[Federal Register Volume 73, Number 93 (Tuesday, May 13, 2008)]
[Rules and Regulations]
[Pages 27614-27687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1228]



[[Page 27613]]

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Part II





Department of Transportation





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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]]


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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.

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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); [email protected]. 
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), 
[email protected].

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.
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    \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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    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.
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    \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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    In addition to this general revision and update, the Department in 
this rule is making important substantive changes to the rule in three 
areas: coverage of foreign carriers, accommodations for passengers who 
use oxygen and other respiratory assistive devices, and accommodation 
for deaf or hard-of-hearing passengers.
    The original 1986 ACAA covered only U.S. air carriers. However, on 
April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act 
for the 21st Century (AIR-21) amended the ACAA specifically to include 
foreign carriers. The ACAA now reads in relevant part:

    In providing air transportation, an air carrier, including 
(subject to [49 U.S.C.] section 40105(b)) any foreign air carrier, 
may not discriminate against an otherwise qualified individual on 
the following grounds:
    (1) The individual has a physical or mental impairment that 
substantially limits one or more major life activities.
    (2) The individual has a record of such an impairment.
    (3) The individual is regarded as having such an impairment.

    Section 40105(b) provides as follows:

    (b) Actions of Secretary and Administrator--
    (1) In carrying out this part, the Secretary of Transportation 
and the Administrator
    (A) Shall act consistently with obligations of the United States 
Government under an international agreement;
    (B) Shall consider applicable laws and requirements of a foreign 
country; and

[[Page 27615]]

    (C) May not limit compliance by an air carrier with obligations 
or liabilities imposed by the government of a foreign country when 
the Secretary takes any action related to a certificate of public 
convenience and necessity issued under chapter 411 of this title.
    (2) This subsection does not apply to an agreement between an 
air carrier or an officer or representative of an air carrier and 
the government of a foreign country, if the Secretary of 
Transportation disapproves the agreement because it is not in the 
public interest. Section 40106(b)(2) of this title applies to this 
subsection.

    In response to the AIR-21 requirements, the Department on May 18, 
2000, issued a notice of its intent to investigate complaints against 
foreign carriers according to the amended provisions of the ACAA. The 
notice also announced the Department's plan to initiate a rulemaking 
modifying Part 382 to cover foreign carriers. On November 4, 2004, the 
Department issued a notice of proposed rulemaking (NPRM) to apply the 
ACAA rule to foreign carriers (69 FR 64364). The NPRM sought to apply 
Part 382 to foreign carriers in a way that achieves the ACAA's 
nondiscrimination objectives while not imposing undue burdens on 
foreign carriers. This NPRM also proposed revisions to a number of 
other provisions of 14 CFR Part 382 and generally reorganized the rule. 
The Department received about 1300 comments on this NPRM. In this 
preamble to the final rule, this proposed rule is called the ``Foreign 
Carriers NPRM'' or the ``2004 NPRM.''
    On September 7, 2005, the Department published a second NPRM, on 
the subject of medical oxygen and portable respiratory assistive 
devices (70 FR 53108). The Department received over 1800 comments on 
this proposed rule, which is referred to in this preamble as the 
``Oxygen NPRM.'' On February 23, 2006, the Department published a third 
NPRM, concerning accommodations for passengers who are deaf, hard-of-
hearing, or deaf-blind. The Department received over 700 comments on 
this proposed rule, which is called the deaf and hard-of-hearing (DHH) 
NPRM in this preamble. This document addresses the over 3800 comments 
received on all three NPRMs. The section-by-section analysis will 
describe each provision of the combined final rule.
    In this preamble, when we mention the ``present,'' ``current,'' or 
``existing'' rule, we mean the version of Part 382 that is in effect 
now. It will remain in effect until a year from today, when it will be 
replaced by the provisions that are published in this final rule.

Comments and Responses

General Regulatory Approach

    A number of airline industry commenters--principally, but not only, 
foreign carriers--criticized the Foreign Carriers NPRM's approach as 
being too detailed and prescriptive. Many of these commenters said they 
preferred a more general approach, in which an overall objective of 
nondiscrimination and service to persons with disabilities was stated, 
with the details of implementation left to the discretion of carrier 
policies, guided by codes of recommended practice issued by various 
governments or international organizations.
    It is the Department's experience, over the 21 years since the 
enactment of the Air Carrier Access Act, that in order to ensure that 
carriers are accountable for providing nondiscriminatory service to 
passengers with disabilities, detailed standards and requirements are 
essential. If all that carriers are responsible for is carrying out, in 
their best judgment, general objectives of nondiscrimination and good 
service, or best practices or recommendations, or regulations that are 
not enforceable by the Department, then effective enforcement of the 
rights Congress intended to protect in the ACAA becomes impracticable. 
It is understandable that carriers would wish to implement their goals 
through policies of their own devising and to limit potential 
compliance issues. However, the Department is responsible for ensuring 
consistent nondiscriminatory treatment of passengers with disabilities, 
including implementation of the variety of specific accommodations that 
are essential in providing such treatment. We must structure our 
response to this mandate in a way that allows for clear and consistent 
implementation by the carriers, and clear and consistent enforcement by 
the Department. Consequently, we are convinced that the approach taken 
in the NPRM, reflecting the Department's years of successful experience 
in carrying out the ACAA, is appropriate.

Coverage and Definition of ``Flight''

    The Foreign Carriers NPRM proposed to cover the activities of 
foreign carriers with respect to a ``flight,'' defined as a continuous 
journey, in the same aircraft or using the same flight number that 
begins or ends at a U.S. airport. The Foreign Carriers NPRM included 
several examples of what would or would not be considered covered 
``flights.'' One of these examples proposed that if a passenger books a 
journey on a foreign carrier from New York to Cairo, with a change of 
plane or flight number in London, the entire flight would be covered 
for that passenger. When there is a change in both aircraft and flight 
number at a foreign airport, the rule would not apply beyond that 
point. Another example proposed that the rules applying to U.S. 
carriers would apply to a flight operated by a foreign carrier between 
foreign points that was also listed as a flight of a U.S. carrier via a 
code sharing arrangement.
    Commenters, including foreign carriers, generally conceded that it 
was acceptable for the rule to cover foreign carriers' flights that 
started or ended at a U.S. airport. Some carriers said that it was 
burdensome for them to continue to observe Part 382 rules for a leg of 
a flight that did not itself touch the U.S. (e.g., the London-Cairo leg 
in the example mentioned above). We note that only service and 
nondiscrimination provisions of the rule apply in such a situation, not 
aircraft accessibility requirements.
    Foreign carriers' main objection, however, centered on codeshare 
flights between two foreign points. They said that it was an 
inappropriate extraterritorial extension of U.S. jurisdiction to apply 
U.S. rules to a foreign carrier just because the foreign carrier's 
flight between two foreign points carried passengers under a code-
sharing arrangement with a U.S. carrier. In response to these comments, 
the Department has changed the applicable provision of the final rule. 
If a foreign carrier operates a flight between two non-U.S. points and 
the flight carries the code of a U.S. carrier, the final rule will not 
extend coverage to the foreign carrier for that flight segment and the 
foreign carrier will not be responsible to the Department for 
compliance with Part 382 for that segment. Rather, with respect to 
passengers ticketed to travel under the U.S. carrier's code, the 
Department regards the transportation of those passengers to be 
transportation by a U.S. carrier, concerning which the U.S. carrier is 
responsible for Part 382 compliance. If there is a service-related 
violation of Part 382 on a flight between two non-U.S. points operated 
by a foreign carrier, affecting a passenger traveling under the U.S. 
carrier's code, the violation would be attributed to the U.S. carrier, 
and any enforcement action taken by the Department would be against the 
U.S. carrier. We note that the aircraft accessibility requirements 
would not apply in such a situation. U.S. carriers can work with their 
foreign carrier codeshare partners to ensure that required services are 
provided to passengers.

[[Page 27616]]

Conflict of Law Waivers and Equivalent Alternative Determinations

    One of the most frequent comments made by foreign carriers and 
their organizations was that implementation of the proposed rules would 
lead to conflicts between Part 382 and foreign laws, rules, voluntary 
codes of practice, and carrier policies. These conflicts, commenters 
said, would lead to confusion and reduce efficiency in service to 
passengers with disabilities. Many commenters advocated that the 
Department should defer to foreign laws, rules, and guidance, or accept 
them as equivalent for purposes of compliance with Part 382.
    In anticipation of this concern, and in keeping with the 
Department's obligation and commitment to giving due consideration to 
foreign law where it applies, the Foreign Carriers NPRM proposed a 
conflict of laws waiver mechanism. Under the proposal, a foreign 
carrier would be required to comply with Part 382, but could apply to 
DOT for a waiver if a foreign legal requirement conflicted with a given 
provision of the rule. If DOT agreed that there was a conflict, then 
the carrier could continue to follow the binding foreign legal 
requirement, rather than the conflicting provision of Part 382. Foreign 
carriers commented that this provision was unfair, because it would 
force them to begin complying with a Part 382 requirement allegedly in 
conflict with a foreign legal requirement while the application for a 
waiver was pending. Some commenters also objected to DOT making a 
determination concerning whether there really was a conflict between 
DOT regulations and a provision of foreign law.
    In order to determine whether a foreign carrier should be excused 
from complying with an otherwise applicable provision of Part 382, the 
Department has no reasonable alternative to deciding whether a conflict 
with a foreign legal requirement exists. The Department cannot rely 
solely on an assertion by a foreign carrier that such a conflict 
exists.
    Comments from a number of foreign carriers asked the Department to 
broaden the concept of the proposed waiver, by allowing foreign 
carriers to comply with recommendations, voluntary codes of practice, 
etc. We do not believe such a broadening is necessary to comply with 
the Department's legal obligations. Nor would it be advisable from a 
policy point of view, as it would not provide the consistency that 
passengers with disabilities should expect, regardless of the identity 
or nationality of the carrier they choose.
    We therefore want to make clear, for purposes of this waiver 
provision, what we mean by a conflict with a provision of foreign law. 
By foreign law, we mean a legally binding mandate (e.g., a statute, 
regulation, a safety rule equivalent to an FAA regulation) that imposes 
a nondiscretionary obligation on the foreign carrier to take, or 
refrain from taking, a certain action. Binding mandates frequently can 
subject a carrier to penalties imposed by a government in the event of 
noncompliance. Guidance, recommendations, codes of best practice, 
policies of carriers or carrier organizations, and other materials that 
do not have mandatory, binding legal effect on a carrier cannot give 
rise to a conflict between Part 382 and foreign law for purposes of 
this Part, even if they are published or endorsed by a foreign 
government. In order to create a conflict, the foreign legal mandate 
must require legally something that Part 382 prohibits, or prohibit 
something that Part 382 requires. A foreign law or regulation that 
merely authorizes carriers to adopt a certain policy, or gives carriers 
discretion in a certain area that Part 382 addresses, does not create a 
conflict cognizable under the conflict of laws waiver provision.
    For example, Part 382 says that carriers are prohibited from 
imposing number limits on passengers with disabilities. Suppose that 
Country S has a statute, or the equivalent of an FAA regulation, 
mandating that no more than three wheelchair users can, under any 
circumstances, travel on an S Airlines flight. S Airlines would have no 
discretion in the matter, since it was subject to a legal mandate of 
its government. This would create a conflict between Part 382 and the 
laws of Country S that could be the subject of a conflict of laws 
waiver. However, suppose that the government of Country S publishes a 
guidance document that says limiting wheelchair users on a flight to 
three is a good idea, has a regulation authorizing S Airlines to impose 
a number limit if it chooses, or approves an S Airlines safety program 
that includes a number limit. In these cases, the conflict of laws 
waiver would not apply, since in each case there is not a binding 
government requirement for a number limit, and S Airlines has the 
discretion whether or not to adopt one.
    We note one exception to this point. If a foreign government 
officially informs a carrier that it intends to take enforcement action 
(e.g., impose a civil penalty) against a carrier for failing to 
implement a provision of a government policy, guidance document, or 
recommendation that conflicts with a portion of the Department's rules, 
the Department would view the government action as creating a legal 
mandate cognizable under this section.
    While retaining the substance of the conflict of laws provision of 
the NPRM, the Department has, in response to comments, modified the 
process for considering waiver requests. We agree with commenters that 
it would be unfair to insist that carriers comply with a Part 382 
provision that allegedly conflicts with foreign law while a waiver 
request is pending. Consequently, we have established an effective date 
for the rule of one year after its publication date. If a carrier sends 
in a waiver request within 120 days of the publication date of the 
final rule, the Department will, to the maximum extent feasible, 
respond before the effective date of the rule. If we are unable to do 
so, the carrier can keep implementing the policy or practice that is 
the subject of the request until we do respond, without becoming 
subject to enforcement action by the Department. The purpose of the 
120-day provision is to provide an incentive to foreign carriers to 
conduct a due diligence review of foreign legal requirements that may 
conflict with Part 382 and make any waiver requests to DOT promptly, so 
that the Department can resolve the issues before the rule takes 
effect.
    What a foreign carrier obtains by filing all its conflict of laws 
waiver requests within the first 120 days is, in effect, a commitment 
from DOT not to take enforcement action related to implementing the 
foreign law in question pending DOT's response to the waiver request. 
For example, if S Airlines filed a waiver request with respect to an 
alleged requirement of a Country S law requiring number limits for 
disabled passengers within 120 days of the rule's publication, then the 
Department would not commence an enforcement action relating to an 
alleged violation of Part 382's prohibition of number limits that 
occurred during the interval between the effective date of Part 382 and 
the date on which DOT responds to S Airline's waiver request. This 
would be true even if the Department later denies the request.
    However, if S Airlines did not file its request until 180 or 210 
days after the rule is published, DOT could begin enforcement action 
against the carrier for implementing number limits inconsistent with 
Part 382 during the period between the effective date of the rule and 
the Department's response to the waiver request. If the Department

[[Page 27617]]

granted the waiver request, any enforcement action relating to the 
carrier's actions during that interval would probably be dismissed. 
However, if the waiver request were denied, the enforcement action 
would proceed. S Airlines thus would have put itself at somewhat 
greater risk by failing to submit its waiver request on a timely basis.
    We also recognize that laws change. Consequently, if a new 
provision of foreign law comes into effect after the 120-day period, a 
carrier may file a waiver request with the Department. The carrier may 
keep the policy or practice that is the subject of the request in 
effect pending the Department's response, which we will try to provide 
within 180 days. Again, the carrier would not be at risk of a DOT 
enforcement action relating to the period during which the Department 
was considering the waiver request concerning the new foreign law.
    Carriers should not file frivolous waiver requests, the stated 
basis for which is clearly lacking in merit or which are filed with the 
apparent intent of delaying implementation of a provision of Part 382 
or abusing the waiver process. In such cases, the Department may pursue 
enforcement action even if the frivolous waiver request has been filed 
within 120 days. As a general matter, a carrier that does not file a 
request for a waiver, or whose request is denied, cannot then raise the 
alleged existence of a conflict with foreign law as a defense to a DOT 
enforcement action.
    Many foreign carriers and their organizations also said that a 
conflict of laws waiver, standing alone, was insufficient. They said 
that their policies and approaches to assisting passengers with 
disabilities, or laws or policies relating to disability access of 
foreign carriers' countries (either single-country laws or those of, 
for example, the European Union) should be recognized as equivalent to 
DOT's rules. Compliance with equivalent foreign laws and carrier 
policies, they said, should be sufficient to comply with Part 382.
    U.S. disability law includes a concept--equivalent facilitation--
that can address these comments to a reasonable degree. This concept, 
which is embodied in such sources as the Department's Americans with 
Disabilities Act (ADA) regulations and the Americans with Disabilities 
Act Accessibility Guidelines (ADAAG), states that a transportation or 
other service provider can use a different accommodation in place of 
one required by regulation if the different accommodation provides 
substantially equivalent accessibility. The final rule permits U.S. and 
foreign carriers to apply to the Department for a determination of what 
the final rule will call an ``equivalent alternative.'' (We use this 
term is used in place of ``equivalent facilitation'' to avoid any 
possible confusion with the use of ``equivalent facilitation'' in other 
contexts.). If, with respect to a specific accommodation, the carrier 
demonstrates that what it wants to do will provide substantially 
equivalent accessibility to passengers with disabilities than literal 
compliance with a particular provision of the rule, the Department will 
determine that the carrier can comply with the rule using its 
alternative accommodation. This provision applies to equipment, 
policies, procedures, or any other method of complying with Part 382.
    It should be emphasized that equivalent alternative determinations 
concern alternatives only to specific requirements of Part 382. The 
Department will not entertain an equivalent alternative request 
relating to an entire regulatory scheme (e.g., an application asserting 
that compliance with European Union regulations on services to 
passengers with disabilities was equivalent to Part 382 as a whole). It 
should be emphasized that the fact that a carrier policy or foreign 
regulation addresses the same subject as a provision of Part 382 does 
not mean the carrier policy or foreign regulation is an equivalent 
alternative. For example, both Part 382 and various carrier policies 
address the transportation of service animals. A policy or regulation 
that was more restrictive than Part 382 would not be viewed as an 
equivalent alternative, since it provided less, rather than 
substantially equivalent, accessibility for passengers who use service 
animals.
    As with the conflict of laws waiver, if a carrier submits a request 
for an equivalent alternative determination within 120 days of the 
publication of this Part, the Department will endeavor to have a 
response to the carrier by the effective date of the rule. If the 
Department has not responded by that time, the carrier can implement 
its proposed equivalent alternative until and unless the Department 
disapproves it. However, with respect to a request filed subsequent to 
that date, carriers must begin complying with the Part 382 provision 
when it becomes effective, and could not use their proposed equivalent 
alternative until and unless the Department approved it.

Other International Law Issues

    A number of foreign carriers said that application of the rule 
alike to U.S. and foreign carriers was unfair, in that U.S. carriers 
receive Federal funds to support their operations, while European and 
other foreign carriers do not. Commenters also argued that it was 
unfair for DOT to allow U.S. carriers to avoid civil penalties if they 
have introduced programs that go beyond minimum requirements.
    The Department disagrees with both these comments. The very reason 
for the existence of the ACAA is that the Supreme Court, in Paralyzed 
Veterans of America v. Civil Aeronautics Board, 477 U.S. 597 (1986), 
determined that, with minor exceptions not germane to the issue raised 
by commenters, U.S. carriers do not receive Federal financial 
assistance. For this reason, the Court said, section 504 of the 
Rehabilitation Act of 1973--which applies only to entities receiving 
Federal financial assistance--largely does not cover U.S. air carriers. 
Congress then enacted the ACAA to ensure that U.S. air carriers 
provided nondiscriminatory service to passengers with disabilities, 
notwithstanding the absence of Federal financial assistance. The 
situation that the Court saw in 1986 remains: U.S. carriers engaging in 
international transportation do not receive Federal financial 
assistance.
    The second of these comments appears to be a somewhat inaccurate 
reflection of a DOT enforcement policy that, in some cases, allows a 
carrier to invest part of a civil penalty to improve services for 
passengers with disabilities above and beyond what the ACAA requires, 
rather than paying the amount of this investment to the Department. For 
example, if a carrier were assessed a $1.5 million civil penalty for 
failure to provide timely and adequate assistance to passengers who use 
wheelchairs, the Department's Office of Aviation Enforcement and 
Proceedings might require a cash payment of only $200,000 if the 
carrier agreed to use the remaining $1.3 million to enhance 
accessibility for passengers with mobility impairments in ways that go 
beyond the requirements of Part 382. Since this enforcement approach 
applies equally to foreign and U.S. carriers, continued implementation 
of this policy will not result in any inequity between U.S. and foreign 
carriers.
    Numerous foreign carriers and organizations complained that the 
Foreign Carriers NPRM was inconsistent with 49 U.S.C. 40105(b), which 
directs the Secretary to ``act consistently with obligations of the 
United States

[[Page 27618]]

government under an international agreement'' and to ``consider 
applicable laws and requirements of a foreign country.'' In the context 
of this rule, the Department believes that the conflict of laws waiver 
provision effectively discharges the statutory obligation imposed on 
the Department by the language of subsection (b)(1)(B), since the 
Department would ``consider'' foreign requirements in implementing its 
waiver authority when a Department regulatory provision that was shown 
to conflict with a foreign legal mandate. In addition, The Department 
has also provided greater flexibility in the rule through incorporating 
an equivalent alternative provision, which covers policies and 
practices that are not mandated by foreign laws and requirements. This 
provision will facilitate our efforts to implement ACAA requirements 
smoothly in the context of our international relationships.
    A related argument that many foreign carriers made is that the 
Foreign Carriers NPRM proposed provisions inconsistent with 
international agreements binding on the U.S., thereby violating 
subsection (b)(1)(A). In particular, commenters cited provisions of the 
Chicago Convention (e.g., Articles 1 and 37 and Annex 9). Article 1 
concerns the sovereignty of signatory states with respect to aviation; 
Article 37 authorizes the International Civil Aviation Organization 
(ICAO) to adopt standards and recommendations in a variety of areas, 
and Annex 9 includes a series of standards and recommendations 
concerning transportation of persons with disabilities.
    In the Department's view, Article 1 is fully consistent with the 
adoption of requirements that affect flights to and from the U.S., a 
point with which many commenters agreed. The one area in which the 
Foreign Carriers NPRM was said by many commenters to assert 
extraterritorial jurisdiction--coverage of foreign carriers with 
respect to flights carrying passengers under the code of a U.S. 
carrier--has been changed in the final rule, as described above.
    The authority of ICAO under Article 37 to issue standards and 
recommendations does not purport to pre-empt a signatory state's 
authority to issue rules concerning air commerce to and from its 
airports. Nor do the standards and recommendations of Annex 9 with 
respect to transportation of passengers with disabilities purport to 
occupy the field, such that member states are pre-empted from issuing 
their own rules in this area. Indeed, the ICAO recommended practices 
suggest that member states should take their own implementing actions. 
It is reasonable to state that the provisions of the ACAA and Part 382 
faithfully carry out these recommendations, making concrete many of the 
suggestions that ICAO makes to member states.
    The two ICAO standards in Annex 9 related to transportation of 
passengers with disabilities are the following:

    Standard 8.27. Contracting States shall take the necessary steps 
to ensure that airport facilities and services are adapted to the 
needs of persons with disabilities.
    Standard 8.34. Contracting States shall take the necessary steps 
to ensure that persons with disabilities have adequate access to air 
services.

