Biden's quick moves on travel policy may signal more aviation regulation

President Joe Biden quickly indicated that his administration would take a more hands-on approach to managing air travel than the Trump administration
President Joe Biden quickly indicated that his administration would take a more hands-on approach to managing air travel than the Trump administration Photo Credit: Mark Van Scyoc/

With his Day Two executive order mandating masks in airports and on planes, President Joe Biden quickly indicated that his administration would take a more hands-on approach to managing air travel than the Trump administration, at least as it relates to the Covid-19 pandemic.

But as newly confirmed DOT secretary Pete Buttigieg settles into office, aviation industry stakeholders will be watching closely to see the broader tone his transportation department will take toward regulation.

So far, consumer advocates could have reason to feel bullish. Even before Buttigieg's Feb. 2 confirmation, the DOT said it would examine whether the new American-JetBlue Northeast Alliance, which was approved in the waning days of the Trump administration, should be subject to a second, more public, review.

The partnership has drawn formal complaints from other airlines as well as consumer advocates, who claim that the tie-up could reduce competition in the Boston and New York/New Jersey markets.

During his confirmation hearing before the Senate Transportation Committee, Buttigieg committed, without providing specificity, to mobilizing the authorities and processes that push airline competition.

The Biden DOT has also exercised its option to withdraw two regulatory decisions made by the Trump DOT in its final days that had not yet been published in the Federal Register.

One of those actions would loosen the tarmac delay rule. Under that 2011 rule, airlines pay fines if they allow domestic flights to remain on the tarmac for more than three hours without giving passengers the option to deplane. The revised rule would loosen when that three-hour clock starts ticking in certain situations.

The other action would end a federal review of the airline practice of placing restrictions on the display of flight information on OTAs and metasearch sites. 

That review process was begun during the final months of the Obama administration at the urging of those sites as well as consumer advocates and some members of Congress, who argued for transparency. In ending the review in December, the DOT said that it does not think its involvement is necessary to prevent deceptive or anti-competitive practices by airlines.

The Biden DOT's halting of those two actions doesn't necessarily mean they won't eventually move forward. The moves were part of a broader directive from Biden chief of staff Ron Klain for the heads of all executive departments to immediately withdraw all final rule-making documents that had not yet appeared in the Federal Register, which is a common practice at the start of a new administration. Doing so gives new appointees the opportunity to review the pending rules.

"Anybody who says the fact that the rule is not published means it is dead, is reading into it," said Mark Dombroff, who practices aviation law as a partner at the Northern Virginia-based office of Fox Rothschild.

But Dombroff said he does expect the DOT under Buttigieg to approach regulations differently than the DOT of Trump's department secretary, Elaine Chao. 

The Chao DOT approached decisions regarding regulatory development under the umbrella of a Trump administration policy to remove two regulations for every one that was added. Biden, said Dombroff, won't view regulations this way. But Biden also has made no blanket pledges about adding regulation.

"I'd like to believe that, insofar as this administration looks at the regulatory universe, they don't come to it with 'we've got to regulate more,'" Dombroff said. "Rather, one would hope it is more substantively driven."

As Buttigieg takes over the DOT, he inherits a number of Congressional mandates that are past due to be completed by the department or its subsidiary agency, the FAA.

Perhaps most notable is a mandate for the FAA to set minimum standards for airplane seat sizes and the space between rows, with those standards to be based on what is "necessary for the safety and health of passengers."

As part of the 2018 FAA reauthorization, Congress required the agency to set those standards by October 2019.

Just hours after Buttigieg's confirmation, Rep. Steve Cohen (D-Tenn.), who championed that legislation, wrote a letter to FAA administrator Stephen Dickson requesting an explanation for the delay.

Also overdue is a mandate imposed by Congress in 2016 that the DOT develop rules requiring airlines to promptly refund checked baggage fees to passengers in cases of late bag delivery.

And the DOT and FAA also haven't complied with a mandate to increase the minimum amount of rest airlines must give flight attendants between scheduled shifts to 10 hours from the current eight. In 2018, Congress ordered the DOT to write that change into federal code within 30 days. 

"It's a top priority for us with the new administration," said Taylor Garland, spokeswoman for the Association of Flight Attendants union. 

Pushes for quick action from advocates like Cohen and the union are likely to be countered by calls for caution by airlines. In a Jan. 18 policy letter to Buttigieg, Nick Calio, CEO of the trade group Airlines for America (A4A), recommended that the DOT use the Aviation Consumer Protection Advisory Committee as the primary vehicle for analysis of data and evidence when new regulations are being considered.

The four-person committee includes A4A general counsel Patricia Vercelli as the representative for the airline industry, and it also includes a representative of airports and of state government. But consumer advocates have chafed that Frances Smith, the member appointed by Chao to represent consumers, is an adjunct fellow at the libertarian Competitive Enterprise Institute think tank.

One step that Buttigieg could take quickly, argued Kurt Ebenhoch, executive director of Travel Fairness Now, is to replace Smith with someone who has a more conventional consumer advocacy pedigree. 


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