[Federal Register Volume 68, Number 130 (Tuesday, July 8, 2003)]
[Rules and Regulations]
[Pages 40488-40498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17248]



[[Page 40488]]

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

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 382

[Docket No. OST-2003-11473]
RIN 2105-ADO4


Reporting Requirements for Disability-Related Complaints

AGENCY: Office of the Secretary, Department of Transportation (DOT).

ACTION: Final rule.

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

SUMMARY: This document requires most certificated U.S. air carriers and 
foreign air carriers operating to and from the U.S. that conduct 
passenger-carrying service to record and categorize complaints that 
they receive alleging inadequate accessibility or discrimination on the 
basis of disability according to the type of disability and nature of 
complaint, prepare a summary report of those complaints, submit the 
report annually to the Department of Transportation's (Department or 
DOT) Aviation Consumer Protection Division, and retain copies of 
correspondence and record of action taken on disability-related 
complaints for three years.

DATES: This rule is effective on August 7, 2003.

FOR FURTHER INFORMATION CONTACT: Blane A. Workie, Office of the General 
Counsel, 400 7th Street, SW., Room 4116, Washington, DC 20590, (202) 
366-9342 (voice), (202) 366-7152 (Fax) or [email protected] (E-
mail). Arrangements to receive the rule in an alternative format may be 
made by contacting the above-named individual.

SUPPLEMENTARY INFORMATION:

Background

    The Air Carrier Access Act (ACAA, 49 U.S.C. 41705) prohibits 
discriminatory treatment of persons with disabilities in air 
transportation. The Wendell H. Ford Aviation Investment and Reform Act 
for the 21st Century (``AIR-21''; Public Law 106-181) signed into law 
on April 5, 2000, extended the requirements of the Air Carrier Access 
Act to foreign air carriers and required, among other things, that the 
Secretary of Transportation ``regularly review all complaints received 
by air carriers alleging discrimination on the basis of disability'' 
and ``report annually to Congress on the results of such review.''
    On February 14, 2002, the Department published a Notice of Proposed 
Rulemaking (NPRM) to implement the requirement of AIR-21 (67 FR 6892). 
The notice stated that the only practical way the Department can 
implement the statutory requirement to review disability complaints 
received by air carriers and report annually to Congress on the results 
of the review is by requiring carriers to record disability-related 
complaint data and submit it to the Department. It proposed to require 
an annual report on the disability-related incidents communicated by 
passengers to U.S. certificated and foreign air carriers involving 
flights to, from or between U.S. points. Air carriers would be required 
to categorize complaints that they receive into specific groups, and 
would be required to retain for three years copies of the complaints 
and the records of the action taken on the complaints. The proposed 
reporting regulations would not apply to air taxis, commuter air 
carriers, small certificated air carriers and foreign air carriers that 
operate strictly small aircraft (60 seats or less). The proposed 
reporting requirements would apply to all operations of carriers 
utilizing a mixed fleet (both large and small aircraft).
    The NPRM had six main components on which we specifically solicited 
comment: (1) The scope/coverage of the rule; (2) the definition of a 
disability-related complaint; (3) the categories of data collected; (4) 
the frequency of data reporting; (5) the procedures for submission of 
data; and (6) the period of record retention. The comment period closed 
on June 4, 2002. The DOT received eleven comments, three from 
disability community organizations (Eastern Paralyzed Veterans 
Association, Epilepsy Foundation, Paralyzed Veterans of America), four 
from foreign air carriers (British Airways, Iberia Lineas Aereas de 
Espana, Crossair Ltd. d/b/a Swiss, Virgin Atlantic Airways), one from a 
U.S. carrier (Atlantic Southeast Airlines) and three from industry 
associations representing airlines (Air Transport Association of 
America, International Air Transport Association, Regional Airline 
Association). Generally, the disability community organizations 
supported the rule while carriers and industry representatives either 
opposed the rule or found the rule to be overly broad.

Discussion of Comments

1. Entities Covered Under the Rule

    Proposed Rule: Under the proposed rule, certificated U.S. carriers 
that conduct passenger-carrying service with at least one aircraft 
having a designed seating capacity of more than 60 passengers and 
foreign air carriers operating to and from the United States that 
conduct passenger-carrying service with at least one aircraft having a 
designed seating capacity of more than 60 passengers would be required 
to record, categorize and submit disability-related complaint data.
    Comments: The disability community organizations commented that the 
requirement to record, categorize and submit disability-related 
complaint data should also apply to carriers conducting passenger-
carrying service on smaller aircraft. More specifically, the Eastern 
Paralyzed Veterans Association (EPVA) commented that the rule should be 
expanded to cover all carriers who operate aircraft with 30 or more 
passenger seats, while the Epilepsy Foundation and Paralyzed Veterans 
of America (PVA) asserted that the rule should be expanded to include 
all carriers operating aircraft with 19 or more passenger seats. The 
disability community organizations believe that expansion of the rule 
to cover smaller aircraft is appropriate as small aircraft provide the 
only means of air travel available for certain areas of the United 
States.
    The Regional Airline Association (RAA) contends that the scope of 
the rule should not be expanded and agrees with the Department's 
proposal excluding commuter carriers and certificated carriers 
operating only aircraft with 60 or fewer seats from the reporting 
requirement. RAA states that these entities carry a small percentage of 
passenger traffic but that the cost of complying with the rule would be 
enormous, as numerous regional air carriers do not have the systems or 
software to record, categorize, and submit disability-related complaint 
data.
    All of the foreign air carriers that commented on the proposal 
oppose its application to foreign airlines. Several foreign air 
carriers contend that AIR-21 does not require that the Department's 
report to Congress include complaints received by ``foreign air 
carriers'' since AIR-21 states that ``all complaints received by air 
carriers'' be reported to Congress and the term ``foreign air carrier'' 
is not normally encompassed within the term ``air carrier.'' The 
International Air Transport Association (IATA), British Airways, Iberia 
Lineas Aereas de Espana (Iberia), Crossair Ltd. d/b/a Swiss (Swiss), 
Virgin Atlantic Airways (Virgin) also argue that the proposed rule 
would impose an undue burden on foreign airlines. IATA and Virgin 
further assert that the proposal raises extraterritoriality concerns. 
IATA believes that it is unclear whether the proposed rule would 
require complaints relating to events outside the U.S. be reported to 
the Department. Another

