[Federal Register Volume 74, Number 51 (Wednesday, March 18, 2009)]
[Rules and Regulations]
[Pages 11469-11472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5606]



[[Page 11469]]

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DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

[Dockets OST-2004-19482; OST-2005-22298; OST-2006-23999]
RINs 2105-AC97; 2105-AC29; 2105-AD41


Nondiscrimination on the Basis of Disability in Air Travel

AGENCY: Department of Transportation, Office of the Secretary.

ACTION: Final rule; correction.

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SUMMARY: The Department of Transportation published the new Air Carrier 
Access Act (ACAA) rule in the Federal Register on Tuesday, May 13, 2008 
(73 FR 27614). This document corrects editorial errors or omissions and 
clarifies ambiguities in the preamble, rule text and appendix of the 
final rule.

DATES: Effective Date: These corrections are effective May 13, 2009.

FOR FURTHER INFORMATION CONTACT: Kathleen Blank Riether or Blane A. 
Workie, Office of the Assistant General Counsel for Aviation 
Enforcement and Proceedings, Department of Transportation, 1200 New 
Jersey Ave., SE., Washington, DC 20590, 202-366-9342 (voice), 202-366-
7152 (fax), [email protected] or [email protected] (e-
mail). TTY users may reach both individuals via the Federal Relay 
Service toll-free at 800-877-8339. Arrangements to receive this notice 
in an alternative format may also be made by contacting the above named 
individuals.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Department of Transportation published the final Air Carrier 
Access Act rule, Nondiscrimination on the Basis of Disability in Air 
Travel (Part 382), in the Federal Register on May 13, 2008, (73 FR 
27614), applying it to foreign carriers, adding new provisions 
concerning accommodations for passengers who use medical oxygen and who 
are deaf or hard-of-hearing, and reorganizing the entire rule (FR Doc. 
08-1228). The final rule, which will become effective on May 13, 2009, 
contained some editorial errors, inconsistencies, and omissions, which 
this document corrects. We have set forth these corrections below. The 
provisions in this correction notice are effective as if they had been 
included in the final rule. Accordingly, the corrections are effective 
as of May 13, 2009.

II. Summary of the Corrections to the Final ACAA Rule

    The Department received inquiries about whether carriers should 
file a conflict of law waiver request when the conflict of law in 
question is anticipated in the text of Part 382 itself because we 
believed the existence of foreign requirements parallel to those of the 
U.S. Federal Aviation Administration (FAA) was likely. The question was 
raised specifically in reference to section 382.87(a), which prohibits 
seating restrictions for passengers with disabilities, except to comply 
with an FAA or applicable foreign government safety requirement. We 
have added language on page 27616 of the Federal Register indicating 
the Department's intent that in such instances carriers nonetheless 
should strongly consider submitting a conflict of law waiver request as 
outlined in section 382.9(a). Of course, as a compliance matter if such 
a conflict exists, the filing of the waiver request would not be 
required to avoid enforcement action. On pages 27618, 27634, 27640, 
27648, 27655, we have corrected typographical errors to the preamble.
    Due to an oversight, food service locations were included in the 
preamble discussion of requirements for providing passengers with 
disabilities assistance in accessing key functional areas in the 
terminal. Prior to issuing the final rule, the Department had decided 
to exclude food service locations from the terminal areas to which 
carriers are required to provide access. Section 382.91(b) and the 
corresponding analysis on page 27654 of the preamble reflect this 
exclusion as the Department intended. We have therefore deleted the 
remaining overlooked references to food service locations in the 
preamble discussion on page 27621.
    U.S. carriers have submitted inquiries about conflicts of law 
affecting the services required by Part 382 that the U.S. carrier must 
ensure on code share flights between two foreign points operated by 
their foreign-carrier code share partners on behalf of passengers 
traveling under the U.S. carrier's code. In response to these 
inquiries, the Department has added a clarification paragraph to the 
analysis of section 382.9 on page 27647 of the preamble.
    Prior to issuing the final rule, the Department decided to exclude 
from the final rule certain proposed requirements in section 382.43 for 
accommodating individuals with visual impairments. The Department's 
intention was to seek further information from the public concerning 
these requirements through a Supplemental Notice of Proposed Rulemaking 
(SNPRM). We have deleted references to these requirements that were 
inadvertently overlooked in the title of section 382.43 on page 27650 
and in the analysis on page 27651 of the preamble. We are also deleting 
a reference to these requirements that, due to an oversight, remained 
in the section title on page 27666 of the published rule.
    We have also revised the title of section 382.53 as it appears both 
on page 27652 of the preamble and on page 27666 to be consistent with 
the section title as it appears in the rule text on page 27673.
    On page 27653 of the preamble in the Section-by-Section Analysis of 
section 382.71 we have aligned the language describing the 
accessibility standard for replacement or refurbishing of cabin 
features with its counterpart language in the rule text on page 27675.
    On page 27655 of the preamble we have corrected an erroneous 
reference to the location of the service animal guidance in the final 
rule and have added an omitted reference to licensed mental health 
professionals and medical doctors specifically treating a passenger's 
recognized mental or emotional disability.
    To clarify the Department's intent concerning documentation that 
may be required as a condition for allowing an emotional support or 
psychiatric service animal to travel in the cabin, we have added 
language on page 27659 of the Guidance Concerning Service Animals 
stating carriers should also accept documentation provided by a medical 
doctor for passengers traveling with an emotional support or 
psychiatric service animal. On page 27679 in section 382.117 of the 
rule text, we have added language indicating that documentation for an 
emotional support or psychiatric service animal from a medical doctor 
who is specifically treating the passenger's mental or emotional 
disability is acceptable. On the same page, in the same section, we 
have also added language further explaining when the factors that 
preclude the transport of a service animal in the aircraft cabin may 
apply.
    For consistency of terminology and to avoid any misunderstanding 
concerning which operations of foreign carriers are and are not covered 
by this rule, the word ``operation'' is replaced with the word 
``flight'' in section 382.7 of the rule text on page 27668, for 
consistent use throughout the section of the defined term ``flight''.
    On page 27673 in section 382.51(c), we have clarified the 
applicability of the section's effective dates with respect to

