Order 2010

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UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

on the 21 st D ay 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

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- 2010

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RESPONSE TO PETITION

By this order, we are denying JetBlue Airways’ (JetBlue) petition to imme diately 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 th e 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 m anual 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 382.67 2

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 whi ch 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 sp ace 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 whe els 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 alterna tive d etermination 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 i n 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 recon figure its new aircraft to comply with sections 382.67 and 382.123(c), if the Department does not stay th e effectiveness of sections 382.67 and 382.123(c). No opposition to JetBlue’s request has been

filed in the Docket.

Decision

We are deny ing JetBlu e’s petition to immediately stay the effectiveness of sections 382.67 and 382.123(c)

. Und er the Administrative Procedure Act, 5 U.S.C. § 551 et seq., t he Department

would need to conduct a general rulemaking to s tay the effectiveness of sections 382.67 an d 382.123(c)

. The rulemaking process

, which genera lly involves the issuance of a Notice of Proposed R ulemaking (NPRM) before any final action is taken

, takes time and is not

immediate. T he Administrative Procedure Act allows an agency to deviate from not ice 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 a n NPRM seeking comment on whether or not seat

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

With re spect to JetBl ue’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

A ssistant General Counsel for Aviat ion 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

. A s 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, unti l the rulemaking process is co mplete. With that being said, the Assistant General Counsel has stated that i f

, 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 C FR 382.67 and 14 CFR 382.123(c) but also advising it that the Office of the Assis tant 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 Interna tional Affairs

(SEAL)

An electronic version of this document is available at www.regulations.gov