[[Page 40489]]

concern raised by British Airways is that the proposed rule would lead 
to unanticipated negative consequences such as other countries imposing 
comparable reporting requirements on all carriers serving those 
countries.
    DOT Response: After fully considering the disability community 
organizations' comments that the rule should be extended to cover 
carriers that operate aircraft with 60 or fewer seats, the Department 
maintains that it is reasonable to apply the rule only to carriers 
operating larger than 60-seat aircraft. In choosing to exclude from the 
reporting requirement commuter carriers and certificated carriers 
operating only ``small aircraft'' (aircraft with 60 or fewer seats), 
the Department has tried to balance the need to receive good data 
regarding accessibility in air travel and the cost of compliance to 
carriers operating only aircraft with less than 60 seats. Carriers 
operating only aircraft with 60 or fewer seats are classified as small 
under the OST aviation ``small business'' standard in 14 CFR 399.73 and 
the Regulatory Flexibility Act encourages agencies to consider flexible 
approaches to the regulation of small businesses and other small 
entities that take into account their special needs and problems. As 
explained by RAA in its comments, the cost of complying with the 
reporting requirements would be prohibitive for most of its 58 member 
airlines. Further, the vast majority of passengers are carried on 
aircraft with more than 60 seats so the Department would still be able 
to receive high-quality data without extending coverage of the proposal 
to carriers operating only small aircraft.
    The Department is also not persuaded by comments that there is no 
statutory basis for the Department to impose the new reporting 
requirements on non-U.S. carriers. AIR-21, which extended the Air 
Carrier Access Act (ACAA) to foreign air carriers, provides in the 
general applicability part of the section on discrimination against 
individuals with disabilities that `` * * * an air carrier, including 
(subject to section 40105(b)) any foreign air carrier * * *'' may not 
discriminate against a person in air transportation on the basis of 
disability. By defining an air carrier in the section on discrimination 
against disabled individuals to include any foreign air carrier, 
Congress demonstrated its intention for the ACAA requirements that 
apply to U.S. carriers to also apply to foreign air carriers. As a 
result, the Department believes that the requirement that it 
``regularly review all complaints received by air carriers alleging 
discrimination on the basis of disability'' and ``report annually to 
Congress on the results of such review'' is a requirement for the 
Department to review not only complaints received by U.S. carriers but 
also complaints received by foreign carriers. In addition, the 
Department's general statutory authority for imposing reporting 
requirements under 49 U.S.C. 41708(b) applies to foreign air carriers.
    With regard to issues of extraterritoriality, IATA and several 
foreign carriers raise this issue but do not fully explain their 
concerns. Although the rule would require complaints relating to events 
outside the U.S. be reported to the Department, most of the provisions 
of 14 CFR part 382 (the Department's rule implementing the ACAA) have 
applied extraterritorially to U.S. carriers for years and the only new 
feature about this proposal is its extraterritorial application to 
foreign carriers. As for cost issues raised by IATA and foreign air 
carriers, the Department realizes that this is the first time that 
reporting of disability-related complaints has been required and that 
there will be a cost to creating new databases but we expect that these 
costs would be minimal. Neither IATA nor the foreign air carriers 
provide data disputing the cost estimates provided by the Department 
and simply state that the reporting burden on foreign air carriers 
would be unnecessarily burdensome. Having considered all of these 
comments, the Department is not persuaded that the rule should not 
apply to foreign air carriers.

