International Data Submissions by Large Air Carriers (Form 41 Schedules T-100, T-100(f), and P-1.2)

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Parts 217 and 241

[Docket No. OST-96-1049]

RIN 2105-AC34

International Data Submissions by Large Air Carriers (Form 41

Schedules T-100, T-100(f), and P-1.2)

AGENCY: Office of the Secretary, (DOT).

ACTION: Final rule.

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SUMMARY: This rule reduces the period of confidential treatment of

international nonstop segment and on-flight market data from three

years to immediately following the Department's determination that the

data base is complete, but no sooner than six months after the date of

the data. It also requires collection of aircraft capacity data from

foreign air carriers and rescinds the requirement that Group III (large

U.S.) air carriers specify passenger enplanements, passengers

transported, and seating capacity by cabin configuration. At the same

time, the Department defers a final decision on changes to Schedule P-

1.2--Statement of Operations. The issues pertinent to that schedule

will be addressed in a supplementary notice of proposed rulemaking that

will be completed soon.

In order to provide the reporting air carriers with additional time

to make changes to their systems, we have established a period of

several months between the effective date and compliance dates.

DATES: Effective date. This rule shall become effective on March 17,

1997.

Compliance dates: The compliance date for foreign air carriers to

report the additional capacity data is July 1, 1997. The compliance

date of the new reduced level of reporting for large U.S. Group III air

carriers is July 1, 1997.

FOR FURTHER INFORMATION CONTACT: John Harman, Office of Aviation

Analysis, or John Schmidt, Office of Aviation and International

Economics, Office of the Assistant Secretary for Aviation and

International Affairs, Office of the Secretary, U.S. Department of

Transportation, 400 Seventh St. SW., Washington, DC 20590 at (202) 366-

1059 or 366-5420, respectively.

SUPPLEMENTARY INFORMATION:

Background

On February 15, 1996, the Department of Transportation published a

notice of proposed rulemaking (NPRM) [61 FR 5963] to make the changes

summarized above. We also distributed over 500 copies of the notice to

the aviation community. This rulemaking action was taken on the

Department's initiative in order to make data available for planning

and efficient resource allocation purposes, to ensure the accuracy of

the data that are used by the Department in administering its program

responsibilities, and to eliminate collection of data that are no

longer needed for regulatory purposes.

We received comments from five U.S. air carriers: American Airlines

(American), Federal Express Corporation (FedEx), Trans World Airlines

(TWA), United Air Lines (United), and USAir; one foreign air carrier,

Alia--the Royal Jordanian Airline (Royal Jordanian); the Airports

Council International--North America (ACI-NA) whose member airports

handle approximately 90% of the passenger traffic in the United States;

and the Air Line Pilots Association (ALPA), the bargaining

representative of more than 44,000 pilots of 38 airlines. Most

commenters supported the rulemaking.

Discussion of Comments

(1) Confidentiality of International T-100 Data

American, TWA, United, USAir, ACI-NA, and ALPA strongly supported

reducing the period of confidentiality from three years to immediately

following the Department's determination that the data base is

complete, but no sooner than six months after the date of the data. In

fact, American said that the data should be published as soon as the

Department determines that the data base is complete and that there is

little reason to impose an arbitrary requirement withholding release

for a minimum of six months. United urged that the rule provide by its

terms that the release date will be six months after submission and

that any release beyond that date be the exception and not the rule.

While that carrier appreciated that all data, both U.S. and foreign

carrier, should be released at the same time and that database

preparation delays may occur, it would prefer to have a fixed date for

release rather than an open-ended one. With respect to American's

suggestion, the Department did not initially propose to release

international T-100 data in less than six months in deference to

perceived carrier concerns that the data might be used for day-to-day

competitive purposes and also because it expected that receipt, edit,

and publication of the data from a large number of foreign carriers

would take about six months. As regards United's view that we specify

only a six month release date, while we fully expect to be in a

position to make the data public

[[Page 6716]]

within that time frame, there may be circumstances where a slightly

longer period of time may be required. We have, therefore, decided to

retain our proposed language stating that we will release the data

following a determination by the Department that the database is

complete, but no sooner than six months after the date of the data.

