United States: DOT Proposes Revised Disability Access Rules For U.S. And Foreign Air Carriers

This article highlights an important development for domestic and foreign airlines, airports and travel agents. We previously reported ("DOT Ramps up Enforcement of Disability Access Regulations," Dec. 15, 2003) that the Department of Transportation ("DOT") would issue proposed rules applying its existing disability access rules to foreign air carriers, and, after four years of development, DOT recently issued its Notice of Proposed Rulemaking ("NPRM") on Nondiscrimination on the Basis of Disability in Air Travel. The NPRM contains two major changes. First, DOT responded to a Congressional mandate to apply its disability-related rules to foreign air carriers. Second, DOT completely rewrote these rules (14 C.F.R. Part 382) in "plain English," clarifying and updating them to more accurately reflect the current state and technology of air transportation. Comments are due by February 2, 2005.

In 2000 Congress amended the Air Carrier Access Act to have it apply to foreign air carriers. Soon thereafter, DOT issued a notice to foreign air carriers informing them that DOT would use the then-existing regulations (directed to domestic air carriers) as guidance when investigating disability-related complaints against them. To date, DOT has been conservative in bringing enforcement action against foreign air carriers for violations of these regulations, no doubt in part because of the lack of formal rules. Once a Final Rule is adopted and regulations are implemented, however, DOT’s enforcement staff will likely enforce the rule as aggressively as they have against domestic air carriers.

DOT has proposed a mechanism by which a foreign air carriers could apply for a waiver of part or parts of the rule if such carrier believes there is a direct conflict between DOT’s rule and the carrier’s homeland laws. This waiver option is not, however, available if the homeland government’s requirements are simply different than DOT’s. In addition, a waiver applicant must provide an alternative means of compliance with DOT’s rule.

Air carriers and airport compliance personnel will find the NPRM a welcome change from the existing rule. Instead of a confusing and legalistic text, the NPRM’s language is simple, clear, and in a question and answer format.

In addition to these stylistic changes, DOT has updated and clarified certain aspects of the existing rule, including:

• Clarified the basis upon which an air carrier may deny air transportation to a passenger, that air carriers may charge for services not required by the rule (e.g., medical oxygen) and for two seats if a passenger physically occupies them, the moveable armrest calculation standards, and that contractors which provide services to the public (i.e., travel agents) on behalf of airlines must comply with the rule;
• Obligated air carriers to provide transportation assistance to passengers with disabilities through the terminal to connecting flights; and
• Required foreign airport facilities used by air carriers for flights which begin or end in the United States to be accessible to persons with disabilities; and,
• Mandated that air carrier web sites be accessible to all persons, including the blind or visually impaired.

DOT requested comments on the entire proposed rule, including comments on its detail, scope, clarity, compliance dates, and economic impact. It also requested comments on certain topics DOT may regulate in the future, including:

• Accessibility standards for electronic ticketing kiosks;
• Whether aspects of the rules should extend to foreign travel agents;
• Whether the Architectural and Transportation Barriers Compliance Board’s electronic information accessibility standards (36 C.F.R. Part 1194) should serve as the model for DOT’s rule requiring air carrier web sites to be accessible to persons with disabilities, including whether these standards should be modified for the air carrier context and/or whether other standards are more appropriate.
• What standards should apply for carrier-imposed security screening when air carrier personnel must communicate with persons with disabilities?

DOT has allotted almost four months for the submission of comments from interested parties. It is essential that air carriers, especially foreign air carriers, consider carefully the impact of these proposed rules on their operations and whether – and to what extent – they may conflict with homeland government disability laws. Air carriers who participate in this rulemaking process have a unique opportunity to shape the rules which will ultimately govern their day-to-day business, and we recommend that all air carriers consider doing so.

Further Information

Please contact us if you would like more information about the NPRM, assistance in assessing its impact upon your operations, providing comments to DOT, or copies of any of the materials mentioned in this article. we would be pleased to answer any questions you may have on this or other DOT aviation matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.