Nondiscrimination on the Basis of Disability in Air Travel; Corrections, 44885-44887 [2010-18531]

Agencies

• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 146 (Friday, July 30, 2010)]
[Rules and Regulations]
[Pages 44885-44887]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18531]


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DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

[Docket No. DOT-OST-2004-19482; DOT-OST-2005-22298; DOT-OST-2006-23999]
RIN No. 2105-AC97; 2105-AC29; 2105-AD41


Nondiscrimination on the Basis of Disability in Air Travel; 
Corrections

AGENCY: Office of the Secretary, Department of Transportation.

ACTION: Correcting amendments.

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SUMMARY: The Department of Transportation published its amended Air 
Carrier Access Act (ACAA) rule in the Federal Register on Tuesday, May 
13, 2008 (73 FR 27614). That rule amended the ACAA rules to apply to 
foreign air carriers and added new provisions concerning passengers who 
use medical oxygen and passengers who are deaf or hard-of-hearing. A 
corrections notice was published on March 18, 2009. This document 
further corrects editorial errors or omissions and provides 
clarifications regarding the preamble and regulatory text of the final 
rule.

DATES: Effective Date: These amendments and corrections are effective 
July 30, 2010.

FOR FURTHER INFORMATION CONTACT: Clereece Y. Kroha, Trial Attorney, 
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), 
clereece.kroha@dot.gov (e-mail). TTY users may reach the individual 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 individual.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Transportation published its amended Air Carrier 
Access Act rule, Nondiscrimination on the Basis of Disability in Air 
Travel, 14 CFR Part 382 (Part 382), in the Federal Register on May 13, 
2008, (73 FR 27614), applying Part 382 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. On March 18, 2009, the Department published a correction notice 
in the Federal Register (74 FR 11469), correcting several editorial 
errors, inconsistencies, and omissions that had been identified. Since 
the final rule became effective on May 13, 2009, we have identified 
several additional minor typographical and technical errors in the 
final rule text as well as the preamble, which this document corrects. 
We have set forth these corrections below. The corrections to the 
preamble can also be found on our Web site at https://airconsumer.ost.dot.gov/.

II. Summary of Errors to the Final ACAA Rule

A. Errors in the Preamble of the May 13, 2008, Final Rule (73 FR 27164)

    On page 27619, in the third column, we intended to state that the 
carriers may choose to supplement the accessibility service provided by 
airports themselves or hire a contractor to do so. We erroneously used 
the word ``itself'' instead of ``themselves.'' This error is being 
corrected.
    On page 27620, in the first column, we discuss the applicability of 
the Title II ADA rules to transportation services provided by public 
entities. A period omitted at the end of that sentence is being added.
    On page 27651, in the first column, in the first paragraph, we 
state that the requirements for information and reservation services 
apply to foreign carriers only with respect to flights covered by Sec.  
382.5. The correct section reference should be Sec.  382.7. A similar 
typographical error is also being corrected on page 27651, in the 
second column, in the second paragraph.
    On page 27654, in the first column, where we discuss the issue of 
whether a carrier should allow a passenger with a disability to make 
brief stops to obtain food and a beverage when assisting in his/her 
transfer to the connecting gate, we are correcting two editorial errors 
by deleting the word ``would'' from one sentence and the word 
``should'' from another sentence.
    On page 27665, in the first column, we discuss the cost incurred by 
small foreign carriers related to obtaining boarding equipment. An 
incomplete sentence is being corrected. Thus, the language that 
appeared as ``mall carrier use the same airport, however, a sharing 
arrangement may be more effective'' will read: ``For small carriers 
using the same airport, however, a sharing arrangement may be more 
effective.''
    On the same page, following the paragraph discussed above, another 
typographical error is being corrected by deleting an unnecessary ``a'' 
from the next sentence.

B. Errors in the Regulatory Text of May 13, 2008, Final Rule

    In Sec.  382.7(f), we state that Sec. Sec.  382.17 through 382.157 
generally do not apply to an indirect carrier except insofar as Sec.  
382.11(b) applies to such a carrier. By doing so, we inadvertently 
omitted the first sentence in this subsection that would have explained 
that the general nondiscrimination provisions contained in Sec. Sec.  
382.1 through 382.15 do apply to indirect carriers. We are adding a 
sentence in Sec.  382.7(f) to make this clear.

