Nondiscrimination on the Basis of Disability in Air Travel, 27614-27687 [08-1228]
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Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations
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
Department of Transportation,
Office of the Secretary.
ACTION: Final Rule.
AGENCY:
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-ofhearing. 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
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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
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.
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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
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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
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).
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(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.
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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
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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 codesharing 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.
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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
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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
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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
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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 singlecountry 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
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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.
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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
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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
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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
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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 policyoriented 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
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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.
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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
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(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
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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
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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 carryon 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
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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
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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
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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 carryout 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
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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 carryon 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
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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
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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 selfassessment 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
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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
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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.
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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
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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
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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
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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 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
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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
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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
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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
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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 transoceanic 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
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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
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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
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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-
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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 on-board
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 one 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
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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 nonspillable. 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
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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 nonspillable 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.
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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 experiencebased 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
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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 nonspillable 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
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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 passengers’
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
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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
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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)
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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
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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
(emphasis added). 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.
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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 passengercarrying service other than an ondemand 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-
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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 FAAcompliant. 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
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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.
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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 Web site
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
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27631
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
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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.
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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 passenger 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 checkin 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
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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 checkin 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, DC to
Johannesburg through Rome, where
carrier A operates the segment from
Washington, DC 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
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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
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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
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27633
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 carryon 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
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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.
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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
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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 carriersupplied 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 inflight 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
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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
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
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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.
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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
rule’s 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.
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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., trans-oceanic) 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.
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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.
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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
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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
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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 disabilityrelated 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
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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 Web sites 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 grounds 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
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27637
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.
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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 nonTTY 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
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disparities and require corrective action
where appropriate.
We are concerned, moreover, that
given the reportedly high cost of
implementing a TTY queuing service
´
vis-a-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
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captioning requirement to informational
displays, and on the technical feasibility
of captioning all safety and
informational videos, DVDs, and other
audio-visual 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 highcontrast 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
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captioning or inset would render the
video ineffective.
All of the carriers and carrier groups
opposed requiring captioning for all inflight 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
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techniques available, a requirement that
displayed text be ‘‘legible’’ or
‘‘readable’’ should suffice. The Center
stated that the next generation of inflight 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
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27639
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 highcontrast 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 prerecorded 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
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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.
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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 deafblind 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
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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-
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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 selfidentifying 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 selfidentification requirement, because we
believe that requiring simultaneous
visual transmission of the information
along with each and every publicaddress 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
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provide the information to selfidentifying 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.
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27641
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
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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 selfidentifying passengers with hearing or
vision impairment as close as possible
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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 nonexhaustive 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 legallymandated 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
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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
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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 https://
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.
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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
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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
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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
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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 costeffective 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
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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
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the proposed rule will be included in
the final rule without change.
Section-by-Section Analysis
The purpose of this portion of the
preamble is to describe each of the
sections of the final rule. The focus of
the descriptions is on new or changed
material.
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382.1 What is the purpose of this Part?
The section is amended to include
foreign carriers.
382.3 What do the terms in this rule
mean?
This definitions section makes several
additions or changes to the definitions
in the current rule. A new definition of
‘‘carrier’’ includes both U.S. and foreign
carriers. A new definition of ‘‘CPAP
machine’’ or continuous positive airway
pressure machine, a type of respiratory
assistive device, has also been added.
There are new definitions of ‘‘direct
threat,’’ which concerns the standard
that may permit carriers to take
otherwise prohibited actions with
respect to passengers with a disability,
and ‘‘equivalent alternative,’’ which
concerns the standard used in 382.10 for
carriers to adopt policies, practices or
other accommodations in lieu of
compliance with the letter of provisions
of the rule. ‘‘Indirect air carrier’’ refers
to a person not directly involved with
the operation of aircraft who sells
transportation services to the general
public other than as the agent of a
carrier. Two agencies concerned with
safety and security aspects of flight are
also recognized in this section: The
Pipeline and Hazardous Materials Safety
Administration of DOT and the
Transportation Security Administration
of the Department of Homeland
Security. In the definition of ‘‘qualified
individual with a disability,’’ the final
rule specifically mentions the term
‘‘passenger with a disability’’ that is
frequently used throughout the rule.
Finally, there is a new definition of
‘‘portable oxygen concentrator’’ (POC), a
device used to provide oxygen to
passengers who need it during flight.
We have also included in the final
rule a definition of ‘‘commuter carrier’’
and ‘‘on-demand air taxi’’ as an
understanding of those terms is
essential to an understanding of the
applicability of section 382.133. The
Department also decided to include a
definition of ‘‘expected maximum flight
duration’’ in the final rule as
commenters had a number of questions
regarding how a carrier should
determine if a passenger has a sufficient
number of batteries available to power
an electronic respiratory assistive
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device. In this final rule, the Department
explains that a carrier may require an
individual to bring enough fully charged
batteries to power the device for not less
than 150% of the expected maximum
flight duration. The definition of
‘‘expected maximum flight duration’’
provides carriers a list of factors that
they must take into account in
determining the total length of a flight.
We proposed in the DHH NPRM to
change the phrase, ‘‘telecommunication
device for the deaf,’’ and its acronym,
‘‘TDD,’’ to ‘‘text telephone’’ and ‘‘TTY,’’
respectively. All who commented on
this proposal supported it, so we are
using the new phraseology in the final
rule.
In the DHH NPRM, we proposed not
to include a definition of ‘‘hard of
hearing, deaf, and deaf-blind’’ in the
rule, reasoning that the definition of an
‘‘individual with a disability’’ is broad
enough to cover individuals who are
hard of hearing, deaf, or deaf-blind. We
did, however, solicit comments on this
issue. We also proposed not to include
a definition of ‘‘captioning,’’ but we
solicited comments on this issue as
well. We further proposed not to
include a definition of ‘‘informational,’’
but we stated in the preamble that we
intended that word to apply to all
videos, DVDs, and other audio-visual
displays that do not qualify as safety or
entertainment displays, including but
not limited to the following: videos,
DVDs, and other audio-visual displays
addressing weather, shopping, frequent
flyer programs, customs and
immigration information, carrier routes,
and other general customer service
presentations. We also solicited
comments on this issue.
Of those who commented on § 382.3,
the carriers and carrier associations
generally opposed a definition of ‘‘hard
of hearing, deaf, and deaf-blind,’’
agreeing with the Department that such
individuals are covered by the
definition of an ‘‘individual with a
disability.’’ They opposed any
definition of ‘‘captioning’’ that might be
difficult to meet or that would not allow
for innovation, and they agreed that
‘‘informational’’ need not be defined.
One of the disability organizations
argued for a definition of ‘‘hard of
hearing, deaf, and deaf-blind’’ in order
to cover the ‘‘entire spectrum’’ of
hearing disabilities. All disability
organizations supported a definition of
captioning that makes all audio-visual
displays easily readable, and they
agreed with the proposal to explain the
purport of ‘‘informational’’ in the
preamble. One of these organizations
asked the Department to add safety,
entertainment, and other materials that
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are communicated to passengers who
can see and hear normally.
The final rule includes a definition of
the term ‘‘indirect air carrier.’’ For
readers’ information, an indirect air
carrier is an entity that indirectly
engages in ‘‘air transportation’’ as that
term is defined in the governing statute
by engaging the services of a ‘‘direct air
carrier’’ (an airline). For example, when
a tour operator or an air freight
forwarder contracts for space on a
wholesale level with an airline and the
tour operator or air freight forwarder
then re-sells space on that flight on a
retail basis, setting his own price and
terms, bearing the entrepreneurial risk
of profit or loss rather than acting as an
agent, and controlling the inventory and
schedule, that tour operator or air
freight forwarder is acting as an
‘‘indirect air carrier’’ as defined in the
statute. Conversely, a retail travel agent
who sells the product of a disclosed
principal (e.g., a seat on a scheduled
airline or on a charter flight), offering it
at the price and terms set by that
principal, is acting as an agent rather
than a principal and is not an indirect
air carrier. Nor are other participants in
the air travel system (concessionaires,
suppliers) considered indirect air
carriers.
The final rule will not include
definitions of ‘‘hard of hearing, deaf,
and deaf-blind’’ or ‘‘informational.’’ The
comments have not persuaded us of the
need for a separate definition to cover
hearing and vision problems: the
definition of an ‘‘individual with a
disability’’ logically includes
individuals with the whole spectrum of
hearing and vision impairments.
Similarly, the comments do not show a
need for a definition of ‘‘informational’’
in the rule. As we stated in the DHH
NPRM, by ‘‘informational’’ displays we
mean all videos, DVDs, and other audiovisual displays that do not qualify as
safety or entertainment displays,
including but not limited to the
following: videos, DVDs, and other
audio-visual displays addressing
weather, shopping, frequent flyer
programs, customs and immigration
information, carrier routes, and other
general customer service presentations.
We exclude safety and entertainment
displays: these are covered elsewhere,
in §§ 382.53, 382.69, and 382.119.
As for captioning, we have
determined that we should consistently
use the term ‘‘high-contrast captioning’’
in the rule and define it in § 382.3 rather
than do so whenever it occurs
elsewhere. In our definition we are
adopting a pragmatic approach.
Defining ‘‘high-contrast captioning’’ as
‘‘captioning that is at least as easy to
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read as white letters on a consistent
black background’’ not only ensures that
captions will be effective but also allows
carriers to use existing or future
technologies to achieve captions that are
as effective as white on black or more
so. Some of the comments indicate that
such technology already exists, and we
think it would be poor public policy not
to allow for innovation and
improvement. The high-contrast
captioning may be either open—i.e., text
that is recorded directly in the video
and cannot be turned off at a user’s
discretion—or closed—i.e., text that can
be toggled on or off at the user’s choice.
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382.5 When are U.S. and foreign
carriers required to begin complying
with the provisions of this Part?
Both U.S. and foreign carriers must
begin complying with the new final rule
on its effective date, which will be a
year from the date on which the rule is
published in the Federal Register. This
phase-in period is intended to give
carriers time to take the steps they need
to comply as well as to submit to the
Department, in a timely fashion,
requests for conflict of laws waivers and
requests for equivalent alternative
determinations.
382.7 To whom do the provisions of
this Part apply?
The rule applies to all U.S. carriers,
regardless of where their operations take
place, except where otherwise provided
in the rule. With respect to foreign
carriers, the application of the rule is
more limited. Only flights of foreign
carriers that begin or end at a U.S.
airport, and aircraft used in these
operations, are covered. A flight means
a continuous journey of a passenger in
the same aircraft or using the same flight
number. The rule provides several
examples of what constitutes a ‘‘flight’’
and what does not. Notably, a foreign
carrier is not covered under the rule
with respect to an operation between
two foreign points, even if, under a
code-sharing arrangement with a U.S.
carrier, the foreign carrier transports
passengers flying under the U.S.
carrier’s code. The U.S. carrier,
however, is covered under the rule with
respect to the passengers traveling
under its code on such a flight, such
that if there is a violation of the Part 382
rights of a passenger traveling under the
U.S. carrier’s code, the Department
would hold the U.S. carrier, not the
foreign carrier, responsible. Finally, a
charter flight on a foreign carrier from
a foreign airport to a U.S. airport and
back would not be covered if the carrier
did not pick up any passengers in the
U.S.
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In the DHH NPRM, we proposed that
the provisions concerning deaf, hard of
hearing, and deaf-blind passengers
apply to all U.S. carrier operations and
to all flights operated by foreign carriers
that begin or end at a U.S. airport. We
proposed that in the case of flights
operated by foreign carriers between
two foreign points that are codeshared
with a U.S. carrier, the service-related
requirements of the rule would apply to
the U.S. carrier whose code is used but
not the aircraft accessibility and
equipment requirements. In addition,
we observed in the Preamble that
§ 382.51, which governs audio-video
displays at airports, carves out an
exception for U.S. and foreign carriers at
foreign airports: § 382.51 applies by its
terms only to U.S. airport terminal
facilities owned, leased, or controlled by
U.S. or foreign carriers. We solicited
comments on the cost and feasibility of
requiring U.S. carriers to modify
equipment, space, or both at foreign
airport terminals that they lease, own, or
control.
Consistent with their comments on
the Foreign Carriers NPRM, foreign
carriers and carrier associations that
filed comments generally criticized the
Department, saying that it had acted
unilaterally in this area. Some
contended that Part 382 should not
apply to flights that are not part of a
single journey to or from the United
States in the same aircraft with the same
flight number. One U.S. carrier, Delta,
expressed concern that its foreign
codeshare partners might find the
requirements so onerous that they will
end the code-sharing rather than
comply, precipitating declines in
service and competition. One
association of U.S. carriers supported
the applicability of Part 382 to foreign
carriers, as did the disability groups and
individuals that commented. The
Regional Airline Association (‘‘RAA’’)
asked the Department to exempt all
aircraft of up to 30 seats from the rule
because its requirements will create
excessive burdens for operators of small
aircraft.
The individuals and disability
organizations that filed comments
generally favored making the rule
applicable to all foreign carrier flights
that originate or end at a U.S. airport
and to foreign carrier flights between
two foreign airports that are codeshared
with a U.S. carrier.
We find unpersuasive the foreign
carriers’ suggestions that in applying
these requirements to them we are
somehow exceeding our authority. As
we explained in the Foreign Carriers
and DHH NPRMs, in the Wendell H.
Ford Aviation Investment and Reform
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Act for the 21st Century (AIR–21),
Congress amended the Air Carrier
Access Act (ACAA) to include foreign
carriers in the prohibition against
discriminating against otherwise
qualified individuals with disabilities.
This rulemaking merely implements
that law. This Department’s authority to
issue regulations that apply to foreign
carriers is well-established. This general
issue is discussed at greater length in
the ‘‘Response to Comments’’ portion of
the preamble above. In that section, the
Department explains the final rule’s
approach to the issue of code-sharing,
which applies to deaf and hard-ofhearing issues as well as to other
provisions of Part 382.
The service-related requirements
regarding deaf, hard of hearing, and
deaf-blind passengers that apply to U.S.
carriers on codeshare flights operated by
their foreign-carrier partners between
two foreign points are those listed in
§ 382.119. Although we are not applying
these requirements to the foreign carrier
operating these flights, the U.S. carrier
will be subject to enforcement action if
the foreign carrier fails to provide the
required information promptly to
‘‘qualified individuals with a disability
who identify themselves as needing
visual and/or hearing assistance’’ and
whose tickets bear the code of the U.S.
carrier. The aircraft-accessibility
requirements set forth in § 382.69 do not
apply on such flights. Part 382 has no
equipment requirements specific to
deaf, hard of hearing, and deaf-blind
passengers.
As for RAA’s request, the evidence in
the record does not provide a basis for
a blanket exemption from Part 382 for
aircraft with 30 or fewer seats. If an
airport or aircraft operator does not use
a particular technology, sections
concerning that technology would not
apply. Normal provisions concerning
exemptions from Office of the Secretary
rules (see 49 CFR Part 5) could be used
if a carrier or airport believes an
exemption is needed in a particular
situation.
382.9 What may foreign carriers do if
they believe a provision of a foreign
nation’s law prohibits compliance with
a provision of this Part?
This provision creates a conflict of
laws waiver mechanism to give
appropriate consideration to
requirements of foreign law applicable
to foreign carriers. It is important to note
that this mechanism is intended to
apply only to genuine conflicts with
legally binding foreign legal mandates.
A foreign law that requires a foreign
carrier to do something prohibited by
this rule, or that prohibits a foreign
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carrier from doing something required
by this rule, is an appropriate subject for
a conflict of laws waiver. A foreign
carrier’s or foreign government’s policy,
authorized practice, recommendation,
or preference is not. However, if a
foreign government officially informs a
carrier that it plans to take enforcement
action (e.g., impose a civil penalty)
against a carrier for failing to implement
a provision of a government policy,
guidance document, or
recommendation, the Department would
view the enforcement action as creating
a legal mandate that could be addressed
under this section.
If, as a legal matter, the foreign carrier
has no choice but to act contrary to this
rule, the Department would grant a
waiver. If the foreign carrier, as a matter
of law, has any discretion in the matter,
it must exercise that discretion by
complying with this rule, even if
contrary to the carrier’s policy or the
recommendation of a foreign
government, and the Department would
not grant a waiver. A waiver request
would have to include the carrier’s
proposal for an alternative means of
achieving the rule’s objectives with
respect to any provision that is waived.
The Department wants to ensure that
waiver requests are submitted and
granted or denied in a timely manner,
avoiding the dilemma for foreign
carriers of having to choose between
compliance with this rule and with
conflicting foreign laws when the rule
goes into effect a year after its
publication. We encourage foreign
carriers to make any waiver requests
within 120 days of the rule’s
publication. The Department commits to
deciding requests made in this time
period before the rule goes into effect.
If we are late, then the foreign carrier
may continue to carry out the policy or
practice involved until we do respond,
and if the request is denied the
Department would not take any
enforcement action against the carrier
with respect to activities that took place
prior to the denial. Even with respect to
waiver requests submitted after the 120day period, the Department will do its
best to respond before the effective date
of the rule. Again, the carrier can choose
to continue to follow the policy or
practice that is the subject of the request
until the Department does respond.
However, if such a request is denied, the
carrier risks enforcement action with
respect to the period between the
effective date of the rule and the date of
the Department’s response. The
Department has established this twostage waiver consideration process to
help avoid a situation in which a foreign
carrier would delay submission of a
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waiver request until shortly before the
effective date of the rule, in an attempt
to delay compliance with the rule while
the Department considered its late-filed
request.
We also recognize that new foreign
legal mandates can arise. If a new
mandate is created after the initial 120day period following publication of the
rule (not an existing legal mandate that
is subsequently discovered or goes into
effect subsequently), then a foreign
carrier may submit a waiver request and
continue to implement the policy or
practice involved until the Department
responds. In this case, the carrier would
not be subject to enforcement action for
the period prior to the Department’s
response.
This section also notes that if a
foreign carrier submits a frivolous or
dilatory waiver request, has not
submitted a waiver request with respect
to a particular policy or practice, or
continues to follow a policy or practice
concerning which a waiver request has
been denied, the carrier could be subject
to DOT enforcement action. For
example, if the Department initiates
enforcement action because we believe
a foreign carrier’s practice is contrary to
the rule, the carrier could not defend
against the enforcement by claiming a
conflict with an existing foreign legal
mandate if the carrier had not
previously submitted a waiver request
concerning the practice, or the request
had been denied.
382.10 How does a U.S. or foreign
carrier obtain a determination that it is
providing an equivalent alternative to
passengers with disabilities?
While the concept of equivalent
facilitation has been a part of DOT
Americans with Disabilities Act (ADA)
rules since 1991 (see 49 CFR 37.7–37.9),
it has not previously been part of ACAA
rules. The use of ‘‘equivalent
alternative’’ in this rule is somewhat
broader than the use of ‘‘equivalent
facilitation’’ in DOT or DOJ ADA rules
or in the Americans with Disabilities
Act Accessibility Guidelines issued by
the U.S. Access Board, which focused
on ‘‘hardware’’ modifications to
vehicles and facilities. In the ACAA
context, equivalent alternative can also
refer to policies, practices, or other
accommodations to passengers with
disabilities.
The key point of this section is that,
in order to be viewed as an equivalent
alternative, a policy, practice,
accommodation, or piece of equipment
must really provide substantially
equivalent accessibility to passengers
with disabilities than compliance with a
provision of the rule. It isn’t enough for
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a carrier’s proposed alternative to be
different from a provision of the rule.
Alternatives that provide less
accessibility than the provisions of the
rule, or that impose greater burdens on
passengers with disabilities, cannot be
considered an equivalent alternatives.
Equivalent alternatives also pertain only
to specific requirements of the rule. The
Department would not entertain an
equivalent alternative request that asked
us to find that an entire foreign
regulatory scheme was equivalent to
this rule, for example.
Similar to the conflict of laws waiver
provision, the equivalent alternative
provision is structured to provide an
incentive to carriers to file timely
requests. If a carrier submits its request
within 120 days of the publication date
of this Part, the Department will try to
respond before the effective date of the
rule. The carrier can implement the
policy or practice it requests as an
equivalent alternative beginning on the
effective date of the rule until the
Department does respond. (A U.S.
carrier subject to the current rule could
not begin implementing an equivalent
alternative it had requested within the
120-day time period until the new rule
goes into effect, since the current rule
does not provide for equivalent
alternatives.) If a carrier submits its
request after the 120-day period
following publication, the carrier must
comply with the provision of the
regulation pending the Department’s
response.
382.11 What is the general
nondiscrimination requirement of this
Part?
382.13 Do carriers have to modify
policies, practices, and facilities to
ensure nondiscrimination?
These sections are very similar to
section 382.7 of the current regulation.
One difference is that the new rule
specifies that carriers may require
preboarding as a condition of receiving
certain seating or in-cabin stowage
accommodations. The requirement to
make modifications of policies,
practices, and facilities has been broken
out into a separate section. This
requirement recognizes that there can be
times when, in order to provide
nondiscriminatory service to a
particular individual, carriers must
change or make an exception to an
otherwise acceptable general policy or
practice for that individual. It should be
emphasized that this provision is not
intended to require carriers to make
generally applicable changes in policies
for all passengers, or all passengers with
disabilities. The provision focuses on
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the carrier doing what it needs to do—
short of incurring an undue burden or
making a fundamental alteration in its
services—to make sure that a passenger
with a disability can take the trip for
which he or she is ticketed.
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382.15 Do carriers have to make sure
that contractors comply with the
requirements of this Part?
It is a basic principle of
nondiscrimination law that while a
regulated party can contract out its
functions, it cannot contract away its
responsibilities. Consequently, a carrier
that contracts out any functions
concerning passengers with disabilities
must ensure that the contractors comply
with the provisions of this Part, just as
if the carrier were performing the
functions itself. Assurances and contract
conditions in the agreements between
carriers and their contractors are a key
measure to carriers’ compliance with
this section. Noncompliance with these
contract conditions by the contractor
must be stated in the contract as being
a material breach of the contract. The
Department expects carriers to monitor
the performance of contractors to ensure
that the contractors’ performance
complies with the requirements of this
Part and to take appropriate contract
action against contractors that breach
their contracts by failing to comply. The
Department would view a carrier’s
failure to do so as noncompliance with
the carrier’s obligations under this rule,
and a carrier cannot defend against an
enforcement action by the Department
by claiming that a contractor erred. The
carrier remains responsible.
382.19 May carriers refuse to provide
transportation on the basis of disability?
This section continues, and extends to
foreign carriers, the key
nondiscrimination requirement of the
ACAA and the existing Part 382. With
narrow exceptions, a carrier is
prohibited from denying transportation
to a passenger on the basis of disability.
Carriers retain their authority, under 49
U.S.C. 44902 and 14 CFR 121.533, to
deny transportation to any passenger,
disabled or not, on the basis of safety or
whose carriage would violate FAA or
TSA requirements.
If the carrier’s reason for excluding a
passenger on the basis of safety is that
the individual’s disability creates a
safety problem, the carrier’s decision
must be based on a ‘‘direct threat’’
analysis. This concept, grounded in the
Americans with Disabilities Act, calls
on carriers to make an individualized
assessment (e.g., as opposed to a
generalization or stereotype about what
a person with a given disability can or
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can’t do) of the safety threat the person
is thought to pose. In doing so, the
carrier must take into account the
nature, duration and severity of the risk;
the probability that the potential harm
will actually occur; and whether
reasonable mitigating measures can
reduce the risk to the point where the
individual no longer poses a direct
threat. In using its authority to make a
direct threat determination and exclude
a passenger, a carrier must not act
inconsistently with other provisions of
Part 382. Direct threat determinations
must not be used as a sort of de facto
exception to specific requirements of
this Part (e.g., the prohibition on
number limits).
Exclusion of a passenger because his
disability-related appearance or
involuntary behavior may offend,
annoy, or inconvenience other
persons—as distinct from creating a
direct threat to safety—is an important
part of this nondiscrimination mandate.
The rationale for this requirement was
stated in the preamble to the 1990
ACAA rule, and it remains valid (see 55
FR 8027; March 6, 1990).
382.21 May carriers limit access to
transportation on the basis that a
passenger has a communicable disease
or other medical condition?
As a general matter, carriers may not
exclude or impose other requirements or
conditions on a passenger on the basis
that the passenger has a communicable
disease. However, if the passenger poses
a direct threat, the carrier may take
appropriate action to safeguard the
health and safety of other persons on the
flight.
The Department has added regulatory
language codifying the Department’s
guidance on how airlines should
determine whether someone’s disease
presents a direct threat. To be a direct
threat, a condition must be both able to
be readily transmitted by casual contact
in the course of a flight AND have
severe health consequences (e.g., SARS,
active tuberculosis). If a condition is
readily transmissible but does not
typically have severe health
consequences (e.g., the common cold),
or has severe health consequences but is
not readily transmitted by casual
conduct in the course of a flight (e.g.,
HIV), its presence would not create a
direct threat. Carriers may also rely on
directives issued by public health
authorities (e.g., in the context of a
future flu pandemic).
If a passenger who is deemed to
present a direct threat cannot travel at
his or her scheduled time as a result, the
carrier must allow the passenger to
travel at a time up to 90 days from the
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date of postponed travel at the same
price or, if the passenger prefers,
provide a refund. Consequently,
cancellation or rebooking fees or
penalties would not apply in this
situation, and the passenger would not
be subject to any fare increases that may
occur in the meantime or any increase
in that passenger’s fare due to the nonavailability of a seat in the fare class on
his or her original ticket.
382.23 May carriers require a
passenger with a disability to provide a
medical certificate?
Like the medical certificates section
in the current rule, this section
generally prohibits carriers from
requiring medical certificates (i.e.,
written statements from a doctor saying
that a passenger is capable of
completing a flight safely, without
requiring extraordinary medical
assistance during the flight). People
with disabilities have functional
impairments with respect to walking,
seeing, hearing etc. These impairments,
by and large, are not sicknesses
requiring medical treatment or clearance
(though, of course, persons with
disabilities can have illnesses like
everyone else). At the same time,
airlines and their personnel are not
medical service providers, and it is not
reasonable to expect them to perform
medical services. This provision is
intended to balance these realities.
Oxygen users and, people traveling in
a stretcher or incubator can be required
to produce a medical certificate. The
situation that most commonly would
result in a call for a medical certificate
is one in which carrier personnel have
a reasonable doubt that someone can
complete the flight safely, without
requiring extraordinary medical
assistance. In such a case, carrier
personnel can require a medical
certificate in order to provide assurance
that the passenger will not need such
assistance. The rule clarifies that a
medical certificate must be recent
(within 10 days of the passenger’s
departing flight).
There is also a relationship between
this section and the communicable
diseases provision. Section 382.21(a)(4)
allows a carrier to require a medical
certificate if the carrier determines that
the passenger has a communicable
disease that could pose a direct threat.
Under section 382.23(c), the passenger
would then have to produce a medical
certificate, to the effect that the
passenger’s condition would not be
communicable to other persons during
the normal course of the flight. If it is
potentially transmissible during the
flight but this can be prevented if
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certain conditions or precautions are
implemented, the certificate would have
to describe those conditions or
precautions. Unlike the situation with
respect to medical certificates under
paragraph (b)(3), a medical certificate in
the situation of a communicable disease
under paragraph (d) would have to be
dated within 10 days of the flight for
which it is presented (not 10 days prior
only to the passenger’s initial departing
flight). Under paragraph 382.21(c), if the
section 382.23(c)(2) medical certificate
provides measures for preventing the
transmission of a disease, the carrier
must provide transportation to the
passenger—carrying out the prescribed
measures—unless the carrier determines
that it is unable to carry out the
measures. If the carrier is unable to do
so, it can deny transportation to the
passenger. In this event, the carrier’s
written explanation to the passenger
under section 382.21(e) would include
an explanation of why it was not able
to carry out the measures identified in
the medical certificate.
A carrier may elect to subject a
passenger with a medical certificate to
additional medical review (e.g., by the
carrier’s physician) if the carrier
believes either that there has been a
significant adverse change in the
passenger’s medical condition since the
issuance of the medical certificate or
that the certificate significantly
understates the passenger’s risk to the
health of other persons on the flight. If
this additional review shows that the
passenger is unlikely to be able to
complete the flight without
extraordinary medical assistance or
would pose a direct threat to other
passengers, the carrier could,
notwithstanding the medical certificate,
deny or restrict the passenger’s
transportation.
We also note that, under section
382.117(e), airlines can require
passengers traveling with emotional
support or psychiatric service animals
to provide certain documentation. This
information is not a medical certificate
in the sense articulated in section
382.23, but airlines are entitled to obtain
this documentation as a condition of
permitting the emotional support or
psychiatric service animal to travel in
the cabin with the passenger.
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382.25 May a carrier require a
passenger with a disability to provide
advance notice that he or she is
traveling on a flight?
382.27 May a carrier require a
passenger with a disability to provide
advance notice in order to obtain
specific services in connection with a
flight?
Carriers may not require a passenger
with a disability to provide advance
notice of the fact that he or she is
traveling on a flight. That is, a carrier
cannot say to a passenger, in effect,
‘‘You have a disability; therefore, you
must let me know in advance that you
are going to fly on my aircraft, Flight
XXX.’’
