggage if not
purchased with the fare.
Finally, the Department is also
contemplating revising the postpurchase price provision to better
address the issue of ‘‘mistaken fares.’’
As explained above, section 399.88
essentially bans sellers of air
transportation from increasing the price
of an airline ticket to a consumer who
has purchased and paid for the ticket in
full. As a result, the Department’s
Enforcement Office explained in a
guidance document that, under section
399.88, ‘‘if a consumer purchases a fare
and that consumer receives
confirmation (such as a confirmation
email and/or the purchase appears on
their credit card statement or online
account summary) of their purchase,
then the seller of air transportation
cannot increase the price of that air
transportation to that consumer, even
when the fare is a ‘mistake.’ ’’ Since
then, the Enforcement Office has
investigated a number of incidents
where passengers complained that
airlines or ticket agents would not honor
tickets that had been paid for in full
because the sellers of the air
transportation erroneously let them
book flights for less than the actual
value. The Enforcement Office has
become concerned that increasingly
mistaken fares are getting posted on
frequent-flyer community blogs and
travel-deal sites, and individuals are
purchasing these tickets in bad faith and
not on the mistaken belief that a good
deal is now available. We solicit
comment on how best to address the
problem of individual bad actors while
still ensuring that airlines and other
sellers of air transportation are required
to honor mistaken fares that were
reasonably relied upon by consumers.
Additionally, industry and consumers
have raised questions regarding when
transportation is considered to touch
upon the United States and thus
covered by the prohibition on postpurchase price increases. Currently,
section 399.88 states that it is an unfair
and deceptive practice for any seller of
scheduled air transportation within, to,
or from the United States or of a tour or
tour component that includes scheduled
air transportation within, to, or from the
United States, to increase the price of
that air transportation to a consumer
after the air transportation has been
purchased by the consumer, except in
the case of a government-imposed tax or
fee and only if the passenger is advised
of a possible increase before purchasing
a ticket. We are considering defining the
phrase ‘‘air transportation within, to, or
from the United States’’ for the purposes

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of this section to mean any
transportation that begins or ends in the
United States or involves a connection
or stopover in the United States that is
24 hours or longer. We ask for
comments on whether this new
definition would provide greater clarity
to members of the public and the
regulated entities on when sellers of air
transportation would be required to
honor mistaken fares.
10. Amendments/Corrections to Second
Enhancing Airline Passenger Protections
Rule and Certain Other Provisions
In response to questions and concerns
from airlines and other regulated
entities, the proposed amendments to
the rules described below are intended
to correct drafting errors, provide
clarifications and reflect minor changes
to the second Enhancing Airline
Passenger Protections rule to increase
consistency and conform to guidance
issued by the Department’s Enforcement
Office regarding its interpretation of the
rule. On its own initiative, the
Department is also making
administrative changes to another rule.
a. Baggage Disclosure Requirements
Under Sections 399.85(a) and (b)
In sections 399.85(a) and 399.85(b)
the final rule inadvertently refers to
Web sites that are ‘‘accessible’’ from the
United States. In this NPRM, we are
proposing to codify the guidance given
in Frequently Asked Question #25, page
25, and amend sections 399.85(a) and
399.85(b) to reflect the intended
applicability of those sections to Web
sites ‘‘marketed to’’ U.S. consumers.
This change also makes sections
399.85(a) and 399.85(b) consistent with
the other provisions in 14 CFR 399.85
that apply to Web sites that market air
transportation to U.S. consumers. The
Department invites comment on this
proposal.
In further regard to section 399.85(b),
after issuing the rule and assisting
carriers and online travel agents with
their efforts to come into compliance, it
became clear that the Enforcement
Office needed to clarify two aspects of
this disclosure rule. The first issue is
when a carrier or agent needs to notify
a passenger that ‘‘baggage fees may
apply.’’ The rule text states that an agent
or carrier must ‘‘clearly and
prominently disclose on the first screen
in which the agent or carrier offers a fare
quotation for a specific itinerary
selected by a consumer that additional
airline fees for baggage may apply and
where consumers can see these baggage
fees.’’ Although section 399.85(b) may
be amended in accordance with the
proposal regarding the ‘‘[d]isplay of

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29991

ancillary service fees through all sales
channels,’’ if the Department decides
not to adopt that proposal it would
amend section 399.85(b) to conform to
the guidance previously issued. In that
case, section 399.85(b) would state that
the first screen on which the carrier
offers a fare quotation after a passenger
initiates a search for flight itineraries
must include notification that baggage
fees may apply. For example, if a
passenger performs a search for flights
from San Francisco to Dallas on a carrier
or agent’s Web site, the first page
displayed in response to that search that
includes a fare quote must also note that
baggage fees may apply. The second
issue is that the Department wishes to
clarify that in showing ‘‘where
consumers can see these baggage fees,’’
the search results screen of the Web site
of the agent or carrier must include a
hyperlink that takes the consumer to the
up-to-date and accurate baggage fee
listings. An agent may link to a chart of
information that it generates itself, to a
third party site containing the
information, or to the carrier’s page, as
it is allowed to do under the current
rule.
b. Standard Applicable to Reportable
Tarmac Delays Under Part 244
In 14 CFR Part 244, the Department
requires U.S. and foreign air carriers to
file Form 244 ‘‘Tarmac Delay Report’’
with the Department with respect to any
covered flight that experienced a
lengthy departure or arrival delay on the
tarmac at a large, medium, small, or
non-hub U.S. airport. A ‘‘lengthy’’
tarmac delay for purposes of this report
is defined in Part 244 as any tarmac
delay that lasts ‘‘three hours or more.’’
This standard is inconsistent with the
standard applicable to the tarmac delay
contingency plan requirements under 14
CFR Part 259 and the existing reporting
requirements of BTS, both of which
refer to any tarmac delay of ‘‘more than
three hours.’’ In a Frequently Asked
Questions document issued by the
Department following the issuance of
the final rule for Part 244, we
acknowledged this discrepancy and
stated that we intend to correct it in a
future rulemaking. In this NPRM, we are
proposing to amend the rule text of Part
244 and to adopt the ‘‘more than three
hours’’ standard so this Part would be
consistent with other Parts of our rules.
Under this proposal, any tarmac delay
that lasts exactly three hours would not
be covered under the requirements of
Part 244.

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c. Civil Penalty for Tarmac Delay
Violations
In the first and second Enhancing
Airline Passenger Protections final rule,
the Department stated that failure to
comply with the assurances required by
the tarmac delay rule will be considered
an unfair and deceptive practice within
the meaning of 49 U.S.C. 41712 that is
subject to enforcement action by the
Department. Under 49 U.S.C. 46301, the
Department has authority to impose a
civil penalty of ‘‘of not more than
$27,500’’ for each violation of the
specifically listed aviation-related laws
and regulations, which would include
DOT’s tarmac delay rule. Nevertheless,
in recent years, there have been
questions raised as to whether the
Department has the authority under the
civil penalty statute (49 U.S.C. 46301) to
assess a civil penalty on a per passenger
basis for tarmac delay violations. As
such, we are amending the tarmac delay
rule to clarify that the Department may
impose penalties for tarmac delay
violations on a per passenger basis.
It has long been the Department’s
policy that each consumer affected by
an unlawful carrier practice is a separate
violation. For example, if a flight is
canceled and ten people on that flight
cannot be rerouted and thus are entitled
to a refund of their unused
transportation, and the carrier fails to
comply with the Department’s refund
rules, each person whose refund was
not provided in compliance with our
rules would constitute a separate
violation. Similarly, if five people were
involuntarily denied boarding from an
oversold flight and none were paid
denied boarding compensation as
required by our oversales rule that
would be five violations. Our authority
to calculate a civil penalty on a per
passenger basis for tarmac delay
violations is just as clear. Each
passenger on a flight that experiences a
tarmac delay that exceeds three hours
for domestic flights or four hours for
international flights experiences the
inconvenience that this rule was
designed to prevent and gives rise to a
separate violation. Likewise, each
passenger who is not offered food and
water at the two-hour mark during a
tarmac delay gives rise to a separate
violation. Indeed, a number of carriers
have recognized this fact and
complained in public filings and press
reports of the prospect of incurring
$27,500 per passenger in fines for
tarmac delay violations.
The purpose of the tarmac delay rule
is clearly to mitigate hardships for
individual airline passengers during
lengthy tarmac delays. To that end, the

