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)

Other International Law Issues

A number of foreign carriers said that application of the rule alike to U.S. and foreign carriers was unfair, in that U.S. carriers receive Federal funds to support their operations, while European and other foreign carriers do not. Commenters also argued that it was unfair for DOT to allow U.S. carriers to avoid civil penalties if they have introduced programs that go beyond minimum requirements.

The Department disagrees with both these comments. The very reason for the existence of the ACAA is that the Supreme Court, in Paralyzed Veterans of America v. Civil Aeronautics Board, 477 U.S. 597 (1986), determined that, with minor exceptions not germane to the issue raised by commenters, U.S. carriers do not receive Federal financial assistance. For this reason, the Court said, section 504 of the Rehabilitation Act of 1973 – which applies only to entities receiving Federal financial assistance – largely does not cover U.S. air carriers. Congress then enacted the ACAA to ensure that U.S. air carriers provided nondiscriminatory service to passengers with disabilities, notwithstanding the absence of Federal financial assistance. The situation that the Court saw in 1986 remains: U.S. carriers engaging in international transportation do not receive Federal financial assistance.

The second of these comments appears to be a somewhat inaccurate reflection of a DOT enforcement policy that, in some cases, allows a carrier to invest part of a civil penalty to improve services for passengers with disabilities above and beyond what the ACAA requires, rather than paying the amount of this investment to the Department. For example, if a carrier were assessed a $1.5 million civil penalty for failure to provide timely and adequate assistance to passengers who use wheelchairs, the Department’s Office of Aviation Enforcement and Proceedings might require a cash payment of only $200,000 if the carrier agreed to use the remaining $1.3 million to enhance accessibility for passengers with mobility impairments in ways that go beyond the requirements of Part 382. Since this enforcement approach applies equally to foreign and U.S. carriers, continued implementation of this policy will not result in any inequity between U.S. and foreign carriers.

Numerous foreign carriers and organizations complained that the Foreign Carriers NPRM was inconsistent with 49 U.S.C. 40105(b), which directs the Secretary to “act consistently with obligations of the United States government under an international agreement” and to “consider applicable laws and requirements of a foreign country.” In the context of this rule, the Department believes that the conflict of laws waiver provision effectively discharges the statutory obligation imposed on the Department by the language of subsection (b)(1)(B), since the Department would “consider” foreign requirements in implementing its waiver authority when a Department regulatory provision was shown to conflict with a foreign legal mandate. In addition, the Department has also provided greater flexibility in the rule through incorporating an equivalent alternative provision, which covers policies and practices that are not mandated by foreign laws and requirements. This provision will facilitate our efforts to implement ACAA requirements smoothly in the context of our international relationships.

A related argument that many foreign carriers made is that the Foreign Carriers NPRM proposed provisions inconsistent with international agreements binding on the U.S., thereby violating subsection (b)(1)(A). In particular, commenters cited provisions of the Chicago Convention (e.g., Articles 1 and 37 and Annex 9). Article 1 concerns the sovereignty of signatory states with respect to aviation; Article 37 authorizes the International Civil Aviation Organization (ICAO) to adopt standards and recommendations in a variety of areas, and Annex 9 includes a series of standards and recommendations concerning transportation of persons with disabilities.

In the Department’s view, Article 1 is fully consistent with the adoption of requirements that affect flights to and from the U.S., a point with which many commenters agreed. The one area in which the Foreign Carriers NPRM was said by many commenters to assert extraterritorial jurisdiction – coverage of foreign carriers with respect to flights carrying passengers under the code of a U.S. carrier – has been changed in the final rule, as described above.

The authority of ICAO under Article 37 to issue standards and recommendations does not purport to pre-empt a signatory state’s authority to issue rules concerning air commerce to and from its airports. Nor do the standards and recommendations of Annex 9 with respect to transportation of passengers with disabilities purport to occupy the field, such that member states are pre-empted from issuing their own rules in this area. Indeed, the ICAO recommended practices suggest that member states should take their own implementing actions. It is reasonable to state that the provisions of the ACAA and Part 382 faithfully carry out these recommendations, making concrete many of the suggestions that ICAO makes to member states.

The two ICAO standards in Annex 9 related to transportation of passengers with disabilities are the following:

Standard 8.27. Contracting States shall take the necessary steps to ensure that airport facilities and services are adapted to the needs of persons with disabilities.

Standard 8.34. Contracting States shall take the necessary steps to ensure that persons with disabilities have adequate access to air services.

The ACAA rule does not conflict with these standards, it supports them. The rule requires that airport facilities and services involving transportation to and from the U.S. provide nondiscriminatory service to passengers with disabilities. The rule includes a variety of steps necessary to ensure that passengers with disabilities have nondiscriminatory access to air services, again in transportation to and from the U.S.