[[Page 11470]]

foreign carriers. On pages 27669 and 27674, we have corrected minor 
typographical errors in the rule text.
    On page 27675, in section 382.71(b), we have clarified the level of 
accessibility that applies when refurbishing aircraft cabins or any 
elements thereof.
    On page 27677 in section 382.99(c) of the rule text, we have 
corrected a typographical error in the effective date applicable to 
foreign carriers so that it is consistent with the effective date of 
this provision as stated in the Section-by-Section Analysis on page 
27654.
    On page 27682 in section 382.143(a)(2) of the rule text, we revised 
awkward language addressing the time frame for the completion of 
training on the changes to Part 382 for existing employees without 
changing the substance of the provision, corrected an erroneous 
reference, and deleted superfluous text. On page 27683 in section 
382.151(a) of the rule text, we corrected a typographical error.
    On page 27687, we have added a section and a subject that had been 
omitted from the Cross-Reference Table.
    We note that there are two additional corrections we have 
determined to be substantive in nature, which we intend to address 
through a notice of proposed rulemaking (NPRM). The first involves an 
omission of Subpart I from the subparts listed in section 382.7(c). 
Section 382.7(c) contains the service-related requirements with which a 
U.S. carrier must comply with respect to passengers traveling under its 
code on flights operated by a foreign carrier between two foreign 
points. Subpart I (14 CFR 382.121 to 14 CFR 382.133) is titled 
``Stowage of Wheelchairs, Other Mobility Aids, and Other Assistive 
Devices.'' Among other things, Subpart I contains requirements related 
to the in-cabin use of portable oxygen concentrators and other 
respiratory assistive devices that will apply for the first time to 
both U.S. and foreign carriers. We will provide an opportunity for 
public comment on the inclusion of Subpart I, which contains these new 
requirements, in the list of subparts with which a U.S. carrier must 
comply with respect to passengers traveling under its code on flights 
operated by a foreign carrier between two foreign points.
    The second matter that we intend to address through an NPRM 
involves inconsistencies in the amended rule with respect to 
requirements concerning in-cabin stowage of passenger wheelchairs. 
Because the Department's enforcement policy has in the past permitted 
the use of seat-strapping (i.e., strapping a wheelchair across a row of 
seats on aircraft that do not have a closet or similar compartment for 
stowing the device), the Department in the amended ACAA rule in effect 
``grandfathered'' situations in which carriers, in reliance on the DOT 
Enforcement Office's statements, continued to utilize seat-strapping 
rather than having a closet or compartment space for a wheelchair. The 
rule does prohibit the use of seat-strapping beyond a certain date. 
More specifically, section 382.123(c) states that carriers must not use 
the seat-strapping method for wheelchair stowage in any aircraft 
ordered after May 13, 2009 or which are delivered after May 13, 2011. 
However, section 382.67(c) states that a foreign carrier must have a 
priority space in the cabin to stow a standard size wheelchair on 
aircraft ordered after May 13, 2009 or delivered after May 13, 2010. 
The Department intended to provide one year after the effective date of 
the rule (i.e., May 13, 2010) for obtaining new aircraft that would 
have priority space in the cabin to stow a standard size wheelchair and 
to allow carriers to use the seat-strapping method only on aircraft on 
which this method was previously allowed and on aircraft ordered on or 
before May 13, 2009 and delivered on or before May 13, 2010. The 
Department erroneously stated that carriers may not use the seat-
strapping method in any aircraft delivered after May 13, 2011 instead 
of stating carriers may not use the seat-strapping method in any 
aircraft delivered after May 13, 2010. Nevertheless, we are not fixing 
this mistake through this correction notice since we believe correcting 
the error in the compliance date is substantive and would require 
notice and opportunity to comment. We also recognize that it often 
takes up to two years after the order date of an aircraft for that 
aircraft to be delivered to a carrier. Therefore, U.S. carriers relying 
on the language in 382.123(c) are likely not to have requested that the 
ordered aircraft, to be delivered between May 13, 2010 and May 13, 
2011, contain priority space in the cabin to stow a standard size 
wheelchair.
    To ensure that the changes to the preamble and final rule outlined 
in this correction notice are readily accessible and easily 
understandable to the public, it is the Department's intention to place 
in the docket and post on the Aviation Consumer Protection Web site a 
version of the complete final rule incorporating all the changes 
described herein within 2 to 4 weeks. This consolidated version will be 
available at http://airconsumer.dot.gov/rules/rules.htm.

