[Federal Register: May 13, 2008 (Volume 73, Number 93)] [Rules and Regulations] [Page 27613-27687] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr13my08-8] [[Page 27613]] ----------------------------------------------------------------------- Part II Department of Transportation ----------------------------------------------------------------------- 14 CFR Part 382 Nondiscrimination on the Basis of Disability in Air Travel; Final Rule [[Page 27614]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION 14 CFR Part 382 [Dockets OST-2004-19482; OST-2005-22298; OST-2006-23999] [RINs 2105-AC97; 2105-AC29; 2105-AD41] Nondiscrimination on the Basis of Disability in Air Travel AGENCY: Department of Transportation, Office of the Secretary. ACTION: Final Rule. ----------------------------------------------------------------------- SUMMARY: The Department of Transportation is amending its Air Carrier Access Act (ACAA) rules to apply to foreign carriers. The final rule also adds new provisions concerning passengers who use medical oxygen and passengers who are deaf or hard-of-hearing. The rule also reorganizes and updates the entire ACAA rule. The Department will respond to some matters raised in this rulemaking by issuing a subsequent supplemental notice of proposed rulemaking. DATES: Effective Date: This rule is effective May 13, 2009. FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation, 1200 New Jersey Ave., SE., Room W94-302, Washington, DC 20590 (202) 366-9310 (voice); 202-366-7687 (TTY); bob.ashby@dot.gov. You may also contact Blane Workie, Aviation Civil Rights Compliance Branch, Office of the Assistant General Counsel for Aviation Enforcement and Proceedings, Department of Transportation, 1200 New Jersey Ave., SE., Room W98-310, Washington, DC 20590 (202) 366-9345), blane.workie@dot.gov. 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. --------------------------------------------------------------------------- \1\ The dates and citations for these amendments are the following: April 3, 1990, 55 FR 12341; June 11, 1990, 55 FR 23544; November 1, 1996, 61 FR 56422; January 2, 1997, 62 FR 17; March 4, 1998, 63 FR 10535; March 11, 1998, 63 FR 11954; August 2, 1999, 64 FR 41703; January 5, 2000, 65 FR 352; May 3, 2001, 66 FR 22115; July 3, 2003, 68 FR 4088. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \2\ See 64 FR 5096, February 2, 1999 (for 49 CFR Part 26, disadvantaged business enterprise) and 65 FR 79462, December 19, 2000 (for 49 CFR Part 40, drug and alcohol testing procedures). --------------------------------------------------------------------------- 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 [[Page 27615]] (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. [[Page 27616]] 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. 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 [[Page 27617]] 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 [[Page 27618]] 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 that 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 [[Page 27619]] 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 itself 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 [[Page 27620]] 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 [[Page 27621]] 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 or food service location 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. With respect to food service locations, the kind of brief stop the Department envisions is one sufficient to pick up a prepared carry-out item or fast-food sandwich, as distinct from eating at a sit-down restaurant. Even in the case of a carry-out or fast-food location, a long line might create an unreasonable delay. 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 [[Page 27622]] 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 modificati