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

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

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

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

    In connection with their Chicago Convention-related arguments, a 
number of foreign carriers or organizations cited British Caledonian 
Airways v. Bond, 665 F.2d 1153 (D.C. Cir., 1981). This case arose from 
the crash of a DC-10 that FAA traced to cracks in engine pylons that 
were exacerbated by faulty maintenance procedures. FAA issued an 
emergency Special Federal Aviation Regulation (SFAR) grounding all DC-
10s of U.S. carriers. FAA then issued a similar SFAR prohibiting 
foreign carriers' DC-10s from operating in U.S. airspace. Shortly 
before FAA rescinded the SFARs in question, their purpose having been 
achieved, several foreign carriers sought judicial review of the 
foreign carrier SFAR. The Court found that the SFAR conflicted with 
Article 33 of the Chicago Convention, which provides that certificates 
of airworthiness or licenses issued by the State in which the aircraft 
is registered must be recognized as valid by other contracting States, 
unless the country of registration is not observing ``minimum 
standards.''
    This case concerns solely Article 33 and its relationship to the 
validity of carrier airworthiness certificates issued by foreign 
governments. This rulemaking, on the other hand, has nothing to do with 
Article 33 or airworthiness certificates. The case therefore is 
irrelevant to the rulemaking. It may be that commenters were arguing 
that DOT regulatory actions in general that conflict with the Chicago 
Conventions are vulnerable to court challenges; however, as noted 
above, this regulation is fully consistent with relevant portions of 
the Chicago Convention.
    Other comments from foreign carriers and organizations were more 
policy-oriented in nature, asking for consultation through ICAO or 
other channels prior to publication of a rule which, while carefully 
limited to matters affecting service to and from the U.S., had 
implications for the international aviation system. Comments asked for 
greater focus on international harmonization. In fact, the Department 
consulted extensively with other interested parties. The volume and 
detail of comments from foreign carriers and organizations testify to 
the extensive opportunity non-U.S. parties have had to participate in 
this rulemaking. This final rule reflects the

[[Page 27619]]

Department's consideration of this participation (and we note that 
participation between the time of the Foreign Carriers NPRM and the 
final rule is just as valid as participation before issuance of the 
Foreign Carriers NPRM). DOT officials also met and had phone 
conferences with organizations representing European and Asian 
governments and/or carriers. It would be unreasonable to contend that 
this extensive participation somehow does not count.
    The Department is willing to continue discussions with foreign 
carriers and international organizations with respect to harmonization 
of U.S. and other standards in the area of transportation of passengers 
with disabilities. Meantime, the Department has a responsibility to 
carry out its statutory mandate to apply the ACAA to foreign carriers, 
and we cannot make working with other parties on harmonization matters 
a condition precedent to carrying out what Congress has mandated.
    Some comments alluded to the regulatory negotiation process that 
preceded the issuance of the original ACAA NPRM, complaining that there 
was not a similar process prior to the issuance of the November 2004 
NPRM. Regulatory negotiation, is, of course, a wholly voluntary process 
on the Department's part. There can be no implication that, because the 
Department chose to use such a process in the 1980s, the Department was 
in any sense required to do so again for this rulemaking. Nor is there 
any such requirement in the statutory amendment applying the ACAA to 
foreign carriers. It is worth noting, in any event, that the original 
ACAA NPRM was not the product of consensus resulting from the 
regulatory negotiation. That negotiation terminated short of consensus, 
because of intractable disagreements on some issues between carriers 
and disability groups. The original NPRM, like the 2004 NPRM, was 
wholly the Department's proposal. The variety of disagreements among 
commenters concerning the November 2004 NPRM suggests, in retrospect, 
that the likelihood of achieving consensus on the application of the 
ACAA to foreign carriers in a manner consistent with the Department's 
obligations under the ACAA would have been very low. Moreover, in the 
years since the original ACAA regulatory negotiation, disability groups 
have expressed some skepticism about the utility of the regulatory 
negotiation process for nondiscrimination rules of this kind, making it 
questionable whether they would have chosen to participate in such a 
venture.

Accessibility of Airport Terminals and Facilities

    The Foreign Carriers NPRM (sec. 382.51) proposed that both U.S. and 
foreign carriers, at both U.S. and foreign airports, would be 
responsible for ensuring the accessibility of terminal facilities they 
own, lease, or control. The responsibility of foreign carriers at 
foreign airports would extend only to facilities involved with flights 
to or from the U.S. U.S. airports must meet applicable accessibility 
requirements (e.g., the ADAAG) under the ADA and section 504. The 
Foreign Carriers NPRM proposed a performance standard for foreign 
airports, since U.S. accessibility standards do not apply there. This 
performance standard would require carriers to ensure that passengers 
with disabilities could readily move through terminal facilities to get 
to or from boarding areas. Carriers could meet this performance 
standard by a variety of means. A related provision (sec. 382.91) 
proposed that, at both U.S. and foreign airports, both U.S. and foreign 
carriers would have to provide assistance to passengers with 
disabilities in moving through the terminal and making connections 
between gates.
    Some comments appear to have misunderstood the Foreign Carriers 
NPRM to propose that DOT wished U.S. accessibility standards, like the 
ADAAG, to apply to foreign airports. The Foreign Carriers NPRM did not 
make such a proposal. Those comments aside, the most frequent comment 
made by foreign carriers and their organizations on this subject was 
that the Foreign Carriers NPRM's proposals for airport facility 
accessibility did not sufficiently take into account the fact that 
foreign governments or airport operators, not airlines, controlled 
matters relating to accessibility at many foreign airports. For 
example, it was pointed out that under recent European Union 
regulations, airport operators are given most of the responsibility for 
accommodating passengers with disabilities in airports.
    The Department recognizes that this may often be the case, and the 
final rule should not be understood to require carriers to duplicate 
the accommodations made by airport operators at foreign airports. Where 
foreign airport operators provide accessibility services or accessible 
facilities, foreign carriers may rely on the airport operators' 
efforts, to the extent that those efforts fully meet the requirements 
of this Part. What happens, though, if the foreign airport operators' 
efforts do not fully provide the accessibility that this rule requires 
(e.g., the airport operator is responsible for providing wheelchair 
assistance to passengers within the terminal, but does not provide 
connecting service between gates for wheelchair users who are changing 
planes on flights covered by the rule)? In such a case, this rule 
requires air carriers to supplement the services provided by the 
airport operator, by providing the supplemental services itself or 
hiring a contractor to do so. If the carrier cannot legally do so 
(e.g., the airline is legally prohibited from supplementing the 
airport's services to passengers with disabilities), the carrier could 
seek a conflict of laws waiver.
    The Foreign Carriers NPRM asked whether the final rule should 
require automated kiosks operated by carriers in airports or other 
locations (e.g., for ticketing and dispensing of boarding passes) to be 
accessible, and, if so, what accessibility standards should apply to 
them. Disability community commenters generally expressed support for 
this proposal; carriers and their organizations generally expressed 
concern about the cost and technical feasibility of accessible kiosks. 
The Department believes that all services available to the general 
public should be accessible to people with disabilities. Nevertheless, 
the comments concerning kiosks were not sufficient to answer our 
questions about cost and technical issues. Consequently, the Department 
plans to seek further comment about kiosks in a forthcoming 
supplemental notice of proposed rulemaking (SNPRM). The preamble to the 
SNPRM will discuss this issue in more detail. On this subject, the 
Department intends to coordinate with the Access Board, which also has 
work under way that could affect kiosks.
    As an interim measure, the final rule will require a carrier whose 
kiosks are not accessible to provide equivalent service to passengers 
with disabilities who cannot use the kiosks. For example, suppose a 
passenger with a disability having only carry-on luggage wants to use a 
kiosk to get a boarding pass without standing in line with passengers 
checking baggage. If, because the kiosk is not accessible, the 
passenger cannot use it, the carrier would have to provide equivalent 
service, such as by having carrier personnel operate the kiosk for the 
passenger or allowing the passenger to use the first class boarding 
pass line.
    We recognize that some disability community commenters have 
expressed concern about the latter approach, thinking that it might 
call undue attention to the individuals receiving the accommodation. We 
agree that

[[Page 27620]]

assisting the passenger at the kiosk is preferable. In our view, 
however, a potentially awkward accommodation is preferable to none at 
all (e.g., in a situation where personnel were not available to assist 
the passenger at the kiosk). We urge carriers to provide such an 
accommodation with sensitivity to passengers' potential concerns about 
looking as though they have been singled out for special treatment.
    U.S. airports are governed, for disability nondiscrimination, by 
several Federal laws and rules, all of which coexist on the same 
airport real estate. The ACAA and DOT's ACAA rules apply to terminal 
facilities owned, leased, or controlled by a carrier, specifically 
facilities that provide access to air transportation (e.g., ticket 
counters, baggage claim areas, gates). Title II of the ADA, and the 
Title II rules of the Department of Justice (DOJ) apply to terminal 
facilities owned by public entities like state and local airport 
authorities. DOT's rules under section 504 of the Rehabilitation Act of 
1973 apply to those same facilities owned by public entities, if they 
receive DOT financial assistance (i.e., under the FAA's airport 
improvement program). In some cases, DOT's 504 rules could apply to 
airport facilities of airlines (e.g., those air carriers who receive 
essential air service program funds from DOT). DOT's Title II ADA rules 
apply to transportation services provided by public entities (e.g., a 
parking shuttle service run by the airport authority) or public 
transportation services that serve the airport (e.g. a public rail or 
bus transit link to the airport) DOT's Title III ADA rules apply to 
private transportation serving the airport (e.g., private taxi, demand-
responsive shuttle, or bus service). DOJ's Title III ADA rules also 
apply to places of public accommodation on airport grounds that serve 
the general public (e.g., hotels, restaurants, news and gift stores).
    Fortunately, ascertaining the practical obligations of various 
parties at the airport is a good deal less confusing than this summary 
of overlapping authorities might make it seem. In a November 1996 
amendment to its existing ACAA rule, the Department clarified these 
relationships, and this understanding of the relationship carries over 
into the new ACAA rule (see 61 FR 56417-56418, November 1, 1996). 
Basically, regardless of which statutory or regulatory authority or 
authorities apply to a particular facility or portion of a facility, 
Title II ADA requirements apply to public entity spaces and Title III 
ADA requirements apply to private entity spaces. The Americans with 
Disabilities Act Accessibility Guidelines (ADAAG) are the physical 
accessibility standards that apply throughout the airport (note, 
however, that until DOJ completes its adoption of the 2004 ADAAG, the 
1991 ADAAG continues to apply spaces controlled by DOJ regulations).

Enplaning, Deplaning, and Connecting Assistance

    The original Part 382, issued in 1990, required U.S. carriers to 
provide enplaning and deplaning assistance, and it assigned to the 
arriving carrier the responsibility for providing assistance in making 
connections and moving between gates. The Foreign Carriers NPRM built 
on this existing requirement, proposing to require carrier assistance 
between the terminal entrance and gate, as well with accessing ticket 
and baggage locations, rest rooms, and food service concessions. The 
Foreign Carriers NPRM asked whether carriers should be permitted to 
require advance notice for these accommodations, and it proposed that 
enplaning, deplaning, and connecting assistance be provided 
``promptly.''
    The Foreign Carriers NPRM proposed requiring carriers, in the 
course of providing this assistance, to help passengers with 
disabilities with carry-on and gate-checked luggage. It also proposed 
requiring carriers to make a general announcement in the gate area 
offering preboarding to passengers with disabilities.
    Some carriers said that while they would voluntarily provide 
assistance to passengers with disabilities in moving through the 
terminal when practical and feasible, they opposed a regulatory 
requirement to provide this assistance. The Department does not believe 
that, under the ACAA, it is appropriate to tell passengers that they 
must learn to rely on the kindness of strangers. One of the purposes of 
Part 382 always has been, and remains, to create legally enforceable 
expectations upon which passengers with disabilities can consistently 
depend. Reliance on purely voluntary action by carriers does not 
achieve this objective.
    One of the issues discussed most often in comments concerned the 
proposed requirement that enplaning, deplaning, and connecting 
assistance be provided promptly. Many commenters, particularly people 
with disabilities and organizations representing them, thought that the 
rule should specify maximum times for assistance--5, 10, or 15 
minutes--rather than having a more general requirement for promptness. 
Some disability community comments also said that the rule should 
prohibit carriers from waiting until everyone else had left the plane 
before providing deplaning assistance to passengers with disabilities 
(e.g., to deplane a person needing assistance at the same time as 
persons in adjacent rows leave), or at least that the rule should 
require carriers to assist passengers with disabilities in deplaning no 
later than the time the aircraft aisle is free of other passengers. 
Carriers, on the other hand, opposed such specificity, saying that it 
was impractical and potentially costly. Some carriers wanted a less 
specific term than ``promptly,'' preferring a concept like ``as soon as 
reasonably possible under the circumstances.''
    The Department has decided to adopt the ``promptly'' language as 
proposed. The Department is concerned that, given the wide variety of 
situations in different airports and flights, adopting a specific time 
limit as some commenters advocated would be unrealistic. On the other 
hand, having no standard would have the effect of reducing the 
requirement, as a practical matter, to ``whenever the carrier gets 
around to it.'' We understand ``promptly'' to mean, in the case of 
deplaning, that personnel and boarding chairs should be available to 
deplane the passenger no later than as soon as other passengers have 
left the aircraft. We believe that halting the boarding process for 
everyone behind, for example, Row 15, until a wheelchair user in Row 15 
was transferred to a boarding chair and assisted off the aircraft, 
could unduly inconvenience a considerably greater number of persons. 
The requirement for prompt service imposes a reasonable performance 
requirement on carriers without creating unnecessarily rigid timing 
requirements which, in some situations, carriers operating in the best 
of faith might be unable to meet.
    Many carriers suggested that they be allowed to require advance 
notice (e.g., of 24 or 48 hours) from passengers wanting enplaning, 
deplaning, and connecting assistance. This would make the logistics of 
providing the service easier for carriers to deal with, they said, and 
would ensure better service for passengers. We agree that it is highly 
advisable for passengers who want assistance to tell the airline about 
their needs in advance, and we urge passengers to communicate with 
carriers as soon as possible to set up assistance. We also noted 
comments from some carriers that, at some airports, particular 
locations have been established at which passengers arriving without 
prior notice can obtain assistance more easily and quickly than might 
otherwise be the case. This appears to be a good idea that carriers

[[Page 27621]]

might consider using more widely. Nevertheless, being able to receive 
assistance in moving through the airport is so fundamental to access to 
the air travel system that the Department does not believe that 
allowing carriers to require--as distinct from recommending--advance 
notice would be consistent with the nondiscrimination objectives of the 
ACAA. Passengers with disabilities, like other passengers, sometimes 
must travel on short notice for business or personal reasons, and it 
would not be consistent with the ACAA to limit their access to needed 
assistance in moving through the terminal.
    Carrier comments also mentioned, in this context, the relationship 
between carriers and many foreign airports, where airports often have 
the major responsibility for providing assistance in the terminal. As 
noted elsewhere in the preamble, carriers can rely on airports' efforts 
with respect to assistance in the terminal, supplementing the 
assistance that airports provide as necessary to meet fully the 
requirements of Part 382. If carriers are precluded by law from 
supplementing the airport-provided assistance, carriers can request a 
conflict of laws waiver.
    The Foreign Carriers NPRM, like the existing rule, assigns 
responsibility for connecting assistance to the carrier on which the 
passenger arrives. One foreign carrier mentioned that, per agreements 
with other carriers in at least some airports, its arriving passengers 
would be assisted to a connecting carrier's gate by personnel of the 
connecting carrier. As noted elsewhere, the Department does not object 
to contractual agreements between carriers that would delegate the 
connecting assistance function to the connecting carrier. However, 
under the rule, the arriving carrier would retain responsibility for 
ensuring that the function was properly carried out.
    Many carriers objected to having to allow passengers they are 
assisting to stop at a restroom or food service location, saying that 
this would delay service and increase personnel costs. Passenger 
comments, to the contrary, suggested that it was unfair for assistance 
personnel to insist on wheeling a passenger who needed to go to the 
bathroom or who was hungry past a conveniently located restroom or food 
concession, at which ambulatory passengers could stop at their 
discretion. Their comments pointed out that eating and relieving 
oneself are basic life activities that people must do from time to 
time. This issue has become increasingly significant in recent years 
due to the need for early arrival at the airport for security screening 
and cutbacks in airline meal service.
    The final rule is structured to accommodate both sets of concerns. 
If an airline or contractor employee is assisting a passenger from, for 
example, the ticket counter to the gate, and they come to a restroom or 
food service location on the route they are taking, the employee is 
required to allow the passenger a brief stop, if the passenger self-
identifies as a person with a disability needing this service. The 
employee is not required to detour to a different route, provide 
personal care attendant services to the passenger, or incur an 
unreasonable delay. A delay which would result in the passenger not 
getting to a connecting flight would obviously be unreasonable. With 
respect to food service locations, the kind of brief stop the 
Department envisions is one sufficient to pick up a prepared carry-out 
item or fast-food sandwich, as distinct from eating at a sit-down 
restaurant. Even in the case of a carry-out or fast-food location, a 
long line might create an unreasonable delay.
    The Foreign Carriers NPRM proposed that persons with disabilities 
who need assistance in boarding be provided an opportunity to preboard. 
It also proposed requiring a general preboarding announcement to this 
effect in the gate area. Disability community comments generally 
supported the proposed requirements. Carrier comments did not object to 
the proposed requirement to provide an opportunity for persons with 
disabilities to preboard, though some carriers did object to making the 
general announcement of the opportunity in the gate area, mostly out of 
concern that too many ineligible people would try to preboard, thereby 
slowing the boarding process. The Department believes that preboarding 
is an important way in which carriers can facilitate transportation by 
passengers with disabilities. Indeed, some portions of Part 382 (e.g., 
with respect to on-board stowage of accessibility equipment) are 
premised on the availability of preboarding. The final rule will 
include this requirement. However, we will not make final the proposed 
provision requiring a general announcement of this opportunity in the 
boarding area. Some carriers make such an announcement as a matter of 
policy. Even where this is not the case, carrier personnel are 
generally responsive to requests from passengers with disabilities to 
preboard and often scan the boarding area to determine if there are 
passengers for whom preboarding would be appropriate. Passengers who 
want to ensure that they can preboard should ask gate personnel for the 
opportunity. It is reasonable to expect passengers to take this step.
    The Foreign Carriers NPRM proposed that carriers, in the course of 
providing assistance to passengers with a disability in moving through 
the terminal, would assist them in transporting carry-on and gate-
checked baggage. A number of carrier comments opposed this proposal, 
saying that it would impose staffing and cost burdens on them. If a 
passenger wanted to have someone carry his or her bags, at least one 
comment suggested, the passenger should hire porter service. Other 
commenters said that such service should be limited to wheelchair users 
or persons with severe hearing or vision impairments.
    The Department notes that, in many cases, passengers with 
disabilities do not need extensive extra assistance in dealing with 
carry-on items. It is commonplace for wheelchair users to carry their 
briefcases or purses on their laps when being assisted through the 
terminal, for example. Proper-size carry-on and gate-checked items are, 
by definition, limited in size, and they are not the kind of items that 
passengers in general need to use a skycap and a cart to move through 
the airport. It would not be appropriate, in the context of a 
nondiscrimination rule, to effectively require passengers with 
disabilities to hire such service. We agree with commenters, however, 
that passengers who can carry their own items should do so, and we have 
added language saying that this service need be provided only to those 
passengers who cannot do so because of their disability. Carrier or 
contractor personnel can request credible verbal assurances from a 
passenger that he or she cannot transport the item in question or, in 
the absence of such credible assurances, require documentation as a 
condition of providing the service.

Number Limits

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

[[Page 27622]]

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

Safety Assistants/Attendants

    The Foreign Carriers NPRM proposed retaining, with minor 
modifications, the existing Part 382 limitations on the ability of 
carriers to require passengers with disabilities to travel with 
attendants. One terminological change we proposed was to refer to 
attendants that airlines could require in certain specified situations 
for safety purposes as ``safety assistants.'' The use of this term is 
intended to emphasize that the only reason a carrier may require 
another person to travel with a passenger with a disability is safety. 
It would never be permitted for a carrier to require someone to travel 
with a passenger with a disability as a personal care attendant; that 
is, as someone who is present to assist the passenger with personal 
needs such as eating, drinking, and elimination.
    A number of foreign carriers asserted that they should retain the 
discretion to require attendants for passengers with disabilities. They 
gave several reasons for this desire. Some commenters did not want to 
have to rely on passengers' self-assessments of their ability to travel 
independently. Some cited provisions of carrier manuals or government 
guidance that were contrary to the proposed regulation. Some feared 
that crew members might be pressed into performing personal care 
functions. Others argued that, on lengthy overseas flights, it was 
reasonable to require attendants for personal care purposes, since 
otherwise passengers with disabilities would be unable to perform 
personal functions for long periods, with harm possibly resulting to 
themselves or others. Some comments said that the requirement to allow 
a safety assistant to fly free if the carrier disagreed with the 
passenger's self-assessment could lead to abuse by clever passengers 
trying to get free flights for someone. Some of these comments 
suggested providing discounted, rather than free, transportation for 
the attendant in these situations.
    Disability community commenters generally supported the Foreign 
Carriers NPRM proposals, and a number of comments were particularly 
supportive of the change to the ``safety assistant'' term, believing 
that it helped to clarify the meaning of the provision. Some comments 
from people with disabilities, however, objected to the provision to 
the extent that it would ever permit carriers to insist on an attendant 
over the passenger's objections. These commenters did not trust the 
carriers' judgments about passengers' capabilities and were concerned 
that carriers would impose attendant requirements arbitrarily, 
increasing the costs and difficulty of flying for passengers with 
disabilities.
    The limits on carrier requirements for attendants were a 
significant issue in the original ACAA rulemaking, and the Department's 
discussion of that issue in the preamble to the 1990 ACAA rule remains 
relevant (see 55 FR 8029-8032; March 6, 1990). Passengers with 
disabilities, for the most part, are the best judges of their 
capabilities, and providing broad discretion to carriers to override 
that judgment does carry with it a significant risk of arbitrary 
burdens being placed on passengers. On the other hand, carriers have 
ultimate responsibility for the safety of passengers, and we believe 
that the balance struck in the original ACAA rule is a sensible one. 
Passengers have the primary responsibility for making the determination 
if they can travel independently, but carriers can overrule that 
determination, in a carefully limited set of circumstances, and require 
a safety assistant. If it is really an overriding safety reason that 
compels a carrier to overrule a passenger's decision and insist that he 
or she travel with a safety assistant, then it is appropriate for the 
carrier to bear the cost of the safety judgment that it makes. In the 
17 years that the Department has implemented this provision under the 
existing ACAA rule, this requirement has not resulted, to the best of 
our knowledge, either in safety problems or frequent or significant 
abuse by passengers.
    Even on long flights, passengers with disabilities, under a 
nondiscrimination statute, have the right to determine whether they 
will incur the discomfort involved with not having someone available to 
assist them with personal functions. A passenger may choose to forego 
the airline's food and beverage service. A passenger may dehydrate 
himself and avoid the need to urinate. The Foreign Carriers NPRM, like 
the present rule, emphasizes that flight attendants and other carrier 
personnel are never required to perform personal care functions for a 
passenger. To ensure that passengers who make the choice to fly 
unaccompanied have the opportunity to be fully informed of the 
implications of their decision, the information to which passengers are 
entitled (see sec. 382.41(f)) includes a description of services that 
are or are not available on a flight.
    For these reasons, the Department is adopting the proposed 
provision and thereby retaining the substance of the existing provision 
of Part 382. The Department has made a few 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

