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)

SUPPLEMENTARY INFORMATION:

Background

Congress enacted the Air Carrier Access Act (ACAA) in 1986. The statute prohibits discrimination in airline service on the basis of disability. Following a lengthy rulemaking process that included a regulatory negotiation involving representatives of the airline industry and disability community, the Department issued a final ACAA rule in March 1990. Since that time, the Department has amended the rule ten times.¹ These amendments have concerned such subjects as boarding assistance via lift devices for small aircraft, and subsequently for other aircraft, where level entry boarding is unavailable; seating accommodations for passengers with disabilities; reimbursement for loss of or damage to wheelchairs; modifications to policies or practices necessary to ensure nondiscrimination; terminal accessibility standards; and technical changes to terminology and compliance dates.

The Department has also frequently issued guidance that interprets or explains further the text of the rule. These interpretations have been disseminated in a variety of ways: preambles to regulatory amendments, industry letters, correspondence with individual carriers or complainants, enforcement actions, web site postings, informal conversations between DOT staff and interested members of the public, etc. This guidance, on a wide variety of subjects, has never been collected in one place. Some of this guidance would be more accessible to the public and more readily understandable if it were incorporated into regulatory text.

There have also been changes in the ways airlines operate since the original publication of Part 382. For example, airlines now make extensive use of web sites for information and booking purposes. Preboarding announcements are not as universal as they once were. Many carriers now use regional jets for flights that formerly would have been served by larger aircraft. Security screening has become a responsibility of the Transportation Security Administration (TSA), rather than that of the airlines. In this rulemaking, the Department is updating Part 382 to take these and other changes in airline operations into account.

The over 17-year history of amendments and interpretations of Part 382 have made the rule something of a patchwork, which does not flow as clearly and understandably as it might. Restructuring the rule for greater clarity, including using ``plain language'' to the extent feasible, is an important objective. To this end, Part 382 has been restructured in this rule, to organize it by subject matter area. Compared to the present rule, the text is divided into more subparts and sections, with fewer paragraphs and less text in each on average, to make it easier to find regulatory provisions. The rule uses a question-answer format, with language specifically directing particular parties to take particular actions (e.g., "As a carrier, you must * * *''). We have also tried to express the (admittedly sometimes technical) requirements of the rule in plain language.

The Department recognizes that some users, who have become familiar and comfortable with the existing organization and numbering scheme of Part 382, might have to make some adjustments as they work with the restructured rule. However, the structure of this revision is consistent with a Federal government-wide effort to improve the clarity of regulations, which the Department has employed with great success and public acceptance in the case of other significant rules in recent years, such as revisions of our disadvantaged business enterprise and drug and alcohol testing procedures rules.² Many of the provisions of the current Part 382 are retained in this rule with little or no substantive change. To assist users familiar with the current rule in finding material in the new version of the rule, we have included a cross-reference table in Appendix B to the final rule.

In addition to this general revision and update, the Department in this rule is making important substantive changes to the rule in three areas: coverage of foreign carriers, accommodations for passengers who use oxygen and other respiratory assistive devices, and accommodation for deaf or hard-of-hearing passengers.

The original 1986 ACAA covered only U.S. air carriers. However, on April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21) amended the ACAA specifically to include foreign carriers. The ACAA now reads in relevant part:

In providing air transportation, an air carrier, including (subject to [49 U.S.C.] section 40105(b)) any foreign air carrier, may not discriminate against an otherwise qualified individual on the following grounds:

(1) The individual has a physical or mental impairment that substantially limits one or more major life activities.

(2) The individual has a record of such an impairment.

(3) The individual is regarded as having such an impairment.

Section 40105(b) provides as follows:

(b) Actions of Secretary and Administrator.—

(1) In carrying out this part, the Secretary of Transportation and the Administrator—

(A) shall act consistently with obligations of the United States Government under an international agreement;

(B) shall consider applicable laws and requirements of a foreign country; and

(C) may not limit compliance by an air carrier with obligations or liabilities imposed by the government of a foreign country when the Secretary takes any action related to a certificate of public convenience and necessity issued under chapter 411 of this title.

(2) This subsection does not apply to an agreement between an air carrier or an officer or representative of an air carrier and the government of a foreign country, if the Secretary of Transportation disapproves the agreement because it is not in the public interest. Section 40106 (b)(2) of this title applies to this subsection.

In response to the AIR-21 requirements, the Department on May 18, 2000, issued a notice of its intent to investigate complaints against foreign carriers according to the amended provisions of the ACAA. The notice also announced the Department's plan to initiate a rulemaking modifying Part 382 to cover foreign carriers. On November 4, 2004, the Department issued a notice of proposed rulemaking (NPRM) to apply the ACAA rule to foreign carriers (69 FR 64364). The NPRM sought to apply Part 382 to foreign carriers in a way that achieves the ACAA's nondiscrimination objectives while not imposing undue burdens on foreign carriers. This NPRM also proposed revisions to a number of other provisions of 14 CFR Part 382 and generally reorganized the rule. The Department received about 1300 comments on this NPRM. In this preamble to the final rule, this proposed rule is called the “Foreign Carriers NPRM” or the “2004 NPRM.”

On September 7, 2005, the Department published a second NPRM, on the subject of medical oxygen and portable respiratory assistive devices (70 FR 53108). The Department received over 1800 comments on this proposed rule, which is referred to in this preamble as the “Oxygen NPRM.” On February 23, 2006, the Department published a third NPRM, concerning accommodations for passengers who are deaf, hard-of-hearing, or deaf-blind. The Department received over 700 comments on this proposed rule, which is called the deaf and hard-of-hearing (DHH) NPRM in this preamble. This document addresses the over 3800 comments received on all three NPRMs. The section-by-section analysis will describe each provision of the combined final rule.

In this preamble, when we mention the “present,” “current,” or “existing” rule, we mean the version of Part 382 that is in effect now. It will remain in effect until a year from today, when it will be replaced by the provisions that are published in this final rule.

Comments and Responses

General Regulatory Approach

A number of airline industry commenters-- principally, but not only, foreign carriers -- criticized the Foreign Carriers NPRM’s approach as being too detailed and prescriptive. Many of these commenters said they preferred a more general approach, in which an overall objective of nondiscrimination and service to persons with disabilities was stated, with the details of implementation left to the discretion of carrier policies, guided by codes of recommended practice issued by various governments or international organizations.

It is the Department’s experience, over the 21 years since the enactment of the Air Carrier Access Act, that in order to ensure that carriers are accountable for providing nondiscriminatory service to passengers with disabilities, detailed standards and requirements are essential. If all that carriers are responsible for is carrying out, in their best judgment, general objectives of nondiscrimination and good service, or best practices or recommendations, or regulations that are not enforceable by the Department, then effective enforcement of the rights Congress intended to protect in the ACAA becomes impracticable. It is understandable that carriers would wish to implement their goals through policies of their own devising and to limit potential compliance issues. However, the Department is responsible for ensuring consistent nondiscriminatory treatment of passengers with disabilities, including implementation of the variety of specific accommodations that are essential in providing such treatment. We must structure our response to this mandate in a way that allows for clear and consistent implementation by the carriers, and clear and consistent enforcement by the Department. Consequently, we are convinced that the approach taken in the NPRM, reflecting the Department’s years of successful experience in carrying out the ACAA, is appropriate.

Coverage and Definition of “Flight”

The Foreign Carriers NPRM proposed to cover the activities of foreign carriers with respect to a “flight,” defined as a continuous journey, in the same aircraft or using the same flight number that begins or ends at a U.S. airport. The Foreign Carriers NPRM included several examples of what would or would not be considered covered “flights.” One of these examples proposed that if a passenger books a journey on a foreign carrier from New York to Cairo, with a change of plane or flight number in London, the entire flight would be covered for that passenger. When there is a change in both aircraft and flight number at a foreign airport, the rule would not apply beyond that point. Another example proposed that the rules applying to U.S. carriers would apply to a flight operated by a foreign carrier between foreign points that was also listed as a flight of a U.S. carrier via a code sharing arrangement.

Commenters, including foreign carriers, generally conceded that it was acceptable for the rule to cover foreign carriers’ flights that started or ended at a U.S. airport. Some carriers said that it was burdensome for them to continue to observe Part 382 rules for a leg of a flight that did not itself touch the U.S. (e.g., the London-Cairo leg in the example mentioned above). We note that only service and nondiscrimination provisions of the rule apply in such a situation, not aircraft accessibility requirements.

Foreign carriers’ main objection, however, centered on codeshare flights between two foreign points. They said that it was an inappropriate extraterritorial extension of U.S. jurisdiction to apply U.S. rules to a foreign carrier just because the foreign carrier’s flight between two foreign points carried passengers under a code-sharing arrangement with a U.S. carrier. In response to these comments, the Department has changed the applicable provision of the final rule. If a foreign carrier operates a flight between two non-U.S. points and the flight carries the code of a U.S. carrier, the final rule will not extend coverage to the foreign carrier for that flight segment and the foreign carrier will not be responsible to the Department for compliance with Part 382 for that segment. Rather, with respect to passengers ticketed to travel under the U.S. carrier’s code, the Department regards the transportation of those passengers to be transportation by a U.S. carrier, concerning which the U.S. carrier is responsible for Part 382 compliance. If there is a service-related violation of Part 382 on a flight between two non-U.S. points operated by a foreign carrier, affecting a passenger traveling under the U.S. carrier’s code, the violation would be attributed to the U.S. carrier, and any enforcement action taken by the Department would be against the U.S. carrier. We note that the aircraft accessibility requirements would not apply in such a situation. U.S. carriers can work with their foreign carrier codeshare partners to ensure that required services are provided to passengers.

Conflict of Law Waivers and Equivalent Alternative Determinations

One of the most frequent comments made by foreign carriers and their organizations was that implementation of the proposed rules would lead to conflicts between Part 382 and foreign laws, rules, voluntary codes of practice, and carrier policies. These conflicts, commenters said, would lead to confusion and reduce efficiency in service to passengers with disabilities. Many commenters advocated that the Department should defer to foreign laws, rules, and guidance, or accept them as equivalent for purposes of compliance with Part 382.

In anticipation of this concern, and in keeping with the Department’s obligation and commitment to giving due consideration to foreign law where it applies, the Foreign Carriers NPRM proposed a conflict of laws waiver mechanism. Under the proposal, a foreign carrier would be required to comply with Part 382, but could apply to DOT for a waiver if a foreign legal requirement conflicted with a given provision of the rule. If DOT agreed that there was a conflict, then the carrier could continue to follow the binding foreign legal requirement, rather than the conflicting provision of Part 382. Foreign carriers commented that this provision was unfair, because it would force them to begin complying with a Part 382 requirement allegedly in conflict with a foreign legal requirement while the application for a waiver was pending. Some commenters also objected to DOT making a determination concerning whether there really was a conflict between DOT regulations and a provision of foreign law.

In order to determine whether a foreign carrier should be excused from complying with an otherwise applicable provision of Part 382, the Department has no reasonable alternative to deciding whether a conflict with a foreign legal requirement exists. The Department cannot rely solely on an assertion by a foreign carrier that such a conflict exists.

Comments from a number of foreign carriers asked the Department to broaden the concept of the proposed waiver, by allowing foreign carriers to comply with recommendations, voluntary codes of practice, etc. We do not believe such a broadening is necessary to comply with the Department’s legal obligations. Nor would it be advisable from a policy point of view, as it would not provide the consistency that passengers with disabilities should expect, regardless of the identity or nationality of the carrier they choose.

We therefore want to make clear, for purposes of this waiver provision, what we mean by a conflict with a provision of foreign law. By foreign law, we mean a legally binding mandate (e.g., a statute, regulation, a safety rule equivalent to an FAA regulation) that imposes a nondiscretionary obligation on the foreign carrier to take, or refrain from taking, a certain action. Binding mandates frequently can subject a carrier to penalties imposed by a government in the event of noncompliance. Guidance, recommendations, codes of best practice, policies of carriers or carrier organizations, and other materials that do not have mandatory, binding legal effect on a carrier cannot give rise to a conflict between Part 382 and foreign law for purposes of this Part, even if they are published or endorsed by a foreign government. In order to create a conflict, the foreign legal mandate must require legally something that Part 382 prohibits, or prohibit something that Part 382 requires. A foreign law or regulation that merely authorizes carriers to adopt a certain policy, or gives carriers discretion in a certain area that Part 382 addresses, does not create a conflict cognizable under the conflict of laws waiver provision.

For example, Part 382 says that carriers are prohibited from imposing number limits on passengers with disabilities. Suppose that Country S has a statute, or the equivalent of an FAA regulation, mandating that no more than three wheelchair users can, under any circumstances, travel on an S Airlines flight. S Airlines would have no discretion in the matter, since it was subject to a legal mandate of its government. This would create a conflict between Part 382 and the laws of Country S that could be the subject of a conflict of laws waiver. However, suppose that the government of Country S publishes a guidance document that says limiting wheelchair users on a flight to three is a good idea, has a regulation authorizing S Airlines to impose a number limit if it chooses, or approves an S Airlines safety program that includes a number limit. In these cases, the conflict of laws waiver would not apply, since in each case there is not a binding government requirement for a number limit, and S Airlines has the discretion whether or not to adopt one.

We note one exception to this point. If a foreign government officially informs a carrier that it intends 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 that conflicts with a portion of the Department’s rules, the Department would view the government action as creating a legal mandate cognizable under this section.

While retaining the substance of the conflict of laws provision of the NPRM, the Department has, in response to comments, modified the process for considering waiver requests.. We agree with commenters that it would be unfair to insist that carriers comply with a Part 382 provision that allegedly conflicts with foreign law while a waiver request is pending. Consequently, we have established an effective date for the rule of one year after its publication date. We strongly encourage carriers, even where a provision of Part 382 itself explicitly allows an exception in order to comply with a foreign law (i.e., section 382.87(a)), to consider filing a conflict of law waiver request as outlined in section 382.9(a) whenever a carrier believes itself bound by a legal mandate that requires something Part 382 prohibits or prohibits something Part 382 requires. If a carrier sends in a waiver request within 120 days of the publication date of the final rule, the Department will, to the maximum extent feasible, respond before the effective date of the rule. If we are unable to do so, the carrier can keep implementing the policy or practice that is the subject of the request until we do respond, without becoming subject to enforcement action by the Department. The purpose of the 120-day provision is to provide an incentive to foreign carriers to conduct a due diligence review of foreign legal requirements that may conflict with Part 382 and make any waiver requests to DOT promptly, so that the Department can resolve the issues before the rule takes effect.

What a foreign carrier obtains by filing all its conflict of laws waiver requests within the first 120 days is, in effect, a commitment from DOT not to take enforcement action related to implementing the foreign law in question pending DOT’s response to the waiver request. For example, if S Airlines filed a waiver request with respect to an alleged requirement of a Country S law requiring number limits for disabled passengers within 120 days of the rule’s publication, then the Department would not commence an enforcement action relating to an alleged violation of Part 382’s prohibition of number limits that occurred during the interval between the effective date of Part 382 and the date on which DOT responds to S Airline’s waiver request. This would be true even if the Department later denies the request.

However, if S Airlines did not file its request until 180 or 210 days after the rule is published, DOT could begin enforcement action against the carrier for implementing number limits inconsistent with Part 382 during the period between the effective date of the rule and the Department’s response to the waiver request. If the Department granted the waiver request, any enforcement action relating to the carrier’s actions during that interval would probably be dismissed. However, if the waiver request were denied, the enforcement action would proceed. S Airlines thus would have put itself at somewhat greater risk by failing to submit its waiver request on a timely basis.

We also recognize that laws change. Consequently, if a new provision of foreign law comes into effect after the 120-day period, a carrier may file a waiver request with the Department. The carrier may keep the policy or practice that is the subject of the request in effect pending the Department’s response, which we will try to provide within 180 days. Again, the carrier would not be at risk of a DOT enforcement action relating to the period during which the Department was considering the waiver request concerning the new foreign law.

Carriers should not file frivolous waiver requests, the stated basis for which is clearly lacking in merit or which are filed with the apparent intent of delaying implementation of a provision of Part 382 or abusing the waiver process. In such cases, the Department may pursue enforcement action even if the frivolous waiver request has been filed within 120 days. As a general matter, a carrier that does not file a request for a waiver, or whose request is denied, cannot then raise the alleged existence of a conflict with foreign law as a defense to a DOT enforcement action.

Many foreign carriers and their organizations also said that a conflict of laws waiver, standing alone, was insufficient. They said that their policies and approaches to assisting passengers with disabilities, or laws or policies relating to disability access of foreign carriers’ countries (either single-country laws or those of, for example, the European Union) should be recognized as equivalent to DOT’s rules. Compliance with equivalent foreign laws and carrier policies, they said, should be sufficient to comply with Part 382.

U.S. disability law includes a concept – equivalent facilitation -- that can address these comments to a reasonable degree. This concept, which is embodied in such sources as the Department’s Americans with Disabilities Act (ADA) regulations and the Americans with Disabilities Act Accessibility Guidelines (ADAAG), states that a transportation or other service provider can use a different accommodation in place of one required by regulation if the different accommodation provides substantially equivalent accessibility. The final rule permits U.S. and foreign carriers to apply to the Department for a determination of what the final rule will call an “equivalent alternative.” (We use this term is used in place of “equivalent facilitation” to avoid any possible confusion with the use of “equivalent facilitation” in other contexts.). If, with respect to a specific accommodation, the carrier demonstrates that what it wants to do will provide substantially equivalent accessibility to passengers with disabilities than literal compliance with a particular provision of the rule, the Department will determine that the carrier can comply with the rule using its alternative accommodation. This provision applies to equipment, policies, procedures, or any other method of complying with Part 382.

It should be emphasized that equivalent alternative determinations concern alternatives only to specific requirements of Part 382. The Department will not entertain an equivalent alternative request relating to an entire regulatory scheme (e.g., an application asserting that compliance with European Union regulations on services to passengers with disabilities was equivalent to Part 382 as a whole). It should be emphasized that the fact that a carrier policy or foreign regulation addresses the same subject as a provision of Part 382 does not mean the carrier policy or foreign regulation is an equivalent alternative. For example, both Part 382 and various carrier policies address the transportation of service animals. A policy or regulation that was more restrictive than Part 382 would not be viewed as an equivalent alternative, since it provided less, rather than substantially equivalent, accessibility for passengers who use service animals.

As with the conflict of laws waiver, if a carrier submits a request for an equivalent alternative determination within 120 days of the publication of this Part, the Department will endeavor to have a response to the carrier by the effective date of the rule. If the Department has not responded by that time, the carrier can implement its proposed equivalent alternative until and unless the Department disapproves it. However, with respect to a request filed subsequent to that date, carriers must begin complying with the Part 382 provision when it becomes effective, and could not use their proposed equivalent alternative until and unless the Department approved it.

Other International Law Issues

A number of foreign carriers said that application of the rule alike to U.S. and foreign carriers was unfair, in that U.S. carriers receive Federal funds to support their operations, while European and other foreign carriers do not. Commenters also argued that it was unfair for DOT to allow U.S. carriers to avoid civil penalties if they have introduced programs that go beyond minimum requirements.