Royal Jordanian argued that the Department should seriously

reexamine its proposal to amend the confidentiality afforded detailed

nonstop segment and on-flight market data reported by foreign carriers

under the T-100 program, and upon review, should maintain the current

three-year confidentiality period for such data. Royal Jordanian

proposed that, in the event the Department does not re-think this

proposal in its entirety, it should at least maintain the three-year

confidentiality period for traffic data in single-carrier markets.

Royal Jordanian relied on the Department's analysis in the 1988

rulemaking for support of its statement. In commenting that there are

no compelling reasons to modify the current protections of

confidentiality on T-100 data, Royal Jordanian argued that ``I-92

reports contain accurate data about the origin and destination traffic

in specific international city-pair markets, which provides perfectly

useful information for purposes of route planning and market

analysis.''

In response, we note that the I-92 data are not origin-destination

data at all, but rather a count of the number of passengers onboard any

flight segment arriving in or departing from the United States. As

Royal Jordanian, itself, remarked, T-100 data is more comprehensive.

More specifically, T-100 data include onboard data for non-stop

segments operated into and out of the United States by both foreign and

U.S. carriers as well as similar data for U.S. carrier flight segments

operated beyond the foreign gateway. Moreover, they also include on-

flight market data (similar to origin-destination data in that they

tally the passengers traveling between any two points on that flight)

for those flights operating into and out of the U.S. In addition, T-100

data include capacity and operational data for these flights such as

seats, departures, aircraft type, and block hours. T-100 reports

include U.S.-Canadian traffic whereas 1-92 reports do not. Finally, T-

100 incorporates both freight and passenger information whereas I-92

gives only the passenger cabin count. Because T-100 data are taken from

airline records, there are other system data available to validate any

questionable numbers. This provides a basis for expecting a high level

of reliability. These advantages combined with the fact that Royal

Jordanian has not documented any irrevocable harm would lead us to make

the T-100 data available, as proposed, to planners, analysts, and other

users.

FedEx (an all-cargo carrier) stated that the three-year rule should

not be changed because the data collected are so specific and sensitive

that they should not be revealed prematurely. It further argued that

the data are only of use to the government, and the need for them is

declining as the U.S. becomes more successful in obtaining open-skies

agreements. With respect to FedEx's suggestion that the data collected

are unnecessarily specific, the Department notes that international

routes are still awarded on a city-to-city basis and are frequently

limited-entry and that airports are planned and constructed at specific

cities. With respect to FedEx's assertion that the data are sensitive,

the discussion in the notice of proposed rulemaking recognized that the

availability of data could be expected to change the nature of the

marketplace and, in fact, make it more efficient and competitive. FedEx

has not, however, documented its assertion that the more timely

availability of data to all would create an unfair competitive

advantage. In addition, FedEx did not rebut the carriers' or

communities' needs for current market data to support negotiating

positions and requests for route awards. ACI-NA and United described

the airports' and carriers' needs for these data.

FedEx also stated that the three-year rule should not be changed

because the data are so flawed and subject to so many differing

interpretations that an earlier release may actually damage the

interests that the Department is trying to promote. FedEx asserted

that, while the T-100 system gathers detailed information on U.S.

carriers' activities in foreign markets, much of the foreign carrier

activity that is in direct competition with the U.S. carriers is not

reported. It said that the T-100 system should not undercut the U.S.