[[Page 27623]]

briefings required by foreign government regulations, as well as those 
of the FAA.
    Consistent with the approach taken in the current rule and the 
Foreign Carriers NPRM, we proposed in the DHH NPRM to allow carriers to 
require any passenger who has severe hearing and vision impairment or 
is deaf-blind to travel with a safety assistant if communication 
adequate for transmission of the required safety briefing cannot be 
established. (We use the term ``severe hearing and vision impairment'' 
to include the entire spectrum of this disability, including the 
extreme of ``deaf-blind,'' unless we expressly indicate otherwise.) We 
proposed to require both the carrier's personnel and the disabled 
passenger to make reasonable attempts to establish adequate 
communication, beginning with self-identification on the passenger's 
part. We further proposed that if the carrier disagrees with the 
passenger's assessment that he or she is capable of traveling 
independently, the carrier must transport the safety assistant free of 
charge and must also make reasonable efforts to locate such an 
assistant. We solicited comments on the proposed joint responsibility, 
on what might qualify as reasonable attempts to communicate, on whether 
our proposal is specific enough for all parties concerned to understand 
their responsibilities, and on whether a different standard might be 
more appropriate. We also solicited comments on the costs of 
compliance.
    The carriers and carrier associations that filed comments all 
supported the proposed requirement that passengers with severe hearing 
and vision impairment self-identify. Most opposed being required to 
find a voluntary safety assistant if they disagree with the disabled 
passenger's self-assessment of being able to travel without one, and 
all opposed being required to transport the safety assistant without 
charge. They contend that not only would the requirement to transport 
the safety assistant without charge create incentives for fraudulent 
assertions of independence, but using voluntary safety assistants would 
raise serious insurance and liability issues, and requiring free 
transportation would saddle them with undue costs. Most sought 
clarification of carriers' responsibility for making reasonable efforts 
to establish communication with passengers whose hearing and vision are 
severely impaired. For flights of twelve hours or more, some carriers 
said, inexperienced passengers may not be aware of what needs may arise 
for them during their flight.
    Of the disability organizations that filed comments, one supported 
joint responsibility for reasonable efforts to establish communication 
to determine the need for a safety assistant. Others maintained that 
the rule should ensure that persons with severe hearing and vision 
impairment are not denied travel because a carrier's employees lack 
adequate training in or knowledge of basic communication techniques.
    In response to the comments we received, we are modifying the 
proposed rule in some respects. In so doing, we are maintaining the 
basic principle that has worked effectively in the domestic airline 
industry since the original 1990 rule: if a passenger is able to 
establish adequate communication with the carrier for purposes of 
receiving the safety briefing, and the carrier nonetheless decides to 
overrule the passenger's assessment that he or she can travel 
independently, the carrier cannot charge for the transportation of the 
safety assistant that the carrier requires.
    To allow the carrier an opportunity to confirm that the passenger 
had such a means of communication available, the final rule provides 
that the carrier can require the passenger to self-identify 48 hours 
before the flight. As part of this notification, the passenger would 
explain to the carrier how communication can be established (e.g., via 
tactile speech-reading by touching the speaker's lips, cheek and 
throat). If the passenger does not notify the carrier 48 hours before 
the flight, the rule nonetheless requires the carrier to accommodate 
the passenger as far as is practicable.
    For example, if a passenger with severe hearing and vision 
impairments does not notify the carrier 48 hours before the flight of 
his or her intent to travel alone and of his or her ability to 
communicate adequately for transmission of the safety briefing, the 
carrier could refuse to transport the passenger without a safety 
assistant. If, however, the same passenger does not provide advance 
notice but is taking a nonstop flight, brings an interpreter to the 
airport, and is able to establish communication (in the gate area) 
adequate for the transmission of the safety briefing and to receive 
instruction during an emergency evacuation, the carrier must allow the 
passenger to travel without a safety assistant.
    The FAA requires that the safety briefing be provided before each 
takeoff, so communication to permit transmission of this briefing must 
be established for each flight segment of the passenger's itinerary. 
Passengers can use a variety of means to establish the needed 
communication. A passenger could, for example, bring a companion to the 
airport to serve as a go-between with carrier personnel there. That 
individual can interpret for the passenger during the safety briefing 
and can help the passenger agree with carrier personnel on physical 
signals--touching the passenger's hand in a specific manner, for 
example--for use during evacuation or other emergencies. Another means 
by which the passenger may establish communication is to give carrier 
personnel an instruction sheet for communicating with him or her.
    While we are not requiring carriers to make safety briefing 
information available on Braille cards, they are free to do so. The 
carrier may not require the passenger to demonstrate his or her ability 
to communicate or that he or she has understood the safety briefing. 
For example, there could not be a quiz on the contents of the safety 
briefing or a demonstration of lip reading or finger spelling ability.
    In the case of codeshare flights, the carrier whose code is used 
must inform the operating carrier that a passenger with severe hearing 
and vision impairment has provided notice 48 hours in advance of his or 
her intent to travel without a safety assistant. If there is sufficient 
time before the 48-hour deadline for the passenger to directly contact 
the operating carrier, the carrier whose code is being used could, as 
an alternative, provide the passenger a number where he or she could 
contact the operating carrier to impart this information.
    Consistent with the treatment of this issue in the rest of the 
rule, in cases where carriers disagree with a passenger's self-
assessment that he or she can travel alone, we will continue to require 
that they transport the safety assistant without charge. Of course, any 
carrier that wishes to accommodate a passenger with severely impaired 
vision and hearing by designating a safety assistant from among, say, 
non-revenue passengers, its airport personnel, ticketed passengers on 
the same flight who volunteer to serve in that capacity, or a person 
accompanying the disabled passenger to the airport is free to do so.
    This requirement of free transportation for the safety assistant 
also applies in cases when the disabled passenger who believes that he 
or she does not need a safety assistant proposes to establish 
communication by means of tactile signing or finger spelling, but no 
member of the carrier's flight crew can communicate using these 
methods. Carriers may decide as a practical matter that providing free 
transportation for a safety assistant in

[[Page 27624]]

these cases is less costly than training personnel to communicate using 
such methods.
    Finally, with respect to a passenger with a mental impairment 
(e.g., someone with Alzheimer's disease), the Department wants carriers 
and passengers to understand that it is the passenger himself, not 
someone accompanying the passenger to the airport, who must be able to 
understand safety instructions from the crew.

Medical Certificates/Communicable Diseases

    The Foreign Carriers NPRM proposed to continue, and apply to 
covered flights of foreign carriers, the existing Part 382 limits on 
the extent to which carriers can exclude or restrict passengers with 
communicable diseases and the situations in which carriers can require 
a passenger to get a medical certificate from a physician before 
traveling.
    Many air carrier comments asked for greater guidance on how to 
apply the provisions of these sections. Some of these suggested 
incorporating past DOT guidance that spelled out that a combination of 
severity of health consequences and easy transmission of a disease in 
the aircraft cabin environment would create an appropriate situation 
for restrictions on an individual's travel and/or a requirement for a 
medical certificate. Commenters asked whether such conditions as the 
common cold, SARS, tuberculosis, or AIDS would meet the requirements of 
the proposed rule for permitting restrictions on travel or the 
requirement for a medical certificate. Some comments also asked how 
directives or recommendations from public health authorities would play 
into carrier decisions under the rule.
    There were a number of comments about the concept of ``direct 
threat,'' which is defined as a significant risk to the health or 
safety of others that cannot be eliminated by a modification of 
polices, practices, or procedures or eliminated by the provision of 
auxiliary aids or services. Disability community commenters expressed 
the concern that use of this term--derived from the Americans with 
Disabilities Act--would make it too easy for carriers to use their 
discretion to exclude passengers, perhaps in a discriminatory fashion. 
Some carriers believed, to the contrary, that it would make it too 
difficult to exercise the discretion they need to protect the health of 
travelers or that it would be too burdensome for their personnel to 
make judgments on this basis. A medical group suggested that a direct 
threat be defined as a condition that would be seriously exacerbated by 
the flight itself or a serious communicable disease that could be 
transmitted to another person in flight.
    Some carriers questioned the objectivity or qualifications of a 
passenger's physician to make a sound determination of whether it was 
safe for a passenger to travel. Some carriers preferred that their own 
medical staffs make these determinations, or at least have the ability 
to evaluate and override medical certificates provided by passengers' 
physicians. Generally, carriers preferred to have wider discretion to 
restrict passengers' travel than they perceived the provisions of the 
Foreign Carriers NPRM as giving them.
    In response to comments, the Department has made some modifications 
in the final rule provisions on these subjects. We have included the 
substance of the DOT guidance. Under this provision, carriers would 
have the ability to impose travel restrictions and/or require a medical 
certificate if a passenger presented with a communicable disease that 
was both readily transmitted in the course of a flight and which had 
serious health consequences (e.g., SARS, but not AIDS or a cold). In 
addition, carriers could conduct additional medical reviews of a 
passenger and, notwithstanding a medical certificate, restrict travel 
under some conditions. This additional review would have to be 
conducted by medical personnel (e.g., members of the carrier's medical 
staff or medical personnel to whom the carrier referred the passenger), 
and this provision is not a license for non-medically trained carrier 
staff to disregard medical certificates presented by passengers from 
their own physicians. Nor would it be appropriate for carrier staff to 
exclude or discriminate against passengers because the passengers' 
appearance might disturb or upset other persons (see also sec. 
382.19(b)).
    Existing language of the regulation, which will be carried forward, 
permits a carrier to require a medical certificate from a passenger 
when there is reasonable doubt that the individual can complete the 
flight safely without requiring extraordinary medical assistance. This 
language accommodates the comment that one aspect of a direct threat is 
a passenger having a condition that would be seriously exacerbated by 
the flight itself. We disagree with a commenter's assertion that a 
carrier should be able to ask for a medical certificate if any medical 
attention might be needed. This suggestion goes too far in the 
direction of granting carriers discretion to demand medical 
documentation for potentially minor medical conditions or for 
disabilities that do not entail any acute medical condition.
    We have added language permitting carriers to rely on instructions 
issued by public health authorities (e.g., the U.S. Centers for Disease 
Control or Public Health Service; comparable agencies in other 
countries; the World Health Organization) in making decisions about 
carrying passengers with communicable diseases. For example, if CDC or 
WHO issues an alert or directive telling airlines not to carry a 
particular individual who poses a serious health risk (e.g., an 
individual with multiple drug-resistant tuberculosis), or persons 
exhibiting symptoms of a serious health condition (e.g., SARS), we 
would expect carriers to follow the public health agency's 
instructions. Carriers could do so without contradicting the 
requirements of this Part.

Aircraft Accessibility Features

    The Foreign Carriers NPRM proposed extending to foreign carriers 
requirements for aircraft accessibility features based, with some 
modifications, on provisions in the existing ACAA rule. These features 
include accessible lavatories, movable aisle armrests, provision of on-
board wheelchairs, and space to store wheelchairs and other mobility 
aids in the cabin. A few commenters apparently misunderstood the 
proposal as requiring retrofit of existing aircraft. This is not the 
case; no such requirement has ever existed or been proposed.
1. Movable Aisle Armrests
    The current rule requires U.S. carriers using aircraft with 30 or 
more seats to have movable aisle armrests on at least half the 
passenger aisle seats. Such armrests need not be provided on emergency 
exit row seats or on seats on which movable aisle armrests are not 
feasible. The carrier is required to provide a means to ensure that 
individuals with mobility impairments or other passengers with 
disabilities can readily obtain seating in rows having movable aisle 
armrests. The requirement applies to new aircraft ordered or delivered 
after the rule went into effect (retrofitting was not required) or to 
situations in which existing seats are replaced by newly manufactured 
seats.
    The Foreign Carriers NPRM proposed retaining these requirements and 
applying them to foreign carriers, with some modifications and 
clarifications. The exception for seats on which movable aisle armrests 
are not feasible was not included in the Foreign Carriers NPRM 
regulatory text, and a new requirement was proposed that would

[[Page 27625]]

call on U.S. and foreign carriers to ensure that movable aisle armrests 
were proportionately provided in all classes of service. The 
information provided by carriers about the location of movable aisle 
armrests would have to be specified by row and seat number.
    A number of carriers and aircraft manufacturers commented that the 
proposed deletion of the feasibility exception and the requirement to 
have movable aisle armrests in each class of service were problematic. 
They said that some seats and seat console designs for first and 
business class seats in fact did make movable armrests infeasible or 
too costly. Moreover, they said, the wider seat pitches in first and 
business class cabins often permitted horizontal transfers of 
passengers from boarding chairs to aircraft seats, making movable 
armrests unnecessary in these cases.
    The Department agrees that, if in a given aircraft, seats and seat 
pitches are configured so as to permit a horizontal transfer of a 
passenger from a boarding wheelchair to the aircraft seat (i.e., a 
transfer that can be accomplished without lifting the passenger over 
the aisle armrest), it would not be necessary to have a movable aisle 
armrest at that location. Consequently, if a carrier can show, through 
an equivalent alternative request, that such transfers are feasible 
with a given cabin configuration, the Department would grant the 
request for the carrier's aircraft using that configuration. The 
underlying rule, however, will be adopted as proposed, because without 
a means of making a horizontal transfer into aircraft seats, passengers 
who board using boarding wheelchairs will have to use the less 
comfortable, safe, and dignified method of being lifted over the 
armrest. Carriers that are unable to demonstrate an equivalent 
alternative would have to provide movable aisle armrests even in first 
and business class.
    Some commenters also said that putting seats with movable armrests 
into existing aircraft should be required only when newly designed or 
developed types of seats are installed, as distinct from newly 
manufactured seats of the same type that formerly occupied the space. 
Consistent with other provisions of the ACAA, ADA, and section 504, 
when a feature of a vehicle or facility is replaced, it must be 
replaced with an accessible item. (We note that, according to 
information referred to in the regulatory evaluation, movable aisle 
armrests are now standard features of at least some seat manufacturers' 
products.) This obligation is not limited to new models of a feature 
placed into a space where older models formerly were used. Indeed, 
adopting the commenters' suggestion would create a means for carriers 
to avoid providing movable aisle armrests on existing aircraft when 
newly manufactured armrests are installed, since carriers could simply 
order older seat models whenever they replaced the seats. When carriers 
remove any of the old seats on existing aircraft and replace them with 
newly manufactured seats, half of the replacement aisle seats must have 
movable armrests.
    Disability community commenters generally favored the Foreign 
Carriers NPRM proposal, but suggested some modifications. Some comments 
said that emergency exit rows should be made part of the base from 
which the 50 percent calculation should be made. The Department 
believes, however, that the existing formula, which excludes those rows 
from the calculation, will result in sufficient rows being equipped 
with movable aisle armrests. Other comments suggested requiring some 
rows (presumably, in economy as well as business or first-class 
sections) to have wider seat pitches, the better to accommodate service 
animals or assistive devices, or to remove some rows entirely and 
provide securement devices so that passengers could sit in their own 
wheelchairs. The Department regards these suggestions as impractical 
and potentially too costly to airlines, as they would reduce seating 
capacity on the aircraft. The latter suggestion, in addition, would be 
inconsistent with FAA safety rules concerning passenger seats on 
aircraft, since aircraft seats must be certified to withstand specified 
g-forces.
    One comment suggested requiring that in new aircraft or those 
subject to a cabin refit, the bulkhead row always have a movable aisle 
armrest. While we do not believe it is necessary to be this specific in 
the regulatory text, we believe that this is a good idea that carriers 
and manufacturers should consider, except when a bulkhead row is 
unavailable to passengers with disabilities because of FAA safety rules 
(e.g., a bulkhead row that is also an exit row). Bulkhead rows are 
often used by people with disabilities (see the seating accommodations 
section of this Part).
2. Accessible Lavatories
    The Foreign Carriers NPRM proposed to retain the existing 
requirement that cabins of aircraft with more than one aisle (e.g., a 
twin-aisle aircraft like a 747) have an accessible lavatory. As under 
the existing rule, this requirement would apply to new aircraft (i.e., 
aircraft ordered/delivered after the effective date of the rule). If a 
carrier replaced an inaccessible lavatory on an existing twin-aisle 
aircraft, it would have to do so with an accessible lavatory. The 
Foreign Carriers NPRM also proposed to clarify that if a carrier 
replaced a component of an existing, inaccessible lavatory on a twin-
aisle aircraft (e.g., a sink) without replacing the entire lavatory, 
the new component would have to be accessible.
    Many disability community commenters believed the existing and 
proposed requirements concerning accessible lavatories were inadequate. 
They said that accessible lavatories should be required in all 
aircraft, including the much more common single-aisle aircraft. The 
absence of accessible lavatories makes travel uncomfortable and 
difficult for passengers with disabilities, they said. Airline industry 
commenters, on the other hand, said that adding a requirement for 
accessible lavatories on single-aisle aircraft would be overly costly 
and burdensome.
    Particularly given that single-aisle aircraft often make lengthy 
flights (e.g., across North America, some trans-oceanic flights), it is 
clear that providing accessible lavatories on single-aisle aircraft 
would be a significant improvement in airline service for passengers 
with disabilities. One of the organizations that commented on the 
Foreign Carriers NPRM is in the process of working with carriers and 
manufacturers to develop an accessible lavatory design for single-aisle 
aircraft that would minimize seat loss. At the present time, however, 
the Department is concerned that the revenue loss and other cost 
impacts of requiring accessible lavatories on single-aisle aircraft 
could be too great. Consequently, we are not imposing such a 
requirement at this time. Providing accessible lavatories on single-
aisle aircraft remains a matter of interest to the Department, and we 
will look carefully at ongoing developments in this area to determine 
if future rulemaking proposals may be warranted.
    Some comments objected to the proposed requirement to use 
accessible components (e.g., a sink) when replacing a component of a 
lavatory on a twin-aisle aircraft. Cost concerns aside, the main point 
of these comments was that lavatories typically are sold and installed 
as a unit, and that it is unusual to replace a single component of a 
lavatory. Even when this happens, because the lavatory is an integrated 
unit, only a given component that is dimensionally consistent with its 
original design is likely to fit. The Department believes that this 
comment

[[Page 27626]]

has merit, and we are deleting the sentence in question.
    Several foreign carriers objected to the application to them of the 
existing rule's requirement that when an inaccessible lavatory unit was 
being replaced on a twin-aisle aircraft, it must be replaced with an 
accessible lavatory. Their main concern was that since the accessible 
lavatory unit would require more space than its inaccessible 
predecessor, they would have to remove or forego seats, causing revenue 
loss. One carrier made very high estimates of seat loss from such a 
change (e.g., eight seats on some aircraft) and suggested that 
alternative means (e.g., a curtain) could provide as adequate restroom 
facilities as an accessible lavatory. Consequently, these commenters 
urged, the rule should require an inaccessible lavatory to be replaced 
with an accessible lavatory only in the context of a change in cabin 
layout.
    Since the original ACAA rule (see 55 FR 8020-8021; March 6, 1990), 
the Department has drawn a distinction between single-aisle and twin-
aisle aircraft for purposes of accessible lavatory requirements. While 
the Department has acknowledged since the time of the original rule 
that requiring accessible lavatories in twin-aisle aircraft involves 
direct costs and revenue losses (though some seat loss estimates, like 
the one referred to above, appear overstated), the Department 
determined then and continues to believe now that the requirement is 
justified in twin-aisle aircraft. The cabins of these aircraft are 
physically larger, affording somewhat greater flexibility than single-
aisle aircraft in placing accessible lavatory units. They tend to be 
used on longer-distance flights and carry more people, making the 
presence of accessible lavatories all the more important to passengers. 
U.S. carriers have been subject to the same requirement for many years, 
and it is important to maintain a level playing field between U.S. 
carriers and their foreign carrier competitors in terms of such a 
requirement. Contrary to one foreign carrier comment, requiring 
accessible lavatories on twin-aisle aircraft does not discriminate 
against foreign carriers; U.S. carriers, no less than their foreign 
counterparts, use twin-aisle aircraft on long-distance international 
routes.
    Several commenters requested a clarification with respect to the 
accessible lavatory requirement in a twin-aisle airplane, to the effect 
that only one accessible lavatory need be installed. For example, if a 
carrier was refitting a cabin, and replacing all its old inaccessible 
lavatories, it would only have to install one accessible lavatory unit. 
We believe that this is a reasonable interpretation of the requirement, 
and we will use this interpretation as we implement and enforce the 
rule. However, we do not believe that additional regulatory language is 
necessary.
3. Stowage Space for Wheelchairs
    The Foreign Carriers NPRM proposed to retain with some 
modifications, and to apply to foreign carriers' aircraft, the existing 
requirement that aircraft with 100 or more passenger seats have a 
priority space to stow at least one passenger wheelchair. The 
modifications proposed from the existing rule were to add dimensions of 
a wheelchair that would fit without disassembly into the priority space 
and to delete the application of this section to electric wheelchairs.
    As with other aircraft accessibility provisions of the Foreign 
Carriers NPRM, the proposed requirement concerning on-board stowage of 
wheelchairs would apply to new aircraft. Contrary to concerns expressed 
by a number of carriers, the Foreign Carriers NPRM did not propose a 
retrofit requirement. Nor would the requirement apply to ``all types of 
aircraft,'' as several comments asserted. It would apply only to 
aircraft with 100 or more seats.
    Comments from disability community commenters generally supported 
the proposed requirement, though several of these comments said that 
the dimensions proposed for wheelchairs to be carried in the cabin 
should be enlarged, given the size of many current types of mobility 
devices. Many foreign carrier comments said either that all wheelchairs 
should be carried in the cargo compartment or that carriers should have 
discretion concerning whether or not to carry a wheelchair in the 
cabin. Some comments expressed the concern that carriers could not fit 
a space for a folding wheelchair into their cabin configurations 
without losing seating capacity. One foreign carrier added that crew 
luggage should have priority over a passenger's wheelchair.
    The reasons for storing a wheelchair in the cabin are twofold. 
First, it can often be more convenient for a passenger to have the 
wheelchair close at hand when he or she leaves the aircraft and to be 
able to get as close as possible to the aircraft door on boarding 
before having to transfer. Second, as pointed out in the preamble to 
the original ACAA rule (55 FR 8035; March 6, 1990), passengers with 
disabilities have the same concerns as other passengers about loss of 
or damage to their property when it is checked. While, as some comments 
pointed out, requiring space for one wheelchair does not completely 
solve this problem for all passengers with disabilities, doing so does 
help at least one such passenger per flight. A bit of added 
inconvenience to non-disabled passengers or crew who might have to stow 
their carry-on items elsewhere seems an acceptable price to pay, in the 
context of a nondiscrimination rule, for this service to passengers 
with respect to their means of mobility.
    For these reasons, the Department is adopting the proposed 
requirement. We recognize that some foreign carriers are used to 
exercising their discretion about where to carry passengers' 
wheelchairs, as were U.S. carriers prior to the adoption of the 
original ACAA rule. U.S. carriers, with appropriate oversight from DOT, 
have successfully adapted to this requirement, and foreign carrier 
comments did not contain any compelling reasons why they could not do 
so as well. It is important to remember that foreign carriers will not 
be required to modify existing cabins just for the purpose of creating 
a space for passengers' wheelchairs.
    There is a wide variety of wheelchairs and mobility devices on the 
market. It would not be practical to require spaces that can handle 
every sort of device. The rule's requirement is now limited to spaces 
for folding manual wheelchairs, the present and proposed language 
concerning cabin stowage of power wheelchairs having been deleted in 
response to comments expressing concern about the adequacy of space, 
problems arising from the disassembly and reassembly of wheelchairs in 
the context of transportation in the cabin, and potential issues 
concerning stowage of batteries. Of course, since only folding manual 
wheelchairs are permitted in the cabin, large, motorized mobility-
assistive devices of any type--not just power wheelchairs, as such--
would not have to be carried in the cabin.
    Based on the Department's experience, the dimensions in the Foreign 
Carriers NPRM should be sufficient to handle a considerable majority of 
models of folding wheelchairs. Consequently, while we agree that this 
required space will not be sufficient for all models, we believe it is 
a reasonable compromise between the needs of passengers and the space 
constraints of carriers. We note that, under the final rule, carriers 
are not required to carry electric wheelchairs in the cabin.
    One matter that some comments raised was the so-called ``seat-

[[Page 27627]]

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 difficulties if an emergency 
occurred while the flight attendant was assisting a user of an on-board 
wheelchair, which might also obstruct the aisle in an emergency 
situation. In addition, carriers questioned whether the interior of a 
50-seat regional jet could be configured to provide storage space for 
the on-board wheelchair when it was not in use.
    While the cost estimates of commenters for on-board wheelchairs 
appear to be overstated, we believe that the operational concerns of 
carriers with respect to the use of on-board wheelchairs on 50-seat 
aircraft with one flight attendant have merit. In addition, the 
typically very confined spaces in lavatory units on these aircraft make 
their use by persons with limited mobility problematic. Consequently, 
the final rule will retain the existing rule's provision applying on-
board wheelchair requirements to aircraft with more than 60 seats.

