Notice of Submission of Proposed Information Collection to OMB; Agency Request for Revision of BTS Form 251 and Renewal of OMB Control Number 2138-0018: Part 250 of the Department's Economic Regulations-Oversales

AGENCY:

Office of the Secretary, Department of Transportation.

ACTION:

Notice.

SUMMARY:

In accordance with the Paperwork Reduction Act of 1995 (PRA), this Notice confirms the Department of Transportation's (Department) intention to renew and revise an Office of Management and Budget (OMB) control number as related to the Department's Bureau of Transportation Statistics (BTS) Form 251, Report of Passengers Denied Confirmed Space. A 60-day comment period soliciting comments on the information collection was published on March 3, 2020. Three comments were received. The Department addresses those comments in this Notice and is seeking to renew the current OMB control number by forwarding the Information Collection Request (ICR) abstracted below to OMB. The ICR renames Form 251 to Form 250 and revises the form to reduce the burden on airlines, better clarify the instructions for completing the form, and provide more relevant information to consumers.

DATES:

Comments on this Notice must be received by February 1, 2021.

ADDRESSES:

Send comments regarding the burden estimate, including suggestions for reducing the burden, to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, 725 17th Street NW, Washington, DC 20503. Comments may also be sent via email to OMB at the following address: oira_submissions@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT:

Stuart Hindman, (202) 366-9342, Stuart.Hindman@dot.gov, Office of Aviation Consumer Protection (C-70), U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

OMB Control Number: 2138-0018.

Title: Report of Passengers Denied Confirmed Space Due to an Oversale Situation.

Type of Request: Request to Revise and Rename Form 251 and Renew OMB Control Number.

Abstract/Background: BTS Form 251 is a one-page report that U.S. reporting carriers submit to the Department on a quarterly basis. Among other things, the form contains the following information: (1) The number of passengers denied seats on flights that they hold confirmed spaces, either voluntarily or involuntarily, (2) the numbers of passengers involuntarily denied boarding (bumped passengers) who qualified for compensation and were or were not provided alternate transportation, (3) the number of passengers voluntarily or involuntarily denied boarding who received compensation and the amounts of the compensation paid to them, and (4) the total number of enplanements at a U.S. airport relating to flights that are subject to the oversales rule. For the purpose of Form 251, reporting carriers are U.S. air carriers that account for at least 0.5 percent of domestic scheduled-service passenger revenues. These reporting carriers must submit Form 251 for all flights operated on aircraft with a designed passenger capacity of 30 or more seats which depart a U.S. airport. Carriers do not report data from inbound international flights to the United States because the protections of 14 CFR part 250 Oversales do not apply to these flights. In addition, reporting carriers must file a separate form for all scheduled flight segments originating in the United States that are operated by a codeshare partner of the reporting carrier that is a certificated air carrier or commuter air carrier using aircraft that have a designed passenger capacity of 30 or more seats, and marketed only under one U.S. carrier's code. As of January 1, 2020, there are 5 such reporting carriers.

The Department uses Form 251 to monitor the level of oversales activity by each reporting carrier, the impact on passengers, and the effectiveness of the Department's oversales rule. Certain information collected from Form 251 is made available to the public in the Department's monthly publication, the Air Travel Consumer Report (ATCR), at: https://www.transportation.gov/individuals/aviation-consumer-protection/air-travel-consumer-reports. The ATCR is a widely cited source of information for newspapers, magazines and trade journals. A review of the Form 251 data reveals that the overall involuntarily denied-boarding rate has consistently decreased in recent years, while passenger enplanements are increasing. For example, compared to the annual involuntary denied boarding rate of 4.38 per 10,000 passengers in 1980, this rate has been reduced to 0.24 per 10,000 passengers in 2019. Publishing individual carrier's denied boarding rates publicly serves to diminish the need for more intrusive regulations by disincentivizing carriers from setting unreasonable overbooking rates—resulting in a market based mechanism that is more efficient than direct regulation. In addition, a carrier's denied boarding rate provides an insight into that carrier's operational principles and customer service practices. For instance, a rapid sustained increase in the rate of denied boarding may indicate operational difficulties. Because the rate of denied boarding is released quarterly, travelers and travel agents concerned about being bumped can select carriers with lower incidences of denied boardings.

In 2016, the Department issued a final rule that, in part, revised the oversales reporting requirements. In conjunction with that rulemaking, on May 23, 2014 the Department published a 60-day FR Notice (79 FR 29970), and, on November 3, 2016, a 30-day FR Notice (81 FR 76800) to renew and revise the OMB control number regarding oversales information collection (2138-0018). On October 12, 2017, OMB approved the control number authorizing these new collections of information until October 31, 2020. The Department received an emergency extension of the current OMB control number until December 31, 2020.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA) and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On March 3, 2020, the Department published a 60-day Notice in the Federal Register soliciting comment on ICRs for which the agency was seeking OMB approval (85 FR 12664). A line-by-line summary of the proposed changes to the form with an explanation for each change was published in the 60-day Notice. The Department received three comments, one from an industry trade organization, one from a U.S. airline, and one from a member of the public. The Department's response to the comments on each change is below:

Form 250

• Title

A. Change: The current title of the form—“Report of Passengers Denied Confirmed Space”—is revised to “Report of Passengers Denied Confirmed Space Due to an Oversale Situation” and renamed to be “Form 250.” This revision is intended to clarify that the form is meant to capture data relating to passengers denied boarding due to an oversale situation and not for other reasons such as safety, security, or health related reasons. Renaming the form to “Form 250” is intended to clarify further the applicability of the data to oversale situations and correspond to the appropriate part of Title 14 of the Code of Federal Regulations which addresses oversales, Part 250.

