[Federal Register Volume 80, Number 234 (Monday, December 7, 2015)]
[Proposed Rules]
[Pages 75953-75955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30764]



Office of the Secretary

14 CFR Part 382

[Docket No. DOT-OST-2015-0246]
RIN 2105-AE12

Nondiscrimination on the Basis of Disability in Air Travel; 
Consideration of Negotiated Rulemaking Process

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Notice of intent.


SUMMARY: The Department of Transportation (``Department'' or ``DOT'') 
announces that it is exploring the feasibility of conducting a 
negotiated rulemaking (Reg Neg) concerning accommodations for air 
travelers with disabilities addressing inflight entertainment, 
supplemental medical oxygen, service animals, accessible lavatories on 

[[Page 75954]]

aircraft, seating accommodations, and carrier reporting of disability 
service requests. The Department has hired a convener to speak with 
interested parties about the feasibility of conducting this Reg Neg. 
The Department anticipates that the interested parties may include 
disability advocacy organizations, airlines, airports, airline vendors 
providing wheelchair assistance, aircraft manufacturers, IFE system 
manufacturers, movie studios, other IFE content providers, service 
animal training organizations, and other Federal agencies that have a 
regulatory interest in these issues such as the Department of Justice, 
the Federal Communications Commission, and the United States Access 

DATES: Please submit your comments no later than January 6, 2016.

ADDRESSES: You may submit comments identified by docket number DOT-OST-
2015-0246 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Ave. SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: If you have questions about the 
regulatory negotiation, you may contact Kathleen Blank Riether, Senior 
Attorney, Office of the Aviation Enforcement and Proceedings, U.S. 
Department of Transportation, by email at [email protected] 
or by telephone at 202-366-9342. To obtain a copy of this notice in an 
accessible format, you may also contact Kathleen Blank Riether.

SUPPLEMENTARY INFORMATION: Congress enacted the Air Carrier Access Act 
(ACAA) in 1986. It prohibited discrimination in airline service on the 
basis of disability by U.S. air carriers. In 1990, following a lengthy 
rulemaking process that included a regulatory negotiation involving 
representatives of the airline industry and disability community, the 
Department issued a final ACAA rule. In 2000, Congress amended the ACAA 
to specifically include foreign air carriers. The ACAA now prohibits 
U.S. and foreign air carriers from discriminating against individuals 
on the basis of disability in air travel. In 2008, the Department 
revised its disability regulation to, among other things, apply its 
rule to foreign carriers and add new protections for passengers who use 
portable oxygen concentrators and passengers who are deaf or hard of 
hearing. See 73 FR 27614 (May 13, 2008), effective May 13, 2009.
    In the preamble to the 2008 final rule, the Department explained 
that it had deferred final decisions regarding a number of proposed 
requirements and expressed its intent to issue a Supplemental Notice of 
Proposed Rulemaking (SNPRM) seeking additional public input on carrier-
supplied in-flight medical oxygen, transport of service animals, in-
flight entertainment, and accessible kiosks and Web sites. The 
Department also announced its intent to carefully monitor ongoing 
developments with respect to lavatory accessibility on single aisle 
aircraft during longer flights to determine if a future rulemaking 
proposal may be warranted. See 73 FR 27614 (May 13, 2008). In September 
2011, the Department issued an SNPRM on airline Web sites and automated 
airport kiosks. See 76 FR 59307 (September 26, 2011). The proceeding 
culminated in a final rule mandating that airline Web sites and 
automated airport kiosks be accessible by specific dates. See 78 FR 
67882 (November 12, 2013). The Department is now planning to address 
in-flight medical oxygen, transport of service animals and in-flight 
    Additionally, since the issuance of the 2008 final rule, the 
Department has become aware of other difficulties individuals with 
disabilities are having in accessing the air travel system. For 
example, airlines and disability organizations \1\ have raised concerns 
with the Department of passengers falsely claiming that their pets are 
service animals. These groups have also pointed out the inconsistency 
between the Department of Justice definition of a service animal and 
the Department of Transportation's definition of a service animal. 
Separately, the Department has noted the industry trend toward greater 
use of single aisle aircraft that are not equipped with accessible 
lavatories on medium and long haul flights. The disability community 
has also expressed distress that single aisle aircraft are increasingly 
used by airlines for longer flights but lack accessible lavatories. 
Issues have also been raised about whether premium economy is a 
different class of service from standard economy as airlines are 
required to provide seating accommodations to passengers with 
disabilities within the same class of service. Extra legroom is a 
standard feature of premium economy, with some carriers providing 
premium economy passengers amenities in addition to the standard 
economy class services. Various disability organizations have reported 
to the Department that their members are unable to obtain bulkhead 
seating while traveling with a service animal as the bulkhead seats are 
now primarily located in what has been designated by airlines as the 
premium economy section. The Department has also received a petition 
for rulemaking to modify the existing seating accommodations 
requirement for passengers who need extra legroom.\2\

    \1\ See DOT-OST-2009-0093-0001, Psychiatric Service Dog Society 
Petition for Rulemaking (April 13, 2009).
    \2\ See DOT-OST-2012-0030, In Re Petition for Rule Change of 
Title 14 CFR 382.81(d) Pertaining to Disabled Seating Accommodations 
(February 7, 2012).