Stowage of Wheelchairs and Mobility Aids

    The current rule requires wheelchairs that cannot be carried in the 
cabin to be checked, carried as baggage, and returned to users as 
closely as possible to the door of the aircraft. These devices have 
priority over other items in the baggage compartment. Carriers must 
accept battery-powered wheelchairs (and other battery-powered mobility 
aids) in baggage, subject to applicable hazardous materials rules. 
Wheelchairs powered by lithium batteries may not be permitted under the 
hazardous materials rules depending on the lithium content of the 
battery. Generally, non-spillable batteries do not need to be removed 
from wheelchairs and separately packaged, if the batteries are securely 
attached to the wheelchair and the batteries or their housing, if any, 
are clearly marked as being non-spillable. Wet cell batteries which are 
not non-spillable may require removal from the wheelchair if the 
wheelchair cannot be loaded and stowed in an upright condition and 
secured against movement in the cargo compartment. Carriers may 
establish a one-hour advance check-in time to process battery-powered 
wheelchairs. Wheelchair users may provide written instructions 
concerning assembly and disassembly of their devices. On domestic 
flights, U.S. carriers must fully compensate passengers for loss of or 
damage to wheelchairs, without regard to rules limiting liability for 
lost or damaged baggage.
    The Foreign Carriers NPRM essentially proposed to continue these 
provisions and apply them to foreign as well as U.S. carriers. 
Commenters made a number of points in response. One commenter asserted 
that the requirement to carry power wheelchairs in the baggage 
compartment was inconsistent with ICAO technical standards and IATA 
dangerous goods rules. While virtually identical in many respects, the 
DOT and ICAO/IATA standards differ, the commenter said, because the 
latter gives carriers discretion to refuse to carry such mobility aids 
while the former does not. The Department, according to the commenter, 
cannot impose a lesser requirement than the international standard. In 
the Department's view, there is no conflict. As cited by the commenter, 
the ICAO/IATA standard gives carriers the discretion to carry battery-
powered wheelchairs. The DOT requirement tells carriers to exercise the 
discretion permitted them by the ICAO/IATA standard by, in fact, 
carrying the wheelchairs. The DOT rule does not require anything that 
the ICAO/IATA rule does not allow. It would not be accurate to call the 
Department's requirement a ``lesser'' standard than that of ICAO/IATA. 
Indeed, it is more properly regarded as a higher standard, since it 
ensures service to passengers with disabilities that the ICAO/IATA 
materials leave to carrier discretion.
    On October 5, 2007, the Department's Pipeline and Hazardous 
Materials Administration (PHMSA) issued a special permit in response to 
an IATA request. The permit, which granted an exemption from portions 
of the Department's hazardous materials rules concerning battery-
powered mobility aids, was revised in response to ATA's request on 
October 30, 2007. Under the special permit, the current term of which 
expires January 31, 2009, a non-spillable battery that is completely 
enclosed and protected from short circuits in a rigid case integral to 
the mobility aid would not have to be disconnected and its terminals 
further protected from short circuits to be carried on an aircraft. 
This special permit should make handling of some battery-powered 
wheelchairs easier for carriers to which the permit applies. It is 
PHMSA's intention to issue a rulemaking in the future that will extend 
the provisions of this exemption to all carriers. Due to the many 
instances of wheelchair damage resulting from disconnecting battery 
cables, the Department will require carriers not to disconnect the 
cables on non-spillable batteries unless a PHMSA or FAA safety 
regulation, or the safety regulation of a foreign government, requires 
them to do so.

[[Page 27628]]

    Carriers and passengers with disabilities had differing views on 
the existing and proposed requirements for carriers to permit 
passengers to provide written instructions about the disassembly and 
reassembly of wheelchairs. Some of the former suggested requiring 
passengers to provide the manufacturer's instructions; some of the 
latter suggested that the airline employee who disassembles the 
wheelchair provide written instructions that would go forward to the 
employee who reassembles the wheelchair at its destination telling that 
employee how to put the device back together.
    The Department believes that both suggestions have some merit. To 
the extent that there are relevant manufacturer's instructions, it 
seems useful for passengers to provide a copy to carriers. We do not 
think it would be appropriate to require the provision of 
manufacturer's instructions, since they may not exist in all cases and 
may not apply to specialized or customized features of a particular 
passenger's device. It also seems plausible that a user of a particular 
device would be in a good position to provide experience-based 
instructions to the carrier. Likewise, to the extent that a carrier 
employee at the passenger's originating airport can write down a 
``here's how I took it apart and here's how it goes back together'' 
note to his counterpart at the destination, the information could be 
helpful to the latter. However, the employee may not have time to do 
so, and some passengers may prefer that the employee does not do so 
(i.e., out of concern that the employee could get it wrong). 
Consequently, we do not believe it advisable to change the proposed 
language.
    Some carrier comments said that Warsaw/Montreal convention 
provisions controlled payments for items carried as baggage and that 
the Department should not attempt to alter compensation requirements 
for international flights. We agree, and the Foreign Carriers NPRM 
proposed to make compensation requirements for lost or damaged mobility 
aids applicable only to U.S. domestic passenger trips. The final rule 
will do the same.
    Some commenters suggested that the advance check-in time for 
persons delivering mobility aids for transportation in the baggage 
compartment should be 60 minutes before the regular check-in time for 
passengers, rather than 60 minutes before scheduled departure time. We 
agree, and we have changed the rule accordingly.
    Some carrier comments noted that the existing and proposed 
regulatory language concerning luggage that doesn't make a flight 
because of the space taken by a wheelchair calls for the carrier to 
make best efforts to deliver the luggage within four hours. Commenters 
said that this often was not practical in international service, where 
flights may be scheduled at intervals of one a day or less. This is a 
fair comment; we have changed the language to say that such luggage 
must be placed on the carrier's next flight. We believe this is a 
reasonable standard for domestic as well as international flights.
    The Department recognizes that there may be some circumstances in 
which it is not practical to stow an electric wheelchair, or some other 
sort of assistive device, in the baggage compartment. Only devices that 
fit and that meet all applicable hazardous materials and other safety 
regulations need be carried.
    Some wheelchairs--such as those equipped with securely mounted non-
spillable batteries or those for which the carriers remove the 
batteries and stow them separately under 49 CFR 175.10(a)(15) and 
(16)--are capable of being stowed in other than an upright position 
without damage to the wheelchair or batteries. However, if the physical 
size of the compartment--its actual dimensions, not crowding caused by 
other items--do not permit a wheelchair to be carried upright safely 
without risk of serious damage to the wheelchair, or a load imbalance 
caused by a large wheelchair in a small baggage compartment may violate 
weight and balance safety requirements, carriers could legitimately 
decline transportation of the item on that flight and should assist the 
passenger in identifying a flight using an aircraft that can 
accommodate the chair.
    Given that the rule allows the carrier to require 48 hours' advance 
notice with respect to carrying electric wheelchairs, the carrier 
should use this time period to find an arrangement that will get the 
passenger and his or her chair to the intended destination. For 
example, when a change to a smaller aircraft the day before the 
flight's departure will preclude the passenger's wheelchair from being 
accommodated in the cargo hold (e.g., the cargo space dimensions are 
too small for the chair to fit), the carrier must either offer the 
passenger alternative transportation at a different time or provide a 
fare refund. In circumstances where the passenger accepts alternative 
transportation on a flight of a different carrier, the first carrier 
must, to the maximum extent feasible, provide assistance to the second 
carrier in providing the accommodation requested by the individual from 
the first carrier.
    A disability group also raised the concern--which could apply to 
manual as well as electric wheelchairs--that if several wheelchair 
users were traveling on a small aircraft, like a commuter aircraft or a 
regional jet, there might not be room in the baggage compartment for 
everyone's wheelchair. This situation could occur, but we do not see a 
regulatory solution to it. If a group is traveling together, providing 
as much notice as possible to the carrier to work the problem is 
advisable. Otherwise, the carrier would probably have to put some 
passengers' wheelchairs on a subsequent flight. A carrier association 
said that carriers should only have to carry one motorized mobility 
device per passenger. We do not believe it is necessary to provide for 
this situation in the regulatory text. However, in a situation like the 
above where there was not room for all disabled 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

[[Page 27629]]

needing a seating accommodation (e.g., 48 hours). While it is always a 
good idea for passengers and carriers to communicate about 
accommodations as early as possible, the Department's ACAA regulations 
and nondiscrimination policies have discouraged advance notice policies 
as an undue limitation of the ability of passengers with disabilities 
to travel freely and without discrimination. The experience of U.S. 
carriers with the existing seating accommodations provision suggests 
that carriers can provide needed seating accommodations without 
additional advance notice.
    There were several miscellaneous comments concerning seating 
accommodations. One carrier commented that persons with fused legs 
could be transported more comfortably in a rear window seat rather than 
a bulkhead seat in some aircraft configurations. This approach appears 
consistent with section 382.81 of the final rule, which requires 
carriers to seat a passenger with a fused leg in a bulkhead seat ``or 
other seat that provides greater legroom than other seats.''
    Another carrier mentioned that because it provides ``soft 
bulkheads'' and ``inflatable seatbelts'' in some seats, national safety 
regulations prohibit seating some persons with disabilities in those 
seats. In this case, the carrier would then have to accommodate a 
passenger with a fused leg in any other seat on the aircraft offering 
greater legroom. If due to a particular aircraft model's design, no 
seat on that model other than those prohibited by national regulations 
offered greater legroom, the carrier would have to apply for a conflict 
of law waiver. We do not believe it is appropriate, as some disability 
groups suggested, to require bulkhead row seating to be made available 
to all wheelchair users. The apparent rationale for this request was to 
make it more convenient for such passengers to access their personal 
wheelchairs quickly in order to transfer to another flight or exit the 
airport. The rationale of the bulkhead seating accommodation for people 
with fused legs, however, is to make seating on the flight itself less 
difficult or uncomfortable for passengers, rather than easing the 
passenger's exit. A disability group asked the Department to clarify 
that wheelchair users are not limited to sitting in aisle seats. We 
agree, like the existing ACAA rule, the final rule does not allow 
carriers to limit seating options for passengers with disabilities, 
except where needed to comply with applicable safety rules (e.g., 
concerning exit rows).

Accommodations for Passengers Who Use Oxygen Devices

A. Passenger-Owned Respiratory Devices

1. Covered Entities
    In the Oxygen NPRM, we proposed that the requirements concerning 
the evaluation and use of passenger-owned electronic devices that 
assist passengers with respiration apply to all operations worldwide of 
U.S. air carriers that conduct passenger carrying service other than 
on-demand air taxi operators. The Oxygen NPRM proposed to cover foreign 
carriers operating flights to and from the United States in as similar 
a fashion as possible to U.S. air carriers. We also specifically 
requested comment as to whether the Department should limit coverage of 
this section to carriers operating larger than 60-seat aircraft and 
whether flights operated by commuter carriers should be covered.
    Consumers argued against an exception for aircraft with 60 or fewer 
seats and favored a regulation of general applicability because many 
carriers that operate ``hub and spoke'' service as well as many 
carriers that service smaller cities and less frequently traveled 
routes use small aircraft. Consumers also asserted that it would 
frustrate the purpose of the regulation to exempt flights operated by 
commuter carriers as many individuals who use medical oxygen fly on 
commuter carriers from small regional airports to larger airports to 
connect to a flight to their ultimate destination. However, small 
carriers supported an exception for aircraft with 60 or fewer seats 
because of the costs associated with the regulation, particularly the 
cost of testing to determine if the electronic respiratory assistive 
devices interfere with the navigation or communication systems of each 
model of aircraft operated by the carrier. These carriers explained 
that testing would be more costly for small carriers because they do 
not have the technical knowledge or personnel necessary for testing, 
necessitating the hiring of subcontractors for compliance testing. 
Small carriers also indicated concern with the onboard service 
obligations associated with permitting passengers to use electronic 
respiratory assistive devices on an aircraft since there is no flight 
attendant on aircraft with fewer than 20 seats and only one flight 
attendant on aircraft with 20 to 50 seats Further, small carriers 
asserted that allowing a passenger to use an electronic respiratory 
device such as a portable oxygen concentrator (POC) onboard small 
aircraft is of limited benefit because they contend that many regional 
flights are one hour in length and carriers can prohibit the use of 
electronic devices during take-off and landing which can take a total 
of approximately forty minutes, leaving the passenger with only twenty 
minutes to use his/her device.
    After fully considering the comments received regarding the 
applicability of section 382.133 to carriers, the Department believes 
that it is reasonable to apply the requirements of this section to U.S. 
and foreign carriers that conduct passenger carrying service other than 
on-demand air taxis and not to exempt carriers that only operate 
aircraft with 60 or fewer seats. The contention of small carriers that 
the costs associated with the requirements in this section would be 
unduly burdensome to them no longer carries the same weight, since this 
final rule shifts the responsibility for electromagnetic interference 
testing of the four types of electronic respiratory assistive devices 
from the carriers as proposed in the Oxygen NPRM to the manufacturers 
of these devices, as the manufacturers have a market incentive to test 
such devices. (See the discussion of industry comments on this issue in 
the section below entitled ``Testing and Labeling of Electronic 
Respiratory Assistive Devices.'') The Department is also not persuaded 
that there are onboard service obligations associated with permitting 
passengers to use electronic respiratory assistive devices that require 
the assistance of a flight attendant. We also find unpersuasive the 
argument that electronic respiratory devices such as POCs are of 
limited use onboard small aircraft because they tend to operate shorter 
flights during which passengers could only use their devices for a 
small portion of the total flight time as it presumes that the devices 
cannot be used during ascent and descent. A device's use during a 
particular phase of a flight (e.g., ascent and descent) should be 
prohibited only if the device cannot be safely used during that phase 
(e.g., interferes with navigation or communications equipment). Absent 
evidence of such interference gained from the required testing, this 
rule requires carriers to allow passengers to use their electronic 
respiratory assistive devices, including POCs approved by the Federal 
Aviation Administration (FAA), during all phases of flight if safe.
2. Types of Electronic Respiratory Assistive Devices
    We proposed in the Oxygen NPRM to address the carriage of four 
types of portable electronic respiratory assistive

[[Page 27630]]

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.
3. Testing and Labeling of Electronic Respiratory Assistive Devices
    In the Oxygen NPRM, we proposed that a U.S. carrier that conducts 
passenger-carrying service other than an on-demand air taxi operator 
perform the necessary evaluation and testing of a ventilator, 
respirator, CPAP machine or FAA-approved POC to determine if the device 
causes interference with the navigation or communication systems of 
each model of aircraft the U.S. carrier operates. We also proposed 
requiring a foreign carrier that conducts passenger-carrying service 
other than an on-demand air taxi operator to perform the necessary 
evaluation and testing of these devices to ascertain whether such 
device can be used safely by passengers during a flight on each 
aircraft that the foreign carrier operates on flights to and from the 
U.S.
    Industry commenters as well as some consumers said that the burden 
of testing should be shifted away from the carriers. The Air Transport 
Association and other industry commenters proposed that carriers only 
be required to permit the use of an electronic respiratory assistive 
device that has been tested and marked as approved by RTCA, Inc. 
(formerly the Radio Technical Commission for Aeronautics). These 
commenters argued that if carriers have the option of refusing to carry 
any device that is not tested and marked as approved by the RTCA then 
the device manufacturers would have an incentive to test their devices 
and produce safety testing results for the carriers to review. Other 
commenters suggested that the device manufacturers and the aircraft 
manufacturers should be required to conduct the testing and then label 
the device as approved for use aboard aircraft, as manufacturers have 
the greatest incentive to test devices. Industry commenters also 
requested that the FAA create a generic safety standard for testing 
respiratory devices as well as a uniform labeling system for all 
approved devices to cut down on confusion by carriers and passengers.
    Having considered all of these comments, the Department is 
persuaded that responsibility for electromagnetic interference testing 
of the four types of electronic respiratory assistive devices covered 
in the Oxygen NPRM should be borne by the manufacturers of such devices 
rather than the carriers. However, this regulation does not mandate 
manufacturer testing. The FAA is considering whether to issue an NPRM 
in which the agency would propose to require manufacturers that want to 
market their ventilators, respirators, CPAP machines, and FAA-approved 
POCs for passenger use on aircraft to test those devices against FAA-
prescribed performance standards and affix a label to each device 
stating that it meets the applicable standards prescribed in the 
federal aviation regulations. If the FAA decides to issue such an NPRM, 
the NPRM would clarify that those manufacturers that do not intend to 
market their devices for use on aircraft would be under no obligation 
to conduct any testing and would not be permitted to affix a label 
indicating FAA approval. The manufacturers that want to market such 
devices for use on aircraft but whose devices fail to meet the 
performance standards would also not be permitted to affix a label 
indicating FAA approval. Moreover, the FAA will consider whether to 
include other proposals in that NPRM, including specifying how a 
carrier would ``verify'' whether the aforementioned electronic 
respiratory assistive devices meet FAA performance standards.
    In this rulemaking, we are strongly encouraging manufacturers that 
market their electronic respiratory assistive devices for use by 
passengers on aircraft to test their devices to determine whether they 
meet FAA electromagnetic and radio frequency interference emission 
standards set forth in FAA Advisory Circular No. 91.21-1B, and if they 
do so, to label the devices as FAA-compliant. The label should indicate 
that the device is approved for air travel (i.e., the device can be 
used safely during all phases of travel). The FAA generally prohibits 
the operation of portable electronic devices aboard U.S. registered 
civil aircraft while operating under instrument flight rules. See 14 
CFR 91.21. However, the FAA through its Advisory Circular No. 91.21-1B 
allows U.S. carriers to permit passengers to use onboard the aircraft 
specified portable electronic devices (including the four types of 
respiratory devices addressed in this rulemaking) that have been tested 
by the manufacturer and found to not exceed the maximum level of 
radiated radio frequency interference as described in section 21, 
Category M of RTCA Document (DO)-160 while in all modes of operation, 
without any further testing by the carrier to establish compliance with 
this performance standard. It is worth noting that the FAA does not 
have a prohibition on the operation of portable electronic devices 
aboard civil aircraft registered in a country other than the United 
States.
    This rule requires U.S. carriers to permit individuals to use 
electronic respiratory assistive devices in the passenger cabin so long 
as the devices have been tested and labeled by their manufacturer(s) as 
meeting the

[[Page 27631]]

applicable FAA requirements for medical portable electronic devices as 
described in FAA Advisory Circular No. 91.21-1B (the FAA-approved POCs 
would also be subject to the requirements of Special Federal Aviation 
Regulation 106) and the device can be stowed consistent with FAA cabin 
safety requirements. At present, a label indicating that the device 
complies with RTCA standards meets FAA requirements and need not 
specifically state that the device is FAA approved.
    The final rule also requires foreign carriers to permit individuals 
to use electronic respiratory assistive devices in the passenger cabin 
if certain conditions are met. First, the device must have been tested 
and labeled by its manufacturer as meeting the requirements for medical 
portable electronic devices set by the foreign carrier's government. If 
the foreign carrier's government does not have applicable requirements, 
then the carrier may elect to apply requirements for medical portable 
electronic devices set by the FAA for U.S. carriers. It would be a 
violation of our rules for a foreign carrier to prohibit a passenger 
from using his/her ventilator, respirator, CPAP machine, or POC in the 
passenger cabin because its government has not issued applicable rules 
on the testing or labeling of electronic respiratory assistive devices. 
We encourage foreign carriers to apply FAA requirements for medical 
portable electronics where the foreign carriers' government has not 
issued applicable rules. Otherwise, it is not clear how the foreign 
carrier can be assured that the electronic respiratory assistive device 
that it is accepting for use in the cabin is safe. Also, the electronic 
respiratory assistive device must be stowed and used in the passenger 
cabin consistent with any applicable U.S. regulations and the 
regulations of the carrier's government.
    We expect that both U.S. and foreign carriers will inspect the 
device label at the departure gate to ensure that it is labeled by the 
manufacturer in accordance with the applicable regulations. U.S. 
carriers' internal procedures must ensure that approved devices bearing 
labels indicating that they meet the FAA requirements are accepted. For 
foreign carriers, devices containing labels indicating that the device 
meets requirements set by the foreign carrier's government or, if no 
such requirement exists, the requirements for medical portable 
electronics set by the FAA for U.S. carriers, should be accepted.
4. Passenger Information
    We explained in the Oxygen NPRM that carriers would be required to 
inform passengers, on request, about any restrictions on using their 
personal respiratory assistive devices aboard the carrier's flights 
(e.g., device can only be used after takeoff and before landing, 
availability of electrical outlets). In this regard, we indicated that 
we thought carriers would need to maintain some type of list of 
approved or disapproved devices and sought comments as to what extent 
carriers should be required to provide information to disabled air 
travelers. We also asked about the issues that are raised if carriers 
are required to provide information on the limitation of the carriers' 
codeshare partners to accommodate the use of respiratory devices.
    The Department received a number of comments from consumers 
strongly urging that a centralized list of approved and disapproved 
devices be provided by carriers, airports and/or the government. 
Industry comments varied, with some carriers indicating a willingness 
to provide this information, while others believed a list of approved 
and disapproved devices would be difficult to maintain and would open 
the airline up to liability. Many carriers suggested that the 
Department provide a list of approved devices through its 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 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

[[Page 27632]]

passenger who buys a codeshare ticket from carrier A for a connecting 
itinerary from New York to Cairo through London, where carrier A 
operates the New York to London leg and carrier B operates the London 
to Cairo leg under carrier A's designator code. In this example, 
carrier A must upon inquiry from the passenger: (1) Inform the 
passenger about carrier A's requirements for the use in the cabin of a 
ventilator, respirator, CPAP machine or POC and (2) inform the 
passenger about carrier B's requirements for the use in the cabin of 
the aforementioned devices or tell the passenger to contact carrier B 
directly to obtain this information.
5. Advance Notice
    We sought comments in the Oxygen NPRM about operational reasons, if 
any, in support of permitting carriers to require a passenger with a 
disability to provide advance notice of his or her intention to use a 
battery-operated CPAP machine, an approved POC, a respirator or a 
ventilator aboard a flight. We also asked whether carriers should be 
permitted to require a passenger to provide advance notice of his or 
her intention to use the aircraft electrical system as well as what 
would be a reasonable amount of advance notice.
    Industry commenters provided a number of operational reasons why 
they said there should be advance notice requirements for individuals 
who wish to use electronic respiratory assistive devices aboard a 
flight. These commenters explained that advance notice is needed to: 
(1) Ensure the device is approved for use onboard the aircraft; (2) 
ensure that a passenger brings an adequate battery supply to power his/
her device; (3) ensure that the respiratory device is medically 
necessary; (4) ensure the pilot in command is apprised when a passenger 
is using a POC; and (5) ensure that the passenger has talked with his/
her physician regarding fitness to fly with the respiratory assistive 
device. Many consumers also indicated that they were comfortable with 
an advance notice requirement for individuals who wish to use a 
battery-operated CPAP machine, an approved POC, a respirator or a 
ventilator aboard a flight. There was, however, disagreement as to what 
would constitute a reasonable amount of advance notice. While most 
consumer and industry comments indicated that 48 hours is a reasonable 
amount of advance notice, some industry comments asked for 96 hours 
advance notice for international flights and a few consumers stated 
that 24 hours is sufficient notification.
    With respect to electrical outlets, industry comments strongly 
urged that electrical outlets not be relied upon by respiratory device 
users. According to these commenters, electronic device users cannot 
depend on the presence of an outlet, as most aircraft do not have 
electrical outlets; the electrical outlets that are available on 
aircraft may not be compatible with the passenger's device, as most 
respiratory assistive devices require more wattage; electrical outlets 
may be turned off during takeoff and landing; and the carrier may 
switch aircraft and use aircraft with no outlets at the last minute.
    Based on the comments received and the Department's belief that 
providing 48 hours' advance notice would not be burdensome for 
consumers, this final rule permits carriers to require up to 48 hours' 
advance notice from individuals who wish to use electronic respiratory 
assistive devices aboard a domestic or international flight. The 
Department believes that a 48 hour advance notice is reasonable as that 
time period provides sufficient time for carriers to prepare for the 
accommodation. Further, in other sections of this Part where a carrier 
has been permitted to require a qualified individual with a disability 
to provide advance notice of his or her need for certain accommodations 
or of his or her disability as a condition of receiving the requested 
accommodation, that advance notice has been limited to 48 hours. The 
Department also believes, as comments provided by the industry 
representatives contend, that electrical outlets are generally not 
reliable sources of power for electronic respiratory assistive devices. 
Of course, if a carrier is confident that the electrical outlet on the 
aircraft is reliable (e.g., uninterrupted service), nothing in this 
rule prohibits the carrier from permitting a 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 check-in 
deadline, as well as what would be a reasonable length of time for the 
advance check-in.
    Comments provided by the industry to justify the need for advance 
check-in are similar to the justifications provided for advance notice 
(e.g., to ensure the device is safe for use on board, to ensure proper 
packaging of batteries, ensure an adequate supply of batteries). 
Consumers questioned whether advance check-in is necessary if a 
passenger provides advance notice of his/her intention to bring and use 
the electronic respiratory assistive devices. The consumers noted that 
they have other obligations and restrictions on their time and that 
advance check-in places significant burdens on their time. If advance 
check-in is required, consumer commenters favored a one hour advance 
check-in requirement. Industry comments supported one hour advance 
check-in for all domestic flights but two hour advance check-in for 
international flights. Carrier comments also sought the authority to 
deny boarding if a passenger has failed to comply with the carrier's 
procedural instructions on using electronic devices onboard.
    The Department believes that it is necessary to permit carriers to 
require advance check-in to enable the carrier personnel to inspect the 
label on the electronic respiratory assistive device to ensure that it 
was labeled by the manufacturer in accordance with the applicable 
regulations and to ensure that a passenger is carrying an adequate 
number of properly packaged batteries to power his/her assistive 
device. The Department generally believes that one hour advance check-
in is reasonable for both domestic and international flights, 
especially since ``advance check-in'' as used in this rule means 
checking in one hour before the carrier's normal check-in time for the 
general public. Thus, for example, if a carrier's normal check-in 
deadline for all passengers for an international flight is one hour 
before scheduled departure time, the carrier is free to require 
passengers who wish to use electronic respiratory assistive devices to 
check in two hours before scheduled departure time. That having been 
said, it would not be reasonable for a carrier to require one hour 
advance check-in in situations where a passenger is not able to check-
in one hour in advance because the passenger's connecting flight 
arrived late. Consider the example, of a codeshare connecting itinerary 
from Washington, 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