Some commenters alleged that requirements of the Chicago Convention regarding "notification of differences" should apply to the rulemaking and that the Department had failed to comply with them. The relevant language is the following:

Notification of differences. The attention of Contracting States is drawn to the obligation imposed by Article 38 of the Convention by which Contracting States are required to notify the Organization of any differences between their national regulations and practices and the International Standards contained in this Annex and any amendments thereto. Contracting States are invited to extend such notification to any differences from the Recommended Practices contained in this Annex, and any amendments thereto.

The requirement for a notification of differences applies only to differences between Standards and national regulations. As noted above, there are no differences between the ICAO Standards and the ACAA rule. The Convention’s language says that States are “invited” to extend notification to ICAO with respect to any differences from Recommended Practices. Obviously, an “invitation” falls well short of a legal mandate. In any event, the ACAA requirements have the effect of carrying out the Recommended Practices. We reject any assertion that, by making specific accommodations mandatory (e.g., by saying “must” instead of “should”) or by limiting airline discretion to provide poorer rather than better accommodations for passengers (e.g., with respect to service animals), the rule is creating “differences” with International Standards cognizable under provisions of the Chicago Convention.

In connection with their Chicago Convention-related arguments, a number of foreign carriers or organizations cited British Caledonian Airways v. Bond, 665 F.2d 1153 (D.C. Cir., 1981). This case arose from the crash of a DC-10 that FAA traced to cracks in engine pylons that were exacerbated by faulty maintenance procedures. FAA issued an emergency Special Federal Aviation Regulation (SFAR) grounding all DC-10s of U.S. carriers. FAA then issued a similar SFAR prohibiting foreign carriers’ DC-10s from operating in U.S. airspace. Shortly before FAA rescinded the SFARs in question, their purpose having been achieved, several foreign carriers sought judicial review of the foreign carrier SFAR. The Court found that the SFAR conflicted with Article 33 of the Chicago Convention, which provides that certificates of airworthiness or licenses issued by the State in which the aircraft is registered must be recognized as valid by other contracting States, unless the country of registration is not observing “minimum standards.”

This case concerns solely Article 33 and its relationship to the validity of carrier airworthiness certificates issued by foreign governments. This rulemaking, on the other hand, has nothing to do with Article 33 or airworthiness certificates. The case therefore is irrelevant to the rulemaking. It may be that commenters were arguing that DOT regulatory actions in general that conflict with the Chicago Conventions are vulnerable to court challenges; however, as noted above, this regulation is fully consistent with relevant portions of the Chicago Convention.

Other comments from foreign carriers and organizations were more policy-oriented in nature, asking for consultation through ICAO or other channels prior to publication of a rule which, while carefully limited to matters affecting service to and from the U.S., had implications for the international aviation system. Comments asked for greater focus on international harmonization. In fact, the Department consulted extensively with other interested parties. The volume and detail of comments from foreign carriers and organizations testify to the extensive opportunity non-U.S. parties have had to participate in this rulemaking. This final rule reflects the Department’s consideration of this participation (and we note that participation between the time of the Foreign Carriers NPRM and the final rule is just as valid as participation before issuance of the Foreign Carriers NPRM). DOT officials also met and had phone conferences with organizations representing European and Asian governments and/or carriers. It would be unreasonable to contend that this extensive participation somehow does not count.

The Department is willing to continue discussions with foreign carriers and international organizations with respect to harmonization of U.S. and other standards in the area of transportation of passengers with disabilities. Meantime, the Department has a responsibility to carry out its statutory mandate to apply the ACAA to foreign carriers, and we cannot make working with other parties on harmonization matters a condition precedent to carrying out what Congress has mandated.

Some comments alluded to the regulatory negotiation process that preceded the issuance of the original ACAA NPRM, complaining that there was not a similar process prior to the issuance of the November 2004 NPRM. Regulatory negotiation, is, of course, a wholly voluntary process on the Department’s part. There can be no implication that, because the Department chose to use such a process in the 1980s, the Department was in any sense required to do so again for this rulemaking. Nor is there any such requirement in the statutory amendment applying the ACAA to foreign carriers. It is worth noting, in any event, that the original ACAA NPRM was not the product of consensus resulting from the regulatory negotiation. That negotiation terminated short of consensus, because of intractable disagreements on some issues between carriers and disability groups. The original NPRM, like the 2004 NPRM, was wholly the Department’s proposal. The variety of disagreements among commenters concerning the November 2004 NPRM suggests, in retrospect, that the likelihood of achieving consensus on the application of the ACAA to foreign carriers in a manner consistent with the Department’s obligations under the ACAA would have been very low. Moreover, in the years since the original ACAA regulatory negotiation, disability groups have expressed some skepticism about the utility of the regulatory negotiation process for nondiscrimination rules of this kind, making it questionable whether they would have chosen to participate in such a venture.