2. Definition of a Disability-Related Complaint

    Proposed Rule: The proposed rule defined a disability-related 
complaint as a specific expression of dissatisfaction received from, or 
submitted on behalf of, an individual with a disability against a 
covered air carrier or foreign air carrier concerning a difficulty 
associated with the person's disability, which the person experienced 
when using or attempting to use the carrier's services. It proposed 
that disability-related complaints be recorded and reported without 
regard to the carrier's perception of the validity of the complaint and 
that in circumstances where a flight that is the subject of a 
disability-related complaint was a code-share flight, the carrier that 
receives the complaint from the passenger report the complaint.
    Comments: The vast majority of carriers and industry associations 
representing airlines strongly argued that the definition of a 
disability-related complaint was overly broad because it requires any 
expression of dissatisfaction concerning a disability-related issue be 
recorded and reported as a complaint. They contend that DOT should only 
require complaints received in writing through a specifically 
designated department in the airline be reported. There were also 
arguments made, particularly by ATA and British Airways, that 
complaints that only incidentally address a disability-related issue 
not be reported. Other commenters such as IATA and Virgin insist that 
complaints that are unreasonable or were satisfactorily resolved not be 
reported while ATA recommends that only complaints that relate to a 
service or process required under part 382 be reported as DOT's 
authority is grounded in, and limited to, the Air Carrier Access Act as 
implemented by part 382. Virgin also urges that the complaints that a 
carrier receives as a result of the carrier directly soliciting 
comments and feedback from its passengers be exempted from the 
reporting requirements.
    Further, several carriers and industry associations object to the 
proposal that a complaint received by a carrier from a passenger on a 
code-share partner's service be reported by the carrier that receives 
the complaint. These commenters argue that this requirement will result 
in double reporting as industry experience is that passengers complain 
to both ticketing and operating airlines about a problem on a 
particular flight. Representatives of airlines recommend that only the 
airline that operated the flight and carried the passenger who is 
making a complaint report the complaint. Two disability advocacy 
organizations, EPVA and PVA, while agreeing with the Department's 
proposal that in the case of code-share flights the carrier that 
receives the complaint record it, seem primarily interested in the 
Department creating some means to identify both code share partners.
    DOT Response: The Department does not believe that it is advisable 
to narrow the definition of a disability-related complaint to only 
complaints provided to a designated department in the airline. An 
airline employee can forward a complaint that he or she receives to the 
appropriate office in the airline. However, the Department is persuaded 
by comments from carriers and industry associations that the definition 
of a disability-related complaint is overly broad in other ways and 
needs to be amended. As noted in comments from industry, it would be 
impractical to expect every utterance of dissatisfaction concerning an 
accessibility matter by a passenger to an

[[Page 40490]]

airline employee be captured, recorded and coded for subsequent 
reporting to DOT. As a result, the definition of a disability-related 
complaint has been narrowed and carriers are required to record and 
report only written complaints.
    It should be noted though that the Department believes further 
consideration of a complaint provided in person or over the telephone 
to Complaint Resolution Officials (CROs), specially trained employees 
available to passengers with disabilities whenever the carrier is 
operating flights at an airport, is warranted. The Department may, in a 
future rulemaking, expand the definition of a disability-related 
complaint that must be recorded and reported to include oral complaints 
to a CRO. The Department intends to solicit specific comments on this 
issue from the public in an upcoming Notice of Proposed Rulemaking 
(NPRM) that will propose to amend part 382 and extend its applicability 
to foreign air carriers. In this upcoming NPRM, the Department expects 
to ask about the benefit and/or detriment of broadening the definition 
of a disability-related complaint that must be recorded and reported to 
include oral complaints made to a CRO whenever a carrier is operating. 
At present, only U.S. carriers are required to have a CRO available in 
person or by telephone. This rulemaking has not changed the obligation 
of a U.S. carrier to provide a CRO whenever the carrier is operating 
and to ensure that its CRO provides a written response to a passenger's 
oral or written complaint of alleged violations of part 382.
    With respect to the carriers' and industry associations' arguments 
that the types of complaints covered by the final rule should be 
limited to complaints deemed by the carrier to be reasonable, 
complaints that the carrier is not able to resolve satisfactorily, 
complaints that relate to a service required under part 382, complaints 
that address a disability-related issue as the primary issue and/or 
complaints that are not received as a result of the carrier soliciting 
comments, the Department is also not persuaded. The Department is 
required to report annually to Congress on all complaints received by 
carriers alleging discrimination on the basis of disability not just 
those disability complaints that the carrier deems to be valid or to 
constitute a potential violation of the Department's rule on air travel 
by passengers with disabilities. Limiting the definition of complaints 
as suggested by carriers and industry associations would result in the 
under-reporting of disability complaints in DOT's annual report to 
Congress.
    The Department agrees with industry that a requirement that code-
share complaints be reported by the carrier that receives the complaint 
may result in double reporting since passengers may complain to both 
ticketing and operating airlines about a problem on a particular 
flight. The Department also believes that if it requires only the 
ticketing or operating airline to report the complaint then some 
complaints would go unreported. As a result, the Department is 
requiring that the operating airline report disability-related 
complaints involving the flight itself and services provided on that 
flight and the ticketing airline report all other complaints, 
particularly complaints about the reservation system. The Department 
realizes that there may be situations where it is not clear if a 
particular complaint involves services provided by the operating 
carrier or services provided by the ticketing carrier. If there is 
disagreement between the code-share partners as to which carrier is 
responsible for reporting a particular complaint, the carrier that 
receives the complaint must report it. If both the ticketing and 
operating carrier receive the same complaint and there is no an 
agreement between the two as to which one is ultimately responsible for 
reporting the complaint, then both carriers must report the complaint. 
The final rules also requires that, in a code-share situation, the 
ticketing airline/operating airline must forward to its code share 
partner disability-related complaints it receives involving services 
provided by its code share partner. The Department would not be 
requiring the carrier reporting the complaint to identify its code-
share partner, as requested by the disability community organizations, 
because knowing the identity of the code share partner, while useful, 
serves a limited public interest especially when weighed against the 
cost to carriers of providing this additional information.

