Airline Passenger Rights "Peanut allergies" DOT Agency Proposal

Reprint from DOT Website



Agency Proposal
By the Regulation Room team based on the NPRM
Agency Documents
1 140 PEANUT ALLERGIES
What’s Going on Here Now?
1. Comment is closed on this post. We are now in the summary-building phase.
A summary of all discussion on Peanut Allergies will be sent to DOT Department of Transportation and become part of the official record of the rulemaking. The first draft of this summary is available here. You can review and comment on the draft until September 17.
After September 17, the Regulation Room Team will revise the draft based on everyone’s comments. The Final Summary of Discussion will be posted here on Regulation Room and submitted to DOT Department of Transportation no later than September 23 (when the public comment period officially ends).
2. Scientific evidence about peanut allergies is very important to what DOT Department of Transportation should do. The Regulation Room team has sent email invitations to allergy researchers asking them to discuss what the evidence shows. You can get more details about who was invited, and read what the experts are saying, here.
Only invited experts can comment on the Peanut Expert page. If you know of an expert who hasn’t been invited, contact us at regulationroom@cornell.edu.
Overview:
Note: This post has been revised to reflect the Clarification issued by DOT Department of Transportation on June 22, 2010.

Peanut allergies can be more serious than a lot of us realize, especially for children. DOT Department of Transportation believes that a severe peanut allergy counts as a disability — and federal law prohibits air carriers from discriminating against individuals with a disability. DOT Department of Transportation is wondering whether specific steps should be taken to accommodate air travelers with severe peanut allergies — and what those steps should be. Before it could push airlines to take such steps, DOT Department of Transportation has to report to Congress about scientific evidence that such allergies can be triggered by airborne peanut particles – which is why DOT Department of Transportation is specifically asking people for information about such studies, as well as for their personal stories.
This post will tell you more about what the problems have been, and what solutions DOT Department of Transportation is considering — and alert you to questions DOT particularly wants people to comment on.

2 24 The Problems:
Not all peanut allergies are serious enough to keep the sufferer off airplanes. But when airlines serve peanuts on board as an in-flight snack, severe allergy sufferers may not even have to eat the peanuts to have a reaction. For these travelers, including many children, just the presence of peanut particles in the air can bring on a life-threatening allergic reaction.
Congress has given DOT Department of Transportation mixed signals on this issue. The Air Carrier Access Act prohibits discrimination against those with disabilities by U.S. and foreign air carriers, and DOT regulations require airlines to accommodate travelers with disabilities unless doing this would cause an “undue burden” or require the airline to “fundamentally alter its services”. But in 1999, when DOT Department of Transportation informed airlines that this applied to peanut allergies, Congress withdrew DOT Department of Transportation funding for any restriction on airline peanut practices.
Usually funding restrictions like this last for only one year, but Senator Richard Shelby, the Senator from Alabama responsible for adding this item to DOT’s 1999 appropriations bill, worded the restriction to apply to funding “under this Act or any other Act.” DOT has clarified that it realizes that this language means the restriction is still in effect – a move that was praised by two Representatives of Georgia, Sanford Bishop and Jim Marshall. But there’s another way in which the 1999 funding restriction was unusual: The restriction applies only “until 90 days after submission to the Congress and the Secretary [of Transportation] 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.” So, it comes down to whether there’s data about the seriousness of the problem.

3 164 The Proposed Solutions:
DOT thinks perhaps the time has come to address again the problems of travelers with severe peanut allergies. It is considering the following options:

• An outright ban on airlines serving peanuts and peanut products
• Banning service of peanuts and peanut products only on a flight where a passenger with a peanut allergy requests a peanut-free flight in advance
• Requiring the airline to provide a peanut-free buffer zone around a passenger with a medically-documented severe peanut allergy if the passenger makes a request in advance.

But DOT Department of Transportation is open to other solutions, as well as to not adopting any regulation on this issue. See next section. Most important, the first step is that DOT Department of Transportation has to present scientific evidence, accepted as valid by experts who did not actually do the study (“peer-reviewed”), that airborne peanut particles circulating in airplane air can cause severe reactions.

4 203 What DOT Department of Transportation wants to know from you:
How likely it is that a passenger with a severe peanut allergy will suffer a reaction from peanut particles in the air on a flight? DOT Department of Transportation is asking for both individual stories of serious in-flight medical problems from airborne peanut particles, and scientific studies on the issue.
Assuming that such studies exist, what steps should airlines have to take, if any, to avoid this danger? Would an epinephrine auto-injector, to allow immediate treatment of an allergic reaction, be sufficient? If so, should it be the responsibility of the airline, or the passenger, to provide it?
Should any food item containing peanuts be covered in a restriction, including e.g., peanut butter crackers and products containing peanut oil?
See what DOT Department of Transportation said on this issue: NPRM Section 12; Clarification.

See the proposed rule text on this issue: DOT has not proposed specific text yet because it first needs to present scientific evidence to Congress.
Got data? DOT Department of Transportation is looking for some.