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rule requires carriers to develop
contingency plans for lengthy tarmac
delays, and to provide an assurance that
the carrier will not allow an aircraft to
remain on the tarmac for more than
three hours for domestic flights and for
more than four hours for international
flights without each passenger being
given an opportunity to deplane. The
preambles to both the first and second
Enhancing Airline Passenger Protections
final rules refer to protecting individual
passengers. Carriers are also required to
tell passengers what they can expect by
posting their contingency plans on their
Web site. To the extent that carriers do
not live up to the assurances that they
provided to any passenger, it is an
unfair and deceptive practice with
respect to each affected passenger and
therefore a separate violation of 49
U.S.C. 41712 with respect to each such
passenger.
d. Required Oral Disclosure of Material
Restrictions on Travel Vouchers Offered
to Potential Volunteers in Oversale
Situations Under Part 250
Another inconsistency in the second
Enhancing Airline Passenger Protections
final rule concerns the requirement in
14 CFR Part 250 to provide oral
disclosure of any material restrictions
on travel vouchers offered to any
passenger a carrier solicits to voluntarily
give up his or her confirmed reservation
on an oversold flight. The preamble to
the final rule discussed extensively the
reason for requiring such oral disclosure
to both voluntarily and involuntarily
bumped passengers who are orally
offered a voucher, but inadvertently, the
new Part 250 rule text only requires oral
disclosures to passengers who are
involuntarily denied boarding. The rule
text, as it currently stands, allows
carriers to provide such disclosure
solely by written notice to passengers
who are orally solicited to be volunteers
in exchange for travel vouchers.
However, for the reasons discussed in
the preamble to the second Enhancing
Airline Passenger Protections rule, we
are unconvinced that such written
notice alone is adequate at times when
the solicitation itself is oral and
passengers are constrained by time
pressure to make a quick decision as to
whether to volunteer. Many times, the
written notice is incorporated in the
printed contents of the travel voucher,
and the passenger frequently would not
have time to review the notice before he
or she commits to the acceptance of the
voucher. We continue to believe that a
brief oral summary of the material
restrictions applicable to the travel
vouchers that are orally offered to
potential volunteers (as well as

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continuation of the requirement to
orally disclose this information to
involuntarily bumped passengers who
are offered the option of a travel
voucher) will provide further
protections to these passengers so they
can make an informed decision. As
such, we are proposing to amend
section 250.2b(c) to reflect this notion.
Under this proposal, when carriers
orally solicit volunteers and offer travel
vouchers as incentives, they would also
be required to orally describe any
material restrictions applicable to the
travel vouchers.
e. Limitation of Flight Status
Notification Requirement of 14 CFR
259.8
Section 259.8 requires that covered
carriers must notify passengers and
other interested persons of flight status
changes within 30 minutes after the
carrier becomes aware of such changes.
Flight status changes in this section
include a flight cancellation, a delay of
more than 30 minutes, or a diversion.
Although the preamble and rule text did
not specify how far in advance of the
date of the scheduled operation carriers
must comply with the notification
requirements, the Frequently Asked
Questions guidance document issued by
the Enforcement Office in relation to the
second Enhancing Airline Passenger
Protections rule stated that, as an
enforcement policy, the rule applies to
any flight status changes that occur
within seven calendar days of the
scheduled date of the operation. See
Frequently Asked Questions, Section
VIII, #2. We further explained that the
purpose of this rule is to avoid or reduce
unnecessary waits at, or pointless trips
to, an airport, which are most likely to
occur on the date of the scheduled
travel. Therefore, the closer to the date
of the scheduled operation, the more
important it is for carriers to provide
notice of a flight status change
promptly. In this NPRM, we propose to
codify this ‘‘seven-calendar-day’’
timeframe as we believe that requiring
carriers to provide notifications of
schedule changes within 30 minutes
after they become aware of such changes
is not necessary if the changes occur
more than seven days before the date of
the operation. To require notifications
within 30 minutes for changes occurring
more than seven days in advance of the
date of operation would likely greatly
increase carriers’ burden yet result in
little additional benefit to the public.
We do emphasize, however, that
notifications of changes that occur
earlier than the seven-day threshold are
still required to be delivered to the

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passengers in a timely manner; see 14
CFR 259.5(b)(10).
We are also proposing some editorial
changes to section 259.8 to clarify that
flight status change notifications
required in this section should be
provided not only to passengers, but
also to any member of the public who
may be affected by the changes,
including persons meeting passengers at
airports or escorting them to or from
airports. This is a point we made clear
in the preamble of the final rule
document but not in the rule text. In
this regard, we are proposing to change
the word ‘‘passengers’’ to ‘‘consumers’’
in the title of section 259.8, to change
the first instance of the word
‘‘passengers’’ in subsection 259.8(a)(1)
to the phrase ‘‘passengers and other
interested persons,’’ and to change the
second instance of that word to
‘‘subscribers.’’
f. Removing the Rebating Provision in
Section 399.80(h)
Section 399.80(h) states that it is an
unfair or deceptive practice or unfair
method of competition for a ticket agent
to advertise or sell air transportation at
less than the rates specified in the tariff
of the air carrier, or offer rebates or
concessions, or permit persons to obtain
air transportation at less than the lawful
fares and rates. This provision is a
vestige of the period before deregulation
of the airline industry. Domestic air
fares were deregulated effective 1983,
and in most cases international air fares
to and from the United States are no
longer contained in tariffs that specify
‘‘lawful’’ fares. In those markets where

international fares are still subject to
regulation, carriers that do not comply
with their tariff are potentially subject to
enforcement action under 49 U.S.C.
41510 concerning adherence to tariffs or
49 U.S.C. 41712 concerning unfair or
deceptive practices and unfair methods
of competition (the statutory basis for
section 399.80(h)). The Department’s
Enforcement Office has said that it will
pursue enforcement action against a
carrier that does not comply with its
tariff when there is clear evidence of a
pattern of direct consumer fraud or
deception, invidious discrimination, or
violations of the antitrust laws. It has
been the longstanding policy of that
office to decline to prosecute instances
of noncompliance with tariff obligations
that result in benefits to consumers
absent clear evidence of such behavior.
(See the Frequently Asked Questions for
‘‘Rule #2’’ of the Enhancing Airline
Passenger Protections regulation,
www.dot.gov/individuals/air-consumer/
aviation-rules, section X, question 38a,
footnote 1.) There have been no
enforcement actions solely for tariff
compliance for over 20 years, and
should such action become appropriate
in the future it can proceed under the
authority of sections 41510 or 41712. 14
CFR 399.80(h) is not necessary, and
consequently we are proposing to
remove this provision.
Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
This action has been determined to be
significant under Executive Order 12866

and the Department of Transportation’s
Regulatory Policies and Procedures. It
has been reviewed by the Office of
Management and Budget under that
Executive Order. The Regulatory
Evaluation finds that the costs for the
proposed rule exceed the monetized
benefits as the benefits from all
provisions, with the exception of
provision 2, could not be measured and
valued with confidence. The benefits
which could be estimated for provision
2 do not include the value of all likely
benefits, as values for some of those
could not be adequately estimated. The
total present value of monetized
passenger benefits from the proposed
requirements over a 10-year period at a
7% discount rate is $25.1 million and
the total present value of monetized
costs incurred by carriers and other
sellers of air transportation over a 10year period at a 7% discount rate is
$80.5 million. The net present cost of
the rule for 10 years at a 7% discount
rate is $53.8 million. However, if the
value of the unquantified benefits, per
passenger, is any amount greater than
one cent, and unquantified costs are
minimal, then the entire rule is net
beneficial. In other words, if passengers
are willing to pay, on average, one
penny per trip for all eight provisions of
the proposal, then the value of the
proposal outweighs its costs.
Below, we have included a table
outlining the projected costs and
benefits of this rulemaking.

