US Aviation Regulatory Update: A Review of 2010, and Issues to Watch Anita Mosner Partner, Holland & Knight LLP IATA Legal Symposium 14 February 2010
New Developments - 2010 Many new developments. Among others: TSA cargo screening rules took effect, Secure Flight was fully implemented, and FAA proposed new flight & duty time regulations for US carriers. Will cover here: DOT passenger rights/tarmac delay rule, which imposed new requirements concerning extended tarmac delays. Proposed expansion of scope of passenger rights/tarmac delay rule, and its extension to cover non-us airlines. New legislation which tightened code-sharing disclosure requirements. New aircraft registration requirements. See Appendix for citations and details
Overview of Current Tarmac Rule Rule requires airlines to develop delay contingency and customer service plans, and imposes new requirements concerning responses to customer complaints. Imposes penalties of up to $27,500 per passenger for extended delays. For domestic flights, assurance that the air carrier will not permit an aircraft to remain on the tarmac for more than three hours unless The pilot-in-command determines there is a safety-related or securityrelated reason why the aircraft cannot leave its position on the tarmac to deplane passengers; or Air traffic control advises the pilot-in-command that returning to the gate or another disembarkation point elsewhere in order to deplane passengers would significantly disrupt airport operations. For all flights, assurance of adequate food and potable water no later than two hours after the aircraft leaves the gate (in the case of departure) or touches down (in the case of an arrival) if the aircraft remains on the tarmac For all flights, assurance of operable lavatory facilities and adequate medical attention Assurance of sufficient resources to implement the plan and that it has been coordinated with airport authorities of the hubs the carrier serves, including diversion airports
Tarmac Delay Rule Other requirements: Monthly reporting requirement for lengthy flight delays Designation of a passenger advocate Acknowledgement of complaints in 30 days, response in 60 days Creation of customer service plan, to be displayed on website Constraints on continued display of flights that are chronically late Retention of records concerning such incidents for 2 years Although the rule applies only to US carriers, DOT has commenced investigations against foreign airlines No formal enforcement action against any foreign carriers Pre-regulation action against Mesaba, Continental and Delta Possible effect of rule surge in pre-emptive flight cancellations?
Proposed expansion of tarmac delay rule Requires foreign carriers to adopt customer service plans (see Appendix), and to file monthly reports concerning lengthy tarmac delays. Requires coordination with airport authorities, TSA and CBP on delay contingency plans at U.S. airports, including smaller airports, and airports that carriers have listed as relievers. Requires carriers to incorporate delay contingency and customer service plans into their contracts of carriage, and would require contracts of carriage to be posted on airline websites. Adjusts the maximum DBC limits in DOT's existing oversales rule (Part 250) resulting in new limits of $650 and $1300 Makes zero-fare passengers eligible for DBC. DOT would enforce the full price advertising rule as written, which would include a new requirement for airlines (and ticket agents) to include all mandatory fees (including both government- and airline-imposed charges) in their advertised prices Prohibition against opt-out provisions in ads.
Code-share displays New law requires carriers to ensure proper disclosure of the operating carriers on code-share flights. Law covers oral communications, written notice, and web displays. Of note, airlines must amend/review their web displays to provide the actual name of the operating carrier at the first point the flight is displayed, and, for flights operated with multiple segments, the name of the carrier operating each segment DOT guidance expressly says that cannot use hyperlinks or rollovers to make this disclosure Must give the legal name of the carrier in addition to any brand names i.e., Colgan Airlines, and not just Continental Express DOT rules already specify codeshare disclosure recent enforcement action (see Appendix) DOT will begin taking enforcement action against carriers which have not brought their web displays into compliance with the new requirements as of March 11, 2011
FAA issues new aircraft registration rules Provides for the expiration and re-registration of all US-registered aircraft over a three-year period, followed by the expiration and renewal of aircraft registrations at three-year intervals: For aircraft registered before October 1, 2010, re-registration is required pursuant to a three-year schedule. For aircraft registered on or after October 1, 2010, certificates will be good for three years with the expiration date clearly shown. FAA issued the rule so that it can clean up its database of N- registered aircraft, and to ensure that accurate information is available to the FAA and to law enforcement agencies, and for manufacturers to convey safety directives.
Coming up next DOT to issue final passenger rights regulation in 2011 Coverage of non-us airlines a virtual certainty DOT considering further expansion of Part 382, and will issue a new proposal in 2011. In this proposal, DOT will consider: Petition of carriers to be permitted to seat strap wheelchairs in aircraft cabins, as opposed to providing dedicated storage space DOT will also consider new substantive requirements, including: Accessibility of IFE systems Accessibility of airport kiosks Provision of medical oxygen For foreign carriers, carriage of service animals other than dogs Reducing documentation for psychiatric service animals, as opposed to emotional support animals Imposing new accessibility requirements on airports
Appendix: Citations and Background
Tarmac Delay Rule Citations Enhancing Passenger Protections Part I, 74 Fed. Reg. 68,983 (Dec. 30, 2009), available at http://www.gpo.gov/fdsys/pkg/fr-2009-12-30/pdf/e9-30615.pdf. Enhancing Passenger Protections Part II, 75 Fed. Reg. 32,318 (June 8, 2010), available at http://www.gpo.gov/fdsys/pkg/fr-2010-06-08/pdf/2010-13572.pdf.
