14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

382.7 To whom do the provisions of this Part apply? The rule applies to all U.S. carriers, regardless of where their operations take place, except where otherwise provided in the rule. With respect to foreign carriers, the application of the rule is more limited. Only flights of foreign carriers that begin or end at a U.S. airport, and aircraft used in these operations, are covered. A flight means a continuous journey of a passenger in the same aircraft or using the same flight number. The rule provides several examples of what constitutes a “flight” and what does not. Notably, a foreign carrier is not covered under the rule with respect to an operation between two foreign points, even if, under a code-sharing arrangement with a U.S. carrier, the foreign carrier transports passengers flying under the U.S. carrier’s code. The U.S. carrier, however, is covered under the rule with respect to the passengers traveling under its code on such a flight, such that if there is a violation of the Part 382 rights of a passenger traveling under the U.S. carrier’s code, the Department would hold the U.S. carrier, not the foreign carrier, responsible. Finally, a charter flight on a foreign carrier from a foreign airport to a U.S. airport and back would not be covered if the carrier did not pick up any passengers in the U.S.

In the DHH NPRM, we proposed that the provisions concerning deaf, hard of hearing, and deaf-blind passengers apply to all U.S. carrier operations and to all flights operated by foreign carriers that begin or end at a U.S. airport. We proposed that in the case of flights operated by foreign carriers between two foreign points that are codeshared with a U.S. carrier, the service-related requirements of the rule would apply to the U.S. carrier whose code is used but not the aircraft accessibility and equipment requirements. In addition, we observed in the Preamble that §382.51, which governs audio-video displays at airports, carves out an exception for U.S. and foreign carriers at foreign airports: §382.51 applies by its terms only to U.S. airport terminal facilities owned, leased, or controlled by U.S. or foreign carriers. We solicited comments on the cost and feasibility of requiring U.S. carriers to modify equipment, space, or both at foreign airport terminals that they lease, own, or control.

Consistent with their comments on the Foreign Carriers NPRM, foreign carriers and carrier associations that filed comments generally criticized the Department, saying that it had acted unilaterally in this area. Some contended that Part 382 should not apply to flights that are not part of a single journey to or from the United States in the same aircraft with the same flight number. One U.S. carrier, Delta, expressed concern that its foreign codeshare partners might find the requirements so onerous that they will end the code-sharing rather than comply, precipitating declines in service and competition. One association of U.S. carriers supported the applicability of Part 382 to foreign carriers, as did the disability groups and individuals that commented. The Regional Airline Association (“RAA”) asked the Department to exempt all aircraft of up to 30 seats from the rule because its requirements will create excessive burdens for operators of small aircraft.

The individuals and disability organizations that filed comments generally favored making the rule applicable to all foreign carrier flights that originate or end at a U.S. airport and to foreign carrier flights between two foreign airports that are codeshared with a U.S. carrier.

We find unpersuasive the foreign carriers’ suggestions that in applying these requirements to them we are somehow exceeding our authority. As we explained in the Foreign Carriers and DHH NPRMs, in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), Congress amended the Air Carrier Access Act (ACAA) to include foreign carriers in the prohibition against discriminating against otherwise qualified individuals with disabilities. This rulemaking merely implements that law. This Department’s authority to issue regulations that apply to foreign carriers is well-established. This general issue is discussed at greater length in the “Response to Comments” portion of the preamble above. In that section, the Department explains the final rule’s approach to the issue of code-sharing, which applies to deaf and hard-of-hearing issues as well as to other provisions of Part 382.

The service-related requirements regarding deaf, hard of hearing, and deaf-blind passengers that apply to U.S. carriers on codeshare flights operated by their foreign-carrier partners between two foreign points are those listed in §382.119. Although we are not applying these requirements to the foreign carrier operating these flights, the U.S. carrier will be subject to enforcement action if the foreign carrier fails to provide the required information promptly to “qualified individuals with a disability who identify themselves as needing visual and/or hearing assistance” and whose tickets bear the code of the U.S. carrier. The aircraft-accessibility requirements set forth in §382.69 do not apply on such flights. Part 382 has no equipment requirements specific to deaf, hard of hearing, and deaf-blind passengers.

As for RAA’s request, the evidence in the record does not provide a basis for a blanket exemption from Part 382 for aircraft with 30 or fewer seats. If an airport or aircraft operator does not use a particular technology, sections concerning that technology would not apply. Normal provisions concerning exemptions from Office of the Secretary rules (see 49 CFR Part 5) could be used if a carrier or airport believes an exemption is needed in a particular situation.