Order 2010-6-20

 UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 21st Day of June, 2010

Served June 21, 2010

Petition to stay the 

effectiveness of 14 CFR 382.67 

and 14 CFR 382.123(c) Docket: DOT-OST-2010-0115

RESPONSE TO PETITION

By this order, we are denying JetBlue Airways’ (JetBlue) petition to immediately stay the 

effectiveness of 14 CFR 382.67 and 14 CFR 382.123(c), but also advising it that the Office of 

the Assistant General Counsel for Aviation Enforcement and Proceedings has agreed to its 

request to temporarily not enforce those sections for the reasons discussed below.

The Petition

In July 2009, the U.S. Department of Transportation (Department) committed to conducting a 

rulemaking to determine whether or not the prohibition against using the seat-strapping 

method to transport a passenger’s manual folding wheelchair in the cabin of an aircraft as set 

forth in section 382.123(c)1 should be deleted, modified, or remain as written. By petition 

filed April 8, 2010, Jet Blue requests that the Department immediately stay the effectiveness 

of 14 CFR 382.672

 

1 14 CFR 382.123(c) prohibits carriers from utilizing “the seat-strapping method of carrying a wheelchair in any 

aircraft you order after May 13, 2009 or which are delivered after May 13, 2011.” Any such new aircraft must 

have the designated priority stowage space for a passenger’s manual folding wheelchair as required by section 

382.67.

and 14 CFR 382.123(c) or not enforce those sections for new aircraft 

delivered while the Department completes this rulemaking.

2 14 CFR 382.67 requires carriers to “ensure that there is a priority space in the cabin of sufficient size to stow at 

least one typical adult-sized folding, collapsible, or break-down manual passenger wheelchair, the dimensions of 

which are within a space of 13 inches by 36 inches by 42 inches without having to remove the wheels or 

otherwise disassemble it. This requirement applies to any aircraft with 100 or more passenger seats.”
2

In support of its petition, JetBlue notes that on December 17, 2008, it filed an application for 

an equivalent alternative determination concerning section 382.123(c) of the Department’s 

revised disability rule which the Department denied. JetBlue notes that in denying this 

application, the Department stated the “issues JetBlue has raised do merit further 

consideration in an appropriate forum.” Furthermore, JetBlue notes that Department stated its

intent to “address this matter in a future rulemaking” to be conducted “as expeditiously as 

possible.” JetBlue also highlights the significant cost that it will incur to reconfigure its new 

aircraft to comply with sections 382.67 and 382.123(c), if the Department does not stay the 

effectiveness of sections 382.67 and 382.123(c). No opposition to JetBlue’s request has been 

filed in the Docket. 

Decision

We are denying JetBlue’s petition to immediately stay the effectiveness of sections 382.67 and

382.123(c). Under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., the Department 

would need to conduct a general rulemaking to stay the effectiveness of sections 382.67 and 

382.123(c). The rulemaking process, which generally involves the issuance of a Notice of 

Proposed Rulemaking (NPRM) before any final action is taken, takes time and is not 

immediate. The Administrative Procedure Act allows an agency to deviate from notice and 

comment “when the agency for good cause finds . . . that notice and public procedure thereon 

are impracticable, unnecessary, or contrary to the public interest.” In this instance, inviting 

interested persons to comment on staying the effectiveness of the two provisions of Part 382 

in question is not impracticable, unnecessary or contrary to public interest. Therefore, it is not 

possible to immediately stay the effectiveness of sections 382.67 and 382.123(c) for JetBlue 

and other similarly situated carriers. We note that the Department is already working in an 

expedited manner to publish an NPRM seeking comment on whether or not seat-strapping 

should be allowed as a means to stow a passenger’s manual folding wheelchair. 

With respect to JetBlue’s request to not enforce sections 382.67 and 382.123(c), the authority 

to pursue or not to pursue enforcement action against airlines with respect to air travel 

consumer protection and civil rights requirements lies with the Department’s Office of the 

Assistant General Counsel for Aviation Enforcement and Proceedings. In response to this 

request, the Assistant General Counsel has agreed not to enforce sections 382.67 and 

382.123(c) while the Department completes this rulemaking process. As a matter of 

prosecutorial discretion, the Office of the Assistant General Counsel for Aviation 

Enforcement and Proceedings will not enforce the requirement that aircraft ordered after May 

13, 2009, or delivered after May 13, 2010, have a priority space in the cabin of sufficient size 

to stow a passenger’s manual folding wheelchair as required by section 382.67 and will allow 

carriers to continue using seat-strapping, as permitted by the Federal Aviation Administration 

or, if applicable, foreign safety authorities, until the rulemaking process is complete. With 

that being said, the Assistant General Counsel has stated that if, based on comments received 

in the rulemaking process, the Department determines that sections 382.67 and 382.123(c) 

should remain as written, all covered carriers, including JetBlue, would be expected 

expeditiously to retrofit any aircraft ordered after May 13, 2009, or delivered after May 13, 
3

2010, without a priority space, to include a priority space as is currently required by section 

382.67 and to discontinue the use of seat-strapping as is prohibited by section 382.123(c).

ACCORDINGLY, we are denying JetBlue’s petition to immediately stay the effectiveness of 

14 CFR 382.67 and 14 CFR 382.123(c) but also advising it that the Office of the Assistant 

General Counsel for Aviation Enforcement and Proceedings has agreed to its request to 

temporarily not enforce those sections. A copy of this order will be served on the petitioner.

By:

Susan Kurland

Assistant Secretary for Aviation 

 and International Affairs

(SEAL)

An electronic version of this document is available at

www.regulations.gov