DOT extends period for commenting on proposed rule enhancing airline passenger protections

August 3, 2010

In response to numerous requests, DOT has extended the comment period for “Enhancing Airline Passenger Protections,” a Notice of Proposed Rulemaking the agency issued in June 2010, from August 9 to September 23, 2010.  If adopted, the proposed rule, which can be found at 75 F.R. 32318 (June 8, 2010), would substantially expand DOT’s rule of the same name that regulates lengthy tarmac delays and went into effect on April 29, 2010.  See 74 F.R. 68983 (Dec. 30, 2009).

Although the proposed rule covers 12 different areas, its primary focus is on tarmac delays.

The rule that went into effect on April 29 requires that each covered U.S. airline adopt a “Contingency Plan for Lengthy Tarmac Delays” that applies to its “scheduled and public charter flights at each large and medium hub U.S. airport.”  For domestic flights, the Contingency Plan must include an assurance that the airline will not permit an aircraft to remain on the tarmac for more than three hours, unless certain safety or security conditions apply.  For international flights that depart from or arrive at a U.S. airport, the Contingency Plan must include an assurance that the airline will not permit an aircraft to remain on the tarmac “for more than a set number of hours, as determined by the carrier and set out in its contingency plan,” unless certain safety or security conditions apply.  For all flights, the Contingency Plan must include an assurance that the airline will provide adequate food and water, lavatory facilities and, if needed, medical attention.  The required Contingency Plan assurances are all contained in 14 C.F.R. § 259.4.

An airline’s failure to comply with any of the required Contingency Plan assurances is considered an unfair and deceptive practice within the meaning of 49 U.S.C. § 41712.  See 14 C.F.R. § 259.4(e).  This means that a violation of the assurances could result in, pursuant to 14 C.F.R. § 383.2, a civil penalty by DOT of up to $27,500 per violation.

DOT’s proposed rule would expand 14 C.F.R. § 259.4 by requiring, among other things, (i) each foreign airline operating scheduled passenger or public charter service to and from the United States to adopt a contingency plan “that includes minimum assurances identical to those currently required of U.S. carriers for the latter’s international flights,” and (ii) each covered airline to adopt a contingency plan covering not just large hub and medium hub U.S. airports, but small hub and non-hub U.S. airports as well.

Thus, if the proposed rule were adopted in its present form, it would not result in the imposition of a fixed time limit for U.S. or foreign airlines to deplane passengers on international flights during tarmac delays.  But a fixed time limit might be on the horizon.  While DOT recognizes that “most international flights operate less frequently than most domestic flights, potentially resulting in much greater harm to consumers if carriers cancel these international flights (e.g., passengers are less likely to be accommodated on an alternate flight in a reasonable period of time)”, DOT nonetheless is requesting comments “on whether any final rule that we adopt should include a uniform standard for the time interval after which U.S. or foreign air carriers would be required to allow passengers on international flights to deplane.”

The proposed rule also proposes to strengthen the oversales (or “bumping”) regulations in 14 C.F.R. Part 250, to strengthen DOT’s enforcement policy regarding full fare advertising, to codify DOT’s longstanding policy that a forum selection provision in an airline’s contract of carriage is an unfair and deceptive practice under certain circumstances and to make several other substantial consumer-oriented changes.  One of these other proposed changes pertains to the accommodation of travelers with peanut allergies.

Although the regulations implementing the Air Carrier Access Act and the Americans with Disabilities Act define “disability” using almost identical language (compare 14 C.F.R. § 382.3 with 42 U.S.C. § 12102(1)), DOT considers a severe peanut allergy to be a “disability,” while the Eighth Circuit, the only federal appeals court to rule on this issue, held that it is not a “disability.”  See Land v. Baptist Medical Center, 164 F.3d 423 (8th Cir. 1999).  In 1998, DOT attempted to enforce its policy by requiring that airlines, if given advance notice, provide a “peanut-free buffer zone” in the immediate area of a passenger with a severe peanut allergy.  In 1999, Congress smacked this requirement down, and DOT backed off – until now.

The notice indicates that DOT is considering the following alternative measures to address the peanut allergy issue:  (i) “banning the serving of peanuts and all peanut products by both U.S. and foreign carriers on flights covered by DOT’s disability rule,” (ii) “banning the serving of peanuts and all peanut products on all such flights where a passenger with a peanut allergy is on board and has requested a peanut-free flight in advance,” and (iii) “requiring a peanut-free buffer zone in the immediate area of a passenger with a medically-documented severe allergy to peanuts if [the] passenger has requested a peanut-free flight in advance.”

The peanut growers’ trade associations are very strong, they remember the peanut allergy rebellion of 1998-99 very clearly and they responded very quickly.  As a result, on June 22, DOT issued a “Clarification” recognizing that, as a result of the 1999 legislation, it is barred from adopting any peanut restrictions “until 90 days after submission to the Congress and the Secretary of a peer-reviewed scientific study that determines that there are severe reactions by passengers to peanuts as a result of contact with very small airborne peanut particles of the kind that passengers might encounter in an aircraft.”  The Clarification does not mention whether DOT intends to commission such a study.

The notice also indicates that DOT is considering requiring that carriers make epinephrine auto-injectors available on flights; it requests comments on the question of “Who should be responsible for ensuring an epinephrine auto-injector is available on a flight – the passenger with a severe peanut allergy or the carrier?”  Of course, this question raises others as well.  If airlines are required to stock Epi-Pens on their aircraft, will flight attendants be required to inject passengers under certain circumstances?  Should an Epi-Pen be given to an unaccompanied minor?  Will airlines be liable if the passenger has an adverse reaction to the epinephrine?  If the aircraft are being stocked with Epi-Pens, then why not also stock them with insulin and other medicines?  One can only hope that, ultimately, DOT is able to resist its apparent desire to make airline personnel try to function as immunologists.

Comments on the proposed rule may be filed in docket DOT-OST-2010-0140.


Court holds that no implied ACAA private right of action exists

May 9, 2008

Wright v. American Airlines, Inc. (E.D. Mo. Mar. 3, 2008).  The plaintiff filed suit for herself and her minor son against American, alleging that her son was injured because he was denied accommodations for his disability, osteogenesis imperfecta, also known as “Brittle Bone Disease,” while traveling on American’s flights.  She alleged a cause of action under the federal Air Carrier Access Act, 49 U.S.C. § 41705, which prohibits airlines from discriminating against disabled persons, as well as various state law causes of action.  According to the plaintiff, DOT had determined that American had violated the ACAA with respect to its treatment of her son by failing to provide timely lift assistance and accurate information as to the aircraft’s accessibility.

American moved to dismiss the ACAA count on the grounds that an individual has no private right of action to enforce the ACAA.  The ACAA does not expressly provide a private right of action.  American contended that the ACAA’s comprehensive administrative enforcement scheme, which gives DOT the power to force compliance with the ACAA, to revoke an airline’s carrier certificate and to impose fines, indicates that Congress did not implicitly intend to provide individuals with a private right of action to enforce the ACAA.

The court agreed with American.  Although the Eighth Circuit had concluded in a 1989 case that an implied private right of action to enforce the ACAA did exist, the Supreme Court had adopted a new test in Alexander v. Sandoval, a 2001 case, that restricted the circumstances under which a court may determine that a implied private right of action exists under a federal statute.  Siding with other post-Sandoval cases, the court held that the ACAA does not provide a private right of action, reasoning that the statute’s extensive administrative enforcement scheme suggested that Congress “intended to preclude alternative means of enforcing the statute.”  Accordingly, the court dismissed the ACAA count.


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