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)

Safety Assistants/Attendants

The Foreign Carriers NPRM proposed retaining, with minor modifications, the existing Part 382 limitations on the ability of carriers to require passengers with disabilities to travel with attendants. One terminological change we proposed was to refer to attendants that airlines could require in certain specified situations for safety purposes as “safety assistants.” The use of this term is intended to emphasize that the only reason a carrier may require another person to travel with a passenger with a disability is safety. It would never be permitted for a carrier to require someone to travel with a passenger with a disability as a personal care attendant; that is, as someone who is present to assist the passenger with personal needs such as eating, drinking, and elimination.

A number of foreign carriers asserted that they should retain the discretion to require attendants for passengers with disabilities. They gave several reasons for this desire. Some commenters did not want to have to rely on passengers’ self-assessments of their ability to travel independently. Some cited provisions of carrier manuals or government guidance that were contrary to the proposed regulation. Some feared that crew members might be pressed into performing personal care functions. Others argued that, on lengthy overseas flights, it was reasonable to require attendants for personal care purposes, since otherwise passengers with disabilities would be unable to perform personal functions for long periods, with harm possibly resulting to themselves or others. Some comments said that the requirement to allow a safety assistant to fly free if the carrier disagreed with the passenger’s self-assessment could lead to abuse by clever passengers trying to get free flights for someone. Some of these comments suggested providing discounted, rather than free, transportation for the attendant in these situations.

Disability community commenters generally supported the Foreign Carriers NPRM proposals, and a number of comments were particularly supportive of the change to the “safety assistant” term, believing that it helped to clarify the meaning of the provision. Some comments from people with disabilities, however, objected to the provision to the extent that it would ever permit carriers to insist on an attendant over the passenger’s objections. These commenters did not trust the carriers’ judgments about passengers’ capabilities and were concerned that carriers would impose attendant requirements arbitrarily, increasing the costs and difficulty of flying for passengers with disabilities.

The limits on carrier requirements for attendants were a significant issue in the original ACAA rulemaking, and the Department’s discussion of that issue in the preamble to the 1990 ACAA rule remains relevant (see 55 FR 8029-8032; March 6, 1990). Passengers with disabilities, for the most part, are the best judges of their capabilities, and providing broad discretion to carriers to override that judgment does carry with it a significant risk of arbitrary burdens being placed on passengers. On the other hand, carriers have ultimate responsibility for the safety of passengers, and we believe that the balance struck in the original ACAA rule is a sensible one. Passengers have the primary responsibility for making the determination if they can travel independently, but carriers can overrule that determination, in a carefully limited set of circumstances, and require a safety assistant. If it is really an overriding safety reason that compels a carrier to overrule a passenger’s decision and insist that he or she travel with a safety assistant, then it is appropriate for the carrier to bear the cost of the safety judgment that it makes. In the 17 years that the Department has implemented this provision under the existing ACAA rule, this requirement has not resulted, to the best of our knowledge, either in safety problems or frequent or significant abuse by passengers.

Even on long flights, passengers with disabilities, under a nondiscrimination statute, have the right to determine whether they will incur the discomfort involved with not having someone available to assist them with personal functions. A passenger may choose to forego the airline’s food and beverage service. A passenger may dehydrate himself and avoid the need to urinate. The Foreign Carriers NPRM, like the present rule, emphasizes that flight attendants and other carrier personnel are never required to perform personal care functions for a passenger. To ensure that passengers who make the choice to fly unaccompanied have the opportunity to be fully informed of the implications of their decision, the information to which passengers are entitled (see sec. 382.41(f)) includes a description of services that are or are not available on a flight.

For these reasons, the Department is adopting the proposed provision and thereby retaining the substance of the existing provision of Part 382. The Department has made a few modifications in the rule text, however. In a situation where the carrier insists on a passenger traveling with a safety assistant, contrary to the passenger’s self-assessment, we are deleting the proposed language that would require the carrier to make a good-faith effort to find someone to perform the safety assistant function. This language was not part of the original 1990 rule, and we do not think it is essential to add it. As stated in the preamble to the 1990 rule (see 55 FR 8031), the carrier can play an important role in selecting a safety assistant (e.g., a deadheading crew member, a passenger volunteer), which can be useful from the carrier’s point of view if the carrier is worried about a passenger with a disability trying to abuse the system. If the carrier does not designate an employee or volunteer to be the safety assistant, the carrier cannot refuse to accept someone designated by the passenger (i.e., with the result that no one would be available to act as the safety assistant), as long as that person is capable of assisting the passenger in an evacuation.

With respect to passengers who have mobility impairments, we have clarified the criterion relating to safety assistants to say that the passenger with a disability must be capable of “physically” assisting in his or her own evacuation. This clarification is made to avoid the possibility that someone could claim he is assisting in his own evacuation merely by calling for help. Finally, given that the rule will now apply to foreign carriers, we have added to the provisions concerning persons with mental disabilities and deaf-blind individuals a notation referring to briefings required by foreign government regulations, as well as those of the FAA.