position at negotiations because of the lop-sided reporting structure,

but should be used primarily for internal U.S. analysis, recognizing

its shortcomings. All these comments apparently refer to the fact that

U.S. carriers report all international market and segment records,

while foreign carriers only report those market and segment records

that have a U.S. point. In order that U.S. air carriers not be placed

at a competitive disadvantage because of data disclosure

incompatibility, the Department, in its notice of proposed rulemaking,

proposed to continue to restrict availability of nonstop segment and

on-flight market data for segments involving no U.S. points for three

years. For example, individual U.S. carrier data between two foreign

airports would be held confidential for three years. (On this same

subject, American Airlines argued for expanded reporting by foreign

carriers, including disclosure of `behind' and `beyond' totals for

reportable `on-flight' traffic.) With respect to FedEx's concerns about

flawed data, the timely use and scrutiny of these data by industry

practitioners, once they are removed from the veil of confidentiality,

can be expected to have a positive effect on the quality of data filed.

(2) Reporting of Capacity Data by Foreign Air Carriers

ACI-NA, TWA, United, and USAir explicitly supported the collection

of minimal capacity data from foreign carriers and no commenter

objected to the collection of these data. Significantly, Royal

Jordanian, the only foreign carrier to comment, did not oppose the

collection. As discussed under (4) Other Subjects, American suggested

that we require expanded reporting by foreign carriers including

disclosure of ``behind'' and ``beyond'' totals for reportable on-flight

traffic. (Foreign carriers currently do file ``beyond'' U.S. data if

the market includes a U.S. point. For example, Japan Airlines reports

Los Angeles-Sao Paulo operations.) In supporting our proposal, TWA

stated that it is not unreasonable to require two additional data items

from foreign carriers and that, even with the new items, the burden

placed on foreign carriers will be no worse than the burden placed on

U.S. carriers by foreign governments. Similarly, United emphasized the

fact that our proposal removes a discriminatory aspect of the previous

rule that imposed a greater burden on U.S. carriers than on their

foreign competitors. Total capacity, both U.S. and foreign, is

important to analyze adequacy of service in a given market. We will,

therefore, adopt the proposal that foreign carriers report both

available seats and available payload weight.

(3) Reduction of Data Reporting by Class of Service by U.S. Carriers

Only United and USAir explicitly supported the reduction of data

reporting by class of service by U.S. carriers. As mentioned above,

American argued for expanded reporting by foreign carriers, saying that

little cost is incurred by complying with the existing

[[Page 6717]]

requirement to report passenger traffic and revenue by class of service

while the reprogramming of data processing systems would impose an

immediate burden. TWA did not believe that the Department's proposal

would reduce reporting burden and did believe that it would deprive

both the Department and the carriers of important information. The

carrier suggested either requiring foreign carriers to report class of

service information, restricting availability of the data only to those

U.S. carriers that report it, or, in the extreme, collecting it and

releasing it after six months despite foreign carriers' failure to

provide similar information.

We are adopting our proposal to reduce the amount of data currently

reported by the large Group III U.S. carriers by no longer requiring

these carriers to report data by cabin configuration. In the NPRM, the

Department stated that the proposal to reduce the number of data items

would reduce the reporting burden on U.S. air carriers while providing

for data comparability among all reporting carriers. Although American

considered it unfortunate that we proposed to eliminate this level of

detail and TWA stated that these data were very important, we find that

the resulting comparability in reported data among all competing U.S.

and foreign carriers with regard to this specific database outweighs

the concerns raised by American and TWA. Moreover, since we find that

the earlier release of data will be procompetitive, it is important, at

the same time, to ensure that no carriers are adversely affected by a

continuing requirement to report more detailed data than their

competitors.

With regard to the Department's statement in the NPRM that the

proposal to reduce the number of data items would reduce the reporting

burden on U.S. air carriers, we have revised our position and we now

acknowledge that American and TWA correctly pointed out that the

proposal may produce an initial reporting burden. These carriers'

comments have led us to assume that the reduction of the number of data

elements may require some changes to computer programs that extract,

process, and format the data for submission to the Department. We

recognize that the impact of these changes will vary among airlines.