The Department disagrees with both these comments. The very reason for the existence of the ACAA is that the Supreme Court, in Paralyzed Veterans of America v. Civil Aeronautics Board, 477 U.S. 597 (1986), determined that, with minor exceptions not germane to the issue raised by commenters, U.S. carriers do not receive Federal financial assistance. For this reason, the Court said, section 504 of the Rehabilitation Act of 1973 – which applies only to entities receiving Federal financial assistance – largely does not cover U.S. air carriers. Congress then enacted the ACAA to ensure that U.S. air carriers provided nondiscriminatory service to passengers with disabilities, notwithstanding the absence of Federal financial assistance. The situation that the Court saw in 1986 remains: U.S. carriers engaging in international transportation do not receive Federal financial assistance.

The second of these comments appears to be a somewhat inaccurate reflection of a DOT enforcement policy that, in some cases, allows a carrier to invest part of a civil penalty to improve services for passengers with disabilities above and beyond what the ACAA requires, rather than paying the amount of this investment to the Department. For example, if a carrier were assessed a $1.5 million civil penalty for failure to provide timely and adequate assistance to passengers who use wheelchairs, the Department’s Office of Aviation Enforcement and Proceedings might require a cash payment of only $200,000 if the carrier agreed to use the remaining $1.3 million to enhance accessibility for passengers with mobility impairments in ways that go beyond the requirements of Part 382. Since this enforcement approach applies equally to foreign and U.S. carriers, continued implementation of this policy will not result in any inequity between U.S. and foreign carriers.

Numerous foreign carriers and organizations complained that the Foreign Carriers NPRM was inconsistent with 49 U.S.C. 40105(b), which directs the Secretary to “act consistently with obligations of the United States government under an international agreement” and to “consider applicable laws and requirements of a foreign country.” In the context of this rule, the Department believes that the conflict of laws waiver provision effectively discharges the statutory obligation imposed on the Department by the language of subsection (b)(1)(B), since the Department would “consider” foreign requirements in implementing its waiver authority when a Department regulatory provision was shown to conflict with a foreign legal mandate. In addition, the Department has also provided greater flexibility in the rule through incorporating an equivalent alternative provision, which covers policies and practices that are not mandated by foreign laws and requirements. This provision will facilitate our efforts to implement ACAA requirements smoothly in the context of our international relationships.

A related argument that many foreign carriers made is that the Foreign Carriers NPRM proposed provisions inconsistent with international agreements binding on the U.S., thereby violating subsection (b)(1)(A). In particular, commenters cited provisions of the Chicago Convention (e.g., Articles 1 and 37 and Annex 9). Article 1 concerns the sovereignty of signatory states with respect to aviation; Article 37 authorizes the International Civil Aviation Organization (ICAO) to adopt standards and recommendations in a variety of areas, and Annex 9 includes a series of standards and recommendations concerning transportation of persons with disabilities.

In the Department’s view, Article 1 is fully consistent with the adoption of requirements that affect flights to and from the U.S., a point with which many commenters agreed. The one area in which the Foreign Carriers NPRM was said by many commenters to assert extraterritorial jurisdiction – coverage of foreign carriers with respect to flights carrying passengers under the code of a U.S. carrier – has been changed in the final rule, as described above.

The authority of ICAO under Article 37 to issue standards and recommendations does not purport to pre-empt a signatory state’s authority to issue rules concerning air commerce to and from its airports. Nor do the standards and recommendations of Annex 9 with respect to transportation of passengers with disabilities purport to occupy the field, such that member states are pre-empted from issuing their own rules in this area. Indeed, the ICAO recommended practices suggest that member states should take their own implementing actions. It is reasonable to state that the provisions of the ACAA and Part 382 faithfully carry out these recommendations, making concrete many of the suggestions that ICAO makes to member states.

The two ICAO standards in Annex 9 related to transportation of passengers with disabilities are the following:

Standard 8.27. Contracting States shall take the necessary steps to ensure that airport facilities and services are adapted to the needs of persons with disabilities.

Standard 8.34. Contracting States shall take the necessary steps to ensure that persons with disabilities have adequate access to air services.

The ACAA rule does not conflict with these standards, it supports them. The rule requires that airport facilities and services involving transportation to and from the U.S. provide nondiscriminatory service to passengers with disabilities. The rule includes a variety of steps necessary to ensure that passengers with disabilities have nondiscriminatory access to air services, again in transportation to and from the U.S.

Some commenters alleged that requirements of the Chicago Convention regarding "notification of differences" should apply to the rulemaking and that the Department had failed to comply with them. The relevant language is the following:

Notification of differences. The attention of Contracting States is drawn to the obligation imposed by Article 38 of the Convention by which Contracting States are required to notify the Organization of any differences between their national regulations and practices and the International Standards contained in this Annex and any amendments thereto. Contracting States are invited to extend such notification to any differences from the Recommended Practices contained in this Annex, and any amendments thereto.

The requirement for a notification of differences applies only to differences between Standards and national regulations. As noted above, there are no differences between the ICAO Standards and the ACAA rule. The Convention’s language says that States are “invited” to extend notification to ICAO with respect to any differences from Recommended Practices. Obviously, an “invitation” falls well short of a legal mandate. In any event, the ACAA requirements have the effect of carrying out the Recommended Practices. We reject any assertion that, by making specific accommodations mandatory (e.g., by saying “must” instead of “should”) or by limiting airline discretion to provide poorer rather than better accommodations for passengers (e.g., with respect to service animals), the rule is creating “differences” with International Standards cognizable under provisions of the Chicago Convention.

In connection with their Chicago Convention-related arguments, a number of foreign carriers or organizations cited British Caledonian Airways v. Bond, 665 F.2d 1153 (D.C. Cir., 1981). This case arose from the crash of a DC-10 that FAA traced to cracks in engine pylons that were exacerbated by faulty maintenance procedures. FAA issued an emergency Special Federal Aviation Regulation (SFAR) grounding all DC-10s of U.S. carriers. FAA then issued a similar SFAR prohibiting foreign carriers’ DC-10s from operating in U.S. airspace. Shortly before FAA rescinded the SFARs in question, their purpose having been achieved, several foreign carriers sought judicial review of the foreign carrier SFAR. The Court found that the SFAR conflicted with Article 33 of the Chicago Convention, which provides that certificates of airworthiness or licenses issued by the State in which the aircraft is registered must be recognized as valid by other contracting States, unless the country of registration is not observing “minimum standards.”

This case concerns solely Article 33 and its relationship to the validity of carrier airworthiness certificates issued by foreign governments. This rulemaking, on the other hand, has nothing to do with Article 33 or airworthiness certificates. The case therefore is irrelevant to the rulemaking. It may be that commenters were arguing that DOT regulatory actions in general that conflict with the Chicago Conventions are vulnerable to court challenges; however, as noted above, this regulation is fully consistent with relevant portions of the Chicago Convention.

Other comments from foreign carriers and organizations were more policy-oriented in nature, asking for consultation through ICAO or other channels prior to publication of a rule which, while carefully limited to matters affecting service to and from the U.S., had implications for the international aviation system. Comments asked for greater focus on international harmonization. In fact, the Department consulted extensively with other interested parties. The volume and detail of comments from foreign carriers and organizations testify to the extensive opportunity non-U.S. parties have had to participate in this rulemaking. This final rule reflects the Department’s consideration of this participation (and we note that participation between the time of the Foreign Carriers NPRM and the final rule is just as valid as participation before issuance of the Foreign Carriers NPRM). DOT officials also met and had phone conferences with organizations representing European and Asian governments and/or carriers. It would be unreasonable to contend that this extensive participation somehow does not count.

The Department is willing to continue discussions with foreign carriers and international organizations with respect to harmonization of U.S. and other standards in the area of transportation of passengers with disabilities. Meantime, the Department has a responsibility to carry out its statutory mandate to apply the ACAA to foreign carriers, and we cannot make working with other parties on harmonization matters a condition precedent to carrying out what Congress has mandated.

Some comments alluded to the regulatory negotiation process that preceded the issuance of the original ACAA NPRM, complaining that there was not a similar process prior to the issuance of the November 2004 NPRM. Regulatory negotiation, is, of course, a wholly voluntary process on the Department’s part. There can be no implication that, because the Department chose to use such a process in the 1980s, the Department was in any sense required to do so again for this rulemaking. Nor is there any such requirement in the statutory amendment applying the ACAA to foreign carriers. It is worth noting, in any event, that the original ACAA NPRM was not the product of consensus resulting from the regulatory negotiation. That negotiation terminated short of consensus, because of intractable disagreements on some issues between carriers and disability groups. The original NPRM, like the 2004 NPRM, was wholly the Department’s proposal. The variety of disagreements among commenters concerning the November 2004 NPRM suggests, in retrospect, that the likelihood of achieving consensus on the application of the ACAA to foreign carriers in a manner consistent with the Department’s obligations under the ACAA would have been very low. Moreover, in the years since the original ACAA regulatory negotiation, disability groups have expressed some skepticism about the utility of the regulatory negotiation process for nondiscrimination rules of this kind, making it questionable whether they would have chosen to participate in such a venture.

Accessibility of Airport Terminals and Facilities

The Foreign Carriers NPRM (sec. 382.51) proposed that both U.S. and foreign carriers, at both U.S. and foreign airports, would be responsible for ensuring the accessibility of terminal facilities they own, lease, or control. The responsibility of foreign carriers at foreign airports would extend only to facilities involved with flights to or from the U.S. U.S. airports must meet applicable accessibility requirements (e.g., the ADAAG) under the ADA and section 504. The Foreign Carriers NPRM proposed a performance standard for foreign airports, since U.S. accessibility standards do not apply there. This performance standard would require carriers to ensure that passengers with disabilities could readily move through terminal facilities to get to or from boarding areas. Carriers could meet this performance standard by a variety of means. A related provision (sec. 382.91) proposed that, at both U.S. and foreign airports, both U.S. and foreign carriers would have to provide assistance to passengers with disabilities in moving through the terminal and making connections between gates.

Some comments appear to have misunderstood the Foreign Carriers NPRM to propose that DOT wished U.S. accessibility standards, like the ADAAG, to apply to foreign airports. The Foreign Carriers NPRM did not make such a proposal. Those comments aside, the most frequent comment made by foreign carriers and their organizations on this subject was that the Foreign Carriers NPRM’s proposals for airport facility accessibility did not sufficiently take into account the fact that foreign governments or airport operators, not airlines, controlled matters relating to accessibility at many foreign airports. For example, it was pointed out that under recent European Union regulations, airport operators are given most of the responsibility for accommodating passengers with disabilities in airports.

The Department recognizes that this may often be the case, and the final rule should not be understood to require carriers to duplicate the accommodations made by airport operators at foreign airports. Where foreign airport operators provide accessibility services or accessible facilities, foreign carriers may rely on the airport operators’ efforts, to the extent that those efforts fully meet the requirements of this Part. What happens, though, if the foreign airport operators’ efforts do not fully provide the accessibility that this rule requires (e.g., the airport operator is responsible for providing wheelchair assistance to passengers within the terminal, but does not provide connecting service between gates for wheelchair users who are changing planes on flights covered by the rule)? In such a case, this rule requires air carriers to supplement the services provided by the airport operator, by providing the supplemental services themselves or hiring a contractor to do so. If the carrier cannot legally do so (e.g., the airline is legally prohibited from supplementing the airport’s services to passengers with disabilities), the carrier could seek a conflict of laws waiver.

The Foreign Carriers NPRM asked whether the final rule should require automated kiosks operated by carriers in airports or other locations (e.g., for ticketing and dispensing of boarding passes) to be accessible, and, if so, what accessibility standards should apply to them. Disability community commenters generally expressed support for this proposal; carriers and their organizations generally expressed concern about the cost and technical feasibility of accessible kiosks. The Department believes that all services available to the general public should be accessible to people with disabilities. Nevertheless, the comments concerning kiosks were not sufficient to answer our questions about cost and technical issues. Consequently, the Department plans to seek further comment about kiosks in a forthcoming supplemental notice of proposed rulemaking (SNPRM). The preamble to the SNPRM will discuss this issue in more detail. On this subject, the Department intends to coordinate with the Access Board, which also has work under way that could affect kiosks.

As an interim measure, the final rule will require a carrier whose kiosks are not accessible to provide equivalent service to passengers with disabilities who cannot use the kiosks. For example, suppose a passenger with a disability having only carry-on luggage wants to use a kiosk to get a boarding pass without standing in line with passengers checking baggage. If, because the kiosk is not accessible, the passenger cannot use it, the carrier would have to provide equivalent service, such as by having carrier personnel operate the kiosk for the passenger or allowing the passenger to use the first class boarding pass line.

We recognize that some disability community commenters have expressed concern about the latter approach, thinking that it might call undue attention to the individuals receiving the accommodation. We agree that assisting the passenger at the kiosk is preferable. In our view, however, a potentially awkward accommodation is preferable to none at all (e.g., in a situation where personnel were not available to assist the passenger at the kiosk). We urge carriers to provide such an accommodation with sensitivity to passengers’ potential concerns about looking as though they have been singled out for special treatment.

U.S. airports are governed, for disability nondiscrimination, by several Federal laws and rules, all of which coexist on the same airport real estate. The ACAA and DOT’s ACAA rules apply to terminal facilities owned, leased, or controlled by a carrier, specifically facilities that provide access to air transportation (e.g., ticket counters, baggage claim areas, gates). Title II of the ADA, and the Title II rules of the Department of Justice (DOJ) apply to terminal facilities owned by public entities like state and local airport authorities. DOT’s rules under section 504 of the Rehabilitation Act of 1973 apply to those same facilities owned by public entities, if they receive DOT financial assistance (i.e., under the FAA’s airport improvement program). In some cases, DOT’s 504 rules could apply to airport facilities of airlines (e.g., those air carriers who receive essential air service program funds from DOT). DOT’s Title II ADA rules apply to transportation services provided by public entities (e.g., a parking shuttle service run by the airport authority) or public transportation services that serve the airport (e.g. a public rail or bus transit link to the airport). DOT’s Title III ADA rules apply to private transportation serving the airport (e.g., private taxi, demand-responsive shuttle, or bus service). DOJ’s Title III ADA rules also apply to places of public accommodation on airport grounds that serve the general public (e.g., hotels, restaurants, news and gift stores).

Fortunately, ascertaining the practical obligations of various parties at the airport is a good deal less confusing than this summary of overlapping authorities might make it seem. In a November 1996 amendment to its existing ACAA rule, the Department clarified these relationships, and this understanding of the relationship carries over into the new ACAA rule (see 61 FR 56417-56418, November 1, 1996). Basically, regardless of which statutory or regulatory authority or authorities apply to a particular facility or portion of a facility, Title II ADA requirements apply to public entity spaces and Title III ADA requirements apply to private entity spaces. The Americans with Disabilities Act Accessibility Guidelines (ADAAG) are the physical accessibility standards that apply throughout the airport (note, however, that until DOJ completes its adoption of the 2004 ADAAG, the 1991 ADAAG continues to apply spaces controlled by DOJ regulations).

Enplaning, Deplaning, and Connecting Assistance

The original Part 382, issued in 1990, required U.S. carriers to provide enplaning and deplaning assistance, and it assigned to the arriving carrier the responsibility for providing assistance in making connections and moving between gates. The Foreign Carriers NPRM built on this existing requirement, proposing to require carrier assistance between the terminal entrance and gate, as well with accessing ticket and baggage locations, rest rooms, and food service concessions. The Foreign Carriers NPRM asked whether carriers should be permitted to require advance notice for these accommodations, and it proposed that enplaning, deplaning, and connecting assistance be provided “promptly.”

The Foreign Carriers NPRM proposed requiring carriers, in the course of providing this assistance, to help passengers with disabilities with carry-on and gate-checked luggage. It also proposed requiring carriers to make a general announcement in the gate area offering preboarding to passengers with disabilities.

Some carriers said that while they would voluntarily provide assistance to passengers with disabilities in moving through the terminal when practical and feasible, they opposed a regulatory requirement to provide this assistance. The Department does not believe that, under the ACAA, it is appropriate to tell passengers that they must learn to rely on the kindness of strangers. One of the purposes of Part 382 always has been, and remains, to create legally enforceable expectations upon which passengers with disabilities can consistently depend. Reliance on purely voluntary action by carriers does not achieve this objective.

One of the issues discussed most often in comments concerned the proposed requirement that enplaning, deplaning, and connecting assistance be provided promptly. Many commenters, particularly people with disabilities and organizations representing them, thought that the rule should specify maximum times for assistance – 5, 10, or 15 minutes – rather than having a more general requirement for promptness. Some disability community comments also said that the rule should prohibit carriers from waiting until everyone else had left the plane before providing deplaning assistance to passengers with disabilities (e.g., to deplane a person needing assistance at the same time as persons in adjacent rows leave), or at least that the rule should require carriers to assist passengers with disabilities in deplaning no later than the time the aircraft aisle is free of other passengers. Carriers, on the other hand, opposed such specificity, saying that it was impractical and potentially costly. Some carriers wanted a less specific term than “promptly,” preferring a concept like “as soon as reasonably possible under the circumstances.”

The Department has decided to adopt the “promptly” language as proposed. The Department is concerned that, given the wide variety of situations in different airports and flights, adopting a specific time limit as some commenters advocated would be unrealistic. On the other hand, having no standard would have the effect of reducing the requirement, as a practical matter, to “whenever the carrier gets around to it.” We understand “promptly” to mean, in the case of deplaning, that personnel and boarding chairs should be available to deplane the passenger no later than as soon as other passengers have left the aircraft. We believe that halting the boarding process for everyone behind, for example, Row 15, until a wheelchair user in Row 15 was transferred to a boarding chair and assisted off the aircraft, could unduly inconvenience a considerably greater number of persons. The requirement for prompt service imposes a reasonable performance requirement on carriers without creating unnecessarily rigid timing requirements which, in some situations, carriers operating in the best of faith might be unable to meet.

Many carriers suggested that they be allowed to require advance notice (e.g., of 24 or 48 hours) from passengers wanting enplaning, deplaning, and connecting assistance. This would make the logistics of providing the service easier for carriers to deal with, they said, and would ensure better service for passengers. We agree that it is highly advisable for passengers who want assistance to tell the airline about their needs in advance, and we urge passengers to communicate with carriers as soon as possible to set up assistance. We also noted comments from some carriers that, at some airports, particular locations have been established at which passengers arriving without prior notice can obtain assistance more easily and quickly than might otherwise be the case. This appears to be a good idea that carriers might consider using more widely. Nevertheless, being able to receive assistance in moving through the airport is so fundamental to access to the air travel system that the Department does not believe that allowing carriers to require – as distinct from recommending – advance notice would be consistent with the nondiscrimination objectives of the ACAA. Passengers with disabilities, like other passengers, sometimes must travel on short notice for business or personal reasons, and it would not be consistent with the ACAA to limit their access to needed assistance in moving through the terminal.

Carrier comments also mentioned, in this context, the relationship between carriers and many foreign airports, where airports often have the major responsibility for providing assistance in the terminal. As noted elsewhere in the preamble, carriers can rely on airports’ efforts with respect to assistance in the terminal, supplementing the assistance that airports provide as necessary to meet fully the requirements of Part 382. If carriers are precluded by law from supplementing the airport-provided assistance, carriers can request a conflict of laws waiver.

The Foreign Carriers NPRM, like the existing rule, assigns responsibility for connecting assistance to the carrier on which the passenger arrives. One foreign carrier mentioned that, per agreements with other carriers in at least some airports, its arriving passengers would be assisted to a connecting carrier’s gate by personnel of the connecting carrier. As noted elsewhere, the Department does not object to contractual agreements between carriers that would delegate the connecting assistance function to the connecting carrier. However, under the rule, the arriving carrier would retain responsibility for ensuring that the function was properly carried out.