[[Page 27633]]

up until carrier B's general check-in deadline for all passengers on 
that flight. The Department is not persuaded by consumer comments that 
one hour advance check-in would be a significant burden on them, 
particularly since this rule would not permit carriers to require a one 
hour advance check-in for a passenger who is not able to meet that 
requirement due to his/her connecting flight arriving late. The 
Department is also not persuaded by industry comments that a two hour 
advance check-in is needed for international flights, in part because 
the information that the carrier personnel will be verifying at the 
departure gate does not change based on whether the flight is a 
domestic flight or an international flight.
7. Seating Accommodations
    In the Oxygen NPRM, we asked whether a passenger who uses a 
ventilator, respirator, CPAP machine or an FAA-approved POC should be 
given priority over users of other types of electronic equipment that 
are not assistive devices (e.g., laptops) with respect to obtaining 
power for the device from the aircraft's electrical outlets. Virtually 
all of the consumer comments stated that upon request airlines should 
be required to seat a passenger who self-identifies as using an 
electronic respiratory assistive device next to an electrical outlet, 
if one is available on the aircraft. Industry comments on this issue 
varied. Some carriers supported providing priority seating while other 
industry commenters opposed this proposal. The industry commenters that 
opposed providing priority seating asserted that access to seats with 
electrical outlets is an aircraft amenity based on other considerations 
(e.g., frequent flier status) and explained that the cost of ensuring 
access to electric outlets is burdensome. Some of the costs attributed 
to implementing the proposed seating accommodation include the cost to 
a carrier of updating its seating maps to indicate the presence of 
electric outlets, updating its reservation system to allow blocking of 
seats near outlets for qualified disabled passengers, and training 
flight attendants and others regarding the location of each aircraft's 
electrical outlets. Also, as noted above, many industry comments 
emphasized that not all aircraft have outlets and the unreliability of 
electrical outlets on aircraft that do have them (e.g., outlets turned 
off during take off and landing, outlets often don't have sufficient 
wattage to power respiratory devices).
    The Department is not convinced by the industry arguments opposing 
priority seating on the basis of costs associated with such a seating 
accommodation but is convinced that, for safety reasons, it would not 
be good policy to have any requirements concerning the use of 
electrical outlets when electrical outlets are not available on a 
number of aircraft and are generally not reliable sources of power for 
electronic respiratory assistive devices. Therefore, this rule does not 
mandate that carriers allow users of respiratory assistive devices to 
plug their devices into the aircraft's power supply or to provide 
priority seating near such outlets. The Department does encourage 
carriers to permit passengers to hook up the four types of respiratory 
assistive devices to the aircraft electrical power supply in 
circumstances where the carrier is confident that the electrical outlet 
on the aircraft is reliable (e.g., uninterrupted service).
8. Batteries
    The Oxygen NPRM sought information about whether the rule should 
allow carriers to require users of electronic respiratory devices to 
carry a certain number of batteries. It also solicited comments about 
what action the Department should authorize the carrier to take if a 
passenger does not bring a sufficient number of batteries to power an 
electronic respiratory assistive device or a passenger does not ensure 
that the batteries for the device are packaged in a manner to allow 
them to be transported safely in the cabin.
    Consumers generally agreed that it would be appropriate to require 
users of electronic respiratory assistive devices to carry a sufficient 
number of batteries to power the device for 1.5 times the length of the 
flight. Some carriers suggested that users of electronic respiratory 
assistive devices should carry enough batteries to power the device for 
the length of the flight plus an additional two hours. Other comments 
suggested enough batteries to power the device for 1.5 times the length 
of the flight plus one additional battery. There were also comments 
recommending that the passenger's physician should indicate the 
appropriate number of batteries in the prescription that indicates the 
passenger's medical need for the device. A number of carriers asked for 
the authority to refuse to carry a passenger who does not have an 
adequate number of batteries. A few carriers asked to be able to charge 
the passenger who does not carry a sufficient number of batteries for 
the cost of any resulting emergency action that may be required. Many 
industry comments also suggested that PHMSA and FAA should be involved 
in the discussion of the appropriate number of batteries to carry in 
the cabin to ensure that an excessive number of batteries is not 
carried onboard.
    After fully considering the comments received and consulting with 
FAA and PHMSA personnel, the Department has determined that there is no 
need to place a limit on the number of batteries users of electronic 
respiratory devices transport in the cabin of an aircraft. The FAA and 
PHMSA are confident that batteries that are protected against short 
circuits and wrapped in strong outer packagings can safely be 
transported in the passenger cabin provided there are sufficient 
approved stowage locations available. On March 26, 2007, PHMSA 
published a safety advisory to inform the traveling public and airline 
employees about the importance of properly packing and handling 
batteries and battery-powered devices when they are carried aboard 
aircraft. Federal regulations require that electrical storage batteries 
or battery-powered devices carried aboard passenger aircraft be 
properly packaged or protected to avoid short-circuiting or 
overheating. In its safety advisory, PHMSA suggested various practical 
measures for complying with the regulations and minimizing 
transportation risks. Recommended practices include keeping batteries 
installed in electronic devices; packing spare batteries in carry-on 
baggage; keeping spare batteries in their original retail packaging; 
separating batteries from other metallic objects such as keys, coins 
and jewelry by packing individual batteries in a sturdy plastic bag; 
securely packing battery-powered equipment in a manner to prevent 
accidental activation; and ensuring batteries are undamaged and 
purchased from reputable sources.
    The Department has decided to allow a carrier to require an 
individual who uses a ventilator, respirator, CPAP machine or FAA-
approved POC to bring an adequate number of fully charged batteries 
onboard to operate the device for not less than 150% of the expected 
maximum flight duration. The appropriate number of batteries should be 
calculated using the manufacturer's estimate of the hours of battery 
life while the device is in use and the information provided in the 
physician's statement (e.g., flow rate for POCs). The expected maximum 
flight duration is defined as the carrier's best estimate of the total 
duration of the flight from departure gate to arrival gate, including 
taxi time to and from the terminals, based on the scheduled flight time 
and factors such as (a) wind and other weather conditions forecast; (b) 
anticipated traffic delays; (c) one

[[Page 27634]]

instrument approach and possible missed approach at destination; and 
(d) any other conditions that may delay arrival of the aircraft at the 
destination gate. This rule also makes it clear that a carrier may deny 
boarding, on the basis of safety, to an individual who does not carry 
the number of fully charged batteries prescribed in the rule or an 
individual who does not properly package the extra batteries needed to 
power his/her device. Information for passengers on how to safely 
travel with batteries is available at safetravel.dot.gov. However, a 
carrier may not deny boarding due to an inadequate number of batteries 
unless the carrier can provide information from a reliable source 
demonstrating that the number of batteries that the passenger has 
supplied will not provide adequate power for 150% of the expected 
maximum flight duration based on the battery life indicated in the 
manufacturer's specification when the device is operating at the flow 
rate specified in the physician's statement. It is also worth noting 
that the requirement to bring an adequate number of batteries to 
continuously operate the device for up to 150% of the expected maximum 
flight duration does not apply in circumstances where the passenger 
will be using an FAA approved POC while boarding or disembarking from 
the aircraft and will not be relying on the POC during flight because 
the passenger has contracted for carrier-supplied oxygen. In instances 
where the carrier denies boarding to an individual, the carrier must 
provide the individual a written statement of the reason for the 
refusal to provide transportation within 10 days of the incident.

B. Carrier-Supplied Oxygen

    The Oxygen NPRM proposed to require certificated U.S. carriers 
operating aircraft that conduct passenger-carrying service with at 
least one aircraft having a designed seating capacity of more than 60 
passengers and foreign carriers operating to and from the United States 
that conduct passenger-carrying service with at least one aircraft 
having a designed seating capacity of more than 60 passengers to 
provide passengers free in-flight medical oxygen in accordance with 
applicable safety rules. The Department is committed to providing 
individuals dependent on medical oxygen greater access to air travel, 
consistent with Federal safety and security requirements. However, in 
order to obtain additional information about the cost of carrier-
supplied in-flight medical oxygen, the Department is deferring final 
action on this proposal.
    Under existing Air Carrier Access Act interpretation and practice, 
carriers are not required to make modifications that would constitute 
an undue burden or fundamentally alter the nature of the carriers' 
service. As a matter of disability law, undue burden implies that there 
may necessarily be some burden (a ``due burden'') in accommodating 
someone's disability. Generally, an action is deemed to be an undue 
burden if it would require significant difficulty or expense on the 
part of the covered entity when considered in light of factors such as 
the overall size of the business, the financial resources of the 
business, the type of operation, and the nature and cost of the 
accommodation. There is no hard and fast rule about what is or is not 
an ``undue burden.'' The portion of the cost of carrier-supplied oxygen 
that would constitute an undue burden could differ among carriers and 
could differ from one route to another with the same carrier. We do not 
currently have sufficient information available to determine if 
requiring a carrier to provide free in-flight medical oxygen would 
create an undue burden. The Department will seek additional comment 
about the cost of carrier-supplied oxygen in a supplemental notice of 
proposed rulemaking (SNPRM) that it plans to issue. The preamble to the 
SNPRM will also discuss comments received on the Oxygen NPRM with 
respect to this issue. In the interim, carriers can continue to charge 
for in-flight medical oxygen that they choose to provide.

Service Animal Issues

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

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

During the one and a half years preceding the issuance of the Foreign 
Carriers NPRM during which the guidance had been available, and during 
the over three years since the Foreign Carriers NPRM has been issued, 
there have been few if any instances brought to the attention of the 
Department in which service animals have been denied transportation, 
separated from their owners, or charged for an extra seat. Despite this 
apparent lack of problems in the real world of air travel, hundreds of 
comments expressed the fear that 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

[[Page 27635]]

desirable options concerning the transportation of the service 
animal with the passenger traveling with the animal, such as 
traveling on a later flight with more room or carrying the animal in 
the cargo compartment. As indicated above, airlines may not charge 
passengers with disabilities for services required by Part 382, 
including transporting their oversized service animals in the cargo 
compartment.

    In modifying this paragraph in the guidance, we deleted the phrase 
concerning the potential purchase of a second seat, since there are 
probably no circumstances under which this would happen. If a flight is 
totally filled, there would not be any seat available to buy. If the 
flight had even one middle seat unoccupied, someone with a service 
animal could be seated next to the vacant seat, and it is likely that 
even a large animal could use some of the floor space of the vacant 
seat, making any further purchase unnecessary. Of course, service 
animals generally sit on the floor, so it is unlikely that a service 
animal would ever actually occupy a separate seat.
    We have not taken other steps recommended by some commenters, such 
as mandating that airlines accommodate coach passengers with service 
animals in first class or reconfigure cabins. We would regard such 
mandates as potentially requiring a fundamental alteration of airlines' 
operations, and consequently outside the scope of the statutory 
authority for this rule.
    A second category of comments concerned the relationship of service 
animal requirements to Part 382's coverage of foreign carriers. Many 
foreign carriers and their organizations stated that foreign carriers 
often had policies more restrictive than those of the ACAA (e.g., only 
dogs, or only dogs certified by recognized training schools or 
associations, are accommodated; some carriers don't allow any animals 
in the cabin; service animals may be seated only in certain designated 
locations; there are number limits or advance notice requirements for 
service animals in the cabin). These commenters generally wished to 
maintain such restrictions.
    As a general matter, foreign carrier policies with respect to 
service animals, like other foreign carrier policies, are subject to 
the conflict of laws waiver and equivalent alternative provisions of 
the final rule. Otherwise, modifying carrier policies to accommodate 
U.S. civil rights requirements is something foreign carriers must 
accept as part of their obligation to comply with U.S. law when flying 
to and from the U.S.
    In addition to wishing to maintain existing policies restricting 
the access of service animals, some commenters mentioned that some 
countries have quarantine rules that severely delay or limit the 
entrance of certain animals, or effectively prohibit, certain animals--
even service animals--from entering those countries. The Department 
agrees that, if Country S prohibits a certain kind of animal from 
entering, an airline serving an airport in Country S could apply for a 
conflict of laws waiver to be relieved of carrying such an animal to 
that country. Such a waiver would be country-specific; however. If the 
same airline is asked to carry the same animal to Country R, which does 
not have such a prohibition, the carrier would have to transport the 
creature. The final rule also requires carriers to promptly take all 
steps necessary to comply with such foreign regulations as are 
necessary to legally transport service animals from the U.S. into 
foreign airports (e.g., the United Kingdom's Pet Travel Scheme).
    Commenters mentioned that some persons may have religious or 
cultural objections to traveling in proximity to certain service 
animals. Other commenters raised the issue of passengers who may have 
allergies to certain animals. It has long been a principle of the 
Department's ACAA and other disability regulations that it is improper 
for a transportation provider to deny or restrict service to a 
passenger with a disability because doing so may offend or annoy other 
persons (see for instance current 14 CFR 382.31(b) and section 
382.19(b) of the final rule). This principle is again articulated in 
the final 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.
    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.

[[Page 27636]]

    Another important issue that a number of commenters raised 
concerned ``emotional support animals.'' Unlike other service animals, 
emotional support animals are often not trained to perform a specific 
active function, such as pathfinding, picking up objects, carrying 
things, providing additional stability, responding to sounds, etc. This 
has led some service animal advocacy groups to question their status as 
service animals and has led to concerns by carriers that permitting 
emotional support animals to travel in the cabin would open the door to 
abuse by passengers wanting to travel with their pets.
    The Department believes that there can be some circumstances in 
which a passenger may legitimately travel with an emotional support 
animal. However, we have added safeguards to reduce the likelihood of 
abuse. The final rule limits use of emotional support animals to 
persons with a diagnosed mental or emotional disorder, and the rule 
permits carriers to insist on recent documentation from a licensed 
mental health professional to support the passenger's desire to travel 
with such an animal. In order to permit the assessment of the 
passenger's documentation, the rule permits carriers to require 48 
hours' advance notice of a passenger's wish to travel with an emotional 
support animal. Of course, like any service animal that a passenger 
wishes to bring into the cabin, an emotional support animal must be 
trained to behave properly in a public setting.
    We have also noted a concern that there could be differences, in 
the airport terminal context, between the ACAA regulations that apply 
to airlines, and their facilities and services, contrasted with public 
accommodations like restaurants and stores. The DOJ Title III rules for 
places of public accommodation govern concession facilities of this 
kind. As a consequence, a concession could, without violating DOJ 
rules, deny entry to a properly documented emotional support animal 
that an airline, under the ACAA, would have to accept. On the other 
hand, nothing in the DOJ rules would prevent a concession from 
accepting a properly documented emotional support animal. We urge all 
parties at airports to be aware that their services and facilities are 
intended to serve all passengers. Airlines, airport operators, and 
concessionaires should work together to ensure that all persons who are 
able to use the airport to access the air transportation system are 
able equally to use all services and facilities provided to the general 
public.
    Because they make for colorful stories, accounts of unusual service 
animals have received publicity wholly disproportionate to their 
frequency or importance. Some (e.g., tales of service snakes, which 
grow larger with each retelling) have become the stuff of urban 
legends. A number of commenters nevertheless expressed concern about 
having to accommodate unusual service animals. To allay these concerns, 
the Department has added language to the final rule specifying that 
carriers need never permit certain creatures (e.g., rodents or 
reptiles) to travel as service animals. For others (e.g., miniature 
horses, pot-bellied pigs, monkeys), a U.S. carrier could make a 
judgment call about whether any factors (e.g., size and weight of the 
animal, any direct threat to the health and safety of others, 
significant disruption of cabin service) would preclude carrying the 
animal. Absent such factors, the carrier would have to allow the animal 
to accompany its owner on the flight. Any denial of transportation to a 
service animal would have to be explained, in writing, to the passenger 
within 10 days.
    While it is possible that foreign air carriers may have safety-
related reasons for objecting to service animals other than dogs, even 
ones that have been successfully accommodated on U.S. carriers, these 
reasons were generally not articulated in their comments to the docket. 
Nevertheless, to give foreign carriers a further opportunity to raise 
any safety-related objections specific to foreign airlines to carrying 
these animals, the final rule does not apply the requirement to carry 
service animals other than dogs to foreign airlines. However, foreign 
carriers could not, absent a conflict of laws waiver, impose 
certification or documentation requirements for dogs beyond those 
permitted to U.S. carriers. We intend to seek further comment on this 
subject in the forthcoming SNPRM.
    A few comments suggested adding, to the section prohibiting 
carriers from requiring passengers to sign waivers or releases of 
liability, language specifically applying this prohibition to the loss, 
injury, or death of service animals. We believe that this is a sensible 
suggestion, and we have added the language.

Information for Passengers

    The Foreign Carriers NPRM proposed that, similar to the current 
rule, carriers would have to make certain information available to 
passengers with disabilities upon request concerning the accommodations 
that were available to them for a particular flight. This includes the 
location of seats with a movable armrest as well as seats (e.g., those 
in an exit row) that are not available to passengers with a disability. 
It also includes information about any service limitation as well as 
the ability of an aircraft to accommodate people with disabilities 
(e.g., limitations on boarding assistance, limitations on storage areas 
for mobility aids, presence or absence of an accessible lavatory). The 
Foreign Carriers NPRM recognized that there were circumstances (e.g., 
change of aircraft because of weather or mechanical problems) that 
could affect the accuracy of information provided at the time a 
passenger made a reservation.
    Disability community comments supported these proposals, which did 
not propose significant substantive changes from the provisions of the 
ACAA that have been in effect since 1990. Some carrier comments 
objected to the provision to identify seats with movable armrests, 
saying that, given the variety of cabin configurations and aircraft, it 
would be too hard and too expensive to be able to know where these 
seats are located.
    The final rule does not mandate that carriers reconfigure cabins on 
all aircraft in order to meet this requirement, as some commenters 
mistakenly appeared to conclude. Rather, carriers would provide the 
best information available at the time a passenger made a reservation 
or inquiry. If the location of movable armrest seats on the aircraft 
actually providing the flight did not match the information previously 
provided to the passenger, gate and flight crew personnel could modify 
the passenger's seating assignment prior to or at the time of boarding 
in order to ensure that the passenger could transfer to a seat with a 
movable armrest.
    A carrier could make the necessary information about seating 
configurations of each aircraft available to its personnel for this 
purpose, noting locations of movable armrest seats. We note that there 
are at least two commercial Web sites that make detailed information on 
characteristics of each seat of each configuration of most carriers' 
various aircraft models publicly available. While these sites do not 
include information on movable armrests, the detailed information they 
make available (e.g., the location of seats that have sockets available 
to plug in laptops) suggests that doing so would not pose an 
insurmountable technical problem. Carriers that found a computer-based 
system too challenging could use a low-cost, low-tech means of 
identifying the movable armrest seats for gate and flight crew 
personnel, such as placing unobtrusive stickers on the seats or a 
photocopied seating chart that

[[Page 27637]]

flight attendants and gate agents could use.
    Another proposal carried over from the existing rule into the 
Foreign Carriers NPRM would require carriers to make a copy of Part 382 
available at all the airports that they serve (for flights to the U.S., 
in the case of foreign airports). The Department sought further comment 
on this matter in the DHH NPRM. We also proposed to require all 
carriers to give passengers information on how to obtain both a copy of 
Part 382 in an accessible format and disability-related assistance from 
the Department (i.e., via the Disability Hotline or directly from the 
Aviation Consumer Protection Division). We solicited comment on our 
proposals and on the potential costs to carriers and benefits to 
passengers of a requirement that carriers have copies of Part 382 in 
accessible formats available at all airports involved in service to, 
from, or within the U.S.
    A few disability community comments said that the rule should 
specify that the document be made available in other accessible formats 
as well as hard copy. Some foreign carrier comments objected to making 
copies of a U.S. regulation available, though others did not. Most 
foreign carriers, however, opposed any requirement that they have 
copies of Part 382 available at airports in accessible formats as 
unreasonably burdensome and of little practical use to passengers who 
are not already aware of this regulation. Some foreign carriers 
objected to being required to have a copy of Part 382 at the foreign 
airports from which they fly to the U.S., on the grounds that the 
foreign jurisdictions have their own disability-related requirements 
for carriers serving them. Virtually all of them took the position that 
any passenger desiring a copy of Part 382 in an accessible format 
should obtain it from this Department rather than from a carrier. Some 
suggested that passengers should be made aware of Part 382 and its 
availability from the Department at the time of booking or at some 
other point before they actually go to the airport. One foreign carrier 
did not object to having a copy of Part 382 available at airports in 
its home country from which it flies to the U.S., but it did object to 
any requirement that it also have copies available at third-country 
airports that could be the U.S. passenger's origin or final 
destination. Another made a similar argument concerning airports that 
are endpoints of flights operated on a codeshare basis with a U.S. 
carrier.
    While we agree that carriers should make a print copy of the rule 
available, so that passengers can refer to it to assist them in 
resolving any problems that arise at the airport, the final rule will 
not require copies to be made available in other accessible formats, or 
in languages other than English. We also will not adopt the proposed 
requirement in Sec.  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 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 Sec.  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 Sec.  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.

