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Federal Register / Vol. 86, No. 137 / Wednesday, July 21, 2021 / Proposed Rules
carrier on the second itinerary. Are there other circumstances in which not requiring carriers to issue a refund of bag fees if the bag did not arrive at the final destination by the applicable deadline would be appropriate? Instead of specifying particular circumstances in which airlines are not required to issue a refund for a lengthy delay in delivering the bag, would a general exception for checked baggage delays that were a result of a passengers negligence be preferable? The Department seeks comment on whether such exceptions are reasonable and, if so, what level of proof, if any, carriers should be required to provide to show that a bag delay was caused by the passengers negligent action or inaction.
3. Methodology for Measuring Length of Delay The ANPRM
While the Department did not specifically ask for comment on when the clock starts for purposes of measuring the length of the delay for delivering checked baggage, the Department did seek comment on how to determine when the clock stops running, i.e., bags have been delivered to the passenger.

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Comments Received Comments received in response to the ANPRM indicate that many airlines prefer an interpretation that considers the bag to be delivered to the passenger i.e., stops the clock when the bag is physically present at the intended destination airport and the passenger has been notified that the bag is available for pick up. Several airlines oppose stopping the clock when the bag is transported to an offsite location and handed over to the passenger, citing difficulties arising when the offsite location is far away from the airport, when the passengers are in control of the delivery time and may choose to receive the bag at a later time e.g., postponing the handover of the bag until the next morning when the bag could have been delivered during the night before, or when carriers have less control over delivery services provided by vendors in international operations.
A few airlines supported stopping the clock when the bag is transported to an offsite location even if the passenger does not have physical possession of the bag and has not yet been notified. ASTA
commented that the clock should stop when passengers have physical possession of delayed bags because the disruption caused by the delay continues until passengers are reunited with their bags. Consumers Union stated
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that the clock should stop when the bag is physically handed over to the passengers or when the bag has arrived at the place where the passenger has asked the bag to be delivered.
Consumers Union specifically opposed making the destination airport the designated delivery place because it believes that requiring the passengers to make another trip to the airport would further inconvenience passengers.
With regard to how to measure the start of the delay for delivering checked baggage, airline commenters stated that the Department should not use the published scheduled arrival time of the flight. Instead, airlines support an approach of starting the clock at the aircrafts block-in time, meaning the time when a flight has parked at the arrival gate or another disembarkation location and blocks were placed in front of its wheels.
DOT Response To calculate the length of delay that a passenger experiences in receiving a checked bag, it is necessary to specify the start and end of the delay. The provision at 49 U.S.C. 41704, note states that the clock starts at the arrival of a flight. The statute does not, however, specify what constitutes the arrival of a flight. The Department generally agrees with airlines that using the actual arrival time of the last flight segment on which a passenger traveled as opposed to the scheduled arrival time of that flight is a reasonable approach.
However, rather than using the aircrafts block-in time, the Department proposes that the start of the delay be based on the time that the passenger reached his or her destination and was given the opportunity to deplane from the last flight segment. Airlines already track this information for the purpose of ensuring compliance with the Departments tarmac delay rule in 14
CFR part 259.
As to when the Department would consider bags to be delivered to the passenger, the Department is not persuaded by comments advocating for the clock to stop when a passenger is reunited with the delayed bag. This approach would not be workable as passengers have significant control over when they would reunite with the bags.
For example, a passenger may be notified that a bag is ready for pick-up at the airport in the morning but choose to not pick up the bag until that evening or the next day; or a passenger may request hotel delivery but be away from the hotel during the day and only receive the bag in the evening. Carriers facing the hurdles of deferred baggage handover time are less likely to make
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the mandated deadlines and would be required to provide refunds despite the bags being available to passengers for pickup at an earlier time.
Pursuant to the proposal in this NPRM, at the carriers discretion, a delayed bag would be considered delivered 1 when the bag is transported to a location agreed to by the passenger and the carrier, regardless of whether the passenger is present to take possession of the bag; 2 when the bag has arrived at the destination airport, is available for pickup, and the carrier has provided notice to the passenger of the location and availability of the bag for pick-up; or 3
if the carrier offers delivery service and the passenger accepts such service, when the bag has arrived at the destination airport, and the carrier has provided notice to the passenger that the bag has arrived and will be delivered to the passenger. Given the three options, carriers would be able to coordinate with each passenger regarding whether the passenger prefers to retrieve the bag at the airport or, if the carrier offers the service, to have the bag delivered to the passenger at a desired location. This approach provides airlines the ability, with less financial risk, to work with the passengers to transfer the bags to the most convenient location in the most efficient manner to the passenger. At the same time, these options would eliminate handover time being postponed by the passenger while the clock is running. If a carrier opts to stop the clock at the time the carrier provides notice that the delayed bag is available at the destination airport for pick-up by the passenger or delivery if the carrier offers this service and passenger chooses it, the carrier would have the burden of proving that it provided notice to the passenger prior to the applicable deadline. This approach would also benefit passengers by increasing the likelihood carriers would provide passengers the option of having the delayed bag delivered to them.
A carrier that already has a system in place to notify passengers of the status of their baggage may choose to have the clock stop when a delayed bag arrives at the airport and the notification has been provided to the passenger.
Alternatively, a carrier that does not have a notification system in place and is reluctant to invest in such a system may choose to have the clock stop at the time the bag was transported to an agreed-upon location. Allowing carriers to choose among these options minimizes carriers cost, which otherwise may be passed on to the passengers through the increase of ticket prices or baggage fees. The Department
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