Many carriers objected to having to allow passengers they are assisting to stop at a restroom or food service location, saying that this would delay service and increase personnel costs. Passenger comments, to the contrary, suggested that it was unfair for assistance personnel to insist on wheeling a passenger who needed to go to the bathroom or who was hungry past a conveniently located restroom or food concession, at which ambulatory passengers could stop at their discretion. Their comments pointed out that eating and relieving oneself are basic life activities that people must do from time to time. This issue has become increasingly significant in recent years due to the need for early arrival at the airport for security screening and cutbacks in airline meal service.

The final rule is structured to accommodate both sets of concerns. If an airline or contractor employee is assisting a passenger from, for example, the ticket counter to the gate, and they come to a restroom on the route they are taking, the employee is required to allow the passenger a brief stop, if the passenger self-identifies as a person with a disability needing this service. The employee is not required to detour to a different route, provide personal care attendant services to the passenger, or incur an unreasonable delay. A delay which would result in the passenger not getting to a connecting flight would obviously be unreasonable.

The Foreign Carriers NPRM proposed that persons with disabilities who need assistance in boarding be provided an opportunity to preboard. It also proposed requiring a general preboarding announcement to this effect in the gate area. Disability community comments generally supported the proposed requirements. Carrier comments did not object to the proposed requirement to provide an opportunity for persons with disabilities to preboard, though some carriers did object to making the general announcement of the opportunity in the gate area, mostly out of concern that too many ineligible people would try to preboard, thereby slowing the boarding process. The Department believes that preboarding is an important way in which carriers can facilitate transportation by passengers with disabilities. Indeed, some portions of Part 382 (e.g., with respect to on-board stowage of accessibility equipment) are premised on the availability of preboarding. The final rule will include this requirement. However, we will not make final the proposed provision requiring a general announcement of this opportunity in the boarding area. Some carriers make such an announcement as a matter of policy. Even where this is not the case, carrier personnel are generally responsive to requests from passengers with disabilities to preboard and often scan the boarding area to determine if there are passengers for whom preboarding would be appropriate. Passengers who want to ensure that they can preboard should ask gate personnel for the opportunity. It is reasonable to expect passengers to take this step.

The Foreign Carriers NPRM proposed that carriers, in the course of providing assistance to passengers with a disability in moving through the terminal, would assist them in transporting carry-on and gate-checked baggage. A number of carrier comments opposed this proposal, saying that it would impose staffing and cost burdens on them. If a passenger wanted to have someone carry his or her bags, at least one comment suggested, the passenger should hire porter service. Other commenters said that such service should be limited to wheelchair users or persons with severe hearing or vision impairments.

The Department notes that, in many cases, passengers with disabilities do not need extensive extra assistance in dealing with carry-on items. It is commonplace for wheelchair users to carry their briefcases or purses on their laps when being assisted through the terminal, for example. Proper-size carry-on and gate-checked items are, by definition, limited in size, and they are not the kind of items that passengers in general need to use a skycap and a cart to move through the airport. It would not be appropriate, in the context of a nondiscrimination rule, to effectively require passengers with disabilities to hire such service. We agree with commenters, however, that passengers who can carry their own items should do so, and we have added language saying that this service need be provided only to those passengers who cannot do so because of their disability. Carrier or contractor personnel can request credible verbal assurances from a passenger that he or she cannot transport the item in question or, in the absence of such credible assurances, require documentation as a condition of providing the service.

Number Limits

A number of foreign carriers commented that being able to limit the number of passengers with disabilities on board a given flight was important for safety, particularly in the context of an emergency evacuation. In some cases, carriers mentioned that laws or regulations of their governments either permitted or required them to impose limits on the numbers of either passengers with disabilities or assistive devices in the cabin.

A number limit permits a carrier to say to a passenger, in effect “As a person with a disability, we will deny you transportation on this flight solely because some number of other persons with disabilities are on the flight.” Such a response to a passenger is intrinsically discriminatory. The Department discussed this issue in the preamble to the original ACAA rule (55 FR 8025-8028; March 6, 1990), and our view of the matter has not changed. If anything, our view of the matter has been strengthened by the fact that, during the 17 years since the original rule was issued, we are not aware of any instances of safety problems resulting from the existing rule’s prohibition on number limits. As mentioned elsewhere, a foreign carrier can apply for a conflict of laws waiver concerning number limits. The final rule also retains the existing provision permitting a carrier to require advance notice for a group of 10 or more passengers with disabilities traveling together, so that the airline can make appropriate preparations for the group (e.g., a team traveling to a competition for wheelchair athletes).

Safety Assistants/Attendants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Medical Certificates/Communicable Diseases

The Foreign Carriers NPRM proposed to continue, and apply to covered flights of foreign carriers, the existing Part 382 limits on the extent to which carriers can exclude or restrict passengers with communicable diseases and the situations in which carriers can require a passenger to get a medical certificate from a physician before traveling.

Many air carrier comments asked for greater guidance on how to apply the provisions of these sections. Some of these suggested incorporating past DOT guidance that spelled out that a combination of severity of health consequences and easy transmission of a disease in the aircraft cabin environment would create an appropriate situation for restrictions on an individual’s travel and/or a requirement for a medical certificate. Commenters asked whether such conditions as the common cold, SARS, tuberculosis, or AIDS would meet the requirements of the proposed rule for permitting restrictions on travel or the requirement for a medical certificate. Some comments also asked how directives or recommendations from public health authorities would play into carrier decisions under the rule.

There were a number of comments about the concept of “direct threat,” which is defined as a significant risk to the health or safety of others that cannot be eliminated by a modification of polices, practices, or procedures or eliminated by the provision of auxiliary aids or services. Disability community commenters expressed the concern that use of this term -- derived from the Americans with Disabilities Act – would make it too easy for carriers to use their discretion to exclude passengers, perhaps in a discriminatory fashion. Some carriers believed, to the contrary, that it would make it too difficult to exercise the discretion they need to protect the health of travelers or that it would be too burdensome for their personnel to make judgments on this basis. A medical group suggested that a direct threat be defined as a condition that would be seriously exacerbated by the flight itself or a serious communicable disease that could be transmitted to another person in flight.

Some carriers questioned the objectivity or qualifications of a passenger’s physician to make a sound determination of whether it was safe for a passenger to travel. Some carriers preferred that their own medical staffs make these determinations, or at least have the ability to evaluate and override medical certificates provided by passengers’ physicians. Generally, carriers preferred to have wider discretion to restrict passengers’ travel than they perceived the provisions of the Foreign Carriers NPRM as giving them.

In response to comments, the Department has made some modifications in the final rule provisions on these subjects. We have included the substance of the DOT guidance. Under this provision, carriers would have the ability to impose travel restrictions and/or require a medical certificate if a passenger presented with a communicable disease that was both readily transmitted in the course of a flight and which had serious health consequences (e.g., SARS, but not AIDS or a cold). In addition, carriers could conduct additional medical reviews of a passenger and, notwithstanding a medical certificate, restrict travel under some conditions. This additional review would have to be conducted by medical personnel (e.g., members of the carrier’s medical staff or medical personnel to whom the carrier referred the passenger), and this provision is not a license for non-medically trained carrier staff to disregard medical certificates presented by passengers from their own physicians. Nor would it be appropriate for carrier staff to exclude or discriminate against passengers because the passengers’ appearance might disturb or upset other persons (see also sec. 382.19(b)).

Existing language of the regulation, which will be carried forward, permits a carrier to require a medical certificate from a passenger when there is reasonable doubt that the individual can complete the flight safely without requiring extraordinary medical assistance. This language accommodates the comment that one aspect of a direct threat is a passenger’s having a condition that would be seriously exacerbated by the flight itself. We disagree with a commenter’s assertion that a carrier should be able to ask for a medical certificate if any medical attention might be needed. This suggestion goes too far in the direction of granting carriers discretion to demand medical documentation for potentially minor medical conditions or for disabilities that do not entail any acute medical condition.

We have added language permitting carriers to rely on instructions issued by public health authorities (e.g., the U.S. Centers for Disease Control or Public Health Service; comparable agencies in other countries; the World Health Organization) in making decisions about carrying passengers with communicable diseases. For example, if CDC or WHO issues an alert or directive telling airlines not to carry a particular individual who poses a serious health risk (e.g., an individual with multiple drug-resistant tuberculosis), or persons exhibiting symptoms of a serious health condition (e.g., SARS), we would expect carriers to follow the public health agency’s instructions. Carriers could do so without contradicting the requirements of this Part.

Aircraft Accessibility Features

The Foreign Carriers NPRM proposed extending to foreign carriers requirements for aircraft accessibility features based, with some modifications, on provisions in the existing ACAA rule. These features include accessible lavatories, movable aisle armrests, provision of on-board wheelchairs, and space to store wheelchairs and other mobility aids in the cabin. A few commenters apparently misunderstood the proposal as requiring retrofit of existing aircraft. This is not the case; no such requirement has ever existed or been proposed.

1. Movable aisle armrests

The current rule requires U.S. carriers using aircraft with 30 or more seats to have movable aisle armrests on at least half the passenger aisle seats. Such armrests need not be provided on emergency exit row seats or on seats on which movable aisle armrests are not feasible. The carrier is required to provide a means to ensure that individuals with mobility impairments or other passengers with disabilities can readily obtain seating in rows having movable aisle armrests. The requirement applies to new aircraft ordered or delivered after the rule went into effect (retrofitting was not required) or to situations in which existing seats are replaced by newly manufactured seats.

The Foreign Carriers NPRM proposed retaining these requirements and applying them to foreign carriers, with some modifications and clarifications. The exception for seats on which movable aisle armrests are not feasible was not included in the Foreign Carriers NPRM regulatory text, and a new requirement was proposed that would call on U.S. and foreign carriers to ensure that movable aisle armrests were proportionately provided in all classes of service. The information provided by carriers about the location of movable aisle armrests would have to be specified by row and seat number.

A number of carriers and aircraft manufacturers commented that the proposed deletion of the feasibility exception and the requirement to have movable aisle armrests in each class of service were problematic. They said that some seats and seat console designs for first and business class seats in fact did make movable armrests infeasible or too costly. Moreover, they said, the wider seat pitches in first and business class cabins often permitted horizontal transfers of passengers from boarding chairs to aircraft seats, making movable armrests unnecessary in these cases.

The Department agrees that, if in a given aircraft, seats and seat pitches are configured so as to permit a horizontal transfer of a passenger from a boarding wheelchair to the aircraft seat (i.e., a transfer that can be accomplished without lifting the passenger over the aisle armrest), it would not be necessary to have a movable aisle armrest at that location. Consequently, if a carrier can show, through an equivalent alternative request, that such transfers are feasible with a given cabin configuration, the Department would grant the request for the carrier’s aircraft using that configuration. The underlying rule, however, will be adopted as proposed, because without a means of making a horizontal transfer into aircraft seats, passengers who board using boarding wheelchairs will have to use the less comfortable, safe, and dignified method of being lifted over the armrest. Carriers that are unable to demonstrate an equivalent alternative would have to provide movable aisle armrests even in first and business class.

Some commenters also said that putting seats with movable armrests into existing aircraft should be required only when newly designed or developed types of seats are installed, as distinct from newly manufactured seats of the same type that formerly occupied the space. Consistent with other provisions of the ACAA, ADA, and section 504, when a feature of a vehicle or facility is replaced, it must be replaced with an accessible item. (We note that, according to information referred to in the regulatory evaluation, movable aisle armrests are now standard features of at least some seat manufacturers’ products.) This obligation is not limited to new models of a feature placed into a space where older models formerly were used. Indeed, adopting the commenters’ suggestion would create a means for carriers to avoid providing movable aisle armrests on existing aircraft when newly manufactured armrests are installed, since carriers could simply order older seat models whenever they replaced the seats. When carriers remove any of the old seats on existing aircraft and replace them with newly manufactured seats, half of the replacement aisle seats must have movable armrests.

Disability community commenters generally favored the Foreign Carriers NPRM proposal, but suggested some modifications. Some comments said that emergency exit rows should be made part of the base from which the 50 percent calculation should be made. The Department believes, however, that the existing formula, which excludes those rows from the calculation, will result in sufficient rows being equipped with movable aisle armrests. Other comments suggested requiring some rows (presumably, in economy as well as business or first-class sections) to have wider seat pitches, the better to accommodate service animals or assistive devices, or to remove some rows entirely and provide securement devices so that passengers could sit in their own wheelchairs. The Department regards these suggestions as impractical and potentially too costly to airlines, as they would reduce seating capacity on the aircraft. The latter suggestion, in addition, would be inconsistent with FAA safety rules concerning passenger seats on aircraft, since aircraft seats must be certified to withstand specified g-forces.

One comment suggested requiring that in new aircraft or those subject to a cabin refit, the bulkhead row always have a movable aisle armrest. While we do not believe it is necessary to be this specific in the regulatory text, we believe that this is a good idea that carriers and manufacturers should consider, except when a bulkhead row is unavailable to passengers with disabilities because of FAA safety rules (e.g., a bulkhead row that is also an exit row). Bulkhead rows are often used by people with disabilities (see the seating accommodations section of this Part).

2. Accessible lavatories

The Foreign Carriers NPRM proposed to retain the existing requirement that cabins of aircraft with more than one aisle (e.g., a twin-aisle aircraft like a 747) have an accessible lavatory. As under the existing rule, this requirement would apply to new aircraft (i.e., aircraft ordered/delivered after the effective date of the rule). If a carrier replaced an inaccessible lavatory on an existing twin-aisle aircraft, it would have to do so with an accessible lavatory. The Foreign Carriers NPRM also proposed to clarify that if a carrier replaced a component of an existing, inaccessible lavatory on a twin-aisle aircraft (e.g., a sink) without replacing the entire lavatory, the new component would have to be accessible.

Many disability community commenters believed the existing and proposed requirements concerning accessible lavatories were inadequate. They said that accessible lavatories should be required in all aircraft, including the much more common single-aisle aircraft. The absence of accessible lavatories makes travel uncomfortable and difficult for passengers with disabilities, they said. Airline industry commenters, on the other hand, said that adding a requirement for accessible lavatories on single-aisle aircraft would be overly costly and burdensome.

Particularly given that single-aisle aircraft often make lengthy flights (e.g., across North America, some trans-oceanic flights), it is clear that providing accessible lavatories on single-aisle aircraft would be a significant improvement in airline service for passengers with disabilities. One of the organizations that commented on the Foreign Carriers NPRM is in the process of working with carriers and manufacturers to develop an accessible lavatory design for single-aisle aircraft that would minimize seat loss. At the present time, however, the Department is concerned that the revenue loss and other cost impacts of requiring accessible lavatories on single-aisle aircraft could be too great. Consequently, we are not imposing such a requirement at this time. Providing accessible lavatories on single-aisle aircraft remains a matter of interest to the Department, and we will look carefully at ongoing developments in this area to determine if future rulemaking proposals may be warranted.

Some comments objected to the proposed requirement to use accessible components (e.g., a sink) when replacing a component of a lavatory on a twin-aisle aircraft. Cost concerns aside, the main point of these comments was that lavatories typically are sold and installed as a unit, and that it is unusual to replace a single component of a lavatory. Even when this happens, because the lavatory is an integrated unit, only a given component that is dimensionally consistent with its original design is likely to fit. The Department believes that this comment has merit, and we are deleting the sentence in question.

Several foreign carriers objected to the application to them of the existing rule’s requirement that when an inaccessible lavatory unit was being replaced on a twin-aisle aircraft, it must be replaced with an accessible lavatory. Their main concern was that since the accessible lavatory unit would require more space than its inaccessible predecessor, they would have to remove or forego seats, causing revenue loss. One carrier made very high estimates of seat loss from such a change (e.g., eight seats on some aircraft) and suggested that alternative means (e.g., a curtain) could provide as adequate restroom facilities as an accessible lavatory. Consequently, these commenters urged, the rule should require an inaccessible lavatory to be replaced with an accessible lavatory only in the context of a change in cabin layout.

Since the original ACAA rule (see 55 FR 8020-8021; March 6, 1990), the Department has drawn a distinction between single-aisle and twin-aisle aircraft for purposes of accessible lavatory requirements. While the Department has acknowledged since the time of the original rule that requiring accessible lavatories in twin-aisle aircraft involves direct costs and revenue losses (though some seat loss estimates, like the one referred to above, appear overstated), the Department determined then and continues to believe now that the requirement is justified in twin-aisle aircraft. The cabins of these aircraft are physically larger, affording somewhat greater flexibility than single-aisle aircraft in placing accessible lavatory units. They tend to be used on longer-distance flights and carry more people, making the presence of accessible lavatories all the more important to passengers. U.S. carriers have been subject to the same requirement for many years, and it is important to maintain a level playing field between U.S. carriers and their foreign carrier competitors in terms of such a requirement. Contrary to one foreign carrier comment, requiring accessible lavatories on twin-aisle aircraft does not discriminate against foreign carriers; U.S. carriers, no less than their foreign counterparts, use twin-aisle aircraft on long-distance international routes.

Several commenters requested a clarification with respect to the accessible lavatory requirement in a twin-aisle airplane, to the effect that only one accessible lavatory need be installed. For example, if a carrier was refitting a cabin, and replacing all its old inaccessible lavatories, it would only have to install one accessible lavatory unit. We believe that this is a reasonable interpretation of the requirement, and we will use this interpretation as we implement and enforce the rule. However, we do not believe that additional regulatory language is necessary.

3. Stowage Space for Wheelchairs

The Foreign Carriers NPRM proposed to retain with some modifications, and to apply to foreign carriers’ aircraft, the existing requirement that aircraft with 100 or more passenger seats have a priority space to stow at least one passenger wheelchair. The modifications proposed from the existing rule were to add dimensions of a wheelchair that would fit without disassembly into the priority space and to delete the application of this section to electric wheelchairs.

As with other aircraft accessibility provisions of the Foreign Carriers NPRM, the proposed requirement concerning on-board stowage of wheelchairs would apply to new aircraft. Contrary to concerns expressed by a number of carriers, the Foreign Carriers NPRM did not propose a retrofit requirement. Nor would the requirement apply to “all types of aircraft,” as several comments asserted. It would apply only to aircraft with 100 or more seats.

Comments from disability community commenters generally supported the proposed requirement, though several of these comments said that the dimensions proposed for wheelchairs to be carried in the cabin should be enlarged, given the size of many current types of mobility devices. Many foreign carrier comments said either that all wheelchairs should be carried in the cargo compartment or that carriers should have discretion concerning whether or not to carry a wheelchair in the cabin. Some comments expressed the concern that carriers could not fit a space for a folding wheelchair into their cabin configurations without losing seating capacity. One foreign carrier added that crew luggage should have priority over a passenger’s wheelchair.

The reasons for storing a wheelchair in the cabin are twofold. First, it can often be more convenient for a passenger to have the wheelchair close at hand when he or she leaves the aircraft and to be able to get as close as possible to the aircraft door on boarding before having to transfer. Second, as pointed out in the preamble to the original ACAA rule (55 FR 8035; March 6, 1990), passengers with disabilities have the same concerns as other passengers about loss of or damage to their property when it is checked. While, as some comments pointed out, requiring space for one wheelchair does not completely solve this problem for all passengers with disabilities, doing so does help at least one such passenger per flight. A bit of added inconvenience to non-disabled passengers or crew who might have to stow their carry-on items elsewhere seems an acceptable price to pay, in the context of a nondiscrimination rule, for this service to passengers with respect to their means of mobility.