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

14 CFR Code of Federal Regulations PARTS 234, 244, 250, 253, 259, and 399

Docket No. DOT-OST-2010-0140

RIN No. 2105-AD92

Enhancing Airline Passenger Protections

AGENCY: Office of the Secretary (OST), Department of Transportation (DOTDepartment of Transportation) .
ACTION: Notice of Proposed Rulemaking (NPRMNotice of Proposed Rulemaking: the official document announcing and explaining the proposed rule) .
SUMMARY: The Department of Transportation is proposing to improve the air travel environment for consumers by: increasing the number of carriers that are required to adopt tarmac delay contingency plans and the airports at which they must adhere to the plan’s terms; increasing the number of carriers that are required to report tarmac delay information to the Department; expanding the group of carriers that are required to adopt, follow, and audit customer service plans and establishing minimum standards for the subjects all carriers must cover in such plans; requiring carriers to include their contingency plans and customer service plans in their contracts of carriage; increasing the number of carriers that must respond to consumer complaints; enhancing protections afforded passengers in oversales situations, including increasing the maximum denied boarding compensation airlines must pay to passengers bumped from flights; strengthening, codifying and clarifying the Department’s enforcement policies concerning air transportation price advertising practices; requiring carriers to notify consumers of optional fees related to air transportation and of increases in baggage fees; prohibiting post-purchase price increases; requiring carriers to provide passengers timely notice of flight status changes such as delays and cancellations; and prohibiting carriers from imposing unfair contract of carriage choice-of-forum provisions. The Department is proposing to take this action to strengthen the rights of air travelers in the event of oversales, flight cancellations and long delays, and to ensure that passengers have accurate and adequate information to make informed decisions when selecting flights. In addition, the Department is considering several measures, including banning the serving of peanuts on commercial airlines, to provide greater access to air travel for the significant number of individuals with peanut allergies.
DATES: Comments should be filed by August 9, 2010. Late-filed comments will be considered to the extent practicable.
ADDRESSES: You may file comments identified by the docket number DOT-OST-2010-0140 by any of the following methods:

• Federal eRulemaking Portal: go to http://www.regulations.gov and follow the online instructions for submitting comments.
• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave., SE., Room W12-140, Washington, DC 20590-0001.
• Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave., SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal Holidays.
• Fax: (202) 493-2251.

Instructions: You must include the agency name and docket number DOT-OST-2010-0140 or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comment. All comments received will
be posted without change to http://www.regulations.gov, including any personal information provided.
Privacy Act: Anyone is able to search the electronic form of all comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted on behalf of an association, a business, a labor union, etc.). You may review DOT’s complete Privacy Act statement in the Federal Register published
on April 11, 2000 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov or to the street address listed above. Follow the online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Daeleen Chesley or Blane A. Workie, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590, 202-366-9342 (phone), 202-366-7152 (fax), daeleen.chesley@dot.gov or blane.workie@dot.gov (e-mail).


----------------- PEANUT ALLERGY SECTION --------------
12. Peanut Allergies
The Department is considering several different measures to provide greater access to air travel for individuals with severe peanut allergies in light of the significant number of children diagnosed with peanut allergies, some of whom do not fly because of health concerns related to peanut service on aircraft. The Air Carrier Access Act (ACAA) prohibits discrimination by U.S. and foreign air carriers against individuals with disabilities. The Department of Transportation defines an individual with a disability in 14 CFR Code of Federal Regulations Part 382 (Part 382), the regulation implementing the ACAA. An individual with a disability is any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Generally, a person with an allergy is not an individual with a disability. However, if a person’s allergy is sufficiently severe to substantially limit a major life activity, then that person meets the definition of an individual with a disability. Part 382 states that major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Airline passengers with severe allergies to peanuts have a qualifying disability as defined in Part 382.
Part 382 requires airlines to change or make an exception to an otherwise general policy or practice to make sure that a passenger with a disability can take the trip for which he or she is ticketed unless the change would cause an undue burden on the airline or a fundamental alteration in its services. The Department has in the past told airlines that, based on this requirement, they must make reasonable accommodations for air travelers who are allergic to peanuts. Specifically, in August 1998 the Department’s Aviation Enforcement Office sent an industry letter providing guidance on this issue. That letter suggested that, if given advance notice, providing a peanut-free buffer zone in the immediate area of a passenger with a medically-documented severe allergy to peanuts would be a reasonable accommodation for the passenger’s disability, and would not constitute an undue burden on the airline.
After the issuance of the guidance letter, the Department was directed by Congress to cease issuing guidance on this subject or face a cutoff of funding for its Aviation Enforcement Office. See, for example, section 346 of Public Law 106-69, (October 9, 1999)–“DOT and Related Agencies Appropriations Act, 2000,” which stated that none of the funds made available under that Act could be used to require or suggest that airlines provide peanut-free buffer zones or otherwise restrict the distribution of peanuts. This congressional prohibition was to remain in effect “until 90 days after submission to the Congress of a peer-reviewed scientific study that determined 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.” This specific congressional ban on our involvement in this issue has not appeared recently in any legislation. At this time, we are considering the following alternatives to provide greater access to air travel for individuals with severe peanut allergies: (1) banning the serving of peanuts and all peanut products by both U.S. and foreign carriers on flights covered by DOT’s disability rule; (2) 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; or (3) requiring a peanut-free buffer zone in the immediate area of a passenger with a medically-documented severe allergy to peanuts if passenger has requested a peanut-free flight in advance. We seek comment on these approaches as well as the question of whether it would be preferable to maintain the current practice of not prescribing carrier practices concerning the serving of peanuts. We are particularly interested in hearing views on how peanuts and peanut products brought on board aircraft by passengers should be handled. How likely is it that a passenger with allergies to peanuts will have severe adverse health reactions by being exposed to the airborne transmission of peanut particles in an aircraft cabin (as opposed to ingesting peanuts orally)? Will taking certain specific steps to prepare for a flight (e.g., carrying an epinephrine auto-injector in order to immediately and aggressively treat an anaphylactic reaction) sufficiently protect individuals with severe peanut allergies? 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? Is there recent scientific or anecdotal evidence of serious in-flight medical events related to the airborne transmission of peanut particles? Should any food item that contains peanuts be included within the definition of peanut products (e.g., peanut butter crackers, products containing peanut oil)? Is there a way of limiting this definition?