[[Page 44886]]

    In addition, we are rephrasing the language in Sec.  382.11(b) to 
clarify the circumstances where an indirect carrier must comply with 
Sec. Sec.  382.17 through 382.157. That is that the indirect carrier 
must comply with these sections when it is providing facilities or 
services (such as checking in passengers and baggage, or providing 
boarding and deplaning assistance) that would have otherwise been 
provided by a direct carrier.
    In Sec.  382.23(d), we state the conditions under which a carrier 
may require a passenger with a medical certificate to undergo 
additional medical review by the carrier. Furthermore, we state that if 
the result of the review demonstrates that the passenger may not be 
able to complete the flight without extraordinary medical assistance or 
the passenger would impose a direct threat to the health or safety of 
other persons on the flight, the carrier ``may take an action otherwise 
prohibited under Sec.  382.23(a) of this part.'' In this last sentence, 
we intended to state that the carrier may take an action otherwise 
prohibited under Sec.  382.21(a). Therefore, this sentence is being 
corrected accordingly. In addition, we are capitalizing the first 
letter in the word ``part'' in the phrase ``of this part'' so that its 
form is consistent with the phrase as it is used elsewhere in the rule.
    In Sec.  382.27(a), we state that ``except as provided in * * * and 
Sec. Sec.  382.133(c)(3) and 382.133(d)(3), as a carrier you must not 
require a passenger with a disability to provide advance notice in 
order to obtain services or accommodations required by this Part.'' We 
intended to provide that when a passenger with a disability plans to 
use a respiratory assistive device onboard, as detailed under Sec.  
382.133, the carrier is permitted to require that the passenger provide 
up to 48 hours' advance notice. However, we inadvertently referenced 
the wrong subsections of Sec.  382.133. Neither Sec.  382.133(c)(3) nor 
Sec.  382.133(d)(3) is relevant to the notice issue in question. 
Therefore, we are correcting Sec.  382.27(a) to reference the 
appropriate provisions in Sec.  382.133, which are Sec. Sec.  
382.133(c)(4) and (5) and 382.133(d)(5) and (6).
    In Sec.  382.51(b), we are capitalizing the first letter in the 
word ``part'' in the phrase ``in this part'' so that its form is 
consistent with the phrase as it is used elsewhere in the rule.
    In Sec.  382.111(e), we state that ``[a]ssistance in stowing and 
retrieving carry-on items, including mobility aids and other assistive 
devices stowed in the cabin (see also Sec.  382.91(c))'' must be 
provided. Section 382.91(c) relates to the carriers' responsibility to 
escort passengers with service animals to the service animal relief 
area and is not relevant to the substance of Sec.  382.111(e). This 
typographical error is being corrected by changing ``382.91(c)'' to 
``382.91(d)''.
    In Sec.  382.111(f), we state that a carrier must provide 
``[e]ffective communication with passengers who have vision impairments 
and/or who are deaf or hard-of-hearing, so that these passengers have 
timely access to information the carrier provides to other passengers * 
* *.'' Two mistakes are being corrected by this amendment. First, the 
use of the term ``and/or'' in Sec.  382.111(f) can be read to require a 
carrier to provide deaf-blind passengers onboard the aircraft prompt 
access to information on such things as weather, on-board services, 
flight delays and connecting gates at the next airport. Contrary to 
this construction, we state in the preamble of the rule, on page 27642, 
that because communications with deaf-blind passengers regarding 
constantly-changing information requires highly specialized training 
for the carrier staff, we have determined that it is inappropriate at 
this time to require carriers to provide all the information covered in 
Sec.  382.119 to deaf-blind passengers, including flight delays, 
weather conditions at the flight's destination, and boarding 
information, similar to the types of information referred to under 
Sec.  382.111(f). This inconsistency was due to an editorial error 
which we are correcting by changing the term ``and/or'' in Sec.  
382.111(f) to ``or''. Thus, Sec.  382.111(f) applies only to passengers 
with a visual or a hearing disability, but not to deaf-blind 
passengers.
    We also state in the preamble of the rule, on pages 27640-41, after 
reviewing all the comments regarding the use of the term ``prompt'' 
versus ``timely'' with respect to wheelchair service, we decided to 
retain the ``prompt'' standard as we believe ``prompt'' is a clearer 
description of the actual standard than ``timely''. Throughout the 
relevant provisions in the text of the rule, ``prompt'' is used instead 
of ``timely.'' For instance, in Sec.  382.53(a)(1), we require that a 
carrier must ensure that passengers with a disability who identify 
themselves as persons needing visual or hearing assistance have prompt 
access to the same information provided to other passengers at each 
gate. In Sec.  382.119(a), we impose on carriers a similar standard for 
ensuring that passengers with those disabilities receive prompt access 
to the same information provided to other passengers onboard the 
aircraft. We inadvertently used the term ``timely'' in Sec.  
382.111(f), which renders the provision in this subsection inconsistent 
with our stated intention and the other provisions in the rule. 
Therefore, the term ``timely'' in Sec.  382.111(f) is being changed to 
``prompt.''
    In the rule as published in the Federal Register on May 13, 2008, 
Sec. Sec.  382.151, 382.153, and 382.155 refer to ``a carrier providing 
scheduled service or a carrier providing nonscheduled service using 
aircraft with 19 or more passenger seats * * *.'' The words 
``scheduled'' and ``nonscheduled'' do not add to the meaning of these 
sentences as the phrase ``using aircraft with 19 or more passenger 
seats'' applies to both scheduled and nonscheduled services. 
Consequently, we are striking the distinction between scheduled and 
nonscheduled service so that these provisions simply refer to ``* * * a 
carrier providing service using aircraft with 19 or more passenger 
seats * * *.''
    In Sec.  382.151(c)(1), we state that when a passenger raises a 
disability-related complaint or concern, the carrier personnel must 
``immediately inform the passenger of the right to contact a CRO and 
then contact a CRO on the passenger's behalf or provide the passenger a 
means (e.g., a phone, a phone card plus the location and/or phone 
number of the CRO available at the airport).'' In order to make the 
sentence complete, the phrase ``to do so'' is added after the phrase 
``provide the passenger a means.''