For these reasons, the Department is adopting the proposed requirement. We recognize that some foreign carriers are used to exercising their discretion about where to carry passengers’ wheelchairs, as were U.S. carriers prior to the adoption of the original ACAA rule. U.S. carriers, with appropriate oversight from DOT, have successfully adapted to this requirement, and foreign carrier comments did not contain any compelling reasons why they could not do so as well. It is important to remember that foreign carriers will not be required to modify existing cabins just for the purpose of creating a space for passengers’ wheelchairs.

There is a wide variety of wheelchairs and mobility devices on the market. It would not be practical to require spaces that can handle every sort of device. The rule’s requirement is now limited to spaces for folding manual wheelchairs, the present and proposed language concerning cabin stowage of power wheelchairs having been deleted in response to comments expressing concern about the adequacy of space, problems arising from the disassembly and reassembly of wheelchairs in the context of transportation in the cabin, and potential issues concerning stowage of batteries. Of course, since only folding manual wheelchairs are permitted in the cabin, large, motorized mobility-assistive devices of any type – not just power wheelchairs, as such – would not have to be carried in the cabin.

Based on the Department’s experience, the dimensions in the Foreign Carriers NPRM should be sufficient to handle a considerable majority of models of folding wheelchairs. Consequently, while we agree that this required space will not be sufficient for all models, we believe it is a reasonable compromise between the needs of passengers and the space constraints of carriers. We note that, under the final rule, carriers are not required to carry electric wheelchairs in the cabin.

One matter that some comments raised was the so-called “seat-strapping” method of carrying wheelchairs in cabins. This involves strapping down a wheelchair across a row of seats in an aircraft that does not have the required space for stowing a folding wheelchair in the cabin. While nowhere mentioned or authorized in the current Part 382, this practice has been permitted by DOT enforcement policy in some cases. Some comments supported allowing this approach as an alternative to providing a stowage space in the cabin. The Department does not believe that this is an appropriate alternative to endorse in the rule, because it is a more awkward way of carrying a wheelchair and because it can, on a given flight, reduce seating capacity for other passengers. This is a more important consideration than ever, given frequently high load factors on many flights. However, because DOT practice has allowed this measure in the past, we do not believe it is fair to ban the practice altogether. Consequently, seat-strapping will not be permitted as an alternative to designated stowage spaces on new aircraft ordered by or delivered to carriers after two years from the rule’s effective date. The Department’s policy will not change with respect to existing aircraft.

4. On-board wheelchairs

The existing rule requires that, on aircraft with more than 60 seats, the carrier must provide an onboard wheelchair in any case if the aircraft has an accessible lavatory, and on a passenger’s advance request even if the aircraft does not have an accessible lavatory. The rationale for the latter requirement is that some passengers with limited mobility may be able to use an inaccessible lavatory on their own but may need to be assisted down the aisle to the lavatory in an on-board wheelchair. The Foreign Carriers NPRM proposed that this requirement apply on aircraft with 50 or more seats, as distinct from the criterion of more than 60 seats in the existing regulation. The reason for this proposal was that 50-seat regional jets are becoming an increasingly important component of the fleets of many carriers, and the accommodation provided by this section should be made available to passengers who use those aircraft.

Carriers and their associations objected to the application of the provision to 50-seat aircraft. Carriers cited cost as one reason for their position. In addition, they said, 50-seat aircraft typically have only flight attendant on board. If that attendant is assisting a passenger using an on-board wheelchair, he or she will be unable to carry out other duties. This could create difficulties if an emergency occurred while the flight attendant was assisting a user of an on-board wheelchair, which might also obstruct the aisle in an emergency situation. In addition, carriers questioned whether the interior of a 50-seat regional jet could be configured to provide storage space for the on-board wheelchair when it was not in use.

While the cost estimates of commenters for on-board wheelchairs appear to be overstated, we believe that the operational concerns of carriers with respect to the use of on-board wheelchairs on 50-seat aircraft with one flight attendant have merit. In addition, the typically very confined spaces in lavatory units on these aircraft make their use by persons with limited mobility problematic. Consequently, the final rule will retain the existing rule’s provision applying on-board wheelchair requirements to aircraft with more than 60 seats.

Stowage of Wheelchairs and Mobility Aids

The current rule requires wheelchairs that cannot be carried in the cabin to be checked, carried as baggage, and returned to users as closely as possible to the door of the aircraft. These devices have priority over other items in the baggage compartment. Carriers must accept battery-powered wheelchairs (and other battery-powered mobility aids) in baggage, subject to applicable hazardous materials rules. Wheelchairs powered by lithium batteries may not be permitted under the hazardous materials rules depending on the lithium content of the battery. Generally, non-spillable batteries do not need to be removed from wheelchairs and separately packaged, if the batteries are securely attached to the wheelchair and the batteries or their housing, if any, are clearly marked as being non-spillable. Wet cell batteries which are not non-spillable may require removal from the wheelchair if the wheelchair cannot be loaded and stowed in an upright condition and secured against movement in the cargo compartment. Carriers may establish a one-hour advance check-in time to process battery-powered wheelchairs. Wheelchair users may provide written instructions concerning assembly and disassembly of their devices. On domestic flights, U.S. carriers must fully compensate passengers for loss of or damage to wheelchairs, without regard to rules limiting liability for lost or damaged baggage.

The Foreign Carriers NPRM essentially proposed to continue these provisions and apply them to foreign as well as U.S. carriers. Commenters made a number of points in response. One commenter asserted that the requirement to carry power wheelchairs in the baggage compartment was inconsistent with ICAO technical standards and IATA dangerous goods rules. While virtually identical in many respects, the DOT and ICAO/IATA standards differ, the commenter said, because the latter gives carriers discretion to refuse to carry such mobility aids while the former does not. The Department, according to the commenter, cannot impose a lesser requirement than the international standard. In the Department’s view, there is no conflict. As cited by the commenter, the ICAO/IATA standard gives carriers the discretion to carry battery-powered wheelchairs. The DOT requirement tells carriers to exercise the discretion permitted them by the ICAO/IATA standard by, in fact, carrying the wheelchairs. The DOT rule does not require anything that the ICAO/IATA rule does not allow. It would not be accurate to call the Department’s requirement a “lesser” standard than that of ICAO/IATA. Indeed, it is more properly regarded as a higher standard, since it ensures service to passengers with disabilities that the ICAO/IATA materials leave to carrier discretion.

On October 5, 2007, the Department’s Pipeline and Hazardous Materials Administration (PHMSA) issued a special permit in response to an IATA request. The permit, which granted an exemption from portions of the Department’s hazardous materials rules concerning battery-powered mobility aids, was revised in response to ATA’s request on October 30, 2007. Under the special permit, the current term of which expires January 31, 2009, a non-spillable battery that is completely enclosed and protected from short circuits in a rigid case integral to the mobility aid would not have to be disconnected and its terminals further protected from short circuits to be carried on an aircraft. This special permit should make handling of some battery-powered wheelchairs easier for carriers to which the permit applies. It is PHMSA’s intention to issue a rulemaking in the future that will extend the provisions of this exemption to all carriers. Due to the many instances of wheelchair damage resulting from disconnecting battery cables, the Department will require carriers not to disconnect the cables on non-spillable batteries unless a PHMSA or FAA safety regulation, or the safety regulation of a foreign government, requires them to do so.

Carriers and passengers with disabilities had differing views on the existing and proposed requirements for carriers to permit passengers to provide written instructions about the disassembly and reassembly of wheelchairs. Some of the former suggested requiring passengers to provide the manufacturer’s instructions; some of the latter suggested that the airline employee who disassembles the wheelchair provide written instructions that would go forward to the employee who reassembles the wheelchair at its destination telling that employee how to put the device back together.

The Department believes that both suggestions have some merit. To the extent that there are relevant manufacturer’s instructions, it seems useful for passengers to provide a copy to carriers. We do not think it would be appropriate to require the provision of manufacturer’s instructions, since they may not exist in all cases and may not apply to specialized or customized features of a particular passenger’s device. It also seems plausible that a user of a particular device would be in a good position to provide experience-based instructions to the carrier. Likewise, to the extent that a carrier employee at the passenger’s originating airport can write down a “here’s how I took it apart and here’s how it goes back together” note to his counterpart at the destination, the information could be helpful to the latter. However, the employee may not have time to do so, and some passengers may prefer that the employee does not do so (i.e., out of concern that the employee could get it wrong). Consequently, we do not believe it advisable to change the proposed language.

Some carrier comments said that Warsaw/Montreal convention provisions controlled payments for items carried as baggage and that the Department should not attempt to alter compensation requirements for international flights. We agree, and the Foreign Carriers NPRM proposed to make compensation requirements for lost or damaged mobility aids applicable only to U.S. domestic passenger trips. The final rule will do the same.

Some commenters suggested that the advance check-in time for persons delivering mobility aids for transportation in the baggage compartment should be 60 minutes before the regular check-in time for passengers, rather than 60 minutes before scheduled departure time. We agree, and we have changed the rule accordingly.

Some carrier comments noted that the existing and proposed regulatory language concerning luggage that doesn’t make a flight because of the space taken by a wheelchair calls for the carrier to make best efforts to deliver the luggage within four hours. Commenters said that this often was not practical in international service, where flights may be scheduled at intervals of one a day or less. This is a fair comment; we have changed the language to say that such luggage must be placed on the carrier’s next flight. We believe this is a reasonable standard for domestic as well as international flights.

The Department recognizes that there may be some circumstances in which it is not practical to stow an electric wheelchair, or some other sort of assistive device, in the baggage compartment. Only devices that fit and that meet all applicable hazardous materials and other safety regulations need be carried.

Some wheelchairs – such as those equipped with securely mounted non-spillable batteries or those for which the carriers remove the batteries and stow them separately under 49 CFR 175.10(a)(15) and (16) – are capable of being stowed in other than an upright position without damage to the wheelchair or batteries. However, if the physical size of the compartment – its actual dimensions, not crowding caused by other items – do not permit a wheelchair to be carried upright safely without risk of serious damage to the wheelchair, or a load imbalance caused by a large wheelchair in a small baggage compartment may violate weight and balance safety requirements, carriers could legitimately decline transportation of the item on that flight and should assist the passenger in identifying a flight using an aircraft that can accommodate the chair.

Given that the rule allows the carrier to require 48 hours’ advance notice with respect to carrying electric wheelchairs, the carrier should use this time period to find an arrangement that will get the passenger and his or her chair to the intended destination. For example, when a change to a smaller aircraft the day before the flight’s departure will preclude the passenger’s wheelchair from being accommodated in the cargo hold (e.g., the cargo space dimensions are too small for the chair to fit), the carrier must either offer the passenger alternative transportation at a different time or provide a fare refund. In circumstances where the passenger accepts alternative transportation on a flight of a different carrier, the first carrier must, to the maximum extent feasible, provide assistance to the second carrier in providing the accommodation requested by the individual from the first carrier.

A disability group also raised the concern – which could apply to manual as well as electric wheelchairs – that if several wheelchair users were traveling on a small aircraft, like a commuter aircraft or a regional jet, there might not be room in the baggage compartment for everyone’s wheelchair. This situation could occur, but we do not see a regulatory solution to it. If a group is traveling together, providing as much notice as possible to the carrier to work the problem is advisable. Otherwise, the carrier would probably have to put some passengers’ wheelchairs on a subsequent flight. A carrier association said that carriers should only have to carry one motorized mobility device per passenger. We do not believe it is necessary to provide for this situation in the regulatory text. However, in a situation like the above where there was not room for all disabled passenger’s wheelchairs, we agree that it would make sense for the carrier to take one mobility device for each passenger on the flight before taking a second device for some passengers.

Seating Accommodations

The Foreign Carriers NPRM proposed carrying forward and applying to foreign carriers the seating accommodations requirements of the current ACAA rule. These provisions would require carriers to make available certain seat locations to individuals with certain types of disability calling for a particular seating accommodation.

Some disability community commenters suggested that, if adequate seating accommodations for a person with a disability were not present, the individual should be seated in business or first class without additional charge. Carriers generally opposed this idea. Under the current rule, carriers are not required to provide accommodations in a seating/service class for which a passenger has not bought a ticket (see section 382.38(i)). The final rule continues this approach. Carriers are responsible for making seating accommodations in the seating/service class for which someone has bought a ticket, but are not required to provide a higher level of seat or service because doing so would be more comfortable or convenient for a passenger with a disability. Likewise, the Department is continuing its existing approach that a person who requires two seats for any reason (e.g., because of obesity or a disability) can be required to pay for two seats.

Some carriers asked for an advance notice requirement for passengers needing a seating accommodation (e.g., 48 hours). While it is always a good idea for passengers and carriers to communicate about accommodations as early as possible, the Department’s ACAA regulations and nondiscrimination policies have discouraged advance notice policies as an undue limitation of the ability of passengers with disabilities to travel freely and without discrimination. The experience of U.S. carriers with the existing seating accommodations provision suggests that carriers can provide needed seating accommodations without additional advance notice.

There were several miscellaneous comments concerning seating accommodations. One carrier commented that persons with fused legs could be transported more comfortably in a rear window seat rather than a bulkhead seat in some aircraft configurations. This approach appears consistent with section 382.81 of the final rule, which requires carriers to seat a passenger with a fused leg in a bulkhead seat “or other seat that provides greater legroom than other seats.”

Another carrier mentioned that because it provides “soft bulkheads” and “inflatable seatbelts” in some seats, national safety regulations prohibit seating some persons with disabilities in those seats. In this case, the carrier would then have to accommodate a passenger with a fused leg in any other seat on the aircraft offering greater legroom. If due to a particular aircraft model’s design, no seat on that model other than those prohibited by national regulations offered greater legroom, the carrier would have to apply for a conflict of law waiver. We do not believe it is appropriate, as some disability groups suggested, to require bulkhead row seating to be made available to all wheelchair users. The apparent rationale for this request was to make it more convenient for such passengers to access their personal wheelchairs quickly in order to transfer to another flight or exit the airport. The rationale of the bulkhead seating accommodation for people with fused legs, however, is to make seating on the flight itself less difficult or uncomfortable for passengers, rather than easing the passenger’s exit. A disability group asked the Department to clarify that wheelchair users are not limited to sitting in aisle seats. We agree, like the existing ACAA rule, the final rule does not allow carriers to limit seating options for passengers with disabilities, except where needed to comply with applicable safety rules (e.g., concerning exit rows).

Accommodations for Passengers Who Use Oxygen Devices

A. Passenger-Owned Respiratory Devices

1. Covered Entities

In the Oxygen NPRM, we proposed that the requirements concerning the evaluation and use of passenger-owned electronic devices that assist passengers with respiration apply to all operations worldwide of U.S. air carriers that conduct passenger carrying service other than on-demand air taxi operators. The Oxygen NPRM proposed to cover foreign carriers operating flights to and from the United States in as similar a fashion as possible to U.S. air carriers. We also specifically requested comment as to whether the Department should limit coverage of this section to carriers operating larger than 60-seat aircraft and whether flights operated by commuter carriers should be covered.

Consumers argued against an exception for aircraft with 60 or fewer seats and favored a regulation of general applicability because many carriers that operate “hub and spoke” service as well as many carriers that service smaller cities and less frequently traveled routes use small aircraft. Consumers also asserted that it would frustrate the purpose of the regulation to exempt flights operated by commuter carriers as many individuals who use medical oxygen fly on commuter carriers from small regional airports to larger airports to connect to a flight to their ultimate destination. However, small carriers supported an exception for aircraft with 60 or fewer seats because of the costs associated with the regulation, particularly the cost of testing to determine if the electronic respiratory assistive devices interfere with the navigation or communication systems of each model of aircraft operated by the carrier. These carriers explained that testing would be more costly for small carriers because they do not have the technical knowledge or personnel necessary for testing, necessitating the hiring of subcontractors for compliance testing. Small carriers also indicated concern with the onboard service obligations associated with permitting passengers to use electronic respiratory assistive devices on an aircraft since there is no flight attendant on aircraft with fewer than 20 seats and only one flight attendant on aircraft with 20 to 50 seats Further, small carriers asserted that allowing a passenger to use an electronic respiratory device such as a portable oxygen concentrator (POC) onboard small aircraft is of limited benefit because they contend that many regional flights are one hour in length and carriers can prohibit the use of electronic devices during take-off and landing which can take a total of approximately forty minutes, leaving the passenger with only twenty minutes to use his/her device.

After fully considering the comments received regarding the applicability of section 382.133 to carriers, the Department believes that it is reasonable to apply the requirements of this section to U.S. and foreign carriers that conduct passenger carrying service other than on-demand air taxis and not to exempt carriers that only operate aircraft with 60 or fewer seats. The contention of small carriers that the costs associated with the requirements in this section would be unduly burdensome to them no longer carries the same weight, since this final rule shifts the responsibility for electromagnetic interference testing of the four types of electronic respiratory assistive devices from the carriers as proposed in the Oxygen NPRM to the manufacturers of these devices, as the manufacturers have a market incentive to test such devices. (See the discussion of industry comments on this issue in the section below entitled “Testing and Labeling of Electronic Respiratory Assistive Devices.”) The Department is also not persuaded that there are onboard service obligations associated with permitting passengers to use electronic respiratory assistive devices that require the assistance of a flight attendant. We also find unpersuasive the argument that electronic respiratory devices such as POCs are of limited use onboard small aircraft because they tend to operate shorter flights during which passengers could only use their devices for a small portion of the total flight time as it presumes that the devices cannot be used during ascent and descent. A device’s use during a particular phase of a flight (e.g., ascent and descent) should be prohibited only if the device cannot be safely used during that phase (e.g., interferes with navigation or communications equipment). Absent evidence of such interference gained from the required testing, this rule requires carriers to allow passengers to use their electronic respiratory assistive devices, including POCs approved by the Federal Aviation Administration (FAA), during all phases of flight if safe.

2. Types of Electronic Respiratory Assistive Devices

We proposed in the Oxygen NPRM to address the carriage of four types of portable electronic respiratory assistive devices excepted from coverage under applicable FAA regulations, e.g., 14 CFR 121.306, 135.144, 121.574, 135.91 and Special Federal Aviation Regulation No. 106 – ventilators, respirators, continuous positive airway pressure (CPAP) machines and portable oxygen concentrators. We sought information from foreign governments, foreign carriers and other interested parties regarding any foreign safety restrictions affecting the carriage and use of these electronic respiratory assistive devices. While commenters did not conclusively identify any particular device as being specifically prohibited by foreign safety rules, there was a suggestion that certain governments may view all POCs as containing hazardous materials and may not permit their carriage or use onboard aircraft. Commenters also identified a number of foreign carriers that prohibit the use of electronic devices (including the aforementioned electronic assistive devices) during take-off and landing. The commenters noted that most of these foreign carriers are required to submit their aircraft passenger policies to a government agency for approval and expressed concern that the Department may not consider a foreign carrier’s prohibition on use of electronic devices during ascent and descent which has been approved by its government to be a foreign government safety requirement.

The Department recognizes that foreign carriers operate under a variety of laws and regulations. We have revised section 382.133 to clarify that foreign carriers need to permit the carriage and use of a ventilator, respirator, CPAP machine and POC only if among other things, the device can be stowed and used in the passenger cabin consistent with applicable TSA, FAA, and PHMSA regulations and the safety or security regulations of its government.. In addition, section 382.9 allows a foreign carrier to petition the Department for a waiver of compliance with any provision in Part 382, including section 382.133, if an applicable foreign law or regulation precludes a foreign carrier from complying with that provision. As noted earlier in this document, the Department employs a narrow definition of the phrases “the safety or security regulations of its government” and “foreign law or regulation.” A carrier’s policy, even if approved by its government, would not be considered a foreign nation’s law and would not exempt the carrier from compliance with Part 382.

