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)

SECTION-BY-SECTION ANALYSIS

The purpose of this portion of the preamble is to describe each of the sections of the final rule. The focus of the descriptions is on new or changed material.

382.1 What is the purpose of this Part? The section is amended to include foreign carriers.

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.

382.5 When are U.S. and foreign carriers required to begin complying with the provisions of this Part? Both U.S. and foreign carriers must begin complying with the new final rule on its effective date, which will be a year from the date on which the rule is published in the Federal Register. This phase-in period is intended to give carriers time to take the steps they need to comply as well as to submit to the Department, in a timely fashion, requests for conflict of laws waivers and requests for equivalent alternative determinations.

382.7 To whom do the provisions of this Part apply? The rule applies to all U.S. carriers, regardless of where their operations take place, except where otherwise provided in the rule. With respect to foreign carriers, the application of the rule is more limited. Only flights of foreign carriers that begin or end at a U.S. airport, and aircraft used in these operations, are covered. A flight means a continuous journey of a passenger in the same aircraft or using the same flight number. The rule provides several examples of what constitutes a “flight” and what does not. Notably, a foreign carrier is not covered under the rule with respect to an operation between two foreign points, even if, under a code-sharing arrangement with a U.S. carrier, the foreign carrier transports passengers flying under the U.S. carrier’s code. The U.S. carrier, however, is covered under the rule with respect to the passengers traveling under its code on such a flight, such that if there is a violation of the Part 382 rights of a passenger traveling under the U.S. carrier’s code, the Department would hold the U.S. carrier, not the foreign carrier, responsible. Finally, a charter flight on a foreign carrier from a foreign airport to a U.S. airport and back would not be covered if the carrier did not pick up any passengers in the U.S.

In the DHH NPRM, we proposed that the provisions concerning deaf, hard of hearing, and deaf-blind passengers apply to all U.S. carrier operations and to all flights operated by foreign carriers that begin or end at a U.S. airport. We proposed that in the case of flights operated by foreign carriers between two foreign points that are codeshared with a U.S. carrier, the service-related requirements of the rule would apply to the U.S. carrier whose code is used but not the aircraft accessibility and equipment requirements. In addition, we observed in the Preamble that §382.51, which governs audio-video displays at airports, carves out an exception for U.S. and foreign carriers at foreign airports: §382.51 applies by its terms only to U.S. airport terminal facilities owned, leased, or controlled by U.S. or foreign carriers. We solicited comments on the cost and feasibility of requiring U.S. carriers to modify equipment, space, or both at foreign airport terminals that they lease, own, or control.

Consistent with their comments on the Foreign Carriers NPRM, foreign carriers and carrier associations that filed comments generally criticized the Department, saying that it had acted unilaterally in this area. Some contended that Part 382 should not apply to flights that are not part of a single journey to or from the United States in the same aircraft with the same flight number. One U.S. carrier, Delta, expressed concern that its foreign codeshare partners might find the requirements so onerous that they will end the code-sharing rather than comply, precipitating declines in service and competition. One association of U.S. carriers supported the applicability of Part 382 to foreign carriers, as did the disability groups and individuals that commented. The Regional Airline Association (“RAA”) asked the Department to exempt all aircraft of up to 30 seats from the rule because its requirements will create excessive burdens for operators of small aircraft.

The individuals and disability organizations that filed comments generally favored making the rule applicable to all foreign carrier flights that originate or end at a U.S. airport and to foreign carrier flights between two foreign airports that are codeshared with a U.S. carrier.

We find unpersuasive the foreign carriers’ suggestions that in applying these requirements to them we are somehow exceeding our authority. As we explained in the Foreign Carriers and DHH NPRMs, in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), Congress amended the Air Carrier Access Act (ACAA) to include foreign carriers in the prohibition against discriminating against otherwise qualified individuals with disabilities. This rulemaking merely implements that law. This Department’s authority to issue regulations that apply to foreign carriers is well-established. This general issue is discussed at greater length in the “Response to Comments” portion of the preamble above. In that section, the Department explains the final rule’s approach to the issue of code-sharing, which applies to deaf and hard-of-hearing issues as well as to other provisions of Part 382.

The service-related requirements regarding deaf, hard of hearing, and deaf-blind passengers that apply to U.S. carriers on codeshare flights operated by their foreign-carrier partners between two foreign points are those listed in §382.119. Although we are not applying these requirements to the foreign carrier operating these flights, the U.S. carrier will be subject to enforcement action if the foreign carrier fails to provide the required information promptly to “qualified individuals with a disability who identify themselves as needing visual and/or hearing assistance” and whose tickets bear the code of the U.S. carrier. The aircraft-accessibility requirements set forth in §382.69 do not apply on such flights. Part 382 has no equipment requirements specific to deaf, hard of hearing, and deaf-blind passengers.

As for RAA’s request, the evidence in the record does not provide a basis for a blanket exemption from Part 382 for aircraft with 30 or fewer seats. If an airport or aircraft operator does not use a particular technology, sections concerning that technology would not apply. Normal provisions concerning exemptions from Office of the Secretary rules (see 49 CFR Part 5) could be used if a carrier or airport believes an exemption is needed in a particular situation.

382.9 What may foreign carriers do if they believe a provision of a foreign nation’s law prohibits compliance with a provision of this Part? This provision creates a conflict of laws waiver mechanism to give appropriate consideration to requirements of foreign law applicable to foreign carriers. It is important to note that this mechanism is intended to apply only to genuine conflicts with legally binding foreign legal mandates. A foreign law that requires a foreign carrier to do something prohibited by this rule, or that prohibits a foreign carrier from doing something required by this rule, is an appropriate subject for a conflict of laws waiver. A foreign carrier’s or foreign government’s policy, authorized practice, recommendation, or preference is not. However, if a foreign government officially informs a carrier that it plans to take enforcement action (e.g., impose a civil penalty) against a carrier for failing to implement a provision of a government policy, guidance document, or recommendation, the Department would view the enforcement action as creating a legal mandate that could be addressed under this section.

If, as a legal matter, the foreign carrier has no choice but to act contrary to this rule, the Department would grant a waiver. If the foreign carrier, as a matter of law, has any discretion in the matter, it must exercise that discretion by complying with this rule, even if contrary to the carrier’s policy or the recommendation of a foreign government, and the Department would not grant a waiver. A waiver request would have to include the carrier’s proposal for an alternative means of achieving the rule’s objectives with respect to any provision that is waived.

The Department wants to ensure that waiver requests are submitted and granted or denied in a timely manner, avoiding the dilemma for foreign carriers of having to choose between compliance with this rule and with conflicting foreign laws when the rule goes into effect a year after its publication. We encourage foreign carriers to make any waiver requests within 120 days of the rule’s publication. The Department commits to deciding requests made in this time period before the rule goes into effect. If we are late, then the foreign carrier may continue to carry out the policy or practice involved until we do respond, and if the request is denied the Department would not take any enforcement action against the carrier with respect to activities that took place prior to the denial. Even with respect to waiver requests submitted after the 120-day period, the Department will do its best to respond before the effective date of the rule. Again, the carrier can choose to continue to follow the policy or practice that is the subject of the request until the Department does respond. However, if such a request is denied, the carrier risks enforcement action with respect to the period between the effective date of the rule and the date of the Department’s response. The Department has established this two-stage waiver consideration process to help avoid a situation in which a foreign carrier would delay submission of a waiver request until shortly before the effective date of the rule, in an attempt to delay compliance with the rule while the Department considered its late-filed request.

We also recognize that new foreign legal mandates can arise. If a new mandate is created after the initial 120-day period following publication of the rule (not an existing legal mandate that is subsequently discovered or goes into effect subsequently), then a foreign carrier may submit a waiver request and continue to implement the policy or practice involved until the Department responds. In this case, the carrier would not be subject to enforcement action for the period prior to the Department’s response.