III. Waiver of Proposed Rulemaking

    Pursuant to section 553(b) of the Administrative Procedure Act 
(APA) (5 U.S.C. 553(b)), the Department can waive prior notice and 
opportunity for public comment on this action if it finds that the 
notice and comment procedure is impracticable, unnecessary, or contrary 
to the public interest, and incorporates a statement of the finding and 
the reasons therefore in the notice. The revisions contained in this 
document correct typographical errors, omissions, and unclear language 
in the final rule. Minor editorial corrections and clarifications 
consistent with the rule text have also been added to the preamble. 
These corrections are necessary to ensure the accuracy of the final 
rule. Since all are minor and non-substantive, public comments on these 
revisions are unnecessary. Therefore, we find good cause to waive the 
notice and comment procedure.

IV. Correction of Errors and Clarifications

    In FR Doc. 08-1228, appearing on page 27614 in the Federal Register 
on Tuesday, May 13, 2008, the following corrections are made:

A. Corrections to the Preamble

    1. On page 27614, in the first column, correct the footnote so it 
reads ``The dates and citations for these amendments are the following: 
April 3, 1990, 55 FR 12336; June 11, 1990, 55 FR 23539; November 1, 
1996, 61 FR 56409; January 2, 1997, 62 FR 16; March 4, 1998, 63 FR 
10528; March 11, 1998, 63 FR 11954; August 2, 1999, 64 FR 41781; 
January 5, 2000, 65 FR 352; May 3, 2001, 66 FR 22107; July 8, 2003, 68 
FR 40488.''
    2. On page 27616, in the third column, add the sentence, ``We 
strongly encourage carriers, even where a provision of Part 382 itself 
explicitly allows an exception in order to comply with a foreign law 
(i.e., section 382.87(a)), to consider filing a conflict of law waiver 
request as outlined in section 382.9(a) whenever a carrier believes 
itself bound by a legal mandate that requires something Part 382 
prohibits or prohibits something Part 382 requires.'' before the 
sentence starting with the word ``If'' in the eighteenth line.
    3. On page 27618, in the first column, in the 13th line, revise the 
phrase, ``regulatory provision that was shown'' to read, ``regulatory 
provision was shown''.
    4. On the same page, in the same column, in the 15th line, revise 
the phrase, ``addition, The Department'' to read, ``addition, the 
Department''.