3. Categories of Data Collected

    Proposed Rule: The NPRM proposed that carriers use 13 categories to 
identify the nature of a passenger's disability and 12 areas to 
categorize the alleged discrimination or service problems related to 
disability, a system currently being used by the Department's Aviation 
Consumer Protect Division (ACPD). The 13 proposed categories within 
which to classify a passenger's disability are: vision-impaired, 
hearing-impaired, vision- and hearing-impaired, mentally impaired, 
communicable disease, allergies (e.g., food allergies, chemical 
sensitivity), paraplegic, quadriplegic, other wheelchair, oxygen, 
stretcher, other assistive device (cane, respirator, etc.), and other 
disability. The 12 proposed categories within which to classify service 
problems are: refusal to board, refusal to board without an attendant, 
security issues concerning disability, aircraft not accessible, airport 
not accessible, advance-notice dispute, seating accommodation, failure 
to provide adequate or timely assistance, problem with storage/damage/
delay relating to assistive device, service animal problem, 
unsatisfactory information, and ``other.'' Under the proposed rule, a 
contact from a passenger may express more than one complaint and a 
passenger may have more than one disability.
    Comments: British Airways noted that its existing complaint 
categorization system and possibly other carriers' existing 
categorization systems are different from the one proposed by the 
Department. British Airways objects to the Department's requirement 
that the airline industry adopt the ACPD system and suggests that the 
Department develop a system that better reflects current industry 
categorizations systems.
    Other carriers as well as RAA and ATA are opposed to reporting on a 
passenger's specific disability or disabilities and argue that the 13 
categories used to identify the nature of a passenger's disability 
should all be removed. According to these commenters, passengers do not 
always identify their disability and passengers would view questions by 
carriers about a passenger's disability as intrusive and offensive. 
Moreover, industry representatives contend that data gathered from 
reports on the nature of passengers' complaints provide sufficient 
information for the Department to identify potential areas of concern 
and meet the requirements of AIR-21.
    The Department also received comments from industry advocating the 
removal of certain categories used to identify the nature of a 
passenger's disability. Virgin asserts that categories such as 
``allergies'' and ``chemical sensitivity'' are not appropriate 
categories as they are open to interpretation and have definitions that 
change in different territories, while Swiss points out that some 
categories such as ``vision impaired,'' ``hearing impaired,'' 
``allergies'' and ``communicable disease'' are not appropriate 
categories as they are not discernable without passenger disclosure.

[[Page 40491]]