This section also notes that if a foreign carrier submits a frivolous or dilatory waiver request, has not submitted a waiver request with respect to a particular policy or practice, or continues to follow a policy or practice concerning which a waiver request has been denied, the carrier could be subject to DOT enforcement action. For example, if the Department initiates enforcement action because we believe a foreign carrier’s practice is contrary to the rule, the carrier could not defend against the enforcement by claiming a conflict with an existing foreign legal mandate if the carrier had not previously submitted a waiver request concerning the practice, or the request had been denied.

Finally, the Department recognizes that a U.S. carrier may wish to file a waiver request on behalf of a foreign carrier. This may occur, for example, in the case of U.S. carriers who must ensure compliance with the service-related provisions of this Part on code share flights between two foreign points operated by their foreign code share partners on behalf of passengers traveling under the U.S. carriers’ codes. Where a U.S. carrier believes a foreign law conflicts with a service-related provision of this Part and bars compliance on a code-share flight operated by its foreign code share partner, the U.S. carrier may file a waiver request on behalf of its foreign code-share partner(s) subject to that law. The waiver request should include a proposal for an alternative means of compliance with the Part 382 provision or a justification of why it would be impossible to achieve the objective. If granted, the responsibility of the U.S. carrier with respect to code-share flights operated by its foreign partner(s) will be limited in accordance with the terms of the waiver.

382.10 How does a U.S. or foreign carrier obtain a determination that it is providing an equivalent alternative to passengers with disabilities? While the concept of equivalent facilitation has been a part of DOT Americans with Disabilities Act (ADA) rules since 1991 (see 49 CFR 37.7 – 37.9), it has not previously been part of ACAA rules. The use of “equivalent alternative” in this rule is somewhat broader than the use of “equivalent facilitation” in DOT or DOJ ADA rules or in the Americans with Disabilities Act Accessibility Guidelines issued by the U.S. Access Board, which focused on “hardware” modifications to vehicles and facilities. In the ACAA context, equivalent alternative can also refer to policies, practices, or other accommodations to passengers with disabilities.

The key point of this section is that, in order to be viewed as an equivalent alternative, a policy, practice, accommodation, or piece of equipment must really provide substantially equivalent accessibility to passengers with disabilities than compliance with a provision of the rule. It isn’t enough for a carrier’s proposed alternative to be different from a provision of the rule. Alternatives that provide less accessibility than the provisions of the rule, or that impose greater burdens on passengers with disabilities, cannot be considered an equivalent alternatives. Equivalent alternatives also pertain only to specific requirements of the rule. The Department would not entertain an equivalent alternative request that asked us to find that an entire foreign regulatory scheme was equivalent to this rule, for example.

Similar to the conflict of laws waiver provision, the equivalent alternative provision is structured to provide an incentive to carriers to file timely requests. If a carrier submits its request within 120 days of the publication date of this Part, the Department will try to respond before the effective date of the rule. The carrier can implement the policy or practice it requests as an equivalent alternative beginning on the effective date of the rule until the Department does respond. (A U.S. carrier subject to the current rule could not begin implementing an equivalent alternative it had requested within the 120-day time period until the new rule goes into effect, since the current rule does not provide for equivalent alternatives.) If a carrier submits its request after the 120-day period following publication, the carrier must comply with the provision of the regulation pending the Department’s response.

382.11 What is the general nondiscrimination requirement of this Part?

382.13 Do carriers have to modify policies, practices, and facilities to ensure nondiscrimination? These sections are very similar to section 382.7 of the current regulation. One difference is that the new rule specifies that carriers may require preboarding as a condition of receiving certain seating or in-cabin stowage accommodations. The requirement to make modifications of policies, practices, and facilities has been broken out into a separate section. This requirement recognizes that there can be times when, in order to provide nondiscriminatory service to a particular individual, carriers must change or make an exception to an otherwise acceptable general policy or practice for that individual. It should be emphasized that this provision is not intended to require carriers to make generally applicable changes in policies for all passengers, or all passengers with disabilities. The provision focuses on the carrier doing what it needs to do – short of incurring an undue burden or making a fundamental alteration in its services – to make sure that a passenger with a disability can take the trip for which he or she is ticketed.

382.15 Do carriers have to make sure that contractors comply with the requirements of this Part? It is a basic principle of nondiscrimination law that while a regulated party can contract out its functions, it cannot contract away its responsibilities. Consequently, a carrier that contracts out any functions concerning passengers with disabilities must ensure that the contractors comply with the provisions of this Part, just as if the carrier were performing the functions itself. Assurances and contract conditions in the agreements between carriers and their contractors are a key measure to carriers’ compliance with this section. Noncompliance with these contract conditions by the contractor must be stated in the contract as being a material breach of the contract. The Department expects carriers to monitor the performance of contractors to ensure that the contractors’ performance complies with the requirements of this Part and to take appropriate contract action against contractors that breach their contracts by failing to comply. The Department would view a carrier’s failure to do so as noncompliance with the carrier’s obligations under this rule, and a carrier cannot defend against an enforcement action by the Department by claiming that a contractor erred. The carrier remains responsible.

382.19 May carriers refuse to provide transportation on the basis of disability? This section continues, and extends to foreign carriers, the key nondiscrimination requirement of the ACAA and the existing Part 382. With narrow exceptions, a carrier is prohibited from denying transportation to a passenger on the basis of disability. Carriers retain their authority, under 49 U.S.C. 44902 and 14 CFR 121.533, to deny transportation to any passenger, disabled or not, on the basis of safety or whose carriage would violate FAA or TSA requirements.

If the carrier’s reason for excluding a passenger on the basis of safety is that the individual’s disability creates a safety problem, the carrier’s decision must be based on a “direct threat” analysis. This concept, grounded in the Americans with Disabilities Act, calls on carriers to make an individualized assessment (e.g., as opposed to a generalization or stereotype about what a person with a given disability can or can’t do) of the safety threat the person is thought to pose. In doing so, the carrier must take into account the nature, duration and severity of the risk; the probability that the potential harm will actually occur; and whether reasonable mitigating measures can reduce the risk to the point where the individual no longer poses a direct threat. In using its authority to make a direct threat determination and exclude a passenger, a carrier must not act inconsistently with other provisions of Part 382. Direct threat determinations must not be used as a sort of de facto exception to specific requirements of this Part (e.g., the prohibition on number limits).

Exclusion of a passenger because his disability-related appearance or involuntary behavior may offend, annoy, or inconvenience other persons – as distinct from creating a direct threat to safety – is an important part of this nondiscrimination mandate. The rationale for this requirement was stated in the preamble to the 1990 ACAA rule, and it remains valid (see 55 FR 8027; March 6, 1990).

382.21 May carriers limit access to transportation on the basis that a passenger has a communicable disease or other medical condition? As a general matter, carriers may not exclude or impose other requirements or conditions on a passenger on the basis that the passenger has a communicable disease. However, if the passenger poses a direct threat, the carrier may take appropriate action to safeguard the health and safety of other persons on the flight.

The Department has added regulatory language codifying the Department’s guidance on how airlines should determine whether someone’s disease presents a direct threat. To be a direct threat, a condition must be both able to be readily transmitted by casual contact in the course of a flight AND have severe health consequences (e.g., SARS, active tuberculosis). If a condition is readily transmissible but does not typically have severe health consequences (e.g., the common cold), or has severe health consequences but is not readily transmitted by casual conduct in the course of a flight (e.g., HIV), its presence would not create a direct threat. Carriers may also rely on directives issued by public health authorities (e.g., in the context of a future flu pandemic).

If a passenger who is deemed to present a direct threat cannot travel at his or her scheduled time as a result, the carrier must allow the passenger to travel at a time up to 90 days from the date of postponed travel at the same price or, if the passenger prefers, provide a refund. Consequently, cancellation or rebooking fees or penalties would not apply in this situation, and the passenger would not be subject to any fare increases that may occur in the meantime or any increase in that passenger’s fare due to the non-availability of a seat in the fare class on his or her original ticket.