3. Testing and Labeling of Electronic Respiratory Assistive Devices

In the Oxygen NPRM, we proposed that a U.S. carrier that conducts passenger-carrying service other than an on-demand air taxi operator perform the necessary evaluation and testing of a ventilator, respirator, CPAP machine or FAA-approved POC to determine if the device causes interference with the navigation or communication systems of each model of aircraft the U.S. carrier operates. We also proposed requiring a foreign carrier that conducts passenger-carrying service other than an on-demand air taxi operator to perform the necessary evaluation and testing of these devices to ascertain whether such device can be used safely by passengers during a flight on each aircraft that the foreign carrier operates on flights to and from the U.S.

Industry commenters as well as some consumers said that the burden of testing should be shifted away from the carriers. The Air Transport Association and other industry commenters proposed that carriers only be required to permit the use of an electronic respiratory assistive device that has been tested and marked as approved by RTCA, Inc. (formerly the Radio Technical Commission for Aeronautics). These commenters argued that if carriers have the option of refusing to carry any device that is not tested and marked as approved by the RTCA then the device manufacturers would have an incentive to test their devices and produce safety testing results for the carriers to review. Other commenters suggested that the device manufacturers and the aircraft manufacturers should be required to conduct the testing and then label the device as approved for use aboard aircraft, as manufacturers have the greatest incentive to test devices. Industry commenters also requested that the FAA create a generic safety standard for testing respiratory devices as well as a uniform labeling system for all approved devices to cut down on confusion by carriers and passengers.

Having considered all of these comments, the Department is persuaded that responsibility for electromagnetic interference testing of the four types of electronic respiratory assistive devices covered in the Oxygen NPRM should be borne by the manufacturers of such devices rather than the carriers. However, this regulation does not mandate manufacturer testing. The FAA is considering whether to issue an NPRM in which the agency would propose to require manufacturers that want to market their ventilators, respirators, CPAP machines, and FAA-approved POCs for passenger use on aircraft to test those devices against FAA-prescribed performance standards and affix a label to each device stating that it meets the applicable standards prescribed in the federal aviation regulations. If the FAA decides to issue such an NPRM, the NPRM would clarify that those manufacturers that do not intend to market their devices for use on aircraft would be under no obligation to conduct any testing and would not be permitted to affix a label indicating FAA approval. The manufacturers that want to market such devices for use on aircraft but whose devices fail to meet the performance standards would also not be permitted to affix a label indicating FAA approval. Moreover, the FAA will consider whether to include other proposals in that NPRM, including specifying how a carrier would "verify" whether the aforementioned electronic respiratory assistive devices meet FAA performance standards.

In this rulemaking, we are strongly encouraging manufacturers that market their electronic respiratory assistive devices for use by passengers on aircraft to test their devices to determine whether they meet FAA electromagnetic and radio frequency interference emission standards set forth in FAA Advisory Circular No. 91.21-1B, and if they do so, to label the devices as FAA-compliant. The label should indicate that the device is approved for air travel (i.e., the device can be used safely during all phases of travel). The FAA generally prohibits the operation of portable electronic devices aboard U.S. registered civil aircraft while operating under instrument flight rules. See 14 CFR 91.21. However, the FAA through its Advisory Circular No. 91.21-1B allows U.S. carriers to permit passengers to use onboard the aircraft specified portable electronic devices (including the four types of respiratory devices addressed in this rulemaking) that have been tested by the manufacturer and found to not exceed the maximum level of radiated radio frequency interference as described in section 21, Category M of RTCA Document (DO)-160 while in all modes of operation, without any further testing by the carrier to establish compliance with this performance standard. It is worth noting that the FAA does not have a prohibition on the operation of portable electronic devices aboard civil aircraft registered in a country other than the United States.

This rule requires U.S. carriers to permit individuals to use electronic respiratory assistive devices in the passenger cabin so long as the devices have been tested and labeled by their manufacturer(s) as meeting the applicable FAA requirements for medical portable electronic devices as described in FAA Advisory Circular No. 91.21-1B (the FAA-approved POCs would also be subject to the requirements of Special Federal Aviation Regulation 106) and the device can be stowed consistent with FAA cabin safety requirements. At present, a label indicating that the device complies with RTCA standards meets FAA requirements and need not specifically state that the device is FAA approved.

The final rule also requires foreign carriers to permit individuals to use electronic respiratory assistive devices in the passenger cabin if certain conditions are met. First, the device must have been tested and labeled by its manufacturer as meeting the requirements for medical portable electronic devices set by the foreign carrier’s government. If the foreign carrier’s government does not have applicable requirements, then the carrier may elect to apply requirements for medical portable electronic devices set by the FAA for U.S. carriers. It would be a violation of our rules for a foreign carrier to prohibit a passenger from using his/her ventilator, respirator, CPAP machine, or POC in the passenger cabin because its government has not issued applicable rules on the testing or labeling of electronic respiratory assistive devices. We encourage foreign carriers to apply FAA requirements for medical portable electronics where the foreign carriers’ government has not issued applicable rules. Otherwise, it is not clear how the foreign carrier can be assured that the electronic respiratory assistive device that it is accepting for use in the cabin is safe. Also, the electronic respiratory assistive device must be stowed and used in the passenger cabin consistent with any applicable U.S. regulations and the regulations of the carrier’s government.

We expect that both U.S. and foreign carriers will inspect the device label at the departure gate to ensure that it is labeled by the manufacturer in accordance with the applicable regulations. U.S. carriers’ internal procedures must ensure that approved devices bearing labels indicating that they meet the FAA requirements are accepted. For foreign carriers, devices containing labels indicating that the device meets requirements set by the foreign carrier’s government or, if no such requirement exists, the requirements for medical portable electronics set by the FAA for U.S. carriers, should be accepted.

4. Passenger Information

We explained in the Oxygen NPRM that carriers would be required to inform passengers, on request, about any restrictions on using their personal respiratory assistive devices aboard the carrier’s flights (e.g., device can only be used after takeoff and before landing, availability of electrical outlets). In this regard, we indicated that we thought carriers would need to maintain some type of list of approved or disapproved devices and sought comments as to what extent carriers should be required to provide information to disabled air travelers. We also asked about the issues that are raised if carriers are required to provide information on the limitation of the carriers’ codeshare partners to accommodate the use of respiratory devices.

The Department received a number of comments from consumers strongly urging that a centralized list of approved and disapproved devices be provided by carriers, airports and/or the government. Industry comments varied, with some carriers indicating a willingness to provide this information, while others believed a list of approved and disapproved devices would be difficult to maintain and would open the airline up to liability. Many carriers suggested that the Department provide a list of approved devices through its website and by phone. Carriers also expressed concern about any requirement to provide information on the limitation of its codeshare partners to accommodate the use of respiratory devices. According to these carriers, some carriers have up to ten codeshare partners and the burden of knowing the limitation of its codeshare partners’ ability to provide accommodations would be substantial.

Because this final rule shifts the responsibility for testing the electronic respiratory assistive devices from the carriers to the manufacturers of such devices and requires carriers to permit passengers to use these devices aboard aircraft only if appropriately labeled, we do not see a need for carriers or any other entity to produce a central list of approved or disapproved devices. A passenger can simply look to see if the label on his/her electronic respiratory assistive device indicates that the device has been approved for air travel (i.e., no restriction on the device’s use during any phase of travel).

However, we do see a need for carriers, during the reservation process, to inform passengers who express a desire to use a respirator, ventilator, CPAP machine, or FAA- approved POC aboard an aircraft of the conditions that must be met before these devices can be approved for such use. For instance, this final rule requires carriers through their reservation agents to inform passengers of the maximum weight and dimensions of a device that can be accommodated in the aircraft cabin, the requirement that an electronic respiratory assistive device be labeled appropriately, any requirement for advance check-in, any requirement for the individual to contact the carrier before the scheduled departure to learn the expected maximum duration of his/her flight, the requirement to bring an adequate number of fully charged batteries (i.e., battery is charged to full capacity) to power the electronic respiratory device and to ensure that extra batteries are packaged properly, and the requirement that an individual who wishes to use a POC provide a physician’s statement. While a carrier can require a physician’s statement (i.e., medical certificate) from an individual who wishes to use a POC during flight, we note that it normally would not be appropriate for a carrier to ask for such a certificate from someone wishing to use a ventilator, respirator or CPAP machine aboard a flight. Consistent with section 382.23, a medical certificate should be required of an individual who uses a ventilator, respirator or CPAP machine only if the individual’s medical condition is such that there is reasonable doubt that the individual can complete the flight safely, without requiring extraordinary medical assistance during the flight.

The Department understands the concerns expressed by carriers regarding the difficulty and the costs associated with providing information to passengers about the limitation on the ability of its codeshare partners to accommodate users of respiratory devices. The Department also believes that it is imperative that users of electronic respiratory assistive devices receive, in advance, accurate information concerning any limitation on the ability of the carrier to accommodate their need to use such a device in the cabin of the aircraft. The Department has tried to balance these somewhat conflicting concerns/needs. The final rule requires that, in a codeshare situation, the carrier whose code is used on the flight must either advise an individual who inquires about using his/her electronic respiratory assistive device onboard an aircraft to contact the carrier operating the flight for information about its requirements for use of such a device in the cabin, or provide such information on behalf of the codeshare carrier operating the flight. For example, consider a passenger who buys a codeshare ticket from carrier A for a connecting itinerary from New York to Cairo through London ,where carrier A operates the New York to London leg and carrier B operates the London to Cairo leg under carrier A’s designator code. In this example, carrier A must upon inquiry from the passenger: (1) inform the passenger about carrier A’s requirements for the use in the cabin of a ventilator, respirator, CPAP machine or POC and (2) inform the passenger about carrier B’s requirements for the use in the cabin of the aforementioned devices or tell the passenger to contact carrier B directly to obtain this information.

5. Advance Notice

We sought comments in the Oxygen NPRM about operational reasons, if any, in support of permitting carriers to require a passenger with a disability to provide advance notice of his or her intention to use a battery-operated CPAP machine, an approved POC, a respirator or a ventilator aboard a flight. We also asked whether carriers should be permitted to require a passenger to provide advance notice of his or her intention to use the aircraft electrical system as well as what would be a reasonable amount of advance notice.

Industry commenters provided a number of operational reasons why they said there should be advance notice requirements for individuals who wish to use electronic respiratory assistive devices aboard a flight. These commenters explained that advance notice is needed to: (1) ensure the device is approved for use onboard the aircraft; (2) ensure that a passenger brings an adequate battery supply to power his/her device; (3) ensure that the respiratory device is medically necessary; (4) ensure the pilot in command is apprised when a passenger is using a POC; and (5) ensure that the passenger has talked with his/her physician regarding fitness to fly with the respiratory assistive device. Many consumers also indicated that they were comfortable with an advance notice requirement for individuals who wish to use a battery-operated CPAP machine, an approved POC, a respirator or a ventilator aboard a flight. There was, however, disagreement as to what would constitute a reasonable amount of advance notice. While most consumer and industry comments indicated that 48 hours is a reasonable amount of advance notice, some industry comments asked for 96 hours advance notice for international flights and a few consumers stated that 24 hours is sufficient notification.

With respect to electrical outlets, industry comments strongly urged that electrical outlets not be relied upon by respiratory device users. According to these commenters, electronic device users cannot depend on the presence of an outlet, as most aircraft do not have electrical outlets; the electrical outlets that are available on aircraft may not be compatible with the passenger’s device, as most respiratory assistive devices require more wattage; electrical outlets may be turned off during takeoff and landing; and the carrier may switch aircraft and use aircraft with no outlets at the last minute.

Based on the comments received and the Department’s belief that providing 48 hours’ advance notice would not be burdensome for consumers, this final rule permits carriers to require up to 48 hours’ advance notice from individuals who wish to use electronic respiratory assistive devices aboard a domestic or international flight. The Department believes that a 48 hour advance notice is reasonable as that time period provides sufficient time for carriers to prepare for the accommodation. Further, in other sections of this Part where a carrier has been permitted to require a qualified individual with a disability to provide advance notice of his or her need for certain accommodations or of his or her disability as a condition of receiving the requested accommodation, that advance notice has been limited to 48 hours. The Department also believes, as comments provided by the industry representatives contend, that electrical outlets are generally not reliable sources of power for electronic respiratory assistive devices. Of course, if a carrier is confident that the electrical outlet on the aircraft is reliable (e.g., uninterrupted service), nothing in this rule prohibits the carrier from permitting a passengers to plug his/her electronic respiratory assistive device into such an outlet, consistent with applicable FAA safety rules.

6. Advance Check-in Time

The proposed rule asked questions about operational reasons, if any, for requiring passengers who request to use their respiratory assistive devices to comply with an advance check-in deadline. It also asked about issues passengers who use respiratory assistive devices would face if carriers were permitted to require an advance check-in deadline, as well as what would be a reasonable length of time for the advance check-in.

Comments provided by the industry to justify the need for advance check-in are similar to the justifications provided for advance notice (e.g., to ensure the device is safe for use on board, to ensure proper packaging of batteries, ensure an adequate supply of batteries). Consumers questioned whether advance check-in is necessary if a passenger provides advance notice of his/her intention to bring and use the electronic respiratory assistive devices. The consumers noted that they have other obligations and restrictions on their time and that advance check-in places significant burdens on their time. If advance check-in is required, consumer commenters favored a one hour advance check-in requirement. Industry comments supported one hour advance check-in for all domestic flights but two hour advance check-in for international flights. Carrier comments also sought the authority to deny boarding if a passenger has failed to comply with the carrier’s procedural instructions on using electronic devices onboard.

The Department believes that it is necessary to permit carriers to require advance check-in to enable the carrier personnel to inspect the label on the electronic respiratory assistive device to ensure that it was labeled by the manufacturer in accordance with the applicable regulations and to ensure that a passenger is carrying an adequate number of properly packaged batteries to power his/her assistive device. The Department generally believes that one hour advance check-in is reasonable for both domestic and international flights, especially since “advance check-in” as used in this rule means checking in one hour before the carrier’s normal check-in time for the general public. Thus, for example, if a carrier’s normal check-in deadline for all passengers for an international flight is one hour before scheduled departure time, the carrier is free to require passengers who wish to use electronic respiratory assistive devices to check in two hours before scheduled departure time. That having been said, it would not be reasonable for a carrier to require one hour advance check-in in situations where a passenger is not able to check-in one hour in advance because the passenger’s connecting flight arrived late. Consider the example, of a codeshare connecting itinerary from Washington, D.C. to Johannesburg through Rome, where carrier A operates the segment from Washington, D.C. to Rome and carrier B operates the segment from Rome to Johannesburg. If carrier B has a one hour advance check-in requirement and the passenger checks in for the flight to Johannesburg less than an hour before departure due to carrier A’s late arrival in Rome, the passenger must be accepted on the flight to Johannesburg up until carrier B’s general check-in deadline for all passengers on that flight. The Department is not persuaded by consumer comments that one hour advance check-in would be a significant burden on them, particularly since this rule would not permit carriers to require a one hour advance check-in for a passenger who is not able to meet that requirement due to his/her connecting flight arriving late. The Department is also not persuaded by industry comments that a two hour advance check-in is needed for international flights, in part because the information that the carrier personnel will be verifying at the departure gate does not change based on whether the flight is a domestic flight or an international flight.

7. Seating Accommodations

In the Oxygen NPRM, we asked whether a passenger who uses a ventilator, respirator, CPAP machine or an FAA-approved POC should be given priority over users of other types of electronic equipment that are not assistive devices (e.g., laptops) with respect to obtaining power for the device from the aircraft’s electrical outlets. Virtually all of the consumer comments stated that upon request airlines should be required to seat a passenger who self identifies as using an electronic respiratory assistive device next to an electrical outlet, if one is available on the aircraft. Industry comments on this issue varied. Some carriers supported providing priority seating while other industry commenters opposed this proposal. The industry commenters that opposed providing priority seating asserted that access to seats with electrical outlets is an aircraft amenity based on other considerations (e.g., frequent flier status) and explained that the cost of ensuring access to electric outlets is burdensome. Some of the costs attributed to implementing the proposed seating accommodation include the cost to a carrier of updating its seating maps to indicate the presence of electric outlets, updating its reservation system to allow blocking of seats near outlets for qualified disabled passengers, and training flight attendants and others regarding the location of each aircraft’s electrical outlets. Also, as noted above, many industry comments emphasized that not all aircraft have outlets and the unreliability of electrical outlets on aircraft that do have them (e.g., outlets turned off during take off and landing, outlets often don’t have sufficient wattage to power respiratory devices).

The Department is not convinced by the industry arguments opposing priority seating on the basis of costs associated with such a seating accommodation but is convinced that, for safety reasons, it would not be good policy to have any requirements concerning the use of electrical outlets when electrical outlets are not available on a number of aircraft and are generally not reliable sources of power for electronic respiratory assistive devices. Therefore, this rule does not mandate that carriers allow users of respiratory assistive devices to plug their devices into the aircraft’s power supply or to provide priority seating near such outlets. The Department does encourage carriers to permit passengers to hook up the four types of respiratory assistive devices to the aircraft electrical power supply in circumstances where the carrier is confident that the electrical outlet on the aircraft is reliable (e.g., uninterrupted service).

8. Batteries

The Oxygen NPRM sought information about whether the rule should allow carriers to require users of electronic respiratory devices to carry a certain number of batteries. It also solicited comments about what action the Department should authorize the carrier to take if a passenger does not bring a sufficient number of batteries to power an electronic respiratory assistive device or a passenger does not ensure that the batteries for the device are packaged in a manner to allow them to be transported safely in the cabin.

Consumers generally agreed that it would be appropriate to require users of electronic respiratory assistive devices to carry a sufficient number of batteries to power the device for 1.5 times the length of the flight. Some carriers suggested that users of electronic respiratory assistive devices should carry enough batteries to power the device for the length of the flight plus an additional two hours. Other comments suggested enough batteries to power the device for 1.5 times the length of the flight plus one additional battery. There were also comments recommending that the passenger’s physician should indicate the appropriate number of batteries in the prescription that indicates the passenger’s medical need for the device. A number of carriers asked for the authority to refuse to carry a passenger who does not have an adequate number of batteries. A few carriers asked to be able to charge the passenger who does not carry a sufficient number of batteries for the cost of any resulting emergency action that may be required. Many industry comments also suggested that PHMSA and FAA should be involved in the discussion of the appropriate number of batteries to carry in the cabin to ensure that an excessive number of batteries is not carried onboard.

After fully considering the comments received and consulting with FAA and PHMSA personnel, the Department has determined that there is no need to place a limit on the number of batteries users of electronic respiratory devices transport in the cabin of an aircraft. The FAA and PHMSA are confident that batteries that are protected against short circuits and wrapped in strong outer packagings can safely be transported in the passenger cabin provided there are sufficient approved stowage locations available. On March 26, 2007, PHMSA published a safety advisory to inform the traveling public and airline employees about the importance of properly packing and handling batteries and battery-powered devices when they are carried aboard aircraft. Federal regulations require that electrical storage batteries or battery-powered devices carried aboard passenger aircraft be properly packaged or protected to avoid short-circuiting or overheating. In its safety advisory, PHMSA suggested various practical measures for complying with the regulations and minimizing transportation risks. Recommended practices include keeping batteries installed in electronic devices; packing spare batteries in carry-on baggage; keeping spare batteries in their original retail packaging; separating batteries from other metallic objects such as keys, coins and jewelry by packing individual batteries in a sturdy plastic bag; securely packing battery-powered equipment in a manner to prevent accidental activation; and ensuring batteries are undamaged and purchased from reputable sources.