    Unlike commenters from the airline industry, disability community 
organizations do not appear to be troubled by the idea that the rule 
requires carriers to report on a passenger's specific disability. In 
fact, the Epilepsy Foundation remarked that an additional category 
should be created for people with epilepsy or seizure disorder. The 
Epilepsy Foundation explained that it is concerned that the existing 
categories would mask the problems experienced by individuals with 
epilepsy or seizure disorders when flying. Under the proposed 
categories of impairments, people with epilepsy or neurological 
disorders other than paraplegia or quadriplegia would be lumped 
together with the wide array of other conditions not specifically 
listed under the category, ``other.''
    There were also a number of comments requesting that modifications 
be made to the proposed categorization system within which to classify 
service problems. The EPVA and PVA recommend that the category defined 
as ``problem with storage/damage/delay relating to assistive devices'' 
be separated into two categories, ``damage to assistive devices'' and 
``storage and delay of assistive devices.'' PVA explains that damage to 
mobility equipment is a widespread problem that merits its own 
category. Similarly, the Epilepsy Foundation recommends that the 
category titled ``refuse to board'' be separated into two categories, 
refuse to board because no medical certificate and refuse to board 
because of epilepsy or seizure-related concern. The Epilepsy Foundation 
believes that carriers refuse to board people with epilepsy because of 
a lack of a medical certificate or because the individual has a 
disability and having two separate categories for the different reasons 
carriers refuse boarding would make it easier to identify an effective 
solution.
    Comments from the industry differed from comments provided by 
disability community organizations in that carriers and their 
representatives recommend the elimination of categories rather than the 
addition of categories. Swiss and ATA, among others, strongly object to 
carriers having to report about security issues concerning disability, 
since the Transportation Security Administration (TSA) is now 
responsible for screening of passengers and baggage. Carriers also 
object to having to report about airports not being accessible as the 
airports are responsible for ensuring that the facilities are 
accessible. These commenters declare that carriers have little or no 
control over these types of complaints and it is unreasonable to charge 
these complaints against carriers and unfairly taint the airline 
industry. There were also comments from the industry that the category 
``assistive devices'' either be removed as it is unclear or the 
Department give examples of the types of complaints that it would 
classify under this category.
    Another issue raised by Swiss and ATA involves the requirement that 
airlines determine the type of service problem for each disability-
related incident in a given contact (e.g., email, letter) and record 
each of these disability-related problems as separate complaints. Swiss 
contends that this scheme of recording complaints is complicated and 
likely to lead to inconsistencies in categorizations. ATA argues that 
complaints should be coded only once and placed in only one category 
otherwise the overall number of complaints would be inflated and the 
value of reporting would be reduced because of inaccuracy.
    DOT Response: The Department maintains that carriers need to adopt 
the system that the Department's ACPD uses to categorize complaints 
that carriers receive alleging inadequate accessibility or 
discrimination. The ACPD system enables the Department to determine for 
complaints that it receives directly from passengers the service areas 
that generate the most complaints and the groups of individuals with 
disabilities that appear to be experiencing the most problems when 
flying. By having the airline industry adopt the ACPD complaint 
categorization system, the data that carriers report would serve as an 
industry-wide diagnostic and monitoring tool as it would be a mechanism 
for identifying problem areas in the airline industry and gauging the 
industry's progress toward accessibility. Further, carriers do not 
presently have a uniform system of categorizing disability-related 
complaints and whatever system of categorization that is required by 
the Department would undoubtedly result in some carriers having to 
modify their complaint recording system. DOT is also not persuaded by 
the argument that the entire section on the nature of a passenger's 
disability should be removed because of the carriers' belief that they 
would be forced to ask passengers intrusive questions about the nature 
of their disability. The nature of a passenger's disability will likely 
be disclosed in the written complaints sent by the passengers. If the 
passenger does not self-disclose his/her disability, then the carrier 
would simply classify the disability as ``other disability''. Inquiries 
into the nature of passengers' disabilities are not required or 
encouraged by this rule. Similarly, the Department finds unconvincing 
the arguments presented by Virgin and Swiss that categories such as 
allergies and vision-impaired should be removed, as the carriers 
believe these categories are not discernable without passenger 
disclosure. The Department also finds that the 13 categories used by 
the ACPD to identify the passenger's disability is adequate and that 
there is no need to expand the number of categories describing the 
nature of the passenger's disability to include people with epilepsy or 
seizure disorder as suggested by the Epilepsy Foundation.
    With regard to arguments concerning modifications to the categories 
describing alleged discrimination and service problems, the Department 
agrees with carriers that, complaints about services that the carrier 
has no control over need not be reported. However, despite assertions 
to the contrary, carriers are still involved in security and airport 
accessibility at terminals they own, lease, or otherwise control. 
Therefore, the final rule is keeping the categories ``security issues 
concerning disability'' and ``airport not accessible''. Carriers must 
report complaints involving security and/or accessibility at airports 
if they have any control over these services. Carriers do not need to 
report complaints involving security and/or airport accessibility if 
other entities (e.g., TSA or airport authorities) are responsible.
    The Department also agrees with EPVA's and PVA's recommendation to 
change the proposed category of ``assistive devices'' into two separate 
categories, ``damage to assistive devices'' and ``storage and delay of 
assistive devices.'' The Department believes this adjustment would be 
of benefit in determining whether most complaints about assistive 
devices concern damage to the devices or storage and delay problems. 
Further, having two separate categories for complaints concerning 
assistive devices makes it clearer to carriers about the types of 
complaints that would need to be classified under each category. 
However, the Department is not adopting the suggestion by the Epilepsy 
Foundation that the category ``refuse to board'' be divided into two 
separate categories. We believe that the term ``refuse to board'' 
should remain general because there could be many reasons beyond the 
two identified by the Epilepsy Foundation for a carrier to deny 
boarding to a passenger.
    The Department has also considered comments from carriers and 
carrier associations regarding only one complaint being recorded per

[[Page 40492]]

communication. The Department maintains that carriers must treat each 
disability-related problem as a separate incident as there is no reason 
to require a complainant to write separate letters to document multiple 
problems/incidents occurring in connection with one or more flights. 
When DOT receives a written letter alleging more than violation, DOT 
records each separate incident as a complaint. The purpose of the 
report to Congress is not to track the number of letters but rather to 
track the number of complaints alleging inadequate accessibility or 
discrimination in an effort to improve accessibility.

4. Frequency of Data Reporting

    Proposed Rule: Under the NPRM, carriers would submit to the 
Department an annual report summarizing the disability-related 
complaint data. The first report, which would be for complaints 
received by carriers during calendar year 2003, would be submitted on 
January 26, 2004 and all subsequent submissions would be due on the 
last Monday in January and would cover data from the prior year.
    Comments: None of the commenters object to the annual reporting 
system although British Airways objects to the proposed initial filing 
deadline of January 26, 2004 while EPVA and PVA state that the January 
2004 filing deadline is appropriate and advises DOT to incorporate 
penalties for airlines that do not submit timely reports. British 
Airways and IATA argue that the initial filing deadline should be 
deferred to provide carriers an opportunity to develop the necessary 
database system and train its personnel. British Airways would also 
like for the Department to publish a notice 30 days in advance of each 
year's deadline. There were also recommendations from ASA and ATA that 
the Department report the complaint data on a per-enplanement basis 
rather than simply reporting the raw complaint numbers as the raw data 
will be of little use to the public given size and other differences 
among airlines.
    DOT Response: The final rule provides that the initial filing 
deadline is in January 2005 rather than in January 2004 as proposed in 
the NPRM because this final rule is issued on July 8, 2003 and the 
information required to be submitted in January 2005 would cover 
complaints received by carriers during calendar year 2004. The 
Department can assess a civil penalty of up to $10,000, under the ACAA 
and Part 382, against a carrier for each instance the carrier failed to 
submit the required complaint data in a timely fashion. For continuing 
violations, each day each violation continues constitutes a separate 
offense. As a result, it is not necessary to create a specific penalty 
provision allowing the Department to assess fines for a carrier's 
failure to file a timely report as suggested by disability community 
organizations.
    The Department is willing to publish a notice 30 days in advance of 
each year's deadline as a reminder to carriers of their reporting 
requirements. However, the lack of such notice by the Department, would 
not qualify as a justifiable excuse by carriers of not providing the 
required information. The Department also agrees to report the 
disability-related complaint data on a per-enplanement basis when 
possible.