TABLE—SUMMARY OF COSTS AND BENEFITS OVER 10 YEARS, DISCOUNTED AT 7 PERCENT
[Millions $]
10 Year analysis period
Provisions

7% Discount rate
Costs

1

N/A

N/A

N/A

$46.2

$25.1

($21.1)

Carriers provide ancillary fee information to ticket agencies for display

Monetized Costs and Benefits .....................................................................................................

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Net benefits

Definition of Ticket Agent

Monetized Costs and Benefits .....................................................................................................
2

Benefits

Unquantified/non-monetized benefits or costs
Greater Competition and Lower Overall Prices for Ancillary service fees
Greater Efficiency by Consumers in Flight Purchases
Unquantified/non-monetized Costs:
May Inhibit New Entrants
May Decrease Carrier Flexibility to Customize Services
3&4

Value of Unquantified Benefits per PAX Needed
for Benefits to Equal or Exceed Costs.
Less than $0.00 (21.06 M net cost/1,666 M
travelers purchasing via internet—10 yrs).

Expand reporting threshold to 0.50% and reporting as mainline carriers and code-share partners combined

Monetized Costs and Benefits .....................................................................................................

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$29.8

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TABLE—SUMMARY OF COSTS AND BENEFITS OVER 10 YEARS, DISCOUNTED AT 7 PERCENT—Continued
[Millions $]
10 Year analysis period
Provisions

7% Discount rate
Costs

Unquantified/non-monetized benefits:
Improved On-Time Performance for Newly Reporting Carriers and Code-Share Flights
for All Reporting Carriers
Improved Handling of Baggage for Newly Reporting Carriers and Code-Share Flights
for All Reporting Carriers
Decrease in Oversales
Improved Customer Good Will Towards Carriers
Insurance Value
Improved Public Oversight of the Industry
Unquantified/non-monetized Costs:
Increased Training Costs for Gathering Data to Report (some carriers only)
Increased Management Costs To Improve Carrier Performance
5

Net benefits

Value of Unquantified Benefits per PAX Needed
for Benefits to Equal or Exceed Costs.
$0.7 ($29.75 M net cost/43.9 M PAX on newly
reporting carriers 10 yrs) to Less than $0.00
($29.75M net cost/7,335 M all domestic PAX
10 yrs).

Minimum customer service standards for ticket agents

Monetized Costs and Benefits .....................................................................................................
Unquantified/non-monetized benefits:
Improved Customer Good Will Towards Ticket Agents
Reduced Legal and Administrative Costs to Manage Complaints
Faster Resolution of Complaints/Refunds
Potential Increase in Competitiveness of Travel Agents vs. Carriers with Customer
Protections Similar to Carriers
Unquantified/non-monetized Costs:
Increased Training Costs
Increased Management Costs
Increased Staff Time
6

Benefits

$3.0

N/A

($3.0)

Value of Unquantified Benefits per PAX Needed
for Benefits to Equal or Exceed Costs.
Less than $0.00 (2.95 M net cost/3,405 M
domestic PAX purchasing via travel agents
10 yrs).

Disclosure of code-share segments in schedules, advertisements and communications with consumers

Monetized Costs and Benefits .....................................................................................................
7

Disclosure of carriers marketed by ticket agents (no proposed rule text—seeking comments)

8

Prohibition on undisclosed biasing

Monetized Costs and Benefits .....................................................................................................

N/A

N/A

N/A

N/A

N/A

N/A

Unquantified/non-monetized benefits:
Decrease in Incentive Payments to Ticket Agents from Carriers Potentially Leading to Lower Costs to Consumers
Potential Decrease in Consumers Not Noticing Flights which Better Meet Their Criteria
Unquantified/non-monetized Costs:
Programming Costs to Change Ranking Software/Systems or to Post Notice
Legal Costs to Adjust Existing Contracts Currently Requiring Preferential Display
9

Prohibition of post-purchase price increase for ancillary service fees

Monetized Costs and Benefits .....................................................................................................

N/A

N/A

N/A

Unquantified/non-monetized benefits:
Improved Customer Good Will Towards Ticket Agents
Reduced Legal and Administrative Costs to Manage Complaints
TOTAL (All Proposed Provisions)* .......................................................................................

$80.5

$25.1

($53.8)

Value of Unquantified Benefits Per Passenger Needed for ........................................................

........................

$0.01

........................

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* Note: Details may not sum to totals in table due to rounding.

We invite comment on the
quantification of costs and benefits for
each provision, as well as the
methodology used to develop our cost
and benefit estimates. We also seek
comment on how unquantified costs
and benefits could be measured. More
detail on the estimates within this table

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can be found in the preliminary
Regulatory Impact Analysis associated
with this proposed rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
review regulations to assess their impact

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on small entities unless the agency
determines that a rule is not expected to
have a significant economic impact on
a substantial number of small entities.
The regulatory initiatives discussed in
this NPRM would have some impact on
some small entities. A direct air carrier
or foreign air carrier is a small business

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if it provides air transportation only
with small aircraft (i.e., aircraft with up
to 60 seats/18,000 pound payload
capacity). See 14 CFR 399.73. A travel
agency is considered to be small if it
makes $3.5 million or less in annual
revenues. While most of the proposals
in this rulemaking impact carriers,
certain elements also impact ticket/
travel agents.
The Initial Regulatory Flexibility
Analysis found that there are some
costs, though not substantial, to certain
small entities from provision 3 which
would expand the definition of a
reporting carrier to one that accounts for
at least 0.5% of domestic scheduled
passenger revenues; provision 4, which
would expand the reporting
requirements for reporting carriers to
include an additional, combined set of
reports for both the carrier’s own flights
and its code-share partner flights; and
provision 2, which would require that
U.S. and foreign air carriers and ticket
agents disclose certain ancillary service
fees to a consumer who requests such
information.
Our analysis estimates that a total of
87 small U.S. and foreign air carriers
may be impacted by this rulemaking.
We believe that the economic impact on
these entities would not be significant.
The estimated cost to small carriers
from all the provisions would be $5.1
million for the first year and $24.7
million for a 10-year period discounted
at 7 percent. On the basis of this
examination, I certify that this
rulemaking would not have a significant
economic impact on a substantial
number of small entities. A copy of the
Initial Regulatory Flexibility Analysis
has been placed in docket.
C. Executive Order 13132 (Federalism)
This NPRM has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’). This notice does
not propose any provision that (1) has
substantial direct effects on the States,
the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government; (2) imposes
substantial direct compliance costs on
State and local governments; or (3)
preempts State law. States are already
preempted from regulating in this area
by the Airline Deregulation Act, 49
U.S.C. 41713. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
D. Executive Order 13084
This NPRM has been analyzed in
accordance with the principles and

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criteria contained in Executive Order
13084 (‘‘Consultation and Coordination
with Indian Tribal Governments’’).
Because none of the options on which
we are seeking comment would
significantly or uniquely affect the
communities of the Indian tribal
governments or impose substantial
direct compliance costs on them, the
funding and consultation requirements
of Executive Order 13084 do not apply.
E. Paperwork Reduction Act
This NPRM proposes two new
collections of information that would
require approval by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995
(Pub. L. 104–13, 49 U.S.C. 3501 et seq.).
Under the Paperwork Reduction Act,
before an agency submits a proposed
collection of information to OMB for
approval, it must publish a document in
the Federal Register providing notice of
the proposed collection of information
and a 60-day comment period, and must
otherwise consult with members of the
public and affected agencies concerning
the proposed collection.
The first collection of information
proposed here is a requirement that
more carriers report on-time
performance, mishandled baggage, and
oversales data to the Department (i.e.,
expansion of reporting carriers from any
U.S. airline that accounts for at least one
percent of annual domestic scheduled
passenger revenue to any U.S. airline
that accounts for at least 0.5 percent of
annual domestic scheduled-passenger
revenues). The second information
collection is a requirement that
mainline carriers provide enhanced
reporting for their domestic code-share
partner operations including requiring
reporting carriers to separately report
on-time performance, mishandled
baggage, and oversales data for all
domestic scheduled passenger flights
marketed by the reporting carriers.
For each of these information
collections, the title, a description of the
respondents, and an estimate of the
annual recordkeeping and periodic
reporting burden are set forth below:
1. Requirement for More Carriers To
Report On-Time Performance,
Mishandled Baggage, and Oversales
Data to the Department
Respondents: U.S. carriers that
operate passenger service and account
for at least 0.5 percent of domestic
passenger service, but less than 1
percent of domestic passenger service
(eight new reporting carriers, among
which five carriers do not market
directly to consumers and three carriers
market directly to consumers).