The Department has decided to allow a carrier to require an individual who uses a ventilator, respirator, CPAP machine or FAA-approved POC to bring an adequate number of fully charged batteries onboard to operate the device for not less than 150% of the expected maximum flight duration. The appropriate number of batteries should be calculated using the manufacturer’s estimate of the hours of battery life while the device is in use and the information provided in the physician’s statement (e.g., flow rate for POCs). The expected maximum flight duration is defined as the carrier’s best estimate of the total duration of the flight from departure gate to arrival gate, including taxi time to and from the terminals, based on the scheduled flight time and factors such as (a) wind and other weather conditions forecast; (b) anticipated traffic delays; (c) one instrument approach and possible missed approach at destination; and (d) any other conditions that may delay arrival of the aircraft at the destination gate. This rule also makes it clear that a carrier may deny boarding, on the basis of safety, to an individual who does not carry the number of fully charged batteries prescribed in the rule or an individual who does not properly package the extra batteries needed to power his/her device. Information for passengers on how to safely travel with batteries is available at safetravel.dot.gov . However, a carrier may not deny boarding due to an inadequate number of batteries unless the carrier can provide information from a reliable source demonstrating that the number of batteries that the passenger has supplied will not provide adequate power for 150% of the expected maximum flight duration based on the battery life indicated in the manufacturer’s specification when the device is operating at the flow rate specified in the physician’s statement. It is also worth noting that the requirement to bring an adequate number of batteries to continuously operate the device for up to 150% of the expected maximum flight duration does not apply in circumstances where the passenger will be using an FAA approved POC while boarding or disembarking from the aircraft and will not be relying on the POC during flight because the passenger has contracted for carrier-supplied oxygen. In instances where the carrier denies boarding to an individual, the carrier must provide the individual a written statement of the reason for the refusal to provide transportation within 10 days of the incident.

B. Carrier-Supplied Oxygen

The Oxygen NPRM proposed to require certificated U.S. carriers operating aircraft that conduct passenger-carrying service with at least one aircraft having a designed seating capacity of more than 60 passengers and foreign carriers operating to and from the United States that conduct passenger-carrying service with at least one aircraft having a designed seating capacity of more than 60 passengers to provide passengers free in-flight medical oxygen in accordance with applicable safety rules. The Department is committed to providing individuals dependent on medical oxygen greater access to air travel, consistent with Federal safety and security requirements. However, in order to obtain additional information about the cost of carrier-supplied in-flight medical oxygen, the Department is deferring final action on this proposal.

Under existing Air Carrier Access Act interpretation and practice, carriers are not required to make modifications that would constitute an undue burden or fundamentally alter the nature of the carriers' service. As a matter of disability law, undue burden implies that there may necessarily be some burden (a “due burden”) in accommodating someone’s disability. Generally, an action is deemed to be an undue burden if it would require significant difficulty or expense on the part of the covered entity when considered in light of factors such as the overall size of the business, the financial resources of the business, the type of operation, and the nature and cost of the accommodation. There is no hard and fast rule about what is or is not an “undue burden.” The portion of the cost of carrier-supplied oxygen that would constitute an undue burden could differ among carriers and could differ from one route to another with the same carrier. We do not currently have sufficient information available to determine if requiring a carrier to provide free in-flight medical oxygen would create an undue burden. The Department will seek additional comment about the cost of carrier-supplied oxygen in a supplemental notice of proposed rulemaking (SNPRM) that it plans to issue. The preamble to the SNPRM will also discuss comments received on the Oxygen NPRM with respect to this issue. In the interim, carriers can continue to charge for in-flight medical oxygen that they choose to provide.

Service Animal Issues

The subject that attracted the most comments on the Foreign Carriers NPRM – over 1100 of the 1290 received – was service animals. Interestingly, most of these comments did not pertain to anything in the Foreign Carriers NPRM’s proposed regulatory text, but rather to a guidance document concerning transportation of service animals that the Department had issued in May 2003. As an informational matter, this existing guidance document was published as an appendix to the November 2004 NPRM. The paragraph in the document that was the focus of most of the comments was the following:

If the service animal does not fit in the assigned location, you should relocate the passenger and the service animal to some other place in the cabin in the same class of service where the animal will fit under the seat in front of the passenger and not create an obstruction, such as the bulkhead. If no single seat in the cabin will accommodate the animal and passenger without causing an obstruction, you may offer the option of purchasing a second seat, traveling on a later flight or having the service animal travel in the cargo hold. As indicated above, airlines may not charge passengers with disabilities for services required by part 382, including transporting their oversized service animals in the cargo compartment. (69 FR 64393)

During the one and a half years preceding the issuance of the Foreign Carriers NPRM during which the guidance had been available, and during the over three years since the Foreign Carriers NPRM has been issued, there have been few if any instances brought to the attention of the Department in which service animals have been denied transportation, separated from their owners, or charged for an extra seat. Despite this apparent lack of problems in the real world of air travel, hundreds of comments expressed the fear that the Department was proposing new regulations that would unfairly limit the travel opportunities of service  animal users. Many of these comments suggested that there were no circumstances under which a service animal should be denied transportation in the cabin. If there were space limitations concerning accommodating larger animals, some commenters said, airlines should reconfigure their cabins to provide some larger spaces.

The Department believes that the fears of these commenters are largely unfounded. Nevertheless, in order to avoid future misunderstanding, the Department is republishing its service animal guidance later in the preamble to this final rule and has revised the language in this guidance document concerning carriage of larger, but otherwise acceptable, service animals to read as follows:

The only situation in which the rule contemplates that a service animal would not be permitted to accompany its user at his or her seat is where the animal blocks a space that, per FAA or applicable foreign government safety regulations, must remain unobstructed (e.g., an aisle, access to an emergency exit) AND the passenger and animal cannot be moved to another location where such a blockage does not occur. In such a situation, the carrier should first talk with other passengers to find a seat location where the service animal and its user can be agreeably accommodated (e.g., by finding a passenger who is willing to share foot space with the animal). The fact that a service animal may need to use a reasonable portion of an adjacent seat’s foot space—that does not deny another passenger effective use of the space for his or her feet―is not, however, an adequate reason for the carrier to refuse to permit the animal to accompany its user at his or her seat. Only if no other alternative is available should the carrier discuss less desirable options concerning the transportation of the service animal with the passenger traveling with the animal, such as traveling on a later flight with more room or carrying the animal in the cargo compartment. As indicated above, airlines may not charge passengers with disabilities for services required by Part 382, including transporting their oversized service animals in the cargo compartment.

In modifying this paragraph in the guidance, we deleted the phrase concerning the potential purchase of a second seat, since there are probably no circumstances under which this would happen. If a flight is totally filled, there would not be any seat available to buy. If the flight had even one middle seat unoccupied, someone with a service animal could be seated next to the vacant seat, and it is likely that even a large animal could use some of the floor space of the vacant seat, making any further purchase unnecessary. Of course, service animals generally sit on the floor, so it is unlikely that a service animal would ever actually occupy a separate seat.

We have not taken other steps recommended by some commenters, such as mandating that airlines accommodate coach passengers with service animals in first class or reconfigure cabins. We would regard such mandates as potentially requiring a fundamental alteration of airlines’ operations, and consequently outside the scope of the statutory authority for this rule.

A second category of comments concerned the relationship of service animal requirements to Part 382’s coverage of foreign carriers. Many foreign carriers and their organizations stated that foreign carriers often had policies more restrictive than those of the ACAA (e.g., only dogs, or only dogs certified by recognized training schools or associations, are accommodated; some carriers don’t allow any animals in the cabin; service animals may be seated only in certain designated locations; there are number limits or advance notice requirements for service animals in the cabin). These commenters generally wished to maintain such restrictions.

As a general matter, foreign carrier policies with respect to service animals, like other foreign carrier policies, are subject to the conflict of laws waiver and equivalent alternative provisions of the final rule. Otherwise, modifying carrier policies to accommodate U.S. civil rights requirements is something foreign carriers must accept as part of their obligation to comply with U.S. law when flying to and from the U.S.

In addition to wishing to maintain existing policies restricting the access of service animals, some commenters mentioned that some countries have quarantine rules that severely delay or limit the entrance of certain animals, or effectively prohibit, certain animals – even service animals – from entering those countries. The Department agrees that, if Country S prohibits a certain kind of animal from entering, an airline serving an airport in Country S could apply for a conflict of laws waiver to be relieved of carrying such an animal to that country. Such a waiver would be country-specific; however. If the same airline is asked to carry the same animal to Country R, which does not have such a prohibition, the carrier would have to transport the creature. The final rule also requires carriers to promptly take all steps necessary to comply with such foreign regulations as are necessary to legally transport service animals from the U.S. into foreign airports (e.g., the United Kingdom’s Pet Travel Scheme).

Commenters mentioned that some persons may have religious or cultural objections to traveling in proximity to certain service animals. Other commenters raised the issue of passengers who may have allergies to certain animals. It has long been a principle of the Department’s ACAA and other disability regulations that it is improper for a transportation provider to deny or restrict service to a passenger with a disability because doing so may offend or annoy other persons (see for instance current 14 CFR 382.31(b) and section 382.19(b) of the final rule). This principle is again articulated in the final’s rule service animal section. Only if a safety problem amounting to a direct threat can be shown is restricting access required by Part 382 justifiable.

This principle applies to concerns about passengers who have allergies not rising to the level of a disability or cultural or personal objections to being on the same aircraft with a certain service animal. Their discomfort must yield to the nondiscrimination mandate of the ACAA. As stated in the Department’s service animal guidance, to which we have added language concerning the handling of allergy issues, carriers should do their best to accommodate other passengers’ concerns by steps like seating passengers with service animals and passengers who are uncomfortable with service animals away from one other. We note that, on flights operated by foreign carriers that are not subject to these rules, the carriers may, of course, apply their own policies with respect to carriage of service animals.

A number of commenters objected to the requirement that carriers accept animals as service animals on the basis of the “credible verbal assurances” of passengers, especially in the absence of credentials from a training school that the carrier recognizes.

Under U.S. law (the ADA as well as the ACAA), it is generally not permissible to insist on written credentials for an animal as a condition for treating it as a service animal. It would be inconsistent with the ACAA to permit a foreign carrier, for example, to deny passage to a U.S. resident’s service animal because the animal had not been certified by an organization that the foreign carrier recognized. When flying to or from the United States, foreign carriers are subject to requirements of U.S. nondiscrimination law, though carriers may avail themselves of the conflict of laws waiver and equivalent alternative provisions of this Part. We acknowledge that some foreign carriers may be unused to making the kinds of judgment calls concerning the credibility of a passenger’s verbal assurances that the Department’s service animal guidance describes, and which U.S. carriers have made for over 17 years. However, the comments do not provide any persuasive evidence that foreign carriers are incapable of doing so or that making such judgment calls will in any important way interfere with the operation of their flights.

A number of carriers commented that making provision for service animals on long (e.g., transoceanic) flights was especially problematic. The main concern focused on the animals’ eating, drinking, and elimination functions. They pointed out that health and sanitation issues could arise. Some service animal users said that their animals were well trained to avoid creating sanitation problems on even a very long flight. The Department agrees that, on very long flights, carriers have a legitimate concern about sanitation issues that could arise if animals relieve themselves in the cabin. Consequently, the Department has added a provision to the regulatory text pertaining to a flight segment scheduled to take eight hours or more. For such a segment, the carrier may, if it chooses, require the passenger using the animal to provide documentation that the animal will not need to relieve itself on the flight or that the animal can do so in a way that does not create a health or sanitation issue. We agree with commenters that carriers should not have any responsibility for assisting with the eating, drinking, or elimination functions of service animals on board an aircraft.

Another important issue that a number of commenters raised concerned “emotional support animals.” Unlike other service animals, emotional support animals are often not trained to perform a specific active function, such as pathfinding, picking up objects, carrying things, providing additional stability, responding to sounds, etc. This has led some service animal advocacy groups to question their status as service animals and has led to concerns by carriers that permitting emotional support animals to travel in the cabin would open the door to abuse by passengers wanting to travel with their pets.

The Department believes that there can be some circumstances in which a passenger may legitimately travel with an emotional support animal. However, we have added safeguards to reduce the likelihood of abuse. The final rule limits use of emotional support animals to persons with a diagnosed mental or emotional disorder, and the rule permits carriers to insist on recent documentation from a licensed mental health professional to support the passenger’s desire to travel with such an animal. In order to permit the assessment of the passenger’s documentation, the rule permits carriers to require 48 hours’ advance notice of a passenger’s wish to travel with an emotional support animal. Of course, like any service animal that a passenger wishes to bring into the cabin, an emotional support animal must be trained to behave properly in a public setting.

We have also noted a concern that there could be differences, in the airport terminal context, between the ACAA regulations that apply to airlines, and their facilities and services, contrasted with public accommodations like restaurants and stores. The DOJ Title III rules for places of public accommodation govern concession facilities of this kind. As a consequence, a concession could, without violating DOJ rules, deny entry to a properly documented emotional support animal that an airline, under the ACAA, would have to accept. On the other hand, nothing in the DOJ rules would prevent a concession from accepting a properly documented emotional support animal. We urge all parties at airports to be aware that their services and facilities are intended to serve all passengers. Airlines, airport operators, and concessionaires should work together to ensure that all persons who are able to use the airport to access the air transportation system are able equally to use all services and facilities provided to the general public.

Because they make for colorful stories, accounts of unusual service animals have received publicity wholly disproportionate to their frequency or importance. Some (e.g., tales of service snakes, which grow larger with each retelling) have become the stuff of urban legends. A number of commenters nevertheless expressed concern about having to accommodate unusual service animals. To allay these concerns, the Department has added language to the final rule specifying that carriers need never permit certain creatures (e.g., rodents or reptiles) to travel as service animals. For others (e.g., miniature horses, pot-bellied pigs, monkeys), a U.S. carrier could make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal. Absent such factors, the carrier would have to allow the animal to accompany its owner on the flight. Any denial of transportation to a service animal would have to be explained, in writing, to the passenger within 10 days.

While it is possible that foreign air carriers may have safety-related reasons for objecting to service animals other than dogs, even ones that have been successfully accommodated on U.S. carriers, these reasons were generally not articulated in their comments to the docket. Nevertheless, to give foreign carriers a further opportunity to raise any safety-related objections specific to foreign airlines to carrying these animals, the final rule does not apply the requirement to carry service animals other than dogs to foreign airlines. However, foreign carriers could not, absent a conflict of laws waiver, impose certification or documentation requirements for dogs beyond those permitted to U.S. carriers. We intend to seek further comment on this subject in the forthcoming SNPRM.

A few comments suggested adding, to the section prohibiting carriers from requiring passengers to sign waivers or releases of liability, language specifically applying this prohibition to the loss, injury, or death of service animals. We believe that this is a sensible suggestion, and we have added the language.

Information for Passengers

The Foreign Carriers NPRM proposed that, similar to the current rule, carriers would have to make certain information available to passengers with disabilities upon request concerning the accommodations that were available to them for a particular flight. This includes the location of seats with a movable armrest as well as seats (e.g., those in an exit row) that are not available to passengers with a disability. It also includes information about any service limitation as well as the ability of an aircraft to accommodate people with disabilities (e.g., limitations on boarding assistance, limitations on storage areas for mobility aids, presence or absence of an accessible lavatory). The Foreign Carriers NPRM recognized that there were circumstances (e.g., change of aircraft because of weather or mechanical problems) that could affect the accuracy of information provided at the time a passenger made a reservation.

Disability community comments supported these proposals, which did not propose significant substantive changes from the provisions of the ACAA that have been in effect since 1990. Some carrier comments objected to the provision to identify seats with movable armrests, saying that, given the variety of cabin configurations and aircraft, it would be too hard and too expensive to be able to know where these seats are located.

The final rule does not mandate that carriers reconfigure cabins on all aircraft in order to meet this requirement, as some commenters mistakenly appeared to conclude. Rather, carriers would provide the best information available at the time a passenger made a reservation or inquiry. If the location of movable armrest seats on the aircraft actually providing the flight did not match the information previously provided to the passenger, gate and flight crew personnel could modify the passenger’s seating assignment prior to or at the time of boarding in order to ensure that the passenger could transfer to a seat with a movable armrest.

A carrier could make the necessary information about seating configurations of each aircraft available to its personnel for this purpose, noting locations of movable armrest seats. We note that there are at least two commercial web sites that make detailed information on characteristics of each seat of each configuration of most carriers’ various aircraft models publicly available. While these sites do not include information on movable armrests, the detailed information they make available (e.g., the location of seats that have sockets available to plug in laptops) suggests that doing so would not pose an insurmountable technical problem. Carriers that found a computer-based system too challenging could use a low-cost, low-tech means of identifying the movable armrest seats for gate and flight crew personnel, such as placing unobtrusive stickers on the seats or a photocopied seating chart that flight attendants and gate agents could use.

Another proposal carried over from the existing rule into the Foreign Carriers NPRM would require carriers to make a copy of Part 382 available at all the airports that they serve (for flights to the U.S., in the case of foreign airports). The Department sought further comment on this matter in the DHH NPRM. We also proposed to require all carriers to give passengers information on how to obtain both a copy of Part 382 in an accessible format and disability-related assistance from the Department (i.e., via the Disability Hotline or directly from the Aviation Consumer Protection Division). We solicited comment on our proposals and on the potential costs to carriers and benefits to passengers of a requirement that carriers have copies of Part 382 in accessible formats available at all airports involved in service to, from, or within the U.S.

A few disability community comments said that the rule should specify that the document be made available in other accessible formats as well as hard copy. Some foreign carrier comments objected to making copies of a U.S. regulation available, though others did not. Most foreign carriers, however, opposed any requirement that they have copies of Part 382 available at airports in accessible formats as unreasonably burdensome and of little practical use to passengers who are not already aware of this regulation. Some foreign carriers objected to being required to have a copy of Part 382 at the foreign airports from which they fly to the U.S., on the grounds that the foreign jurisdictions have their own disability-related requirements for carriers serving them. Virtually all of them took the position that any passenger desiring a copy of Part 382 in an accessible format should obtain it from this Department rather than from a carrier. Some suggested that passengers should be made aware of Part 382 and its availability from the Department at the time of booking or at some other point before they actually go to the airport. One foreign carrier did not object to having a copy of Part 382 available at airports in its home country from which it flies to the U.S., but it did object to any requirement that it also have copies available at third-country airports that could be the U.S. passenger’s origin or final destination. Another made a similar argument concerning airports that are endpoints of flights operated on a codeshare basis with a U.S. carrier.

While we agree that carriers should make a print copy of the rule available, so that passengers can refer to it to assist them in resolving any problems that arise at the airport, the final rule will not require copies to be made available in other accessible formats, or in languages other than English. We also will not adopt the proposed requirement in §382.45 that carriers provide information on the Department’s Disability Hotline service or its Aviation Consumer Protection Division to passengers with disability-related complaints or concerns. Such a requirement is not necessary here, as other sections of the rule require carriers to tell passengers of their right to contact the Department as part of the resolution of complaints (see 14 CFR §§382.153, 382.155). We agree with those commenters who suggest that access to Part 382 is most useful to consumers before they reach the airport. We are therefore requiring carriers to include notice on their websites that consumers can obtain a copy of Part 382 in accessible format from the Department and information on how this may be done. The performance requirement that carriers effectively communicate with passengers – which carriers can meet in a variety of ways – should be sufficient to ensure that passengers can use the regulatory information. Making a copy of the regulations available in an airport, for the cost of a photocopy, should not unduly burden carriers.