5. Procedures for Submission of Data

    Proposed Rule: The NPRM proposes to require carriers to report a 
summary of the disability-related complaint data by using a form 
designed by the Department which is included in the appendix to part 
382. It also proposes to mandate that carriers submit this form through 
the World Wide Web rather than submitting paper copies, disks or emails 
of the form. The NPRM proposed to allow limited exceptions to those 
carriers that can demonstrate that they would suffer undue hardship if 
required to submit the data through the web.
    Comments: The disability community raises no specific issues. EPVA 
simply notes that the form used by carriers to submit data must be 
uniform in order to be of use. Swiss indicates that submission of the 
reports via a private website would an efficient methodology for 
carriers. However, IATA and British Airways believe that carriers 
should be given options as to the means they wish to use to file their 
reports.
    DOT Response: The Department is not making any changes to the rule 
with regard to submission of data. If submission of the form through a 
website creates undue hardship, then carriers have options as to the 
means to file the report. The rule provides that carriers may submit 
the form, which summarizes the disability-related complaint data, by 
paper copies, disks, or emails.

6. Retention of Records

    Proposed Rule: The NPRM proposed that covered carriers retain 
copies of the disability-related complaints for three years. It also 
proposed that covered carries make these records available for review 
by DOT officials at their request.
    Comments: The disability community raises no specific issues here. 
ATA is opposed to a three-year retention period for complaint data and 
recommends that the record retention term be reduced to one year. Swiss 
suggests that the Department take into consideration the record-
retention requirements of the foreign air carriers' home governments. 
The other carriers and industry associations either had no comment or 
indicated that they were not opposed to the three year proposed record 
retention. Several carriers were concerned about the requirement that 
records be made available to DOT for review. Virgin appears to be 
concerned that DOT officials may make unreasonable and burdensome 
requests for review of such records. British Airways wants assurances 
that the Department would work with them to develop procedures to 
ensure that any sharing of complaint data would comply with the 
requirements imposed by the United Kingdom's Data Protection Act.
    DOT Response: The Department does not require carriers to retain 
the complaint data for three years but rather to retain the actual 
complaints for three years. The requirement to retain consumer 
complaints for three years already exists for U.S. carriers and is not 
a new cost to them. The Department's regulations in 14 CFR 249.20 
requires certificated U.S. air carriers to retain correspondence and 
record of action taken on all consumer complaints for three years. DOT 
believes the three-year record retention requirement for U.S. and 
foreign air carriers is a reasonable period of time as trends in the 
data over multiple years may indicate the need for the airlines and/or 
the Department to take a closer look at the actual complaints.

7. Economic Analysis

    Proposed Rule: The Department estimated that the first year cost to 
industry of the proposed rule would range from $242,957 to $254,738 and 
the annual cost to industry in subsequent years would range from 
$239,113 to $249,425.
    Comments: The disability community raises no specific issues here. 
Several carriers and carrier associations assert that the Department 
has not accurately assessed the practical and financial impact the 
proposed reporting requirements will have on the airlines. They believe 
that the regulatory evaluation greatly underestimates the cost to the 
industry and are concerned that airlines will be required to undertake 
substantial investments in information technology, related equipment 
and staff training. ATA explains that it believes the cost to industry 
to be high, particularly if new training for a large number of 
employees is needed as well as extensive system

[[Page 40493]]

development and hardware. There is also concern, mostly by foreign air 
carriers, that necessary systems modifications will not be ready by the 
January 2004 reporting deadline.
    DOT Response: The Department does not believe that the reporting 
requirements of this rule would result in significant costs to the 
airline industry, particularly since the definition of a complaint has 
been narrowed to exclude oral complaints. In addition, carriers already 
maintain reporting systems that record and categorize data about 
disability related complaints.

Regulatory Analysis and Notices

A. Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This action has been determined to be non-significant under 
Executive Order 12866 and the Department of Transportation Regulatory 
Policies and Procedures. The cost resulting from this action would be 
minimal since most air carriers already record and categorize data 
about disability related complaints that they receive. The primary cost 
imposed of this final rule is the time to read, categorize, and record 
the disability complaint correspondence that the carriers receive. The 
Office of the Secretary has prepared and placed in the docket a 
regulatory evaluation of the final rule.

B. Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
final rule does not adopt any regulation that: (1) Has substantial 
direct effects on the States, the relationship between the national 
government and the States, or the distribution of power and 
responsibilities among the various levels of government; (2) imposes 
substantial direct compliance costs on State and local governments; or 
(3) preempts state law. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.