On the other hand, there is a series of
accommodations that many passengers
with disabilities may need or want that
carriers reasonably require time to
arrange. For these services, carriers may
require up to 48 hours’ advance notice
(i.e., 48 hours before the scheduled
departure time of the flight) AND a
check-in time one hour before the
check-in time for the general public.
That is, if passengers generally are told
to arrive at the gate one hour before the
scheduled departure time of the flight to
check in, the carrier may tell passengers
seeking one of these listed
accommodations to check in two hours
before the scheduled departure time for
the flight. If the passenger with a
disability meets the advance notice and
check-in time requirements, the carrier
must provide the requested
accommodation. If not, the carrier must
still provide the accommodation if it
can do so by making reasonable efforts,
without delaying the flight.
Most of the services or
accommodations for which a carrier can
require advance notice are the same as
under the existing regulation (e.g.,
transportation of an electric wheelchair
on a flight scheduled to be made on an
aircraft with fewer than 60 seats,
accommodation for a group of 10 or
more passengers with a disability who
make reservations to travel as a group).
It is important to note that, with respect
to the onboard use of supplemental
oxygen, advance notice can be required
of a passenger whether the carrier
provides the oxygen (i.e., via POC or
containerized oxygen,) or the passenger
brings his or her own POC for use
during the flight. It should also be noted
that when requesting carrier-supplied
supplemental oxygen, advance notice of
up to 48 hours for domestic flights and
up to 72 hours for international flights
may be required.
There are a few new situations in
which the rule permits carriers to
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require advance notice. These include
transportation of an emotional support
or psychiatric service animal,
transportation of any service animal on
a flight scheduled to take eight hours or
more, and accommodation of an
individual who has both severe vision
and hearing impairments.
382.29 May a carrier require a
passenger with a disability to travel with
a safety assistant?
The terminology of this section has
been changed from ‘‘attendant’’ to
‘‘safety assistant’’ to more accurately
reflect the role of the person
accompanying the passenger. A safety
assistant is not a personal care attendant
who looks after the personal care needs
of a passenger. A carrier cannot require
a personal care attendant to travel with
a passenger with a disability. Rather, the
safety assistant is someone who would
assist the passenger to exit the aircraft
in case of an emergency evacuation or
to establish communication with carrier
personnel for purposes of the required
safety briefing. People like passenger
volunteers, an individual selected by
the passenger, or deadheading crew
members remain appropriate candidates
to act as safety assistants.
This section generally follows the
model of the corresponding section of
the existing regulation. However, with
respect to the situation of a passenger
with a severe mobility impairment, the
criterion for permitting the carrier to
require a safety assistant has been
clarified to address circumstances
where the passenger is unable to
physically assist in his or her own
evacuation. This change is made to
avoid potential confusion that a
passenger could assist in his or her own
evacuation simply by calling for help.
The ‘‘Response to Comments’’ section
of the preamble describes in greater
detail other changes, including a new
advance notice requirement, that would
apply to passengers who have both
severe vision and hearing impairments.
In section 382.29(b)(4), it is mentioned
that a passenger with both severe
hearing and vision impairments is
responsible for explaining how he or
she can establish communication
adequate to permit transmission of the
safety briefing and to enable the
passenger to assist in his or her own
evacuation of the aircraft in the event of
an emergency. The new 48-hours’
advance notice requirement is intended
to give the carrier time to make any
arrangements necessary to accommodate
the passenger following this
explanation. The language in section
382.29(b)(4) concerning the ability of a
passenger to assist in his or her own
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evacuation refers to being able to
establish, at or around the time of the
safety briefing, a means by which the
passenger can receive instructions
concerning an emergency evacuation.
For example, the passenger and air
carrier could arrange a hand or touch
signal that the passenger knows means
‘‘get up and follow passengers to an
emergency exit.’’
When a passenger with a disability
cannot travel on a flight because there
is no seat available for a safety assistant
that the carrier has determined to be
necessary, the passenger must be
compensated in an amount to be
calculated under the Department’s
denied boarding compensation (DBC)
rule, 14 CFR Part 250, where Part 250
applies. The DBC rule applies to both
U.S. and foreign carriers with respect to
domestic and international scheduledservice nonstop flight segments
departing from a U.S. airport. It does not
apply to flights departing from a foreign
airport, whether operated by a U.S. or
foreign carrier.
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382.31 May carriers impose special
charges on passengers with a disability
for providing services and
accommodations required by this rule?
Carriers may not impose charges on
passengers for accommodations
required by the rule. However, if a
carrier voluntarily provides a service
that this rule does not require, the
carrier may charge a passenger with a
disability for that service.
The issue of carrier web site
accessibility requirements has been
deferred to a forthcoming SNPRM.
While that issue is being considered, the
Department is adding a provision to
address potentially discriminatory
effects of their web site-related policies
on passengers with disabilities who
cannot use a carrier’s web site because
it is not accessible. If a carrier charges
people who make reservations by phone
or in person more than people who
make reservations on the web site, this
surcharge cannot be applied to persons
with disabilities who must make
reservations by another means because
the web site is inaccessible to them.
Likewise, if there are ‘‘web only’’
discounts or special offers made
available to passengers on the carrier’s
web site, passengers with disabilities
who cannot use the web site must be
offered the same terms when they seek
to book a flight by other means.
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382.33 May carriers impose other
restrictions on passengers with a
disability that they do not impose on
other passengers?
382.35 May carriers require passengers
with a disability to sign waivers or
releases?
Carriers must not impose
requirements or restrictions on
passengers with a disability that they do
not impose on other passengers, except
where this regulation explicitly permits
the carrier to do so (e.g., advance notice
for certain services). We hope that many
of the practices specifically banned in
this section are only of historical
interest (e.g., making passengers with
disabilities sit on blankets or restricting
such passengers to so-called ‘‘corrals’’ in
terminals), but we believe they are still
useful examples of the sort of
discriminatory treatment that is
unacceptable in the context of a
nondiscrimination statute. Waivers of
liability or releases either for passengers
themselves or for loss or damage of
wheelchairs and other assistive devices
are among the forbidden practices,
although as we have stated in the past,
carriers are free to note pre-existing
damage to an assistive device to the
same extent that carriers do this with
respect to other checked baggage.
382.41 What flight-related information
must carriers provide to qualified
individuals with a disability?
This provision is very similar to the
corresponding provision of the existing
rule. Carriers must provide information
about the accessibility features of
aircraft (e.g., the presence and location
of seats that can be accessed through
movable armrests, and seats not
available to passengers with
disabilities). In addition, carriers must
provide information about any service
limitations in accommodating a
passenger with a disability. When levelentry boarding is not available on a
particular flight, carriers must also
provide information about boarding
assistance requiring the use of a ramp or
lift to all passengers who indicate that
they will use a wheelchair for boarding,
whether or not they specifically ask for
the information.
As a general matter under Part 382,
when an agent acting on behalf of an
airline provides inaccurate information
to a passenger with a disability
concerning a disability-related
accommodation, in most instances the
airline will be responsible for any
resulting information-related violation
of the law. It should also be noted that
when a carrier agrees to provide a
service not specifically required under
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this Part to accommodate a particular
passenger’s disability, the carrier is
obliged to provide that service to the
passenger or risk being found in
violation of section 382.41. For
example, if a carrier informs a passenger
that it will accommodate his or her
peanut allergy by not serving peanuts on
his or her flight itinerary, the carrier
must ensure that peanuts are not served
on those flights or it will be in violation
of section 382.41.
382.43 Must information and
reservation services of carriers be
accessible to individuals with hearing
and vision impairments?
The ‘‘Response to Comments’’ section
of the preamble discusses the
requirements that will apply to carriers
with respect to TTY or telephone relay
communication between users of TTYs
and carriers. As noted in that
discussion, the purpose of § 382.43 is to
put deaf and hard of hearing passengers
on a substantially equivalent footing
with the rest of the public in their
ability to communicate with carriers by
telephone regarding information and
reservations. We aim to ensure
substantial equivalence in both access to
any carrier and wait time if an agent is
not available when a connection is first
made.
Carriers may meet this requirement by
using TTYs themselves, but they may
also do so by means of voice relay or
any other available technology that
permits TTY users to communicate with
them. This requirement is set forth in
§ 382.43(a). We are also adding a new
access requirement in § 382.43(a)(4) to
ensure that deaf and hard of hearing
passengers are informed how to reach
carriers by TTY: In any medium in
which a carrier states the telephone
number of its information and
reservation service for the general
public, it must also state its TTY
number if it has one, or if not, it must
specify how TTY users can reach the
information and reservation service
(e.g., via call relay service). Such media
include, for example, web sites, ticket
jackets, telephone books, and print
advertisements.
Based on comments to the docket, we
are also adding § 382.43(b), which states
that the requirements of § 382.43(a) do
not apply to carriers in any country in
which the telecommunications
infrastructure does not readily permit
compliance.
Carriers that provide written
information to passengers must ensure
that that this information can be
communicated effectively to passengers
with vision impairments. This could be
done through alternative formats or,
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especially for brief or compact pieces of
information that can be comprehended
and remembered effectively by a
listener, through verbal communication
(e.g., the time and date of a specific
flight, as distinct from the airline’s
entire timetable for a city pair).
For foreign carriers, these
requirements apply only with respect to
information and reservation services for
flights covered by section 382.5. With
respect to TTY services, the requirement
applies to foreign carriers only with
respect to flights for which reservation
phone calls from the U.S. are accepted.
Please see the ‘‘Response to
Comments’’ section for further
information about the requirement that
a copy of Part 382 be made available in
airports served by carriers subject to this
rule.
rwilkins on PROD1PC63 with RULES2
382.45 Must carriers make copies of
this Part available to passengers?
U.S. carriers must keep a copy of Part
382 at each airport they serve and make
it available to anyone who asks for it.
Foreign carriers must do this at any
airport serving a flight that begins or
ends at a U.S. airport. An Englishlanguage copy of the rule is sufficient
for this purpose. Carriers are not
required to translate the document into
other languages. Although carriers are
not required to make a copy of Part 382
available in accessible formats at
airports, carriers that provide
information to the public on a website
must place information on that website
telling passengers that they can obtain
an accessible copy of the rule from DOT.
382.51 What requirements must
carriers meet concerning the
accessibility of airport facilities?
The principal substance of airport
facility accessibility requirements is the
same for both U.S. and foreign carriers.
Certain aspects of the requirements
differ depending on whether the facility
in question is located in the U.S. or in
a foreign country.
U.S. facilities that a carrier owns,
controls, or leases must meet
requirements applicable to Title III
facilities under the Americans with
Disabilities Act. The requirements are
those of the Americans with Disabilities
Act Accessibility Guidelines (ADAAG),
as incorporated in Department of Justice
(DOJ) ADA regulations implementing
Title III. There must be an accessible
path between gate and boarding area
when level entry boarding is not
available to an aircraft. The ADAAG
reference in paragraph (a)(2) is to the
former version of the ADAAG, which is
still the version incorporated in the DOJ
rules. When DOJ incorporates the new
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version of ADAAG in their Title III
rules, we will update this reference.
Inter-terminal and intra-terminal
transportation owned, leased, or
controlled by a carrier at a U.S. airport
must meet DOT ADA rules. Since DOT
has already incorporated the new
version of ADAAG into its regulations,
the new ADAAG’s provision will apply
to any features covered by the DOT
rules. One new requirement at U.S.
airports is to provide, in cooperation
with the airport operator, animal relief
areas for service animals that
accompany passengers who are
departing, arriving, or connecting at the
facility.
At foreign airports, to which the
ADAAG do not apply, Part 382 applies
a performance requirement to make sure
that passengers with a disability can
readily use the facilities the carrier
owns, leases, or controls at the airport.
For foreign carriers, this requirement
applies only to terminal facilities that
serve flights that begin or end in the U.S
(i.e., those covered by section 382.5).
Both U.S. and foreign carriers must meet
the requirements at foreign airports
within one year after the effective date
of the rule. As noted elsewhere in the
preamble, carriers may rely on the
facility accessibility services provided
by airport operators at foreign airports,
supplementing where needed to ensure
full compliance with this rule.
In the DHH NPRM, we proposed
several requirements for U.S. and
foreign carriers at terminal facilities that
they own, lease, or control at any U.S.
airport. First, we proposed a
requirement that carriers enable any
existing captioning feature (preferably
high-contrast) on all televisions and
other audio-visual displays providing
safety, information, or entertainment
content in those portions of the airport
that are open to the general public and
that they keep this captioning feature on
at all times. Second, we proposed a
requirement that in areas of restricted
passenger access such as club rooms,
carriers enable any existing captioning
function on televisions and other audio
and visual displays upon request. Third,
we proposed a requirement that carriers
replace any televisions and other audiovisual displays that do not have a highcontrast captioning function with ones
that do as these devices are replaced in
the normal course of operations or when
the airport facilities undergo substantial
renovation or expansion. Fourth, we
proposed a requirement that newly
acquired televisions and other audiovisual displays be equipped with highcontrast captioning capability. We
solicited comments both on these
proposals and on whether any carriers
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have leases for terminal facilities at a
U.S. airport whereby the airport retains
control over the televisions and other
audio-visual displays in that facility. If
so, we said, we would consider
requiring the carriers and airports to
work together to enable captioning on
equipment that has captioning
capability and to replace equipment that
does not have high-contrast captioning
capability with equipment that does.
(We also noted that all televisions with
screens of at least 13 inches made or
sold in the U.S. since July 1, 1993, have
been required to have captioning
capabilities.) We further solicited
comment on whether televisions and
other audio-visual displays equipped
with captioning features would
necessarily have high-contrast
captioning (e.g., white letters on a
consistent black background), whether
such equipment may have some type of
captioning other than ‘‘high-contrast,’’
and whether the availability of highcontrast captioning, as opposed to lowor medium-contrast captioning, depends
on the age, cost, or screen size of the
equipment.
None of the comments addressed the
question of high- versus medium- versus
low-contrast captioning. Most of the
carriers and carrier groups that filed
comments claimed not to have control
over the audio-visual equipment at their
terminal facilities. The individuals and
disability organizations that filed
comments strongly objected to different
standards for audio-visual equipment in
areas open to all passengers versus areas
with restricted access, and all support
captioning on all such equipment at all
times.
We are modifying the language of the
proposed § 382.51 to make our
intentions clearer, and based on the
comments, we are also adding language
that places joint responsibility for
compliance on the carrier and the
airport in cases where the latter has
control over the televisions and other
audio-visual equipment that this section
addresses. (To this end, we will also be
amending 49 CFR Part 27, Subpart B, to
codify the requirement for airports.) We
have determined, based both on the
comments from individuals and
disability groups and on the lack of
objections from carriers and carrier
groups, that the same standard should
apply to all equipment, whether it be in
areas to which the general public has
access or in areas to which access is
limited. If such equipment has
captioning capability, that capability
must be enabled at all times. These
requirements do not apply to either U.S.
or foreign carriers at foreign airports.
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382.53 What information must carriers
give individuals with a vision and/or
hearing impairment at airports?
With some variations for the
situations of U.S. and foreign airports,
and U.S. and foreign carriers, the basic
point of this section is that at each gate,
ticketing area, and customer service
desk that a carrier owns, leases, or
controls, a carrier must ensure that
passengers with a disability who
identify themselves as persons needing
visual or hearing assistance have
prompt access to the same information
provided to other passengers. This
requirement applies to a wide variety of
information, concerning such subjects
as flight safety, ticketing, flight check-in,
flight delays or cancellations, schedule
changes, boarding information,
connections, gate assignments, checking
baggage, volunteer solicitation on
oversold flights (e.g., offers of
compensation for surrendering a
reservation), individuals being paged by
airlines, aircraft changes that affect the
travel of persons with disabilities, and
emergencies (e.g., fire, bomb threat).
382.55 May carriers impose security
screening procedures for passengers
with disabilities that go beyond TSA
requirements or those of foreign
governments?
All passengers are subject, at U.S.
airports, to TSA screening procedures
and, at foreign airports, to screening
procedures established by the law of the
country in which the airport is located.
If a carrier wants to go beyond those
mandated procedures, it must make sure
that it treats passengers with disabilities
equally with other passengers. Security
personnel may examine assistive
devices and must provide, on request,
private screenings for passengers with
disabilities requiring secondary
screening.
rwilkins on PROD1PC63 with RULES2
382.57 What services must carriers
provide if their automated kiosks are
inaccessible?
The Department will seek further
comment on kiosk accessibility issues in
an SNPRM. Meanwhile, if existing
kiosks are inaccessible (e.g., to
wheelchair users because of height or
reach issues, to visually-impaired
passengers because of issues related to
visual displays or touch screens),
carriers must ensure equal treatment for
persons for disabilities who cannot use
them. This can be done in a variety of
ways. For example, a passenger who
cannot use the kiosk could be allowed
to come to the front of the line at the
check-in counter, or carrier personnel
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could meet the passenger at the kiosk
and help the passenger use the kiosk.
382.61 What are the requirements for
movable aisle armrests?
This section is very similar to the
movable aisle armrest provisions of the
present rule. Armrests on at least half
the aisle seats in rows containing seats
in which passengers with mobility
impairments are permitted to sit under
FAA rules must be movable. If there are
no seats in which a person with a
mobility impairment can sit under FAA
rules (e.g., an exit row), then that row
does not constitute part of the base from
which the calculation of half the rows
is made, and of course such a row is not
one in which a movable armrest is
needed.
The provision clarifies that movable
aisle armrests must be provided
proportionately in all classes of service.
As discussed elsewhere in the preamble,
if the seats in a given class of service,
such as first class, can be accessed by a
wheelchair user without a movable aisle
armrest being provided, the carrier may
request an equivalent alternative
determination. Consistent with section
382.41, carriers must find ways of
ensuring that passengers with
disabilities can locate specific seats they
can access with movable armrests.
A carrier wishing to submit an
equivalent alternative request
concerning movable armrests must
show the Department that, in fact,
persons with mobility impairments
using aisle and boarding wheelchairs
can transfer horizontally into a given
seat without being lifted over an armrest
or other obstacle. The Department
would not make such a determination
based solely on the representation of the
carrier that such transfers were possible.
‘‘Show your work’’ is the appropriate
maxim. Diagrams could be one useful
part of such a showing. What the
Department recommends, however, is a
video of a demonstration showing
carrier personnel actually transferring
passengers with disabilities—preferably,
passengers of various sizes—into the
seat or row in question from an aisle or
boarding chair.
Carriers are not required to retrofit
cabins of existing aircraft to install
movable armrests. However, if a carrier
replaces any of an aircraft’s aisle seats
with newly manufactured seats, at least
half the replacement seats must have
movable armrests. For example, if a
carrier replaces four aisle seats with
newly manufactured seats, then two of
these seats have to have movable
armrests. If the carrier is replacing an
odd number of seats, a majority of the
newly manufactured aisle seats installed
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must have movable armrests. For
example, if the carrier is replacing five
old aisle seats with newly manufactured
seats, at least three of the newly
manufactured aisle seats must have
movable armrests. The Department does
not intend this provision to require
carriers to have more than 50% movable
armrests in the cabin, however. For
example, suppose an aircraft has 40
aisle seats, 20 of which have movable
armrests. The carrier decides to replace
five aisle seats that do not have movable
armrests with newly manufactured
seats. These new seats would not have
to include movable armrests.
The timing of the application of these
requirements is as follows: Foreign
carriers must comply with ‘‘new
aircraft’’ requirements with respect to
planes ordered after the effective date of
this Part or delivered more than one
year after the effective date of this Part.
Foreign carriers must comply with the
requirement for replacement seats
(paragraph (e)) beginning on the
effective date of the rule. U.S. carriers
are already subject to the requirements
of this section, except the
proportionality requirement (paragraph
(c)) with respect to aircraft ordered after
April 5, 1990 or delivered after April 5,
1992. When we say ‘‘new aircraft’’ in
this context, we mean aircraft that were
new at the time they were ordered by or
delivered to the U.S. carrier. U.S.
carriers will have to comply with
paragraph (c) for new aircraft ordered
after the effective date of this Part or
which are delivered more than one year
after the effective date of this Part. With
respect to the purchase of used aircraft,
in this section and similar places, the
date the aircraft was originally ordered
from the manufacturer or initially
delivered by the manufacturer
determines whether the aircraft is
subject to the aircraft accessibility
requirements of this Part.
382.63 What are the requirements for
accessible lavatories?
As under the present rule, only
aircraft with more than one aisle must
have an accessible lavatory. U.S. carriers
are already subject to these
requirements for new aircraft they
ordered after April 5, 1990, or which
were delivered after April 5, 1992.
Foreign carriers must comply with
respect to new aircraft ordered after the
effective date of the rule or delivered
more than one year after the effective
date.
Also, if a carrier replaces a lavatory on
an aircraft with more than one aisle it
must replace the lavatory with an
accessible unit. A carrier need not have
more than one accessible lavatory on an
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aircraft, however. This requirement
already applies to U.S. carriers for new
aircraft they ordered after April 5, 1990,
or which were delivered after April 5,
1992. It will begin to apply to foreign
carriers on the effective date of the rule.
rwilkins on PROD1PC63 with RULES2
382.65 What are the requirements
concerning on-board wheelchairs?
These requirements are also patterned
on the existing rule. In aircraft with
more than 60 passenger seats, carriers
must provide an on-board wheelchair if
the aircraft has an accessible lavatory. In
an aircraft that has 60 or more seats that
does not have an accessible lavatory, the
carrier must provide an on-board
wheelchair on the request, with advance
notice, of a person who can use the
inaccessible lavatory but cannot reach it
from his or her seat without use of an
on-board wheelchair. U.S. carriers are
already subject to these requirements.
Foreign carriers must meet these
requirements by a date one year after the
rule’s effective date.
Under the current rule, the
Department had granted exemptions to
the requirement for providing a
requested on-board wheelchair to two
aircraft models, the ATP and the ATR–
72. These exemptions will remain in
force under the new rule.
382.67 What is the requirement for
priority space in the cabin to store a
passenger’s wheelchair?
The most important change in this
section from the present regulation is
that carriers are no longer required to
stow any kind of electric wheelchair in
the cabin. Only manual wheelchairs are
required to be stored there. The section
provides that there must be a priority
space in the cabin capable of stowing at
least one adult-size manual wheelchair
of the stated dimensions. This
requirement applies to aircraft with 100
or more passenger seats. The space must
be in addition to the normal under-seat
and overhead compartment storage
made available for carry-on luggage.
Where a carrier plans to use a closet or
other storage area to comply with this
requirement, we emphasize that in
saying priority storage we mean that the
space for a wheelchair trumps other
possible uses for that closet or other
storage area, including passenger
hanging bags and crew luggage. This
requirement to stow a passenger’s
wheelchair in the cabin is in addition to
the carrier’s on-board wheelchair as
required under section 382.65. This
requirement already applies to U.S.
carriers for new aircraft they ordered
after April 5, 1990, or which were
delivered after April 5, 1992. Foreign
carriers must comply with respect to
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new aircraft ordered after the effective
date of the rule or delivered more than
one year after the effective date.
382.69 What requirements must
carriers meet concerning the
accessibility of videos, DVDs, and other
audio-visual presentations shown on
aircraft to individuals who are deaf or
hard of hearing?
This section requires carriers to
ensure that all new videos, DVDs, and
other audio-visual displays played on
aircraft for safety purposes, and all such
audio-visual displays played on aircraft
for informational purposes that were
created under the carrier’s control, are
high-contrast captioned. The captioning
must be in the predominant language or
languages in which the carrier
communicates with passengers on the
flight. If the carrier communicates
regularly in more than one language
(e.g., French and English on a Canadian
air carrier), then the captioning must be
in all of those languages. By saying that
this section applies to ‘‘new’’ videos, we
mean that carriers are not required to
retrofit or replace existing videos.
For purposes of this section, we view
a video as being controlled by a carrier
not only if the carrier directly produces
it, but if a contractor or other party
produces the video for the carrier’s use,
with the carrier having significant
editorial control or approval of the
video’s content. Note that the provision
about carrier control of a video applies
only to informational materials. Safety
materials must be captioned in all cases.
The requirements of this section go
into effect 180 days after the effective
date of the rule with respect to safety
videos, and 240 days after the effective
date of the rule with respect to
informational videos. This timing is the
same for both U.S. and foreign carriers.
The corresponding section of the
current version of Part 382 permits
carriers to use a non-video alternative
only if neither open captioning nor a
sign language interpreter inset can be
used without so interfering with the
video as to render it ineffective. This
exception is not included in the new
rule. The overall effective date of the
rule is one year after the rule is
published, but, as indicated above,
carriers are not required to implement
the provision concerning videos in the
new rule until 180 to 240 days after that
overall effective date. Consequently,
starting on the overall effective date (i.e.,
one year after the rule is published)
there would be no requirement in effect
on this subject for U.S. carriers. In order
to avoid such a situation, as a bridge
between the current Part 382 and the
new Part 382 U.S. carriers are required
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to comply with a requirement identical
to the current rule’s provision on safety
videos between the effective date of the
new rule and 180 days after that date.
382.71 What other aircraft
accessibility requirements apply to
carriers?
This provision, like its counterpart in
the existing rule, requires maintenance
of accessibility features in proper
working order and tells carriers to
ensure that any replacement or
refurbishing of cabin features does not
reduce existing accessibility.
382.81 For which passengers must
carriers make seating accommodations?
382.83 Through what mechanisms do
carriers make seating accommodations?
382.85 What seating accommodations
must carriers make to passengers in
circumstances not covered by section
382.81(a) through (d)?
Carriers must provide a seat that will
accommodate a passenger with a
disability other than one listed in
section 382.81(a)–(d) when the
passenger self-identifies and requests
the accommodation in order to readily
access and use the carrier’s air
transportation service.
382.87 What other requirements
pertain to seating for passengers with a
disability?
These provisions are essentially the
same as their counterparts in the
existing regulation. The provisions are
broken out into additional sections for
clarity. The rule requires carriers to
ensure an adequate number of seats to
handle a reasonably expectable demand
for seating accommodations of various
kinds and emphasizes the need for
passengers to self-identify in order to get
seating accommodations. The
provisions already apply to U.S. carriers
and will apply to foreign carriers on the
effective date of the rule. The one-year
delay in the effective date of the rule
following publication should be
sufficient for foreign carriers to design
procedures to carry out these
requirements.
382.91 What assistance must carriers
provide to passengers with a disability
in moving within the terminal?
With respect to connecting assistance,
the basic mandate is the same as under
the existing rule. The arriving carrier
(i.e., the one that operates the first of the
two flights that are connecting) has the
responsibility for connecting assistance.
It is permissible for the two carriers to
mutually agree that the carrier operating
the departing connecting flight (i.e., the
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second flight of the two) will provide
this assistance, but the carrier operating
the arriving flight remains responsible
under this section for ensuring that the
assistance is provided.
The requirements concerning
movement through the terminal are
clarified to say that the carrier’s
assistance responsibility starts at the
terminal entrance and goes through the
airport to the gate for a passenger
arriving to take a flight, and vice-versa
for a passenger leaving the airport after
a flight.
One addition concerns enroute stops
at the entrance to a rest room. If the
passenger is being assisted along the
basic route from entrance to gate or viceversa, or to make a connection, and the
route goes by a rest room, the person
assisting the passenger must stop and
allow the passenger to use the amenity,
if doing so will not result in
unreasonable delay. To receive this
assistance, the passenger must selfidentify. It could also be very helpful to
a passenger to be able to stop at a
takeout food or beverage vendor that
was enroute, if doing so would would
not result in an unreasonable delay. The
final rule does not require a stop for this
purpose, but we believe that airlines
and airports interested in good customer
service would should allow a brief stop
for this purpose.
Another addition, applicable only in
U.S. airports, is that a carrier would, on
request, and in cooperation with the
airport operator, have to escort a
passenger to a service animal relief area.
Finally, carriers would have to assist
passengers with disabilities in
transporting their carry-on or gatechecked luggage to or from the gate.
This obligation would arise only if the
passenger could make credible verbal
assurances of his or her inability to
carry the item due to his or her
disability. If the passenger’s verbal
assurances to the carrier are not
credible, the carrier may require the
passenger to produce documentation as
a condition of providing the service. All
the services mentioned in this
paragraph would be provided only on
request of a passenger with a disability.
At foreign airports, as mentioned in
connection with the terminal
accessibility section, airport operators
may be the basic providers of terminal
services. The carrier may rely on these
services, but would have to supplement
them if they did not fully comply with
the provisions of this Part.
382.93 Must carriers offer preboarding
to passengers with a disability?
Carrier must offer an opportunity for
preboarding to passengers with a
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disability who self-identify at the gate as
needing additional time or assistance to
board, stow accessibility equipment, or
be seated. This obligation exists
regardless of the carriers’ preboarding
policies for other persons (e.g., families
with small children). Carriers are not
required to make general
announcements about preboarding in
the gate area specifically for passengers
with disabilities, where no preboarding
announcements are made for other types
of passengers. However, as a matter of
general nondiscrimination principles, a
carrier that makes a preboarding
announcement in the gate area for other
types or classes of passengers would
have to make the announcement for
persons with disabilities as well.
382.95 What are carriers’ general
obligations with respect to boarding and
deplaning assistance?