However, no commenters (including American and TWA) submitted data that

would help us to assess this burden. Our initial presumption is that

changes to programs that involve relatively simple functions, such as

data extraction and formatting, would not impose a significant burden.

However, even if the required changes were significant, they would be

one-time changes that would affect only the initial implementation.

Over the long term, the reduced reporting requirements should lessen

the total burden.

(4) Other Subjects

The commenters raised a number of other issues not directly

relating to proposals made in the NPRM. These issues go beyond the

scope of the current rulemaking, although there may be merit to some of

them. With these issues in mind, we will continue to assess the quality

of T-100 data received and ways to improve them. However, no action is

being taken on the following subjects in this rulemaking.

FedEx asserted that the international air cargo data collected

through the T-100 system is so severely flawed and unfair to U.S.

carriers that the system should be abandoned. It suggested that the

Department should seriously consider extending the exemption for cargo

that presently covers domestic operations to the international sector.

FedEx was specifically concerned about the reporting and publication of

U.S. carrier Fifth Freedom data when similar data from foreign carriers

is not collected or published. (American reflected this same concern

when it requested expanded reporting by foreign carriers, including

disclosure of ``behind'' and ``beyond'' totals for reportable ``on-

flight'' data.) FedEx pointed out a similar data incompatibility that

arises among vendors of international freight services when one company

carries the freight on its own flights for the entire trip while

another company (for example) carries the freight on its own flight(s)

on the domestic part of the trip, but serves only as a freight

forwarder, shipping its cargo on another carrier's flight(s), on the

foreign part of the trip. FedEx also complained that the T-100 system

only shows on-flight movements, so that any change in flight numbers

results in either a double-counting problem (for U.S. carriers that

transfer freight) or a gap in data (for freight moved off of a foreign

carrier's flight originating in the U.S. onto a flight the does not

touch the U.S.). The carrier noted that the on-flight market data only

show where traffic is enplaned and deplaned, rather than its true

origin. American urged the Department to require the same level of

reporting from the foreign airlines as we require from U.S. carriers.

Specifically, American suggested that we require expanded reporting by

foreign carriers to disclose information on the ``behind'' and

``beyond'' totals for reportable on-flight traffic. Alternatively,

American suggested that we create an enhanced origin and destination

survey in which both U.S. and foreign carriers would be required to

submit comparable data.

On another issue, ACI-NA urged the Department to require that

commuter carriers operating aircraft with 19 or more seats file

international data. They pointed out that no data are currently

available on commuter services in transborder Canadian and Mexican

markets and in U.S.-Caribbean markets, which are growing in importance.

The Department recognizes the importance of these markets and the lack

of available data. However, since the scope of this rulemaking applies

only to large air carriers, the Department cannot apply these

requirements to the commuter airline industry in this proceeding.

Nevertheless, we will continue to monitor the need for and value of the

data and will propose the necessary changes to reporting requirements

that are needed to meet our analytical goals.

ACI-NA also urged the Department to add a requirement that airlines

provide data on the citizen/alien breakout of their passengers. In

support, they pointed out that the nationality data is key to

calculating some of the direct and indirect benefits from foreign

tourists and business travelers. They noted the precarious financial

situation involving programs at the Department of Commerce, where the

I-92 data showing passenger nationality are now produced, might have an

impact on the currently available data. The timing of this rulemaking

and the lack of resolution with regard to the future of the I-92 data,

makes it impractical to consider the nationality issue as part of this

rulemaking. Depending upon further developments with I-92 data, we may

need to reconsider the matter.

TWA noted that the Department has not finalized its proposal of

October 23, 1995, that U.S. carriers that are code sharing with foreign

carriers be required to report both for the ticketing and operating

carriers for code share traffic in their Origin and Destination

reports. TWA urged the Department to act expeditiously to implement the

new reporting requirements. This is beyond the scope of this

rulemaking.