[[Page 27638]]

    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 Sec.  382.43(a). We are also adding a new 
access requirement in Sec.  382.43(a)(4) to ensure that deaf and hard 
of hearing passengers are informed of how to reach carriers by TTY: in 
any medium in which a carrier states the telephone number of its 
information and reservation service for the general public, it must 
also state its TTY number if it has one, or if not, it must specify how 
TTY users can reach the information and reservation service (e.g., via 
voice relay service). Such media include, for example, Web sites, 
ticket jackets, telephone books, and print advertisements.
    Regarding wait time, the comments and our own experiments with 
voice relay systems have persuaded us not to require carriers that use 
TTYs to implement a queuing system for TTY calls even if they do 
maintain one for calls from the rest of the public. Calls from a TTY to 
a carrier via a voice relay service are treated exactly the same as 
calls from conventional telephones. If an agent is available to take 
the call, the caller is connected to the agent. If not, if the carrier 
has a queuing system the call goes into the queue along with non-TTY 
calls. (If the carrier does not have a queuing system, any caller gets 
a busy signal.) Therefore, a TTY caller who calls the carrier's TTY 
number and gets a busy signal can hang up and immediately try the 
carrier's general public number through a voice relay service, where 
all calls receive identical treatment. We consider the timing in this 
scenario to be ``substantially equivalent'' to the timing for the rest 
of the public, the extra call notwithstanding. We do not intend for 
``substantially equivalent'' to mean ``exactly the same.'' As long as 
disparities in wait times between TTY users and the general public 
remain both low and infrequent, we will consider the treatment of these 
groups to be substantially equivalent. Of course, we can and will 
investigate allegations of routine or lengthy disparities and require 
corrective action where appropriate.
    We are concerned, moreover, that given the reportedly high cost of 
implementing a TTY queuing service vis-[aacute]-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, Sec.  382.47(b), 
only requires that U.S. carriers make safety briefings on the aircraft 
that are presented by video accessible to persons who are deaf or hard 
of hearing, and it exempts cases where open captioning or an inset 
would interfere with the video presentation so as to render it 
ineffective or if the captioning or inset would itself be unreadable. 
The proposed rule, applicable to foreign carriers as well, would 
eliminate the exemption, require high-contrast captioning of 
informational videos as well as safety videos, require compliance for 
safety videos within 180 days of the rule's effective date, and require 
compliance for informational videos within an additional 60 days. Until 
the new rule's compliance dates, U.S. carriers would remain bound by 
the provisions of the existing rule. We solicited comment on the 
elimination of the exemption clause, on extending the captioning 
requirement to informational displays, and on the technical feasibility 
of captioning all safety and informational videos, DVDs, and other 
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 
high-contrast captioning on entertainment videos, DVDs, and other 
audio-visual displays on new aircraft, or aircraft ordered after the 
rule's effective date or delivered more than two years after that date. 
Aircraft on which the audio-visual machinery is replaced after that 
date would also be considered new for purposes of Sec.  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

[[Page 27639]]

captioning or inset would render the video ineffective.
    All of the carriers and carrier groups opposed requiring captioning 
for all in-flight entertainment, advancing several arguments: With 
existing technology, the costs and difficulties of compliance are 
prohibitive; for overhead screens, the size of captioning relative to 
the size of the screen would degrade the entertainment value of the 
video presentation for all passengers; on individual seat screens, 
current technology and cost do not permit the installation of systems 
that would let individual passengers choose whether to caption 
individual programs; captioning of all entertainment videos, regardless 
of what type of screen the aircraft features, is too costly and would 
increase the price of air transportation; in-flight entertainment is 
beyond the Department's jurisdiction to regulate, as it does not come 
within the purview of access to air transportation; film owners' 
restrictions on DVDs could make compliance impractical to impossible; 
in some cases, government censorship could make compliance illegal; the 
proposal does not specify whether or not captioning would be required 
in languages other than English, which would increase the costs and 
difficulties of complying. Many carriers endorsed the comments of the 
World Airline Entertainment Association (``WAEA''), which are 
summarized below, and many called for inclusion in any provision 
adopted of an exemption like the one in the current rule for safety 
videos--i.e., for cases where captioning would interfere with the video 
presentation so as to render it ineffective or if the captioning would 
itself be unreadable.
    The individuals and disability organizations that filed comments 
unanimously supported the proposed rule except insofar as they believed 
the compliance dates to be too far in the future. None of these 
commenters addressed the costs or difficulties of achieving compliance.
    The WGBH Educational Foundation's National Center for Accessible 
Media (``the Center''), which reported that it is conducting a study on 
ways of making airline travel more accessible to passengers with 
sensory disabilities, filed comments on this proposal. The Center 
maintained that all safety videos are already being captioned and that 
pre-recorded informational videos are readily captionable, thus making 
the existing exemption unnecessary. It maintained that due to current 
technologies, the rule need not specify white letters on a black 
background to ensure that captions can be read, and given the number of 
production techniques available, a requirement that displayed text be 
``legible'' or ``readable'' should suffice. The Center stated that the 
next generation of in-flight entertainment (``IFE'') systems can be 
designed to accommodate captioning in various ways and that it is 
advances in these systems, not new aircraft, that will make captions 
readily available. It therefore recommended that the rule be tied to 
changes in IFE systems and not the purchase or modification of 
aircraft. Further, the Center reported that captioning on next-
generation IFE systems is a work in progress based on new means of 
sending video signals through the aircraft cabin. Caption data for 
broadcast and cable television, it stated, are incompatible with the 
digital signals being routed to seat screens in the newest IFE systems, 
and while the transformation of these data for use on in-flight systems 
can be developed, the process is not yet automatic, nor is it trivial. 
A further complication, according to the Center, lies in the variety in 
types of video signals being provided in-flight. The Center stated that 
despite the small size of seat screens, properly rendered captions can 
be as effective on these screens as they are on home television sets. 
It reported that the portable IFE systems that some carriers use as 
alternatives to installed systems--for example, DVD players or hard 
disks--can accommodate closed captions as readily as installed systems 
can.
    As mentioned above, the comments filed by WAEA were endorsed by 
many of the carriers. WAEA stated that its members include both 
airlines and suppliers to the IFE industry, the latter including 
aircraft manufacturers, major electronics manufacturers, motion picture 
studios, audio/video post-production labs, broadcast networks, 
licensing bodies, communications providers, and others, worldwide. WAEA 
took the position that some of the proposed captioning requirements and 
implementation timelines would impose undue and unacceptable financial 
burdens on the carriers and that some of the requirements are not even 
technologically or operationally feasible given the following: 
technical limitations of both old and new IFE systems, variations among 
proprietary IFE systems currently in service and being installed, 
limited space for and readability of captioning on both seat screens 
and on more distant communal screens, the intrusion factor of open 
captions for passengers without a sensory disability, limited cabin-
server storage for additional captioned video files to complement up to 
eight languages offered onboard, and lengthy aircraft retrofit and 
fleet order cycles and IFE system design and certification timelines.
    Among other things, WAEA agreed with the Center that the 
implementation of the proposed new requirements should be tied to IFE 
system development and not the aircraft. Given the limitations of video 
files that may be available on the aircraft, WAEA contended that the 
rule should apply only to English-language videos and only to 
entertainment videos exhibited ``while in United States territory.'' 
WAEA reported that current IFE systems are typically based on 
proprietary rather than standard architectures and technologies and 
that they were not designed to accommodate broadcast closed-captioning 
signals and technologies. Given the limitations of IFE screens in terms 
of their size and distance from the viewer, WAEA opposed the 
requirement that captioning be white letters on a black background and 
supported instead the choice of using the same process as subtitling, 
which, it said, provides readable characters while keeping most of the 
picture visible and poses fewer risks of copyright infringement.
    Based on the comments, we have made several changes to the final 
rule. We are retaining the requirement that safety and informational 
audio-visual displays played on the aircraft be high-contrast 
captioned, but we have revised the definition of that term to permit 
the use of captioning that is at least as easy to read as white letters 
on a consistent black background. The requirement will not apply, 
however, to informational videos that were not created under the 
carrier's control. The captioning need only be in the predominant 
language or languages in which the carrier communicates with passengers 
on the flight. If the carrier makes announcements both in English and 
another language, captions must be in both languages. We are retaining 
the compliance dates set forth in the DHH NPRM, based among other 
things on the Center's report that all safety videos are already being 
captioned and that pre-recorded informational videos can be captioned 
readily. This report also undercuts the carriers' arguments for 
retaining the current rule's exemption for cases in which captioning 
would interfere with the video presentation so as to render it 
ineffective or would itself be unreadable.
    We have reluctantly concluded, though, that we cannot adopt a 
regulation governing entertainment displays at this time. We reject the 
contention that access to in-flight

[[Page 27640]]

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., Sec.  382.1 and Sec.  382.11-13 [formerly 
Sec.  382.7].) No party challenging our jurisdiction over IFE has 
provided any support for its position.
    Notwithstanding our authority to regulate, however, the record in 
this proceeding does not provide a basis for adopting a captioning 
requirement for IFE at present. We cannot conclude on the basis of the 
comments that providing high-contrast captioning for entertainment 
displays is technically and economically feasible now, nor can we 
ascertain a date by which it most likely will be. Therefore, we will 
shortly be issuing an SNPRM to call for more current and more complete 
information on the cost and feasibility of providing high-contrast 
captioning for entertainment displays, information not only on current 
technology but also on the nature and pace of technological 
developments. Regarding the latter, we are aware that on March 6, 2007, 
after the conclusion of the period for commenting on the DHH NPRM. 
WAEA's Board of Directors adopted a new specification as part of an 
ongoing effort to establish a standard digital content delivery system 
for IFE. This new specification reflects progress toward development of 
a common methodology for delivering digital content and greater 
interoperability for in-flight entertainment systems.

Other Information for Individuals With Hearing or Vision Impairments

    We proposed in the DHH NPRM to require carriers to provide the same 
information to deaf, hard of hearing, and deaf-blind individuals in 
airport terminals that they provide to other members of the public. We 
proposed that they must provide this information promptly when such 
individuals identify themselves as needing visual or auditory 
assistance, or both. The proposed rule set forth the following non-
exhaustive list of covered topics: flight safety, ticketing, flight 
check-in, flight delays or cancellations, schedule changes, boarding, 
the checking and claiming of baggage, the solicitation of volunteers on 
oversold flights (e.g., offers of compensation for surrendering a 
reservation), individuals being paged by airlines, aircraft changes 
that affect the travel of persons with disabilities, and emergencies 
(e.g., fire, bomb threat). We proposed that the rule apply to U.S. 
carriers at each gate, baggage claim area, ticketing area, or other 
terminal facility that they own, lease, or control at any U.S. or 
foreign airport. The proposed rule would apply to foreign carriers at 
gates, baggage claim areas, ticketing areas, or other terminal 
facilities that they own, lease, or control at any U.S. airport and at 
terminal facilities of foreign airports that serve flights beginning or 
ending in the U.S. (We inadvertently neglected to include the phrase 
``that they own, lease, or control'' in the NPRM regulatory text on 
foreign carriers at foreign airports.)
    We explained in the DHH NPRM that we were proposing a performance 
standard, namely ``prompt,'' rather than requiring carriers to use a 
particular medium (e.g., LCD screens, wireless pagers, erasable boards, 
or handwritten notes) to allow carriers to design their own compliance 
plans in a manner that best suits their needs and serves their 
passengers. We solicited comment on whether the term ``prompt,'' which 
we believe to be a higher standard than ``timely,'' is sufficiently 
specific. We also stated our concern that methods of communicating with 
deaf-blind individuals may not be readily available. We did not propose 
to require carriers to use any of the following methods: using a finger 
to trace block letters on the deaf-blind individual's palm or forearm, 
using an index card with raised letters, with the communicator placing 
the deaf-blind individual's index finger on each word's letters in 
sequence, or tactile signing or finger spelling where the deaf-blind 
individual places his or her hands on top of the signer's hands to feel 
the shape of the signs. We solicited comment on other less specialized 
methods of communicating with deaf-blind individuals and on whether, if 
none exists, we should limit the promptness requirement to individuals 
with vision or hearing impairments but not to apply it to an individual 
who has both of these disabilities.
    The carriers and carrier groups that filed comments all supported 
the requirement that passengers needing special transmission of this 
information identify themselves to carrier personnel. Most asked the 
Department to use ``timely'' as a standard rather than ``prompt.'' Some 
complain that any such standard is too subjective to provide effective 
guidance. One carrier suggested that the emphasis should be not on how 
swiftly carriers can transmit the information to the disabled passenger 
but on when the passenger needs to have it. Carriers shared 
considerable concern over the costs of compliance, both in terms of 
having personnel available at all of the areas listed in the proposal 
and in terms of potential technical solutions. One carrier opposed 
making the requirements applicable at foreign airports, arguing that 
foreign carriers are not likely to have the leverage they would need to 
comply. Several contended that the cost estimates in the initial 
Regulatory Evaluation were unrealistically low. Some proposed limiting 
the required ``promptness'' to individuals with either hearing or 
visual impairment, not both, who are traveling without a companion; one 
stated that it communicates the information at issue here to deaf-blind 
passengers through their traveling companions. Some objected to the 
list of types of information that must be provided promptly. (The list 
represents an expansion of the list in the existing rule, 14 CFR 
382.45(c), which up to this time has applied only to U.S. carriers, and 
which is explicitly not exhaustive.) One U.S. carrier association was 
particularly concerned about the financial burdens that it assumes the 
rule would impose on its regional-airline members. It asserted that 
adoption of much of the technology discussed in the proposal is 
impossible at small airports and states that in any case its members 
report very few deaf-blind passengers flying from these airports. The 
costs of compliance, it contended, far exceed any putative benefits and 
could result in the reduction or even elimination of service.
    The individuals and disability organizations that filed comments 
had a very different perspective. Most of these commenters objected to 
the requirement of self-identification. Many took the position that 
carriers should have reliable methods in place for conveying 
information to all passengers at all times. Several supported requiring 
simultaneous visual transmission of any information disseminated over a 
public address system. Some related that in the past self-
identification has failed to result in this type of information's being 
transmitted at all, much less ``promptly'' or even in a ``timely'' 
manner.
    Based on the comments, we have made several changes to the proposal 
in the final rule. First, we are adding the language that we 
inadvertently omitted in the proposed rule to limit the requirements 
for foreign carriers at foreign airports to areas that these carriers 
own, lease, or control. Second, we have determined that it is not 
appropriate at this time to require carriers to provide the information 
covered in Sec.  382.53 to deaf-blind passengers. The information at 
issue is constantly changing, and we know of no methods of 
communicating with deaf-

[[Page 27641]]

blind individuals that allow for prompt transmission of the information 
and do not require highly specialized training. We do encourage members 
of the public to petition the Department for a rulemaking to amend this 
rule in the future if and when technology becomes available that would 
permit the prompt and efficient transmission of the covered information 
to deaf-blind individuals. We also encourage carriers to acquire and 
use such technology on their own initiative.
    Third, we have determined that the costs of requiring prompt 
transmission of the covered information at all of the terminal areas 
listed in the DHH NPRM exceed the benefits. We are therefore limiting 
the requirement to gates, ticketing areas, and customer service desks. 
For purposes of the rule, a customer service desk is a location in the 
terminal that a carrier dedicates to addressing customer problems that 
are not addressed at the gate or the ticket counter, most commonly the 
rerouting of passengers affected by a delayed or canceled flight. 
Fourth, we are adding a provision for information about baggage. This 
information must be transmitted to passengers who have identified 
themselves as having hearing or vision impairment no later than the 
time that it is transmitted to the other passengers. For example, 
assuming that information on collection of baggage is given to arriving 
passengers at the baggage claim area, carriers can comply with this 
rule by giving the information to self-identifying passengers before 
the others--e.g., onboard the flight or at the gate--or at the baggage 
claim area at the same time as the others. Fifth, as in the case of 
Sec.  382.51, in cases where a U.S. airport has actual control over the 
gates, ticketing areas, and customer service desks, we are making the 
airport and the carrier jointly responsible.
    We are retaining the self-identification requirement, because we 
believe that requiring simultaneous visual transmission of the 
information along with each and every public-address announcement would 
saddle carriers with undue costs. In this regard, passengers with 
impaired hearing or vision must identify themselves to carrier 
personnel at the gate area or the customer service desk even if they 
have already done so at the ticketing area.
    We are also retaining the ``prompt'' standard. It requires carriers 
to provide the information to self-identifying passengers with hearing 
or vision impairment as close as possible to the time that the 
information is transmitted to the general public. For example, when 
gate agents announce a flight cancellation or gate change, if they 
provide the information to self-identifying passengers with impaired 
hearing or vision either immediately before or immediately after they 
make a general announcement, the carrier will be complying with Sec.  
382.53. If a gate change is announced fifteen minutes before a 
scheduled departure but the gate agents do not provide effective notice 
to a passenger with impaired hearing until it is too late for that 
individual to reach the gate in time to board, or if they delay 
providing the information long enough that the individual reasonably 
believes that he or she will probably miss the flight, the carrier is 
violating the rule. The rule requires that carrier personnel notify a 
self-identifying passenger with impaired hearing that he or she has 
been paged immediately after making the announcement over a public 
address system unless the same information is displayed visually on a 
screen. If a flight is oversold and the carrier is soliciting 
volunteers to relinquish their seats in exchange for compensation, to 
comply with this rule carrier personnel must notify self-identifying 
passengers with impaired hearing or vision in time for them to take 
advantage of the offer--i.e., well before the quota has been filled by 
other volunteers. The rule does not require carriers to provide a sign 
language interpreter in the gate area or elsewhere to ensure that a 
deaf passenger receives all pertinent information simultaneously with 
other passengers.
    As for passengers with impaired vision, for example, the rule 
requires carriers to notify a visually impaired passenger orally where 
his or her baggage can be claimed if the information is otherwise only 
posted on visual displays, and the notification must take place no 
later than the posting. At the time when a visually impaired passenger 
identifies himself or herself to an agent at the gate, the rule 
requires the agent to notify him or her of any change that has occurred 
that affects his or her itinerary even if the change has already been 
announced and is now posted on a screen. If a gate change is posted on 
the screen but not announced orally, as soon as possible after the 
posting a gate agent must notify any passenger who has identified 
himself or herself as having impaired vision.
    We are retaining the entire list of types of information that 
carriers must provide even though it contains more items than the list 
in the current rule. In our view, since the list in the current rule is 
expressly non-exhaustive, the new items on the list in this section 
were never excluded obligations. Having them explicitly stated informs 
the carriers more effectively of their responsibilities.
    In the DHH NPRM, we proposed a somewhat similar requirement for 
providing information aboard aircraft to the proposed requirements 
pertaining to information in airport terminals. U.S. and foreign 
carriers would be required, upon request, to provide deaf, hard of 
hearing, and deaf-blind individuals with the same information provided 
to other passengers in a prompt manner. We again proposed a non-
exhaustive list of types of information to be covered by the rule: 
flight safety, procedures for take-off or landing, flight delays, 
schedule or aircraft changes that affect the travel of persons with 
disabilities, diversion to a different airport, scheduled departure and 
arrival times, boarding information, weather conditions, beverage and 
menu information, connecting gate assignments, baggage claim, 
individuals being paged by airlines, and emergencies (e.g., fire or 
bomb threat). The proposal differs from the current rule in that it 
changes the timing requirement from ``timely'' to ``prompt'' and 
expands the current rule's list, also non-exhaustive, of covered types 
of information. We solicited comment on whether the change from 
``timely'' to ``prompt'' is appropriate for providing information 
aboard the aircraft and on the proposed new list.
    The carriers and carrier groups that filed comments generally 
objected to the proposal as too broad and too prescriptive, 
particularly the expanded list of types of information for which 
accommodation would be required. The Air Transport Association of 
America (``ATA'') argued that the expanded list would create a tension 
between crew members' obligations to provide information to disabled 
passengers and their duties related to safety and concluded that if 
busy crew members are further burdened with having to transcribe every 
in-flight announcement for passengers with impaired hearing, only 
safety announcements mandated by the FAA will be made. Such a result, 
according to ATA, would work to the detriment of all passengers and 
constitute an undue burden not required by the ACAA. ATA proposed 
limiting the covered information to critical flight and safety 
information. Some commenters contended that they (or their members) 
already give passengers with hearing or vision impairment the same 
relevant information that they announce aloud. The International Air 
Transport Association (``IATA'') contended that the proposal would not 
allow carriers enough flexibility to make

[[Page 27642]]

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 Sec.  382.53, 
however, we have determined that it is not appropriate at this time to 
require carriers to provide the information covered in Sec.  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 Sec.  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 Sec.  382.53 with regard to 
maintaining the self-identification requirement, the standard of 
promptness, and the list of types of information that the rule covers. 
Here, as there, we believe that at this time, requiring simultaneous 
visual transmission of the information along with every spoken 
announcement would saddle the carriers with undue costs. Here, as 
there, carriers must provide the information to self-identifying 
passengers with hearing or vision impairment as close as possible to 
the time that the information is announced aloud. Here, as there, 
expanding the list in the current rule does not impose additional 
requirements on U.S. carriers, because the current rule's list is 
explicitly non-exhaustive and would thus cover the items added here. 
Specifying our expectation informs the carriers more completely of what 
the rule encompasses.
    Finally, the carriers' concerns that compliance with the 
requirements of section 382.119 could keep their flight crews from 
performing their duties related to safety are misplaced. The rule 
expressly relieves the crew from complying when this would interfere 
with their safety duties under FAA and foreign regulations. There is 
similar language in Sec.  382.53, though, given the duties of such 
personnel as gate agents, ticket agents, and baggage claim personnel, 
the likelihood of any conflict between normal duties and legally-
mandated safety duties is probably lower than in the air crew context, 
outside, perhaps of an unusual emergency situation.

Training

    The Foreign Carriers NPRM proposed that carriers operating aircraft 
with 19 or more passenger seats must train its personnel to proficiency 
concerning ACAA requirements and providing services to passengers with 
disabilities. One element of the carrier's training efforts would be to 
consult with organizations representing persons with disabilities in 
developing training programs. Refresher training to maintain 
proficiency would also be required. Complaints resolution officials 
(CROs) would have to be trained in their duties by the effective date 
of the rule. Training for current employees would generally have to be 
accomplished within one year. New crewmembers would have to be trained 
before starting their duties, and other new employees would have to be 
trained within 60 days of starting their duties. For foreign carriers, 
training requirements would apply only to employees who are involved 
with flights to and from U.S. points. Carriers would incorporate 
procedures implementing Part 382 requirements into their manuals, but 
they would not need to submit these materials or a certification of 
compliance to DOT for review.
    Disability community commenters generally supported the proposed 
training requirements, though several said that U.S. carriers were not 
providing adequate training. Some commenters said that they had rarely, 
if ever, encountered carrier personnel who, when asked, recalled 
getting ACAA training. Some of these commenters, as well as some 
carriers, asked for a stronger DOT role in providing training (e.g., 
preparing a training curriculum, developing training materials, or 
providing funding for training). One association representing foreign 
carriers suggested a forum at which carriers and the Department could 
discuss implementation issues before the effective date of the rule.
    Some foreign carriers mentioned that they already had disability-
related training programs for their employees, and suggested that these 
programs should be recognized as equivalent to the proposed 
requirements. A few foreign carriers said that the proposed training 
time frames were too short. Other foreign carriers objected to training 
their employees to meet U.S. requirements, since they already trained 
their personnel to meet applicable requirements of their home 
countries. Several of these commenters particularly objected to 
consulting with disability groups, some suggesting that the requirement 
should be waived if they could not find a local disability group to 
consult. (Disability groups expressed different views on this point, 
most suggesting such a waiver was unnecessary because the U.S.-based 
staff of the airline could consult with U.S. groups if necessary, while 
another group suggested such a waiver could be acceptable if the 
carrier showed it had made good faith efforts to consult.) An 
association of U.S. carriers cautioned that any waiver available to 
foreign carriers should also be available to U.S. carriers.
    The Department regards thorough training of carrier personnel who 
interact with passengers with disabilities as vital to good service to 
those passengers and to compliance with the ACAA. We recognize that 
many foreign carriers already have disability-related training 
programs. Since specific ACAA requirements do not yet apply to these 
carriers, it is very likely that these training programs would need to 
be amended, for those personnel who serve flights to and from the U.S., 
in order to ensure that the personnel understand ACAA requirements. 
Personnel serving U.S.-related flights would not have to be retrained 
from scratch, only provided additional training on ACAA-specific 
matters. To respond to concerns about the time it would take to train 
employees, the final rule provides foreign carriers a year from the 
effective date of the rule to complete the process. Since there will be 
a year between publication of the final and its effective