Carriers must promptly provide
assistance to passengers in getting on
and getting off aircraft. The assistance
can use a variety of means to
accomplish the section’s objective;
examples are listed in paragraph (a).
This obligation exists at both U.S. and
foreign airports.
At U.S. airports with 10,000 or more
annual enplanements, boarding
assistance must be provided through the
use of lifts or ramps, where level-entry
boarding is not otherwise available
(paragraph (b)).
382.97 To which aircraft does the
requirement to provide boarding and
deplaning assistance through the use of
lifts apply?
At U.S. airports where lift or ramp
boarding is required, the requirement
applies to aircraft with 19 or more
passenger seats, with a few stated
exceptions. The Department reserves the
option to expand the list of aircraft to
which the requirement does not apply,
if we determine that there is no model
of boarding device on the market that
will accommodate the aircraft without a
significant risk of serious damage to the
aircraft or injury to persons, or that
there are internal barriers in the aircraft
that would preclude passengers who use
a boarding or aisle chair from reaching
a non-exit row seat. The Department
need not amend this rule in order to
make such a determination.
382.99 What agreements must carriers
have with the airports they serve?
Consistent with the present rule,
carriers serving U.S. airports must have
agreements with the airport operators to
provide, operate, and maintain lifts and
ramps used to meet the boarding
requirement of section 382.95(b). This
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requirement already applies to U.S.
carriers. Foreign carriers would have a
year from the effective date of the rule
to enter into such agreements. Foreign
carriers serving a particular airport may
be able to join existing agreements
among the airport and U.S. carriers
serving it, rather than starting from
scratch. Foreign carriers would have
two years from the effective date of the
rule to ensure that the boarding
assistance called for in this rule was
actually being provided.
Carriers may require passengers
needing lift assistance for boarding to
check in for the flight an hour before the
standard check-in time for the flight.
382.101 What other boarding and
deplaning assistance must carriers
provide?
When level-entry boarding is not
required, carriers must still take
whatever actions are necessary to assist
people with disabilities to get on and off
aircraft. For example, boarding and
deplaning assistance using lifts is not
required at smaller U.S. airports and
foreign airports, or when severe weather
or unexpected mechanical breakdowns
prevent the use of a lift. In those
circumstances, airlines must still
provide enplaning and deplaning
assistance by other available means,
such as by placing the passenger in a
boarding chair and carrying him or her
up the boarding stairs unless the design
of the aircraft (e.g., the Fairchild Metro,
the Jetstream 31 and 32, the Beech 1900
(C and D models) and the Embraer
EMB–120) makes this impossible. The
only limitation on the means of
providing this assistance is that handcarrying by carrier personnel as defined
in that section is prohibited, except in
situations of an emergency evacuation
where no other timely means of
assistance is available.
382.103 May a carrier leave a
passenger unattended in a wheelchair
or other device?
The carrier and its contractors may
not leave a passenger unattended in a
wheelchair or other device in which the
passenger is not independently mobile
for more than 30 minutes.
382.105 What is the responsibility of
carriers at foreign airports at which
airport operators have responsibility for
enplaning, deplaning, or connecting
assistance?
This section reemphasizes that at a
foreign airport where airport operators
have this responsibility, both U.S and
foreign carriers can rely on the airport
operator’s services. If these services do
not fully meet the requirements of this
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Part, then the carrier must supplement
the airport operator’s services to ensure
that the requirements are met. If a
carrier believes that it is legally
precluded from supplementing the
airport operator’s services, it can apply
for a conflict of laws waiver.
382.111 What services must carriers
provide to passengers with a disability
on board the aircraft?
382.113 What services are carriers not
required to provide to passengers with a
disability on board the aircraft?
These sections are parallel to their
counterparts in the existing rule.
Personal care services like assistance in
actual eating and drinking are not
required, but more limited assistance
such as assisting with the opening of
packages is required.
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382.115 What requirements apply to
on-board safety briefings?
This provision also parallels its
counterpart in the existing rule.
382.117 Must carriers permit
passengers with a disability to travel
with service animals?
This section has been made more
detailed than the current rule’s service
animal provision, in response to the
comments discussed earlier in the
preamble. Appendix A provides further
guidance to carriers and passengers
concerning service animals.
The general rule is that service
animals must be allowed to accompany
their users. Carriers cannot deny
transportation to a service animal
because its presence may offend or
annoy other passengers (e.g., by causing
an allergic reaction that does not rise to
the level of a disability or by offending
someone’s cultural or personal
preferences). When another passenger is
uncomfortable with proximity to a
service animal, the carrier should do its
best to satisfy all passengers by offering
the uncomfortable passenger the
opportunity to sit elsewhere. Forcing
the passenger with the service animal to
move to another seat to make another
passenger more comfortable, let alone
denying transportation in the cabin to
the service animal or its user, is not an
option.
If a flight segment is scheduled to take
eight hours or more, the carrier may
require documentation that the service
animal will not need to relieve itself or
can do so in a way that will not create
a health or sanitation issue on the flight.
The only acceptable reason for not
allowing a service animal to accompany
its user at the user’s seat is that the
animal will block a space that,
according to FAA or equivalent foreign
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safety regulations, must remain
unobstructed. If, for this reason, the
animal cannot be accommodated at the
user’s seat, the carrier must allow the
passenger and the animal to sit
elsewhere on the aircraft, if an
appropriate place exists.
There are new, more detailed
procedures for the carriage of emotional
support and psychiatric service animals.
The carrier may require the passenger to
provide current documentation from a
mental health professional caring for the
passenger that the passenger has a
specific, recognized mental or emotional
disability and that the passenger needs
to be accompanied by the specific
emotional support or psychiatric service
animal in question, either on the flight
or at the passenger’s destination.
Certain unusual service animals need
never be accommodated (e.g., rodents,
snakes). Other uncommonly used
animals (e.g., miniature horses,
monkeys) can travel as service animals
on U.S. carriers, but the carrier can
decide to exclude a particular animal on
a case-by-case basis if it is too large or
heavy to be accommodated on a given
flight. Foreign carriers are not required
to carry service animals other than dogs.
We will seek further comment in the
SNPRM on whether there are safetyrelated reasons for excluding animals
that may be specific to foreign carriers.
Near the end of this preamble, the
Department has included a revised
guidance document containing further
discussion of service animal matters.
With the exception of changes discussed
earlier in the preamble, this guidance
document incorporates the guidance the
Department issued on service animal
matters in May 2003. As guidance, it
does not have independent mandatory
effect, but rather describes how the
Department understands the
requirements of section 382.117. It also
makes suggestions and
recommendations concerning how
carriers can best accommodate service
animals and their users.
The guidance document notes that
carriers can properly apply the same
policies to ‘‘psychiatric service animals’’
as they do for emotional support
animals. This is because carriers and the
Department have encountered instances
of attempted abuse of service animal
transportation policies by persons
traveling with animals in both
categories. Should the Department
encounter a pattern of abuse concerning
service animals in other categories, we
can consider additional safeguards with
respect to those categories as well.
We would call also readers’’ attention
to recent DOT guidance concerning the
transportation of service animals into
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the United Kingdom. ‘‘Guidance
Concerning the Carriage of Services
Animals in Air Transportation Into the
United Kingdom’’ (February 26, 2007)
discusses the transportation of service
dogs and cats into the U.K. via U.S. and
foreign carriers. To transport service
animals into the U.K., carriers must
participate in the U.K. Pet Travel
Scheme. A supplementary DOT
guidance document, ‘‘Carriage of
Service Animals in Air Transportation
Into the United Kingdom and Foreign
Health Documentation Requirements for
Service Animals in Air Transportation’’
(July 17, 2007), provides further
information for carriers and the public
concerning carriage of, and
documentation needed for, carriage of
service animals into countries other
than the U.K.
These documents may be found on
the Department’s Aviation Consumer
Protection Division website.
382.119 What information must
carriers give individuals with vision or
hearing impairment on aircraft?
This section requires that carriers
ensure that passengers with a disability
who identify themselves as needing
visual or hearing assistance have
prompt access to the same information
provided to other passengers on the
aircraft. In providing this information,
carriers are not required to take steps
that would interfere with crewmembers’
safety duties as set forth in FAA and
applicable foreign regulations.
The covered information includes, but
is not limited to, information
concerning flight safety, procedures for
takeoff and landing, flight delays,
schedule or aircraft changes that affect
the travel of persons with disabilities,
diversion to a different airport,
scheduled departure and arrival time,
boarding information, weather
conditions at the flight’s destination,
beverage and menu information,
connecting gate assignments, baggage
claim (e.g., at which carousel an arriving
flight’s bags may be retrieved),
individuals being paged by airlines, and
emergencies (e.g., fire or bomb threat).
The requirement of this section applies
whether the information is provided to
passengers by the carrier in the aircraft
or in the terminal (e.g., the gate area).
We intend to require carriers to
provide information that a reasonable
consumer would deem important, even
if it falls outside the list in § 382.119(b).
Conversely, carriers are not required to
provide information that a reasonable
consumer would not deem important.
For example, we do not consider
information on sightseeing at the flight’s
destination or an announcement that the
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aircraft is flying over the Grand Canyon
to be covered by this rule.
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382.121 What mobility aids and other
assistive devices may passengers with a
disability bring into the aircraft cabin?
Passengers may bring manual, but not
electric wheelchairs, other mobility aids
(e.g., canes, including those used by
blind passengers), and other assistive
devices (e.g., POCs), as well as
prescription medications and any
medical devices needed to administer
them (e.g., syringes, auto-injectors), as
long as they comply with applicable
safety, security and hazardous materials
rules. These devices and aids cannot be
counted against the airline’s carry-on
limits.
382.123 What are the requirements
concerning priority cabin stowage for
wheelchairs and other assistive devices?
This section is related to the
requirements for priority stowage spaces
in section 382.67 and an opportunity to
preboard in section 382.93. A passenger
who takes advantage of the offer to
preboard can stow his or her wheelchair
in the aircraft’s priority stowage area,
with priority over other passengers’
items brought onto the aircraft at the
same airport, consistent with applicable
safety and security regulatory
requirements. The passenger’s
wheelchair also takes priority over items
that may be stowed in the space by the
carrier and its personnel, such as onboard wheelchairs or crew luggage, even
if these items came on board at an
earlier stop of the plane’s itinerary. If
such items are in the space when a
wheelchair user comes on board, they
must be moved to accommodate the
passenger’s wheelchair. Carriers must
also offer this opportunity for other
assistive devices, though wheelchairs
retain priority. Passengers with
wheelchairs or other assistive devices
who do not preboard must still be
allowed to use the priority stowage
areas for their devices, but their use of
the space is on a first-come-first-served
basis with respect to other passengers’
items.
Some U.S. carriers have used the socalled ‘‘seat-strapping’’ method of
securing passengers’ wheelchairs in the
cabin, usually in situations in which,
contrary to the existing rule in some
cases, aircraft did not have closets or
other spaces capable of accommodating
the wheelchairs. The Department does
not believe that this is a good long-term
approach to carrying passenger
wheelchairs in the cabin, especially in
these times of frequently full flights.
The Department emphasizes that
providing priority stowage spaces as
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required by section 382.67 is essential.
To limit the ability of carriers to use the
seat-strapping method as a way of
getting around the designated priority
stowage requirement, carriers may not
use the seat-strapping method in any
aircraft ordered after the effective date
of this Part or delivered more than two
years after the rule’s effective date.
382.125 What procedures do carriers
follow when wheelchairs, other mobility
aids, and other assistive devices must be
stowed in the cargo compartment?
As under the current rule, electric
wheelchairs and other devices that are
not required to be stowed in the cabin
must be transported in the cargo
compartment. These items have priority
over other passengers’ items. If other
passengers’ items are bumped as a
result, the carrier must use its best
efforts to ensure that they are delivered
to the passenger’s destination on the
carrier’s next flight. This may be a flight
within an hour or two with respect to
a domestic destination; it could be a
matter of days with respect to some
carriers’ international flights.
382.127 What procedures apply to the
stowage of battery-powered mobility
aids?
This provision does not make
substantive changes from its counterpart
in the existing rule, except to say that
carriers may require a passenger
wishing to check his or her device to
check in an hour before the standard
check-in time for the flight. DOT’s
Pipeline and Hazardous Materials Safety
Administration (PHMSA) has issued a
special permit which may affect
procedures for handling power
wheelchairs (see PHMSA ‘‘Special
Permit 14548’’ dated October 5, 2007,
and revised on October 30, 2007.)
382.129 What other requirements
apply when passengers’ wheelchairs,
other mobility aids, and other assistive
devices must be disassembled for
stowage?
382.131 Do baggage liability limits
apply to mobility aids and other
assistive devices?
These provisions are substantively the
same as their counterparts in the
existing rule. Carriers and passengers
should note that section 382.131 applies
only to domestic U.S. travel. Baggage
liability limits for international travel,
including flights of U.S. carriers, are
governed by the Montreal Convention
and other international agreements,
rather than by 14 CFR Part 254.
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382.133 What are the requirements
concerning the evaluation and use of
passenger-owned electronic devices that
assist passengers with respiration in the
cabin during flight and do not contain
hazardous materials?
The basic point of this section is that,
with minor exceptions, carriers must
permit passengers with a disability to
use a portable oxygen concentrator
(POC) and other respiratory assistive
devices in the cabin. Such devices must
meet FAA or foreign government
requirements, as applicable, and display
a manufacturer’s label that indicates
that the device meets the FAA or foreign
government requirements.
When a passenger asks a carrier about
bringing his or her electronic respiratory
assistive device, the carrier must tell the
passenger about the requirements for
carrying such a device on board,
touching on such matters as meeting
FAA requirements, having the
manufacturer’s label, bringing an
adequate number of fully charged
batteries, any check-in or advance
notice requirements, medical certificate
requirements, and the expected duration
of the flight. Carriers may insist on
passengers bringing on board fully
charged batteries adequate to last for
150 percent of the expected maximum
flight duration. If a passenger does not
comply with the conditions outlined in
the rule, the carrier can deny him or her
transportation on the flight.
382.141 What training are carriers
required to provide for their personnel?
This section continues, for the most
part, the requirements of the existing
rule. There are a few differences, in
view of the rule’s application to foreign
carriers. The requirement to consult
with disability groups now focuses on
disability groups in the carrier’s home
country. If such groups are not
available, consulting with individuals
with disabilities or disability groups in
other countries is appropriate.
382.143 When must carriers complete
training for their personnel?
Employees of U.S. carriers that have
already received initial training must be
trained on changes to Part 382 at their
next recurrent training after the rule
goes into effect or within one year after
the effective date of the rule, whichever
comes first. New crewmembers have to
be trained before they assume their
duties. Other employees new to a
position must be trained within 60 days
after starting their jobs. Current
employees of foreign carriers that serve
flights covered by the rule must be
trained within a year after the effective
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date of the rule. After that date, new
crewmembers must be trained before
assuming their duties, and other new
employees within 60 days after when
they assume their duties. For employees
who fall in between these categories—
those who start work during the first
year after the effective date of the rule—
training must occur before the second
anniversary of the effective date of the
rule or 60 days from their start date,
whichever is later.
While the rule provides a reasonable
amount of time for employees to be
trained, carriers are nevertheless
responsible for violations that occur
between the effective date of the rule
and the training deadlines. We strongly
encourage carriers to expedite their
training schedules so that as many
employees as possible are trained by the
final rule’s effective date.
To ensure that foreign carriers have
resource persons to deal with disability
issues as soon as possible, foreign
carriers will have to complete training
for CROs, and U.S. carriers will have to
complete training for CROs about
changes in Part 382, by the effective
date of the rule. Given the critical role
played by CROs in carriers’
implementation of the rule, it is
essential for CROs to be trained before
the rule becomes effective. U.S. carriers
have been subject to requirements to
train CROs under the existing rule, and
additional training for these CROs
should be limited in scope, since it
would need only to cover changes
between the existing rule and this final
rule. Since foreign carriers will have a
year between the publication of the rule
and its effective date, they too should
have adequate time to train CROs by the
effective date of the rule.
rwilkins on PROD1PC63 with RULES2
382.145 What records concerning
training must carriers retain?
Carriers must maintain records of the
procedures they use to comply with this
rule, including those portions of
manuals and other instructional
materials concerning Part 382
compliance, and individual employee
training records. Training records must
be retained for three years. Carriers are
not to send these materials to DOT for
review, but it must be made available to
the Department if we ask to look at it.
If we determine that something in these
materials needs to be changed in the
interest of compliance with the rule, the
carrier must make the changes the
Department directs.
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382.151 What are the requirements for
providing Complaints Resolution
Officials?
The CRO requirement is essentially
the same as under the current rule. U.S.
carriers must make a CRO available—
either in person or via telephone—at
each airport the carrier serves, at all
times the carrier is operating at the
airport. Foreign carriers must make a
CRO available at each airport serving
flights the carrier operates that begin or
end at a U.S. airport. The Department
realizes that, in some cases, carriers
operate covered flights infrequently. For
example, a foreign carrier may fly from
Dulles to a foreign airport only at 5 p.m.
on Mondays and Thursdays. On other
days, and on Monday and Thursday
mornings for that matter, the foreign
airline would not have to make a CRO
available to persons at Dulles. CRO
services would have to be made
available in languages in which the
carrier provides services to the general
public.
This rule clarifies that carriers are
responsible for making passengers
aware of the availability of a CRO in
some circumstances even if the
passenger does not say ‘‘I want to talk
to a CRO.’’ If a passenger raises a
disability-related concern, and the
carrier’s personnel do not immediately
resolve the issue to the customer’s
satisfaction, the carrier must say, in
effect, ‘‘We have a CRO available that
you can talk to about this problem if you
want to. The CRO is our resource person
who can help solve disability-related
issues. Here is where you can find, or
call, our CRO.’’
CROs must have authority to
definitively resolve complaints. This
means they must have the power to
overrule decisions of other carrier
personnel, except that they are not
required to have authority to
countermand a safety decision of a
pilot-in-command of an aircraft. Of
course, even decisions of pilots, if they
later are shown to be in noncompliance
with this rule, can subject the carrier to
DOT enforcement action.
382.153 What actions do CROs take on
complaints?
382.155 How must carriers respond to
written complaints?
CROs are to promptly take action to
resolve complaints made to them. In
some cases, CROs can take quick action
to prevent a potential violation (e.g., a
threatened denial of service) from
becoming a real violation. If a CRO
determines that a violation has already
occurred, the CRO must write the
complainant and describe the carrier’s
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corrective action. Of course, not all
complaints have merit, and if the CRO
decides that a violation did not occur,
the CRO must also write the
complainant and explain this
determination. CRO responses are due
30 days from the date of the complaint.
Often, complaints to carriers may be
made in writing (letters, e-mails etc.).
These complaints may or may not have
been processed through the carrier’s
CRO, though they need to state whether
a CRO was involved. Except for
complaints DOT refers to a carrier, the
carrier is not required to respond to a
complaint transmitted more than 45
days after the incident in question. The
carrier must respond within 30 days.
382.157 What are carriers obligations
for recordkeeping and reporting on
disability-related complaints?
This section is identical to the current
regulatory provision on disabilityrelated complaint reporting. The
language referring to carriers ‘‘covered
by this Part’’ is not intended to change
the scope of the existing provision,
which refers to carriers conducting
passenger operations with at least one
aircraft having a designed seating
capacity of more than 60 seats on flights
to, from, or in the United States.
382.159 How are complaints filed with
DOT?
Changes from the corresponding
provision of the existing regulation
include a time frame for filing informal
complaints, a change of postal address
for sending an informal complaint by
mail, and the Web address for filing an
informal complaint on the Air
Consumer Web site.
Appendix A—Disability Complaint
Reporting Form
This appendix contains the form
carriers use to submit disability-related
complaint data.
Appendix B—Cross-Reference Table
This appendix provides, for the
convenience of readers, information on
where material found in a given section
of the existing version of Part 382 is
found in the new version of Part 382.
Guidance Concerning Service Animals
Introduction
In 1990, the U.S. Department of
Transportation (DOT) promulgated the
official regulations implementing the
Air Carrier Access Act (ACAA). Those
rules are entitled Nondiscrimination on
the Basis of Disability in Air Travel (14
CFR part 382). Since then the number of
people with disabilities traveling by air
has grown steadily. This growth has
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increased the demand for air
transportation accessible to all people
with disabilities and the importance of
understanding DOT’s regulations and
how to apply them. This document
expands on an earlier DOT guidance
document published in 1996,3 which
was based on an earlier Americans with
Disabilities Act (ADA) service animal
guide issued by the Department of
Justice (DOJ) in July 1996. The purpose
of this document is to aid airline
employees and people with disabilities
in understanding and applying the
ACAA and the provisions of Part 382
with respect to service animals in
determining:
(1) Whether an animal is a service
animal and its user a qualified
individual with a disability;
(2) How to accommodate a qualified
person with a disability with a service
animal in the aircraft cabin; and
(3) When a service animal legally can
be refused carriage in the cabin.
This guidance will also be used by
Department of Transportation staff in
reviewing the implementation of
§ 382.117 of this Part by carriers.
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Background
The 1996 DOT guidance document
defines a service animal as ‘‘any guide
dog, signal dog, or other animal
individually trained to provide
assistance to an individual with a
disability. If the animal meets this
definition, it is considered a service
animal regardless of whether it has been
licensed or certified by a state or local
government.’’ This document refines
DOT’s previous definition of service
animal 4 by making it clear that animals
that assist persons with disabilities by
providing emotional support qualify as
service animals and ensuring that, in
situations concerning emotional support
animals and psychiatric service animals,
the authority of airline personnel to
require documentation of the
individual’s disability and the medical
necessity of the passenger traveling with
the animal is understood.
Today, both the public and people
with disabilities use many different
terms to identify animals that can meet
the legal definition of ‘‘service animal.’’
These range from umbrella terms such
as ‘‘assistance animal’’ to specific labels
such as ‘‘hearing,’’ ‘‘signal,’’ ‘‘seizure
alert,’’ ‘‘psychiatric service,’’ ‘‘emotional
support’’ animal, etc., that describe how
the animal assists a person with a
disability.
3 61
FR 56409, 56420 (Nov. 1, 1996).
Glossary for definition of this and other
4 See
terms.
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When Part 382 was first promulgated,
most service animals were guide or
hearing dogs. Since then, a wider
variety of animals (e.g. cats, monkeys,
etc.) have been individually trained to
assist people with disabilities. Service
animals also perform a much wider
variety of functions than ever before
(e.g., alerting a person with epilepsy of
imminent seizure onset, pulling a
wheelchair, assisting persons with
mobility impairments with balance).
These developments can make it
difficult for airline employees to
distinguish service animals from pets,
especially when a passenger does not
appear to be disabled, or the animal has
no obvious indicators that it is a service
animal. Passengers may claim that their
animals are service animals at times to
get around airline policies that restrict
the carriage of pets. Clear guidelines are
needed to assist airline personnel and
people with disabilities in knowing
what to expect and what to do when
these assessments are made.
Since airlines also are obliged to
provide all accommodations in
accordance with FAA safety regulations,
educated consumers help assure that
airlines provide accommodations
consistent with the carriers’ safety
duties and responsibilities. Educated
consumers also assist the airline in
providing them the services they want,
including accommodations, as quickly
and efficiently as possible.
General Requirements of Part 382
In a nutshell, the main requirements
of Part 382 regarding service animals
are:
• Carriers shall permit dogs and other
service animals used by persons with
disabilities to accompany the persons
on a flight. See § 382.117(a).
➣ Carriers shall accept as evidence
that an animal is a service animal
identifiers such as identification cards,
other written documentation, presence
of harnesses, tags or the credible verbal
assurances of a qualified individual
with a disability using the animal.
➣ Carriers shall permit a service
animal to accompany a qualified
individual with a disability in any seat
in which the person sits, unless the
animal obstructs an aisle or other area
that must remain unobstructed in order
to facilitate an emergency evacuation or
to comply with FAA regulations.
• If a service animal cannot be
accommodated at the seat location of
the qualified individual with a
disability whom the animal is
accompanying, the carrier shall offer the
passenger the opportunity to move with
the animal to a seat location in the same
class of service, if present on the
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aircraft, where the animal can be
accommodated, as an alternative to
requiring that the animal travel in the
cargo hold (see § 382.117(c)).
• Carriers shall not impose charges
for providing facilities, equipment, or
services that are required by this Part to
be provided to qualified individuals
with a disability (see § 382.31).
Two Steps for Airline Personnel
To determine whether an animal is a
service animal and should be allowed to
accompany its user in the cabin, airline
personnel should:
1. Establish whether the animal is a
pet or a service animal, and whether the
passenger is a qualified individual with
a disability; and then
2. Determine if the service animal
presents either:
• A ‘‘direct threat to the health or
safety of others,’’ or
• A significant threat of disruption to
the airline service in the cabin (i.e., a
‘‘fundamental alteration’’ to passenger
service). See § 382.19(c).
Service Animals
How do I know it’s a service animal and
not a pet?
Remember: In most situations the key
is training. Generally, a service animal
is individually trained to perform
functions to assist the passenger who is
a qualified individual with a disability.
In a few extremely limited situations, an
animal such as a seizure alert animal
may be capable of performing functions
to assist a qualified person with a
disability without individualized
training. Also, an animal used for
emotional support need not have
specific training for that function.
Similar to an animal that has been
individually trained, the definition of a
service animal includes: An animal that
has been shown to have the innate
ability to assist a person with a
disability; or an emotional support
animal.
These five steps can help one
determine whether an animal is a
service animal or a pet:
1. Obtain credible verbal assurances:
Ask the passenger: ‘‘Is this your pet?’’ If
the passenger responds that the animal
is a service animal and not a pet, but
uncertainty remains about the animal,
appropriate follow-up questions would
include:
➣ ‘‘What tasks or functions does your
animal perform for you?’’ or
➣ ‘‘What has it been trained to do for
you?’’ or
➣ ‘‘Would you describe how the
animal performs this task (or function)
for you?’’
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• As noted earlier, functions include,
but are not limited to:
A. Helping blind or visually impaired
people to safely negotiate their
surroundings;
B. Alerting deaf and hard-of-hearing
persons to sounds;
C. Helping people with mobility
impairments to open and close doors,
retrieve objects, transfer from one seat to
another, maintain balance; or
D. Alert or respond to a disabilityrelated need or emergency (e.g., seizure,
extreme social anxiety or panic attack).
• Note that to be a service animal that
can properly travel in the cabin, the
animal need not necessarily perform a
function for the passenger during the
flight. For example, some dogs are
trained to help pull a passenger’s
wheelchair or carry items that the
passenger cannot readily carry while
using his or her wheelchair. It would
not be appropriate to deny
transportation in the cabin to such a
dog.
• If a passenger cannot provide
credible assurances that an animal has
been individually trained or is able to
perform some task or function to assist
the passenger with his or her disability,
the animal might not be a service
animal. In this case, the airline
personnel may require documentation
(see Documentation below).
• There may be cases in which a
passenger with a disability has
personally trained an animal to perform
a specific function (e.g., seizure alert).
Such an animal may not have been
trained through a formal training
program (e.g., a ‘‘school’’ for service
animals). If the passenger can provide a
reasonable explanation of how the
animal was trained or how it performs
the function for which it is being used,
this can constitute a ‘‘credible verbal
assurance’’ that the animal has been
trained to perform a function for the
passenger.
2. Look for physical indicators on the
animal: Some service animals wear
harnesses, vests, capes or backpacks.
Markings on these items or on the
animal’s tags may identify it as a service
animal. It should be noted, however,
that the absence of such equipment does
not necessarily mean the animal is not
a service animal. Similarly, the presence
of a harness or vest on a pet for which
the passenger cannot provide such
credible verbal assurance may not be
sufficient evidence that the animal is, in
fact, a legitimate service animal.
3. Request documentation for service
animals other than emotional support
or psychiatric service animals: The law
allows airline personnel to ask for
documentation as a means of verifying
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that the animal is a service animal, but
DOT’s rules tell carriers not to require
documentation as a condition for
permitting an individual to travel with
his or her service animal in the cabin
unless a passenger’s verbal assurance is
not credible. In that case, the airline
may require documentation as a
condition for allowing the animal to
travel in the cabin. This should be an
infrequent situation. The purpose of
documentation is to substantiate the
passenger’s disability-related need for
the animal’s accompaniment, which the
airline may require as a condition to
permit the animal to travel in the cabin.
Examples of documentation include a
letter from a licensed professional
treating the passenger’s condition (e.g.,
physician, mental health professional,
vocational case manager, etc.)
4. Require documentation for
emotional support and psychiatric
service animals: With respect to an
animal used for emotional support
(which need not have specific training
for that function but must be trained to
behave appropriately in a public
setting), airline personnel may require
current documentation (i.e., not more
than one year old) on letterhead from a
licensed mental health professional
stating (1) that the passenger has a
mental health-related disability listed in
the Diagnostic and Statistical Manual of
Mental Disorders (DSM IV); (2) that
having the animal accompany the
passenger is necessary to the passenger’s
mental health or treatment; (3) that the
individual providing the assessment of
the passenger is a licensed mental
health professional and the passenger is
under his or her professional care; and
(4) the date and type of the mental
health professional’s license and the
state or other jurisdiction in which it
was issued. Airline personnel may
require this documentation as a
condition of permitting the animal to
accompany the passenger in the cabin.
