On May 13, 2009, the provisions of the reformed Air Carrier Access Act (ACAA) will be effective, and commercial carriers (including foreign carriers) need to prepare to comply with its amendments. The Act has been amended ten times since 1990, and the Department of Transportation has frequently issued guidance and interpretation of the Act. Recognizing the need for the patch-work body of law relating to the ACAA to be collected in one place, the Department of Transportation issued multiple notices of proposed rulemaking in 2007 and 2008, and then issued a notice on May 13, 2008 announcing its final rule that the entire ACAA would be reorganized and updated.

The Changes

In addition to the use of revised “plain language” to make the regulations easier to understand, and to update the Act to encapsulate previously issued guidance and changes in airline operations over the last eighteen years, the amendments to the ACAA add new antidiscrimination provisions concerning passengers who are deaf or hard-of-hearing and passengers who require the use of service animals. However, the two main categories of amendments to the ACAA are: 1) applicability of the Act to foreign carriers, and 2) new antidiscrimination provisions concerning passengers who require the use of medical oxygen.

Foreign Carriers

Originally, the ACAA only applied to U.S. air carriers. However, in April of 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21^st Century (AIR-21) amended the ACAA to include foreign carriers. However, the requirements of AIR-21 were very general (i.e., requiring foreign carriers to not discriminate against the physically and mentally impaired), and the Department of Transportation issued a notice of proposed rulemaking in November 2004 to apply the ACAA to foreign carriers in a manner that achieved the nondiscrimination policies therein without imposing undue burden on foreign carriers.

The revised ACAA will apply to foreign carriers when operating a continuous flight in the same aircraft (or with one flight number) that begins or ends at a U.S. airport. Foreign carriers operating a flight between two foreign points will not be subject to the ACAA.[1] Also, foreign carriers operating a charter flight from a foreign point to a U.S. airport, and then returning to a foreign point without picking up any passengers at the U.S. airport, will not be subject to the ACAA.

One of the main issues with making the ACAA applicable to foreign carriers is the question of conflicts of law. If a foreign carrier alleges a conflict between the law of a foreign sovereign and a provision of the ACAA, the foreign carrier may request a waiver of the provision. The waiver request must explain how the foreign carrier will provide an effective alternative means of achieving the objective of the provision of the ACAA that will be waived (or a demonstration by clear and convincing evidence that such objective would be impossible to achieve).[2] Until such waiver request is ruled upon, a foreign carrier must comply with the ACAA.[3]

Medical Oxygen

After receiving over 1800 comments regarding the proposed regulations relating to medical oxygen and portable respiratory assistive devices, the Department of Transportation decided to implement provisions related to the evaluation and use of passenger-owned respiratory assistive devices during all phases of flight. The provisions allow for the use of four types of devices: ventilators, respirators, continuous positive airway pressure (CPAP) machines, and portable oxygen concentrators. Any such machines will have to be tested for electromagnetic interference by their manufacturer to ensure compliance with FAA regulations, and display labels reflecting their compliance.

If a passenger wishes to use an approved respiratory assistive device (and complies with the notice and advance check-in requirements, amongst other things), both U.S. and foreign carriers must permit the passenger to operate the device during all phases of flight. In addition, the carriers must make reasonable accommodations for passengers with respiratory assistive devices including providing information during the reservation process, assisting with boarding the aircraft, and placing the passenger next to an electrical outlet where available. The largest hurdle for most carriers will be to provide the required initial and refresher training to its reservations agents and flight crews necessary to meet the requirements of the ACAA as amended.