III. Rulemaking Procedures

    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 notice 
and comment procedures are 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 
notice correct typographical and technical errors, omissions, and 
unclear language in the final rule. These corrections are necessary to 
ensure the clarity and 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 notice and comment 
procedures.

IV. Correction of Errors

    In the preamble of the final rule published on Tuesday, May 13, 
2008, 73 FR 27614, the following corrections are made:

A. Corrections to the Preamble

    1. On page 27619, in the third column, in the 11th line, replace 
the

[[Page 44887]]

word ``itself'' with the word ``themselves''.
    2. On page 27620, in the first column, in the 42nd line, add a 
period followed by two spaces between ``airport)'' and ``DOT's''.
    3. On page 27651, in the first column, in the 11th line, replace 
``382.5'' with ``382.7.''
    4. On the same page, in the second column, in the 27th line, 
replace ``382.5'' with ``382.7.''
    5. On page 27654, in the first column, in the 29th and the 30th 
lines, delete the first word ``would'' from the phrase ``if doing so 
would would not result'' so it reads ``if doing so would not result''.
    6. On the same page in the same column, in the 34th line, delete 
the word ``should'' from the phrase ``service would should allow'' so 
it reads ``service would allow''.
    7. On page 27665, in the first column, in the 35th and the 36th 
lines, revise the phrase ``mall carrier use the same airport'' so it 
reads ``Small carriers using the same airport. * * *''
    8. On the same page, in the same column, in the 50th line, delete 
the word ``a'' that was between the words ``the'' and ``present'' so 
the phrase reads ``the present value''.

B. Corrections to the Final Rule

List of Subjects in 14 CFR Part 382

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

0
Accordingly, 14 CFR Part 382 is corrected by making the following 
correcting amendments:

PART 382--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN AIR 
TRAVEL; STOWAGE OF WHEELCHAIRS, OTHER MOBILITY AIDS, AND OTHER 
ASSISTIVE DEVICES

0
1. The authority citation for Part 382 continues to read as follows:

    Authority: 49 U.S.C. 41705.