382.23 May carriers require a passenger with a disability to provide a medical certificate? Like the medical certificates section in the current rule, this section generally prohibits carriers from requiring medical certificates (i.e., written statements from a doctor saying that a passenger is capable of completing a flight safely, without requiring extraordinary medical assistance during the flight). People with disabilities have functional impairments with respect to walking, seeing, hearing etc. These impairments, by and large, are not sicknesses requiring medical treatment or clearance (though, of course, persons with disabilities can have illnesses like everyone else). At the same time, airlines and their personnel are not medical service providers, and it is not reasonable to expect them to perform medical services. This provision is intended to balance these realities.

Oxygen users and people traveling in a stretcher or incubator can be required to produce a medical certificate. The situation that most commonly would result in a call for a medical certificate is one in which carrier personnel have a reasonable doubt that someone can complete the flight safely, without requiring extraordinary medical assistance. In such a case, carrier personnel can require a medical certificate in order to provide assurance that the passenger will not need such assistance. The rule clarifies that a medical certificate must be recent (within 10 days of the passenger’s departing flight).

There is also a relationship between this section and the communicable diseases provision. Section 382.21(a)(4) allows a carrier to require a medical certificate if the carrier determines that the passenger has a communicable disease that could pose a direct threat. Under section 382.23(c), the passenger would then have to produce a medical certificate, to the effect that the passenger’s condition would not be communicable to other persons during the normal course of the flight. If it is potentially transmissible during the flight but this can be prevented if certain conditions or precautions are implemented, the certificate would have to describe those conditions or precautions. Unlike the situation with respect to medical certificates under paragraph (b)(3), a medical certificate in the situation of a communicable disease under paragraph (d) would have to be dated within 10 days of the flight for which it is presented (not 10 days prior only to the passenger’s initial departing flight). Under paragraph 382.21(c), if the section 382.23(c)(2) medical certificate provides measures for preventing the transmission of a disease, the carrier must provide transportation to the passenger – carrying out the prescribed measures – unless the carrier determines that it is unable to carry out the measures. If the carrier is unable to do so, it can deny transportation to the passenger. In this event, the carrier’s written explanation to the passenger under section 382.21(e) would include an explanation of why it was not able to carry out the measures identified in the medical certificate.

A carrier may elect to subject a passenger with a medical certificate to additional medical review (e.g., by the carrier’s physician) if the carrier believes either that there has been a significant adverse change in the passenger’s medical condition since the issuance of the medical certificate or that the certificate significantly understates the passenger’s risk to the health of other persons on the flight. If this additional review shows that the passenger is unlikely to be able to complete the flight without extraordinary medical assistance or would pose a direct threat to other passengers, the carrier could, notwithstanding the medical certificate, deny or restrict the passenger’s transportation.

We also note that, under section 382.117(e), airlines can require passengers traveling with emotional support or psychiatric service animals to provide certain documentation. This information is not a medical certificate in the sense articulated in section 382.23, but airlines are entitled to obtain this documentation as a condition of permitting the emotional support or psychiatric service animal to travel in the cabin with the passenger.

382.25 May a carrier require a passenger with a disability to provide advance notice that he or she is traveling on a flight?

382.27 May a carrier require a passenger with a disability to provide advance notice in order to obtain specific services in connection with a flight? Carriers may not require a passenger with a disability to provide advance notice of the fact that he or she is traveling on a flight. That is, a carrier cannot say to a passenger, in effect, “You have a disability; therefore, you must let me know in advance that you are going to fly on my aircraft, Flight XXX.”

On the other hand, there is a series of accommodations that many passengers with disabilities may need or want that carriers reasonably require time to arrange. For these services, carriers may require up to 48 hours’ advance notice (i.e., 48 hours before the scheduled departure time of the flight) AND a check-in time one hour before the check-in time for the general public. That is, if passengers generally are told to arrive at the gate one hour before the scheduled departure time of the flight to check in, the carrier may tell passengers seeking one of these listed accommodations to check in two hours before the scheduled departure time for the flight. If the passenger with a disability meets the advance notice and check-in time requirements, the carrier must provide the requested accommodation. If not, the carrier must still provide the accommodation if it can do so by making reasonable efforts, without delaying the flight.

Most of the services or accommodations for which a carrier can require advance notice are the same as under the existing regulation (e.g., transportation of an electric wheelchair on a flight scheduled to be made on an aircraft with fewer than 60 seats, accommodation for a group of 10 or more passengers with a disability who make reservations to travel as a group). It is important to note that, with respect to the onboard use of supplemental oxygen, advance notice can be required of a passenger whether the carrier provides the oxygen (i.e., via POC or containerized oxygen,) or the passenger brings his or her own POC for use during the flight. It should also be noted that when requesting carrier-supplied supplemental oxygen, advance notice of up to 48 hours for domestic flights and up to 72 hours for international flights may be required.

There are a few new situations in which the rule permits carriers to require advance notice. These include transportation of an emotional support or psychiatric service animal, transportation of any service animal on a flight scheduled to take eight hours or more, and accommodation of an individual who has both severe vision and hearing impairments.

382.29 May a carrier require a passenger with a disability to travel with a safety assistant? The terminology of this section has been changed from “attendant” to “safety assistant” to more accurately reflect the role of the person accompanying the passenger. A safety assistant is not a personal care attendant who looks after the personal care needs of a passenger. A carrier cannot require a personal care attendant to travel with a passenger with a disability. Rather, the safety assistant is someone who would assist the passenger to exit the aircraft in case of an emergency evacuation or to establish communication with carrier personnel for purposes of the required safety briefing. People like passenger volunteers, an individual selected by the passenger, or deadheading crew members remain appropriate candidates to act as safety assistants.

This section generally follows the model of the corresponding section of the existing regulation. However, with respect to the situation of a passenger with a severe mobility impairment, the criterion for permitting the carrier to require a safety assistant has been clarified to address circumstances where the passenger is unable to physically assist in his or her own evacuation. This change is made to avoid potential confusion that a passenger could assist in his or her own evacuation simply by calling for help.

The “Response to Comments” section of the preamble describes in greater detail other changes, including a new advance notice requirement, that would apply to passengers who have both severe vision and hearing impairments. In section 382.29(b)(4), it is mentioned that a passenger with both severe hearing and vision impairments is responsible for explaining how he or she can establish communication adequate to permit transmission of the safety briefing and to enable the passenger to assist in his or her own evacuation of the aircraft in the event of an emergency. The new 48-hours’ advance notice requirement is intended to give the carrier time to make any arrangements necessary to accommodate the passenger following this explanation. The language in section 382.29(b)(4) concerning the ability of a passenger to assist in his or her own evacuation refers to being able to establish, at or around the time of the safety briefing, a means by which the passenger can receive a instructions concerning an emergency evacuation. For example, the passenger and air carrier could arrange a hand or touch signal that the passenger knows means “get up and follow passengers to an emergency exit.”

When a passenger with a disability cannot travel on a flight because there is no seat available for a safety assistant that the carrier has determined to be necessary, the passenger must be compensated in an amount to be calculated under the Department’s denied boarding compensation (DBC) rule, 14 CFR Part 250, where Part 250 applies. The DBC rule applies to both U.S. and foreign carriers with respect to domestic and international scheduled-service nonstop flight segments departing from a U.S. airport. It does not apply to flights departing from a foreign airport, whether operated by a U.S. or foreign carrier.

382.31 May carriers impose special charges on passengers with a disability for providing services and accommodations required by this rule? Carriers may not impose charges on passengers for accommodations required by the rule. However, if a carrier voluntarily provides a service that this rule does not require, the carrier may charge a passenger with a disability for that service.

The issue of carrier web site accessibility requirements has been deferred to a forthcoming SNPRM. While that issue is being considered, the Department is adding a provision to address potentially discriminatory effects of their web site-related policies on passengers with disabilities who cannot use a carrier’s web site because it is not accessible. If a carrier charges people who make reservations by phone or in person more than people who make reservations on the web site, this surcharge cannot be applied to persons with disabilities who must make reservations by another means because the web site is inaccessible to them. Likewise, if there are “web only” discounts or special offers made available to passengers on the carrier’s web site, passengers with disabilities who cannot use the web site must be offered the same terms when they seek to book a flight by other means.

