14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel (Air Carrier Access Act): Preamble and Section-by-Section Analysis (with amendments issued through July 2010)

382.3 What do the terms in this rule mean? This definitions section makes several additions or changes to the definitions in the current rule. A new definition of “carrier” includes both U.S. and foreign carriers. A new definition of “CPAP machine” or continuous positive airway pressure machine, a type of respiratory assistive device, has also been added. There are new definitions of “direct threat,” which concerns the standard that may permit carriers to take otherwise prohibited actions with respect to passengers with a disability, and “equivalent alternative,” which concerns the standard used in 382.10 for carriers to adopt policies, practices or other accommodations in lieu of compliance with the letter of provisions of the rule. “Indirect air carrier” refers to a person not directly involved with the operation of aircraft who sells transportation services to the general public other than as the agent of a carrier. Two agencies concerned with safety and security aspects of flight are also recognized in this section: the Pipeline and Hazardous Materials Safety Administration of DOT and the Transportation Security Administration of the Department of Homeland Security. In the definition of “qualified individual with a disability,” the final rule specifically mentions the term “passenger with a disability” that is frequently used throughout the rule. Finally, there is a new definition of “portable oxygen concentrator” (POC), a device used to provide oxygen to passengers who need it during flight.

We have also included in the final rule a definition of “commuter carrier” and “on-demand air taxi” as an understanding of those terms is essential to an understanding of the applicability of section 382.133. The Department also decided to include a definition of “expected maximum flight duration” in the final rule as commenters had a number of questions regarding how a carrier should determine if a passenger has a sufficient number of batteries available to power an electronic respiratory assistive device. In this final rule, the Department explains that a carrier may require an individual to bring enough fully charged batteries to power the device for not less than 150% of the expected maximum flight duration. The definition of “expected maximum flight duration” provides carriers a list of factors that they must take into account in determining the total length of a flight.

We proposed in the DHH NPRM to change the phrase, “telecommunication device for the deaf,” and its acronym, “TDD,” to “text telephone” and “TTY,” respectively. All who commented on this proposal supported it, so we are using the new phraseology in the final rule.

In the DHH NPRM, we proposed not to include a definition of “hard of hearing, deaf, and deaf-blind” in the rule, reasoning that the definition of an “individual with a disability” is broad enough to cover individuals who are hard of hearing, deaf, or deaf-blind. We did, however, solicit comments on this issue. We also proposed not to include a definition of “captioning,” but we solicited comments on this issue as well. We further proposed not to include a definition of “informational,” but we stated in the preamble that we intended that word to apply to all videos, DVDs, and other audio-visual displays that do not qualify as safety or entertainment displays, including but not limited to the following: videos, DVDs, and other audio-visual displays addressing weather, shopping, frequent flyer programs, customs and immigration information, carrier routes, and other general customer service presentations. We also solicited comments on this issue.

Of those who commented on §382.3, the carriers and carrier associations generally opposed a definition of “hard of hearing, deaf, and deaf-blind,” agreeing with the Department that such individuals are covered by the definition of an “individual with a disability.” They opposed any definition of “captioning” that might be difficult to meet or that would not allow for innovation, and they agreed that “informational” need not be defined. One of the disability organizations argued for a definition of “hard of hearing, deaf, and deaf-blind” in order to cover the “entire spectrum” of hearing disabilities. All disability organizations supported a definition of captioning that makes all audio-visual displays easily readable, and they agreed with the proposal to explain the purport of “informational” in the preamble. One of these organizations asked the Department to add safety, entertainment, and other materials that are communicated to passengers who can see and hear normally.

The final rule includes a definition of the term “indirect air carrier.” For readers’ information, an indirect air carrier is an entity that indirectly engages in “air transportation” as that term is defined in the governing statute by engaging the services of a “direct air carrier”(an airline). For example, when a tour operator or an air freight forwarder contracts for space on a wholesale level with an airline and the tour operator or air freight forwarder then re-sells space on that flight on a retail basis, setting his own price and terms, bearing the entrepreneurial risk of profit or loss rather than acting as an agent, and controlling the inventory and schedule, that tour operator or air freight forwarder is acting as an “indirect air carrier” as defined in the statute. Conversely, a retail travel agent who sells the product of a disclosed principal (e.g., a seat on a scheduled airline or on a charter flight), offering it at the price and terms set by that principal, is acting as an agent rather than a principal and is not an indirect air carrier. Nor are other participants in the air travel system (concessionaires, suppliers) considered indirect air carriers.

The final rule will not include definitions of “hard of hearing, deaf, and deaf-blind” or “informational.” The comments have not persuaded us of the need for a separate definition to cover hearing and vision problems: the definition of an “individual with a disability” logically includes individuals with the whole spectrum of hearing and vision impairments. Similarly, the comments do not show a need for a definition of “informational” in the rule. As we stated in the DHH NPRM, by informational” displays we mean all videos, DVDs, and other audio-visual displays that do not qualify as safety or entertainment displays, including but not limited to the following: videos, DVDs, and other audio-visual displays addressing weather, shopping, frequent flyer programs, customs and immigration information, carrier routes, and other general customer service presentations. We exclude safety and entertainment displays: these are covered elsewhere, in §§382.53, 382.69, and 382.119.

As for captioning, we have determined that we should consistently use the term “high-contrast captioning” in the rule and define it in §382.3 rather than do so whenever it occurs elsewhere. In our definition we are adopting a pragmatic approach. Defining “high-contrast captioning” as “captioning that is at least as easy to read as white letters on a consistent black background” not only ensures that captions will be effective but also allows carriers to use existing or future technologies to achieve captions that are as effective as white on black or more so. Some of the comments indicate that such technology already exists, and we think it would be poor public policy not to allow for innovation and improvement. The high-contrast captioning may be either open—i.e., text that is recorded directly in the video and cannot be turned off at a user’s discretion—or closed—i.e., text that can be toggled on or off at the user’s choice.