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Estimated Annual Burden on
Respondents: The first-year cost for
eight new reporting carriers would total
26,877 hours, or 3,360 hours on average
(for eight carriers). For each of the five
new reporting carriers that do not
market directly to consumers, the costs
would include the following: (1) Onetime cost to set up systems to collect
and report the data for each newly
reporting carrier of 1,118 hours (set-up
costs of $100,762 divided by hourly cost
of $90.10, both figures derived from
respondent interviews); and (2) an
annual cost for each newly reporting
carrier to report data regarding on-time
performance, baggage, and oversales of
496 hours (480 hours to collect data for
form 234 and 16 hours to collect data for
form 251). For each of the three new
reporting carrier that market directly to
consumers, the costs would include the
following: (1) One-time cost to set up
systems to collect and report the data for
each newly reporting carrier of 1,118
hours (set-up costs of $100,762 divided
by hourly cost of $90.10, both figures
derived from respondent interviews); (2)
an annual cost for each newly reporting
carriers to report data regarding on-time
performance, baggage, and oversales of
496 hours (480 hours to collect data for
form 234 and 16 hours to collect data for
form 251); and (3) one-time cost for
setting up systems to post flight on-time
performance information on the carrier’s
Web site of 4,655 hours (set-up costs of
$419,394 divided by hourly cost of
$90.10).
Estimated Total Annual Burden: First
year costs total 26,877 which would
include the system set-up costs for new
reporting carriers of 8,944 hours (8
carriers times 1,118 hours each), annual
labor cost for new reporting carriers to
report data of 3,968 hours (8 carriers
times 496 hours each), 13,965 hours (for
three carriers to set up systems to post
on-time performance data on their Web
sites). Burdens for subsequent years
would be 4,528 hours on average
annually for reporting carriers to collect
and report their own data regarding ontime performance, baggage, and
oversales.
Frequency: Monthly for on-time
performance and baggage reports and
posting on-time performance on
marketing carriers’ Web sites; quarterly
for filing oversales report; estimates of
burden are annual.

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Unfunded Mandates Reform Act of 1995
do not apply to this NPRM.

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2. Requirement for Reporting Carriers
That Market Code-Share Flights To
Report Their Code-Share Flights in
Addition to Their Own Flights To
Provide Enhanced Reporting for
Domestic Code-Share Partner
Operations

Issued this 21st day of May, 2014, in
Washington, DC.
Anthony R. Foxx,
Secretary of Transportation.

Respondents: U.S. carriers that
operate passenger service and account
for at least 0.5 percent of domestic
passenger service and market code-share
partners (9 existing reporting carriers
that market code-share flights).
Estimated Annual Burden on
Respondents: The annual cost for each
code-share partner to process and report
data regarding on-time performance,
mishandled baggage, and oversales to
each separate marketing, reporting
carrier with which it code-shares would
be 496 hours (480 hours to collect data
for form 234 and 16 hours to collect data
for form 251), whether or not the
marketing carrier compensates its codeshare partner for the costs or the codeshare partner takes the burden itself.
Estimated Total Annual Burden: The
total first-year burden would be 30,752
hours (62 code-share partners’ times 496
hours each). Each year after the first
year, the total average burden would be
34,731 hours (higher than the first year
to reflect the rate of growth of flights
and passengers over the 10 year period
of analysis). These estimates likely
overestimate the actual costs to some
carriers that code-share with multiple
partners. Carriers that code-share any
flights with more than one code-share
partners should experience some
efficiencies in the collection,
management, and reporting of data
regarding those flights for use by
multiple code-share partners.
Frequency: Monthly reports for ontime performance and mishandled
baggage; quarterly reports for oversales;
estimates of burden are annual.
The Department invites interested
persons to submit comments on any
aspect of each of these two information
collections, including the following: (1)
The necessity and utility of the
information collection, (2) the accuracy
of the estimate of the burden, (3) ways
to enhance the quality, utility, and
clarity of the information to be
collected, and (4) ways to minimize the
burden of collection without reducing
the quality of the collected information.
Comments submitted in response to this
notice will be summarized or included,
or both, in the request for OMB approval
of these information collections.
F. Unfunded Mandates Reform Act
The Department has determined that
the requirements of Title II of the

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List of Subjects
14 CFR Part 234
Air carriers, Consumer protection,
Reporting and recordkeeping
requirements.
14 CFR Part 244
Air carriers, Consumer protection,
Reporting and recordkeeping
requirements.
14 CFR Part 250
Air carriers, Consumer protection,
Reporting and recordkeeping
requirements.
14 CFR Part 255
Air carriers, Antitrust.
14 CFR Part 256
Air carriers, Antitrust.
14 CFR Part 257
Air carriers, Air rates and fares,
Consumer protection, Reporting and
recordkeeping requirements.
14 CFR Part 259
Air carriers, Air rates and fares,
Consumer protection.
14 CFR Part 399
Administrative practice and
procedure, Air carriers, Air rates and
fares, Air taxis, Consumer protection,
Small businesses.
PART 234—[AMENDED]
1. The authority citation for part 234
revised to read as follows:

■

Authority: 49 U.S.C. 329 and chapters 401
and 417.

2. In § 234.2, the definition of
‘‘reporting carrier’’ is revised to read as
follows:

■

§ 234.2

Definitions.

*

*
*
*
*
Reporting carrier means an air carrier
certificated under 49 U.S.C. 41102 that
accounted for at least 0.5 percent of
domestic scheduled-passenger revenues
in the most recently reported 12-month
period as defined by the Department’s
Office of Airline Information, and as
reported to the Department pursuant to
Part 241 of this title. Reporting carriers
will be identified periodically in
accounting and reporting directives

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issued by the Office of Airline
Information.
*
*
*
*
*
■ 3. Section 234.3 is revised to read as
follows:
§ 234.3

Applicability.

This part applies to certain domestic
scheduled passenger flights that are
held out to the public by certificated air
carriers that account for at least 0.5
percent of domestic scheduled
passenger revenues. Certain provisions
also apply to voluntary reporting of ontime performance by carriers.
■ 4. Section 234.4 is amended by
revising paragraph (a) introductory text
and adding paragraph (k) to read as
follows:
§ 234.4

Reporting of on-time performance.

(a) Each reporting carrier shall file
BTS Form 234 ‘‘On-Time Flight
Performance Report’’ with the Office of
Airline Information of the Department’s
Bureau of Transportation Statistics on a
monthly basis, setting forth the
information for each of its reportable
flights operated by the reporting carrier
and held out to the public on the
reporting carrier’s Web site and the Web
sites of major online travel agencies, or
in other generally recognized sources of
schedule information. (See also
paragraph (k) of this section.)
*
*
*
*
*
(k) Each reporting carrier shall file a
separate BTS Form 234 ‘‘On-Time Flight
Performance Report’’ with the Office of
Airline Information on a monthly basis,
setting forth the information for each of
its reportable flights held out with the
reporting carrier’s code on the reporting
carrier’s Web site, on the Web sites of
major online travel agencies, or in other
generally recognized sources of
schedule information, including
reportable flights operated by any codeshare partner that is a certificated air
carrier or commuter air carrier. The
report shall be made in a form and
manner consistent with the
requirements set forth in paragraphs (a)
through (j) of this section.
■ 5. Section 234.6 is revised to read as
follows:
§ 234.6

Baggage-handling statistics.

