E7-1232. Consumer Information Regarding On-Demand Air Taxi Operations

AGENCY:

Office of the Secretary, DOT.

ACTION:

Advance Notice of Proposed Rulemaking (ANPRM).

SUMMARY:

The Department of Transportation (Department) is seeking input from interested parties on the recommendation of the National Transportation Safety Board (Safety Board or NTSB) that customers of on-demand air taxi services be advised, at the time they contract for a flight, of: (1) The name of the company with operational control of the flight; (2) any “doing business as” names contained in such company's Operations Specifications; (3) the name of the aircraft owner; and (4) the name of any broker involved in arranging the flight. The NTSB has also recommended that customers be updated thereafter in the event such information changes. The Department will evaluate the comments to determine what, if any, changes to its economic rules applicable to on-demand air taxi operators should be made.

DATES:

Comments should be received by March 27, 2007.

ADDRESSES:

You may submit comments (identified by the DOT DMS Docket Number) by any of the following methods:

• Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
• Fax: [phone].
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://dms.dot.gov,, including any personal information provided. Please see the Privacy Act discussion under the Public Participation heading.

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Jonathan Dols, Supervisory Trial Attorney, or Dayton Lehman, Jr., Deputy Assistant General Counsel, Office of Aviation Enforcement Proceedings (C-70), 400 7th Street, SW., Room 4116, Washington, DC 20590. Telephone [phone].

SUPPLEMENTARY INFORMATION:

On November 28, 2004, a Canadair, Ltd., CL-600-2A12, operated by Air Castle Corporation doing business as Global Aviation Glo-Air 73, crashed during takeoff at Montrose Regional Airport, Montrose, Colorado. In the course of its accident investigation, the Safety Board noted non-causal factors that the Safety Board felt could nevertheless play a role in the safety choices that customers make when contracting for on-demand air taxi transportation with air charter companies. Among the factors identified by the NTSB was a lack of transparency such that a customer or passenger may not know the identities of those businesses providing them with on-demand air transportation services, hindering those persons' abilities to make decisions based on safety considerations. In order to remedy this concern, the Safety Board on August 4, 2006, recommended that the Department adopt rules applicable to on-demand air taxi flights that would require that certain information be provided to customers and passengers at the time a flight is contracted, and any time thereafter that a change in such information might occur.

The Safety Board recommended the following information be disclosed to customers and passengers at the time an air taxi charter contract is arranged and anytime thereafter that such information changes: (1) The name of the company in operational control of the aircraft during flight; (2) any other “doing business as” names contained in the Operations Specifications of the carrier in operational control during the flight; (3) the name of the aircraft owner; and (4) the names of all brokers involved in arranging the flight. A copy of Safety Board Recommendation A-06-43 is available online at http://www.ntsb.gov/​Recs/​letters/​2006/​A06_​43.pdf.

Authority to operate on-demand air taxi service is prescribed by both the Federal Aviation Administration's (FAA) safety regulations, set forth at 14 CFR Part 135, and the economic requirements of the Office of the Secretary, set forth at 14 CFR Part 298. The Department has always believed that adequate information is essential in order that consumers be afforded the opportunity to make informed decisions about their flight choices. For example, we have long had in effect a regulation covering scheduled carriers, which provide air service for the vast majority of passengers in the U.S,. that requires that notice be provided the public of the name of the airline operating a code share or long-term wet lease operation. (See 14 CFR Part 257) That required notice is similar to that which the Safety Board recommends be required of on-demand air taxi operations.