[[Page 11471]]

    5. On page 27621, in the second column, in the first full 
paragraph, in the 10th and 11th lines, delete the phrase, ``or food 
service location''.
    6. On the same page, in the same column, in the same paragraph, 
from the 22nd through the 30th lines, delete the last two sentences.
    7. On page 27634, in the third column, in the 24th and 25th lines, 
revise the phrase, ``fear that Department'' to read, ``fear that the 
Department''.
    8. On page 27640, in the first column, in the 34th line, add a 
comma and delete the period following the acronym ``NPRM''.
    9. On page 27647, in the second column, after the second full 
paragraph, insert the following new paragraph: ``Finally, the 
Department recognizes that a U.S. carrier may wish to file a waiver 
request on behalf of a foreign carrier. This may occur, for example, in 
the case of U.S. carriers who must ensure compliance with the service-
related provisions of this Part on code share flights between two 
foreign points operated by their foreign code share partners on behalf 
of passengers traveling under the U.S. carriers' codes. Where a U.S. 
carrier believes a foreign law conflicts with a service-related 
provision of this Part and bars compliance on a code-share flight 
operated by its foreign code share partner, the U.S. carrier may file a 
waiver request on behalf of its foreign code-share partner(s) subject 
to that law. The waiver request should include a proposal for an 
alternative means of compliance with the Part 382 provision or a 
justification of why it would be impossible to achieve the objective. 
If granted, the responsibility of the U.S. carrier with respect to 
code-share flights operated by its foreign partner(s) will be limited 
in accordance with the terms of the waiver.''
    10. On page 27648, in the third column, in the 37th line, revise 
the phrase ``users and, people traveling'' to read, ``users and people 
traveling''.
    11. On page 27650, in the third column, in the 16th line, correct 
the title of section 382.43 to read, ``Must information and reservation 
services of carriers be accessible to individuals with hearing 
impairments?''
    12. On the same page, in the third column, starting in the 63rd 
line, delete the entire paragraph beginning at the bottom of the column 
and continuing on page 27651, in the first column, from the 1st through 
the 7th line.
    13. On page 27652, in the first column, in the 1st to 3rd lines, 
correct the title of section 382.53 to read, ``What information must 
carriers give individuals with a vision or hearing impairment at 
airports?''
    14. On page 27653, in the third column, in the 14th line, insert 
the phrase, ``to a level below that specified for new aircraft in this 
Part'' immediately before the period.
    15. On page 27655, in the first column, in the 32nd to 34th lines, 
delete the sentence, ``Appendix A provides further guidance to carriers 
and passengers concerning service animals.'', and replace with 
``Further guidance to carriers and passengers concerning service 
animals follows the Section-by-Section Analysis.''
    16. On the same page, in the second column, in the 13th line, 
revise the phrase, ``mental health professional'' to read, ``licensed 
mental health professional (e.g., a medical doctor that is treating the 
passenger's mental or emotional disability or a licensed clinical 
social worker)''.

B. Corrections to the Service Animal Guidance

    On page 27659, in the second column, in the 32nd line, revise the 
phrase ``licensed mental health professional'' to read ``licensed 
mental health professional, including a medical doctor that is treating 
the passenger's mental or emotional disability''.

C. Corrections to the Regulatory Text

PART 382--[CORRECTED]

0
1. On page 27666, in the first column, in the Table of Contents to Part 
382, , revise the title of Sec.  382.43 to read, ``Must information and 
reservation services of carriers be accessible to individuals with 
hearing impairments?''
0
2. On the same page, in the same column, revise the title of Sec.  
382.53 to read, ``What information must carriers give individuals with 
a vision or hearing impairment at airports?''


Sec.  382.7  [Corrected]

0
3. On page 27668, in the first column, in Sec.  382.7, in paragraph 
(c), the phrase ``with respect to operations'' is corrected to read, 
``with respect to flights'' wherever it may appear.
0
4. On the same page, in the same section, in the same paragraph, in the 
9th line, the phrase ``with respect to operations'' is corrected to 
read, ``with respect to flights''.
0
5. On the same page, in the second column, in the same section, in 
paragraph (d), in the 5th and 6th lines, the phrase ``the charter 
operation is not'' is corrected to read: ``the charter flight is not''.