The purpose of this provision is to
prevent abuse by passengers that do not
have a medical need for an emotional
support animal and to ensure that
passengers who have a legitimate need
for emotional support animals are
permitted to travel with their service
animals on the aircraft. Airlines are not
permitted to require the documentation
to specify the type of mental health
disability, e.g., panic attacks.
There is a separate category of service
animals generally known as
‘‘psychiatric service animals.’’ These
animals may be trained by their owners,
sometimes with the assistance of a
professional trainer, to perform tasks
such as fetching medications, reminding
the user to take medications, helping
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people with balance problems caused by
medications or an underlying condition,
bringing a phone to the user in an
emergency or activating a specially
equipped emergency phone, or acting as
a buffer against other people crowding
too close. As with emotional support
animals, it is possible for this category
of animals to be a source of abuse by
persons attempting to circumvent
carrier rules concerning transportation
of pets. Consequently, it is appropriate
for airlines to apply the same advance
notice and documentation requirements
to psychiatric service animals as they do
to emotional support animals.
5. Observe behavior of animals:
Service animals are trained to behave
properly in public settings. For
example, a properly trained guide dog
will remain at its owner’s feet. It does
not run freely around an aircraft or an
airport gate area, bark or growl
repeatedly at other persons on the
aircraft, bite or jump on people, or
urinate or defecate in the cabin or gate
area. An animal that engages in such
disruptive behavior shows that it has
not been successfully trained to
function as a service animal in public
settings. Therefore, airlines are not
required to treat it as a service animal,
even if the animal performs an assistive
function for a passenger with a
disability or is necessary for a
passenger’s emotional well-being.
What about service animals in training?
Part 382 requires airlines to allow
service animals to accompany their
handlers 5 in the cabin of the aircraft,
but airlines are not required otherwise
to carry animals of any kind either in
the cabin or in the cargo hold. Airlines
are free to adopt any policy they choose
regarding the carriage of pets and other
animals (e.g., search and rescue dogs)
provided that they comply with other
applicable requirements (e.g., the
Animal Welfare Act). Although ‘‘service
animals in training’’ are not pets, the
ACAA does not include them, because
‘‘in training’’ status indicates that they
do not yet meet the legal definition of
service animal. However, like pet
policies, airline policies regarding
service animals in training vary. Some
airlines permit qualified trainers to
bring service animals in training aboard
an aircraft for training purposes.
Trainers of service animals should
consult with airlines, and become
familiar with their policies.
5 Service animal users typically refer to the
person who accompanies the animal as the
‘‘handler.’’
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What about a service animal that is not
accompanying a qualified individual
with a disability?
When a service animal is not
accompanying a passenger with a
disability, the airline’s general policies
on the carriage of animals usually apply.
Airline personnel should know their
company’s policies on pets, service
animals in training, and the carriage of
animals generally. Individuals planning
to travel with a service animal other
than their own should inquire about the
applicable policies in advance.
Qualified Individuals with Disabilities 6
How do I know if a passenger is a
qualified individual with a disability
who is entitled to bring a service animal
in the cabin of the aircraft if the
disability is not readily apparent?
rwilkins on PROD1PC63 with RULES2
• Ask the passenger about his or her
disability as it relates to the need for a
service animal. Once the passenger
identifies the animal as a service
animal, you may ask, ‘‘How does your
animal assist you with your disability?’’
Avoid the question ‘‘What is your
disability?’’ as this implies you are
asking for a medical label or the cause
of the disability, which is intrusive and
inconsistent with the intent of the
ACAA. Remember, Part 382 is intended
to facilitate travel by people with
disabilities by requiring airlines to
accommodate them on an individual
basis.
• Ask the passenger whether he or
she has documentation as a means of
verifying the medical necessity of the
passenger traveling with the animal.
Keep in mind that you can ask but
cannot require documentation as proof
of service animal status UNLESS (1) a
passenger’s verbal assurance is not
credible and the airline personnel
cannot in good faith determine whether
the animal is a service animal without
documentation, or (2) a passenger
indicates that the animal is to be used
as an emotional support or psychiatric
service animal.
• Using the questions and other
factors above, you must decide whether
it is reasonable to believe that the
passenger is a qualified individual with
a disability, and the animal is a service
animal.
6 See
Glossary.
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Denying a Service Animal Carriage in
the Cabin
What do I do if I believe that carriage
of the animal in the cabin of the aircraft
would inconvenience non-disabled
passengers?
Part 382 requires airlines to permit
qualified individuals with a disability to
be accompanied by their service animals
in the cabin, as long as the animals do
not (1) pose a direct threat to the health
or safety of others (e.g., animal displays
threatening behaviors by growling,
snarling, lunging at, or attempting to
bite other persons on the aircraft) or (2)
cause a significant disruption in cabin
service (i.e., a ‘‘fundamental alteration’’
to passenger service). Offense or
inconvenience to other passengers (e.g.,
a cultural or personal discomfort with
being in proximity to certain kinds of
animals, allergies that do not rise to the
level of a disability, reasonable
limitations on foot space) is not
sufficient grounds to deny a service
animal carriage in the cabin. However,
carriers should try to accommodate the
wishes of other passengers in this
situation, such as by relocating them to
a different part of the aircraft.
What do I do if a passenger claims that
he or she is allergic to someone else’s
service animal?
• First, remember that not all allergies
rise to the level of a disability. The fact
that someone may have a stuffy nose or
sneeze when exposed to dog or cat
dander does not necessarily mean that
the individual has a disability.
• If a passenger expresses discomfort
or annoyance because of an allergic
reaction to the presence of a service
animal nearby, you can offer the
uncomfortable passenger the
opportunity to change to a seat further
away from the animal. Passengers who
state they have allergies or other animal
aversions should be located as far away
from the service animal as practicable.
Each individual’s needs should be
addressed to the fullest extent possible
under the circumstances and in
accordance with the requirements of
Part 382 and company policy.
• If a passenger provides credible
verbal assurances, or medical
documentation, that he or she has an
allergy to a particular sort of animal that
rises to the level of a disability (e.g.,
produces shock or respiratory distress
that could require emergency or
significant medical treatment), and there
is a service animal of that kind seated
nearby, the carrier should try to place as
much distance as possible between the
service animal and the individual with
the allergy. Depending on where the
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passengers are initially seated, this
could involve moving both passengers.
For example, if both are seated toward
the center of the cabin, one could be
moved to the front and the other to the
back.
• It is unlikely that the mere presence
of an animal in the same cabin would,
by itself, even if located at a distance
from an allergic passenger, produce a
severe allergic reaction rising to the
level of a disability. However, if there
was strong evidence that this was the
case, it could be necessary to rebook one
of the passengers on another flight.
Since one disability does not trump
another, the carrier should consider a
disability-neutral means of determining
which passenger would have to be
rebooked (e.g., which passenger made
the earlier reservation). We emphasize
that we expect any such situation to be
extremely rare, and that carriers should
not rebook a passenger absent strong
evidence that the mere presence of an
animal in the cabin, even in a location
distant from the allergic passenger,
would produce an allergic reaction
rising to the level of a disability.
• There may be situations in which,
with respect to a passenger who brings
a very serious potential allergy situation
to the attention of your personnel, it is
appropriate to seek a medical certificate
for the passenger.
What do I do if I believe that a
passenger’s assertions about having a
disability or a service animal are not
credible?
• Ask if the passenger has
documentation that satisfies the
requirements for determining that the
animal is a service animal (see
discussion of ‘‘Documentation’’ above).
• If the passenger has no documents,
then explain to the passenger that the
animal cannot be carried in the cabin,
because it does not meet the criteria for
service animals. Explain your airline’s
policy on pets (i.e., will or will not
accept for carriage in the cabin or cargo
hold), and what procedures to follow.
• If the passenger does not accept
your explanation, avoid getting into an
argument. Ask the passenger to wait
while you contact your airline’s
complaint resolution official (CRO). Part
382 requires all airlines to have a CRO
available at each airport they serve
during all hours of operation. The CRO
may be made available by telephone.
The CRO is a resource for resolving
difficulties related to disability
accommodation.
• Consult with the CRO immediately,
if possible. The CRO normally has the
authority to make the final decision
regarding carriage of service animals. In
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the rare instance that a service animal
would raise a concern regarding flight
safety, the CRO may consult with the
pilot-in-command. If the pilot-incommand makes a decision to restrict
the animal from the cabin or the flight
for safety reasons, the CRO cannot
countermand the pilot’s decision. This
does not preclude the Department from
taking subsequent enforcement action,
however, if it is determined that the
pilot’s decision was inconsistent with
Part 382.
• If a CRO makes the final decision
not to accept an animal as a service
animal, then the CRO must provide a
written statement to the passenger
within 10 days explaining the reason(s)
for that determination. If carrier
personnel other than the CRO make the
final decision, a written explanation is
not required; however, because denying
carriage of a legitimate service animal is
a potential civil rights violation, it is
recommended that carrier personnel
explain to the passenger the reason the
animal will not be accepted as a service
animal. A recommended practice may
include sending passengers whose
animals are not accepted as service
animals a letter within 10 business days
explaining the basis for such a decision.
In considering whether a service
animal should be excluded from the
cabin, keep these things in mind:
• Certain unusual service animals
(e.g., snakes, other reptiles, ferrets,
rodents, and spiders) pose unavoidable
safety and/or public health concerns
and airlines are not required to transport
them.
• In all other circumstances for U.S.
carriers, each situation must be
considered individually. Do not make
assumptions about how a particular
unusual animal is likely to behave based
on past experience with other animals.
You may inquire, however, about
whether a particular animal has been
trained to behave properly in a public
setting. Note that, under the 2008 final
rule, foreign carriers are not required to
carry animals other than dogs.
• Before deciding to exclude the
animal, you should consider and try
available means of mitigating the
problem (e.g., muzzling a dog that barks
frequently, allowing the passenger a
reasonable amount of time under the
circumstances to correct the disruptive
behavior, offering the passenger a
different seat where the animal won’t
block the aisle.)
If it is determined that the animal
should not accompany the disabled
passenger in the cabin at this time, offer
the passenger alternative
accommodations in accordance with
Part 382 and company policy (e.g.,
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accept the animal for carriage in the
cargo compartment at no cost to the
passenger).
Are there any situations in which an
animal would not be permitted to
accompany its user on the flight?
What about unusual service animals?
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 in the cabin 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 by taking all or
most of the passenger’s foot space 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 cargo. 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.
• As indicated above, certain unusual
service animals, (e.g., snakes, other
reptiles, ferrets, rodents, and spiders)
pose unavoidable safety and/or public
health concerns and airlines are not
required to transport them. The release
of such an animal in the aircraft cabin
could result in a direct threat to the
health or safety of passengers and
crewmembers. For these reasons,
airlines are not required to transport
these types of service animals in the
cabin, and carriage in the cargo hold
will be in accordance with company
policies on the carriage of animals
generally.
• Other unusual animals such as
miniature horses, pigs, and monkeys
should be evaluated on a case-by-case
basis by U.S. carriers. Factors to
consider are the animal’s size, weight,
state and foreign country restrictions,
and whether or not the animal would
pose a direct threat to the health or
safety of others, or cause a fundamental
alteration (e.g., significant disruption) in
the cabin service. If none of these factors
apply, the animal may accompany the
passenger in the cabin. In most other
situations, the animal should be carried
in the cargo hold in accordance with
company policy. Under the 2008 final
rule, foreign carriers are not required to
transport animals other than dogs.
Miscellaneous Questions
What about the passenger who has two
or more service animals?
• A single passenger legitimately may
have two or more service animals. In
these circumstances, you should make
every reasonable effort to accommodate
them in the cabin in accordance with
Part 382 and company policies on
seating. This might include permitting
the passenger to purchase a second seat
so that the animals can be
accommodated in accordance with FAA
safety regulations. You may offer the
passenger a seat on a later flight if the
passenger and animals cannot be
accommodated together at a single
passenger seat. Airlines may not charge
passengers for accommodations that are
required by Part 382, including
transporting service animals in the cargo
compartment. If carriage in the cargo
compartment is unavoidable, notify the
destination station to return the service
animal(s) to the passenger at the gate as
soon as possible, or to assist the
passenger as necessary to retrieve them
in the appropriate location.
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Should passengers provide advance
notice to the airline concerning multiple
or large service animals?
In most cases, airlines may not insist
on advance notice or health certificates
for service animals under the ACAA
regulations. However, it is very useful
for passengers to contact the airline well
in advance if one or more of their
service animals may need to be
transported in the cargo compartment.
The passenger will need to understand
airline policies and should find out
what type of documents the carrier
would need to ensure the safe passage
of the service animal in the cargo
compartment and any restrictions for
cargo travel that might apply (e.g.,
temperature conditions that limit live
animal transport).
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Accommodating Passengers With
Service Animals in the Cabin
How can airline personnel help ensure
that passengers with service animals are
assigned and obtain appropriate seats on
the aircraft?
• Let passengers know the airline’s
policy about seat assignments for people
with disabilities. For instance: (1)
Should the passenger request
preboarding at the gate? or (2) should
the passenger request an advance seat
assignment (a priority seat such as a
bulkhead seat or aisle seat) up to 24
hours before departure? or (3) should
the passenger request an advance seat
assignment at the gate on the day of
departure? When assigning priority
seats, ask the passenger what location
best fits his/her needs.
• Passengers generally know what
kinds of seats best suit their service
animals. In certain circumstances,
passengers with service animals must
either be provided their pre-requested
priority seats, or if their requested seat
location cannot be made available, they
must be assigned to other available
priority seats of their choice in the same
cabin class. Part 382.81(c) requires
airlines to provide a bulkhead seat or a
seat other than a bulkhead seat at the
request of an individual traveling with
a service animal.
• Passengers should comply with
airline recommendations or
requirements regarding when they
should arrive at the gate before a flight.
This may vary from airport to airport
and airline to airline. Not all airlines
announce preboarding for passengers
with special needs, although it may be
available. If you wish to request
preboarding, tell the agent at the gate.
• A timely request for preboarding by
a passenger with a disability must be
honored (see sections 382.83(c) and
382.93)
Part 382 does not require carriers to
make modifications that would
constitute an undue burden or would
fundamentally alter their programs
(382.13(c)). Therefore, the following are
not required in providing
accommodations for users of service
animals
➢ Requiring another passenger to
give up all or a most of the space in
front of his or her seat to accommodate
a service animal. (There is nothing
wrong with asking another passenger if
the passenger would mind sharing foot
space with a service animal, as distinct
from telling the passenger that he or she
must do so. Indeed, finding a passenger
willing to share space is a common, and
acceptable, method of finding an
appropriate place for someone traveling
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with a service animal that may not be
able to be seated in his or her original
seat location.)
➢ Denying transportation to any
individual on a flight in order to
provide an accommodation to a
passenger with a service animal;
➢ Furnishing more than one seat per
ticket; and
➢ Providing a seat in a class of
service other than the one the passenger
has purchased. (While a carrier is not
required to do so, there could be
situations in which the carrier could
voluntarily reseat a passenger with a
service animal in a different seating
class. For example, suppose that the
economy cabin is completely full and
no alternate seat location in that cabin
can be found for a service animal that
cannot be seated at the passenger’s
original seat location. If the business or
first class cabin has vacant space, the
carrier could choose to move the
passenger and animal into the vacant
space, rather than make the passenger
and animal take a later flight.)
Are airline personnel responsible for the
care and feeding of service animals?
Airline personnel are not required to
provide care, food, or special facilities
for service animals. The care and
supervision of a service animal is solely
the responsibility of the passenger with
a disability whom the animal is
accompanying.
May a carrier charge a maintenance or
cleaning fee to passengers who travel
with service animals?
Part 382 prohibits carriers from
imposing special charges for
accommodations required by the
regulation, such as carriage of a service
animal. However, a carrier may charge
passengers with a disability if a service
animal causes damage, as long as it is
its regular practice to charge nondisabled passengers for similar kinds of
damage. For example, it could charge a
passenger with a disability for the cost
of repairing or cleaning a seat damaged
by a service animal, assuming that it is
its policy to charge when a non-disabled
passenger or his or her pet causes
similar damage.
Advice for Passengers With Service
Animals
• Ask about the airline’s policy on
advance seat assignments for people
with disabilities. For instance: (1)
Should a passenger request preboarding
at the gate? or (2) should a passenger
request an advance seat assignment (a
priority seat such as a (bulkhead seat or
aisle seat)) up to 24 hours before
departure? or (3) should a passenger
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request an advance seat assignment at
the gate on the day of departure?
• Although airlines are not permitted
to automatically require documentation
for service animals other than emotional
support or psychiatric service animals,
if you think it would help you explain
the need for a service animal, you may
want to carry documentation from your
physician or other licensed professional
confirming your need for the service
animal. Passengers with unusual service
animals also may want to carry
documentation confirming that their
animal has been trained to perform a
function or task for them.
• If you are traveling with an
emotional support or psychiatric service
animal, you may be required by the
airline to provide 48 hours’ advance
notice.
• If you need a specific seat
assignment for yourself and your service
animal, make your reservation as far in
advance as you can, and identify your
need at that time.
• You may have to be flexible if your
assigned seat unexpectedly turns out to
be in an emergency exit row. When an
aircraft is changed at the last minute,
seating may be reassigned
automatically. Automatic systems
generally do not recognize special
needs, and may make inappropriate seat
assignments. In that case, you may be
required by FAA regulations to move to
another seat.
• Arrive at the gate when instructed
by the airline, typically at least one hour
before departure, and ask the gate agent
for preboarding—if that is your desire.
• Remember that your assigned seat
may be reassigned if you fail to check
in on time; airlines typically release seat
assignments not claimed 30 minutes
before scheduled departure. In addition,
if you fail to check in on time you may
not be able to take advantage of the
airline’s preboard offer.
• If you have a very large service
animal or multiple animals that might
need to be transported in the cargo
compartment, contact the airline well in
advance of your travel date. In most
cases, airlines cannot insist on advance
notice, except for emotional support or
psychiatric service animals, or on health
certificates for service animals under the
ACAA regulations. However, it is very
useful for passengers to contact the
airline well in advance if one or more
of their service animals may need to be
transported in the cargo compartment.
The passenger will need to understand
airline policies and should find out
what type of documents the carrier
would need to ensure the safe passage
of the service animal in the cargo
compartment and any restrictions for
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cargo travel that might apply (e.g.,
temperature conditions that limit live
animal transport).
• If you are having difficulty
receiving an appropriate
accommodation, ask the airline
employee to contact the airline’s CRO.
Part 382 requires all airlines to have a
CRO available during all hours of
operation. The CRO is a resource for
resolving difficulties related to
disability accommodations.
• Another resource for resolving
issues related to disability
accommodations is the U.S. Department
of Transportation’s Disability Hotline.
The toll-free number is 1–800–778–4838
(voice) and 1–800–455–9880 (TTY).
Glossary
Direct Threat to the Health or Safety of
Others
A significant risk to the health or
safety of others that cannot be
eliminated by a modification of policies,
practices, or procedures, or by the
provision of auxiliary aids or services.
Fundamental Alteration
A modification that substantially
alters the basic nature or purpose of a
program, service, product or activity.
Individual With a Disability
• ‘‘Any individual who has a physical
or mental impairment that, on a
permanent or temporary basis,
substantially limits one or more major
life activities, has a record of such an
impairment, or is regarded as having
such an impairment.’’ (Section 382.5)
Qualified Individual With a Disability
Any individual with a disability who:
(1) ‘‘Takes those actions necessary to
avail himself or herself of facilities or
services offered by a carrier to the
general public with respect to
accompanying or meeting a traveler, use
of ground transportation, using terminal
facilities, or obtaining information about
schedules, fares or policies’’;
(2) ‘‘Offers, or makes a good faith
attempt to offer, to purchase or
otherwise validly to obtain * * * a
ticket’’ ‘‘for air transportation on an
carrier’’; or
(3) ‘‘Purchases or possesses a valid
ticket for air transportation on an carrier
and presents himself or herself at the
airport for the purpose of traveling on
the flight for which the ticket has been
purchased or obtained; and meets
reasonable, nondiscriminatory contract
of carriage requirements applicable to
all passengers.’’ (Section 382.5).
Service Animal
Any animal that is individually
trained or able to provide assistance to
a qualified person with a disability; or
any animal shown by documentation to
be necessary for the emotional wellbeing of a passenger.
Sources
In addition to applicable provisions of
Part 382, the sources for this guidance
include the following: ‘‘Guidance
Concerning Service Animals in Air
Transportation,’’ (61 FR 56420–56422,
(November 1, 1996)), ‘‘Commonly Asked
Questions About Service Animals in
Places of Business’’ (Department of
Justice, July, 1996), and ‘‘ADA Business
Brief: Service Animals’’ (Department of
Justice, April 2002).
Regulatory Analyses and Notices
A. Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
This action has been determined to be
significant under Executive Order 12866
and the Department of Transportation
Regulatory Policies and Procedures. It
extends regulatory coverage under the
ACAA to foreign carriers for the first
time and adds requirements concerning
passengers who use medical oxygen and
accommodations for deaf and hard-ofhearing passengers. These are areas of
considerable importance to passengers
and air carriers and are of interest to the
public and members of Congress.
The costs and benefits of the rule are
summarized in the following tables,
taken from the regulatory evaluation. It
is very important to keep in mind that,
in the Department’s view, this rule has
very significant nonquantifiable
benefits, which these tables do not
address. These nonquantifiable benefits
include increased opportunities for
individuals with disabilities to access
the air travel system without
discrimination and with fewer
unnecessary barriers. This access opens
up business and personal travel
opportunities and the personal and
economic benefits that result from the
increased chance to travel. These
nonquantifiable benefits make the rule
cost-beneficial, even without
considering the significant economic
benefits displayed in the tables below.
TABLE A.—SUMMARY OF FOREIGN CARRIER COST AND BENEFIT ESTIMATES
[Millions 2005$]
On-board
wheelchairs
Cabin
stowage
area for
on-board
wheelchair
and passenger’s
folding
wheelchair
Accessible
lavatories
Personnel
training
costs
Total costs
($M)
Total carrier benefits high
MC case
($M)
Net carrier
benefits
high MC
case
($M)
Total carrier benefits low MC
case
($M)
Net carrier
benefits
low MC
case
($M)
1.161
0.010
2.507
0.061
0.260
0.044
138.373
32.132
22.959
2.769
165.3
35.0
112.0
35.8
¥53.3
0.8
179.2
57.2
13.9
22.2
2.245
0.013
3.051
0.075
0.260
0.044
276.747
64.264
45.917
5.539
328.2
69.9
224.0
71.5
¥104.2
1.6
358.4
114.5
30.2
44.5
Boarding
equipment
(lifts/
ramps,
chairs)
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Low Impact Case:
Present Value over 20
years ...........................
Year 20 undiscounted ....
High Impact Case:
Present Value over 20
years ...........................
Year 20 undiscounted ....
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TABLE B.—SUMMARY OF DEAF AND HARD-OF-HEARING COST AND BENEFIT ESTIMATES
[Millions 2005$]
Assistants’
fares forgone
Reservation TTY
Copy of
part 382
Captioning in
waiting
areas
Public announcements
3.500
0.500
2.420
0.080
0.108
0.000
0.250
0.017
1.400
0.000
7.000
1.000
4.840
0.160
0.216
0.000
0.500
0.034
2.800
0.000
Net carrier benefits high
MC case
($M)
Total carrier benefits low
MC case
($M)
Net carrier benefits low
MC case
($M)
110.1
16.4
22.4
9.4
176.2
26.2
88.5
19.2
175.4
14.0
160.000
12.800
Total carrier benefits high
MC case
($M)
87.7
7.0
80.000
6.400
Low Impact Case:
Present value over 20
years ...........................
Year 20 undiscounted ....
High Impact Case:
Present Value over 20
years ...........................
Year 20 undiscounted ....
Awareness
training
220.2
32.7
44.9
18.7
352.4
52.3
177.0
38.3
Total
costs
($M)
TABLE C.—SUMMARY OF MEDICAL OXYGEN COST AND BENEFIT ESTIMATES
[Millions 2005$]
Total costs
($M)
Low Impact Case:
Present Value over 20 years ............................................................
Year 20 undiscounted .......................................................................
High Impact Case:
Present Value over 20 years ............................................................
Year 20 undiscounted .......................................................................
Total carrier
benefits
high MC
case
($M)
97.2
15.9
449.8
76.3
194.4
31.8
Net carrier
benefits
high MC
case
($M)
899.6
152.7
Total carrier
benefits low
MC case
($M)
Net carrier
benefits low
MC case
($M)
352.6
60.4
719.7
122.2
622.5
106.3
705.2
120.9
1,439.4
244.3
1,245.0
212.5
Total carrier
benefits low
MC case
($M)
Net carrier
benefits low
MC case
($M)
TABLE D.—AGGREGATE COST AND BENEFIT ESTIMATES
[Millions 2005$]
Total costs
($M)
Low Impact Case:
Present Value over 20 years ............................................................
Year 20 undiscounted .......................................................................
High Impact Case:
Present Value over 20 years ............................................................
Year 20 undiscounted .......................................................................
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B. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
review regulations to assess their impact
on small entities unless the agency
determines that a rule is not expected to
have a significant economic impact on
a substantial number of small entities. A
direct air carrier or a foreign carrier is
a small business if it provides air
transportation only with small aircraft
(i.e., aircraft with up to 60 seats/18,000
pound payload capacity). See 14 CFR
399.73. Our analysis identified 338
small businesses potentially affected by
the requirements of the final rule.
We project that about 30 small foreign
carriers would incur costs related to
boarding equipment (small U.S. carriers
already are subject to this requirement).
These costs represent a total present
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Total carrier
benefits
high MC
case
($M)
350.1
57.9
671.9
128.5
321.8
70.6
1,075.1
205.6
724.9
147.6
698.0
115.7
1,343.9
256.9
645.9
141.2
2,150.2
411.1
1,452.2
295.4
value ranging from $1.161 million to
$2.245 million, or from $39,000 to
$75,000 per carrier, almost entirely in
the first two years. When more than one
small carrier uses the same airport,
however, a sharing arrangement may be
more efficient. The affected airlines are,
it should be noted, the larger small
carriers, those which use aircraft with
more than 19 seats and which serve a
greater number of airports.
Both small U.S. and small foreign
carriers would incur costs related to
training. We project that U.S. carriers
would need to provide two hours of
training to each of their employees with
respect to new requirements concerning
oxygen and deaf and hard-of-hearing
passengers. On this assumption, the
present value of training costs would be
$2.6 million or $7,738 for each of the
338 carriers affected by the rule.
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Net carrier
benefits
high MC
case
($M)
Our analysis estimates that training
costs for foreign carriers would amount
to a present value of $0.8 million to $1.6
million over 20 years. Assuming the
number of carriers affected to be 30, the
cost would be $27,000 to $54,000 per
carrier.
With small carriers handling 2.8
percent of the estimated medical oxygen
reservations at a cost of $25 each, we
would project small carrier costs as
being a total present value of $5.4
million, or $16,000 per carrier. This
figure is probably overstated, because
many small carriers are affiliated with
larger airlines that process reservations
for them.
Following the line of argument
adopted throughout Department’s
overall regulatory evaluation, these
costs should be offset by an expected
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increase in the number of PWDs willing
and able to fly on small carriers.
We note that, while we have
examined the effects of the rule on small
foreign as well as small U.S. carriers, the
Regulatory Flexibility Act does not
apply to foreign entities. On the basis of
this examination, the Department
certifies that this rule will not have a
significant economic impact on a
significant number of small entities.
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires an agency to
review regulations to assess their impact
on small entities unless the agency
determines that a rule is not expected to
have a significant economic impact on
a substantial number of small entities. A
direct air carrier or a foreign carrier is
a small business if it provides air
transportation only with small aircraft
(i.e., aircraft with up to 60 seats/18,000
pound payload capacity). See 14 CFR
399.73. Our analyses identified 338
small businesses potentially affected by
the requirements of the final rule.
We project that about 30 small foreign
carriers would incur costs related to
boarding equipment (small U.S. carriers
already are subject to this requirement).
These costs represent a total present
value ranging from $1.161 million to
$2.245 million, or from $39,000 to
$75,000 per carrier, almost entirely in
the first two years. mall carrier use the
same airport, however, a sharing
arrangement may be more efficient. The
affected airlines are, it should be noted,
the larger small carriers, those which
use aircraft with more than 19 seats and
which serve a greater number of
airports.
Both small U.S. and small foreign
carriers would incur costs related to
training. We project that U.S. carriers
would need to train their employees two
hours each with respect to new
requirements concerning oxygen and
deaf and hard-of-hearing passengers. On
this assumption, the a present value of
training costs would be $2.6 million or
$7,738 for each carrier involved.
Our analysis estimates that training
costs for foreign carriers would amount
to a present value of $0.8 million to $1.6
million over 20 years. Assuming the
number of carriers affected to be 30, the
cost for each would be $27,000 to
$54,000 per carrier.
With small carriers handling 2.8
percent of the estimated medical oxygen
reservations at a cost of $25 each, we
would project small carrier costs as
being a total present value of $5.4
million, or $16,000 per carrier. This
figure is probably overstated, because
many small carriers are affiliated with
larger airlines that process reservations
for them.