382.33 May carriers impose other restrictions on passengers with a disability that they do not impose on other passengers?

382.35 May carriers require passengers with a disability to sign waivers or releases? Carriers must not impose requirements or restrictions on passengers with a disability that they do not impose on other passengers, except where this regulation explicitly permits the carrier to do so (e.g., advance notice for certain services). We hope that many of the practices specifically banned in this section are only of historical interest (e.g., making passengers with disabilities sit on blankets or restricting such passengers to so-called “corrals” in terminals), but we believe they are still useful examples of the sort of discriminatory treatment that is unacceptable in the context of a nondiscrimination statute. Waivers of liability or releases either for passengers themselves or for loss or damage of wheelchairs and other assistive devices are among the forbidden practices, although as we have stated in the past, carriers are free to note pre-existing damage to an assistive device to the same extent that carriers do this with respect to other checked baggage.

382.41 What flight-related information must carriers provide to qualified individuals with a disability? This provision is very similar to the corresponding provision of the existing rule. Carriers must provide information about the accessibility features of aircraft (e.g., the presence and location of seats that can be accessed through movable armrests, and seats not available to passengers with disabilities). In addition, carriers must provide information about any service limitations in accommodating a passenger with a disability. When level-entry boarding is not available on a particular flight, carriers must also provide information about boarding assistance requiring the use of a ramp or lift to all passengers who indicate that they will use a wheelchair for boarding, whether or not they specifically ask for the information.

As a general matter under Part 382, when an agent acting on behalf of an airline provides inaccurate information to a passenger with a disability concerning a disability-related accommodation, in most instances the airline will be responsible for any resulting information-related violation of the law. It should also be noted that when a carrier agrees to provide a service not specifically required under this Part to accommodate a particular passenger’s disability, the carrier is obliged to provide that service to the passenger or risk being found in violation of section 382.41. .For example, if a carrier informs a passenger that it will accommodate his or her peanut allergy by not serving peanuts on his or her flight itinerary, the carrier must ensure that peanuts are not served on those flights or it will be in violation of section 382.41.

382.43 Must information and reservation services of carriers be accessible to individuals with hearing impairments? The “Response to Comments” section of the preamble discusses the requirements that will apply to carriers with respect to TTY or telephone relay communication between users of TTYs and carriers. As noted in that discussion, the purpose of §382.43 is to put deaf and hard of hearing passengers on a substantially equivalent footing with the rest of the public in their ability to communicate with carriers by telephone regarding information and reservations. We aim to ensure substantial equivalence in both access to any carrier and wait time if an agent is not available when a connection is first made.

Carriers may meet this requirement by using TTYs themselves, but they may also do so by means of voice relay or any other available technology that permits TTY users to communicate with them. This requirement is set forth in §382.43(a). We are also adding a new access requirement in §382.43(a)(4) to ensure that deaf and hard of hearing passengers are informed how to reach carriers by TTY: in any medium in which a carrier states the telephone number of its information and reservation service for the general public, it must also state its TTY number if it has one, or if not, it must specify how TTY users can reach the information and reservation service (e.g., via call relay service). Such media include, for example, web sites, ticket jackets, telephone books, and print advertisements.

Based on comments to the docket, we are also adding §382.43(b), which states that the requirements of §382.43(a) do not apply to carriers in any country in which the telecommunications infrastructure does not readily permit compliance.

For foreign carriers, these requirements apply only with respect to information and reservation services for flights covered by section 382.7. With respect to TTY services, the requirement applies to foreign carriers only with respect to flights for which reservation phone calls from the U.S. are accepted.

Please see the “Response to Comments” section for further information about the requirement that a copy of Part 382 be made available in airports served by carriers subject to this rule.

382.45 Must carriers make copies of this Part available to passengers? U.S. carriers must keep a copy of Part 382 at each airport they serve and make it available to anyone who asks for it. Foreign carriers must do this at any airport serving a flight that begins or ends at a U.S. airport. An English-language copy of the rule is sufficient for this purpose. Carriers are not required to translate the document into other languages. Although carriers are not required to make a copy of Part 382 available in accessible formats at airports, carriers that provide information to the public on a website must place information on that website telling passengers that they can obtain an accessible copy of the rule from DOT.

382.51 What requirements must carriers meet concerning the accessibility of airport facilities? The principal substance of airport facility accessibility requirements is the same for both U.S. and foreign carriers. Certain aspects of the requirements differ depending on whether the facility in question is located in the U.S. or in a foreign country.

U.S. facilities that a carrier owns, controls, or leases must meet requirements applicable to Title III facilities under the Americans with Disabilities Act. The requirements are those of the Americans with Disabilities Act Accessibility Guidelines (ADAAG), as incorporated in Department of Justice (DOJ) ADA regulations implementing Title III. There must be an accessible path between gate and boarding area when level entry boarding is not available to an aircraft. The ADAAG reference in paragraph (a)(2) is to the former version of the ADAAG, which is still the version incorporated in the DOJ rules. When DOJ incorporates the new version of ADAAG in their Title III rules, we will update this reference.

Inter-terminal and intra-terminal transportation owned, leased, or controlled by a carrier at a U.S. airport must meet DOT ADA rules. Since DOT has already incorporated the new version of ADAAG into its regulations, the new ADAAG’s provision will apply to any features covered by the DOT rules. One new requirement at U.S. airports is to provide, in cooperation with the airport operator, animal relief areas for service animals that accompany passengers who are departing, arriving, or connecting at the facility.

At foreign airports, to which the ADAAG do not apply, Part 382 applies a performance requirement to make sure that passengers with a disability can readily use the facilities the carrier owns, leases, or controls at the airport. For foreign carriers, this requirement applies only to terminal facilities that serve flights that begin or end in the U.S (i.e., those covered by section 382.7). Both U.S. and foreign carriers must meet the requirements at foreign airports within one year after the effective date of the rule. As noted elsewhere in the preamble, carriers may rely on the facility accessibility services provided by airport operators at foreign airports, supplementing where needed to ensure full compliance with this rule.

In the DHH NPRM, we proposed several requirements for U.S. and foreign carriers at terminal facilities that they own, lease, or control at any U.S. airport. First, we proposed a requirement that carriers enable any existing captioning feature (preferably high-contrast) on all televisions and other audio-visual displays providing safety, information, or entertainment content in those portions of the airport that are open to the general public and that they keep this captioning feature on at all times. Second, we proposed a requirement that in areas of restricted passenger access such as club rooms, carriers enable any existing captioning function on televisions and other audio and visual displays upon request. Third, we proposed a requirement that carriers replace any televisions and other audio-visual displays that do not have a high-contrast captioning function with ones that do as these devices are replaced in the normal course of operations or when the airport facilities undergo substantial renovation or expansion. Fourth, we proposed a requirement that newly acquired televisions and other audio-visual displays be equipped with high-contrast captioning capability. We solicited comments both on these proposals and on whether any carriers have leases for terminal facilities at a U.S. airport whereby the airport retains control over the televisions and other audio-visual displays in that facility. If so, we said, we would consider requiring the carriers and airports to work together to enable captioning on equipment that has captioning capability and to replace equipment that does not have high-contrast captioning capability with equipment that does. (We also noted that all televisions with screens of at least 13 inches made or sold in the U.S. since July 1, 1993, have been required to have captioning capabilities.) We further solicited comment on whether televisions and other audio-visual displays equipped with captioning features would necessarily have high-contrast captioning (e.g., white letters on a consistent black background), whether such equipment may have some type of captioning other than “high-contrast,” and whether the availability of high-contrast captioning, as opposed to low- or medium-contrast captioning, depends on the age, cost, or screen size of the equipment.

None of the comments addressed the question of high- versus medium- versus low-contrast captioning. Most of the carriers and carrier groups that filed comments claimed not to have control over the audio-visual equipment at their terminal facilities. The individuals and disability organizations that filed comments strongly objected to different standards for audio-visual equipment in areas open to all passengers versus areas with restricted access, and all support captioning on all such equipment at all times.