Consistent with the approach taken in the current rule and the Foreign Carriers NPRM, we proposed in the DHH NPRM to allow carriers to require any passenger who has severe hearing and vision impairment or is deaf-blind to travel with a safety assistant if communication adequate for transmission of the required safety briefing cannot be established. (We use the term “severe hearing and vision impairment” to include the entire spectrum of this disability, including the extreme of “deaf-blind,” unless we expressly indicate otherwise.) We proposed to require both the carrier’s personnel and the disabled passenger to make reasonable attempts to establish adequate communication, beginning with self-identification on the passenger’s part. We further proposed that if the carrier disagrees with the passenger’s assessment that he or she is capable of traveling independently, the carrier must transport the safety assistant free of charge and must also make reasonable efforts to locate such an assistant. We solicited comments on the proposed joint responsibility, on what might qualify as reasonable attempts to communicate, on whether our proposal is specific enough for all parties concerned to understand their responsibilities, and on whether a different standard might be more appropriate. We also solicited comments on the costs of compliance.

The carriers and carrier associations that filed comments all supported the proposed requirement that passengers with severe hearing and vision impairment self-identify. Most opposed being required to find a voluntary safety assistant if they disagree with the disabled passenger’s self-assessment of being able to travel without one, and all opposed being required to transport the safety assistant without charge. They contend that not only would the requirement to transport the safety assistant without charge create incentives for fraudulent assertions of independence, but using voluntary safety assistants would raise serious insurance and liability issues, and requiring free transportation would saddle them with undue costs. Most sought clarification of carriers’ responsibility for making reasonable efforts to establish communication with passengers whose hearing and vision are severely impaired. For flights of twelve hours or more, some carriers said, inexperienced passengers may not be aware of what needs may arise for them during their flight.

Of the disability organizations that filed comments, one supported joint responsibility for reasonable efforts to establish communication to determine the need for a safety assistant. Others maintained that the rule should ensure that persons with severe hearing and vision impairment are not denied travel because a carrier’s employees lack adequate training in or knowledge of basic communication techniques.

In response to the comments we received, we are modifying the proposed rule in some respects. In so doing, we are maintaining the basic principle that has worked effectively in the domestic airline industry since the original 1990 rule: if a passenger is able to establish adequate communication with the carrier for purposes of receiving the safety briefing, and the carrier nonetheless decides to overrule the passenger’s assessment that he or she can travel independently, the carrier cannot charge for the transportation of the safety assistant that the carrier requires.

To allow the carrier an opportunity to confirm that the passenger had such a means of communication available, the final rule provides that the carrier can require the passenger to self-identify 48 hours before the flight. As part of this notification, the passenger would explain to the carrier how communication can be established (e.g., via tactile speech-reading by touching the speaker’s lips, cheek and throat). If the passenger does not notify the carrier 48 hours before the flight, the rule nonetheless requires the carrier to accommodate the passenger as far as is practicable.

For example, if a passenger with severe hearing and vision impairments does not notify the carrier 48 hours before the flight of his or her intent to travel alone and of his or her ability to communicate adequately for transmission of the safety briefing, the carrier could refuse to transport the passenger without a safety assistant. If, however, the same passenger does not provide advance notice but is taking a nonstop flight, brings an interpreter to the airport, and is able to establish communication (in the gate area) adequate for the transmission of the safety briefing and to receive instruction during an emergency evacuation, the carrier must allow the passenger to travel without a safety assistant.

The FAA requires that the safety briefing be provided before each takeoff, so communication to permit transmission of this briefing must be established for each flight segment of the passenger’s itinerary. Passengers can use a variety of means to establish the needed communication. A passenger could, for example, bring a companion to the airport to serve as a go-between with carrier personnel there. That individual can interpret for the passenger during the safety briefing and can help the passenger agree with carrier personnel on physical signals—touching the passenger’s hand in a specific manner, for example— for use during evacuation or other emergencies. Another means by which the passenger may establish communication is to give carrier personnel an instruction sheet for communicating with him or her.

While we are not requiring carriers to make safety briefing information available on Braille cards, they are free to do so. The carrier may not require the passenger to demonstrate his or her ability to communicate or that he or she has understood the safety briefing. For example, there could not be a quiz on the contents of the safety briefing or a demonstration of lip reading or finger spelling ability.

In the case of codeshare flights, the carrier whose code is used must inform the operating carrier that a passenger with severe hearing and vision impairment has provided notice 48 hours in advance of his or her intent to travel without a safety assistant. If there is sufficient time before the 48-hour deadline for the passenger to directly contact the operating carrier, the carrier whose code is being used could, as an alternative, provide the passenger a number where he or she could contact the operating carrier to impart this information.

Consistent with the treatment of this issue in the rest of the rule, in cases where carriers disagree with a passenger’s self-assessment that he or she can travel alone, we will continue to require that they transport the safety assistant without charge. Of course, any carrier that wishes to accommodate a passenger with severely impaired vision and hearing by designating a safety assistant from among, say, non-revenue passengers, its airport personnel, ticketed passengers on the same flight who volunteer to serve in that capacity, or a person accompanying the disabled passenger to the airport is free to do so.

This requirement of free transportation for the safety assistant also applies in cases when the disabled passenger who believes that he or she does not need a safety assistant proposes to establish communication by means of tactile signing or finger spelling, but no member of the carrier’s flight crew can communicate using these methods. Carriers may decide as a practical matter that providing free transportation for a safety assistant in these cases is less costly than training personnel to communicate using such methods.

Finally, with respect to a passenger with a mental impairment (e.g., someone with Alzheimer’s disease), the Department wants carriers and passengers to understand that it is the passenger himself, not someone accompanying the passenger to the airport, who must be able to understand safety instructions from the crew.