Regulatory Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action

under section 3(f) of Executive Order 12866, and therefore it was not

reviewed by the

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Office of Management and Budget. The Department has placed a regulatory

evaluation that examines the estimated costs and effects of the rule in

the docket.

The rule is not considered significant under the regulatory

policies and procedures of the Department of Transportation (44 FR

11034), because it does not change Departmental policy concerning

aviation information collection.

The economic impact of this regulation is insignificant. The change

in confidentiality restriction has no impact at all on the reporting

burden of the carriers. For large Group III U.S. air carriers, the

changes in requirements for reporting passenger and capacity data will

result in an initial burden for programming changes, but these changes

are minor and involve one-time costs. Over the long term, these changes

will reduce the reporting burden for these air carriers by

approximately 96 hours annually.

On the other hand, the foreign air carriers will incur an initial

and annual increase in reporting burden. However, the Department does

not believe that the increased reporting burden will be significant or

onerous because this regulation adds only two capacity data items,

which are readily available from the carriers'' computerized data files

or other easily accessible reference documents. In order to quantify

broadly the increased burden, the Department assumed that each of the

176 foreign air carriers would submit two new data items each month and

that the process of collecting and transmitting the data would take no

more than one hour each month. The resulting hourly burden would not

exceed 12 hours on an annual basis for any foreign air carrier, and the

resulting total hourly burden on an annual basis for all the foreign

air carriers as a group would be 2,112 hours. For all air carriers,

this would be a net burden of 2,016 hours annually or $20,966 based on

an estimated industry salary rate of about $10.40 an hour. (See 60 FR

61478, November 30, 1995.)

The benefits to the public, the industry, and the Department of

accurate capacity data reported on a reliable and consistent basis,

although unquantifiable, outweigh the limited increase in reporting

burden and the small increase in cost.

Executive Order 12612

This rule has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612 (``Federalism'') and DOT

has determined the proposed rule does not have sufficient federalism

implications to warrant the preparation of a Federalism Assessment.

Regulatory Flexibility Act

I certify this rule will not have a significant economic impact on

a substantial number of small entities. The amendments would affect

only large U.S. certificated air carriers and foreign air carriers with

large certificated carriers defined as air carriers holding a

certificate issued under 49 U.S.C. 41102, as amended, and that operate

aircraft designed to have a maximum passenger capacity of more than 60

seats or a maximum payload capacity of more than 18,000 pounds or that

conduct international operations.

Paperwork Reduction Act

The reporting and recordkeeping requirement associated with this

rule is being sent to the Office of Management and Budget for approval

in accordance with The Paperwork Reduction Act of 1995 (PL 104-113)

under OMB NO: 2139-0040, formerly OMB NO: 2138-0040; Administration:

Office of the Secretary; Title: T-100 International Data; Need for

Information: Passenger and Capacity Information for Aviation Planning

and Regulation; Proposed Use of Information: Electronic Dissemination

to Transportation Planners and Analysts; Frequency: Monthly; Burden

Estimate: 2,016 annual hours; Average Burden Hours per Respondent: 12

annual hours; Estimated Number of Respondents: 8 Air Carriers and 176

Foreign Air Carriers; For Further Information Contact: IRM Strategies

Division, M-32, Office of the Secretary of Transportation, 400 Seventh

Street, SW., Washington, DC 20590-0001, (202) 366-4735. Persons are not

required to respond to a collection of information unless it displays a

currently valid OMB control number. This final rule contains

information collection requirements that have been approved under OMB

No. 2138-0040 and that expire on October 31, 1997.

Regulation Identifier Number

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number 2105-AC34 contained in

the heading of this document can be used to cross reference this action

with the Unified Agenda.

List of Subjects in 14 CFR Parts 217 and 241

Air carriers, Reporting and recordkeeping requirements.