We are modifying the language of the proposed §382.51 to make our intentions clearer, and based on the comments, we are also adding language that places joint responsibility for compliance on the carrier and the airport in cases where the latter has control over the televisions and other audio-visual equipment that this section addresses. (To this end, we will also be amending 49 CFR Part 27, Subpart B, to codify the requirement for airports.) We have determined, based both on the comments from individuals and disability groups and on the lack of objections from carriers and carrier groups, that the same standard should apply to all equipment, whether it be in areas to which the general public has access or in areas to which access is limited. If such equipment has captioning capability, that capability must be enabled at all times. These requirements do not apply to either U.S. or foreign carriers at foreign airports.

382.53 What information must carriers give individuals with a vision or hearing impairment at airports? With some variations for the situations of U.S. and foreign airports, and U.S. and foreign carriers, the basic point of this section is that at each gate, ticketing area, and customer service desk that a carrier owns, leases, or controls, a carrier must ensure that passengers with a disability who identify themselves as persons needing visual or hearing assistance have prompt access to the same information provided to other passengers. This requirement applies to a wide variety of information, concerning such subjects as flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding information, connections, gate assignments, checking baggage, volunteer solicitation on oversold flights (e.g., offers of compensation for surrendering a reservation), individuals being paged by airlines, aircraft changes that affect the travel of persons with disabilities, and emergencies (e.g., fire, bomb threat).

382.55 May carriers impose security screening procedures for passengers with disabilities that go beyond TSA requirements or those of foreign governments? All passengers are subject, at U.S. airports, to TSA screening procedures and, at foreign airports, to screening procedures established by the law of the country in which the airport is located. If a carrier wants to go beyond those mandated procedures, it must make sure that it treats passengers with disabilities equally with other passengers. Security personnel may examine assistive devices and must provide, on request, private screenings for passengers with disabilities requiring secondary screening.

382.57 What services must carriers provide if their automated kiosks are inaccessible? The Department will seek further comment on kiosk accessibility issues in an SNPRM. Meanwhile, if existing kiosks are inaccessible (e.g., to wheelchair users because of height or reach issues, to visually-impaired passengers because of issues related to visual displays or touch screens), carriers must ensure equal treatment for persons for disabilities who cannot use them. This can be done in a variety of ways. For example, a passenger who cannot use the kiosk could be allowed to come to the front of the line at the check-in counter, or carrier personnel could meet the passenger at the kiosk and help the passenger use the kiosk.

382.61 What are the requirements for movable aisle armrests? This section is very similar to the movable aisle armrest provisions of the present rule. Armrests on at least half the aisle seats in rows containing seats in which passengers with mobility impairments are permitted to sit under FAA rules must be movable. If there are no seats in which a person with a mobility impairment can sit under FAA rules (e.g., an exit row), then that row does not constitute part of the base from which the calculation of half the rows is made, and of course such a row is not one in which a movable armrest is needed.

The provision clarifies that movable aisle armrests must be provided proportionately in all classes of service. As discussed elsewhere in the preamble, if the seats in a given class of service, such as first class, can be accessed by a wheelchair user without a movable aisle armrest being provided, the carrier may request an equivalent alternative determination. Consistent with section 382.41, carriers must find ways of ensuring that passengers with disabilities can locate specific seats they can access with movable armrests.

A carrier wishing to submit an equivalent alternative request concerning movable armrests must show the Department that, in fact, persons with mobility impairments using aisle and boarding wheelchairs can transfer horizontally into a given seat without being lifted over an armrest or other obstacle. The Department would not make such a determination based solely on the representation of the carrier that such transfers were possible. “Show your work” is the appropriate maxim. Diagrams could be one useful part of such a showing. What the Department recommends, however, is a video of a demonstration showing carrier personnel actually transferring passengers with disabilities – preferably, passengers of various sizes -- into the seat or row in question from an aisle or boarding chair.

Carriers are not required to retrofit cabins of existing aircraft to install movable armrests. However, if a carrier replaces any of an aircraft’s aisle seats with newly manufactured seats, at least half the replacement seats must have movable armrests. For example, if a carrier replaces four aisle seats with newly manufactured seats, then two of these seats have to have movable armrests. If the carrier is replacing an odd number of seats, a majority of the newly manufactured aisle seats installed must have movable armrests. For example, if the carrier is replacing five old aisle seats with newly manufactured seats, at least three of the newly manufactured aisle seats must have movable armrests. The Department does not intend this provision to require carriers to have more than 50% movable armrests in the cabin, however. For example, suppose an aircraft has 40 aisle seats, 20 of which have movable armrests. The carrier decides to replace five aisle seats that do not have movable armrests with newly manufactured seats. These new seats would not have to include movable armrests.

The timing of the application of these requirements is as follows: Foreign carriers must comply with “new aircraft” requirements with respect to planes ordered after the effective date of this Part or delivered more than one year after the effective date of this Part. Foreign carriers must comply with the requirement for replacement seats (paragraph (e)) beginning on the effective date of the rule. U.S. carriers are already subject to the requirements of this section, except the proportionality requirement (paragraph (c)) with respect to aircraft ordered after April 5, 1990 or delivered after April 5, 1992. When we say “new aircraft” in this context, we mean aircraft that were new at the time they were ordered by or delivered to the U.S. carrier. U.S. carriers will have to comply with paragraph (c) for new aircraft ordered after the effective date of this Part or which are delivered more than one year after the effective date of this Part. With respect to the purchase of used aircraft, in this section and similar places, the date the aircraft was originally ordered from the manufacturer or initially delivered by the manufacturer determines whether the aircraft is subject to the aircraft accessibility requirements of this Part.

382.63 What are the requirements for accessible lavatories? As under the present rule, only aircraft with more than one aisle must have an accessible lavatory. U.S. carriers are already subject to these requirements for new aircraft they ordered after April 5, 1990, or which were delivered after April 5, 1992. Foreign carriers must comply with respect to new aircraft ordered after the effective date of the rule or delivered more than one year after the effective date.

Also, if a carrier replaces a lavatory on an aircraft with more than one aisle it must replace the lavatory with an accessible unit. A carrier need not have more than one accessible lavatory on an aircraft, however. This requirement already applies to U.S. carriers for new aircraft they ordered after April 5, 1990, or which were delivered after April 5, 1992. It will begin to apply to foreign carriers on the effective date of the rule.

382.65 What are the requirements concerning on-board wheelchairs? These requirements are also patterned on the existing rule. In aircraft with more than 60 passenger seats, carriers must provide an onboard wheelchair if the aircraft has an accessible lavatory. In an aircraft that has 60 or more seats that does not have an accessible lavatory, the carrier must provide an on-board wheelchair on the request, with advance notice, of a person who can use the inaccessible lavatory but cannot reach it from his or her seat without use of an on-board wheelchair. U.S. carriers are already subject to these requirements. Foreign carriers must meet these requirements by a date one year after the rule’s effective date.

Under the current rule, the Department had granted exemptions to the requirement for providing a requested on-board wheelchair to two aircraft models, the ATP and the ATR-72. These exemptions will remain in force under the new rule.

382.67 What is the requirement for priority space in the cabin to store a passenger’s wheelchair? The most important change in this section from the present regulation is that carriers are no longer required to stow any kind of electric wheelchair in the cabin. Only manual wheelchairs are required to be stored there. The section provides that there must be a priority space in the cabin capable of stowing at least one adult-size manual wheelchair of the stated dimensions. This requirement applies to aircraft with 100 or more passenger seats. The space must be in addition to the normal under-seat and overhead compartment storage made available for carry-on luggage. Where a carrier plans to use a closet or other storage area to comply with this requirement, we emphasize that in saying priority storage we mean that the space for a wheelchair trumps other possible uses for that closet or other storage area, including passenger hanging bags and crew luggage. This requirement to stow a passenger’s wheelchair in the cabin is in addition to the carrier’s on-board wheelchair as required under section 382.65. This requirement already applies to U.S. carriers for new aircraft they ordered after April 5, 1990, or which were delivered after April 5, 1992. Foreign carriers must comply with respect to new aircraft ordered after the effective date of the rule or delivered more than one year after the effective date.