[[Page 27643]]

date, any carriers still concerned about the length of training time 
frames can get a head start by beginning to train employees during the 
year prior to the effective date.
    While U.S. disability groups can undoubtedly be a useful resource 
for both U.S. and foreign carriers, we do not believe it would be 
realistic to require foreign carriers to seek out U.S. disability 
groups for consultation (in many cases, U.S.-based personnel of these 
carriers would be operations staff, not management and training 
officials). Consequently, we have modified the language of this 
provision to refer to seeking disability groups in the home country of 
the airline. If home country disability groups are not available, a 
carrier could consult individuals with disabilities or international 
organizations representing individuals with disabilities. We do not 
believe that a waiver provision is needed, since it is unlikely that a 
carrier would be completely unable to find anyone--home country or 
international disability groups, individuals with disabilities--with 
whom to consult. As a matter of enforcement policy, however, the 
Department would take into consideration a situation in which a carrier 
with an otherwise satisfactory training program documented it had made 
good faith efforts to consult but was unable to find anyone with whom 
to consult.
    The Department has posted a model training program based on the 
current Part 382 at http://airconsumer.ost.dot.gov/training/index.htm, 
and we will consider whether it would be useful to produce additional 
training materials. Our staff have long experience in working with 
carriers on training and compliance issues, and they will continue to 
work with both U.S. and foreign carriers on training-related issues. We 
believe the idea of one or more forums to discuss implementation issues 
in the interval between the publication and effective dates of the rule 
is a good one, and we are now planning to hold such a meeting in June 
2008.
    We understand the concern of disability group commenters that some 
carrier personnel do not seem to have been trained to proficiency or at 
all. In an industry environment in which there is considerable 
personnel turbulence, carriers and the Department must both be vigilant 
to ensure that training takes place as required.
    Because of the concern that some carrier employees may not be 
current in their knowledge of ACAA requirements, the final rule will 
require refresher training at least every three years. Carriers will 
have to develop a program for this purpose. Refresher training is 
intended to assist employees in maintaining proficiency, both by 
reminding them of ACAA requirements and their carriers' procedures for 
implementing them and by providing updated information about new 
developments, additional guidance etc. While the Department will not 
require such programs to be submitted for approval, carriers will be 
required to retain records concerning both initial and refresher 
training, including the instructional materials and individual employee 
training records, for three years. These records will be subject to 
inspection by the Department.
    We also think that it is important to understand the relationship 
between compliance with the ``trained to proficiency'' requirement and 
compliance with other provisions of the rule. In the Department's view, 
a pattern or practice by a carrier of noncompliance with operational 
provisions of the ACAA rule (e.g., wheelchair stowage in the cabin, 
boarding or connecting assistance) may reveal that the carrier's 
personnel have not been trained to proficiency with respect to the 
provision in question. Training to proficiency seems inconsistent, on 
its face, with systemic mistakes in providing required accommodations. 
Consequently, where the Department sees widespread implementation 
problems, our staff may also examine the adequacy of the carrier's 
training, and we may take enforcement action and require corrective 
action in the carrier's training activities.
    Carriers generally supported the proposal to not require submission 
of material in manuals and procedures to DOT for review. The Department 
believes, based on the experience of reviewing carrier submissions at 
the time the original Part 382 went into effect, that mandating such 
submissions is not productive, so we will not impose such a 
requirement. Some disability community commenters supported the idea of 
submitting certificates of compliance. However, the Department believes 
that doing so would result in increasing information collection burdens 
without giving the Department a significant additional amount of 
information about carriers' actual compliance status. We believe it is 
sufficient for the Department to be able to review materials carriers 
have on file as part of our compliance and enforcement process.
    In the DHH NPRM, we proposed to require carriers to train their 
employees to recognize the requests for communication accommodation by 
passengers with impaired vision or hearing and to use the most common 
methods that are readily available for communicating with these 
passengers. The required training would be for proficiency in basic 
visual and auditory methods for communicating with passengers whose 
disabilities affect communication. We explained that we were not 
proposing to require carriers to train their employees to use sign 
language. Rather, employees would be trained in methods that are 
readily mastered and of which one or more can be used as required to 
communicate with an individual who is deaf or hard of hearing (e.g., 
handwritten notes). We solicited comment on whether the terms ``common 
methods'' and ``readily available'' give carriers sufficient guidance 
for complying fully with this training requirement. We also solicited 
comment on what kind of training would meet the requirement and on the 
effect, feasibility, and necessity of expanding the proposal to require 
that employees also be trained to communicate with deaf-blind 
individuals.
    The carriers and carrier associations that filed comments generally 
characterized the proposed requirements as far too vague and 
potentially too costly. Most objected to requiring training for all 
personnel and contractors that deal with the traveling public. One 
carrier suggested that a better approach would be to train all 
personnel to better awareness of communications needs and give carriers 
discretion to choose how to satisfy those needs--for example, by 
ensuring that proficient communicators can be made available on short 
notice. Foreign carriers generally argued that any training requirement 
should only apply to their employees in the United States. One carrier 
association noted that a person without training would naturally resort 
to writing to communicate with a deaf person and wondered what more 
would be taught in formal training. One carrier questioned the 
existence of universally established or internationally accepted 
methods in which to train carrier personnel. RAA asked that training 
requirements not apply to aircraft carrying 30 or fewer passengers and 
that training to communicate with deaf-blind individuals not be 
required.
    The individuals and disability organizations that filed comments 
all supported training requirements. One organization argued that 
training in sign language should be required as well as training in how 
to operate any technology used to provide visual

[[Page 27644]]

access--for example, captioning controls on video monitors or LCD 
terminals. One individual called for carrier personnel to be trained in 
how to handle people with service or guide dogs, including not to pet 
or feed the dogs. One organization maintained that trainers of carrier 
personnel should be individuals with hearing loss and that they should 
focus on imparting an understanding of the barriers that deaf, hard of 
hearing, and deaf-blind passengers face. This organization also 
suggested that effective communication might involve visual 
communication, appropriate seating arrangements, lighting to ensure a 
clear line of sight to visual information displays, and attention-
getting techniques such as gentle tapping on the shoulder.
    In the final rule, we are retaining the proposed training 
requirement with some clarification and one addition. Carriers must 
train those employees who come into contact with passengers whose 
hearing or vision is impaired or who are deaf-blind both to recognize 
these passengers' requests for accommodation in communicating and to 
communicate with these passengers in ways that are common and readily 
available. For example, employees should be able to communicate with 
passengers whose hearing or vision is impaired via written notes or 
clear enunciation, respectively. We are adding a requirement that the 
training also cover deaf-blind passengers. Examples of communication 
accommodations for the latter include passing out Braille cards (which 
this rule does not require), reading any information sheet that a 
passenger provides, and communicating with the passenger through an 
interpreter. Given that what we are requiring is fairly rudimentary, 
the training costs should not be high, nor should compliance otherwise 
be burdensome.

Complaints

    Like the existing rule, the Foreign Carriers NPRM emphasized the 
role of CROs. These are individuals trained to be the carrier's experts 
in ensuring that carrier personnel correctly implement ACAA 
requirements and that problems of passengers with disabilities are 
resolved in a way that is consistent with Part 382. The purpose of 
having a CRO is to resolve passengers' problems as quickly as possible, 
without resort to formal DOT enforcement procedures and, we hope, in 
many cases, before a violation occurs.
    Under the Foreign Carriers NPRM, there would have to be a CRO 
available to passengers with disabilities at every airport the U.S. 
carrier serves and at every airport where a foreign carrier operates a 
flight to or from the U.S., whether in person or by phone. Carrier 
personnel would have to refer a passenger with a disability-related 
complaint or problem to a CRO. The Foreign Carriers NPRM also would 
tell carriers to provide the number of the DOT Disability Hotline to 
such passengers. CROs have the authority to direct other carrier 
personnel (except pilots-in-command with respect to safety matters) to 
take actions to resolve problems so as to comply with the ACAA. 
Carriers and CROs would have to respond to consumer complaints in a 
timely manner.
    Disability community comments generally supported the proposed 
rule, though some comments suggested that CROs and carriers should have 
to respond faster to consumer complaints than the Foreign Carriers NPRM 
proposed. Some carriers, on the other hand, thought that the time 
frames in the Foreign Carriers NPRM were too short, especially if a 
lengthy investigation were needed in order to respond. Disability 
community commenters also strongly supported the proposal to direct 
carriers to refer passengers who raise disability-related issues to a 
CRO, since many individuals may not know about the availability of CROs 
otherwise.
    A number of carriers said that they thought that having CROs 
available to passengers at every airport was not cost-effective and 
that existing customer service offices could meet the need. One foreign 
carrier thought that its personnel could not be successfully trained to 
carry out the CRO role. Some carriers thought that they should not have 
to refer passengers to the DOT Hotline, saying that this would 
undermine the purpose of having CROs resolve problems as close to the 
scene of the action as possible. Some commenters objected to providing 
TTY service as a means of permitting hearing-impaired passengers to 
contact a CRO, saying that this was impractical in some places (e.g., 
an airport in a country where TTY service was unavailable). Some 
comments said the Foreign Carriers NPRM's proposal to allow 18 months 
after the event for a passenger to file a complaint with DOT was too 
long.
    The final rule retains the role and functions of the CRO. Our 
experience supports the proposition that the use of CROs is crucial to 
prompt and efficient solution of passengers' problems. However, we are 
making a few clarifications and changes in response to comments. 
Carriers may use other accessible technologies in lieu of TTYs to 
permit hearing-impaired passengers to communicate with CROs. The 
proposed requirement for carriers to refer passengers to the DOT 
Hotline has been dropped. The time frame for a carrier to respond to an 
oral complaint to a CRO has been expanded to 30 days, making it 
consistent with the time frame for responding to written complaints. 
The final rule clarifies that with respect to CROs and complaint 
responses, carriers providing scheduled service, and carriers providing 
nonscheduled service using aircraft with 19 or more passenger seats, 
are covered. When the rule speaks of ``immediate'' responses by 
carriers, it means prompt and timely referral to a CRO when passengers 
raise a disability-related problem or complaint that cannot be quickly 
resolved by carrier personnel on the spot (e.g., a gate agent, a flight 
attendant). We have reduced from 18 months to six months the period 
after an event in which a passenger may file a complaint with DOT.
    A few foreign carriers said that it was improper to permit non-U.S. 
citizens to have access to the U.S. DOT through the complaint process. 
In the commenters' view, this implied improper extraterritorial 
jurisdiction under a law that was intended to create rights only for 
U.S. citizens. We do not agree. First, the ACAA protects ``individuals 
with disabilities,'' with no limitation on the nationality of those 
individuals. Second, the Department has a legitimate interest in 
ensuring that its legal requirements are implemented. It does not 
matter to the Department who brings a problem to its attention. Once we 
know about the problem, it is up to the Department, working with the 
carrier, to correct the problem, and civil penalties are one of the 
Department's tools for helping to correct a problem.
    An association representing U.S. carriers objected to a proposed 
exception to the 45-day limitation on accepting written complaints for 
complaints referred by the Department of Transportation. The commenter 
also suggested that carriers be allowed to limit the means through 
which a disability-related complaint is transmitted to them to the 
means used to accept non-disability-related complaints. In the 
Department's view, if we think a complaint is important enough to refer 
to an air carrier, it is important enough for the carrier to respond. 
We also believe that, in attempting to enforce rights under a 
nondiscrimination statute, passengers should be able to send a 
complaint by any reasonable means available to them, without 
limitations placed by carriers on the transmission of other sorts of 
consumer complaints. These features of

[[Page 27645]]

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.

382.1 What is the purpose of this Part?

    The section is amended to include foreign carriers.

382.3 What do the terms in this rule mean?

    This definitions section makes several additions or changes to the 
definitions in the current rule. A new definition of ``carrier'' 
includes both U.S. and foreign carriers. A new definition of ``CPAP 
machine'' or continuous positive airway pressure machine, a type of 
respiratory assistive device, has also been added. There are new 
definitions of ``direct threat,'' which concerns the standard that may 
permit carriers to take otherwise prohibited actions with respect to 
passengers with a disability, and ``equivalent alternative,'' which 
concerns the standard used in 382.10 for carriers to adopt policies, 
practices or other accommodations in lieu of compliance with the letter 
of provisions of the rule. ``Indirect air carrier'' refers to a person 
not directly involved with the operation of aircraft who sells 
transportation services to the general public other than as the agent 
of a carrier. Two agencies concerned with safety and security aspects 
of flight are also recognized in this section: The Pipeline and 
Hazardous Materials Safety Administration of DOT and the Transportation 
Security Administration of the Department of Homeland Security. In the 
definition of ``qualified individual with a disability,'' the final 
rule specifically mentions the term ``passenger with a disability'' 
that is frequently used throughout the rule. Finally, there is a new 
definition of ``portable oxygen concentrator'' (POC), a device used to 
provide oxygen to passengers who need it during flight.
    We have also included in the final rule a definition of ``commuter 
carrier'' and ``on-demand air taxi'' as an understanding of those terms 
is essential to an understanding of the applicability of section 
382.133. The Department also decided to include a definition of 
``expected maximum flight duration'' in the final rule as commenters 
had a number of questions regarding how a carrier should determine if a 
passenger has a sufficient number of batteries available to power an 
electronic respiratory assistive device. In this final rule, the 
Department explains that a carrier may require an individual to bring 
enough fully charged batteries to power the device for not less than 
150% of the expected maximum flight duration. The definition of 
``expected maximum flight duration'' provides carriers a list of 
factors that they must take into account in determining the total 
length of a flight.
    We proposed in the DHH NPRM to change the phrase, 
``telecommunication device for the deaf,'' and its acronym, ``TDD,'' to 
``text telephone'' and ``TTY,'' respectively. All who commented on this 
proposal supported it, so we are using the new phraseology in the final 
rule.
    In the DHH NPRM, we proposed not to include a definition of ``hard 
of hearing, deaf, and deaf-blind'' in the rule, reasoning that the 
definition of an ``individual with a disability'' is broad enough to 
cover individuals who are hard of hearing, deaf, or deaf-blind. We did, 
however, solicit comments on this issue. We also proposed not to 
include a definition of ``captioning,'' but we solicited comments on 
this issue as well. We further proposed not to include a definition of 
``informational,'' but we stated in the preamble that we intended that 
word to apply to all videos, DVDs, and other audio-visual displays that 
do not qualify as safety or entertainment displays, including but not 
limited to the following: videos, DVDs, and other audio-visual displays 
addressing weather, shopping, frequent flyer programs, customs and 
immigration information, carrier routes, and other general customer 
service presentations. We also solicited comments on this issue.
    Of those who commented on Sec.  382.3, the carriers and carrier 
associations generally opposed a definition of ``hard of hearing, deaf, 
and deaf-blind,'' agreeing with the Department that such individuals 
are covered by the definition of an ``individual with a disability.'' 
They opposed any definition of ``captioning'' that might be difficult 
to meet or that would not allow for innovation, and they agreed that 
``informational'' need not be defined. One of the disability 
organizations argued for a definition of ``hard of hearing, deaf, and 
deaf-blind'' in order to cover the ``entire spectrum'' of hearing 
disabilities. All disability organizations supported a definition of 
captioning that makes all audio-visual displays easily readable, and 
they agreed with the proposal to explain the purport of 
``informational'' in the preamble. One of these organizations asked the 
Department to add safety, entertainment, and other materials that are 
communicated to passengers who can see and hear normally.
    The final rule includes a definition of the term ``indirect air 
carrier.'' For readers' information, an indirect air carrier is an 
entity that indirectly engages in ``air transportation'' as that term 
is defined in the governing statute by engaging the services of a 
``direct air carrier'' (an airline). For example, when a tour operator 
or an air freight forwarder contracts for space on a wholesale level 
with an airline and the tour operator or air freight forwarder then re-
sells space on that flight on a retail basis, setting his own price and 
terms, bearing the entrepreneurial risk of profit or loss rather than 
acting as an agent, and controlling the inventory and schedule, that 
tour operator or air freight forwarder is acting as an ``indirect air 
carrier'' as defined in the statute. Conversely, a retail travel agent 
who sells the product of a disclosed principal (e.g., a seat on a 
scheduled airline or on a charter flight), offering it at the price and 
terms set by that principal, is acting as an agent rather than a 
principal and is not an indirect air carrier. Nor are other 
participants in the air travel system (concessionaires, suppliers) 
considered indirect air carriers.
    The final rule will not include definitions of ``hard of hearing, 
deaf, and deaf-blind'' or ``informational.'' The comments have not 
persuaded us of the need for a separate definition to cover hearing and 
vision problems: the definition of an ``individual with a disability'' 
logically includes individuals with the whole spectrum of hearing and 
vision impairments. Similarly, the comments do not show a need for a 
definition of ``informational'' in the rule. As we stated in the DHH 
NPRM, by ``informational'' displays we mean all videos, DVDs, and other 
audio-visual displays that do not qualify as safety or entertainment 
displays, including but not limited to the following: videos, DVDs, and 
other audio-visual displays addressing weather, shopping, frequent 
flyer programs, customs and immigration information, carrier routes, 
and other general customer service presentations. We exclude safety and 
entertainment displays: these are covered elsewhere, in Sec. Sec.  
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 
Sec.  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

[[Page 27646]]

read as white letters on a consistent black background'' not only 
ensures that captions will be effective but also allows carriers to use 
existing or future technologies to achieve captions that are as 
effective as white on black or more so. Some of the comments indicate 
that such technology already exists, and we think it would be poor 
public policy not to allow for innovation and improvement. The high-
contrast captioning may be either open--i.e., text that is recorded 
directly in the video and cannot be turned off at a user's discretion--
or closed--i.e., text that can be toggled on or off at the user's 
choice.

382.5 When are U.S. and foreign carriers required to begin complying 
with the provisions of this Part?

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

382.7 To whom do the provisions of this Part apply?

    The rule applies to all U.S. carriers, regardless of where their 
operations take place, except where otherwise provided in the rule. 
With respect to foreign carriers, the application of the rule is more 
limited. Only flights of foreign carriers that begin or end at a U.S. 
airport, and aircraft used in these operations, are covered. A flight 
means a continuous journey of a passenger in the same aircraft or using 
the same flight number. The rule provides several examples of what 
constitutes a ``flight'' and what does not. Notably, a foreign carrier 
is not covered under the rule with respect to an operation between two 
foreign points, even if, under a code-sharing arrangement with a U.S. 
carrier, the foreign carrier transports passengers flying under the 
U.S. carrier's code. The U.S. carrier, however, is covered under the 
rule with respect to the passengers traveling under its code on such a 
flight, such that if there is a violation of the Part 382 rights of a 
passenger traveling under the U.S. carrier's code, the Department would 
hold the U.S. carrier, not the foreign carrier, responsible. Finally, a 
charter flight on a foreign carrier from a foreign airport to a U.S. 
airport and back would not be covered if the carrier did not pick up 
any passengers in the U.S.
    In the DHH NPRM, we proposed that the provisions concerning deaf, 
hard of hearing, and deaf-blind passengers apply to all U.S. carrier 
operations and to all flights operated by foreign carriers that begin 
or end at a U.S. airport. We proposed that in the case of flights 
operated by foreign carriers between two foreign points that are 
codeshared with a U.S. carrier, the service-related requirements of the 
rule would apply to the U.S. carrier whose code is used but not the 
aircraft accessibility and equipment requirements. In addition, we 
observed in the Preamble that Sec.  382.51, which governs audio-video 
displays at airports, carves out an exception for U.S. and foreign 
carriers at foreign airports: Sec.  382.51 applies by its terms only to 
U.S. airport terminal facilities owned, leased, or controlled by U.S. 
or foreign carriers. We solicited comments on the cost and feasibility 
of requiring U.S. carriers to modify equipment, space, or both at 
foreign airport terminals that they lease, own, or control.
    Consistent with their comments on the Foreign Carriers NPRM, 
foreign carriers and carrier associations that filed comments generally 
criticized the Department, saying that it had acted unilaterally in 
this area. Some contended that Part 382 should not apply to flights 
that are not part of a single journey to or from the United States in 
the same aircraft with the same flight number. One U.S. carrier, Delta, 
expressed concern that its foreign codeshare partners might find the 
requirements so onerous that they will end the code-sharing rather than 
comply, precipitating declines in service and competition. One 
association of U.S. carriers supported the applicability of Part 382 to 
foreign carriers, as did the disability groups and individuals that 
commented. The Regional Airline Association (``RAA'') asked the 
Department to exempt all aircraft of up to 30 seats from the rule 
because its requirements will create excessive burdens for operators of 
small aircraft.
    The individuals and disability organizations that filed comments 
generally favored making the rule applicable to all foreign carrier 
flights that originate or end at a U.S. airport and to foreign carrier 
flights between two foreign airports that are codeshared with a U.S. 
carrier.
    We find unpersuasive the foreign carriers' suggestions that in 
applying these requirements to them we are somehow exceeding our 
authority. As we explained in the Foreign Carriers and DHH NPRMs, in 
the Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century (AIR-21), Congress amended the Air Carrier Access Act (ACAA) to 
include foreign carriers in the prohibition against discriminating 
against otherwise qualified individuals with disabilities. This 
rulemaking merely implements that law. This Department's authority to 
issue regulations that apply to foreign carriers is well-established. 
This general issue is discussed at greater length in the ``Response to 
Comments'' portion of the preamble above. In that section, the 
Department explains the final rule's approach to the issue of code-
sharing, which applies to deaf and hard-of-hearing issues as well as to 
other provisions of Part 382.
    The service-related requirements regarding deaf, hard of hearing, 
and deaf-blind passengers that apply to U.S. carriers on codeshare 
flights operated by their foreign-carrier partners between two foreign 
points are those listed in Sec.  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 Sec.  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

[[Page 27647]]

carrier from doing something required by this rule, is an appropriate 
subject for a conflict of laws waiver. A foreign carrier's or foreign 
government's policy, authorized practice, recommendation, or preference 
is not. However, if a foreign government officially informs a carrier 
that it plans to take enforcement action (e.g., impose a civil penalty) 
against a carrier for failing to implement a provision of a government 
policy, guidance document, or recommendation, the Department would view 
the enforcement action as creating a legal mandate that could be 
addressed under this section.
    If, as a legal matter, the foreign carrier has no choice but to act 
contrary to this rule, the Department would grant a waiver. If the 
foreign carrier, as a matter of law, has any discretion in the matter, 
it must exercise that discretion by complying with this rule, even if 
contrary to the carrier's policy or the recommendation of a foreign 
government, and the Department would not grant a waiver. A waiver 
request would have to include the carrier's proposal for an alternative 
means of achieving the rule's objectives with respect to any provision 
that is waived.
    The Department wants to ensure that waiver requests are submitted 
and granted or denied in a timely manner, avoiding the dilemma for 
foreign carriers of having to choose between compliance with this rule 
and with conflicting foreign laws when the rule goes into effect a year 
after its publication. We encourage foreign carriers to make any waiver 
requests within 120 days of the rule's publication. The Department 
commits to deciding requests made in this time period before the rule 
goes into effect. If we are late, then the foreign carrier may continue 
to carry out the policy or practice involved until we do respond, and 
if the request is denied the Department would not take any enforcement 
action against the carrier with respect to activities that took place 
prior to the denial. Even with respect to waiver requests submitted 
after the 120-day period, the Department will do its best to respond 
before the effective date of the rule. Again, the carrier can choose to 
continue to follow the policy or practice that is the subject of the 
request until the Department does respond. However, if such a request 
is denied, the carrier risks enforcement action with respect to the 
period between the effective date of the rule and the date of the 
Department's response. The Department has established this two-stage 
waiver consideration process to help avoid a situation in which a 
foreign carrier would delay submission of a waiver request until 
shortly before the effective date of the rule, in an attempt to delay 
compliance with the rule while the Department considered its late-filed 
request.
    We also recognize that new foreign legal mandates can arise. If a 
new mandate is created after the initial 120-day period following 
publication of the rule (not an existing legal mandate that is 
subsequently discovered or goes into effect subsequently), then a 
foreign carrier may submit a waiver request and continue to implement 
the policy or practice involved until the Department responds. In this 
case, the carrier would not be subject to enforcement action for the 
period prior to the Department's response.
    This section also notes that if a foreign carrier submits a 
frivolous or dilatory waiver request, has not submitted a waiver 
request with respect to a particular policy or practice, or continues 
to follow a policy or practice concerning which a waiver request has 
been denied, the carrier could be subject to DOT enforcement action. 
For example, if the Department initiates enforcement action because we 
believe a foreign carrier's practice is contrary to the rule, the 
carrier could not defend against the enforcement by claiming a conflict 
with an existing foreign legal mandate if the carrier had not 
previously submitted a waiver request concerning the practice, or the 
request had been denied.

382.10 How does a U.S. or foreign carrier obtain a determination that 
it is providing an equivalent alternative to passengers with 
disabilities?