Accordingly, the Department of Transportation amends 14 CFR Chapter

II as follows:

PART 217--[AMENDED]

1. The authority for part 217 continues to read as follows:

Authority: 49 U.S.C. 329 and chapters 401, 413, 417.

2. In Sec. 217.5, paragraphs (b)(12) and (b)(13) are added to read

as follows:

Sec. 217.5 Data collected (data elements).

* * * * *

(b) * * *

(12) Available capacity-payload (Code 270). The available capacity

is collected in kilograms. This figure shall reflect the available load

(see load, available in 14 CFR part 241 Section 03) or total available

capacity for passengers, mail and freight applicable to the aircraft

with which each flight stage is performed.

(13) Available seats (Code 310). The number of seats available for

sale. This figure reflects the actual number of seats available,

excluding those blocked for safety or operational reasons. Report the

total available seats in item 310.

PART 241--[AMENDED]

1. The authority for part 241 continues to read as follows:

Authority: 49 U.S.C. 329 and chapters 401, 411, 417.

2. In Sec. 19-5 paragraphs (c) (7), (8), and (18) are revised to

read as follows:

* * * * *

Section 19 * * *

Sec. 19-5 Air Transport Traffic and Capacity Elements

* * * * *

(c) * * *

(7) 110 Revenue passengers enplaned. The total number of revenue

passengers enplaned at the origin point of a flight, boarding the

flight for the first time; an unduplicated count of passengers in a

market. Under the T-100 system of reporting, these enplaned passengers

are the sum of the passengers in the individual on-flight markets.

Report only the total revenue passengers enplaned in item 110. For all

air carriers and all entities, item 110 revenue passengers enplaned is

reported on Form 41 Schedule T-100 in column C-1, as follows:

[[Page 6719]]

------------------------------------------------------------------------

All carrier groups and

Col. entities

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C-1.................... 110.............. Revenue passengers enplaned.

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(8) 130 Revenue passengers transported. The total number of revenue

passengers transported over single flight stage, including those

already on board the aircraft from a previous flight stage. Report only

the total revenue passengers transported in item 130. For all air

carriers and all entities, item 130 revenue passengers transported is

reported on Form 41 Schedule T-100 in Column B-7, as follows:

------------------------------------------------------------------------

All carrier groups and

Col. entities

------------------------------------------------------------------------

B-7.................... 130.............. Revenue passengers

transported.

------------------------------------------------------------------------

* * * * *

(18) 310 Available seats. The number of seats available for sale.

This figure reflects the actual number of seats available, excluding

those blocked for safety or operational reasons. Report the total

available seats in item 310. For all air carriers and all entities,

item 310 available seats, total is reported on Form 41 Schedule T-100

in column B-4, as follows.

------------------------------------------------------------------------

All carrier groups and

Col. entities

------------------------------------------------------------------------

B-4.................... 310.............. Available seats, total.

------------------------------------------------------------------------

* * * * *

3. In Section 19-6 paragraph (b) introductory text is revised to

read as follows:

Section 19-6 Public Disclosure of Traffic Data

* * * * *

(b) Detailed international on-flight market and nonstop segment

data in Schedule T-100 and Schedule T-100(f) reports shall be publicly

available immediately following the Department's determination that the

database is complete, but no earlier than six months after the date of

the data. Data for on-flight markets and nonstop segments involving no

U.S. points shall not be made publicly available for three years.

Industry and carrier summary data may be made public before the end of

six months or the end of three years, as applicable, provided there are

three or more carriers in the summary data disclosed. The Department

may, at any time, publish international summary statistics without

carrier detail. Further, the Department may release nonstop segment and

on-flight market detail data by carrier before the end of the

confidentiality periods as follows:

* * * * *

Issued in Washington, DC on February 6, 1997.

Charles A. Hunnicutt,

Assistant Secretary for Aviation and International Affairs.

[FR Doc. 97-3576 Filed 2-12-97; 8:45 am]

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