0
2. In Sec.  382.7, revise paragraph (f) to read as the follows:


Sec.  382.7  To whom do the provisions of this Part apply?

* * * * *
    (f) If you are an indirect carrier, Sec. Sec.  382.1 through 382.15 
of this Part apply to you. Sec. Sec.  382.17 through 382.157 of this 
Part do not apply to you except insofar as provided by Sec.  382.11(b).
* * * * *
0
3. In Sec.  382.11, revise paragraph (b) to read as the follows:


Sec.  382.11  What is the general nondiscrimination requirement of this 
Part?

* * * * *
    (b) As an indirect carrier, you must comply with Sec. Sec.  382.17 
through 382.157 of this Part when providing facilities or services to 
passengers that would have otherwise been provided by a direct air 
carrier.

0
4. In Sec.  382.23, revise the last sentence of paragraph (d) to read 
as the follows:


Sec.  382.23  May carriers require a passenger with a disability to 
provide a medical certificate?

* * * * *
    (d) * * * If the results of this medical review demonstrate that 
the passenger, notwithstanding the medical certificate, is likely to be 
unable to complete the flight without requiring extraordinary medical 
assistance (e.g., the passenger has apparent significant difficulty in 
breathing, appears to be in substantial pain, etc.) or would pose a 
direct threat to the health or safety of other persons on the flight, 
you may take an action otherwise prohibited under Sec.  382.21(a) of 
this Part.

0
5. In Sec.  382.27, revise paragraph (a) to read as the follows:


Sec.  382.27  May a carrier require a passenger with a disability to 
provide advance notice in order to obtain certain specific services in 
connection with a flight?

    (a) Except as provided in paragraph (b) of this section and 
Sec. Sec.  382.133(c)(4) and (5) and 382.133 (d)(5) and (6), as a 
carrier you must not require a passenger with a disability to provide 
advance notice in order to obtain services or accommodations required 
by this Part.
* * * * *


Sec.  382.51  [Amended]

0
6. In Sec.  382.51, amend the last sentence of paragraph (b) by 
replacing the word ``part'' with ``Part''.

0
7. In Sec.  382.111, revise the first sentence of paragraph (e) and 
revise paragraph (f) to read as the follows:


Sec.  382.111  What services must carriers provide to passengers with a 
disability on board the aircraft?

* * * * *
    (e) Assistance in stowing and retrieving carry-on items, including 
mobility aids and other assistive devices stowed in the cabin (see also 
382.91(d)). * * * .
    (f) Effective communication with passengers who have vision 
impairments or who are deaf or hard-of-hearing, so that these 
passengers have prompt access to information the carrier provides to 
other passengers (e.g. weather, on-board services, flight delays, 
connecting gates at the next airport).

0
8. In Sec.  382.151, revise paragraph (a) and amend paragraph (c)(1) by 
adding the phrase ``to do so'' after the phrase ``provide the passenger 
a means'' to read as follows:


Sec.  382.151  What are the requirements for providing Complaints 
Resolution Officials?

    (a) As a carrier providing service using aircraft with 19 or more 
passenger seats, you must designate one or more CROs.
* * * * *

0
9. In Sec.  382.153, revise the introductory text to read as the 
follows:


Sec.  382.153  What actions do CROs take on complaints?

    When a complaint is made directly to a CRO for a carrier providing 
service using aircraft with 19 or more passenger seats, the CRO must 
promptly take dispositive action as follows:
* * * * *

0
10. In Sec.  382.155, revise paragraph (a) by eliminating the reference 
to scheduled and nonscheduled services so the pertinent language reads 
as follows:


Sec.  382.155  How must carriers respond to written complaints?

    (a) As a carrier providing service using aircraft with 19 or more 
passenger seats, you must respond to written complaints received by any 
means (e.g., letter, fax, e-mail, electronic instant message) 
concerning matters covered buy this Part.
* * * * *

    Issued on July 21, 2010 at Washington, DC, under authority 
delegated in 49 CFR 1.57(j).
Robert S. Rivkin,
General Counsel.
[FR Doc. 2010-18531 Filed 7-29-10; 8:45 am]
BILLING CODE 4910-9X-P