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Following the line of argument
adopted throughout Department’s
overall regulatory evaluation, these
costs should be offset by an expected
increase in the number of PWDs willing
and able to fly on small carriers.
We note that, while we have
examined the effects of the rule on small
foreign as well as small U.S. carriers, the
Regulatory Flexibility Act does not
apply to foreign entities. On the basis of
this examination, the Department
certifies that this rule will not have a
significant economic impact on a
significant number of small entities.
C. Executive Order 13132 (Federalism)
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132 (‘‘Federalism’’). This final rule
does not include any provision that: (1)
Has substantial direct effects on the
States, the relationship between the
national government and the States, or
the distribution of power and
responsibilities among the various
levels of government; (2) imposes
substantial direct compliance costs on
State and local governments; or (3)
preempts state law. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply.
D. Executive Order 13084
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13084 (‘‘Consultation and Coordination
with Indian Tribal Governments’’).
Because this final rule does not
significantly or uniquely affect the
communities of the Indian tribal
governments and does not impose
substantial direct compliance costs on
them, the funding and consultation
requirements of Executive Order 13084
do not apply.
E. Paperwork Reduction Act
The final rule does contain a new
information collection requirement that
requires approval by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act (44 U.S.C.
2507 et. seq.). Specifically, section
382.145 includes record retention
requirements for information
concerning training. The Department
will pursue OMB approval for this
requirement during the year between
the publication and effective dates of
the rule.
Section 382.157 involves disabilityrelated complaint reporting to the
Department. This provision is identical
to a provision of the existing Part 382,
and it is subject to an existing
Paperwork Reduction Act approval by
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27665
OMB. No further approvals are needed
for this section at the present time.
F. Unfunded Mandates Reform Act
The Department has determined that
the requirements of Title II of the
Unfunded Mandates Reform Act of 1995
do not apply to this rulemaking.
Issued this 28th Day of April, 2008, at
Washington, DC.
Mary E. Peters,
Secretary of Transportation.
List of Subjects in 14 CFR Part 382
Air carriers, Consumer protection,
Individuals with disabilities, Reporting
and recordkeeping requirements.
I For the reasons set forth in the
preamble, the Department revises 14
CFR part 382 to read as follows:
PART 382—NONDISCRIMINATION ON
THE BASIS OF DISABILITY IN AIR
TRAVEL
Sec.
Subpart A—General Provisions
382.1 What is the purpose of this Part?
382.3 What do the terms in this rule mean?
382.5 When are foreign carriers required to
begin complying with the provisions of
this Part?
382.7 To whom do the provisions of this
Part apply?
382.9 What may foreign carriers do if they
believe a provision of a foreign nation’s
law prohibits compliance with a
provision of this Part?
382.10 How does a carrier obtain a
determination that it is providing an
equivalent alternative to passengers with
disabilities?
Subpart B—Nondiscrimination and Access
to Services and Information
382.11 What is the general
nondiscrimination requirement of this
Part?
382.13 Do carriers have to modify policies,
practices, and facilities to ensure
nondiscrimination?
382.15 Do carriers have to make sure that
contractors comply with the
requirements of this Part?
382.17 May carriers limit the number of
passengers with a disability on a flight?
382.19 May carriers refuse to provide
transportation on the basis of disability?
382.21 May carriers limit access to
transportation on the basis that a
passenger has a communicable disease or
other medical condition?
382.23 May carriers require a passenger
with a disability to provide a medical
certificate?
382.25 May a carrier require a passenger
with a disability to provide advance
notice that he or she is traveling on a
flight?
382.27 May a carrier require a passenger
with a disability to provide advance
notice in order to obtain certain specific
services in connection with a flight?
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382.29 May a carrier require a passenger
with a disability to travel with a safety
assistant?
382.31 May carriers impose special charges
on passengers with a disability for
providing services and accommodations
required by this rule?
382.33 May carriers impose other
restrictions on passengers with a
disability that they do not impose on
other passengers?
382.35 May carriers require passengers with
a disability to sign waivers or releases?
Subpart C—Information for Passengers
382.41 What flight-related information must
carriers provide to qualified individuals
with a disability?
382.43 Must information and reservation
services of carriers be accessible to
individuals with hearing and vision
impairments?
382.45 Must carriers make copies of this
Part available to passengers?
Subpart D—Accessibility of Airport
Facilities
382.51 What requirements must carriers
meet concerning the accessibility of
airport facilities?
382.53 What accommodations are required
in airports for individuals with a vision
impairment and individuals who are
deaf or hard-of-hearing?
382.55 May carriers impose security
screening procedures with passengers
with disabilities that go beyond TSA
requirements or those of foreign
governments?
382.57 What services must carriers provide
if their automated kiosks are
inaccessible?
Subpart E—Accessibility of Aircraft
382.61 What are the requirements for
movable aisle armrests?
382.63 What are the requirements for
accessible lavatories?
382.65 What are the requirements
concerning on-board wheelchairs?
382.67 What is the requirement for priority
space in the cabin to store passenger
wheelchairs?
382.69 What requirements must carriers
meet concerning the accessibility of
videos, DVDs, and other audio-visual
presentations shown on aircraft to
individuals who are deaf or hard-ofhearing?
382.71 What other aircraft accessibility
requirements apply to carriers?
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Subpart F—Seating Accommodations
382.81 For which passengers must carriers
make seating accommodations?
382.83 Through what mechanisms do
carriers make seating accommodations?
382.85 What seating accommodations must
carriers make to passengers in
circumstances not covered by 382.81
(a)—(d)?
382.87 What other requirements pertain to
seating for passengers with a disability?
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Subpart G—Boarding, Deplaning, and
Connecting Assistance
382.91 What assistance must carriers
provide to passengers with a disability in
moving within the terminal?
382.93 Must carriers offer preboarding to
passengers with a disability?
382.95 What are carriers’ general
obligations with respect to boarding and
deplaning assistance?
382.97 To which aircraft does the
requirement to provide boarding and
deplaning assistance through the use of
lifts apply?
382.99 What agreements must carriers have
with the airports they serve?
382.101 What other boarding and deplaning
assistance must carriers provide?
382.103 May a carrier leave a passenger
unattended in a wheelchair or other
device?
382.105 What is the responsibility of
carriers at foreign airports at which
airport operators have responsibility for
enplaning, deplaning, and connecting
assistance?
382.145 What records concerning training
must carriers retain?
Subpart H—Services on Aircraft
382.111 What services must carriers
provide to passengers with a disability
on board the aircraft?
382.113 What services are carriers not
required to provide to passengers with a
disability on board the aircraft?
382.115 What requirements apply to onboard safety briefings?
382.117 Must carriers permit passengers
with a disability to travel with service
animals?
382.119 What information must carriers
give individuals with vision or hearing
impairment on aircraft?
The purpose of this Part is to carry out
the Air Carrier Access Act of 1986, as
amended. This rule prohibits both U.S.
and foreign carriers from discriminating
against passengers on the basis of
disability; requires carriers to make
aircraft, other facilities, and services
accessible; and requires carriers to take
steps to accommodate passengers with a
disability.
Subpart I—Stowage of Wheelchairs, Other
Mobility Aids, and Other Assistive Devices
382.121 What mobility aids and other
assistive devices may passengers with a
disability bring into the aircraft cabin?
382.123 What are the requirements
concerning priority cabin stowage space
for wheelchairs and other assistive
devices?
382.125 What procedures do carriers follow
when wheelchairs, other mobility aids,
and other assistive devices must be
stowed in the cargo compartment?
382.127 What procedures apply to stowage
of battery-powered mobility aids?
382.129 What other requirements apply
when passengers’ wheelchairs, other
mobility aids, and other assistive devices
must be disassembled for stowage?
382.131 Do baggage liability limits apply to
mobility aids and other assistive
devices?
382.133 What are the requirements
concerning the evaluation and use of
passenger-supplied electronic devices
that assist passengers with respiration in
the cabin during flight?
Subpart J—Training and Administrative
Provisions
382.141 What training are carriers required
to provide for their personnel?
382.143 When must carriers complete
training for their personnel?
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Subpart K—Complaints and Enforcement
Procedures
382.151 What are the requirements for
providing Complaints Resolution
Officials?
382.153 What actions do CROs take on
complaints?
382.155 How must carriers respond to
written complaints?
382.157 What are carriers’ obligations for
recordkeeping and reporting on
disability-related complaints?
382.159 How are complaints filed with
DOT?
Appendix A to Part 382—Disability
Complaint Reporting Form
Appendix B to Part 382—Cross-Reference
Table
Authority: 49 U.S.C. 41705.
Subpart A—General Provisions
§ 382.1
§ 382.3
mean?
What is the purpose of this Part?
What do the terms in this rule
In this regulation, the terms listed in
this section have the following
meanings:
Air Carrier Access Act or ACAA
means the Air Carrier Access Act of
1986, as amended, the statute that
provides the principal authority for this
Part.
Air transportation means interstate or
foreign air transportation, or the
transportation of mail by aircraft, as
defined in 49 U.S.C. 40102.
Assistive device means any piece of
equipment that assists a passenger with
a disability to cope with the effects of
his or her disability. Such devices are
intended to assist a passenger with a
disability to hear, see, communicate,
maneuver, or perform other functions of
daily life, and may include medical
devices and medications.
Battery-powered mobility aid means
an assistive device that is used by
individuals with mobility impairments
such a wheelchair, a scooter, or a
Segway when it is used as a mobility
device by a person with a mobilityrelated disability.
Carrier means a U.S. citizen (‘‘U.S.
carrier’’) or foreign citizen (‘‘foreign
carrier’’) that undertakes, directly or
indirectly, or by a lease or any other
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arrangement, to engage in air
transportation.
Commuter carrier means an air taxi
operator as defined in 14 CFR part 298
that carries passengers on at least 5
round trips per week on at least one
route between two or more points
according to its published flight
schedules that specify the times, days of
the week and places between which
those flights are performed.
CPAP machine means a continuous
positive airway pressure machine.
Department or DOT means the United
States Department of Transportation.
Direct threat means a significant risk
to the health or safety of others that
cannot be eliminated by a modification
of policies, practices, or procedures, or
by the provision of auxiliary aids or
services.
Equivalent alternative means a policy,
practice, or other accommodation that
provides substantially equivalent
accessibility to passengers with
disabilities, compared to compliance
with a provision of this Part.
Expected maximum flight duration
means 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.
FAA means the Federal Aviation
Administration, an operating
administration of the Department of
Transportation.
Facility means a carrier’s aircraft and
any portion of an airport that a carrier
owns, leases, or controls (e.g.,
structures, roads, walks, parking lots,
ticketing areas, baggage drop-off and
retrieval sites, gates, other boarding
locations, loading bridges) normally
used by passengers or other members of
the public.
High-contrast captioning means
captioning that is at least as easy to read
as white letters on a consistent black
background.
Indirect carrier means a person not
directly involved in the operation of an
aircraft who sells air transportation
services to the general public other than
as an authorized agent of a carrier.
Individual with a disability means any
individual who has a physical or mental
impairment that, on a permanent or
temporary basis, substantially limits one
or more major life activities, has a
record of such an impairment, or is
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regarded as having such an impairment.
As used in this definition, the phrase:
(a) Physical or mental impairment
means:
(1) Any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more of
the following body systems:
neurological, musculoskeletal, special
sense organs, respiratory including
speech organs, cardio-vascular,
reproductive, digestive, genito-urinary,
hemic and lymphatic, skin, and
endocrine; or
(2) Any mental or psychological
disorder, such as mental retardation,
organic brain syndrome, emotional or
mental illness, and specific learning
disabilities.
The term physical or mental
impairment includes, but is not limited
to, such diseases and conditions as
orthopedic, visual, speech, and hearing
impairments; cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental
retardation, emotional illness, drug
addiction, and alcoholism.
(b) Major life activities means
functions such as caring for one’s self,
performing manual tasks, walking,
seeing, hearing, speaking, breathing,
learning, and working.
(c) Has a record of such impairment
means has a history of, or has been
classified, or misclassified, as having a
mental or physical impairment that
substantially limits one or more major
life activities.
(d) Is regarded as having an
impairment means:
(1) Has a physical or mental
impairment that does not substantially
limit major life activities but that is
treated by an air carrier as constituting
such a limitation;
(2) Has a physical or mental
impairment that substantially limits a
major life activity only as a result of the
attitudes of others toward such an
impairment; or
(3) Has none of the impairments set
forth in this definition but is treated by
an air carrier as having such an
impairment.
On-demand air taxi means an air taxi
operator that carries passengers or
property and is not a commuter carrier
as defined in this section.
PHMSA means the Pipeline and
Hazardous Materials Safety
Administration, an operating
administration of the Department of
Transportation.
POC means portable oxygen
concentrator.
Qualified individual with a disability
means an individual with a disability—
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(a) Who, as a passenger (referred to as
a ‘‘passenger with a disability’’),
(1) With respect to obtaining a ticket
for air transportation on a carrier, offers,
or makes a good faith attempt to offer,
to purchase or otherwise validly to
obtain such a ticket;
(2) With respect to obtaining air
transportation, or other services or
accommodations required by this Part,
(i) Buys or otherwise validly obtains,
or makes a good faith effort to obtain, a
ticket for air transportation on a carrier
and presents himself or herself at the
airport for the purpose of traveling on
the flight to which the ticket pertains;
and
(ii) Meets reasonable,
nondiscriminatory contract of carriage
requirements applicable to all
passengers; or
(b) Who, with respect to
accompanying or meeting a traveler,
using ground transportation, using
terminal facilities, or obtaining
information about schedules, fares,
reservations, or policies, takes those
actions necessary to use facilities or
services offered by an air carrier to the
general public, with reasonable
accommodations, as needed, provided
by the carrier.
Scheduled service means any flight
scheduled in the current edition of the
Official Airline Guide, the carrier’s
published schedule, or the computer
reservation system used by the carrier.
TSA means the Transportation
Security Administration, an agency of
the Department of Homeland Security.
United States or U.S. means the
United States of America, including its
territories and possessions.
§ 382.5 When are U.S. and foreign carriers
required to begin complying with the
provisions of this Part?
As a U.S. or foreign carrier, you are
required to comply with the
requirements of this Part on May 13,
2009, except as otherwise provided in
individual sections of this Part.
§ 382.7 To whom do the provisions of this
Part apply?
(a) If you are a U.S. carrier, this Part
applies to you with respect to all your
operations and aircraft, regardless of
where your operations take place,
except as otherwise provided in this
Part.
(b) If you are a foreign carrier, this
Part applies to you only with respect to
flights you operate that begin or end at
a U.S. airport and to aircraft used for
these flights. For purposes of this Part,
a ‘‘flight’’ means a continuous journey
in the same aircraft or with one flight
number that begins or ends at a U.S.
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airport. The following are some
examples of the application of this term:
Example 1 to paragraph (b): A passenger
books a nonstop flight on a foreign carrier
from New York to Frankfurt, or Frankfurt to
New York. Each of these is a ‘‘flight’’ for
purposes of this Part.
Example 2 to paragraph (b): A passenger
books a journey on a foreign carrier from
New York to Prague. The foreign carrier flies
nonstop to Frankfurt. The passenger gets off
the plane in Frankfurt and boards a
connecting flight (with a different flight
number), on the same foreign carrier or a
different carrier, which goes to Prague. The
New York-Frankfurt leg of the journey is a
‘‘flight’’ for purposes of this Part; the
Frankfurt-Prague leg is not. On the reverse
routing, the Prague-Frankfurt leg is not a
covered flight for purposes of this Part, while
the Frankfurt-New York leg is.
Example 3 to paragraph (b): A passenger
books a journey on a foreign carrier from
New York to Prague. The plane stops for
refueling and a crew change in Frankfurt. If,
after deplaning in Frankfurt, the passengers
originating in New York reboard the aircraft
(or a different aircraft, assuming the flight
number remains the same) and continue to
Prague, they remain on a covered flight for
purposes of this Part. This is because their
transportation takes place on a direct flight
between New York and Prague, even though
it had an interim stop in Frankfurt. This
example would also apply in the opposite
direction (Prague to New York via Frankfurt).
Example 4 to paragraph (b): In Example 3,
the foreign carrier is not subject to coverage
under this Part with respect to a Frankfurtoriginating passenger who boards the aircraft
and goes to Prague, or a Prague-originating
passenger who gets off the plane in Frankfurt
and does not continue to New York.
rwilkins on PROD1PC63 with RULES2
(c) As a foreign carrier, you are not
subject to the requirements of this Part
with respect to operations between two
foreign points, even with respect to
flights involving code-sharing
arrangements with U.S. carriers. As a
U.S. carrier that participates in a codesharing arrangement with a foreign
carrier with respect to operations
between two foreign points, you (as
distinct from the foreign carrier) are
responsible for ensuring compliance
with the service provisions of subparts
A through C, F through H, and K with
respect to passengers traveling under
your code on such a flight.
Example 1 to paragraph (c): A passenger
buys a ticket from a U.S. carrier for a journey
from New York to Prague. The ticket carries
the U.S. carrier’s code and flight number
throughout the entire journey. There is a
change of carrier and aircraft in Frankfurt,
and a foreign carrier operates the FrankfurtPrague segment. The foreign carrier is not
subject to the provisions of Part 382 for the
Frankfurt-Prague segment. However, the U.S.
carrier must ensure compliance with the
applicable provisions of Part 382 on the
Frankfurt-Prague segment with respect to
passengers flying under its code, and the
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Department could take enforcement action
against the U.S. carrier for acts or omissions
by the foreign carrier.
(d) As a foreign carrier, if you operate
a charter flight from a foreign airport to
a U.S. airport, and return to a foreign
airport, and you do not pick up any
passengers in the U.S., the charter
operation is not a flight subject to the
requirements of this Part.
(e) Unless a provision of this Part
specifies application to a U.S. carrier or
a foreign carrier, the provision applies
to both U.S. and foreign carriers.
(f) If you are an indirect carrier,
§§ 382.17 through 382.157 of this Part
do not apply, except insofar as
§ 382.11(b) applies to you.
(g) Notwithstanding any provisions of
this Part, you must comply with all FAA
safety regulations, TSA security
regulations, and foreign safety and
security regulations having legally
mandatory effect that apply to you.
§ 382.9 What may foreign carriers do if
they believe a provision of a foreign
nation’s law conflicts with compliance with
a provision of this Part?
(a) If you are a foreign carrier, and you
believe that an applicable provision of
the law of a foreign nation precludes
you from complying with a provision of
this Part, you may request a waiver of
the provision of this Part.
(b) You must send such a waiver
request to the following address:
Assistant General Counsel for Aviation
Enforcement and Proceedings, C–70
U.S. Department of Transportation, 1200
New Jersey Avenue, SE., Room W96–
322, Washington, DC 20590.
(c) Your waiver request must be in
English and include the following
elements:
(1) A copy, in the English language, of
the foreign law involved;
(2) A description of how the foreign
law applies and how it precludes
compliance with a provision of this
Part;
(3) A description of the alternative
means the carrier will use, if the waiver
is granted, to effectively achieve the
objective of the provision of this Part
subject to the waiver or, if applicable, a
justification of why it would be
impossible to achieve this objective in
any way.
(d) The Department may grant the
waiver request, or grant the waiver
request subject to conditions, if it
determines that the foreign law applies,
that it does preclude compliance with a
provision of this Part, and that the
carrier has provided an effective
alternative means of achieving the
objective of the provisions of this Part
subject to the waiver or have
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demonstrated by clear and convincing
evidence that it would be impossible to
achieve this objective in any way.
(e) (1) If you submit a waiver request
on or before September 10, 2008, the
Department will, to the maximum
extent feasible, respond to the request
before May 13, 2009. If the Department
does not respond to the waiver request
by May 13, 2009, you may continue to
implement the policy or practice that is
the subject of your request until the
Department does respond. The
Department will not take enforcement
action with respect to your
implementation of the policy or practice
during the time prior to the
Department’s response.
(2) If you submit a waiver request
after September 10, 2008, the
Department will, to the maximum
extent feasible, respond to the request
by May 13, 2009 or within 180 days of
receiving it, whichever is later. If the
Department does not respond to the
waiver request by this date, you may
continue to implement the policy or
practice that is the subject of your
request until the Department does
respond. However, the Department may
take enforcement action with respect to
your implementation of the policy or
practice during the time between May
13, 2009 and the date of the
Department’s response.
(3) If you submit a waiver request
after September 10, 2008, and the
request pertains to an applicable
provision of the law of a foreign nation
that did not exist on September 10,
2008, you may continue to implement
the policy or practice that is the subject
of your request until the Department
responds to the request. The Department
will, to the maximum extent feasible,
respond to such requests within 180
days of receiving them. The Department
will not take enforcement action with
respect to your implementation of the
policy or practice during the time prior
to the Department’s response.
(f) Notwithstanding any other
provision of this section, the
Department may commence
enforcement action at any time after
May 13, 2009 with respect to the policy
or practice that is the subject of the
request if it finds the request to be
frivolous or dilatory.
(g) If you have not submitted a request
for a waiver under this section with
respect to a provision of this Part, or
such a request has been denied, you
cannot raise the alleged existence of
such a conflict as a defense to an
enforcement action.
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§ 382.10 How does a U.S. or foreign carrier
obtain a determination that it is providing
an equivalent alternative to passengers with
disabilities?
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(a) As a U.S. or foreign carrier, you
may apply to the Department for a
determination that you are providing an
equivalent alternative to passengers
with disabilities.
(b) You must send your application
for an equivalent alternative
determination to the following address:
Assistant General Counsel for Aviation
Enforcement and Proceedings (C–70),
U.S. Department of Transportation, 1200
New Jersey Avenue, SE., Room W96–
322, Washington, DC 20590.
(c) Your application must be in
English and include the following
elements:
(1) A citation to the specific provision
of this Part concerning which you are
proposing an equivalent alternative.
(2) A detailed description of the
alternative policy, practice, or other
accommodation you are proposing to
use in place of compliance with the
provision of this Part that you cite, and
an explanation of how it provides
substantially equivalent accessibility to
passengers with disabilities.
(d) The Department may grant the
application, or grant the application
subject to conditions, if it determines
that the proposed facilitation does
provide substantially equivalent
accessibility to passengers with
disabilities, compared to compliance
with the provision of this Part in
question.
(e) If your application is granted, you
will be deemed to be in compliance
with this Part through implementing the
equivalent alternative. If your
application is denied, you must
implement this Part as written.
(f)(1) If you submit your application
on or before September 10, 2008, the
Department will respond to the request
before May 13, 2009 to the maximum
extent feasible. If the Department does
not respond to the application by May
13, 2009, you may implement your
policy or practice that is the subject of
your application until the Department
does respond.
(2) With respect to an application you
make after September 10, 2008, you
must comply with the provisions of this
Part without change from May 13, 2009
until the Department responds to your
application.
Subpart B—Nondiscrimination and
Access to Services
§ 382.11 What is the general
nondiscrimination requirement of this Part?
(a) As a carrier, you must not do any
of the following things, either directly or
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through a contractual, licensing, or
other arrangement:
(1) You must not discriminate against
any qualified individual with a
disability, by reason of such disability,
in the provision of air transportation;
(2) You must not require a qualified
individual with a disability to accept
special services (including, but not
limited to, preboarding) that the
individual does not request. However,
you may require preboarding as a
condition of receiving certain seating or
in-cabin stowage accommodations, as
specified in §§ 382.83(c), 382.85(b), and
382.123(a) of this Part.
(3) You must not exclude a qualified
individual with a disability from or
deny the person the benefit of any air
transportation or related services that
are available to other persons, except
where specifically permitted by this
Part. This is true even if there are
separate or different services available
for individuals with a disability, except
when specifically permitted by another
section of this Part; and
(4) You must not take any adverse
action against an individual (e.g.
refusing to provide transportation)
because the individual asserts, on his or
her own behalf or through or on behalf
of others, rights protected by this Part or
the Air Carrier Access Act.
(b) If, as an indirect carrier, you
provide facilities or services for other
carriers that are covered by sections
382.17 through 382.157, you must do so
in a manner consistent with those
sections.
§ 382.13 Do carriers have to modify
policies, practices, and facilities to ensure
nondiscrimination?
(a) As a carrier, you must modify your
policies, practices, and facilities when
needed to provide nondiscriminatory
service to a particular individual with a
disability, consistent with the standards
of section 504 of the Rehabilitation Act,
as amended.
(b) This requirement is part of your
general nondiscrimination obligation,
and is in addition to your duty to make
the specific accommodations required
by this Part.
(c) However, you are not required to
make modifications that would
constitute an undue burden or would
fundamentally alter your program.
§ 382.15 Do carriers have to make sure
that contractors comply with the
requirements of this Part?
(a) As a carrier, you must make sure
that your contractors that provide
services to the public (including airports
where applicable) meet the
requirements of this Part that would
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27669
apply to you if you provided the
services yourself.
(b) As a carrier, you must include an
assurance of compliance with this Part
in your contracts with any contractors
that provide services to the public that
are subject to the requirements of this
Part. Noncompliance with this
assurance is a material breach of the
contract on the contractor’s part.
(1) This assurance must commit the
contractor to compliance with all
applicable provisions of this Part in
activities performed on behalf of the
carrier.
(2) The assurance must also commit
the contractor to implementing
directives issued by your CROs under
§§ 382.151 through 382.153.
(c) As a U.S. carrier, you must also
include such an assurance of
compliance in your contracts or
agreements of appointment with U.S.
travel agents. You are not required to
include such an assurance in contracts
with foreign travel agents.
(d) You remain responsible for your
contractors’ compliance with this Part
and for enforcing the assurances in your
contracts with them.
(e) It is not a defense against an
enforcement action by the Department
under this Part that your noncompliance
resulted from action or inaction by a
contractor.
§ 382.17 May carriers limit the number of
passengers with a disability on a flight?
As a carrier, you must not limit the
number of passengers with a disability
who travel on a flight. (See also
§ 382.27(b)(6) of this Part.)
§ 382.19 May carriers refuse to provide
transportation on the basis of disability?
(a) As a carrier, you must not refuse
to provide transportation to a passenger
with a disability on the basis of his or
her disability, except as specifically
permitted by this Part.
(b) You must not refuse to provide
transportation to a passenger with a
disability because the person’s disability
results in appearance or involuntary
behavior that may offend, annoy, or
inconvenience crewmembers or other
passengers.
(c) You may refuse to provide
transportation to any passenger on the
basis of safety, as provided in 49 U.S.C.
44902 or 14 CFR 121.533, or to any
passenger whose carriage would violate
FAA or TSA requirements or applicable
requirements of a foreign government.
(1) You can determine that there is a
disability-related safety basis for
refusing to provide transportation to a
passenger with a disability if you are
able to demonstrate that the passenger
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poses a direct threat (see definition in
§ 382.3). In determining whether an
individual poses a direct threat, you
must make an individualized
assessment, based on reasonable
judgment that relies on current medical
knowledge or on the best available
objective evidence, to ascertain:
(i) The nature, duration, and severity
of the risk;
(ii) The probability that the potential
harm to the health and safety of others
will actually occur; and
(iii) Whether reasonable modifications
of policies, practices, or procedures will
mitigate the risk.
(2) If you determine that the passenger
does pose a direct threat, you must
select the least restrictive response from
the point of view of the passenger,
consistent with protecting the health
and safety of others. For example, you
must not refuse transportation to the
passenger if you can protect the health
and safety of others by means short of
a refusal.
(3) In exercising this authority, you
must not act inconsistently with the
provisions of this Part.
(4) If your actions are inconsistent
with any of the provisions of this Part,
you are subject to enforcement action
under Subpart K of this Part.
(d) If you refuse to provide
transportation to a passenger on his or
her originally-scheduled flight on a
basis relating to the individual’s
disability, you must provide to the
person a written statement of the reason
for the refusal. This statement must
include the specific basis for the
carrier’s opinion that the refusal meets
the standards of paragraph (c) of this
section or is otherwise specifically
permitted by this Part. You must
provide this written statement to the
person within 10 calendar days of the
refusal of transportation.
rwilkins on PROD1PC63 with RULES2
§ 382.21 May carriers limit access to
transportation on the basis that a
passenger has a communicable disease or
other medical condition?
(a) You must not do any of the
following things on the basis that a
passenger has a communicable disease
or infection, unless you determine that
the passenger’s condition poses a direct
threat:
(1) Refuse to provide transportation to
the passenger;
(2) Delay the passenger’s
transportation (e.g., require the
passenger to take a later flight);
(3) Impose on the passenger any
condition, restriction, or requirement
not imposed on other passengers; or
(4) Require the passenger to provide a
medical certificate.
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(b) In assessing whether the
passenger’s condition poses a direct
threat, you must apply the provisions of
§ 382.19(c)(1)–(2) of this subpart.
(1) In making this assessment, you
may rely on directives 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).
(2) In making this assessment, you
must consider the significance of the
consequences of a communicable
disease and the degree to which it can
be readily transmitted by casual contact
in an aircraft cabin environment.
Example 1 to Paragraph (b)(2): The
common cold is readily transmissible in an
aircraft cabin environment but does not have
severe health consequences. Someone with a
cold would not pose a direct threat.