Probably the most important proposal in this portion of the NPRM would require carriers and their agents to make their web sites accessible to people with vision impairments and other disabilities. Web sites are an increasingly important way in which passengers get information about airline service and make reservations. Some carriers make discounts available to web site users, or charge extra fees to persons who make reservations by other means. Disability community commenters strongly supported the proposed requirements. Many carriers and carrier organizations opposed it, primarily on the ground that it would be too difficult and expensive to accomplish. Many of these comments said the Department had underestimated the cost of web site accessibility.

The Department continues to believe that web site accessibility is extremely important to nondiscriminatory access to air travel for people with disabilities, and we note that many existing carrier web sites provide a degree of accessibility. However, in order to obtain additional information about the costs and any technical issues involved, the Department is deferring final action on this proposal and seeking additional comment in the SNPRM that we are planning to issue. The preamble to the SNPRM will discuss comments on web site accessibility and the issues they raise in greater detail. In the meantime, in order to comply with the general nondiscrimination requirement of Part 382, carriers will be prohibited from charging fees, or not making web fare discounts available, to passengers with disabilities who cannot use inaccessible web sites and therefore must make phone or in-person reservations.

TTY Use

We proposed in the DHH NPRM to require carriers to ensure that the service and response times are equal for TTY information and reservation lines and non-TTY information and reservation lines, including the provision of a queue for the former if one is provided for the latter. (Since 1990, U.S. carriers that offer telephone reservations and information service to the general public have been required by §382.47 to offer TTY service as well.) TTY users should not be subject to longer wait times than other callers. We stated our belief that the cost to carriers of installing queuing features on their TTY lines would not be high. We solicited comments on this proposal.

The individuals and disability organizations that commented on this issue mostly supported all of our proposals. The carriers and carrier associations that filed comments expressed strong reservations about our proposal. Some foreign carriers opposed TTY requirements on the grounds that TTY access is technically infeasible in many countries. Some opposed the requirement of a queuing system for TTY calls, claiming that such systems are in fact quite costly and that the expense is not justified given the low incidence and low frequency of TTY calls that they receive (i.e., no more than two to three calls per month). Some asserted that deaf and hard of hearing consumers are using the internet more and more to communicate with carriers and thus relying less and less on TTYs. Some opposed the requirement that response time for TTY users and other callers be “equivalent,” arguing that the delay inherent in typing text rather than speaking it makes equivalent response times physically impossible.

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.

Regarding access, both the comments and our own further investigations into voice relay services have persuaded us that we need not require carriers to make TTY service available per se. Instead, we are requiring only that carriers make their telephone reservation and information services available to individuals who use a TTY. Carriers may of course 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 of 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 voice relay service). Such media include, for example, web sites, ticket jackets, telephone books, and print advertisements.

Regarding wait time, the comments and our own experiments with voice relay systems have persuaded us not to require carriers that use TTYs to implement a queuing system for TTY calls even if they do maintain one for calls from the rest of the public. Calls from a TTY to a carrier via a voice relay service are treated exactly the same as calls from conventional telephones. If an agent is available to take the call, the caller is connected to the agent. If not, if the carrier has a queuing system the call goes into the queue along with non-TTY calls. (If the carrier does not have a queuing system, any caller gets a busy signal.) Therefore, a TTY caller who calls the carrier’s TTY number and gets a busy signal can hang up and immediately try the carrier’s general public number through a voice relay service, where all calls receive identical treatment. We consider the timing in this scenario to be “substantially equivalent” to the timing for the rest of the public, the extra call notwithstanding. We do not intend for “substantially equivalent” to mean “exactly the same.” As long as disparities in wait times between TTY users and the general public remain both low and infrequent, we will consider the treatment of these groups to be substantially equivalent. Of course, we can and will investigate allegations of routine or lengthy disparities and require corrective action where appropriate.

We are concerned, moreover, that given the reportedly high cost of implementing a TTY queuing service vis-à-vis the reportedly low incidence of TTY calls, if we required queuing systems for TTYs, carriers that currently maintain TTYs might have an incentive to discontinue them, as this rule will permit them to do, and opt instead to offer access to TTY callers only via voice relay. We do not wish to create disincentives that may deprive those TTY users who may prefer calling another TTY directly rather than using voice relay of this option, especially when the record in this proceeding contains no evidence that the incidence of busy signals in TTY-to-TTY calls is high or even moderate. We would expect any carrier that operates TTY service and whose TTY callers experience a high incidence of busy signals to find some way of accommodating the TTY callers so as to avoid violating the “substantially equivalent” standard. For example, rather than acquire and maintain a queuing system, the carrier could allow a TTY caller who cannot be accommodated immediately to leave a message and then have an agent promptly return the call.

In-Flight Audio and Video Services

We proposed in the DHH NPRM to broaden the existing requirements for accommodating individuals who are deaf and hard of hearing that apply to video displays on aircraft. First, we proposed to require U.S. and foreign carriers to caption all safety and informational videos on aircraft within set periods of time. The current rule, §382.47(b), only requires that U.S. carriers make safety briefings on the aircraft that are presented by video accessible to persons who are deaf or hard of hearing, and it exempts cases where open captioning or an inset would interfere with the video presentation so as to render it ineffective or if the captioning or inset would itself be unreadable. The proposed rule, applicable to foreign carriers as well, would eliminate the exemption, require high-contrast captioning of informational videos as well as safety videos, require compliance for safety videos within 180 days of the rule’s effective date, and require compliance for informational videos within an additional 60 days. Until the new rule’s compliance dates, U.S. carriers would remain bound by the provisions of the existing rule. We solicited comment on the elimination of the exemption clause, on extending the captioning requirement to informational displays, and on the technical feasibility of captioning all safety and informational videos, DVDs, and other audiovisual displays in such a way that they will still be useful to individuals without hearing disabilities. We also solicited comment on the proposed timetable.

Second, we proposed to require U.S. and foreign carriers to provide high-contrast captioning on entertainment videos, DVDs, and other audio-visual displays on new aircraft, or aircraft ordered after the rule’s effective date or delivered more than two years after that date. Aircraft on which the audio-visual machinery is replaced after that date would also be considered new for purposes of §382.69. We did not propose requiring the captioning of entertainment videos on existing aircraft, believing that the costs of such a requirement would exceed the benefits that would follow. We solicited comment on the costs and feasibility of both modifying and replacing equipment on existing aircraft and complying with the proposed rule with new aircraft.

The carriers and carrier groups that filed comments generally objected to the proposals. RAA opposes requiring videos on existing aircraft to be captioned, contending that the costs of modification would greatly exceed any potential benefits. One foreign carrier contended that this provision should not apply to foreign carriers. Some faulted the Department for not distinguishing between English and non-English products and maintained that the latter should be excluded from any captioning requirement. Some carriers argued that the exact content of any safety briefing provided by video can always be found in print in each seat pocket and maintain that the content of informational videos can be found in print both in seat pockets and elsewhere in the cabin. Most if not all carriers and carrier groups objected to allowing less time for compliance with the safety-video requirement than with the requirement for informational videos; some maintained that rather than a specific deadline, carriers should be permitted to comply if and when they replace video equipment in the normal course of operating the aircraft. Some claimed to have no control over the content of informational videos provided by third parties. Some opposed the requirement that captioning be high-contrast—i.e., white letters on a consistent black background. Several commenters called for retention of the current rule’s exemption for captioning a safety video when the captioning or inset would render the video ineffective.

All of the carriers and carrier groups opposed requiring captioning for all in-flight entertainment, advancing several arguments: with existing technology, the costs and difficulties of compliance are prohibitive; for overhead screens, the size of captioning relative to the size of the screen would degrade the entertainment value of the video presentation for all passengers; on individual seat screens, current technology and cost do not permit the installation of systems that would let individual passengers choose whether to caption individual programs; captioning of all entertainment videos, regardless of what type of screen the aircraft features, is too costly and would increase the price of air transportation; in-flight entertainment is beyond the Department’s jurisdiction to regulate, as it does not come within the purview of access to air transportation; film owners’ restrictions on DVDs could make compliance impractical to impossible; in some cases, government censorship could make compliance illegal; the proposal does not specify whether or not captioning would be required in languages other than English, which would increase the costs and difficulties of complying. Many carriers endorsed the comments of the World Airline Entertainment Association (“WAEA”), which are summarized below, and many called for inclusion in any provision adopted of an exemption like the one in the current rule for safety videos—i.e., for cases where captioning would interfere with the video presentation so as to render it ineffective or if the captioning would itself be unreadable.

The individuals and disability organizations that filed comments unanimously supported the proposed rule except insofar as they believed the compliance dates to be too far in the future. None of these commenters addressed the costs or difficulties of achieving compliance.

The WGBH Educational Foundation’s National Center for Accessible Media (“the Center”), which reported that it is conducting a study on ways of making airline travel more accessible to passengers with sensory disabilities, filed comments on this proposal. The Center maintained that all safety videos are already being captioned and that pre-recorded informational videos are readily captionable, thus making the existing exemption unnecessary. It maintained that due to current technologies, the rule need not specify white letters on a black background to ensure that captions can be read, and given the number of production techniques available, a requirement that displayed text be “legible” or “readable” should suffice. The Center stated that the next generation of in-flight entertainment (“IFE”) systems can be designed to accommodate captioning in various ways and that it is advances in these systems, not new aircraft, that will make captions readily available. It therefore recommended that the rule be tied to changes in IFE systems and not the purchase or modification of aircraft. Further, the Center reported that captioning on next-generation IFE systems is a work in progress based on new means of sending video signals through the aircraft cabin. Caption data for broadcast and cable television, it stated, are incompatible with the digital signals being routed to seat screens in the newest IFE systems, and while the transformation of these data for use on in-flight systems can be developed, the process is not yet automatic, nor is it trivial. A further complication, according to the Center, lies in the variety in types of video signals being provided in-flight. The Center stated that despite the small size of seat screens, properly rendered captions can be as effective on these screens as they are on home television sets. It reported that the portable IFE systems that some carriers use as alternatives to installed systems—for example, DVD players or hard disks—can accommodate closed captions as readily as installed systems can.

As mentioned above, the comments filed by WAEA were endorsed by many of the carriers. WAEA stated that its members include both airlines and suppliers to the IFE industry, the latter including aircraft manufacturers, major electronics manufacturers, motion picture studios, audio/video postproduction labs, broadcast networks, licensing bodies, communications providers, and others, worldwide. WAEA took the position that some of the proposed captioning requirements and implementation timelines would impose undue and unacceptable financial burdens on the carriers and that some of the requirements are not even technologically or operationally feasible given the following: technical limitations of both old and new IFE systems, variations among proprietary IFE systems currently in service and being installed, limited space for and readability of captioning on both seat screens and on more distant communal screens, the intrusion factor of open captions for passengers without a sensory disability, limited cabin-server storage for additional captioned video files to complement up to eight languages offered onboard, and lengthy aircraft retrofit and fleet order cycles and IFE system design and certification timelines.

Among other things, WAEA agreed with the Center that the implementation of the proposed new requirements should be tied to IFE system development and not the aircraft. Given the limitations of video files that may be available on the aircraft, WAEA contended that the rule should apply only to English-language videos and only to entertainment videos exhibited “while in United States territory.” WAEA reported that current IFE systems are typically based on proprietary rather than standard architectures and technologies and that they were not designed to accommodate broadcast closed-captioning signals and technologies. Given the limitations of IFE screens in terms of their size and distance from the viewer, WAEA opposed the requirement that captioning be white letters on a black background and supported instead the choice of using the same process as subtitling, which, it said, provides readable characters while keeping most of the picture visible and poses fewer risks of copyright infringement.

Based on the comments, we have made several changes to the final rule. We are retaining the requirement that safety and informational audio-visual displays played on the aircraft be high-contrast captioned, but we have revised the definition of that term to permit the use of captioning that is at least as easy to read as white letters on a consistent black background. The requirement will not apply, however, to informational videos that were not created under the carrier’s control. The captioning need only be in the predominant language or languages in which the carrier communicates with passengers on the flight. If the carrier makes announcements both in English and another language, captions must be in both languages. We are retaining the compliance dates set forth in the DHH NPRM, based among other things on the Center’s report that all safety videos are already being captioned and that pre-recorded informational videos can be captioned readily. This report also undercuts the carriers’ arguments for retaining the current rule’s exemption for cases in which captioning would interfere with the video presentation so as to render it ineffective or would itself be unreadable.

We have reluctantly concluded, though, that we cannot adopt a regulation governing entertainment displays at this time. We reject the contention that access to in-flight entertainment falls outside the scope of the Air Carrier Access Act of 1986, as amended, and that we therefore have no authority to regulate IFE. Remedial statutes such as the ACAA are properly construed broadly, for the benefit of the protected class, as we have consistently done via Part 382. (See, e.g., §382.1 and §382.11-13 [formerly §382.7].) No party challenging our jurisdiction over IFE has provided any support for its position.

Notwithstanding our authority to regulate, however, the record in this proceeding does not provide a basis for adopting a captioning requirement for IFE at present. We cannot conclude on the basis of the comments that providing high-contrast captioning for entertainment displays is technically and economically feasible now, nor can we ascertain a date by which it most likely will be. Therefore, we will shortly be issuing an SNPRM to call for more current and more complete information on the cost and feasibility of providing high-contrast captioning for entertainment displays, information not only on current technology but also on the nature and pace of technological developments. Regarding the latter, we are aware that on March 6, 2007, after the conclusion of the period for commenting on the DHH NPRM, WAEA’s Board of Directors adopted a new specification as part of an ongoing effort to establish a standard digital content delivery system for IFE. This new specification reflects progress toward development of a common methodology for delivering digital content and greater interoperability for in-flight entertainment systems.

Other Information for Individuals with Hearing or Vision Impairments

We proposed in the DHH NPRM to require carriers to provide the same information to deaf, hard of hearing, and deaf-blind individuals in airport terminals that they provide to other members of the public. We proposed that they must provide this information promptly when such individuals identify themselves as needing visual or auditory assistance, or both. The proposed rule set forth the following non-exhaustive list of covered topics: flight safety, ticketing, flight check-in, flight delays or cancellations, schedule changes, boarding, the checking and claiming of baggage, the solicitation of volunteers 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). We proposed that the rule apply to U.S. carriers at each gate, baggage claim area, ticketing area, or other terminal facility that they own, lease, or control at any U.S. or foreign airport. The proposed rule would apply to foreign carriers at gates, baggage claim areas, ticketing areas, or other terminal facilities that they own, lease, or control at any U.S. airport and at terminal facilities of foreign airports that serve flights beginning or ending in the U.S. (We inadvertently neglected to include the phrase “that they own, lease, or control” in the NPRM regulatory text on foreign carriers at foreign airports.)

We explained in the DHH NPRM that we were proposing a performance standard, namely “prompt,” rather than requiring carriers to use a particular medium (e.g., LCD screens, wireless pagers, erasable boards, or handwritten notes) to allow carriers to design their own compliance plans in a manner that best suits their needs and serves their passengers. We solicited comment on whether the term “prompt,” which we believe to be a higher standard than “timely,” is sufficiently specific. We also stated our concern that methods of communicating with deaf-blind individuals may not be readily available. We did not propose to require carriers to use any of the following methods: using a finger to trace block letters on the deaf-blind individual’s palm or forearm, using an index card with raised letters, with the communicator placing the deaf-blind individual’s index finger on each word’s letters in sequence, or tactile signing or finger spelling where the deaf-blind individual places his or her hands on top of the signer’s hands to feel the shape of the signs. We solicited comment on other less specialized methods of communicating with deaf-blind individuals and on whether, if none exists, we should limit the promptness requirement to individuals with vision or hearing impairments but not to apply it to an individual who has both of these disabilities.

The carriers and carrier groups that filed comments all supported the requirement that passengers needing special transmission of this information identify themselves to carrier personnel. Most asked the Department to use “timely” as a standard rather than “prompt.” Some complain that any such standard is too subjective to provide effective guidance. One carrier suggested that the emphasis should be not on how swiftly carriers can transmit the information to the disabled passenger but on when the passenger needs to have it. Carriers shared considerable concern over the costs of compliance, both in terms of having personnel available at all of the areas listed in the proposal and in terms of potential technical solutions.

One carrier opposed making the requirements applicable at foreign airports, arguing that foreign carriers are not likely to have the leverage they would need to comply. Several contended that the cost estimates in the initial Regulatory Evaluation were unrealistically low. Some proposed limiting the required “promptness” to individuals with either hearing or visual impairment, not both, who are traveling without a companion; one stated that it communicates the information at issue here to deaf-blind passengers through their traveling companions. Some objected to the list of types of information that must be provided promptly. (The list represents an expansion of the list in the existing rule, 14 CFR §382.45(c), which up to this time has applied only to U.S. carriers, and which is explicitly not exhaustive.) One U.S. carrier association was particularly concerned about the financial burdens that it assumes the rule would impose on its regional-airline members. It asserted that adoption of much of the technology discussed in the proposal is impossible at small airports and states that in any case its members report very few deaf-blind passengers flying from these airports. The costs of compliance, it contended, far exceed any putative benefits and could result in the reduction or even elimination of service.

The individuals and disability organizations that filed comments had a very different perspective. Most of these commenters objected to the requirement of self-identification. Many took the position that carriers should have reliable methods in place for conveying information to all passengers at all times. Several supported requiring simultaneous visual transmission of any information disseminated over a public address system. Some related that in the past self-identification has failed to result in this type of information’s being transmitted at all, much less “promptly” or even in a “timely” manner.

Based on the comments, we have made several changes to the proposal in the final rule. First, we are adding the language that we inadvertently omitted in the proposed rule to limit the requirements for foreign carriers at foreign airports to areas that these carriers own, lease, or control. Second, we have determined that it is not appropriate at this time to require carriers to provide the information covered in §382.53 to deaf-blind passengers. The information at issue is constantly changing, and we know of no methods of communicating with deaf-blind individuals that allow for prompt transmission of the information and do not require highly specialized training. We do encourage members of the public to petition the Department for a rulemaking to amend this rule in the future if and when technology becomes available that would permit the prompt and efficient transmission of the covered information to deaf-blind individuals. We also encourage carriers to acquire and use such technology on their own initiative.

Third, we have determined that the costs of requiring prompt transmission of the covered information at all of the terminal areas listed in the DHH NPRM exceed the benefits. We are therefore limiting the requirement to gates, ticketing areas, and customer service desks. For purposes of the rule, a customer service desk is a location in the terminal that a carrier dedicates to addressing customer problems that are not addressed at the gate or the ticket counter, most commonly the rerouting of passengers affected by a delayed or canceled flight. Fourth, we are adding a provision for information about baggage. This information must be transmitted to passengers who have identified themselves as having hearing or vision impairment no later than the time that it is transmitted to the other passengers. For example, assuming that information on collection of baggage is given to arriving passengers at the baggage claim area, carriers can comply with this rule by giving the information to self-identifying passengers before the others—e.g., onboard the flight or at the gate—or at the baggage claim area at the same time as the others. Fifth, as in the case of §382.51, in cases where a U.S. airport has actual control over the gates, ticketing areas, and customer service desks, we are making the airport and the carrier jointly responsible.