    The Department is exploring the feasibility of conducting a 
negotiated rulemaking on the remaining issues that it deferred final 
action on in its 2008 final rule as well as the issues described above 
that have arisen since its 2008 final rule. Specifically, the 
Department is exploring a Reg Neg to:
     Ensure that the same in-flight entertainment (IFE) 
available to all passengers is accessible to passengers with 
     Provide individuals dependent on in-flight medical oxygen 
greater access to air travel consistent with Federal safety and 
security requirements;
     Determine the appropriate definition of a service animal;
     Establish safeguards to reduce the likelihood that 
passengers wishing to travel with their pets will be able to falsely 
claim that their pets are service animals;
     Address the feasibility of accessible lavatories on new 
single aisle aircraft;
     Address whether premium economy is a different class of 
service from standard economy as airlines are required to provide 
seating accommodations to passengers with disabilities within the same 
class of service; and
     Require airlines to report annually to the Department the 
number of requests for disability assistance they receive and the time 
period within which wheelchair assistance is provided to passengers 
with disabilities.
    In a Reg Neg, an agency invites representatives of interested 
parties likely to be significantly affected by a regulation to work 
with each other and the agency on an advisory committee to seek to 
reach consensus recommendations on the appropriate resolution of the 
issues before the committee. If a consensus is reached, the Department 
will issue a proposed rule consistent with that consensus for

[[Page 75955]]

public comment under established rulemaking procedures. The Department 
believes this cooperative problem-solving approach should be given 
serious consideration. To do so, the Department must determine, among 
other statutorily-mandated considerations, whether an appropriate 
advisory committee can be assembled that will fairly represent all 
affected interests, negotiate in good faith, and offer a reasonable 
likelihood of reaching a consensus on the issues.
    The Department has retained a neutral convener, Mr. Richard Parker 
from the University of Connecticut School of Law, to undertake the 
initial stage in the Reg Neg process and assist the agency in making 
this threshold determination. Mr. Parker's credentials have been placed 
in docket DOT-OST-2015-0246. The neutral convener will interview 
representatives of affected interests, including but not limited to, 
disability advocacy groups, airlines, and manufacturers of aircraft 
cabin facilities and equipment and determine whether other interest 
groups should be included. The convener will examine the potential for 
adequate and balanced representation of the varied interests on an 
advisory committee convened to negotiate the regulation and/or to reach 
consensus on specific issues. Based on these interviews, the convener 
will submit a written report of findings and recommendations to the 
Department, and the final report will be available to the public. The 
convenor's report will provide a basis for the Department to decide 
whether to proceed with a Reg Neg, and, if so, to determine the scope 
of the issues the committee will address. In the alternative, the 
Department may also decide to forgo a Reg Neg and proceed with a 
traditional notice-and-comment rulemaking.
    The convener's activities are subject to the confidentiality 
provisions of the Administrative Dispute Resolution Act, 5 U.S.C. 574. 
The Federal Government will make no claim to the convener's notes, 
memoranda, or recollections or to documents provided to the convener in 
confidence in the course of the convening process. The convener will 
not interpret Department policy, make decisions on items of policy, 
regulation, or statute, or take a stand on the merits of substantive 
matters under discussion.
    The Department will provide any comments it receives in response to 
this notice to the convener and will file the comments in docket DOT-
OST-2015-0246. Should the Department decide to proceed with a Reg Neg 
process, the Agency will follow the procedures set forth in the 
Negotiated Rulemaking Act of 1996, 5 U.S.C. 561 et seq. This would 
include the publication of a notice of intent to solicit comment on 
membership and to invite interested persons to apply for nomination to 
the committee. It also includes the establishment of an advisory 
committee under the Federal Advisory Committee Act (5 U.S.C. Appendix 

    Issued under the authority of delegation in 49 CFR 1.27.

    Dated: November 30, 2015.
Kathryn B. Thomson,
General Counsel.
[FR Doc. 2015-30764 Filed 12-4-15; 8:45 am]