(a) Each reporting carrier shall report
monthly to the Department on a
domestic system basis, excluding
charter flights, the total number of
checked bags, including gate checked
baggage, the total number of
wheelchairs and scooters transported in
the aircraft cargo compartment, the total
number of mishandled checked bags,
including gate checked baggage, and the
number of mishandled wheelchairs and

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scooters that were carried in the cargo
compartment. Each reporting carrier
shall submit a separate monthly report
on the mishandled baggage, wheelchairs
and scooters as described above for all
domestic scheduled passenger flight
segments that are held out with the
reporting carrier’s code on the reporting
carrier’s Web site, on the Web sites of
major online travel agencies, or in other
generally recognized sources of
schedule information, including flights
operated by code-share partners that are
certificated air carriers or commuter air
carriers. For flights operated by a codeshare partner that also carry passengers
ticketed under another carrier’s code,
the reporting carrier shall only report
baggage information applicable to
passengers ticketed under its own code.
(b) This information shall be
submitted to the Department within 15
days after the end of the month to which
the information applies and must be
submitted with the transmittal letter
accompanying the data for on-time
performance in the form and manner set
forth in accounting and reporting
directives issued by the Director, Office
of Airline Information.
PART 244—[AMENDED]
6. The authority citation for part 244
continues to read as follows:

■

7. Section 244.2 is amended by
revising the last sentence of paragraph
(a) to read as follows:

■

Applicability.

(a) * * * Covered carriers must report
all passenger operations that experience
a tarmac time of more than 3 hours at
a U.S. airport.
*
*
*
*
*
■ 8. Section 244.3 is amended by
revising paragraph (a) to read as follows:

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§ 244.3

Reporting of tarmac delay data.

(a) Each covered carrier shall file BTS
Form 244 ‘‘Tarmac Delay Report’’ with
the Office of Airline Information of the
Department’s Bureau of Transportation
Statistics setting forth the information
for each of its covered flights that
experienced a tarmac delay of more than
3 hours, including diverted flights and
cancelled flights on which the
passengers were boarded and then
deplaned before the cancellation. The
reports are due within 15 days after the
end of any month during which the
carrier experienced any reportable
tarmac delay of more than 3 hours at a
U.S. airport.
*
*
*
*
*

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9. The authority citation for part 250
is revised to read as follows:

■

Authority: 49 U.S.C. chapters 401, 411,
413 and 417.

10. Section 250.2b is amended by
revising paragraph (c) to read as follows:

■

§ 250.2b Carriers to request volunteers for
denied boarding.

*

*
*
*
*
(c) If a carrier offers free or reduced
rate air transportation as compensation
to volunteers, the carrier must disclose
all material restrictions, including but
not limited to administrative fees,
advance purchase or capacity
restrictions, and blackout dates
applicable to the offer before the
passenger decides whether to give up
his or her confirmed reserved space on
the flight in exchange for the free or
reduced rate transportation. If the free or
reduced rate air transportation is offered
orally to potential volunteers, the carrier
shall also orally provide a brief
description of the material restrictions
on that transportation at the same time
that the offer is made.
■ 11. Section 250.5 is amended by
adding a sentence at the end of
paragraph (c)(3) to read as follows:
§ 250.5 Amount of denied boarding
compensation for passengers denied
boarding involuntarily.

Authority: 49 U.S.C. 40101(a)(4),
40101(a)(9), 40113(a), 41702, and 41712.

§ 244.2

PART 250—[AMENDED]

*

*
*
*
*
(c) * * * (See also section 250.9(c)).
*
*
*
*
*
■ 12. Section 250.10 is revised to read
as follows:
§ 250.10 Report of passengers denied
confirmed space.

(a) Each reporting carrier as defined in
§ 234.2 of this chapter and any carrier
that voluntarily submits data pursuant
to § 234.7 of this chapter shall file, on
a quarterly basis, the information
specified in BTS Form 251. The
reporting basis shall be flight segments
originating in the United States operated
by the reporting carrier. The reports
must be submitted within 30 days after
the end of the quarter covered by the
report. The calendar quarters end March
31, June 30, September 30 and
December 31. ‘‘Total Boardings’’ on Line
7 of Form 251 shall include only
passengers on flights for which
confirmed reservations are offered. Data
shall not be included for inbound
international flights.
(b) Each reporting carrier and
voluntary reporting carrier shall file a
separate BTS Form 251 for all flight
segments originating in the United
States operated under the reporting

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29997

carrier’s code, including flight segments
operated by a code-share partner that is
a certificated air carrier or commuter air
carrier using aircraft that have a
designed passenger capacity of 30 or
more seats. For code-share flight
segments that also carry passengers
ticketed under another carrier’s code,
the reporting carrier shall only report
information applicable to passengers
ticketed under its own code.
PART 255—[REMOVED AND
RESERVED]
13. Under the authority of 49 U.S.C.
chapters 401 and 417, part 255 is
removed and reserved.

■

14. Part 256 is added to read as
follows:

■

PART 256—ELECTRONIC AIRLINE
INFORMATION SYSTEMS
Sec.
256.1 Purpose.
256.2 Applicability.
256.3 Definitions.
256.4 Accurate EAIS display of information
and prohibition of undisclosed display
bias.
256.5 Prohibition against inducing
undisclosed bias.
Authority: 49 U.S.C. chapters 401 and 417.
§ 256.1

Purpose.

(a) The purpose of this part is to set
forth requirements for the operation of
electronic airline information systems
that provide air carrier or foreign air
carrier schedule, fare, rule, or
availability information, including, but
not limited to, global distribution
systems (GDSs) and Internet flight
search engines, for use by consumers,
carriers, ticket agents, and other
business entities as well as for related
air transportation distribution practices
so as to prevent unfair and deceptive
practices in the distribution and sale of
air transportation.
(b) Nothing in this part exempts any
person from the operation of the
antitrust laws set forth in subsection (a)
of the first section of the Clayton Act (15
U.S.C. 12).
§ 256.2

Applicability.

(a) This part applies to any air carrier,
foreign air carrier, or ticket agent that:
(1) Creates or develops the content of
an electronic airline information system
that combines the schedules, fares,
rules, or availability information of
more than one air carrier or foreign air
carrier for the distribution or sale in the
United States of interstate and foreign
air transportation; or

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(2) Operates an electronic airline
information system, e.g., GDS or
Internet flight search tool.
(b) This part applies only if the
electronic airline information system is
displayed on a Web site marketed to
consumers in the United States or on a
proprietary display available to travel
agents, business entities, or a limited
segment of consumers of air
transportation in the United States.

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§ 256.3

Definitions.

For purposes of this part,
(a) Lowest fare generally available
means the lowest price offered for air
transportation between designated
points including all mandatory taxes
and fees but not ancillary fees for
optional services. The term does not
cover fares restricted to a limited
category of travelers, (e.g., negotiated
corporate or government fares or
discount fares available only to travel
agents).
(b) Availability means information
provided in displays with respect to the
seats a carrier holds out as available for
sale on a particular flight.
(c) Display means the presentation of
air carrier or foreign air carrier
schedules, fares, rules or availability to
a consumer or agent or other individual
involved in arranging air travel for a
consumer by means of a computer or
mobile computing device.
(d) Integrated display means any
display that includes the schedules,
fares, rules, or availability of more than
one carrier.
(e) Listed carrier means an air carrier
or foreign air carrier whose schedules,
fares, or availability is included in an
electronic airline information system.
(f) Electronic airline information
system or EAIS means a system that
combines air carrier or foreign air carrier
schedule, fare, rule, or availability
information for transmission or display
to air carriers or foreign air carriers,
ticket agents, other business entities, or
consumers. It includes direct
connections between a ticket agent and
the internal reservations systems of an
individual carrier if the direct
connection provides schedules, fares,
rules, or availability of more than one
air carrier or foreign air carrier (unless
all of the listed carriers are under the
same ownership or the individual
carrier’s direct connection only provides
information on flights operated under
its own code).
§ 256.4 Accurate EAIS display of
information and prohibition of undisclosed
display bias.