Sec.  382.17  [Corrected]

0
6. On page 27669, in the third column, in Sec.  382.17, in the 4th 
line, change ``Sec.  382.27(b)(6)'' to ``Sec.  382.27(c)(6)''.


Sec.  382.27  [Corrected]

0
7. On page 27671, in the first column, Sec.  382.27, in paragraph (a), 
in the 1st and 2nd lines, remove the phrase ``paragraph (b)'' and add 
in its place the phrase ``paragraphs (b) and (c)''.


Sec.  382.43  [Corrected]

0
8. On page 27672, in the third column, in the 36th line, correct the 
title of Sec.  382.43 to read ``Must information and reservation 
services of carriers be accessible to individuals with hearing 
impairments?''


Sec.  382.51  [Corrected]

0
9. On page 27673, in the third column, Sec.  382.51, in paragraph (c), 
in the 3rd line, insert the phrase, ``, except as otherwise indicated 
in paragraph (a)'' after the word ``2010''.


Sec.  382.55  [Corrected]

0
10. On page 27674, in the first column, in Sec.  382.55, in paragraph 
(c), in the 2nd line, change ``(c)'' to ``(d)''.


Sec.  382.71  [Corrected]

0
11. On page 27675, in the third column, in Sec.  382.71, in paragraph 
(b), in the fifth line, insert the phrase ``for new aircraft'' 
immediately following the word ``specified''.


Sec.  382.99  [Corrected]

0
12. On page 27677, in the third column, in Sec.  382.99, in paragraph 
(c), in the 6th and 7th lines, remove the phrase ``May 13, 2010'' and 
add in its place the phrase ``May 13, 2011''.


Sec.  382.117  [Corrected]

0
13. On page 27679, in the first column, in Sec.  382.117, in paragraph 
(e), in the 13th line, insert the phrase, ``including a medical doctor 
specifically treating the passenger's mental or emotional disability'' 
immediately before the parenthesis.
0
14. On the same page, in the same column, in the same section, in 
paragraph (f), in the 5th and 6th lines, replace the phrase ``With 
respect to other unusual or exotic animals'' with the phrase ``With 
respect to all other animals, including unusual or exotic animals'' and 
in the 9th line, delete the abbreviation ``U.S.'' before the word 
``carrier''.
0
15. On the same page, in the second column, in Sec.  382.117, in 
paragraph (f), in the 12th line, remove the word ``As'' and add in its 
place ``However, as''.

[[Page 11472]]

Sec.  382.143  [Corrected]

0
16. On page 27682, in the third column, in Sec.  382.143, in paragraph 
(a)(2), in the 3rd line, insert the phrase ``for each such employee no 
later than'' after the phrase ``must take place''.
0
17. On the same page, in the same column, in the same section, in the 
same paragraph, in the 3rd and 4th lines, remove the phrase ``as part 
of''.
0
18. On the same page, in the same column, in the same section, in the 
same paragraph, in the 5th line, insert the phrase ``taking place'' 
before the word ``after''.
0
19. On the same page, in the same column, in the same section, in the 
same paragraph, in the 5th and 6th lines, delete the phrase ``for each 
such employee''.
0
20. On the same page, in the same column, in the same section, in 
paragraph (b), in the 4th and 5th lines, remove the phrase, ``paragraph 
(a) of this section'' and replace it with ``Sec.  382.141(a)''.
0
21. On the same page, in the same column, in the same section, in 
paragraph (b)(4), in the 3rd line remove the phrase ``a date''.


Sec.  382.151  [Corrected]

0
22. On page 27683, in the first column, in Sec.  382.151, in paragraph 
(a), in the 2nd line, remove the comma after ``service''.

D. Corrections to Appendix B: Cross-Reference Table

0
23. On page 27687, in the second column, in the Section Numbers: Old 
and New Rules Table, in the 21st line, insert ``95, `` immediately 
before ``99''.
0
24. On the same page, in the third column, in the same table, in the 
22nd line, insert ``, POCs and other respiratory assistive devices'' 
immediately before the period.

    Dated March 9, 2009, at Washington, DC, under authority 
delegated in 49 CFR 1.57(j).
Rosalind A. Knapp,
Acting General Counsel.
 [FR Doc. E9-5606 Filed 3-17-09; 8:45 am]
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