Proposed new requirements for customer service plans Offering the lowest fare available on the airline's website, at the ticket counter or during a phone reservation; Notifying consumers in the boarding gate area, on board aircraft and via telephone reservation system and website of known delays, cancellations and diversions; Delivering baggage on time, including making every reasonable effort to return misplaced baggage within 24 hours and compensating passengers for resulting expenses; Allowing reservations to be held at the quoted fare without payment, or cancelled without penalty, for at least twenty-four hours after the reservation is made; Providing prompt refunds for credit card purchases and for cash and check purchases within 20 days of request; Properly accommodating passengers with disabilities, including during lengthy tarmac delays; Meeting customers' essential needs during lengthy tarmac delays as provided in an airline's contingency plan; Handling "bumped" passengers with fairness and consistency; Disclosing cancellation policies, frequent flyer rules, aircraft configuration, and lavatory availability on the selling airline's website and through the selling airline's telephone reservations staff; Notifying consumers in a timely manner of changes in their travel itineraries; Ensuring good customer service from code-share partners operating a flight; Ensuring responsiveness to customer complaints; and Identifying the services it provides to mitigate passenger inconveniences resulting from flight cancellations and misconnections.
New Code-Share disclosure law - 49 USC 41712(c) (c) DISCLOSURE REQUIREMENT FOR SELLERS OF TICKETS FOR FLIGHTS. (1) IN GENERAL. It shall be an unfair or deceptive practice under subsection (a) for any ticket agent, air carrier, foreign air carrier, or other person offering to sell tickets for air transportation on a flight of an air carrier to fail to disclose, whether verbally in oral communication or in writing in written or electronic communication, prior to the purchase of a ticket (A) the name of the air carrier providing the air transportation; and (B) if the flight has more than one flight segment, the name of each air carrier providing the air transportation for each such flight segment. (2) INTERNET OFFERS. In the case of an offer to sell tickets described in paragraph (1) on an Internet Web site, disclosure of the information required by paragraph (1) shall be provided 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.
Code-Share Disclosure Airline Safety and Federal Aviation Administration Extension Act of 2010, Pub.L. No. 111-216, 210 (to be codified at 49 U.S.C. 41712 (c)), available at http://www.gpo.gov/fdsys/pkg/plaw-111publ216/pdf/plaw-111publ216.pdf. Disclosure of Code-Share Service by Air Carriers and Sellers of Air Transportation, 76 Fed. Reg. 2,744 (Jan. 14, 2011), available at http://www.gpo.gov/fdsys/pkg/fr-2011-01-14/pdf/2011-753.pdf. See 14 CFR Part 257 Disclosure of Code-share Arrangements and Long Term Wet- Leases, available at http://www.access.gpo.gov/nara/cfr/waisidx_10/14cfr257_10.html. Recent DOT consent orders for code-share disclosure violations: jetblue Airways, Corp., Order 2010-12-17 (December 13, 2010), available in docket DOT-OST- 2010-0005. Penalty: $600,000 (Note: the penalty also covered violations of Part 382) Delta Air Lines, Inc. and Northwest Airlines, Inc., Order 2010-7-4 (July 9, 2010), available in docket DOT-OST-2010-0005. Penalty: $80,000. US Airways, Order 2009-8-2 (August 10, 2009), available in docket DOT-OST-2009-0001. Penalty: $70,000. United Air Lines, Inc., Order 2009-7-6 (July 9, 2009), available in docket DOT-OST-2009-0001. Penalty: $80,000.
FAA Aircraft Registration Rule Re-Registration and Renewal of Aircraft Registration, 75 Fed. Reg. 41968 (July 20, 2010), available at http://www.gpo.gov/fdsys/pkg/fr-2010-07-20/pdf/2010-17572.pdf.
Re-registration deadlines Re-registration and registration expiration Certificate issued (Any year) Certificate expires Re-registration required March March 31, 2011 Nov. 1, 2010 Jan. 31, 2011 April June 30, 2011 Feb. 1 April 30, 2011 May Sept. 30, 2011 May 1 July 31, 2011 June Dec. 31, 2011 Aug. 1 Oct. 31, 2011 July March 31, 2012 Nov. 1, 2011 Jan. 31, 2012 August June 30, 2012 Feb. 1 April 30, 2012 September Sept. 30, 2012 May 1 July 31, 2012 October Dec. 31, 2012 Aug. 1 Oct. 31, 2012 November March 31, 2013 Nov. 1, 2012 Jan. 31, 2013 December June 30, 2013 Feb. 1 April 30, 2013 January Sept. 30, 2013 May 1 July 31, 2013 February Dec. 31, 2013 Aug. 1 Oct. 31, 2013
For More: Anita Mosner Partner Holland & Knight 2099 Pennsylvania Avenue, NW Washington, DC 20006 USA anita.mosner@hklaw.com o: +1.202.419.2604 m: +1.202.378.0833