Each air carrier, foreign air carrier,
and ticket agent that operates an EAIS

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that provides at least one integrated
display must comply with the
requirements of this section.
(a) Each EAIS shall display accurately
all schedule, fare, rules, and availability
information provided by or on behalf of
listed carriers or obtained from third
parties by the EAIS operator.
(b) Each EAIS that uses any factors
directly or indirectly relating to carrier
identity in ordering the information
contained in an integrated display must
clearly disclose that the identity of the
carrier is a factor in the order in which
information is displayed.
(c) Undisclosed display bias in an
integrated display is prohibited.
(1) Each EAIS’s integrated display
must use the same editing and ranking
criteria for each listed carrier’s flights
and must not give any listed carrier’s
flights a system-imposed preference
over any other listed carrier’s flights
unless the preference is prominently
disclosed.
(2) EAISs may organize information
on the basis of any service criteria that
do not reflect carrier identity provided
that the criteria are consistently applied
to all carriers and to all markets. Unless
any display bias is specifically and
prominently disclosed, when providing
information in response to a search by
a user of the EAIS, the EAIS must order
the information provided so that the
lowest fare generally available that best
satisfies the parameters of the request
(e.g., date and time of travel, number of
passengers, class of service, stopovers,
limitations on carriers to be used or
routing [e.g., nonstop only], etc.) is
displayed conspicuously and no less
prominently than any other fare
displayed. To the extent the user (e.g.,
consumer or travel agent) is entitled to
access to any fares restricted to a limited
category of travelers, the lowest of those
fares must also be displayed
conspicuously and no less prominently
than any other fare displayed.
§ 256.5 Prohibition against inducing
undisclosed bias.

(a) No air carrier, foreign carrier, or
ticket agent may induce or attempt to
induce the developer or operator of an
EAIS to create a display that would not
comply with the requirements of § 256.4
of this part or provide inaccurate
schedule, fare, rules, or availability
information that would result in a
display that would not comply with the
requirements of § 256.4.
(b) Nothing in this section requires an
air carrier, foreign air carrier, or ticket
agent to allow a system to access its
internal computer reservation system or
to permit ‘‘screen scraping’’ or ‘‘content
scraping’’ of its Web site; nor does it

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require an air carrier or foreign air
carrier to permit the sale of the carrier’s
services through any ticket agent or
other carrier’s system. ‘‘Screen
scraping’’ refers to a process whereby a
company uses computer software
techniques to extract information from
other companies’ Web sites. In the travel
industry, screen scraping companies
generally extract schedule and fare
information from the Web sites of
airlines or online travel agencies (OTAs)
in order to display the lowest rates on
their own Web site and eliminate the
need for consumers to compare offerings
from site to site.
PART 257—[AMENDED]
15. The authority citation for part 257
continues to read as follows:

■

Authority: 49 U.S.C. 40113(a) and 41712.
§ 257.3

[Amended]

16. In § 257.3, paragraph (g) is
amended by removing the term
‘‘transporting carrier’’ and adding
‘‘operating carrier’’ in its place.
■ 17. Section 257.5 is revised to read as
follows:
■

§ 257.5

Notice requirement.

(a) Notice in flight itineraries and
schedules. Each air carrier, foreign air
carrier, or ticket agent providing flight
itineraries and/or schedules for
scheduled passenger air transportation
to the public in the United States shall
ensure that each flight segment on
which the designator code is not that of
the operating carrier is clearly and
prominently identified and contains the
following disclosures.
(1) In flight schedule information
provided to U.S. consumers on desktop
browser-based or mobile browser-based
Internet Web sites or applications in
response to any requested itinerary
search, for each flight in scheduled
passenger air transportation that is
operated by a carrier other than the one
listed for that flight, the corporate name
of the transporting carrier and any other
name under which the service is held
out to the public must appear
prominently in text format on the first
display following the input of a search
query, immediately adjacent to each
code-share flight in that search-results
list. Roll-over, pop-up and linked
disclosures do not comply with this
paragraph.
(2) For static written schedules, each
flight in scheduled passenger air
transportation that is operated by a
carrier other than the one listed for that
flight shall be identified by an asterisk
or other easily identifiable mark that
leads to disclosure of the corporate

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name of the operating carrier and any
other name under which that service is
held out to the public.
(b) Notice in oral communications
with prospective consumers. In any
direct oral communication in the United
States with a prospective consumer, and
in any telephone call placed from the
United States by a prospective
consumer, concerning a flight within,
to, or from the United States that is part
of a code-sharing arrangement or longterm wet lease, a ticket agent doing
business in the United States or a carrier
shall inform the consumer, the first time
that such a flight is offered to the
consumer, that the operating carrier is
not the carrier whose name or
designator code will appear on the
ticket and shall identify the transporting
carrier by its corporate name and any
other name under which that service is
held out to the public.
(c) Notice in ticket confirmations. At
the time of purchase, each selling carrier
or ticket agent shall provide written
disclosure of the actual operator of the
flight to each consumer of scheduled
passenger air transportation sold in the
United States that involves a codesharing arrangement or long-term wet
lease. For any flight segment on which
the designator code is not that of the
operating carrier the notice shall state
‘‘Operated by’’ followed by the
corporate name of the transporting
carrier and any other name in which
that service is held out to the public. In
the case of single-flight-number service
involving a segment or segments on
which the designator code is not that of
the transporting carrier, the notice shall
clearly identify the segment or segments
and the operating carrier by its
corporate name and any other name in
which that service is held out to the
public. The following form of statement
will satisfy the requirement of this
paragraph (c): Important Notice: Service
between XYZ City and ABC City will be
operated by Jane Doe Airlines d/b/a
QRS Express. At the purchaser’s
request, the notice required by this part
may be delivered in person, or by fax,
electronic mail, or any other reliable
method of transmitting written material.
(d) In any written advertisement
distributed in or mailed to or from the
United States (including those that
appear on an Internet Web site that is
marketed to consumers in the United
States) for service in a city-pair market
that is provided under a code-sharing
arrangement or long-term wet lease, the
advertisement shall prominently
disclose that the advertised service may
involve travel on another carrier and
clearly indicate the nature of the service
in reasonably sized type and shall

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identify all potential operating carriers
involved in the markets being
advertised by corporate name and by
any other name under which that
service is held out to the public. In any
radio or television advertisement
broadcast in the United States for
service in a city-pair market that is
provided under a code-sharing or longterm wet lease, the advertisement shall
include at least a generic disclosure
statement, such as ‘‘Some flights are
operated by other airlines.’’
PART 259—[AMENDED]
18. The authority citation for part 259
continues to read as follows:

■

Authority: 49 U.S.C. 40101(a)(4),
40101(a)(9), 40113(a), 41702, and 41712.

19. Section 259.4 is amended by
revising paragraph (f) to read as follows:

■

§ 259.4 Contingency Plan for Lengthy
Tarmac Delays.

*

*
*
*
*
(f) Civil penalty. A carrier’s failure to
comply with the assurances required by
this section and contained in its
Contingency Plan for Lengthy Tarmac
Delays will be considered to be an
unfair and deceptive practice within the
meaning of 49 U.S.C. 41712 with respect
to each affected passenger and therefore
a separate violation for each passenger
for each unfulfilled assurance under 49
U.S.C. 46301.
■ 20. Section 259.8 is amended by
revising the second sentence in
paragraph (a) introductory text and
paragraph (a)(1) to read as follows:
§ 259.8 Notify consumers of known delays,
cancellations, and diversions.

(a) * * * A change in the status of a
flight means, at a minimum, a
cancellation, diversion or delay of 30
minutes or more in the planned
operation of a flight that occurs within
seven calendar days of the scheduled
date of the planned operation. * * *
(1) With respect to any U.S. air carrier
or foreign air carrier that permits
passengers and other interested persons
to subscribe to flight status notification
services, the carrier must deliver such
notification to such subscribers, by
whatever means the carrier offers that
the subscriber chooses. * * *
PART 399—[AMENDED]
21. The authority citation for part 399
is revised to read as follows:

■

Authority: 49 U.S.C. 40101 et seq.

22. Section 399.80 is amended by:
a. Revising the introductory text;
b. Removing and reserving paragraph
(h);
■ c. Revising paragraph (1);
■
■
■

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d. Adding paragraphs (o), (p), (q), and
(r); and
■ e. Revising paragraph (s).
The revisions and additions read as
follows:
■

§ 399.80 Unfair and deceptive practices of
ticket agents.