Comments: No comments were received on the title change.

• Line 1

A. Change: Added “from flights that were oversold” to the leading sentence to reinforce that the form is intended to capture data from oversold flights.

Comments: No comments were received on this change

B. Change: In order to provide more complete and accurate regulation citations, changed the regulation citation in line 1(a) to “§ 250.5(a)(2) or (b)(2)” and added a regulation citation in lines 1(b) of “§ 250.5(a)(3) or (b)(3).”

Comment: Revert to previous language to match regulatory text and add definition of “oversold” to form's instructions.

Response: The Department accepts this comment. The Department has reworded the language in lines 1(a) and 1(b), added a clarifying language in Instruction (B), and added the definition of “oversold flight” which is found in 14 CFR 250.9 to Instruction (A).

C. Comment: Combine the data in lines 1(a) and 1(b).

Response: The Department rejects this comment. The data contained in lines 1(a) and 1(b) are distinct from each other, thus combining the lines would result in the publication of misleading information. Moreover, keeping the data separate allows the Department to more accurately monitor airline oversales and accommodation practices.

• Line 2

A. Change: Added “from flights that were oversold” in the leading sentence to reinforce that the form is intended to capture data from oversold flights.

Comment: No comments were received on this change.

B. Change: Reworded the contents in lines 2(a), 2(b), and 2(c) to ensure that the language on the form matches the regulatory text, listed order of exceptions to the denied boarding compensation rule found in 14 CFR 250.6, and included the applicable citation to section 250.6.

Comment: Add clarifying language to line 2(a) to ensure consistency in reporting by carriers.

Response: The Department concurs with this suggestion and has added clarifying language to Instruction (C).

C. Change: Moved the content of line 6 to line 2; reordered lines 2(a), 2(b), 2(c), and 2(d).

Two Comments: (1) Remove all data in line 2 because the data is not published by the Department and the reported data is not related to denied boardings in an oversales situation. (2) In the alternative, the Department should remove data collection related to upgrades and downgrades (line 2(c)).

Response: The Department rejects the comment to remove all collection in line 2. Keeping data collection related to the exceptions for denied boarding compensation allows the Department to monitor and track overall compliance with the denied boarding compensation rules. However, the Department accepts the suggestion to remove data related to upgrades and downgrades. If a passenger is ultimately accommodated on the flight but in a different section of the aircraft, the passenger was not denied boarding due to the entire flight being “oversold.”

• Line 3—no change was proposed

A. Comment: Remove line 3 as data contained in this line is duplicative of line 1 if line 2 is deleted.

Response: The Department rejects the deletion of all of the information in line 2; therefore, the data contained in line 3 is not duplicative of other collected data.

• Line 4

A. Changes: Added “from an oversold flight” to reinforce that the form is intended to capture data from oversold flights. Added “regardless of the type of compensation (e.g., voucher, cash)” to clarify that reporting carriers must report the actual number of all passengers who receive any type of compensation as a result of being denied boarding involuntarily.

Comment: Remove line 4 as the data collected is duplicative of Line 1.

Response: The Department rejects this comment. The data collected in lines 1 and 4 are distinct. Line 1 collects the number of passengers entitled to denied boarding compensation, while line 4 collects the number of passengers that actually received denied boarding compensation. The collection of the data in line 4 enables the Department to monitor carriers' compliance with the denied boarding compensation requirements, especially with regard to the proper payment of owed denied boarding compensation. A discrepancy in the data contained in lines 1 and 4 is an indication that a carrier may not be properly compensating all passengers who are entitled to denied boarding compensation.

• Line 5

A. Change: Added “due to a potential oversale situation” to reinforce that the form is intended to capture data from oversold flights.

Comment: Remove the word “potential” as it could place an excessive burden on reporting carriers and could result in overreporting of data.

Response: The Department accepts the comment in part and has substituted new language in line 5 to now read: Number of passengers who voluntarily accepted a carrier's offer to give up reserved space due to a potential oversale situation and did not travel on their original flight in exchange for a payment of the carrier's choosing. In the 60-day notice, line 5 stated: Number of passengers who volunteered to give up reserved space due to a potential oversale situation in exchange for a payment of the carrier's choosing. The Department believes that adding the phrase “and did not travel on their original flight” will prevent overreporting of potential oversale situation and any undue burden for reporting carriers as the carrier would only report the number of passengers who volunteer to be denied boarding after solicitation by the carrier and ultimately give up a reserved space.

• Line 6

A. Changes: Moved the text in line 6 regarding upgrades and downgrades to line 2 so that all data relating to exceptions to the denied boarding compensation rule is on one line. Moved the text from line 7 regarding total boardings to line 6 without any change.

