[Federal Register: March 18, 2009 (Volume 74, Number 51)]
[Rules and Regulations]
[Page 11469-11472]
[DOCID:fr18mr09-4]

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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,<PHONE_NUMBER> (voice), 202-366-
7152 (fax<EMAIL_ADDRESS>or<EMAIL_ADDRESS>(e-
mail). TTY users may reach both individuals via the Federal Relay
Service toll-free at<PHONE_NUMBER>. 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

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''.

    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''.

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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