It is the policy of the Department to
regard the practices enumerated in
paragraphs (a) through (m) of this
section by a ticket agent of any size and
the practices enumerated in paragraphs
(o) through (r) of this section by a ticket
agent that sells air transportation and
has annual revenue of $100 million or
more as an unfair or deceptive practice
or unfair method of competition:
*
*
*
*
*
(l) Failing or refusing to make proper
refunds promptly when service cannot
be performed as contracted or
representing that such refunds are
obtainable only at some other point,
thus depriving persons of the timely use
of the money to arrange other
transportation, or forcing them to suffer
unnecessary inconvenience and delay or
requiring them to accept transportation
at higher cost, or under less desirable
circumstances, or on less desirable
aircraft than that represented at the time
of sale. For purposes of this subsection
‘‘promptly’’ means processing a credit
card refund (e.g., forwarding a credit to
the merchant bank) within seven
business days and a cash, check or debit
card refund within 20 days. These
deadlines are calculated from the time
that the ticket agent receives all
information from the consumer that is
necessary to process the refund. The
ticket agent must request any missing
information without delay. A ticket
agent’s need to collect information from
its own records does not suspend these
deadlines.
*
*
*
*
*
(o) Failure to hold a reservation at the
quoted fare without payment or to
permit it to be cancelled without
penalty for at least 24 hours after the
reservation is made if the reservation is
made one week or more prior to a
flight’s departure. (The ticket agent may
choose between these two methods; it
need not offer both options to
consumers.)
(p) Failure to disclose cancellation
policies applicable to a consumer’s
selected flights, the aircraft’s seating
configuration, and lavatory availability
on the aircraft on its Web site, and upon
request, from the telephone reservations
staff.
(q) Failure to notify consumers in a
timely manner of carrier-initiated
changes to the consumer’s air travel
itinerary about which the carrier notifies

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the agent or about which the agent
becomes aware through other means.
(r) Failure to respond to consumer
problems by acknowledging receipt of a
consumer complaint within thirty days
of receiving the complaint and sending
a substantive written response within
sixty days of receiving the complaint. If
all or part of the complaint is about
services furnished (or to be furnished)
by an airline or other travel supplier, the
agent must send the complaint to that
supplier for response. If no part of the
complaint is about the agent’s service
and the agent sends the complaint to the
appropriate suppliers, the agent’s
substantive reply can consist of advising
the consumer where the agent has sent
the complaint and why.
(s) As used in this subpart G and in
14 CFR parts 257 and 258, ‘‘Air carrier’’,
‘‘foreign air carrier’’, and ‘‘ticket agent’’
have the same definitions as set forth in
49 U.S.C. 40102. The term ‘‘person . . .
arranging for [,] air transportation’’ as
set forth in the definition of ‘‘ticket
agent’’ in section 40102(40) includes
any person that acts as an intermediary
involved in the sale of air transportation
directly or indirectly to consumers,
including by operating an electronic
airline information system, if the person
holds itself out as a source of
information about, or reservations for,
the air transportation industry and
receives compensation in any way
related to the sale of air transportation
(e.g., cost-per-click for air transportation
advertisements, commission payment,
revenue-sharing, or other compensation
based on factors such as the number of
flight segments booked, number of sales
made, or number of consumers directed
or referred to an air carrier, foreign air
carrier, or ticket agent for the sale of air
transportation). The term does not
include persons who only publish
advertisements of fares and are paid
only per click for linking consumers to
the Web sites of the carriers or agents
that provided the advertisement.
■ 23. Section 399.85 is amended by
revising paragraphs (a), (b), and (c) to
read as follows:

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§ 399.85
fees.

Notice of baggage fees and other

(a) If a U.S. or foreign air carrier has
a Web site marketed to U.S. consumers
where it advertises or sells air
transportation, the carrier must
promptly and prominently disclose any
increase in its fee for carry-on or first
and second checked bags and any
change in the first and second checked
bags or carry-on allowance for a
passenger on the homepage of that Web
site (e.g., provide a link that says
‘‘changed bag rules’’ or similarly

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descriptive language that takes the
consumer from the homepage directly to
a pop-up or a place on another Web
page that details the change in baggage
allowance or fees and the effective dates
of such changes).
(b) All U.S. and foreign air carriers
and ticket agents must disclose the
current ancillary services fees for a first
and second checked bag, for a carry-on
bag, and for an advance seat assignment
to a consumer who requests such
information. On Web sites marketed to
the general public in the U.S., the fees
for a first checked bag, a second checked
bag, one carry-on bag, and an advance
seat assignment must be disclosed (and
at a minimum displayed by a link or
rollover) at the first point in a search
process where a fare is listed in
response to a specific flight itinerary
request from a passenger, and on the
summary page provided to the
consumer at the completion of any
purchase.
(c) On all e-ticket confirmations for air
transportation within, to or from the
United States, including the summary
page at the completion of an online
purchase and a post-purchase email
confirmation, an air carrier, foreign air
carrier, agent of either, or ticket agent
that advertises or sells air transportation
in the United States must include
information regarding the passenger’s
free baggage allowance and/or the
applicable fee for a carry-on bag and the
first and second checked bag, including
size and weight limitations. Carriers and
agents must provide this information in
text form in the e-ticket confirmation.
*
*
*
*
*
■ 24. Section 399.88 is amended by
revising paragraph (a) to read as follows:
§ 399.88 Prohibition on post-purchase
price increases.

(a) It is an unfair and deceptive
practice within the meaning of 49 U.S.C.
41712 for any seller of scheduled air
transportation within, to or from the
United States, or of a tour (i.e., a
combination of air transportation and
ground or cruise accommodations), or
tour component (e.g., a hotel stay) that
includes scheduled air transportation
within, to, or from the United States, to
increase the price of that air
transportation, tour or tour component
to a consumer, including but not limited
to an increase in the price of the airfare,
an increase in the price for the carriage
of passenger baggage, or an increase in
an applicable fuel surcharge, after the
air transportation has been purchased
by the consumer, except in the case of
an increase in a government-imposed
tax or fee. A purchase is deemed to have
occurred when the full amount agreed

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upon for the air transportation has been
paid by the consumer. An itinerary that
does not begin or end in the United
States or include a stopover of 24 hours
or more in the United States is not
considered air transportation for
purposes of this section. This
prohibition on a post-purchase price
increase extends to all mandatory fees
and charges a consumer must pay in
order to obtain air transportation and to
fees associated with transporting
baggage. This prohibition does not
extend to fees for optional services
ancillary to air transportation that are
not purchased with the ticket except for
baggage. The price for other ancillary
services not purchased at the time of
ticket purchase may be increased until
the consumer purchases the service
itself.
*
*
*
*
*
■ 25. Section 399.90 is added to subpart
G to read as follows:
Option A
§ 399.90 Transparency in airline pricing,
including ancillary fees

(a) The purpose of this section is to
ensure that air carriers, foreign air
carriers and ticket agents doing business
in the United States clearly disclose to
consumers at all points of sale the fees
for certain basic ancillary services
associated with the air transportation
consumers are buying or considering
buying. Nothing in this section should
be read to require that these ancillary
services must be transactable (e.g.,
purchasable online).
(b) Each air carrier and foreign air
carrier shall provide useable, current,
and accurate information for certain
ancillary service fees to all ticket agents
that receive and distribute the U.S. or
foreign carrier’s fare, schedule, and
availability information. For purposes of
this section, the fees that must be
provided are: fees for a first checked
bag, a second checked bag, one carry-on
bag, and an advance seat assignment.
Fees for an advance assignment to a seat
adjacent to a window or aisle, bulkhead
seat, exit row seat, or any other seat for
which a consumer must pay an
additional fee to receive an advance seat
assignment are to be provided.
(c) Each ticket agent that provides a
U.S. or foreign carrier’s fare, schedule,
and availability information to
consumers in the United States must
disclose the U.S. or foreign carrier’s fees
for a first checked bag, a second checked
bag, one carry-on bag, and an advance
seat assignment. The fee information
disclosed to consumers for these
ancillary services must be expressed as
itinerary-specific charges. ‘‘Itinerary-