Example 2 to Paragraph (b)(2): AIDS has
very severe health consequences but is not
readily transmissible in an aircraft cabin
environment. Someone would not pose a
direct threat because he or she is HIVpositive or has AIDS.
Example 3 to Paragraph (b)(2): SARS may
be readily transmissible in an aircraft cabin
environment and has severe health
consequences. Someone with SARS probably
poses a direct threat.
(c) If a passenger with a
communicable disease meeting the
direct threat criteria of this section gives
you a medical certificate of the kind
outlined in § 382.23(c)(2) describing
measures for preventing transmission of
the disease during the normal course of
the flight, you must provide
transportation to the passenger, unless
you are unable to carry out the
measures.
(d) If your action under this section
results in the postponement of a
passenger’s travel, you must permit the
passenger to travel at a later time (up to
90 days from the date of the postponed
travel) at the fare that would have
applied to the passenger’s originally
scheduled trip without penalty or, at the
passenger’s discretion, provide a refund
for any unused flights, including return
flights.
(e) If you take any action under this
section that restricts a passenger’s
travel, you must, on the passenger’s
request, provide a written explanation
within 10 days of the request.
§ 382.23 May carriers require a passenger
with a disability to provide a medical
certificate?
(a) Except as provided in this section,
you must not require a passenger with
a disability to have a medical certificate
as a condition for being provided
transportation.
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(b)(1) You may require a medical
certificate for a passenger with a
disability—
(i) Who is traveling in a stretcher or
incubator;
(ii) Who needs medical oxygen during
a flight; or
(iii) Whose 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.
(2) For purposes of this paragraph, a
medical certificate is a written statement
from the passenger’s physician saying
that the passenger is capable of
completing the flight safely, without
requiring extraordinary medical
assistance during the flight.
(3) To be valid, a medical certificate
under this paragraph must be dated
within 10 days of the scheduled date of
the passenger’s initial departing flight.
Example to paragraph (b)(3): A passenger
who schedules a flight from New York to
London on January 15 with a return on April
15 would have to show a medical certificate
dated January 5 or later. The passenger
would not have to show a second medical
certificate dated April 5 or later.
(c)(1) You may also require a medical
certificate for a passenger if he or she
has a communicable disease or
condition that could pose a direct threat
to the health or safety of others on the
flight.
(2) For purposes of this paragraph, a
medical certificate is a written statement
from the passenger’s physician saying
that the disease or infection would not,
under the present conditions in the
particular passenger’s case, be
communicable to other persons during
the normal course of a flight. The
medical certificate must state any
conditions or precautions that would
have to be observed to prevent the
transmission of the disease or infection
to other persons in the normal course of
a flight. A medical certificate under this
paragraph must be dated within 10 days
of the date of the flight for which it is
presented.
(d) As a carrier, you may require that
a passenger with a medical certificate
undergo additional medical review by
you if there is a legitimate medical
reason for believing that there has been
a significant adverse change in the
passenger’s condition since the issuance
of the medical certificate or that the
certificate significantly understates the
passenger’s risk to the health of other
persons on the flight. If the results of
this medical review demonstrate that
the passenger, notwithstanding the
medical certificate, is likely to be unable
to complete the flight without requiring
extraordinary medical assistance (e.g.,
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the passenger has apparent significant
difficulty in breathing, appears to be in
substantial pain, etc.) or would pose a
direct threat to the health or safety of
other persons on the flight, you may
take an action otherwise prohibited
under § 382.23(a) of this Part.
§ 382.25 May a carrier require a passenger
with a disability to provide advance notice
that he or she is traveling on a flight?
As a carrier, you must not require a
passenger with a disability to provide
advance notice of the fact that he or she
is traveling on a flight.
rwilkins on PROD1PC63 with RULES2
§ 382.27 May a carrier require a passenger
with a disability to provide advance notice
in order to obtain certain specific services
in connection with a flight?
(a) Except as provided in paragraph
(b) of this section and §§ 382.133(c)(3)
and 382.133(d)(3), as a carrier you must
not require a passenger with a disability
to provide advance notice in order to
obtain services or accommodations
required by this Part.
(b) You may require a passenger with
a disability to provide up to 72 hours’
advance notice and check in one hour
before the check-in time for the general
public to receive carrier-supplied inflight medical oxygen on international
flights, 48 hours’ advance notice and
check-in one hour before the check-in
time for the general public to receive
carrier-supplied in-flight medical
oxygen on domestic flights, and 48
hours’ advance notice and check-in one
hour before the check-in time for the
general public to use his/her ventilator,
respirator, CPAP machine or POC.
(c) You may require a passenger with
a disability to provide up to 48 hours’
advance notice and check in one hour
before the check-in time for the general
public to receive the following services
and accommodations. The services
listed in paragraphs (c)(1) through (c)(3)
of this section are optional; you are not
required to provide them, but you may
choose to do so.
(1) Carriage of an incubator;
(2) Hook-up for a respirator,
ventilator, CPAP machine or POC to the
aircraft electrical power supply;
(3) Accommodation for a passenger
who must travel in a stretcher;
(4) Transportation for an electric
wheelchair on an aircraft with fewer
than 60 seats;
(5) Provision of hazardous materials
packaging for batteries or other assistive
devices that are required to have such
packaging;
(6) Accommodation for a group of ten
or more qualified individuals with a
disability, who make reservations and
travel as a group; and
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(7) Provision of an on-board
wheelchair on an aircraft with more
than 60 seats that does not have an
accessible lavatory.
(8) Transportation of an emotional
support or psychiatric service animal in
the cabin;
(9) Transportation of a service animal
on a flight segment scheduled to take 8
hours or more;
(10) Accommodation of a passenger
who has both severe vision and hearing
impairments (see § 382.29(b)(4)).
(d) If the passenger with a disability
provides the advance notice you
require, consistent with this section, for
a service that you must provide (see
paragraphs (c)(4) through (c)(10) of this
section) or choose to provide (see
paragraphs (c)(1) through (c)(3) of this
section), you must provide the
requested service or accommodation.
(e) Your reservation and other
administrative systems must ensure that
when passengers provide the advance
notice that you require, consistent with
this section, for services and
accommodations, the notice is
communicated, clearly and on time, to
the people responsible for providing the
requested service or accommodation.
(f) If a passenger with a disability
provides the advance notice you
require, consistent with this section,
and the passenger is forced to change to
another flight (e.g., because of a flight
cancellation), you must, to the
maximum extent feasible, provide the
accommodation on the new flight. If the
new flight is another carrier’s flight, you
must provide the maximum feasible
assistance to the other carrier in
providing the accommodation the
passenger requested from you.
(g) If a passenger does not meet
advance notice or check-in requirements
you establish consistent with this
section, you must still provide the
service or accommodation if you can do
so by making reasonable efforts, without
delaying the flight.
§ 382.29 May a carrier require a passenger
with a disability to travel with a safety
assistant?
(a) Except as provided in paragraph
(b) of this section, you must not require
that a passenger with a disability travel
with another person as a condition of
being provided air transportation.
(b) You may require a passenger with
a disability in one of the following
categories to travel with a safety
assistant as a condition of being
provided air transportation, if you
determine that a safety assistant is
essential for safety:
(1) A passenger traveling in a stretcher
or incubator. The safety assistant for
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such a person must be capable of
attending to the passenger’s in-flight
medical needs;
(2) A passenger who, because of a
mental disability, is unable to
comprehend or respond appropriately to
safety instructions from carrier
personnel, including the safety briefing
required by 14 CFR 121.571(a)(3) and
(a)(4) or 14 CFR 135.117(b) or the safety
regulations of a foreign carrier’s
government, as applicable;
(3) A passenger with a mobility
impairment so severe that the person is
unable to physically assist in his or her
own evacuation of the aircraft;
(4) A passenger who has both severe
hearing and severe vision impairments,
if the passenger cannot establish some
means of communication with carrier
personnel that is adequate both to
permit transmission of the safety
briefing required by 14 CFR 121.57(a)(3)
and (a)(4), 14 CFR 135,117(b) or the
safety regulations of a foreign carrier’s
government, as applicable, and to
enable the passenger to assist in his or
her own evacuation of the aircraft in the
event of an emergency. You may require
a passenger with severe hearing and
vision impairment who wishes to travel
without a safety assistant to notify you
at least 48 hours in advance to provide
this explanation. If the passenger fails to
meet this notice requirement, however,
you must still accommodate him or her
to the extent practicable.
(c)(1) If you determine that a person
meeting the criteria of paragraph (b)(2),
(b)(3) or (b)(4) of this section must travel
with a safety assistant, contrary to the
individual’s self-assessment that he or
she is capable of traveling
independently, you must not charge for
the transportation of the safety assistant.
You are not required to find or provide
the safety assistant, however.
(2) For purposes of paragraph (b)(4) of
this section, you may require, contrary
to the individual’s self-assessment, that
an individual with both severe hearing
and vision impairments must travel
with a safety assistant if you determine
that—
(i) The means of communication that
the individual has explained to you
does not adequately satisfy the
objectives identified in paragraph (b)(4)
of this section; or
(ii) The individual proposes to
establish communication by means of
finger spelling and you cannot, within
the time following the individual’s
notification, arrange for a flight crew
member who can communicate using
this method to serve the passenger’s
flight.
(3) If a passenger voluntarily chooses
to travel with a personal care attendant
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or safety assistant that you do not
require, you may charge for the
transportation of that person.
(d) If, because there is not a seat
available on a flight for a safety assistant
whom the carrier has determined to be
necessary, a passenger with a disability
holding a confirmed reservation is
unable to travel on the flight, you must
compensate the passenger with a
disability in an amount to be calculated
as provided for instances of involuntary
denied boarding under 14 CFR part 250,
where part 250 applies.
(e) For purposes of determining
whether a seat is available for a safety
assistant, you must deem the safety
assistant to have checked in at the same
time as the passenger with a disability.
(f) Concern that a passenger with a
disability may need personal care
services (e.g., assistance in using
lavatory facilities or with eating) is not
a basis for requiring the passenger to
travel with a safety assistant. You must
explain this clearly in training or
information you provide to your
employees. You may advise passengers
that your personnel are not required to
provide such services.
rwilkins on PROD1PC63 with RULES2
§ 382.31 May carriers impose special
charges on passengers with a disability for
providing services and accommodations
required by this rule?
(a) Except as otherwise provided in
this Part you must not, as a carrier,
impose charges for providing facilities,
equipment, or services that this rule
requires to be provided to passengers
with a disability. You may charge for
services that this Part does not require.
(b) You may charge a passenger for
the use of more than one seat if the
passenger’s size or condition (e.g., use of
a stretcher) causes him or her to occupy
the space of more than one seat. This is
not considered a special charge under
this section.
(c) If your web site that passengers use
to make reservations or purchase tickets
is not accessible to a passenger with a
disability, you must not charge a fee to
the passenger who is consequently
unable to make a reservation or
purchase a ticket on that site for using
another booking method (e.g., making a
reservation by phone). If a discount is
made available to a passenger who
books a flight using an inaccessible web
site, you must make that discount
available to a passenger with a disability
who cannot use the web site and who
purchases a ticket from you using
another method.
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§ 382.33 May carriers impose other
restrictions on passengers with a disability
that they do not impose on other
passengers?
(a) As a carrier, you must not subject
passengers with a disability to
restrictions that do not apply to other
passengers, except as otherwise
permitted in this Part (e.g., advance
notice requirements for certain services
permitted by § 382.27).
(b) Restrictions you must not impose
on passengers with a disability include,
but are not limited to, the following:
(1) Restricting passengers’’ movement
within the terminal;
(2) Requiring passengers to remain in
a holding area or other location in order
to receive transportation, services, or
accommodations;
(3) Making passengers sit on blankets
on the aircraft;
(4) Making passengers wear badges or
other special identification (e.g., similar
to badges worn by unaccompanied
minors); or
(5) Otherwise mandating separate
treatment for passengers with a
disability, unless permitted or required
by this Part or other applicable Federal
requirements.
§ 382.35 May carriers require passengers
with a disability to sign waivers or
releases?
(a) As a carrier, you must not require
passengers with a disability to sign a
release or waiver of liability in order to
receive transportation or to receive
services or accommodations for a
disability.
(b) You must not require passengers
with a disability to sign waivers of
liability for damage to or loss of
wheelchairs or other assistive devices,
or for the loss of, death of, or injury to
service animals. Carriers may note preexisting damage to an assistive device to
the same extent that carriers do this
with respect to other checked baggage.
Subpart C—Information for
Passengers
§ 382.41 What flight-related information
must carriers provide to qualified
individuals with a disability?
As a carrier, you must provide the
following information, on request, to
qualified individuals with a disability or
persons making inquiries on their behalf
concerning the accessibility of the
aircraft expected to make a particular
flight. The information you provide
must be specific to the aircraft you
expect to use for the flight unless it is
unfeasible for you to do so (e.g., because
unpredictable circumstances such as
weather or a mechanical problem
require substitution of another aircraft
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that could affect the location or
availability of an accommodation). The
required information is:
(a) The specific location of seats, if
any, with movable armrests (i.e., by row
and seat number);
(b) The specific location of seats (i.e.,
by row and seat number) that the
carrier, consistent with this Part, does
not make available to passengers with a
disability (e.g., exit row seats);
(c) Any aircraft-related, servicerelated or other limitations on the
ability to accommodate passengers with
a disability, including limitations on the
availability of level-entry boarding to
the aircraft at any airport involved with
the flight. You must provide this
information to any passenger who states
that he or she uses a wheelchair for
boarding, even if the passenger does not
explicitly request the information.
(d) Any limitations on the availability
of storage facilities, in the cabin or in
the cargo bay, for mobility aids or other
assistive devices commonly used by
passengers with a disability, including
storage in the cabin of a passenger’s
wheelchair as provided in §§ 382.67 and
382.123 of this Part;
(e) Whether the aircraft has an
accessible lavatory; and
(f) The types of services to passengers
with a disability that are or are not
available on the flight.
§ 382.43 Must information and reservation
services of carriers be accessible to
individuals who are deaf, hard of hearing,
or deaf-blind?
(a) If, as a carrier, you provide
telephone reservation and information
service to the public, you must make
this service available to individuals who
use a text telephone (TTY), whether via
your own TTY, voice relay, or other
available technology, as follows:
(1) You must provide access to TTY
users during the same hours as the
telephone service is available to the
general public.
(2) You must ensure that the response
time for answering calls and the level of
service provided to TTY users is
substantially equivalent to the response
time and level of service provided to the
general public (i.e., non-TTY users).
(3) You must not subject TTY users to
charges exceeding those that apply to
non-TTY users of telephone information
and reservation service.
(4) In any medium in which you list
the telephone number of your
information and reservation service for
the general public, you must also list
your TTY number if you have one. If
you do not have a TTY number, you
must state how TTY users can reach
your information and reservation
service (e.g., via a voice relay service).
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(5) If you are a foreign carrier, you
must meet this requirement by May 13,
2010.
(b) The requirements of paragraph (a)
do not apply to you in any country in
which the telecommunications
infrastructure does not readily permit
compliance.
§ 382.45 Must carriers make copies of this
Part available to passengers?
(a) As a carrier, you must keep a
current copy of this Part at each airport
you serve. As a foreign carrier, you must
keep a copy of this Part at each airport
serving a flight you operate that begins
or ends at a U.S. airport. You must make
this copy available for review by any
member of the public on request.
(b) If you have a Web site, it must
provide notice to consumers that they
can obtain a copy of this Part in an
accessible format from the Department
of Transportation by any of the
following means:
(1) For calls made from within the
United States, by telephone via the TollFree Hotline for Air Travelers with
Disabilities at 1–800–778–4838 (voice)
or 1–800–455–9880 (TTY),
(2) By telephone to the Aviation
Consumer Protection Division at 202–
366–2220 (voice) or 202–366–0511
(TTY),
(3) By mail to the Air Consumer
Protection Division, C–75, U.S.
Department of Transportation, 1200
New Jersey Ave., SE., West Building,
Room W96–432, Washington, DC 20590,
and
(4) On the Aviation Consumer
Protection Division’s Web site (https://
airconsumer.ost.dot.gov).
Subpart D—Accessibility of Airport
Facilities
rwilkins on PROD1PC63 with RULES2
§ 382.51 What requirements must carriers
meet concerning the accessibility of airport
facilities?
(a) As a carrier, you must comply with
the following requirements with respect
to all terminal facilities you own, lease,
or control at a U.S. airport:
(1) You must ensure that terminal
facilities providing access to air
transportation are readily accessible to
and usable by individuals with
disabilities, including individuals who
use wheelchairs. You are deemed to
comply with this obligation if the
facilities meet requirements applying to
places of public accommodation under
Department of Justice (DOJ) regulations
implementing Title III of the Americans
with Disabilities Act (ADA).
(2) With respect to any situation in
which boarding and deplaning by levelentry loading bridges or accessible
passenger lounges to and from an
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aircraft is not available, you must ensure
that there is an accessible route between
the gate and the area from which aircraft
are boarded (e.g., the tarmac in a
situation in which level-entry boarding
is not available). An accessible route is
one meeting the requirements of the
Americans with Disabilities Act
Accessibility Guidelines (ADAAG),
sections 4.3.3 through 4.3.10.
(3) You must ensure that systems of
intra- and inter-terminal transportation,
including, but not limited to, moving
sidewalks, shuttle vehicles and people
movers, comply with applicable
requirements of the Department of
Transportation’s ADA rules (49 CFR
parts 37 and 38).
(4) Your contracts or leases with
airport operators concerning the use of
airport facilities must set forth your
airport accessibility responsibility under
this Part and that of the airport operator
under applicable section 504 and ADA
rules of the Department of
Transportation and Department of
Justice.
(5) In cooperation with the airport
operator and in consultation with local
service animal training organization(s),
you must provide animal relief areas for
service animals that accompany
passengers departing, connecting, or
arriving at an airport on your flights.
(6) You must enable captioning at all
times on all televisions and other audiovisual displays that are capable of
displaying captions and that are located
in any portion of the terminal to which
any passengers have access on May 13,
2009. The captioning must be highcontrast insofar as is feasible.
(7) You must replace any televisions
and other audio-visual displays
providing passengers with safety
briefings, information, or entertainment
that do not have high-contrast
captioning capability with equipment
that does have such capability whenever
such equipment is replaced in the
normal course of operations and/or
whenever areas of the terminal in which
such equipment is located are
undergoing substantial renovation or
expansion.
(8) If you newly acquire televisions
and other audio-visual displays for
passenger safety briefings, information,
or entertainment on or after May 13,
2009, such equipment must have highcontrast captioning capability.
(b) As a carrier, you must ensure that
passengers with a disability can readily
use all terminal facilities you own,
lease, or control at a foreign airport. In
the case of foreign carriers, this
requirement applies only to terminal
facilities that serve flights covered by
§ 382.7 of this part.
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(1) This means that passengers with a
disability must be able to move readily
through such terminal facilities to get to
or from the gate and any other area from
which passengers board the aircraft you
use for such flights (e.g., the tarmac in
the case of flights that do not use levelentry boarding). This obligation is in
addition to your obligation to provide
enplaning, deplaning, and connecting
assistance to passengers.
(2) You may meet this obligation
through any combination of facility
accessibility, auxiliary aids, equipment,
the assistance of personnel, or other
appropriate means consistent with the
safety and dignity of passengers with a
disability.
(c) As a foreign carrier, you must meet
the requirements of this section by May
13, 2010. As a U.S. carrier, you must
meet the requirements of paragraph (b)
of this section by May 13, 2010.
§ 382.53 What information must carriers
give individuals with a vision or hearing
impairment at airports?
(a)(1) As a U.S. carrier, you must
ensure that passengers with a disability
who identify themselves as persons
needing visual or hearing assistance
have prompt access to the same
information provided to other
passengers at each gate, ticketing area,
and customer service desk that you
own, lease, or control at any U.S. or
foreign airport, to the extent that this
does not interfere with employees’
safety and security duties as set forth in
FAA, TSA, and applicable foreign
regulations.
(2) As a foreign carrier, you must
make this information available at each
gate, ticketing area, and customer
service desk that you own, lease, or
control at any U.S. airport. At foreign
airports, you must make this
information available only at gates,
ticketing areas, or customer service
desks that you own, lease, or control
and only for flights that begin or end in
the U.S.
(3) As a U.S. or foreign carrier, at any
U.S. airport covered by this paragraph
where the airport has effective control
over the covered gates, ticketing areas,
and customer service desks, you and the
airport are jointly responsible for
compliance.
(b) The information you must provide
under paragraph (a) of this section
includes, but is not limited to, the
following: Information concerning flight
safety, ticketing, flight check-in, flight
delays or cancellations, schedule
changes, boarding information,
connections, gate assignments, checking
baggage, volunteer solicitation on
oversold flights (e.g., offers of
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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).
(c) With respect to information on
claiming baggage, you must provide the
information to passengers who identify
themselves as persons needing visual or
hearing assistance no later than you
provide this information to other
passengers.
rwilkins on PROD1PC63 with RULES2
§ 382.55 May carriers impose security
screening procedures for passengers with
disabilities that go beyond TSA
requirements or those of foreign
governments?
(a) All passengers, including those
with disabilities, are subject to TSA
security screening requirements at U.S.
airports. In addition, passengers at
foreign airports, including those with
disabilities, may be subject to security
screening measures required by law of
the country in which the airport is
located.
(b) If, as a carrier, you impose security
screening procedures for passengers
with disabilities that go beyond those
mandated by TSA (or, at a foreign
airport, beyond the law of the country
in which the airport is located), you
must ensure that they meet the
following requirements:
(1) You must use the same criteria for
applying security screening procedures
to passengers with disabilities as to
other passengers.
(2) You must not subject a passenger
with a disability to special screening
procedures because the person is
traveling with a mobility aid or other
assistive device if the person using the
aid or device clears the security system
without activating it.
(i) However, your security personnel
may examine a mobility aid or assistive
device which, in their judgment, may
conceal a weapon or other prohibited
item.
(ii) You may conduct security
searches of qualified individuals with a
disability whose aids activate the
security system in the same manner as
for other passengers.
(3) You must not require private
security screenings of passengers with a
disability to a greater extent, or for any
different reason, than for other
passengers.
(c) Except as provided in paragraph
(c) of this section, if a passenger with a
disability requests a private screening in
a timely manner, you must provide it in
time for the passenger to enplane.
(d) If you use technology that can
conduct an appropriate screening of a
passenger with a disability without
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necessitating a physical search of the
person, you are not required to provide
a private screening.
§ 382.57 What services must carriers
provide if their automated kiosks are
inaccessible?
As a carrier, if your automated kiosks
in airport terminals cannot readily be
used by a passenger with a disability for
such functions as ticketing and
obtaining boarding passes that the
kiosks make available to other
passengers, you must provide
equivalent service to the passenger (e.g.,
by assistance from your personnel in
using the kiosk or allowing the
passenger to come to the front of the
line at the check-in counter).
Subpart E—Accessibility of Aircraft
§ 382.61 What are the requirements for
movable aisle armrests?
(a) As a carrier, you must ensure that
aircraft with 30 or more passenger seats
on which passenger aisle seats have
armrests are equipped with movable
aisle armrests on at least one-half of the
aisle seats in rows in which passengers
with mobility impairments are
permitted to sit under FAA or
applicable foreign government safety
rules.
(b) You are not required to provide
movable armrests on aisle seats of rows
which a passenger with a mobility
impairment is precluded from using by
an FAA safety rule.
(c) You must ensure that these
movable aisle armrests are provided
proportionately in all classes of service
in the cabin. For example, if 80 percent
of the aisle seats in which passengers
with mobility impairments may sit are
in coach, and 20 percent are in first
class, then 80 percent of the movable
aisle armrests must be in coach, with 20
percent in first class.
(d) For aircraft equipped with
movable aisle armrests, you must
configure cabins, or establish
administrative systems, to ensure that
passengers with mobility impairments
or other passengers with a disability can
readily identify and obtain seating in
rows with movable aisle armrests. You
must provide this information by
specific seat and row number.
(e) You are not required to retrofit
cabin interiors of existing aircraft to
comply with the requirements of this
section. However, if you replace any of
an aircraft’s aisle seats with newly
manufactured seats, the new seats must
include movable aisle armrests as
required by this section. However, an
aircraft is never required to have
movable aisle armrests on more than
one half of the aisle seats.
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(f) As a foreign carrier, you must
comply with the requirements of
paragraphs (a) through (d) of this section
with respect to new aircraft you operate
that were initially ordered after May 13,
2009 or which are delivered after May
13, 2010. As a U.S. carrier, the
requirements of paragraphs (a), (b), (d),
and (e) of this section applies to you
with respect to new aircraft you operate
that were initially ordered after April 5,
1990, or which are delivered after April
5, 1992. As a U.S. carrier, paragraph (c)
of this section applies to you with
respect to new aircraft you operate that
were initially ordered after May 13,
2009 or which were delivered after May
13, 2010.
(g) As a foreign carrier, you must
comply with the requirements of
paragraph (e) of this section with
respect to seats ordered after May 13,
2009.
§ 382.63 What are the requirements for
accessible lavatories?
(a) As a carrier, you must ensure that
aircraft with more than one aisle in
which lavatories are provided shall
include at least one accessible lavatory.
(1) The accessible lavatory must
permit a qualified individual with a
disability to enter, maneuver within as
necessary to use all lavatory facilities,
and leave, by means of the aircraft’s onboard wheelchair.
(2) The accessible lavatory must
afford privacy to persons using the onboard wheelchair equivalent to that
afforded ambulatory users.
(3) The lavatory shall provide door
locks, accessible call buttons, grab bars,
faucets and other controls, and
dispensers usable by qualified
individuals with a disability, including
wheelchair users and persons with
manual impairments.
(b) With respect to aircraft with only
one aisle in which lavatories are
provided, you may, but are not required
to, provide an accessible lavatory.
(c) You are not required to retrofit
cabin interiors of existing aircraft to
comply with the requirements of this
section. However, if you replace a
lavatory on an aircraft with more than
one aisle, you must replace it with an
accessible lavatory.
(d) As a foreign carrier, you must
comply with the requirements of
paragraph (a) of this section with
respect to new aircraft you operate that
were initially ordered after May 13,
2009 or which are delivered after May
13, 2010. As a U.S. carrier, this
requirement applies to you with respect
to new aircraft you operate that were
initially ordered after April 5, 1990, or
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which were delivered after April 5,
1992.
(e) As a foreign carrier, you must
comply with the requirements of
paragraph (c) of this section beginning
May 13, 2009. As a U.S. carrier, these
requirements apply to you with respect
to new aircraft you operate that were
initially ordered after April 5, 1990, or
which were delivered after April 5,
1992.
§ 382.65 What are the requirements
concerning on-board wheelchairs?
rwilkins on PROD1PC63 with RULES2
(a) As a carrier, you must equip
aircraft that have more than 60
passenger seats, and that have an
accessible lavatory (whether or not
having such a lavatory is required by
§ 382.63 of this Part) with an on-board
wheelchair. The Aerospatiale/Aeritalia
ATR–72 and the British Aerospace
Advanced Turboprop (ATP), in
configurations having between 60 and
70 passenger seats, are exempt from this
requirement.
(b) If a passenger asks you to provide
an on-board wheelchair on a particular
flight, you must provide it if the aircraft
being used for the flight has more than
60 passenger seats, even if the aircraft
does not have an accessible lavatory.
(1) The basis of the passenger’s
request must be that he or she can use
an inaccessible lavatory but cannot
reach it from a seat without using an onboard wheelchair.
(2) You may require the passenger to
provide the advance notice specified in
§ 382.27 to receive this service.
(c) You must ensure that on-board
wheelchairs meet the following
standards:
(1) On-board wheelchairs must
include footrests, armrests which are
movable or removable, adequate
occupant restraint systems, a backrest
height that permits assistance to
passengers in transferring, structurally
sound handles for maneuvering the
occupied chair, and wheel locks or
another adequate means to prevent chair
movement during transfer or turbulence.
(2) The chair must be designed to be
compatible with the maneuvering space,
aisle width, and seat height of the
aircraft on which it is to be used, and
to be easily pushed, pulled, and turned
in the cabin environment by carrier
personnel.
(d) As a foreign carrier, you must meet
this requirement as of May 13, 2010. As
a U.S. carrier, you must meet this
requirement by May 13, 2009.
(a) As a carrier, you must ensure that
there is a priority space in the cabin of
16:54 May 12, 2008
Jkt 214001
§ 382.69 What requirements must carriers
meet concerning the accessibility of videos,
DVDs, and other audio-visual presentations
shown on-aircraft to individuals who are
deaf or hard of hearing?
(a) As a carrier, you must ensure that
all new videos, DVDs, and other audiovisual displays played on aircraft for
safety purposes, and all such new
audio-visual displays played on aircraft
for informational purposes that were
created under your control, are highcontrast captioned. The captioning must
be in the predominant language or
languages in which you communicate
with passengers on the flight.
(b) The requirements of paragraph (a)
of this section go into effect with respect
to audio-visual displays used for safety
purposes on November 10, 2009.