The Department also has longstanding rules applicable to air charter brokers and other ticket agents that prohibit them from, among other things: (1) Misleading the public into believing they are airlines; (2) misleading the public about the qualifications of pilots or the safety record or certification of air carriers, aircraft, or crew; and (3) misleading the public about the quality or kind of service, including the size or type of aircraft and route to be flown. (See 14 CFR 399.80) In addition, it would be a deceptive practice prohibited by 49 U.S.C. 41712 for an air taxi to misidentify to a customer the carrier actually operating a flight. Where warranted, we have acted through our Office of the Assistant General Counsel for Aviation Enforcement and Proceedings (Enforcement Office) to enforce these requirements. For example, the Enforcement Office's investigation following the February 2, 2005, crash of Canadiar CL-600-N370V at Teterboro, New Jersey, resulted in enforcement action against all three entities involved—the unlicensed operator of the aircraft, the air carrier on whose operations specifications the crashed aircraft was listed, and the air charter broker who arranged the flight using the unlicensed aircraft operator—for violations of the Department's economic regulations described above. See, Platinum Jet Management, LLC, Michael F. Brassington, Andre Budhan, and Paul Brassington, Consent Order 2006-6-14, issued June 12, 2006, Docket OST-2006-23528 (finding, inter alia, that Platinum and the named individuals engaged in air transportation without economic authority from the Department in violation of 49 U.S.C. 41301 and 41712); Darby Aviation, Inc. d/b/a Alphajet International, Consent Order 2005-12-1, issued December 1, 2005, Docket OST-2005-20077 (finding that Darby, a properly licensed on-demand air taxi, engaged in an unfair and deceptive practice and an unfair method of competition in violation of 49 U.S.C. 41712 by facilitating the unlawful air taxi operations of Platinum Jet Management); and BlueStarJets, LLC, Consent Order 2005-10-24, issued October 24, 2005, Docket OST-2005-20077 (finding that BlueStarJets, an air charter broker, violated 14 CFR Part 399 and 49 U.S.C. 41101 and engaged in an unfair and deceptive practice and an unfair method of competition in violation of 49 U.S.C. 41712 by misrepresenting itself as an air carrier and misrepresenting the safety records and certification of carriers whose services it was marketing).

The Department is aware of the increasing role in the U.S. air transportation system being played by air carriers that operate on-demand air taxi service under Part 298 of the Department's economic regulations, and Part 135 of the FAA's safety regulations, as well as by air charter brokers who bring together air taxis and customers in that system. Therefore, we have not limited our work in this area to after-the-fact enforcement actions; rather, we have been active in air charter industry outreach efforts. The Department's Enforcement Office has reemphasized our existing requirements applicable to the air charter industry through issuance of informal guidance and regular participation in conferences and meetings with the major associations representing all facets of the air charter industry, at which the need to provide complete and accurate notice of the carrier that is operating the flight has been urged on the participants. The Enforcement Office also maintains an open line of communication with carriers, individuals, and organizations throughout the year to discuss matters of concern to the on-demand air charter industry.

Although we believe the Department's consumer protection efforts described above have gone a long way toward ensuring the protection of the public who use on-demand air taxi services, the notice recommended by the Safety Board is not specifically required by current Department regulations. The Department agrees with the Safety Board that accurate information is essential if airline consumers are to make informed choices, including those related to safety. We are continually striving to fulfill our duty to maintain the proper balance between consumer protections and our charge to permit market forces to govern the air transportation industry to the maximum extent possible. Toward this end, there are, of course, many factors to take into account in determining whether or not to implement the NTSB's recommendations. Accordingly, the Department is seeking input from interested parties on the recommendations made by the NTSB. We ask that, in considering their comments on the Safety Board's recommendations, commenters specifically consider and comment on the following questions:

1. How might customers and passengers benefit from the information covered by the NTSB recommendation in making their air taxi service purchase decisions?

2. Should any notice requirement, if adopted, also apply to air charter brokers and other ticket agents who arrange for air transportation for customers using the services of on-demand air taxis?

3. To what extent is each of the notices recommended by the Safety Board already provided in the normal course of business to persons who travel using an on-demand air taxi? If such notice is not currently routinely provided, what, if any, practical difficulties would the on-demand air taxi industry likely face in providing the notice?

4. What costs, if any, would the recommended changes impose on the industry? Would there be any paperwork burdens? Would there be a significant economic impact on a substantial number of small entities ?

5. How might the disclosure of the names of the owners of the aircraft involved in the arranged flights be useful to customers and passengers? What, if any, practical or privacy concerns would be raised by such a requirement?

6. At what point in time must any notice, if required, first be provided to be effective, e.g., in printed and website advertisements, to potential customers when they are seeking information, anytime prior to entering into a contract, upon signing the contract, or anytime prior to boarding the aircraft?

7. What form should any notice requirement, if adopted, take? That is, is verbal notice sufficient or must the notice be in writing?

8. What are the practical problems in requiring notice to individual passengers of an on-demand air taxi? Would any notice requirement be sufficient if provided to the person contracting for the flight, e.g., the customer's broker/agent or a corporation's travel department or an executive's assistant who arranged the flight?

Andrew B. Steinberg,

Assistant Secretary for Aviation and International Affairs.