____________ FILED July 29, 2024 No. 24-60231 Lyle W. Cayce ____________ Clerk Airlines for America; Alaska Airlines, Incorporated; American Airlines, Incorporated; Delta Air Lines, Incorporated; Hawaiian Airlines, Incorporated; Jetblue Airways Corporation; United Airlines, Incorporated; National Air Carrier Association; International Air Transport Association,

Petitioners,

versus Department of Transportation,

Respondent. ______________________________

Appeal from the Department of Transportation, National Transportation Safety Board Agency No. 89 Fed. Reg. 34,620 ______________________________ Before Haynes, Willett, and Duncan, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: Several airlines and airline associations seek a stay pending review of a recent Department of Transportation (“DOT”) Rule that regulates how airlines disclose fees to consumers during the booking process. Finding the No. 24-60231

Rule likely exceeds DOT’s authority and will irreparably harm airlines, we GRANT the requested stay and EXPEDITE the petition for review.* I. On April 30, 2024, DOT issued a Rule regulating how airlines communicate certain fees to customers during the booking process. See Enhancing Transparency of Airline Ancillary Service Fees, 89 Fed. Reg. 34,620 (Apr. 30, 2024) [“Rule”]. The Rule dictates when and how airlines must disclose “ancillary service fees”—generally speaking, baggage or change fees.1 The goal is to streamline booking and protect consumers from surprise charges. See id. at 34,620. DOT estimates the Rule will create net societal benefits between $30.3 million and $253.5 million and save consumers $543 million per year. Id. at 34,668–69. The Rule took effect July 1, 2024. Airlines must provide fee data to third-party ticket agents by October 30, 2024, and their own platforms must comply with the Rule by April 30, 2025. Id. at 34,667. On May 31, 2024, various airlines and airline associations (“Petitioners”) asked DOT to stay the Rule while it sought review. When DOT declined, Petitioners challenged the Rule in our court and sought a stay pending review under 5 U.S.C. § 705. Petitioners argue the Rule (1) exceeds DOT’s authority; (2) is arbitrary and capricious; and (3) wrongly bypassed notice and comment.

_____________________ * Judge Haynes would grant expedited appeal. With respect to the request for a stay of the Rule, as a member of the motions panel, she would grant a temporary administrative stay for a brief period of time and defer the question of the stay pending appeal to the oral argument merits panel which would receive this case. 1 See id. at 34,621 (defining ancillary services as “(1) transporting a first checked bag, second checked bag, and carry-on bag; and (2) changing or canceling a reservation”); see also 14 C.F.R. § 399.85 (codifying requirements).

2 No. 24-60231

II. We evaluate a stay request by considering: (1) [W]hether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public in