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specific’’ refers to variations in fees that
depend on, for example, geography,
travel dates, cabin (e.g., first class,
economy), ticketed fare (e.g., full fare
ticket -Y class), and, in the case of
advance seat assignment, the particular
seat on the aircraft if different seats on
that flight entail different charges.
Ticket agents must also disclose that
advance seat assignment and baggage
fees may be reduced or waived based on
the passenger’s frequent flyer status,
method of payment or other
characteristic. When providing the fees
associated with advance seat
assignments, ticket agents must also
disclose that seat availability and fees
may change at any time until the seat
assignment is purchased.
(d) Each U.S. or foreign air carrier that
provides its fare, schedule and
availability information directly to
consumers in the United States must
also disclose its fees for a first checked
bag, a second checked bag, one carry-on
bag, and an advance seat assignment.
The fee information disclosed to a
consumer for these ancillary services
must be expressed as customer-specific
charges if the consumer elects to
provide his or her personal information
to the carrier, such as name and
frequent flyer number. ‘‘Customerspecific’’ refers to variations in fees that
depend on, for example, the passenger
type (e.g., military), frequent flyer
status, method of payment, geography,
travel dates, cabin (e.g., first class,
economy), ticketed fare (e.g., full fare
ticket -Y class), and, in the case of
advance seat assignment, the particular
seat on the aircraft if different seats on
that flight entail different charges. If a
consumer does not provide his or her
personal information and submits an
anonymous shopping request, the fee
information disclosed to that consumer
for these ancillary services must be
expressed as itinerary-specific charges.
(e) If a U.S. or foreign air carrier or
ticket agent has a Web site marketed to
U.S. consumers where it advertises or
sells air transportation, the carrier and
ticket agent must disclose the fees for a
first checked bag, a second checked bag,
one carry-on bag, and an advance seat
assignment as specified in paragraphs
(c) and (d) of this section at the first
point in a search process where a fare
is listed in connection with a specific
flight itinerary. Carriers and ticket
agents may permit a consumer to opt
out of seeing this basic ancillary fee
information so that the consumer will
see only fares. The opt-out option must
not be pre-selected and must notify the
consumer that fees may include charges
for a first and second checked bag
(including oversize and overweight

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charges), a carry-on bag, and an advance
seat assignment.
(f) In any oral communication with a
prospective consumer and in any
telephone calls placed from the United
States, the carrier or ticket agent must
inform a consumer, upon request, of the
fees for a first checked bag, a second
checked bag, one carry-on bag, and an
advance seat assignment as specified in
paragraphs (c) and (d) of this section.
(g) Ticket agents with an existing
contractual agreement with an air
carrier or foreign air carrier for the
distribution of that carrier’s fare and
schedule information shall not charge
separate or additional fees for the
distribution of the ancillary service fee
information described in paragraph (b)
of this section. Nothing in this
paragraph should be read as
invalidating any provision in an existing
contract among these parties with
respect to compensation.
(h) Failure of an air carrier or foreign
carrier to provide the ancillary fee
information as described in paragraph
(b) of this section to its ticket agents and
failure of a U.S. carrier, foreign carrier,
or ticket agent to provide the
information to consumers as described
in paragraph (c) and (d) of this section
will be considered an unfair and
deceptive practice in violation of 49
U.S.C. 41712.
Option B
§ 399.90 Transparency in airline pricing,
including ancillary fees.

(a) The purpose of this section is to
ensure that air carriers, foreign air
carriers doing business in the United
States, and ticket agents doing business
in the United States and selling a
carrier’s tickets directly to consumers
clearly disclose to consumers at all
points of sale the fees for certain basic
ancillary services associated with the air
transportation consumers are buying or
considering buying. Nothing in this
section should be read to require that
these ancillary services must be
transactable (e.g., purchasable online).
(b) Each air carrier and foreign air
carrier shall provide useable, current,
and accurate information for certain
ancillary service fees to all ticket agents
that receive and distribute the U.S. or
foreign carrier’s fare, schedule, and
availability information, and sell that
carrier’s tickets directly to consumers.
For purposes of this section, the fees
that must be provided are: fees for a first
checked bag, a second checked bag, one
carry-on bag, and an advance seat
assignment. Fees for an advance
assignment to a seat adjacent to a
window or aisle, bulkhead seat, exit row

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seat, or any other seat for which a
consumer must pay an additional fee to
receive an advance seat assignment are
to be provided.
(c) Each ticket agent that provides a
U.S. or foreign carrier’s fare, schedule,
and availability information to
consumers in the United States and sells
that carrier’s tickets directly to
consumers must provide the U.S. or
foreign carrier’s fees for a first checked
bag, a second checked bag, one carry-on
bag, and an advance seat assignment.
The fee information disclosed to
consumers for these ancillary services
must be expressed as itinerary-specific
charges. ‘‘Itinerary-specific’’ refers to
variations in fees that depend on, for
example, geography, travel dates, cabin
(e.g., first class, economy), ticketed fare
(e.g., full fare ticket -Y class), and, in the
case of advance seat assignment, the
particular seat on the aircraft if different
seats on that flight entail different
charges. Ticket agents that sell the
carrier’s tickets directly to consumers
must also disclose that advance seat
assignment and baggage fees may be
reduced or waived based on the
passenger’s frequent flyer status,
method of payment or other
characteristic. When providing the fees
associated with advance seat
assignments, such ticket agents must
also disclose that seat availability and
fees may change at any time until the
seat assignment is purchased.
(d) Each U.S. or foreign air carrier that
provides its fare, schedule and
availability information directly to
consumers in the United States must
also provide its fees for a first checked
bag, a second checked bag, one carry-on
bag, and an advance seat assignment.
The fee information disclosed to a
consumer for these ancillary services
must be expressed as customer-specific
charges if the consumer elects to
provide his or her personal information
to the carrier, such as name and
frequent flyer number. ‘‘Customerspecific’’ refers to variations in fees that
depend on, for example, the passenger
type (e.g., military), frequent flyer
status, method of payment, geography,
travel dates, cabin (e.g., first class,
economy), ticketed fare (e.g., full fare
ticket -Y class), and, in the case of
advance seat assignment, the particular
seat on the aircraft if different seats on
that flight entail different charges. If a
consumer does not provide his or her
personal information and submits an
anonymous shopping request, the fee
information disclosed to that consumer
for these ancillary services must be
expressed as itinerary-specific charges.
(e) If a U.S. or foreign air carrier, or
ticket agent that sells such a carrier’s

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tickets directly to consumers, has a Web
site marketed to U.S. consumers where
it advertises or sells air transportation,
the carrier and ticket agent must
disclose the fees for a first checked bag,
a second checked bag, one carry-on bag,
and an advance seat assignment as
specified in paragraphs (c) and (d) of
this section at the first point in a search
process where a fare is listed in
connection with a specific flight
itinerary. Carriers and ticket agents may
permit a consumer to opt out of seeing
this basic ancillary fee information so
that the consumer will see only fares.
The opt-out option must not be preselected and must notify the consumer
that fees may include charges for a first
and second checked bag (including
oversize and overweight charges), a

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carry-on bag, and an advance seat
assignment.
(f) In any oral communication with a
prospective consumer and in any
telephone calls placed from the United
States, the carrier and ticket agent that
sells that carrier’s tickets directly to
consumers must inform a consumer,
upon request, of the fees for a first
checked bag, a second checked bag, one
carry-on bag, and an advance seat
assignment as specified in paragraphs
(c) and (d) of this section.
(g) Ticket agents that sell a carrier’s
tickets directly to consumers and have
an existing contractual agreement with
an air carrier or foreign air carrier for the
distribution of that carrier’s fare and
schedule information shall not charge
separate or additional fees for the

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distribution of the ancillary service fee
information described in paragraph (b)
of this section. Nothing in this
paragraph should be read as
invalidating any provision in an existing
contract among these parties with
respect to compensation.
(h) Failure of an air carrier or foreign
carrier to provide the ancillary fee
information as described in paragraph
(b) of this section to its ticket agents and
failure of a U.S. carrier, foreign carrier,
or ticket agent to provide the
information to consumers as described
in paragraph (c) and (d) of this section
will be considered an unfair and
deceptive practice in violation of 49
U.S.C. 41712.
[FR Doc. 2014–11993 Filed 5–21–14; 8:45 am]
BILLING CODE 4910–9X–P

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