382.69 What requirements must carriers meet concerning the accessibility of videos, DVDs, and other audio-visual presentations shown on aircraft to individuals who are deaf or hard of hearing? This section requires carriers to ensure that all new videos, DVDs, and other audio-visual displays played on aircraft for safety purposes, and all such audio-visual displays played on aircraft for informational purposes that were created under the carrier’s control, are high-contrast captioned. The captioning must be in the predominant language or languages in which the carrier communicates with passengers on the flight. If the carrier communicates regularly in more than one language (e.g., French and English on a Canadian air carrier), then the captioning must be in all of those languages. By saying that this section applies to “new” videos, we mean that carriers are not required to retrofit or replace existing videos.

For purposes of this section, we view a video as being controlled by a carrier not only if the carrier directly produces it, but if a contractor or other party produces the video for the carrier’s use, with the carrier having significant editorial control or approval of the video’s content. Note that the provision about carrier control of a video applies only to informational materials. Safety materials must be captioned in all cases.

The requirements of this section go into effect 180 days after the effective date of the rule with respect to safety videos, and 240 days after the effective date of the rule with respect to informational videos. This timing is the same for both U.S. and foreign carriers. The corresponding section of the current version of Part 382 permits carriers to use a non-video alternative only if neither open captioning nor a sign language interpreter inset can be used without so interfering with the video as to render it ineffective. This exception is not included in the new rule. The overall effective date of the rule is one year after the rule is published, but, as indicated above, carriers are not required to implement the provision concerning videos in the new rule until 180 to 240 days after that overall effective date. Consequently, starting on the overall effective date (i.e., one year after the rule is published) there would be no requirement in effect on this subject for U.S. carriers. In order to avoid such a situation, as a bridge between the current Part 382 and the new Part 382 U.S. carriers are required to comply with a requirement identical to the current rule’s provision on safety videos between the effective date of the new rule and 180 days after that date.

382.71 What other aircraft accessibility requirements apply to carriers? This provision, like its counterpart in the existing rule, requires maintenance of accessibility features in proper working order and tells carriers to ensure that any replacement or refurbishing of cabin features does not reduce existing accessibility to a level below that specified for new aircraft in this Part.

382.81 For which passengers must carriers make seating accommodations?

382.83 Through what mechanisms do carriers make seating accommodations?

382.85 What seating accommodations must carriers make to passengers in circumstances not covered by section 382.81 (a) through (d)? Carriers must provide a seat that will accommodate a passenger with a disability other than one listed in section 382.81(a) – (d) when the passenger self-identifies and requests the accommodation in order to readily access and use the carrier’s air transportation service.

382.87 What other requirements pertain to seating for passengers with a disability? These provisions are essentially the same as their counterparts in the existing regulation. The provisions are broken out into additional sections for clarity. The rule requires carriers to ensure an adequate number of seats to handle a reasonably expectable demand for seating accommodations of various kinds and emphasizes the need for passengers to self-identify in order to get seating accommodations. The provisions already apply to U.S. carriers and will apply to foreign carriers on the effective date of the rule. The one-year delay in the effective date of the rule following publication should be sufficient for foreign carriers to design procedures to carry out these requirements.

382.91 What assistance must carriers provide to passengers with a disability in moving within the terminal? With respect to connecting assistance, the basic mandate is the same as under the existing rule. The arriving carrier (i.e., the one that operates the first of the two flights that are connecting) has the responsibility for connecting assistance. It is permissible for the two carriers to mutually agree that the carrier operating the departing connecting flight (i.e., the second flight of the two) will provide this assistance, but the carrier operating the arriving flight remains responsible under this section for ensuring that the assistance is provided.

The requirements concerning movement through the terminal are clarified to say that the carrier’s assistance responsibility starts at the terminal entrance and goes through the airport to the gate for a passenger arriving to take a flight, and vice-versa for a passenger leaving the airport after a flight.

One addition concerns enroute stops at the entrance to a rest room. If the passenger is being assisted along the basic route from entrance to gate or vice-versa, or to make a connection, and the route goes by a rest room, the person assisting the passenger must stop and allow the passenger to use the amenity, if doing so will not result in unreasonable delay. To receive this assistance, the passenger must self-identify. It could also be very helpful to a passenger to be able to stop at a takeout food or beverage vendor that was enroute [sic], if doing so would not result in an unreasonable delay. The final rule does not require a stop for this purpose, but we believe that airlines and airports interested in good customer service would allow a brief stop for this purpose.

Another addition, applicable only in U.S. airports, is that a carrier would, on request, and in cooperation with the airport operator, have to escort a passenger to a service animal relief area. Finally, carriers would have to assist passengers with disabilities in transporting their carry-on or gate-checked luggage to or from the gate. This obligation would arise only if the passenger could make credible verbal assurances of his or her inability to carry the item due to his or her disability. If the passenger’s verbal assurances to the carrier are not credible, the carrier may require the passenger to produce documentation as a condition of providing the service. All the services mentioned in this paragraph would be provided only on request of a passenger with a disability.

At foreign airports, as mentioned in connection with the terminal accessibility section, airport operators may be the basic providers of terminal services. The carrier may rely on these services, but would have to supplement them if they did not fully comply with the provisions of this Part.

382.93 Must carriers offer preboarding to passengers with a disability? Carrier must offer an opportunity for preboarding to passengers with a disability who self-identify at the gate as needing additional time or assistance to board, stow accessibility equipment, or be seated. This obligation exists regardless of the carriers’ preboarding policies for other persons (e.g., families with small children). Carriers are not required to make general announcements about preboarding in the gate area specifically for passengers with disabilities, where no preboarding announcements are made for other types of passengers. However, as a matter of general nondiscrimination principles, a carrier that makes a preboarding announcement in the gate area for other types or classes of passengers would have to make the announcement for persons with disabilities as well.

382.95 What are carriers’ general obligations with respect to boarding and deplaning assistance? Carriers must promptly provide assistance to passengers in getting on and getting off aircraft. The assistance can use a variety of means to accomplish the section’s objective; examples are listed in paragraph (a). This obligation exists at both U.S. and foreign airports. At U.S. airports with 10,000 or more annual enplanements, boarding assistance must be provided through the use of lifts or ramps, where level-entry boarding is not otherwise available (paragraph (b)).

382.97 To which aircraft does the requirement to provide boarding and deplaning assistance through the use of lifts apply? At U.S. airports where lift or ramp boarding is required, the requirement applies to aircraft with 19 or more passenger seats, with a few stated exceptions. The Department reserves the option to expand the list of aircraft to which the requirement does not apply, if we determine that there is no model of boarding device on the market that will accommodate the aircraft without a significant risk of serious damage to the aircraft or injury to persons, or that there are internal barriers in the aircraft that would preclude passengers who use a boarding or aisle chair from reaching a non-exit row seat. The Department need not amend this rule in order to make such a determination.

382.99 What agreements must carriers have with the airports they serve? Consistent with the present rule, carriers serving U.S. airports must have agreements with the airport operators to provide, operate, and maintain lifts and ramps used to meet the boarding requirement of section 382.95(b). This requirement already applies to U.S. carriers. Foreign carriers would have a year from the effective date of the rule to enter into such agreements. Foreign carriers serving a particular airport may be able to join existing agreements among the airport and U.S. carriers serving it, rather than starting from scratch. Foreign carriers would have two years from the effective date of the rule to ensure that the boarding assistance called for in this rule was actually being provided.

Carriers may require passengers needing lift assistance for boarding to check in for the flight an hour before the standard check-in time for the flight.

382.101 What other boarding and deplaning assistance must carriers provide? When level-entry boarding is not required, carriers must still take whatever actions are necessary to assist people with disabilities to get on and off aircraft. For example, boarding and deplaning assistance using lifts is not required at smaller U.S. airports and foreign airports, or when severe weather or unexpected mechanical breakdowns prevent the use of a lift. In those circumstances, airlines must still provide enplaning and deplaning assistance by other available means, such as by placing the passenger in a boarding chair and carrying him or her up the boarding stairs unless the design of the aircraft (e.g., the Fairchild Metro, the Jetstream 31 and 32, the Beech 1900 (C and D models) and the Embraer EMB-120) makes this impossible. The only limitation on the means of providing this assistance is that hand-carrying by carrier personnel as defined in that section is prohibited, except in situations of an emergency evacuation where no other timely means of assistance is available.