C. Executive Order 13084

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13084 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this final rule 
does not significantly or uniquely affect the communities of the Indian 
tribal governments and does not impose substantial direct compliance 
costs, the funding and consultation requirements of Executive Order 
13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant economic impact on a substantial number of small entities. 
We hereby certify that this final rule will not have a significant 
economic impact on a substantial number of small entities. A direct air 
carrier or a foreign air carrier is a small business if it provides air 
transportation only with small aircraft. See 14 CFR 399.73. This final 
rule does not apply to U.S. and foreign air carriers that are operating 
only a small aircraft (i.e., aircraft designed to have a maximum 
passenger capacity of not more than 60 seats or a maximum payload 
capacity of not more than 18,000 pounds). Moreover, the overall 
national annual costs of the rule are not great.

E. Paperwork Reduction Act

    As required by the Paperwork Reduction Act of 1995, DOT has 
submitted the Information Collection Requests (ICRs) abstracted below 
to the Office of Management and Budget (OMB). Before OMB decides 
whether to approve these proposed collections of information and issue 
a control number, the public must be provided 30 days to comment. 
Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Attention: Desk Officer for the Office of the 
Secretary of Transportation, Office of Information and Regulatory 
Affairs, Washington, DC 20503, and should also send a copy of their 
comments to: Department of Transportation, Aviation Enforcement and 
Proceedings, Office of the General Counsel, 400 7th Street, SW., Room 
4116, Washington DC 20590. OMB is required to make a decision 
concerning the collection of information requirements contained in this 
rule between 30 and 60 days after publication of this document in the 
Federal Register. Therefore, a comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication.
    We will respond to any OMB or public comments on the information 
collection requirements contained in this rule. OST may not impose a 
penalty on persons for violating information collection requirements 
which do not display a current OMB control number, if required. OST 
intends to obtain current OMB control numbers for any new information 
collection requirements resulting from this rulemaking action. The OMB 
control number, when assigned, will be announced by separate notice in 
the Federal Register.
    The ICRs were previously published in the Federal Register (67 FR 
6892). Neither the assumptions upon which these calculations are based 
nor the information collection burden hours have changed. This final 
rule imposes three information collection requirements: (1) A 
requirement for carriers to record and categorize disability-related 
complaints that they receive according to type of disability and nature 
of complaint on a standard form; (2) a requirement for each covered 
carrier to submit an annual report summarizing the disability-related 
complaint data; and (3) a requirement for carriers to retain 
correspondence and record of action taken for all disability-related 
complaints. The Department will use the data submitted by carriers to 
report annually to Congress on the results of its review as required by 
law.
    The title, description, respondent description of the information 
collections and the annual recordkeeping and periodic reporting burden 
are stated below.
    (1) Requirement to read, record and categorize each disability 
related complaint from a passenger or on behalf of a passenger.
    Respondents: Certificated U.S. air carriers and foreign air 
carriers operating to and from the United States that conduct 
passenger-carrying service with large aircraft.
    Estimated Annual Burden on Respondents: 15 minutes to 1,000 hours a 
year for each respondent (time to record and categorize one complaint 
[15 minutes] multiplied by the number of complaints respondents receive 
[1 complaint a year to 4,000 annual complaints a year]. The number of 
complaints received by carriers varies greatly. In the year 2000, ACPD 
received complaints for 661 incidents from people with disabilities 
involving airline service difficulties. The 10 carriers that received 
the most complaints accounted for 84% of the total complaints received 
by ACPD. Carriers are estimated to receive 50 complaints for each one 
ACPD receives.
    Estimated Total Annual Burden: 8,262 hours for all respondents 
(time to record and categorize one complaint [15 minutes] multiplied by 
the total number of complaints for all respondents [33,050]).
    Frequency: 1 to 4,000 complaints per year for each respondent (Some 
of the air carriers may receive only one

[[Page 40494]]

complaint a year while some of the larger operators could receive 4,000 
annual complaints based on our assumption that airlines receive 50 
disability complaints for each disability complaint received by ACPD).
    (2) Requirement to submit a report to DOT summarizing the 
disability-related complaint data (key-punching web-based matrix 
report).
    Respondents: Certificated U.S. air carriers and foreign air 
carriers operating to and from the United States that conduct 
passenger-carrying service with large aircraft.
    Estimated Annual Burden on Respondents: 30 minutes a year for each 
respondent to type in the 169 items (matrix consists of 13 disabilities 
and 13 service problems).
    Estimated Total Annual Burden: 148 to 185 hours for all respondents 
(annual burden [30 minutes] multiplied by the total number respondents 
[295 to 370]).
    Frequency: 1 report to DOT per year for each respondent.
    (3) Requirement to retain correspondence and record of action taken 
on all disability-related complaints for three years.
    Respondents: Foreign air carriers operating to and from the United 
States that conduct passenger carrying service with large aircraft.
    Estimated Annual Burden on Respondents: 1 hour a year for each 
respondent.
    Estimated Total Annual Burden: 231 to 306 hours for all respondents 
(annual burden [1 hour] multiplied by the total number respondents [231 
to 306]).
    Frequency: 1 to 4,000 complaints per year for each respondent.

F. Unfunded Mandates Reform Act

    The Department has determined that the requirements of Title II of 
the Unfunded Mandates Reform Act of 1995 do not apply to this 
rulemaking.

    Issued this 24th day of June, 2003, at Washington DC.
Norman Y. Mineta,
Secretary of Transportation.

List of Subjects in 14 CFR Part 382

    Air carriers, Consumer protection, Individuals with disabilities, 
Reporting and recordkeeping requirements.