We are retaining the self-identification requirement, because we believe that requiring simultaneous visual transmission of the information along with each and every public-address announcement would saddle carriers with undue costs. In this regard, passengers with impaired hearing or vision must identify themselves to carrier personnel at the gate area or the customer service desk even if they have already done so at the ticketing area.

We are also retaining the “prompt” standard. It requires carriers to provide the information to self-identifying passengers with hearing or vision impairment as close as possible to the time that the information is transmitted to the general public. For example, when gate agents announce a flight cancellation or gate change, if they provide the information to self-identifying passengers with impaired hearing or vision either immediately before or immediately after they make a general announcement, the carrier will be complying with §382.53. If a gate change is announced fifteen minutes before a scheduled departure but the gate agents do not provide effective notice to a passenger with impaired hearing until it is too late for that individual to reach the gate in time to board, or if they delay providing the information long enough that the individual reasonably believes that he or she will probably miss the flight, the carrier is violating the rule. The rule requires that carrier personnel notify a self-identifying passenger with impaired hearing that he or she has been paged immediately after making the announcement over a public address system unless the same information is displayed visually on a screen. If a flight is oversold and the carrier is soliciting volunteers to relinquish their seats in exchange for compensation, to comply with this rule carrier personnel must notify self-identifying passengers with impaired hearing or vision in time for them to take advantage of the offer—i.e., well before the quota has been filled by other volunteers. The rule does not require carriers to provide a sign language interpreter in the gate area or elsewhere to ensure that a deaf passenger receives all pertinent information simultaneously with other passengers.

As for passengers with impaired vision, for example, the rule requires carriers to notify a visually impaired passenger orally where his or her baggage can be claimed if the information is otherwise only posted on visual displays, and the notification must take place no later than the posting. At the time when a visually impaired passenger identifies himself or herself to an agent at the gate, the rule requires the agent to notify him or her of any change that has occurred that affects his or her itinerary even if the change has already been announced and is now posted on a screen. If a gate change is posted on the screen but not announced orally, as soon as possible after the posting a gate agent must notify any passenger who has identified himself or herself as having impaired vision.

We are retaining the entire list of types of information that carriers must provide even though it contains more items than the list in the current rule. In our view, since the list in the current rule is expressly non-exhaustive, the new items on the list in this section were never excluded obligations. Having them explicitly stated informs the carriers more effectively of their responsibilities.

In the DHH NPRM, we proposed a somewhat similar requirement for providing information aboard aircraft to the proposed requirements pertaining to information in airport terminals. U.S. and foreign carriers would be required, upon request, to provide deaf, hard of hearing, and deaf-blind individuals with the same information provided to other passengers in a prompt manner. We again proposed a non-exhaustive list of types of information to be covered by the rule: flight safety, procedures for take-off or landing, flight delays, schedule or aircraft changes that affect the travel of persons with disabilities, diversion to a different airport, scheduled departure and arrival times, boarding information, weather conditions, beverage and menu information, connecting gate assignments, baggage claim, individuals being paged by airlines, and emergencies (e.g., fire or bomb threat). The proposal differs from the current rule in that it changes the timing requirement from “timely” to “prompt” and expands the current rule’s list, also non-exhaustive, of covered types of information. We solicited comment on whether the change from “timely” to “prompt” is appropriate for providing information aboard the aircraft and on the proposed new list.

The carriers and carrier groups that filed comments generally objected to the proposal as too broad and too prescriptive, particularly the expanded list of types of information for which accommodation would be required. The Air Transport Association of America (“ATA”) argued that the expanded list would create a tension between crew members’ obligations to provide information to disabled passengers and their duties related to safety and concluded that if busy crew members are further burdened with having to transcribe every in-flight announcement for passengers with impaired hearing, only safety announcements mandated by the FAA will be made. Such a result, according to ATA, would work to the detriment of all passengers and constitute an undue burden not required by the ACAA. ATA proposed limiting the covered information to critical flight and safety information. Some commenters contended that they (or their members) already give passengers with hearing or vision impairment the same relevant information that they announce aloud. The International Air Transport Association (“IATA”) contended that the proposal would not allow carriers enough flexibility to make individual assessments and that compliance would require retraining of all staff, redrafting of training manuals, and dramatic changes in procedures at high cost to the carriers and with little benefit to passengers. Some carriers took the position that individuals who are not capable of communicating with the flight crew orally or in writing should be required to travel with a companion who can establish communication. RAA characterized the scope of information in the proposed list as excessive and maintained that the “prompt” standard should only apply to information about flight safety procedures for take-off or landing. RAA said that 80 percent of airplanes operated by regional carriers either have only one flight attendant or none at all.

The individuals and disability organizations that filed comments unanimously supported the proposed rule, including the expanded list of topics. Most objected to the requirement that individuals with hearing impairments identify themselves to the carrier and request accommodation. Most supported a requirement that all oral announcements made aboard the aircraft be simultaneously transmitted visually; some claimed that in practice, sporadic requests for accommodation are not honored.

With minor clarifying changes to the language of the proposed rule, we are adopting its substance as proposed. As with §382.53, however, we have determined that it is not appropriate at this time to require carriers to provide the information covered in §382.119 to deaf-blind passengers. As stated above, the information is constantly changing, and we know of no methods of communicating with deaf-blind individuals that allow for prompt transmission of information and do not require highly specialized training. Also as with §382.53, we encourage members of the public to petition the Department for a rulemaking to amend this rule if and when technology becomes available that would permit the prompt and efficient transmission of the information to deaf-blind individuals.

We are also following our approach in §382.53 with regard to maintaining the self-identification requirement, the standard of promptness, and the list of types of information that the rule covers. Here, as there, we believe that at this time, requiring simultaneous visual transmission of the information along with every spoken announcement would saddle the carriers with undue costs. Here, as there, carriers must provide the information to self-identifying passengers with hearing or vision impairment as close as possible to the time that the information is announced aloud. Here, as there, expanding the list in the current rule does not impose additional requirements on U.S. carriers, because the current rule’s list is explicitly non-exhaustive and would thus cover the items added here. Specifying our expectation informs the carriers more completely of what the rule encompasses.

Finally, the carriers’ concerns that compliance with the requirements of section 382.119 could keep their flight crews from performing their duties related to safety are misplaced. The rule expressly relieves the crew from complying when this would interfere with their safety duties under FAA and foreign regulations. There is similar language in §382.53, though, given the duties of such personnel as gate agents, ticket agents, and baggage claim personnel, the likelihood of any conflict between normal duties and legally-mandated safety duties is probably lower than in the air crew context, outside, perhaps of an unusual emergency situation.

Training

The Foreign Carriers NPRM proposed that carriers operating aircraft with 19 or more passenger seats must train its personnel to proficiency concerning ACAA requirements and providing services to passengers with disabilities. One element of the carrier’s training efforts would be to consult with organizations representing persons with disabilities in developing training programs. Refresher training to maintain proficiency would also be required. Complaints resolution officials (CROs) would have to be trained in their duties by the effective date of the rule. Training for current employees would generally have to be accomplished within one year. New crewmembers would have to be trained before starting their duties, and other new employees would have to be trained within 60 days of starting their duties. For foreign carriers, training requirements would apply only to employees who are involved with flights to and from U.S. points. Carriers would incorporate procedures implementing Part 382 requirements into their manuals, but they would not need to submit these materials or a certification of compliance to DOT for review.

Disability community commenters generally supported the proposed training requirements, though several said that U.S. carriers were not providing adequate training. Some commenters said that they had rarely, if ever, encountered carrier personnel who, when asked, recalled getting ACAA training. Some of these commenters, as well as some carriers, asked for a stronger DOT role in providing training (e.g., preparing a training curriculum, developing training materials, or providing funding for training). One association representing foreign carriers suggested a forum at which carriers and the Department could discuss implementation issues before the effective date of the rule.

Some foreign carriers mentioned that they already had disability-related training programs for their employees, and suggested that these programs should be recognized as equivalent to the proposed requirements. A few foreign carriers said that the proposed training time frames were too short. Other foreign carriers objected to training their employees to meet U.S. requirements, since they already trained their personnel to meet applicable requirements of their home countries. Several of these commenters particularly objected to consulting with disability groups, some suggesting that the requirement should be waived if they could not find a local disability group to consult. (Disability groups expressed different views on this point, most suggesting such a waiver was unnecessary because the U.S.-based staff of the airline could consult with U.S. groups if necessary, while another group suggested such a waiver could be acceptable if the carrier showed it had made good faith efforts to consult.) An association of U.S. carriers cautioned that any waiver available to foreign carriers should also be available to U.S. carriers.

The Department regards thorough training of carrier personnel who interact with passengers with disabilities as vital to good service to those passengers and to compliance with the ACAA. We recognize that many foreign carriers already have disability-related training programs. Since specific ACAA requirements do not yet apply to these carriers, it is very likely that these training programs would need to be amended, for those personnel who serve flights to and from the U.S., in order to ensure that the personnel understand ACAA requirements. Personnel serving U.S.-related flights would not have to be retrained from scratch, only provided additional training on ACAA-specific matters. To respond to concerns about the time it would take to train employees, the final rule provides foreign carriers a year from the effective date of the rule to complete the process. Since there will be a year between publication of the final and its effective date, any carriers still concerned about the length of training time frames can get a head start by beginning to train employees during the year prior to the effective date.

While U.S. disability groups can undoubtedly be a useful resource for both U.S. and foreign carriers, we do not believe it would be realistic to require foreign carriers to seek out U.S. disability groups for consultation (in many cases, U.S.-based personnel of these carriers would be operations staff, not management and training officials). Consequently, we have modified the language of this provision to refer to seeking disability groups in the home country of the airline. If home country disability groups are not available, a carrier could consult individuals with disabilities or international organizations representing individuals with disabilities. We do not believe that a waiver provision is needed, since it is unlikely that a carrier would be completely unable to find anyone – home country or international disability groups, individuals with disabilities – with whom to consult. As a matter of enforcement policy, however, the Department would take into consideration a situation in which a carrier with an otherwise satisfactory training program documented it had made good faith efforts to consult but was unable to find anyone with whom to consult.

The Department has posted a model training program based on the current Part 382 at http://airconsumer.ost.dot.gov/training/index.htm, and we will consider whether it would be useful to produce additional training materials. Our staff have long experience in working with carriers on training and compliance issues, and they will continue to work with both U.S. and foreign carriers on training-related issues. We believe the idea of one or more forums to discuss implementation issues in the interval between the publication and effective dates of the rule is a good one, and we are now planning to hold such a meeting in June 2008.

We understand the concern of disability group commenters that some carrier personnel do not seem to have been trained to proficiency or at all. In an industry environment in which there is considerable personnel turbulence, carriers and the Department must both be vigilant to ensure that training takes place as required.

Because of the concern that some carrier employees may not be current in their knowledge of ACAA requirements, the final rule will require refresher training at least every three years. Carriers will have to develop a program for this purpose. Refresher training is intended to assist employees in maintaining proficiency, both by reminding them of ACAA requirements and their carriers’ procedures for implementing them and by providing updated information about new developments, additional guidance etc. While the Department will not require such programs to be submitted for approval, carriers will be required to retain records concerning both initial and refresher training, including the instructional materials and individual employee training records, for three years. These records will be subject to inspection by the Department.

We also think that it is important to understand the relationship between compliance with the “trained to proficiency” requirement and compliance with other provisions of the rule. In the Department’s view, a pattern or practice by a carrier of noncompliance with operational provisions of the ACAA rule (e.g., wheelchair stowage in the cabin, boarding or connecting assistance) may reveal that the carrier’s personnel have not been trained to proficiency with respect to the provision in question. Training to proficiency seems inconsistent, on its face, with systemic mistakes in providing required accommodations. Consequently, where the Department sees widespread implementation problems, our staff may also examine the adequacy of the carrier’s training, and we may take enforcement action and require corrective action in the carrier’s training activities.

Carriers generally supported the proposal to not require submission of material in manuals and procedures to DOT for review. The Department believes, based on the experience of reviewing carrier submissions at the time the original Part 382 went into effect, that mandating such submissions is not productive, so we will not impose such a requirement. Some disability community commenters supported the idea of submitting certificates of compliance. However, the Department believes that doing so would result in increasing information collection burdens without giving the Department a significant additional amount of information about carriers’ actual compliance status. We believe it is sufficient for the Department to be able to review materials carriers have on file as part of our compliance and enforcement process.

In the DHH NPRM, we proposed to require carriers to train their employees to recognize the requests for communication accommodation by passengers with impaired vision or hearing and to use the most common methods that are readily available for communicating with these passengers. The required training would be for proficiency in basic visual and auditory methods for communicating with passengers whose disabilities affect communication. We explained that we were not proposing to require carriers to train their employees to use sign language. Rather, employees would be trained in methods that are readily mastered and of which one or more can be used as required to communicate with an individual who is deaf or hard of hearing (e.g., handwritten notes). We solicited comment on whether the terms “common methods” and “readily available” give carriers sufficient guidance for complying fully with this training requirement. We also solicited comment on what kind of training would meet the requirement and on the effect, feasibility, and necessity of expanding the proposal to require that employees also be trained to communicate with deaf-blind individuals.

The carriers and carrier associations that filed comments generally characterized the proposed requirements as far too vague and potentially too costly. Most objected to requiring training for all personnel and contractors that deal with the traveling public. One carrier suggested that a better approach would be to train all personnel to better awareness of communications needs and give carriers discretion to choose how to satisfy those needs—for example, by ensuring that proficient communicators can be made available on short notice. Foreign carriers generally argued that any training requirement should only apply to their employees in the United States. One carrier association noted that a person without training would naturally resort to writing to communicate with a deaf person and wondered what more would be taught in formal training. One carrier questioned the existence of universally established or internationally accepted methods in which to train carrier personnel. RAA asked that training requirements not apply to aircraft carrying 30 or fewer passengers and that training to communicate with deaf-blind individuals not be required.

The individuals and disability organizations that filed comments all supported training requirements. One organization argued that training in sign language should be required as well as training in how to operate any technology used to provide visual access—for example, captioning controls on video monitors or LCD terminals. One individual called for carrier personnel to be trained in how to handle people with service or guide dogs, including not to pet or feed the dogs. One organization maintained that trainers of carrier personnel should be individuals with hearing loss and that they should focus on imparting an understanding of the barriers that deaf, hard of hearing, and deaf-blind passengers face. This organization also suggested that effective communication might involve visual communication, appropriate seating arrangements, lighting to ensure a clear line of sight to visual information displays, and attention-getting techniques such as gentle tapping on the shoulder.

In the final rule, we are retaining the proposed training requirement with some clarification and one addition. Carriers must train those employees who come into contact with passengers whose hearing or vision is impaired or who are deaf-blind both to recognize these passengers’ requests for accommodation in communicating and to communicate with these passengers in ways that are common and readily available. For example, employees should be able to communicate with passengers whose hearing or vision is impaired via written notes or clear enunciation, respectively. We are adding a requirement that the training also cover deaf-blind passengers. Examples of communication accommodations for the latter include passing out Braille cards (which this rule does not require), reading any information sheet that a passenger provides, and communicating with the passenger through an interpreter. Given that what we are requiring is fairly rudimentary, the training costs should not be high, nor should compliance otherwise be burdensome.

Complaints

Like the existing rule, the Foreign Carriers NPRM emphasized the role of CROs. These are individuals trained to be the carrier’s experts in ensuring that carrier personnel correctly implement ACAA requirements and that problems of passengers with disabilities are resolved in a way that is consistent with Part 382. The purpose of having a CRO is to resolve passengers’ problems as quickly as possible, without resort to formal DOT enforcement procedures and, we hope, in many cases, before a violation occurs.

Under the Foreign Carriers NPRM, there would have to be a CRO available to passengers with disabilities at every airport the U.S. carrier serves and at every airport where a foreign carrier operates a flight to or from the U.S,, whether in person or by phone. Carrier personnel would have to refer a passenger with a disability-related complaint or problem to a CRO. The Foreign Carriers NPRM also would tell carriers to provide the number of the DOT Disability Hotline to such passengers. CROs have the authority to direct other carrier personnel (except pilots-in-command with respect to safety matters) to take actions to resolve problems so as to comply with the ACAA. Carriers and CROs would have to respond to consumer complaints in a timely manner.

Disability community comments generally supported the proposed rule, though some comments suggested that CROs and carriers should have to respond faster to consumer complaints than the Foreign Carriers NPRM proposed. Some carriers, on the other hand, thought that the time frames in the Foreign Carriers NPRM were too short, especially if a lengthy investigation were needed in order to respond. Disability community commenters also strongly supported the proposal to direct carriers to refer passengers who raise disability-related issues to a CRO, since many individuals may not know about the availability of CROs otherwise.

A number of carriers said that they thought that having CROs available to passengers at every airport was not cost-effective and that existing customer service offices could meet the need. One foreign carrier thought that its personnel could not be successfully trained to carry out the CRO role. Some carriers thought that they should not have to refer passengers to the DOT Hotline, saying that this would undermine the purpose of having CROs resolve problems as close to the scene of the action as possible.

Some commenters objected to providing TTY service as a means of permitting hearing-impaired passengers to contact a CRO, saying that this was impractical in some places (e.g., an airport in a country where TTY service was unavailable). Some comments said the Foreign Carriers NPRM’s proposal to allow 18 months after the event for a passenger to file a complaint with DOT was too long.

The final rule retains the role and functions of the CRO. Our experience supports the proposition that the use of CROs is crucial to prompt and efficient solution of passengers’ problems. However, we are making a few clarifications and changes in response to comments. Carriers may use other accessible technologies in lieu of TTYs to permit hearing-impaired passengers to communicate with CROs. The proposed requirement for carriers to refer passengers to the DOT Hotline has been dropped. The time frame for a carrier to respond to an oral complaint to a CRO has been expanded to 30 days, making it consistent with the time frame for responding to written complaints. The final rule clarifies that with respect to CROs and complaint responses, carriers providing scheduled service, and carriers providing nonscheduled service using aircraft with 19 or more passenger seats, are covered. When the rule speaks of “immediate” responses by carriers, it means prompt and timely referral to a CRO when passengers raise a disability-related problem or complaint that cannot be quickly resolved by carrier personnel on the spot (e.g., a gate agent, a flight attendant). We have reduced from 18 months to six months the period after an event in which a passenger may file a complaint with DOT.

A few foreign carriers said that it was improper to permit non-U.S. citizens to have access to the U.S. DOT through the complaint process. In the commenters’ view, this implied improper extraterritorial jurisdiction under a law that was intended to create rights only for U.S. citizens. We do not agree. First, the ACAA protects “individuals with disabilities,” with no limitation on the nationality of those individuals. Second, the Department has a legitimate interest in ensuring that its legal requirements are implemented. It does not matter to the Department who brings a problem to its attention. Once we know about the problem, it is up to the Department, working with the carrier, to correct the problem, and civil penalties are one of the Department’s tools for helping to correct a problem.

An association representing U.S. carriers objected to a proposed exception to the 45-day limitation on accepting written complaints for complaints referred by the Department of Transportation. The commenter also suggested that carriers be allowed to limit the means through which a disability-related complaint is transmitted to them to the means used to accept non-disability-related complaints. In the Department’s view, if we think a complaint is important enough to refer to an air carrier, it is important enough for the carrier to respond. We also believe that, in attempting to enforce rights under a nondiscrimination statute, passengers should be able to send a complaint by any reasonable means available to them, without limitations placed by carriers on the transmission of other sorts of consumer complaints. These features of the proposed rule will be included in the final rule without change.