(c) Between May 13, 2009 and
November 9, 2009, U.S. carriers must
ensure that all videos, DVDs, and other
audio-visual displays played on aircraft
for safety purposes have open
captioning or an inset for a sign
language interpreter, unless such
captioning or inset either would
interfere with the video presentation so
as to render it ineffective or would not
be large enough to be readable, in which
case these carriers must use an
equivalent non-video alternative for
transmitting the briefing to passengers
with hearing impairments.
(d) The requirements of paragraph (a)
of this section go into effect with respect
to informational displays on January 8,
2010.
§ 382.71 What other aircraft accessibility
requirements apply to carriers?
§ 382.67 What is the requirement for
priority space in the cabin to store
passengers’ wheelchairs?
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sufficient size to stow at least one
typical adult-sized folding, collapsible,
or break-down manual passenger
wheelchair, the dimensions of which
are within a space of 13 inches by 36
inches by 42 inches without having to
remove the wheels or otherwise
disassemble it. This requirement applies
to any aircraft with 100 or more
passenger seats; and
(b) This space must be other than the
overhead compartments and under-seat
spaces routinely used for passengers’
carry-on items.
(c) As a foreign carrier, you must meet
the requirement of paragraph (a) of this
section for new aircraft ordered after
May 13, 2009 or delivered after May 13,
2010. As a U.S. carrier, this requirement
applies to you with respect to new
aircraft you operate that were ordered
after April 5, 1990, or which were
delivered after April 5, 1992.
(a) As a carrier, you must maintain all
aircraft accessibility features in proper
working order.
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(b) You must ensure that any
replacement or refurbishing of the
aircraft cabin or its elements does not
reduce the accessibility of that element
to a level below that specified in this
Part.
Subpart F—Seating Accommodations
§ 382.81 For which passengers must
carriers make seating accommodations?
As a carrier, you must provide the
following seating accommodations to
the following passengers on request, if
the passenger self-identifies to you as
having a disability specified in this
section and the type of seating
accommodation in question exists on
the particular aircraft. Once the
passenger self-identifies to you, you
must ensure that the information is
recorded and properly transmitted to
personnel responsible for providing the
accommodation.
(a) For a passenger who uses an aisle
chair to access the aircraft and who
cannot readily transfer over a fixed aisle
armrest, you must provide a seat in a
row with a movable aisle armrest. You
must ensure that your personnel are
trained in the location and proper use
of movable aisle armrests, including
appropriate transfer techniques. You
must ensure that aisle seats with
movable armrests are clearly
identifiable.
(b) You must provide an adjoining
seat for a person assisting a passenger
with a disability in the following
circumstances:
(1) When a passenger with a disability
is traveling with a personal care
attendant who will be performing a
function for the individual during the
flight that airline personnel are not
required to perform (e.g., assistance
with eating);
(2) When a passenger with a vision
impairment is traveling with a reader/
assistant who will be performing
functions for the individual during the
flight;
(3) When a passenger with a hearing
impairment is traveling with an
interpreter who will be performing
functions for the individual during the
flight; or
(4) When you require a passenger to
travel with a safety assistant (see
§ 382.29).
(c) For a passenger with a disability
traveling with a service animal, you
must provide, as the passenger requests,
either a bulkhead seat or a seat other
than a bulkhead seat.
(d) For a passenger with a fused or
immobilized leg, you must provide a
bulkhead seat or other seat that provides
greater legroom than other seats, on the
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side of an aisle that better
accommodates the individual’s
disability.
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§ 382.83 Through what mechanisms do
carriers make seating accommodations?
(a) If you are a carrier that provides
advance seat assignments to passengers
(i.e., offer seat assignments to
passengers before the day of the flight),
you must comply with the requirements
of § 382.81 of this Part by any of the
following methods:
(1) You may ‘‘block’’ an adequate
number of the seats used to provide the
seating accommodations required by
§ 382.81.
(i) You must not assign these seats to
passengers who do not meet the criteria
of § 382.81 until 24 hours before the
scheduled departure of the flight.
(ii) At any time up until 24 hours
before the scheduled departure of the
flight, you must assign a seat meeting
the requirements of this section to a
passenger with a disability meeting one
or more of the requirements of § 382.81
who requests it, at the time the
passenger initially makes the request.
(iii) If a passenger with a disability
specified in § 382.81 does not make a
request at least 24 hours before the
scheduled departure of the flight, you
must meet the passenger’s request to the
extent practicable, but you are not
required to reassign a seat assigned to
another passenger in order to do so.
(2) You may designate an adequate
number of the seats used to provide
seating accommodations required by
§ 382.81 as ‘‘priority seats’’ for
passengers with a disability.
(i) You must provide notice that all
passengers assigned these seats (other
than passengers with a disability listed
in § 382.81 of this Part) are subject to
being reassigned to another seat if
necessary to provide a seating
accommodation required by this
section.
(ii) You may provide this notice
through your computer reservation
system, verbal information provided by
reservation personnel, ticket notices,
gate announcements, counter signs, seat
cards or notices, frequent-flier literature,
or other appropriate means.
(iii) You must assign a seat meeting
the requirements of this section to a
passenger with a disability listed in
§ 382.81 of this Part who requests the
accommodation at the time the
passenger makes the request. You may
require such a passenger to check in and
request the seating accommodation at
least one hour before the standard
check-in time for the flight. If all
designated priority seats that would
accommodate the passenger have been
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assigned to other passengers, you must
reassign the seats of the other
passengers as needed to provide the
requested accommodation.
(iv) If a passenger with a disability
listed in § 382.81 does not check in at
least an hour before the standard checkin time for the general public, you must
meet the individual’s request to the
extent practicable, but you are not
required to reassign a seat assigned to
another passenger in order to do so.
(b) If you assign seats to passengers,
but not until the date of the flight, you
must use the ‘‘priority seating’’
approach of paragraph (a)(2) of this
section.
(c) If you do not provide advance seat
assignments to passengers, you must
allow passengers specified in § 382.81 to
board the aircraft before other
passengers, including other
‘‘preboarded’’ passengers, so that the
passengers needing seating
accommodations can select seats that
best meet their needs.
(d) As a carrier, if you wish to use a
different method of providing seating
assignment accommodations to
passengers with disabilities from those
specified in this subpart, you must
obtain the written concurrence of the
Department of Transportation. Contact
the Department at the address cited in
§ 382.159 of this Part.
§ 382.85 What seating accommodations
must carriers make to passengers in
circumstances not covered by § 382.81 (a)
through (d)?
As a carrier, you must provide the
following seating accommodations to a
passenger who self-identifies as having
a disability other than one in the four
categories listed in § 382.81 (a) through
(d) of this Part and as needing a seat
assignment accommodation in order to
readily access and use the carrier’s air
transportation services:
(a) As a carrier that assigns seats in
advance, you must provide
accommodations in the following ways:
(1) If you use the ‘‘seat-blocking’’
mechanism of § 382.83(a)(1) of this Part,
you must implement the requirements
of this section as follows:
(i) When a passenger with a disability
not described in § 382.81(a) through (d)
of this Part makes a reservation more
than 24 hours before the scheduled
departure time of the flight, you are not
required to offer the passenger one of
the seats blocked for the use of
passengers with a disability listed under
§ 382.81.
(ii) However, you must assign to the
passenger any seat, not already assigned
to another passenger that accommodates
the passenger’s needs, even if that seat
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is not available for assignment to the
general passenger population at the time
of the request.
(2) If you use the ‘‘designated priority
seats’’ mechanism of § 382.83(a)(2) of
this Part, you must implement the
requirements of this section as follows:
(i) When a passenger with a disability
not described in § 382.81 makes a
reservation, you must assign to the
passenger any seat, not already assigned
to another passenger, that
accommodates the passenger’s needs,
even if that seat is not available for
assignment to the general passenger
population at the time of the request.
You may require a passenger making
such a request to check in one hour
before the standard check-in time for the
flight.
(ii) If such a passenger is assigned to
a designated priority seat, he or she is
subject to being reassigned to another
seat as provided in § 382.83(a)(2)(i) of
this subpart.
(b) On flights where advance seat
assignments are not offered, you must
provide seating accommodations under
this section by allowing passengers to
board the aircraft before other
passengers, including other
‘‘preboarded’’ passengers, so that the
individuals needing seating
accommodations can select seats that
best meet their needs.
(c) If you assign seats to passengers,
but not until the date of the flight, you
must use the ‘‘priority seating’’
approach of section 382.83(a)(2).
§ 382.87 What other requirements pertain
to seating for passengers with a disability?
(a) As a carrier, you must not exclude
any passenger with a disability from any
seat or require that a passenger with a
disability sit in any particular seat, on
the basis of disability, except to comply
with FAA or applicable foreign
government safety requirements.
(b) In responding to requests from
individuals for accommodations under
this subpart, you must comply with
FAA and applicable foreign government
safety requirements, including those
pertaining to exit seating (see 14 CFR
121.585 and 135.129).
(c) If a passenger’s disability results in
involuntary active behavior that would
result in the person properly being
refused transportation under § 382.19,
and the passenger could be transported
safely if seated in another location, you
must offer to let the passenger sit in that
location as an alternative to being
refused transportation.
(d) If you have already provided a seat
to a passenger with a disability to
furnish an accommodation required by
this subpart, you must not (except in the
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circumstance described in
§ 382.85(a)(2)(ii)) reassign that passenger
to another seat in response to a
subsequent request from another
passenger with a disability, without the
first passenger’s consent.
(e) You must never deny
transportation to any passenger in order
to provide accommodations required by
this subpart.
(f) You are not required to furnish
more than one seat per ticket or to
provide a seat in a class of service other
than the one the passenger has
purchased in order to provide an
accommodation required by this Part.
Subpart G—Boarding, Deplaning, and
Connecting Assistance
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§ 382.91 What assistance must carriers
provide to passengers with a disability in
moving within the terminal?
(a) As a carrier, you must provide or
ensure the provision of assistance
requested by or on behalf of a passenger
with a disability, or offered by carrier or
airport operator personnel and accepted
by a passenger with a disability, in
transportation between gates to make a
connection to another flight. If the
arriving flight and the departing
connecting flight are operated by
different carriers, the carrier that
operated the arriving flight (i.e., the one
that operates the first of the two flights
that are connecting) is responsible for
providing or ensuring the provision of
this assistance, even if the passenger
holds a separate ticket for the departing
flight. It is permissible for the two
carriers to mutually agree that the
carrier operating the departing
connecting flight (i.e., the second flight
of the two) will provide this assistance,
but the carrier operating the arriving
flight remains responsible under this
section for ensuring that the assistance
is provided.
(b) You must also provide or ensure
the provision of assistance requested by
or on behalf of a passenger with a
disability, or offered by carrier or airport
operator personnel and accepted by a
passenger with a disability, in moving
from the terminal entrance (or a vehicle
drop-off point adjacent to the entrance)
through the airport to the gate for a
departing flight, or from the gate to the
terminal entrance (or a vehicle pick-up
point adjacent to the entrance after an
arriving flight).
(1) This requirement includes
assistance in accessing key functional
areas of the terminal, such as ticket
counters and baggage claim.
(2) This requirement also includes a
brief stop upon the passenger’s request
at the entrance to a rest room (including
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an accessible rest room when
requested). As a carrier, you are
required to make such a stop only if the
rest room is available on the route to the
destination of the enplaning, deplaning,
or connecting assistance and you can
make the stop without unreasonable
delay. To receive such assistance, the
passenger must self-identify as being an
individual with a disability needing the
assistance.
(c) As a carrier at a U.S. airport, you
must, on request, in cooperation with
the airport operator, provide for
escorting a passenger with a service
animal to an animal relief area provided
under § 382.51(a)(5) of this Part.
(d) As part of your obligation to
provide or ensure the provision of
assistance to passengers with
disabilities in moving through the
terminal (e.g., between the terminal
entrance and the gate, between gate and
aircraft, from gate to a baggage claim
area), you must assist passengers who
are unable to carry their luggage because
of a disability with transporting their
gate-checked or carry-on luggage. You
may request the credible verbal
assurance that a passenger cannot carry
the luggage in question. If a passenger
is unable to provide credible assurance,
you may require the passenger to
provide documentation as a condition of
providing this service.
§ 382.93 Must carriers offer preboarding to
passengers with a disability?
As a carrier, you must offer
preboarding to passengers with a
disability who self-identify at the gate as
needing additional time or assistance to
board, stow accessibility equipment, or
be seated.
§ 382. 95 What are carriers’ general
obligations with respect to boarding and
deplaning assistance?
(a) As a carrier, you must promptly
provide or ensure the provision of
assistance requested by or on behalf of
passengers with a disability, or offered
by carrier or airport operator personnel
and accepted by passengers with a
disability, in enplaning and deplaning.
This assistance must include, as needed,
the services of personnel and the use of
ground wheelchairs, accessible
motorized carts, boarding wheelchairs,
and/or on-board wheelchairs where
provided in accordance with this Part,
and ramps or mechanical lifts.
(b) As a carrier, you must, except as
otherwise provided in this subpart,
provide boarding and deplaning
assistance through the use of lifts or
ramps at any U.S. commercial service
airport with 10,000 or more annual
enplanements where boarding and
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deplaning by level-entry loading bridges
or accessible passenger lounges is not
available.
§ 382.97 To which aircraft does the
requirement to provide boarding and
deplaning assistance through the use of
lifts apply?
The requirement of section 382.95(b)
of this Part to provide boarding and
deplaning assistance through the use of
lifts applies with respect to all aircraft
with a passenger capacity of 19 or more,
with the following exceptions:
(a) Float planes;
(b) The following 19-seat capacity
aircraft models: the Fairchild Metro, the
Jetstream 31 and 32, the Beech 1900 (C
and D models), and the Embraer EMB–
120;
(c) Any other aircraft model
determined by the Department of
Transportation to be unsuitable for
boarding and deplaning assistance by
lift, ramp, or other suitable device.
The Department will make such a
determination if it concludes that—
(1) No existing boarding and
deplaning assistance device on the
market will accommodate the aircraft
without a significant risk of serious
damage to the aircraft or injury to
passengers or employees, or
(2) Internal barriers are present in the
aircraft that would preclude passengers
who use a boarding or aisle chair from
reaching a non-exit row seat.
§ 382.99 What agreements must carriers
have with the airports they serve?
(a) As a carrier, you must negotiate in
good faith with the airport operator of
each U.S. airport described in
§ 382.95(b) to ensure the provision of
lifts for boarding and deplaning where
level-entry loading bridges are not
available.
(b) You must have a written, signed
agreement with the airport operator
allocating responsibility for meeting the
boarding and deplaning assistance
requirements of this subpart between or
among the parties. For foreign carriers,
with respect to all covered aircraft, this
requirement becomes effective May 13,
2010.
(c) For foreign carriers, the agreement
with a U.S. airport must provide that all
actions necessary to ensure accessible
boarding and deplaning for passengers
with a disability are completed as soon
as practicable, but no later than May 13,
2010.
(d) Under the agreement, you may, as
a carrier, require that passengers
wishing to receive boarding and
deplaning assistance requiring the use
of a lift for a flight check in for the flight
one hour before the standard check-in
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time for the flight. If the passenger
checks in after this time, you must
nonetheless provide the boarding and
deplaning assistance by lift if you can
do so by making a reasonable effort,
without delaying the flight.
(e) The agreement must ensure that all
lifts and other accessibility equipment
are maintained in proper working
condition.
(f) All carriers and airport operators
involved are jointly and severally
responsible for the timely and complete
implementation of the agreement.
(g) You must make a copy of this
agreement available, on request, to
representatives of the Department of
Transportation.
§ 382.101 What other boarding and
deplaning assistance must carriers
provide?
When level-entry boarding and
deplaning assistance is not required to
be provided under this subpart, you
must, as a carrier, provide or ensure the
provision of boarding and deplaning
assistance by any available means to
which the passenger consents. However,
you must never use hand-carrying (i.e.,
directly picking up the passenger’s body
in the arms of one or more carrier
personnel to effect a level change the
passenger needs to enter or leave the
aircraft), even if the passenger consents,
unless this is the only way of evacuating
the individual in the event of an
emergency. The situations in which
level-entry boarding is not required but
in which you must provide this
boarding and deplaning assistance
include, but are not limited to, the
following:
(a) The boarding or deplaning process
occurs at a U.S. airport that is not a
commercial service airport that has
10,000 or more enplanements per year;
(b) The boarding or deplaning process
occurs at a foreign airport;
(c) You are using an aircraft subject to
an exception from the lift boarding and
deplaning assistance requirements
under § 382.97 (a)–(c) of this subpart;
(d) The deadlines established in
§ 382.99(c) have not yet passed; and
(e) Circumstances beyond your
control (e.g., unusually severe weather;
unexpected mechanical problems)
prevent the use of a lift.
rwilkins on PROD1PC63 with RULES2
§ 382.103 May a carrier leave a passenger
unattended in a wheelchair or other device?
As a carrier, you must not leave a
passenger who has requested assistance
required by this subpart unattended by
the personnel responsible for enplaning,
deplaning, or connecting assistance in a
ground wheelchair, boarding
wheelchair, or other device, in which
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the passenger is not independently
mobile, for more than 30 minutes. This
requirement applies even if another
person (e.g., family member, personal
care attendant) is accompanying the
passenger, unless the passenger
explicitly waives the obligation.
§ 382.105 What is the responsibility of
carriers at foreign airports at which airport
operators have responsibility for enplaning,
deplaning, and connecting assistance?
At a foreign airport at which
enplaning, deplaning, or connecting
assistance is provided by the airport
operator, rather than by carriers, as a
carrier you may rely on the services
provided by the airport operator to meet
the requirements of this subpart. If the
services provided by the airport
operator are not sufficient to meet the
requirements of this subpart, you must
supplement the airport operator’s
services to ensure that these
requirements are met. If you believe you
are precluded by law from
supplementing the airport operator’s
services, you may apply for a conflict of
laws waiver under § 382.9 of this Part.
Subpart H—Services on Aircraft
§ 382.111 What services must carriers
provide to passengers with a disability on
board the aircraft?
As a carrier, you must provide
services within the aircraft cabin as
requested by or on behalf of passengers
with a disability, or when offered by
carrier personnel and accepted by
passengers with a disability, as follows:
(a) Assistance in moving to and from
seats, as part of the enplaning and
deplaning processes;
(b) Assistance in preparation for
eating, such as opening packages and
identifying food;
(c) If there is an on-board wheelchair
on the aircraft, assistance with the use
of the on-board wheelchair to enable the
person to move to and from a lavatory;
(d) Assistance to a semi-ambulatory
person in moving to and from the
lavatory, not involving lifting or
carrying the person; or
(e) Assistance in stowing and
retrieving carry-on items, including
mobility aids and other assistive devices
stowed in the cabin (see also 382.91(c)).
To receive such assistance, the
passenger must self-identify as being an
individual with a disability needing the
assistance.
(f) Effective communication with
passengers who have vision
impairments and/or who are deaf or
hard-of-hearing, so that these passengers
have timely access to information the
carrier provides to other passengers
(e.g., weather, on-board services, flight
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delays, connecting gates at the next
airport).
§ 382.113 What services are carriers not
required to provide to passengers with a
disability on board the aircraft?
As a carrier, you are not required to
provide extensive special assistance to
qualified individuals with a disability.
For purposes of this section, extensive
special assistance includes the
following activities:
(a) Assistance in actual eating;
(b) Assistance within the restroom or
assistance at the passenger’s seat with
elimination functions; and
(c) Provision of medical services.
§ 382.115 What requirements apply to onboard safety briefings?
As a carrier, you must comply with
the following requirements with respect
to on-board safety briefings:
(a) You must conduct an individual
safety briefing for any passenger where
required by 14 CFR 121.571(a)(3) and
(a)(4), 14 CFR 135.117(b), or other FAA
requirements.
(b) You may offer an individual
briefing to any other passenger, but you
may not require an individual to have
such a briefing except as provided in
paragraph (a) of this section.
(c) You must not require any
passenger with a disability to
demonstrate that he or she has listened
to, read, or understood the information
presented, except to the extent that
carrier personnel impose such a
requirement on all passengers with
respect to the general safety briefing.
You must not take any action adverse to
a qualified individual with a disability
on the basis that the person has not
‘‘accepted’’ the briefing.
(d) When you conduct an individual
safety briefing for a passenger with a
disability, you must do so as
inconspicuously and discreetly as
possible.
(e) The accessibility requirements for
onboard video safety presentations that
carriers must meet are outlined in
section 382.69.
§ 382.117 Must carriers permit passengers
with a disability to travel with service
animals?
(a) As a carrier, you must permit a
service animal to accompany a
passenger with a disability.
(1) You must not deny transportation
to a service animal on the basis that its
carriage may offend or annoy carrier
personnel or persons traveling on the
aircraft.
(2) On a flight segment scheduled to
take 8 hours or more, you may, as a
condition of permitting a service animal
to travel in the cabin, require the
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passenger using the service animal to
provide documentation that the animal
will not need to relieve itself on the
flight or that the animal can relieve
itself in a way that does not create a
health or sanitation issue on the flight.
(b) You must permit the service
animal to accompany the passenger
with a disability at any seat in which
the passenger sits, unless the animal
obstructs an aisle or other area that must
remain unobstructed to facilitate an
emergency evacuation.
(c) If a service animal cannot be
accommodated at the seat location of
the passenger with a disability who is
using the animal, you must offer the
passenger the opportunity to move with
the animal to another seat location, if
present on the aircraft, where the animal
can be accommodated.
(d) As evidence that an animal is a
service animal, you must accept
identification cards, other written
documentation, presence of harnesses,
tags, or the credible verbal assurances of
a qualified individual with a disability
using the animal.
(e) If a passenger seeks to travel with
an animal that is used as an emotional
support or psychiatric service animal,
you are not required to accept the
animal for transportation in the cabin
unless the passenger provides you
current documentation (i.e., no older
than one year from the date of the
passenger’s scheduled initial flight) on
the letterhead of a licensed mental
health professional (e.g., psychiatrist,
psychologist, licensed clinical social
worker) stating the following:
(1) The passenger has a mental or
emotional disability recognized in the
Diagnostic and Statistical Manual of
Mental Disorders—Fourth Edition (DSM
IV);
(2) The passenger needs the emotional
support or psychiatric service animal as
an accommodation for air travel and/or
for activity at the passenger’s
destination;
(3) The individual providing the
assessment is a licensed mental health
professional, and the passenger is under
his or her professional care; and
(4) The date and type of the mental
health professional’s license and the
state or other jurisdiction in which it
was issued.
(f) You are never required to
accommodate certain unusual service
animals (e.g., snakes, other reptiles,
ferrets, rodents, and spiders) as service
animals in the cabin. With respect to
other unusual or exotic animals that are
presented as service animals (e.g.,
miniature horses, pigs, monkeys), as a
U.S. carrier you must determine
whether any factors preclude their
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traveling in the cabin as service animals
(e.g., whether the animal is too large or
heavy to be accommodated in the cabin,
whether the animal would pose a direct
threat to the health or safety of others,
whether it would cause a significant
disruption of cabin service, whether it
would be prohibited from entering a
foreign country that is the flight’s
destination). If no such factors preclude
the animal from traveling in the cabin,
you must permit it to do so. As a foreign
carrier, you are not required to carry
service animals other than dogs.
(g) Whenever you decide not to accept
an animal as a service animal, you must
explain the reason for your decision to
the passenger and document it in
writing. A copy of the explanation must
be provided to the passenger either at
the airport, or within 10 calendar days
of the incident.
(h) You must promptly take all steps
necessary to comply with foreign
regulations (e.g., animal health
regulations) needed to permit the legal
transportation of a passenger’s service
animal from the U.S. into a foreign
airport.
(i) Guidance concerning the carriage
of service animals generally is found in
the preamble of this rule. Guidance on
the steps necessary to legally transport
service animals on flights from the U.S.
into the United Kingdom is found in 72
FR 8268–8277, (February 26, 2007).
§ 382.119 What information must carriers
give individuals with vision or hearing
impairment on aircraft?
(a) As a carrier, you must ensure that
passengers with a disability who
identify themselves as needing visual or
hearing assistance have prompt access
to the same information provided to
other passengers on the aircraft as
described in paragraph (b) of this
section, to the extent that it does not
interfere with crewmembers’ safety
duties as set forth in FAA and
applicable foreign regulations.
(b) The covered information includes
but is not limited to the following:
information concerning flight safety,
procedures for takeoff and landing,
flight delays, schedule or aircraft
changes that affect the travel of persons
with disabilities, diversion to a different
airport, scheduled departure and arrival
time, boarding information, weather
conditions at the flight’s destination,
beverage and menu information,
connecting gate assignments, baggage
claim, individuals being paged by
airlines, and emergencies (e.g., fire or
bomb threat).
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Subpart I—Stowage of Wheelchairs,
Other Mobility Aids, and Other
Assistive Devices
§ 382.121 What mobility aids and other
assistive devices may passengers with a
disability bring into the aircraft cabin?
(a) As a carrier, you must permit
passengers with a disability to bring the
following kinds of items into the aircraft
cabin, provided that they can be stowed
in designated priority storage areas or in
overhead compartments or under seats,
consistent with FAA, PHMSA, TSA, or
applicable foreign government
requirements concerning security,
safety, and hazardous materials with
respect to the stowage of carry-on items.
(1) Manual wheelchairs, including
folding or collapsible wheelchairs;
(2) Other mobility aids, such as canes
(including those used by persons with
impaired vision), crutches, and walkers;
and
(3) Other assistive devices for stowage
or use within the cabin (e.g.,
prescription medications and any
medical devices needed to administer
them such as syringes or auto-injectors,
vision-enhancing devices, and POCs,
ventilators and respirators that use nonspillable batteries, as long as they
comply with applicable safety, security
and hazardous materials rules).
(b) In implementing your carry-on
baggage policies, you must not count
assistive devices (including the kinds of
items listed in paragraph (a) of this
section) toward a limit on carry-on
baggage.
§ 382.123 What are the requirements
concerning priority cabin stowage for
wheelchairs and other assistive devices?
(a) The following rules apply to the
stowage of passengers’ wheelchairs or
other assistive devices in the priority
stowage area provided for in § 382.67 of
this Part:
(1) You must ensure that a passenger
with a disability who uses a wheelchair
and takes advantage of the opportunity
to preboard the aircraft can stow his or
her wheelchair in this area, with
priority over other items brought onto
the aircraft by other passengers or crew
enplaning at the same airport, consistent
with FAA, PHMSA, TSA, or applicable
foreign government requirements
concerning security, safety, and
hazardous materials with respect to the
stowage of carry-on items. You must
move items that you or your personnel
have placed in the priority stowage area
(e.g., crew luggage, an on-board
wheelchair) to make room for the
passenger’s wheelchair, even if these
items were stowed in the priority
stowage area before the passenger
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seeking to stow a wheelchair boarded
the aircraft (e.g., the items were placed
there on a previous leg of the flight).
(2) You must also ensure that a
passenger with a disability who takes
advantage of the opportunity to
preboard the aircraft can stow other
assistive devices in this area, with
priority over other items (except
wheelchairs) brought onto the aircraft
by other passengers enplaning at the
same airport consistent with FAA,
PHMSA, TSA, or applicable foreign
government requirements concerning
security, safety, and hazardous materials
with respect to the stowage of carry-on
items.
(3) You must ensure that a passenger
with a disability who does not take
advantage of the opportunity to
preboard is able to use the area to stow
his or her wheelchair or other assistive
device on a first-come, first-served basis
along with all other passengers seeking
to stow carry-on items in the area.
(b) If a wheelchair exceeds the space
provided for in § 382.67 of this Part
while fully assembled but will fit if
wheels or other components can be
removed without the use of tools, you
must remove the applicable components
and stow the wheelchair in the
designated space. In this case, you must
stow the removed components in areas
provided for stowage of carry-on
luggage.
(c) You must not use the seatstrapping method of carrying a
wheelchair in any aircraft you order
after May 13, 2009 or which are
delivered after May 13, 2011. Any such
aircraft must have the designated
priority stowage space required by
section 382.67, and you must permit
passengers to use the space as provided
in this section 382.123.
rwilkins on PROD1PC63 with RULES2
§ 382.125 What procedures do carriers
follow when wheelchairs, other mobility
aids, and other assistive devices must be
stowed in the cargo compartment?
(a) As a carrier, you must stow
wheelchairs, other mobility aids, or
other assistive devices in the baggage
compartment if an approved stowage
area is not available in the cabin or the
items cannot be transported in the cabin
consistent with FAA, PHMSA, TSA, or
applicable foreign government
requirements concerning security,
safety, and hazardous materials with
respect to the stowage of carry-on items.
(b) You must give wheelchairs, other
mobility aids, and other assistive
devices priority for stowage in the
baggage compartment over other cargo
and baggage. Only items that fit into the
baggage compartment and can be
transported consistent with FAA,
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PHMSA, TSA, or applicable foreign
government requirements concerning
security, safety, and hazardous materials
with respect to the stowage of items in
the baggage compartment need be
transported. Where this priority results
in other passengers’ baggage being
unable to be carried on the flight, you
must make your best efforts to ensure
that the other baggage reaches the
passengers’ destination on the carrier’s
next flight to the destination.