382.103 May a carrier leave a passenger unattended in a wheelchair or other device? The carrier and its contractors may not leave a passenger unattended in a wheelchair or other device in which the passenger is not independently mobile for more than 30 minutes.

382.105 What is the responsibility of carriers at foreign airports at which airport operators have responsibility for enplaning, deplaning, or connecting assistance? This section reemphasizes that at a foreign airport where airport operators have this responsibility, both U.S and foreign carriers can rely on the airport operator’s services. If these services do not fully meet the requirements of this Part, then the carrier must supplement the airport operator’s services to ensure that the requirements are met. If a carrier believes that it is legally precluded from supplementing the airport operator’s services, it can apply for a conflict of laws waiver.

382.111 What services must carriers provide to passengers with a disability on board the aircraft?

382.113 What services are carriers not required to provide to passengers with a disability on board the aircraft? These sections are parallel to their counterparts in the existing rule. Personal care services like assistance in actual eating and drinking are not required, but more limited assistance such as assisting with the opening of packages is required.

382.115 What requirements apply to on-board safety briefings? This provision also parallels its counterpart in the existing rule.

382.117 Must carriers permit passengers with a disability to travel with service animals? This section has been made more detailed than the current rule’s service animal provision, in response to the comments discussed earlier in the preamble. Further guidance to carriers and passengers concerning service animals follows the Section-by-Section Analysis.

The general rule is that service animals must be allowed to accompany their users. Carriers cannot deny transportation to a service animal because its presence may offend or annoy other passengers (e.g., by causing an allergic reaction that does not rise to the level of a disability or by offending someone’s cultural or personal preferences). When another passenger is uncomfortable with proximity to a service animal, the carrier should do its best to satisfy all passengers by offering the uncomfortable passenger the opportunity to sit elsewhere. Forcing the passenger with the service animal to move to another seat to make another passenger more comfortable, let alone denying transportation in the cabin to the service animal or its user, is not an option.

If a flight segment is scheduled to take eight hours or more, the carrier may require documentation that the service animal will not need to relieve itself or can do so in a way that will not create a health or sanitation issue on the flight.

The only acceptable reason for not allowing a service animal to accompany its user at the user’s seat is that the animal will block a space that, according to FAA or equivalent foreign safety regulations, must remain unobstructed. If, for this reason, the animal cannot be accommodated at the user’s seat, the carrier must allow the passenger and the animal to sit elsewhere on the aircraft, if an appropriate place exists.

There are new, more detailed procedures for the carriage of emotional support and psychiatric service animals. The carrier may require the passenger to provide current documentation from a licensed mental health professional (e.g., a medical doctor that is treating the passenger’s mental or emotional disability or a licensed clinical social worker) caring for the passenger that the passenger has a specific, recognized mental or emotional disability and that the passenger needs to be accompanied by the specific emotional support or psychiatric service animal in question, either on the flight or at the passenger’s destination.

Certain unusual service animals need never be accommodated (e.g., rodents, snakes). Other uncommonly used animals (e.g., miniature horses, monkeys) can travel as service animals on U.S. carriers, but the carrier can decide to exclude a particular animal on a case-by-case basis if it is too large or heavy to be accommodated on a given flight. Foreign carriers are not required to carry service animals other than dogs. We will seek further comment in the SNPRM on whether there are safety-related reasons for excluding animals that may be specific to foreign carriers.

Near the end of this preamble, the Department has included a revised guidance document containing further discussion of service animal matters. With the exception of changes discussed earlier in the preamble, this guidance document incorporates the guidance the Department issued on service animal matters in May 2003. As guidance, it does not have independent mandatory effect, but rather describes how the Department understands the requirements of section 382.117. It also makes suggestions and recommendations concerning how carriers can best accommodate service animals and their users.

The guidance document notes that carriers can properly apply the same policies to “psychiatric service animals” as they do for emotional support animals. This is because carriers and the Department have encountered instances of attempted abuse of service animal transportation policies by persons traveling with animals in both categories. Should the Department encounter a pattern of abuse concerning service animals in other categories, we can consider additional safeguards with respect to those categories as well.

We would call also readers’ attention to recent DOT guidance concerning the transportation of service animals into the United Kingdom. “Guidance Concerning the Carriage of Services Animals in Air Transportation Into the United Kingdom” (February 26, 2007) discusses the transportation of service dogs and cats into the U.K. via U.S. and foreign carriers. To transport service animals into the U.K., carriers must participate in the U.K. Pet Travel Scheme. A supplementary DOT guidance document, “Carriage of Service Animals in Air Transportation Into the United Kingdom and Foreign Health Documentation Requirements for Service Animals in Air Transportation” (July 17, 2007), provides further information for carriers and the public concerning carriage of, and documentation needed for, carriage of service animals into countries other than the U.K. These documents may be found on the Department’s Aviation Consumer Protection Division website.

382.119 What information must carriers give individuals with vision or hearing impairment on aircraft? This section requires that carriers ensure that passengers with a disability who identify themselves as needing visual or hearing assistance have prompt access to the same information provided to other passengers on the aircraft. In providing this information, carriers are not required to take steps that would interfere with crewmembers’ safety duties as set forth in FAA and applicable foreign regulations.

The covered information includes, but is not limited to, information concerning flight safety, procedures for takeoff and landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival time, boarding information, weather conditions at the flight’s destination, beverage and menu information, connecting gate assignments, baggage claim (e.g., at which carousel an arriving flight’s bags may be retrieved), individuals being paged by airlines, and emergencies (e.g., fire or bomb threat). The requirement of this section applies whether the information is provided to passengers by the carrier in the aircraft or in the terminal (e.g., the gate area).

We intend to require carriers to provide information that a reasonable consumer would deem important, even if it falls outside the list in §382.119(b). Conversely, carriers are not required to provide information that a reasonable consumer would not deem important. For example, we do not consider information on sightseeing at the flight’s destination or an announcement that the aircraft is flying over the Grand Canyon to be covered by this rule.

382.121 What mobility aids and other assistive devices may passengers with a disability bring into the aircraft cabin? Passengers may bring manual, but not electric wheelchairs, other mobility aids (e.g., canes, including those used by blind passengers), and other assistive devices (e.g., POCs), as well as prescription medications and any medical devices needed to administer them (e.g., syringes, auto-injectors), as long as they comply with applicable safety, security and hazardous materials rules. These devices and aids cannot be counted against the airline’s carry-on limits.

382.123 What are the requirements concerning priority cabin stowage for wheelchairs and other assistive devices? This section is related to the requirements for priority stowage spaces in section 382.67 and an opportunity to preboard in section 382.93. A passenger who takes advantage of the offer to preboard can stow his or her wheelchair in the aircraft’s priority stowage area, with priority over other passengers’ items brought onto the aircraft at the same airport, consistent with applicable safety and security regulatory requirements. The passenger’s wheelchair also takes priority over items that may be stowed in the space by the carrier and its personnel, such as on-board wheelchairs or crew luggage, even if these items came on board at an earlier stop of the plane’s itinerary. If such items are in the space when a wheelchair user comes on board, they must be moved to accommodate the passenger’s wheelchair. Carriers must also offer this opportunity for other assistive devices, though wheelchairs retain priority. Passengers with wheelchairs or other assistive devices who do not preboard must still be allowed to use the priority stowage areas for their devices, but their use of the space is on a first-come-first-served basis with respect to other passengers’ items.