0
For the reasons set forth in the preamble, the Department amends 14 CFR 
part 382 as follows:
0
1. The authority citation for 14 CFR part 382 continues to read as 
follows:

    Authority: 49 U.S.C. 41702, 47105, and 41712.


0
2. Section 382.3 (c) is revised to read as follows:


Sec.  382.3  Applicability.

* * * * *
    (c) Except for Sec.  382.70, this part does not apply to foreign 
air carriers or to airport facilities outside the United States, its 
territories, possessions, and commonwealths.
* * * * *

0
3. A new Sec.  382.70 is added to read as follows:


Sec.  382.70  Disability-related complaints received by carriers.

    (a) For the purposes of this section, a disability-related 
complaint means a specific written expression of dissatisfaction 
received from, or submitted on behalf, of an individual with a 
disability concerning a difficulty associated with the person's 
disability, which the person experienced when using or attempting to 
use an air carrier's or foreign air carrier's services.
    (b) This section applies to certificated U.S. carriers and foreign 
air carriers operating to, from, and in the United States, conducting 
passenger operations with at least one aircraft having a designed 
seating capacity of more than 60 passengers. Foreign air carriers are 
covered by this section only with respect to disability-related 
complaints associated with any flight segment originating or 
terminating in the United States.
    (c) Carriers shall categorize disability-related complaints that 
they receive according to the type of disability and nature of 
complaint. Data concerning a passenger's disability must be recorded 
separately in the following areas: vision impaired, hearing impaired, 
vision and hearing impaired, mentally impaired, communicable disease, 
allergies (e.g., food allergies, chemical sensitivity), paraplegic, 
quadriplegic, other wheelchair, oxygen, stretcher, other assistive 
device (cane, respirator, etc.), and other disability. Data concerning 
the alleged discrimination or service problem related to the disability 
must be separately recorded in the following areas: refusal to board, 
refusal to board without an attendant, security issues concerning 
disability, aircraft not accessible, airport not accessible, advance 
notice dispute, seating accommodation, failure to provide adequate or 
timely assistance, damage to assistive device, storage and delay of 
assistive device, service animal problem, unsatisfactory information, 
and other.
    (d) Carriers shall submit an annual report summarizing the 
disability-related complaints that they received during the prior 
calendar year using the form specified in Appendix A to this Part. The 
first report shall cover complaints received during calendar year 2004 
and shall be submitted to the Department of Transportation by January 
25, 2005. Carriers shall submit all subsequent reports on the last 
Monday in January of that year for the prior calendar year. All 
submissions must be made through the World Wide Web except for 
situations where the carrier can demonstrate that it would suffer undue 
hardship if it were not permitted to submit the data via paper copies, 
disks, or email, and DOT has approved an exception. All fields in the 
form must be completed; carriers are to enter ``0'' where there were no 
complaints in a given category. Each annual report must contain the 
following certification signed by an authorized representative of the 
carrier: ``I, the undersigned, do certify that this report has been 
prepared under my direction in accordance with the regulations in 14 
CFR Part 382. I affirm that, to the best of my knowledge and belief, 
this is a true, correct, and complete report.'' Electronic signatures 
will be accepted.
    (e) Carriers shall retain correspondence and record of action taken 
on all disability-related complaints for three years after receipt of 
the complaint or creation of the record of action taken. Carriers must 
make these records available to Department of Transportation officials 
at their request.
    (f)(1) In a code-share situation, each carrier shall comply with 
paragraphs (c) through (e) of this section for--
    (i) Disability-related complaints it receives from or on behalf of 
passengers with respect to difficulties encountered in connection with 
service it provides;
    (ii) Disability-related complaints it receives from or on behalf of 
passengers when it is unable to reach agreement with its code-share 
partner as to whether the complaint involves service it provides or 
service its code-share partner provides; and
    (iii) Disability-related complaints forwarded by another carrier or 
governmental agency with respect to difficulties encountered in 
connection with service it provides.
    (2) Each carrier shall also forward to its code-share partner 
disability-related complaints the carrier receives from or on behalf of 
passengers with respect to difficulties encountered in connection with 
service provided by its code-sharing partner.
    (g) Each carrier, except for carriers in code-share situations, 
shall comply with paragraphs (c) through (e) of this section for 
disability-related complaints it receives from or on behalf of 
passengers

[[Page 40495]]

as well as disability-related complaints forwarded by another carrier 
or governmental agency with respect to difficulties encountered in 
connection with service it provides.
    (h) Carriers that do not submit their data via the Web shall use 
the disability-related complaint data form specified in appendix A to 
this part when filing their annual report summarizing the disability-
related complaints they received. The report shall be mailed, by the 
dates specified in paragraph (d) of this section, to the following 
address: U.S. Department of Transportation, Aviation Consumer 
Protection Division, 400 7th Street, SW., Room 4107, C-75, Washington, 
DC 20590.

0
4. A new appendix A is added to part 382 to read as follows:
BILLING CODE 4910-62-P

[[Page 40496]]

Appendix A to Part 382--Disability Complaint Reporting Form
[GRAPHIC] [TIFF OMITTED] TR08JY03.017


[[Page 40497]]


[GRAPHIC] [TIFF OMITTED] TR08JY03.018


[[Page 40498]]


[FR Doc. 03-17248 Filed 7-2-03; 4:35 pm]
BILLING CODE 4910-62-P