(c) You must provide for the checking
and timely return of passengers’
wheelchairs, other mobility aids, and
other assistive devices as close as
possible to the door of the aircraft, so
that passengers may use their own
equipment to the extent possible, except
(1) Where this practice would be
inconsistent with Federal regulations
governing transportation security or the
transportation of hazardous materials; or
(2) When the passenger requests the
return of the items at the baggage claim
area instead of at the door of the aircraft.
(d) In order to achieve the timely
return of wheelchairs, you must ensure
that passengers’ wheelchairs, other
mobility aids, and other assistive
devices are among the first items
retrieved from the baggage
compartment.
§ 382.127 What procedures apply to
stowage of battery-powered mobility aids?
(a) Whenever baggage compartment
size and aircraft airworthiness
considerations do not prohibit doing so,
you must, as a carrier, accept a
passenger’s battery-powered wheelchair
or other similar mobility device,
including the battery, as checked
baggage, consistent with the
requirements of 49 CFR 175.10(a)(15)
and (16) and the provisions of
paragraphs (b) through (f) of this
section.
(b) You may require that passengers
with a disability wishing to have
battery-powered wheelchairs or other
similar mobility devices transported on
a flight check in one hour before the
check-in time for the general public. If
the passenger checks in after this time,
you must nonetheless carry the
wheelchair or other similar mobility
device if you can do so by making a
reasonable effort, without delaying the
flight.
(c) If the battery on the passenger’s
wheelchair or other similar mobility
device has been labeled by the
manufacturer as non-spillable as
provided in 49 CFR 173.159(d)(2), or if
a battery-powered wheelchair with a
spillable battery can be loaded, stored,
secured and unloaded in an upright
position, you must not require the
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battery to be removed and separately
packaged. Notwithstanding this
requirement, you must remove and
package separately any battery that is
inadequately secured to a wheelchair or,
for a spillable battery, is contained in a
wheelchair that cannot be loaded,
stowed, secured and unloaded in an
upright position, in accordance with 49
CFR 175.10(a)(15) and (16). A damaged
or leaking battery should not be
transported.
(d) When it is necessary to detach the
battery from the wheelchair, you must,
upon request, provide packaging for the
battery meeting the requirements of 49
CFR 175.10(a)(15) and (16) and package
the battery. You may refuse to use
packaging materials or devices other
than those you normally use for this
purpose.
(e) You must not disconnect the
battery on wheelchairs or other mobility
devices equipped with a non-spillable
battery completely enclosed within a
case or compartment integral to the
design of the device unless an FAA or
PHMSA safety regulation, or an
applicable foreign safety regulation
having mandatory legal effect, requires
you to do so.
(f) You must not drain batteries.
§ 382.129 What other requirements apply
when passengers’ wheelchairs, other
mobility aids, and other assistive devices
must be disassembled for stowage?
(a) As a carrier, you must permit
passengers with a disability to provide
written directions concerning the
disassembly and reassembly of their
wheelchairs, other mobility aids, and
other assistive devices. You must carry
out these instructions to the greatest
extent feasible, consistent with FAA,
PHMSA, TSA, or applicable foreign
government requirements concerning
security, safety, and hazardous materials
with respect to the stowage of carry-on
items.
(b) When wheelchairs, other mobility
aids, or other assistive devices are
disassembled by the carrier for stowage,
you must reassemble them and ensure
their prompt return to the passenger.
You must return wheelchairs, other
mobility aids, and other assistive
devices to the passenger in the
condition in which you received them.
§ 382.131 Do baggage liability limits apply
to mobility aids and other assistive
devices?
With respect to transportation to
which 14 CFR Part 254 applies, the
limits to liability for loss, damage, or
delay concerning wheelchairs or other
assistive devices provided in Part 254
do not apply. The basis for calculating
the compensation for a lost, damaged, or
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destroyed wheelchair or other assistive
device shall be the original purchase
price of the device.
rwilkins on PROD1PC63 with RULES2
§ 382.133 What are the requirements
concerning the evaluation and use of
passenger-supplied electronic devices that
assist passengers with respiration in the
cabin during flight?
(a) Except for on-demand air taxi
operators, as a U.S. carrier conducting
passenger service you must permit any
individual with a disability to use in the
passenger cabin during air
transportation, a ventilator, respirator,
continuous positive airway pressure
machine, or an FAA-approved portable
oxygen concentrator (POC) on all flights
operated on aircraft originally designed
to have a maximum passenger capacity
of more than 19 seats, unless:
(1) the device does not meet
applicable FAA requirements for
medical portable electronic devices and
does not display a manufacturer’s label
that indicates the device meets those
FAA requirements, or
(2) the device cannot be stowed and
used in the passenger cabin consistent
with applicable TSA, FAA, and PHMSA
regulations.
(b) Except for foreign carriers
conducting operations of a nature
equivalent to on-demand air taxi
operations by a U.S. carrier, as a foreign
carrier conducting passenger service
you must permit any individual with a
disability to use a ventilator, respirator,
continuous positive airway pressure
machine, or portable oxygen
concentrator (POC) of a kind equivalent
to an FAA-approved POC for U.S.
carriers in the passenger cabin during
air transportation to, from or within the
United States, on all aircraft originally
designed to have a maximum passenger
capacity of more than 19 seats unless:
(1) The device does not meet
requirements for medical portable
electronic devices set by the foreign
carrier’s government if such
requirements exist and/or it does not
display a manufacturer’s label that
indicates the device meets those
requirements, or
(2) The device does not meet
requirements for medical portable
electronic devices set by the FAA for
U.S. carriers and does not display a
manufacturer’s label that indicates the
device meets those FAA requirements in
circumstances where requirements for
medical portable electronic devices
have not been set by the foreign carrier’s
government and the foreign carrier
elects to apply FAA requirements for
medical portable electronic devices, or
(3) The device cannot be stowed and
used in the passenger cabin consistent
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with applicable TSA, FAA and PHMSA
regulations, and the safety or security
regulations of the foreign carrier’s
government.
(c) As a U.S. carrier, you must provide
information during the reservation
process as indicated in paragraphs (c)(1)
through (c)(6) of this section upon
inquiry from an individual concerning
the use in the cabin during air
transportation of a ventilator, respirator,
continuous positive airway machine, or
an FAA-approved POC. The following
information must be provided:
(1) The device must be labeled by the
manufacturer to reflect that it has been
tested to meet applicable FAA
requirements for medical portable
electronic devices;
(2) The maximum weight and
dimensions (length, width, height) of
the device to be used by an individual
that can be accommodated in the
aircraft cabin consistent with FAA
safety requirements;
(3) The requirement to bring an
adequate number of batteries as outlined
in paragraph (f)(2) of this section and to
ensure that extra batteries carried
onboard to power the device are
packaged and protected from short
circuit and physical damage in
accordance with SFAR 106, Section 3
(b)(6);
(4) Any requirement, if applicable,
that an individual contact the carrier
operating the flight 48 hours before
scheduled departure to learn the
expected maximum duration of his/her
flight in order to determine the required
number of batteries for his/her
particular ventilator, respirator,
continuous positive airway pressure
machine, or POC;
(5) Any requirement, if applicable, of
the carrier operating the flight for an
individual planning to use such a
device to check-in up to one hour before
that carrier’s general check-in deadline;
and
(6) For POCs, the requirement of
paragraph 382.23(b)(1)(ii) of this Part to
present to the operating carrier at the
airport a physician’s statement (medical
certificate) prepared in accordance with
applicable federal aviation regulations.
(d) As a foreign carrier operating
flights to, from or within the United
States, you must provide the
information during the reservation
process as indicated in paragraphs (d)(1)
through (d)(7) of this section upon
inquiry from an individual concerning
the use in the cabin during air
transportation on such a flight of a
ventilator, respirator, continuous
positive airway machine, or POC of a
kind equivalent to an FAA-approved
POC for U.S. carriers:
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(1) The device must be labeled by the
manufacturer to reflect that it has been
tested to meet requirements for medical
portable electronic devices set by the
foreign carrier’s government if such
requirements exist;
(2) The device must be labeled by the
manufacturer to reflect that it has been
tested to meet requirements for medical
portable electronic devices set by the
FAA for U.S. carriers if requirements for
medical portable electronic devices
have not been set by the foreign carrier’s
government and the foreign carrier
elects to apply FAA requirements for
medical portable electronic devices;
(3) The maximum weight and
dimensions (length, width, height) of
the device to be used by an individual
that can be accommodated in the
aircraft cabin consistent with the safety
regulations of the foreign carrier’s
government;
(4) The requirement to bring an
adequate number of batteries as outlined
in paragraph (f)(2) of this section and to
ensure that extra batteries carried
onboard to power the device are
packaged in accordance with applicable
government safety regulations;
(5) Any requirement, if applicable,
that an individual contact the carrier
operating the flight 48 hours before
scheduled departure to learn the
expected maximum duration of his/her
flight in order to determine the required
number of batteries for his/her
particular ventilator, respirator,
continuous positive airway pressure
machine, or POC;
(6) Any requirement, if applicable, of
the carrier operating the flight for an
individual planning to use such a
device to check-in up to one hour before
that carrier’s general check-in deadline;
and
(7) Any requirement, if applicable,
that an individual who wishes to use a
POC onboard an aircraft present to the
operating carrier at the airport a
physician’s statement (medical
certificate).
(e) In the case of a codeshare itinerary,
the carrier whose code is used on the
flight must either inform the individual
inquiring about using a ventilator,
respirator, CPAP machine or POC
onboard an aircraft to contact the carrier
operating the flight for information
about its requirements for use of such
devices in the cabin, or provide such
information on behalf of the codeshare
carrier operating the flight.
(f)(1) As a U.S. or foreign carrier
subject to paragraph (a) or (b) of this
section, you must inform any individual
who has advised you that he or she
plans to operate his/her device in the
aircraft cabin, within 48 hours of his/her
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making a reservation or 24 hours before
the scheduled departure date of his/her
flight, whichever date is earlier, of the
expected maximum flight duration of
each segment of his/her flight itinerary.
(2) You may require an individual to
bring an adequate number of fully
charged batteries onboard, based on the
battery manufacturer’s estimate of the
hours of battery life while the device is
in use and the information provided in
the physician’s statement, to power the
device for not less than 150% of the
expected maximum flight duration.
(3) If an individual does not comply
with the conditions for acceptance of a
medical portable electronic device as
outlined in this section, you may deny
boarding to the individual in
accordance with 14 CFR 382.19(c) and
in that event you must provide a written
explanation to the individual in
accordance with 14 CFR 382.19(d).
Subpart J—Training and
Administrative Provisions
rwilkins on PROD1PC63 with RULES2
§ 382.141 What training are carriers
required to provide for their personnel?
(a) As a carrier that operates aircraft
with 19 or more passenger seats, you
must provide training, meeting the
requirements of this paragraph, for all
personnel who deal with the traveling
public, as appropriate to the duties of
each employee.
(1) You must ensure training to
proficiency concerning:
(i) The requirements of this Part and
other applicable Federal regulations
affecting the provision of air travel to
passengers with a disability;
(ii) Your procedures, consistent with
this Part, concerning the provision of air
travel to passengers with a disability,
including the proper and safe operation
of any equipment used to accommodate
passengers with a disability; and
(iii) For those personnel involved in
providing boarding and deplaning
assistance, the use of the boarding and
deplaning assistance equipment used by
the carrier and appropriate boarding and
deplaning assistance procedures that
safeguard the safety and dignity of
passengers.
(2) You must also train such
employees with respect to awareness
and appropriate responses to passengers
with a disability, including persons
with physical, sensory, mental, and
emotional disabilities, including how to
distinguish among the differing abilities
of individuals with a disability.
(3) You must also train these
employees to recognize requests for
communication accommodation from
individuals whose hearing or vision is
impaired and to use the most common
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methods for communicating with these
individuals that are readily available,
such as writing notes or taking care to
enunciate clearly, for example. Training
in sign language is not required. You
must also train these employees to
recognize requests for communication
accommodation from deaf-blind
passengers and to use established means
of communicating with these passengers
when they are available, such as passing
out Braille cards if you have them,
reading an information sheet that a
passenger provides, or communicating
with a passenger through an interpreter,
for example.
(4) You must consult with
organizations representing persons with
disabilities in your home country when
developing your training program and
your policies and procedures. If such
organizations are not available in your
home country, you must consult with
individuals with disabilities and/or
international organizations representing
individuals with disabilities.
(5) You must ensure that all personnel
who are required to receive training
receive refresher training on the matters
covered by this section, as appropriate
to the duties of each employee, as
needed to maintain proficiency. You
must develop a program that will result
in each such employee receiving
refresher training at least once every
three years. The program must describe
how employee proficiency will be
maintained.
(6) You must provide, or ensure that
your contractors provide, training to the
contractors’ employees concerning
travel by passengers with a disability.
This training is required only for those
contractor employees who deal directly
with the traveling public, and it must be
tailored to the employees’ functions.
Training for contractor employees must
meet the requirements of paragraphs
(a)(1) through (a)(5) of this section.
(7) The employees you designate as
CROs, for purposes of § 382.151 of this
Part, must receive training concerning
the requirements of this Part and the
duties of a CRO.
(8) Personnel subject to training
required under this Part, who are
already employed on May 13, 2009,
must be trained one time in the changes
resulting from the reissuance of this
Part.
(b) If you are a carrier that operates
only aircraft with fewer than 19
passenger seats, you must provide
training for flight crewmembers and
appropriate personnel to ensure that
they are familiar with the matters listed
in paragraphs (a)(1) and (a)(2) of this
section and that they comply with the
requirements of this Part.
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§ 382.143 When must carriers complete
training for their personnel?
(a) As a U.S. carrier, you must meet
the training requirements of § 382.141
by the following times.
(1) Employees designated as CROs
shall receive training concerning the
requirements of this Part and the duties
of a CRO before assuming their duties
under § 382.151 (see § 382.141(a)(7)).
You must ensure that all employees
performing the CRO function receive
annual refresher training concerning
their duties and the provisions of this
regulation. The one-time training for
CROs about the changes to Part 382
must take place by May 13, 2009. For
employees who have already received
CRO training, this training may be
limited to changes from the previous
version of Part 382.
(2) The one-time training for existing
employees about changes to Part 382
(see § 382.141(a)(8)) must take place as
part of the next scheduled recurrent
training after May 13, 2009 for each
such employee or within one year after
May 13, 2009, whichever comes first.
(3) For crewmembers subject to
training requirements under 14 CFR Part
121 or 135 whose employment in any
given position commences after May 13,
2009, before they assume their duties;
and
(4) For other personnel whose
employment in any given position
commences after May 13, 2009, within
60 days after the date on which they
assume their duties.
(b) As a foreign carrier that operates
aircraft with 19 or more passenger seats,
you must provide training meeting the
requirements of paragraph (a) of this
section for all personnel who deal with
the traveling public in connection with
flights that begin or end at a U.S.
airport, as appropriate to the duties of
each employee. You must ensure that
personnel required to receive training
complete the training by the following
times:
(1) Employees designated as CROs
shall receive training in accordance
with paragraph (a)(1) of this section, by
May 13, 2009.
(2) For crewmembers and other
personnel who are employed on May
13, 2009, within one year after that date;
(3) For crewmembers whose
employment commences after May 13,
2010, before they assume their duties;
(4) For other personnel whose
employment in any given position
commences after May 13, 2010, or a date
within 60 days after the date on which
they assume their duties; and
(5) For crewmembers and other
personnel whose employment in any
given position commences after May 13,
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2009, but before May 13, 2010, by May
13, 2010 or a date 60 days after the date
of their employment, whichever is later.
§ 382.145 What records concerning
training must carriers retain?
(a) As a carrier that operates aircraft
with 19 or more passenger seats, you
must incorporate procedures
implementing the requirements of this
Part in the manuals or other guidance or
instructional materials provided for the
carrier and contract personnel who
provide services to passengers,
including, but not limited to, pilots,
flight attendants, reservation and ticket
counter personnel, gate agents, ramp
and baggage handling personnel, and
passenger service office personnel. You
must retain these records for review by
the Department on the Department’s
request. If, upon such review, the
Department determines that any portion
of these materials must be changed in
order to comply with this Part, DOT will
direct you to make appropriate changes.
You must incorporate and implement
these changes.
(b) You must retain for three years
individual employee training records
demonstrating that all persons required
to receive initial and refresher training
have done so.
Subpart K—Complaints and
Enforcement Procedures
rwilkins on PROD1PC63 with RULES2
§ 382.151 What are the requirements for
providing Complaints Resolution Officials?
(a) As a carrier providing scheduled
service, or a carrier providing
nonscheduled service using aircraft
with 19 or more passenger seats, you
must designate one or more CROs.
(b) As a U.S. carrier, you must make
a CRO available at each airport you
serve during all times you are operating
at that airport. As a foreign carrier, you
must make a CRO available at each
airport serving flights you operate that
begin or end at a U.S. airport. You may
make the CRO available in person at the
airport or via telephone, at no cost to the
passenger. If a telephone link to the
CRO is used, TTY service or a similarly
effective technology must be available
so that persons with hearing
impairments may readily communicate
with the CRO. You must make CRO
service available in the language(s) in
which you make your services available
to the general public.
(c) You must make passengers with a
disability aware of the availability of a
CRO and how to contact the CRO in the
following circumstances:
(1) In any situation in which any
person complains or raises a concern
with your personnel about
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discrimination, accommodations, or
services with respect to passengers with
a disability, and your personnel do not
immediately resolve the issue to the
customer’s satisfaction or provide a
requested accommodation, your
personnel must immediately inform the
passenger of the right to contact a CRO
and then contact a CRO on the
passenger’s behalf or provide the
passenger a means (e.g., a phone, a
phone card plus the location and/or
phone number of the CRO available at
the airport). Your personnel must
provide this information to the
passenger in a format he or she can use.
(2) Your reservation agents,
contractors, and Web sites must provide
information equivalent to that required
by paragraph (c)(1) of this section to
passengers with a disability using those
services who complain or raise a
concern about a disability-related issue.
(d) Each CRO must be thoroughly
familiar with the requirements of this
Part and the carrier’s procedures with
respect to passengers with a disability.
The CRO is intended to be the carrier’s
‘‘expert’’ in compliance with the
requirements of this Part.
(e) You must ensure that each of your
CROs has the authority to make
dispositive resolution of complaints on
behalf of the carrier. This means that the
CRO must have the power to overrule
the decision of any other personnel,
except that the CRO is not required to
be given authority to countermand a
decision of the pilot-in-command of an
aircraft based on safety.
§ 382.153 What actions do CROs take on
complaints?
When a complaint is made directly to
a CRO for a carrier providing scheduled
service, or a carrier providing
nonscheduled service using aircraft
with 19 or more passenger seats (e.g.,
orally, by phone, TTY), the CRO must
promptly take dispositive action as
follows:
(a) If the complaint is made to a CRO
before the action or proposed action of
carrier personnel has resulted in a
violation of a provision of this Part, the
CRO must take, or direct other carrier
personnel to take, whatever action is
necessary to ensure compliance with
this Part.
(b) If an alleged violation of a
provision of this Part has already
occurred, and the CRO agrees that a
violation has occurred, the CRO must
provide to the complainant a written
statement setting forth a summary of the
facts and what steps, if any, the carrier
proposes to take in response to the
violation.
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(c) If the CRO determines that the
carrier’s action does not violate a
provision of this Part, the CRO must
provide to the complainant a written
statement including a summary of the
facts and the reasons, under this Part,
for the determination.
(d) The statements required to be
provided under this section must inform
the complainant of his or her right to
pursue DOT enforcement action under
this Part. The CRO must provide the
statement in person to the complainant
at the airport if possible; otherwise, it
must be forwarded to the complainant
within 30 calendar days of the
complaint.
§ 382.155 How must carriers respond to
written complaints?
(a) As a carrier providing scheduled
service, or a carrier providing
nonscheduled service using aircraft
with 19 or more passenger seats, you
must respond to written complaints
received by any means (e.g., letter, fax,
e-mail, electronic instant message)
concerning matters covered by this Part.
(b) As a passenger making a written
complaint, you must state whether you
had contacted a CRO in the matter,
provide the name of the CRO and the
date of the contact, if available, and
enclose any written response you
received from the CRO.
(c) As a carrier, you are not required
to respond to a complaint postmarked or
transmitted more than 45 days after the
date of the incident, except for
complaints referred to you by the
Department of Transportation.
(d) As a carrier, you must make a
dispositive written response to a written
disability complaint within 30 days of
its receipt. The response must
specifically admit or deny that a
violation of this Part has occurred.
(1) If you admit that a violation has
occurred, you must provide to the
complainant a written statement setting
forth a summary of the facts and the
steps, if any, you will take in response
to the violation.
(2) If you deny that a violation has
occurred, your response must include a
summary of the facts and your reasons,
under this Part, for the determination.
(3) Your response must also inform
the complainant of his or her right to
pursue DOT enforcement action under
this Part.
§ 382.157 What are carriers’ obligations for
recordkeeping and reporting on disabilityrelated complaints?
(a) For the purposes of this section, a
disability-related complaint means a
specific written expression of
dissatisfaction received from, or
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submitted on behalf, of an individual
with a disability concerning a difficulty
associated with the person’s disability,
which the person experienced when
using or attempting to use an air
carrier’s or foreign carrier’s services.
(b) If you are a carrier covered by this
Part, conducting passenger operations
with at least one aircraft having a
designed seating capacity of more than
60 passengers, this section applies to
you. As a foreign carrier, you are
covered by this section only with
respect to disability-related complaints
associated with any flight segment
originating or terminating in the United
States.
(c) You must categorize disabilityrelated complaints that you receive
according to the type of disability and
nature of complaint. Data concerning a
passenger’s disability must be recorded
separately in the following areas: vision
impaired, hearing impaired, vision and
hearing impaired, mentally impaired,
communicable disease, allergies (e.g.,
food allergies, chemical sensitivity),
paraplegic, quadriplegic, other
wheelchair, oxygen, stretcher, other
assistive device (cane, respirator, etc.),
and other disability. Data concerning
the alleged discrimination or service
problem related to the disability must be
separately recorded in the following
areas: refusal to board, refusal to board
without an attendant, security issues
concerning disability, aircraft not
accessible, airport not accessible,
advance notice dispute, seating
accommodation, failure to provide
adequate or timely assistance, damage to
assistive device, storage and delay of
assistive device, service animal
problem, unsatisfactory information,
and other.
(d) You must submit an annual report
summarizing the disability-related
complaints that you received during the
prior calendar year using the form
specified at the following internet
address: https://382reporting.ost.dot.gov.
You must submit this report by the last
Monday in January of each year for
complaints received during the prior
calendar year. You must make
submissions through the World Wide
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Web except for situations where you can
demonstrate that you would suffer
undue hardship if not permitted to
submit the data via paper copies, disks,
or e-mail, and DOT has approved an
exception. All fields in the form must be
completed; carriers are to enter ‘‘0’’
where there were no complaints in a
given category. Each annual report must
contain the following certification
signed by your authorized
representative: ‘‘I, the undersigned, do
certify that this report has been
prepared under my direction in
accordance with the regulations in 14
CFR Part 382. I affirm that, to the best
of my knowledge and belief, this is a
true, correct, and complete report.’’
Electronic signatures will be accepted.
(e) You must retain correspondence
and record of action taken on all
disability-related complaints for three
years after receipt of the complaint or
creation of the record of action taken.
You must make these records available
to Department of Transportation
officials at their request.
(f)(1) As either carrier in a codeshare
relationship, you must comply with
paragraphs (c) through (e) of this section
for—
(i) Disability-related complaints you
receive from or on behalf of passengers
with respect to difficulties encountered
in connection with service you provide;
(ii) Disability-related complaints you
receive from or on behalf of passengers
when you are unable to reach agreement
with your codeshare partner as to
whether the complaint involves service
you provide or service your codeshare
partner provides; and
(iii) Disability-related complaints
forwarded by another carrier or
governmental agency with respect to
difficulties encountered in connection
with service you provide.
(2) As either carrier in a codeshare
relationship, you must forward to your
codeshare partner disability-related
complaints you receive from or on
behalf of passengers with respect to
difficulties encountered in connection
with service provided by your codesharing partner.
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(g) Each carrier, except for carriers in
codeshare situations, shall comply with
paragraphs (c) through (e) of this section
for disability-related complaints it
receives from or on behalf of passengers
as well as disability-related complaints
forwarded by another carrier or
governmental agency with respect to
difficulties encountered in connection
with service it provides.
(h) Carriers that do not submit their
data via the Web shall use the disabilityrelated complaint data form specified in
Appendix A to this Part when filing
their annual report summarizing the
disability-related complaints they
received. The report shall be mailed, by
the date specified in paragraph (d) of
this section, to the following address:
U.S. Department of Transportation,
Aviation Consumer Protection Division
(C–75), 1200 New Jersey Avenue, SE.,
West Building, Room W96–432,
Washington, DC 20590.
§ 382.159
DOT?
How are complaints filed with
(a) Any person believing that a carrier
has violated any provision of this Part
may seek assistance or file an informal
complaint at the Department of
Transportation no later than 6 months
after the date of the incident by either:
(1) going to the web site of the
Department’s Aviation Consumer
Protection Division at https://
airconsumer.ost.dot.gov and selecting
‘‘Air Travel Problems and Complaints,’’
or
(2) writing to Department of
Transportation, Aviation Consumer
Protection Division (C–75), 1200 New
Jersey Avenue, SE., Washington, DC
20590.
(b) Any person believing that a carrier
has violated any provision of this Part
may also file a formal complaint under
the applicable procedures of 14 CFR
Part 302.
(c) You must file a formal complaint
under this Part within six months of the
incident on which the complaint is
based in order to ensure that the
Department of Transportation will
investigate the matter.
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Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules and Regulations
Part 382 in finding material in the new,
renumbered Part 382.
Appendix B to Part 382—CrossReference Table
The Department is providing the following
table to assist users familiar with the current
SECTION NUMBERS: OLD AND NEW RULES
Old section
(382.x)
New section
(382.x)
General provisions:
1 ...............................................
3 ...............................................
5 ...............................................
7 ...............................................
9 ...............................................
Aircraft accessibility:
21(a)(1) ....................................
21(a)(2) ....................................
21(a)(3) ....................................
21(a)(4) ....................................
21(e) and (f) .............................
Airport accessibility:
23 .............................................
(New) ........................................
Services and information:
31 .............................................
31(c) .........................................
33 .............................................
35 .............................................
37 .............................................
38 .............................................
39(a) .........................................
39(b) .........................................
40 and 40a ...............................
41 .............................................
43(a) .........................................
43(b) .........................................
43(c) .........................................
45(a) .........................................
45(b) .........................................
45(c) .........................................
45(d) .........................................
47(a) .........................................
47(b) .........................................
49 .............................................
51 .............................................
53 .............................................
55(a) .........................................
55(b) .........................................
55(c) .........................................
55 .............................................
Administrative provisions:
61 .............................................
63(c) and (d) ............................
65(a) .........................................
65(b) .........................................
65(c) and (d) ............................
Subject
1 .....................................................
7 .....................................................
3 .....................................................
11, 13 .............................................
15 ...................................................
Purpose.
Applicability.
Definitions.
Non-discrimination generally.
Contractors.
61
67
63
65
71
Movable armrests.
Stowage space in cabin for passenger wheelchair.
Accessible lavatories.
Carrier-supplied on-board wheelchair.
Aircraft accessibility: miscellaneous.
...................................................
...................................................
...................................................
...................................................
...................................................
51 ...................................................
53 ...................................................
General.
Vision/hearing impairments.
19 ...................................................
17 ...................................................
25, 27 .............................................
29 ...................................................
87(a) ..............................................
81 through 87 ................................
91 through 105 ..............................
111 through 119 ............................
99 ...................................................
121 through 133 ............................
129(b) ............................................
131 .................................................
35 ...................................................
41 ...................................................
115 .................................................
119 .................................................
45 ...................................................
43 ...................................................
69 ...................................................
55 ...................................................
21 ...................................................
23 ...................................................
117 .................................................
33 ...................................................
33 ...................................................
31 ...................................................
Refusal of transportation.
Number limits.
Advance notice requirements.
Safety assistants (formerly ‘‘attendants’’).
Seat assignments.
Seating accommodations.
Enplaning, deplaning and connecting assistance.
Assistance in cabin.
Mechanical lifts.
Stowage of assistive devices.
Timely return of assistive devices.
Liability limits.
Liability waivers.
Access to information (general).
Individual safety briefings.
Access to information in airport and aircraft.
Availability of copy of rule.
TTY’s and reservations systems.
Accessibility of videos on aircraft.
Security screening.
Communicable diseases.
Medical certificates.
Service animals.
Sitting on blankets.
Restricting movement.
Charges for accommodations.
141, 143 .........................................
145 .................................................
151, 153 .........................................
155, 157 .........................................
159 .................................................
Training.
Manuals; directed changes.
Complaints Resolution Officials.
Written complaints to carriers.
Complaints to DOT.
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Agencies
[Federal Register Volume 73, Number 93 (Tuesday, May 13, 2008)]
[Rules and Regulations]
[Pages 27614-27687]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1228]
[[Page 27613]]
-----------------------------------------------------------------------
Part II
Department of Transportation
-----------------------------------------------------------------------
14 CFR Part 382
Nondiscrimination on the Basis of Disability in Air Travel; Final Rule
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Rules
and Regulations
[[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, an