Comments: No comments were received on this change.

• Line 7

A. Change: Moved the text from line 8 up to line 7 and added the regulation citation to “§ 250.5(a)(2) or (b)(2)” to line 7(a) and “§ 250.5(a)(3) or (b)(3)” to line 7(b) to complete the applicable regulatory citation.

Comment: Remove lines 7(a) and 7(b) as requiring the reporting of aggregate data does not provide the Department or the public with usable information.

Response: The Department accepts the suggestion to remove lines 7(a) and 7(b). Instead, the Department will rename and reword proposed line 7 to read: Amount of compensation paid to passengers who voluntarily accepted a carrier's offer to give up reserved space on an oversold flight that received cash or cash equivalent payment. This change allows the Department to monitor industry practice regarding payment of voluntary denied boarding compensation for potential regulatory changes in the future.

Instructions to Form 250

No Comments were received on the changes proposed in the Instructions.

• Instruction (A)

○ Added clarifying language to ensure reporting carriers are only reporting data relating to oversold flights operated by covered aircraft (i.e., aircraft with 30 or more seats).

○ Added language related to the requirement for reporting carriers to submit a separate Form 250 for flights operated by a reporting marketing carrier's code-share partner if the code-share partner is also a reporting carrier.

• Instruction (B)

○ Added clarifying language to include the full citation to the applicable regulation to ensure that reporting carriers are properly reporting data on lines 1(a) and 1(b).

• Instruction (C)—no change.
• Instruction (D)

○ Added a new Instruction D to clarify that reporting carriers must include on line 4 passengers who receive any type of compensation as a result of being denied boarding involuntarily from an oversold flight.

• Instruction (E)

○ Moved text from previous Instruction (D) to Instruction (E) without additional change.

• Instruction (F)

○ Moved text from previous Instruction (E) to Instruction (F) without additional change.

• Instruction (G)

○ Moved text from previous Instruction (F) to Instruction (G) and added clarifying language to ensure reporting carriers properly report only the amount of cash or cash-equivalent compensation provided to passengers denied boarding either voluntarily or involuntarily.

• Instruction (H)

○ Moved text from previous Instruction (G) to Instruction (H) without additional change.

• Instruction (I)

○ Moved text from previous Instruction (H) to Instruction (I) and include a new submission email address.

Copies of the revised form and accompanying instructions reflecting the changes are included in this Notice.

Accordingly, the Department announces that these information collection activities have been re-evaluated and certified under 5 CFR. 1320.5(a) and forwarded to OMB for review and approval pursuant to 5 CFR 1320.12(c). Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment., see 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day Notice is published, see 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d); see also 60 FR 44978, 44983 (Aug. 29, 1995). The 30-day Notice informs the regulated community to file relevant comments to OMB and affords the Agency adequate time to review and respond to public comments before rendering a decision. See 60 FR 44983 (Aug. 29, 1995). Therefore, respondents should submit any comments to OMB within 30 days of publication to best ensure their full consideration. 5 CFR 1320.12(c); see also 60 FR 44983 (Aug. 29, 1995).

This Notice addresses the information collection requirements set forth in the Department's regulation mandating reporting of oversales data, 14 CFR 250.10. The renewed OMB control number will be applicable to all the provisions set forth in this Notice.

The PRA and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, as a general matter, notwithstanding any other provisions of law, no person shall be subject to monetary penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.

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:

The Confidential Information Protection and Statistical Efficiency Act of 2002 (44 U.S.C. 3501) requires a statistical agency to clearly identify information it collects for non-statistical purposes. The Departments hereby notifies the respondents and the public that it uses the information it collects under this OMB approval for non-statistical purposes including, but not limited to, publication of the data in the Department's Air Travel Consumer Report and submission of the information to DOT agencies outside BTS for review, analysis, and possible use in regulatory, enforcement, and other administrative matters.

Requirement to Submit BTS Form 250 as related to oversold flights.

Respondents: U.S. air carriers that account for 0.5 percent of domestic scheduled-service passenger revenues for all flights operated on aircraft with a designed passenger capacity of 30 or more seats which depart a U.S. airport. We have identified 16 carriers meeting this threshold in 2020. Additionally, out of the 16 carriers, five reporting carriers must file a separate form for all scheduled flight segments originating in the United States which are operated by a codeshare partner of the reporting carrier that is a certificated air carrier or commuter air carrier using aircraft that have a designed passenger capacity of 30 or more seats, and marketed only under one U.S. carrier's code.

Number of Respondents: 16 (effective January 1, 2020).

Frequency: Four times a year.

Estimated Total Burden on Respondents: 1,144 hours.

This estimate is based on the following information:

Public Comments Invited: You are asked to comment on any aspect of this information collection, including (a) whether the proposed collection of information is necessary for the Department's performance; (b) the accuracy of the estimated burden; (c) ways for the Department to enhance the quality, utility, and clarity of the information collection; and (d) ways that the burden could be minimized without reducing the quality of the collected information.

All responses to this Notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record on the docket.

Authority: The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.49.