Some U.S. carriers have used the so-called “seat-strapping” method of securing passengers’ wheelchairs in the cabin, usually in situations in which, contrary to the existing rule in some cases, aircraft did not have closets or other spaces capable of accommodating the wheelchairs. The Department does not believe that this is a good long-term approach to carrying passenger wheelchairs in the cabin, especially in these times of frequently full flights. The Department emphasizes that providing priority stowage spaces as required by section 382.67 is essential. To limit the ability of carriers to use the seat-strapping method as a way of getting around the designated priority stowage requirement, carriers may not use the seat-strapping method in any aircraft ordered after the effective date of this Part or delivered more than two years after the rule’s effective date.

382.125 What procedures do carriers follow when wheelchairs, other mobility aids, and other assistive devices must be stowed in the cargo compartment? As under the current rule, electric wheelchairs and other devices that are not required to be stowed in the cabin must be transported in the cargo compartment. These items have priority over other passengers’ items. If other passengers’ items are bumped as a result, the carrier must use its best efforts to ensure that they are delivered to the passenger’s destination on the carrier’s next flight. This may be a flight within an hour or two with respect to a domestic destination; it could be a matter of days with respect to some carriers’ international flights.

382.127 What procedures apply to the stowage of battery-powered mobility aids? This provision does not make substantive changes from its counterpart in the existing rule, except to say that carriers may require a passenger wishing to check his or her device to check in an hour before the standard check-in time for the flight. DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a special permit which may affect procedures for handling power wheelchairs (see PHMSA “Special Permit 14548” dated October 5, 2007, and revised on October 30, 2007.)

382.129 What other requirements apply when passengers’ wheelchairs, other mobility aids, and other assistive devices must be disassembled for stowage?

382.131 Do baggage liability limits apply to mobility aids and other assistive devices? These provisions are substantively the same as their counterparts in the existing rule. Carriers and passengers should note that section 382.131 applies only to domestic U.S. travel. Baggage liability limits for international travel, including flights of U.S. carriers, are governed by the Montreal Convention and other international agreements, rather than by 14 CFR Part 254.

382.133 What are the requirements concerning the evaluation and use of passenger-owned electronic devices that assist passengers with respiration in the cabin during flight and do not contain hazardous materials? The basic point of this section is that, with minor exceptions, carriers must permit passengers with a disability to use a portable oxygen concentrator (POC) and other respiratory assistive devices in the cabin. Such devices must meet FAA or foreign government requirements, as applicable, and display a manufacturer’s label that indicates that the device meets the FAA or foreign government requirements.

When a passenger asks a carrier about bringing his or her electronic respiratory assistive device, the carrier must tell the passenger about the requirements for carrying such a device on board, touching on such matters as meeting FAA requirements, having the manufacturer’s label, bringing an adequate number of fully charged batteries, any check-in or advance notice requirements, medical certificate requirements, and the expected duration of the flight. Carriers may insist on passengers bringing on board fully charged batteries adequate to last for 150 percent of the expected maximum flight duration. If a passenger does not comply with the conditions outlined in the rule, the carrier can deny him or her transportation on the flight.

382.141 What training are carriers required to provide for their personnel? This section continues, for the most part, the requirements of the existing rule. There are a few differences, in view of the rule’s application to foreign carriers. The requirement to consult with disability groups now focuses on disability groups in the carrier’s home country. If such groups are not available, consulting with individuals with disabilities or disability groups in other countries is appropriate.

382.143 When must carriers complete training for their personnel? Employees of U.S. carriers that have already received initial training must be trained on changes to Part 382 at their next recurrent training after the rule goes into effect or within one year after the effective date of the rule, whichever comes first. New crewmembers have to be trained before they assume their duties. Other employees new to a position must be trained within 60 days after starting their jobs. Current employees of foreign carriers that serve flights covered by the rule must be trained within a year after the effective date of the rule. After that date, new crewmembers must be trained before assuming their duties, and other new employees within 60 days after when they assume their duties. For employees who fall in between these categories – those who start work during the first year after the effective date of the rule – training must occur before the second anniversary of the effective date of the rule or 60 days from their start date, whichever is later.

While the rule provides a reasonable amount of time for employees to be trained, carriers are nevertheless responsible for violations that occur between the effective date of the rule and the training deadlines. We strongly encourage carriers to expedite their training schedules so that as many employees as possible are trained by the final rule’s effective date.

To ensure that foreign carriers have resource persons to deal with disability issues as soon as possible, foreign carriers will have to complete training for CROs, and U.S. carriers will have to complete training for CROs about changes in Part 382, by the effective date of the rule. Given the critical role played by CROs in carriers’ implementation of the rule, it is essential for CROs to be trained before the rule becomes effective. U.S. carriers have been subject to requirements to train CROs under the existing rule, and additional training for these CROs should be limited in scope, since it would need only to cover changes between the existing rule and this final rule. Since foreign carriers will have a year between the publication of the rule and its effective date, they too should have adequate time to train CROs by the effective date of the rule.

382.145 What records concerning training must carriers retain? Carriers must maintain records of the procedures they use to comply with this rule, including those portions of manuals and other instructional materials concerning Part 382 compliance, and individual employee training records. Training records must be retained for three years. Carriers are not to send these materials to DOT for review, but it must be made available to the Department if we ask to look at it. If we determine that something in these materials needs to be changed in the interest of compliance with the rule, the carrier must make the changes the Department directs.

382.151 What are the requirements for providing Complaints Resolution Officials? The CRO requirement is essentially the same as under the current rule. U.S. carriers must make a CRO available – either in person or via telephone – at each airport the carrier serves, at all times the carrier is operating at the airport. Foreign carriers must make a CRO available at each airport serving flights the carrier operates that begin or end at a U.S. airport. The Department realizes that, in some cases, carriers operate covered flights infrequently. For example, a foreign carrier may fly from Dulles to a foreign airport only at 5 p.m. on Mondays and Thursdays. On other days, and on Monday and Thursday mornings for that matter, the foreign airline would not have to make a CRO available to persons at Dulles. CRO services would have to be made available in languages in which the carrier provides services to the general public.

This rule clarifies that carriers are responsible for making passengers aware of the availability of a CRO in some circumstances even if the passenger does not say “I want to talk to a CRO.” If a passenger raises a disability-related concern, and the carrier’s personnel do not immediately resolve the issue to the customer’s satisfaction, the carrier must say, in effect, “We have a CRO available that you can talk to about this problem if you want to. The CRO is our resource person who can help solve disability-related issues. Here is where you can find, or call, our CRO.”

CROs must have authority to definitively resolve complaints. This means they must have the power to overrule decisions of other carrier personnel, except that they are not required to have authority to countermand a safety decision of a pilot-in-command of an aircraft. Of course, even decisions of pilots, if they later are shown to be in noncompliance with this rule, can subject the carrier to DOT enforcement action.

382.153 What actions do CROs take on complaints?

382.155 How must carriers respond to written complaints? CROs are to promptly take action to resolve complaints made to them. In some cases, CROs can take quick action to prevent a potential violation (e.g., a threatened denial of service) from becoming a real violation. If a CRO determines that a violation has already occurred, the CRO must write the complainant and describe the carrier’s corrective action. Of course, not all complaints have merit, and if the CRO decides that a violation did not occur, the CRO must also write the complainant and explain this determination. CRO responses are due 30 days from the date of the complaint.

Often, complaints to carriers may be made in writing (letters, e-mails etc.). These complaints may or may not have been processed through the carrier’s CRO, though they need to state whether a CRO was involved. Except for complaints DOT refers to a carrier, the carrier is not required to respond to a complaint transmitted more than 45 days after the incident in question. The carrier must respond within 30 days.

382.157 What are carriers obligations for recordkeeping and reporting on disability-related complaints? This section is identical to the current regulatory provision on disability-related complaint reporting. The language referring to carriers “covered by this Part” is not intended to change the scope of the existing provision, which refers to carriers conducting passenger operations with at least one aircraft having a designed seating capacity of more than 60 seats on flights to, from, or in the United States.

382.159 How are complaints filed with DOT? Changes from the corresponding provision of the existing regulation include a time frame for filing informal complaints, a change of postal address for sending an informal complaint by mail, and the web address for filing an informal complaint on the Air Consumer website.