    While the concept of equivalent facilitation has been a part of DOT 
Americans with Disabilities Act (ADA) rules since 1991 (see 49 CFR 
37.7-37.9), it has not previously been part of ACAA rules. The use of 
``equivalent alternative'' in this rule is somewhat broader than the 
use of ``equivalent facilitation'' in DOT or DOJ ADA rules or in the 
Americans with Disabilities Act Accessibility Guidelines issued by the 
U.S. Access Board, which focused on ``hardware'' modifications to 
vehicles and facilities. In the ACAA context, equivalent alternative 
can also refer to policies, practices, or other accommodations to 
passengers with disabilities.
    The key point of this section is that, in order to be viewed as an 
equivalent alternative, a policy, practice, accommodation, or piece of 
equipment must really provide substantially equivalent accessibility to 
passengers with disabilities than compliance with a provision of the 
rule. It isn't enough for a carrier's proposed alternative to be 
different from a provision of the rule. Alternatives that provide less 
accessibility than the provisions of the rule, or that impose greater 
burdens on passengers with disabilities, cannot be considered an 
equivalent alternatives. Equivalent alternatives also pertain only to 
specific requirements of the rule. The Department would not entertain 
an equivalent alternative request that asked us to find that an entire 
foreign regulatory scheme was equivalent to this rule, for example.
    Similar to the conflict of laws waiver provision, the equivalent 
alternative provision is structured to provide an incentive to carriers 
to file timely requests. If a carrier submits its request within 120 
days of the publication date of this Part, the Department will try to 
respond before the effective date of the rule. The carrier can 
implement the policy or practice it requests as an equivalent 
alternative beginning on the effective date of the rule until the 
Department does respond. (A U.S. carrier subject to the current rule 
could not begin implementing an equivalent alternative it had requested 
within the 120-day time period until the new rule goes into effect, 
since the current rule does not provide for equivalent alternatives.) 
If a carrier submits its request after the 120-day period following 
publication, the carrier must comply with the provision of the 
regulation pending the Department's response.

382.11 What is the general nondiscrimination requirement of this Part?

382.13 Do carriers have to modify policies, practices, and facilities 
to ensure nondiscrimination?

    These sections are very similar to section 382.7 of the current 
regulation. One difference is that the new rule specifies that carriers 
may require preboarding as a condition of receiving certain seating or 
in-cabin stowage accommodations. The requirement to make modifications 
of policies, practices, and facilities has been broken out into a 
separate section. This requirement recognizes that there can be times 
when, in order to provide nondiscriminatory service to a particular 
individual, carriers must change or make an exception to an otherwise 
acceptable general policy or practice for that individual. It should be 
emphasized that this provision is not intended to require carriers to 
make generally applicable changes in policies for all passengers, or 
all passengers with disabilities. The provision focuses on

[[Page 27648]]

the carrier doing what it needs to do--short of incurring an undue 
burden or making a fundamental alteration in its services--to make sure 
that a passenger with a disability can take the trip for which he or 
she is ticketed.

382.15 Do carriers have to make sure that contractors comply with the 
requirements of this Part?

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

382.19 May carriers refuse to provide transportation on the basis of 
disability?

    This section continues, and extends to foreign carriers, the key 
nondiscrimination requirement of the ACAA and the existing Part 382. 
With narrow exceptions, a carrier is prohibited from denying 
transportation to a passenger on the basis of disability. Carriers 
retain their authority, under 49 U.S.C. 44902 and 14 CFR 121.533, to 
deny transportation to any passenger, disabled or not, on the basis of 
safety or whose carriage would violate FAA or TSA requirements.
    If the carrier's reason for excluding a passenger on the basis of 
safety is that the individual's disability creates a safety problem, 
the carrier's decision must be based on a ``direct threat'' analysis. 
This concept, grounded in the Americans with Disabilities Act, calls on 
carriers to make an individualized assessment (e.g., as opposed to a 
generalization or stereotype about what a person with a given 
disability can or can't do) of the safety threat the person is thought 
to pose. In doing so, the carrier must take into account the nature, 
duration and severity of the risk; the probability that the potential 
harm will actually occur; and whether reasonable mitigating measures 
can reduce the risk to the point where the individual no longer poses a 
direct threat. In using its authority to make a direct threat 
determination and exclude a passenger, a carrier must not act 
inconsistently with other provisions of Part 382. Direct threat 
determinations must not be used as a sort of de facto exception to 
specific requirements of this Part (e.g., the prohibition on number 
limits).
    Exclusion of a passenger because his disability-related appearance 
or involuntary behavior may offend, annoy, or inconvenience other 
persons--as distinct from creating a direct threat to safety--is an 
important part of this nondiscrimination mandate. The rationale for 
this requirement was stated in the preamble to the 1990 ACAA rule, and 
it remains valid (see 55 FR 8027; March 6, 1990).

382.21 May carriers limit access to transportation on the basis that a 
passenger has a communicable disease or other medical condition?

    As a general matter, carriers may not exclude or impose other 
requirements or conditions on a passenger on the basis that the 
passenger has a communicable disease. However, if the passenger poses a 
direct threat, the carrier may take appropriate action to safeguard the 
health and safety of other persons on the flight.
    The Department has added regulatory language codifying the 
Department's guidance on how airlines should determine whether 
someone's disease presents a direct threat. To be a direct threat, a 
condition must be both able to be readily transmitted by casual contact 
in the course of a flight AND have severe health consequences (e.g., 
SARS, active tuberculosis). If a condition is readily transmissible but 
does not typically have severe health consequences (e.g., the common 
cold), or has severe health consequences but is not readily transmitted 
by casual conduct in the course of a flight (e.g., HIV), its presence 
would not create a direct threat. Carriers may also rely on directives 
issued by public health authorities (e.g., in the context of a future 
flu pandemic).
    If a passenger who is deemed to present a direct threat cannot 
travel at his or her scheduled time as a result, the carrier must allow 
the passenger to travel at a time up to 90 days from the date of 
postponed travel at the same price or, if the passenger prefers, 
provide a refund. Consequently, cancellation or rebooking fees or 
penalties would not apply in this situation, and the passenger would 
not be subject to any fare increases that may occur in the meantime or 
any increase in that passenger's fare due to the non-availability of a 
seat in the fare class on his or her original ticket.

382.23 May carriers require a passenger with a disability to provide a 
medical certificate?

    Like the medical certificates section in the current rule, this 
section generally prohibits carriers from requiring medical 
certificates (i.e., written statements from a doctor saying that a 
passenger is capable of completing a flight safely, without requiring 
extraordinary medical assistance during the flight). People with 
disabilities have functional impairments with respect to walking, 
seeing, hearing etc. These impairments, by and large, are not 
sicknesses requiring medical treatment or clearance (though, of course, 
persons with disabilities can have illnesses like everyone else). At 
the same time, airlines and their personnel are not medical service 
providers, and it is not reasonable to expect them to perform medical 
services. This provision is intended to balance these realities.
    Oxygen users and, people traveling in a stretcher or incubator can 
be required to produce a medical certificate. The situation that most 
commonly would result in a call for a medical certificate is one in 
which carrier personnel have a reasonable doubt that someone can 
complete the flight safely, without requiring extraordinary medical 
assistance. In such a case, carrier personnel can require a medical 
certificate in order to provide assurance that the passenger will not 
need such assistance. The rule clarifies that a medical certificate 
must be recent (within 10 days of the passenger's departing flight).
    There is also a relationship between this section and the 
communicable diseases provision. Section 382.21(a)(4) allows a carrier 
to require a medical certificate if the carrier determines that the 
passenger has a communicable disease that could pose a direct threat. 
Under section 382.23(c), the passenger would then have to produce a 
medical certificate, to the effect that the passenger's condition would 
not be communicable to other persons during the normal course of the 
flight. If it is potentially transmissible during the flight but this 
can be prevented if

[[Page 27649]]

certain conditions or precautions are implemented, the certificate 
would have to describe those conditions or precautions. Unlike the 
situation with respect to medical certificates under paragraph (b)(3), 
a medical certificate in the situation of a communicable disease under 
paragraph (d) would have to be dated within 10 days of the flight for 
which it is presented (not 10 days prior only to the passenger's 
initial departing flight). Under paragraph 382.21(c), if the section 
382.23(c)(2) medical certificate provides measures for preventing the 
transmission of a disease, the carrier must provide transportation to 
the passenger--carrying out the prescribed measures--unless the carrier 
determines that it is unable to carry out the measures. If the carrier 
is unable to do so, it can deny transportation to the passenger. In 
this event, the carrier's written explanation to the passenger under 
section 382.21(e) would include an explanation of why it was not able 
to carry out the measures identified in the medical certificate.
    A carrier may elect to subject a passenger with a medical 
certificate to additional medical review (e.g., by the carrier's 
physician) if the carrier believes either that there has been a 
significant adverse change in the passenger's medical condition since 
the issuance of the medical certificate or that the certificate 
significantly understates the passenger's risk to the health of other 
persons on the flight. If this additional review shows that the 
passenger is unlikely to be able to complete the flight without 
extraordinary medical assistance or would pose a direct threat to other 
passengers, the carrier could, notwithstanding the medical certificate, 
deny or restrict the passenger's transportation.
    We also note that, under section 382.117(e), airlines can require 
passengers traveling with emotional support or psychiatric service 
animals to provide certain documentation. This information is not a 
medical certificate in the sense articulated in section 382.23, but 
airlines are entitled to obtain this documentation as a condition of 
permitting the emotional support or psychiatric service animal to 
travel in the cabin with the passenger.

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

382.27 May a carrier require a passenger with a disability to provide 
advance notice in order to obtain specific services in connection with 
a flight?

    Carriers may not require a passenger with a disability to provide 
advance notice of the fact that he or she is traveling on a flight. 
That is, a carrier cannot say to a passenger, in effect, ``You have a 
disability; therefore, you must let me know in advance that you are 
going to fly on my aircraft, Flight XXX.''
    On the other hand, there is a series of accommodations that many 
passengers with disabilities may need or want that carriers reasonably 
require time to arrange. For these services, carriers may require up to 
48 hours' advance notice (i.e., 48 hours before the scheduled departure 
time of the flight) AND a check-in time one hour before the check-in 
time for the general public. That is, if passengers generally are told 
to arrive at the gate one hour before the scheduled departure time of 
the flight to check in, the carrier may tell passengers seeking one of 
these listed accommodations to check in two hours before the scheduled 
departure time for the flight. If the passenger with a disability meets 
the advance notice and check-in time requirements, the carrier must 
provide the requested accommodation. If not, the carrier must still 
provide the accommodation if it can do so by making reasonable efforts, 
without delaying the flight.
    Most of the services or accommodations for which a carrier can 
require advance notice are the same as under the existing regulation 
(e.g., transportation of an electric wheelchair on a flight scheduled 
to be made on an aircraft with fewer than 60 seats, accommodation for a 
group of 10 or more passengers with a disability who make reservations 
to travel as a group). It is important to note that, with respect to 
the onboard use of supplemental oxygen, advance notice can be required 
of a passenger whether the carrier provides the oxygen (i.e., via POC 
or containerized oxygen,) or the passenger brings his or her own POC 
for use during the flight. It should also be noted that when requesting 
carrier-supplied supplemental oxygen, advance notice of up to 48 hours 
for domestic flights and up to 72 hours for international flights may 
be required.
    There are a few new situations in which the rule permits carriers 
to require advance notice. These include transportation of an emotional 
support or psychiatric service animal, transportation of any service 
animal on a flight scheduled to take eight hours or more, and 
accommodation of an individual who has both severe vision and hearing 
impairments.

382.29 May a carrier require a passenger with a disability to travel 
with a safety assistant?

    The terminology of this section has been changed from ``attendant'' 
to ``safety assistant'' to more accurately reflect the role of the 
person accompanying the passenger. A safety assistant is not a personal 
care attendant who looks after the personal care needs of a passenger. 
A carrier cannot require a personal care attendant to travel with a 
passenger with a disability. Rather, the safety assistant is someone 
who would assist the passenger to exit the aircraft in case of an 
emergency evacuation or to establish communication with carrier 
personnel for purposes of the required safety briefing. People like 
passenger volunteers, an individual selected by the passenger, or 
deadheading crew members remain appropriate candidates to act as safety 
assistants.
    This section generally follows the model of the corresponding 
section of the existing regulation. However, with respect to the 
situation of a passenger with a severe mobility impairment, the 
criterion for permitting the carrier to require a safety assistant has 
been clarified to address circumstances where the passenger is unable 
to physically assist in his or her own evacuation. This change is made 
to avoid potential confusion that a passenger could assist in his or 
her own evacuation simply by calling for help.
    The ``Response to Comments'' section of the preamble describes in 
greater detail other changes, including a new advance notice 
requirement, that would apply to passengers who have both severe vision 
and hearing impairments. In section 382.29(b)(4), it is mentioned that 
a passenger with both severe hearing and vision impairments is 
responsible for explaining how he or she can establish communication 
adequate to permit transmission of the safety briefing and to enable 
the passenger to assist in his or her own evacuation of the aircraft in 
the event of an emergency. The new 48-hours' advance notice requirement 
is intended to give the carrier time to make any arrangements necessary 
to accommodate the passenger following this explanation. The language 
in section 382.29(b)(4) concerning the ability of a passenger to assist 
in his or her own

[[Page 27650]]

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 scheduled-service nonstop flight 
segments departing from a U.S. airport. It does not apply to flights 
departing from a foreign airport, whether operated by a U.S. or foreign 
carrier.

382.31 May carriers impose special charges on passengers with a 
disability for providing services and accommodations required by this 
rule?

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

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

382.35 May carriers require passengers with a disability to sign 
waivers or releases?

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

382.41 What flight-related information must carriers provide to 
qualified individuals with a disability?

    This provision is very similar to the corresponding provision of 
the existing rule. Carriers must provide information about the 
accessibility features of aircraft (e.g., the presence and location of 
seats that can be accessed through movable armrests, and seats not 
available to passengers with disabilities). In addition, carriers must 
provide information about any service limitations in accommodating a 
passenger with a disability. When level-entry boarding is not available 
on a particular flight, carriers must also provide information about 
boarding assistance requiring the use of a ramp or lift to all 
passengers who indicate that they will use a wheelchair for boarding, 
whether or not they specifically ask for the information.
    As a general matter under Part 382, when an agent acting on behalf 
of an airline provides inaccurate information to a passenger with a 
disability concerning a disability-related accommodation, in most 
instances the airline will be responsible for any resulting 
information-related violation of the law. It should also be noted that 
when a carrier agrees to provide a service not specifically required 
under this Part to accommodate a particular passenger's disability, the 
carrier is obliged to provide that service to the passenger or risk 
being found in violation of section 382.41. For example, if a carrier 
informs a passenger that it will accommodate his or her peanut allergy 
by not serving peanuts on his or her flight itinerary, the carrier must 
ensure that peanuts are not served on those flights or it will be in 
violation of section 382.41.

382.43 Must information and reservation services of carriers be 
accessible to individuals with hearing 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 Sec.  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 Sec.  382.43(a). We are also adding a new 
access requirement in Sec.  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 Sec.  
382.43(b), which states that the requirements of Sec.  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,

[[Page 27651]]

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.

382.45 Must carriers make copies of this Part available to passengers?

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

382.51 What requirements must carriers meet concerning the 
accessibility of airport facilities?

    The principal substance of airport facility accessibility 
requirements is the same for both U.S. and foreign carriers. Certain 
aspects of the requirements differ depending on whether the facility in 
question is located in the U.S. or in a foreign country.
    U.S. facilities that a carrier owns, controls, or leases must meet 
requirements applicable to Title III facilities under the Americans 
with Disabilities Act. The requirements are those of the Americans with 
Disabilities Act Accessibility Guidelines (ADAAG), as incorporated in 
Department of Justice (DOJ) ADA regulations implementing Title III. 
There must be an accessible path between gate and boarding area when 
level entry boarding is not available to an aircraft. The ADAAG 
reference in paragraph (a)(2) is to the former version of the ADAAG, 
which is still the version incorporated in the DOJ rules. When DOJ 
incorporates the new version of ADAAG in their Title III rules, we will 
update this reference.
    Inter-terminal and intra-terminal transportation owned, leased, or 
controlled by a carrier at a U.S. airport must meet DOT ADA rules. 
Since DOT has already incorporated the new version of ADAAG into its 
regulations, the new ADAAG's provision will apply to any features 
covered by the DOT rules. One new requirement at U.S. airports is to 
provide, in cooperation with the airport operator, animal relief areas 
for service animals that accompany passengers who are departing, 
arriving, or connecting at the facility.
    At foreign airports, to which the ADAAG do not apply, Part 382 
applies a performance requirement to make sure that passengers with a 
disability can readily use the facilities the carrier owns, leases, or 
controls at the airport. For foreign carriers, this requirement applies 
only to terminal facilities that serve flights that begin or end in the 
U.S (i.e., those covered by section 382.5). 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 audio-
visual displays that do not have a high-contrast captioning function 
with ones that do as these devices are replaced in the normal course of 
operations or when the airport facilities undergo substantial 
renovation or expansion. Fourth, we proposed a requirement that newly 
acquired televisions and other audio-visual displays be equipped with 
high-contrast captioning capability. We solicited comments both on 
these proposals and on whether any carriers have leases for terminal 
facilities at a U.S. airport whereby the airport retains control over 
the televisions and other audio-visual displays in that facility. If 
so, we said, we would consider requiring the carriers and airports to 
work together to enable captioning on equipment that has captioning 
capability and to replace equipment that does not have high-contrast 
captioning capability with equipment that does. (We also noted that all 
televisions with screens of at least 13 inches made or sold in the U.S. 
since July 1, 1993, have been required to have captioning 
capabilities.) We further solicited comment on whether televisions and 
other audio-visual displays equipped with captioning features would 
necessarily have high-contrast captioning (e.g., white letters on a 
consistent black background), whether such equipment may have some type 
of captioning other than ``high-contrast,'' and whether the 
availability of high-contrast captioning, as opposed to low-or medium-
contrast captioning, depends on the age, cost, or screen size of the 
equipment.
    None of the comments addressed the question of high- versus medium- 
versus low-contrast captioning. Most of the carriers and carrier groups 
that filed comments claimed not to have control over the audio-visual 
equipment at their terminal facilities. The individuals and disability 
organizations that filed comments strongly objected to different 
standards for audio-visual equipment in areas open to all passengers 
versus areas with restricted access, and all support captioning on all 
such equipment at all times.
    We are modifying the language of the proposed Sec.  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.

[[Page 27652]]

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.

382.57 What services must carriers provide if their automated kiosks 
are inaccessible?

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

382.61 What are the requirements for movable aisle armrests?

    This section is very similar to the movable aisle armrest 
provisions of the present rule. Armrests on at least half the aisle 
seats in rows containing seats in which passengers with mobility 
impairments are permitted to sit under FAA rules must be movable. If 
there are no seats in which a person with a mobility impairment can sit 
under FAA rules (e.g., an exit row), then that row does not constitute 
part of the base from which the calculation of half the rows is made, 
and of course such a row is not one in which a movable armrest is 
needed.
    The provision clarifies that movable aisle armrests must be 
provided proportionately in all classes of service. As discussed 
elsewhere in the preamble, if the seats in a given class of service, 
such as first class, can be accessed by a wheelchair user without a 
movable aisle armrest being provided, the carrier may request an 
equivalent alternative determination. Consistent with section 382.41, 
carriers must find ways of ensuring that passengers with disabilities 
can locate specific seats they can access with movable armrests.
    A carrier wishing to submit an equivalent alternative request 
concerning movable armrests must show the Department that, in fact, 
persons with mobility impairments using aisle and boarding wheelchairs 
can transfer horizontally into a given seat without being lifted over 
an armrest or other obstacle. The Department would not make such a 
determination based solely on the representation of the carrier that 
such transfers were possible. ``Show your work'' is the appropriate 
maxim. Diagrams could be one useful part of such a showing. What the 
Department recommends, however, is a video of a demonstration showing 
carrier personnel actually transferring passengers with disabilities--
preferably, passengers of various sizes--into the seat or row in 
question from an aisle or boarding chair.
    Carriers are not required to retrofit cabins of existing aircraft 
to install movable armrests. However, if a carrier replaces any of an 
aircraft's aisle seats with newly manufactured seats, at least half the 
replacement seats must have movable armrests. For example, if a carrier 
replaces four aisle seats with newly manufactured seats, then two of 
these seats have to have movable armrests. If the carrier is replacing 
an odd number of seats, a majority of the newly manufactured aisle 
seats installed must have movable armrests. For example, if the carrier 
is replacing five old aisle seats with newly manufactured seats, at 
least three of the newly manufactured aisle seats must have movable 
armrests. The Department does not intend this provision to require 
carriers to have more than 50% movable armrests in the cabin, however. 
For example, suppose an aircraft has 40 aisle seats, 20 of which have 
movable armrests. The carrier decides to replace five aisle seats that 
do not have movable armrests with newly manufactured seats. These new 
seats would not have to include movable armrests.
    The timing of the application of these requirements is as follows: 
Foreign carriers must comply with ``new aircraft'' requirements with 
respect to planes ordered after the effective date of this Part or 
delivered more than one year after the effective date of this Part. 
Foreign carriers must comply with the requirement for replacement seats 
(paragraph (e)) beginning on the effective date of the rule. U.S. 
carriers are already subject to the requirements of this section, 
except the proportionality requirement (paragraph (c)) with respect to 
aircraft ordered after April 5, 1990 or delivered after April 5, 1992. 
When we say ``new aircraft'' in this context, we mean aircraft that 
were new at the time they were ordered by or delivered to the U.S. 
carrier. U.S. carriers will have to comply with paragraph (c) for new 
aircraft ordered after the effective date of this Part or which are 
delivered more than one year after the effective date of this Part. 
With respect to the purchase of used aircraft, in this section and 
similar places, the date the aircraft was originally ordered from the 
manufacturer or initially delivered by the manufacturer determines 
whether the aircraft is subject to the aircraft accessibility 
requirements of this Part.

382.63 What are the requirements for accessible lavatories?

    As under the present rule, only aircraft with more than one aisle 
must have an accessible lavatory. U.S. carriers are already subject to 
these requirements for new aircraft they ordered after April 5, 1990, 
or which were delivered after April 5, 1992. Foreign carriers must 
comply with respect to new aircraft ordered after the effective date of 
the rule or delivered more than one year after the effective date.
    Also, if a carrier replaces a lavatory on an aircraft with more 
than one aisle it must replace the lavatory with an accessible unit. A 
carrier need not have more than one accessible lavatory on an

[[Page 27653]]

aircraft, however. This requirement already applies to U.S. carriers 
for new aircraft they ordered after April 5, 1990, or which were 
delivered after April 5, 1992. It will begin to apply to foreign 
carriers on the effective date of the rule.

382.65 What are the requirements concerning on-board wheelchairs?

    These requirements are also patterned on the existing rule. In 
aircraft with more than 60 passenger seats, carriers must provide an 
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 new aircraft ordered 
after the effective date of the rule or delivered more than one year 
after the effective date.

382.69 What requirements must carriers meet concerning the 
accessibility of videos, DVDs, and other audio-visual presentations 
shown on aircraft to individuals who are deaf or hard of hearing?

    This section requires carriers to ensure that all new videos, DVDs, 
and other audio-visual displays played on aircraft for safety purposes, 
and all such audio-visual displays played on aircraft for informational 
purposes that were created under the carrier's control, are high-
contrast captioned. The captioning must be in the predominant language 
or languages in which the carrier communicates with passengers on the 
flight. If the carrier communicates regularly in more than one language 
(e.g., French and English on a Canadian air carrier), then the 
captioning must be in all of those languages. By saying that this 
section applies to ``new'' videos, we mean that carriers are not 
required to retrofit or replace existing videos.
    For purposes of this section, we view a video as being controlled 
by a carrier not only if the carrier directly produces it, but if a 
contractor or other party produces the video for the carrier's use, 
with the carrier having significant editorial control or approval of 
the video's content. Note that the provision about carrier control of a 
video applies only to informational materials. Safety materials must be 
captioned in all cases.
    The requirements of this section go into effect 180 days after the 
effective date of the rule with respect to safety videos, and 240 days 
after the effective date of the rule with respect to informational 
videos. This timing is the same for both U.S. and foreign carriers. The 
corresponding section of the current version of Part 382 permits 
carriers to use a non-video alternative only if neither open captioning 
nor a sign language interpreter inset can be used without so 
interfering with the video as to render it ineffective. This exception 
is not included in the new rule. The overall effective date of the rule 
is one year after the rule is published, but, as indicated above, 
carriers are not required to implement the provision concerning videos 
in the new rule until 180 to 240 days after that overall effective 
date. Consequently, starting on the overall effective date (i.e., one 
year after the rule is published) there would be no requirement in 
effect on this subject for U.S. carriers. In order to avoid such a 
situation, as a bridge between the current Part 382 and the new Part 
382 U.S. carriers are required to comply with a requirement identical 
to the current rule's provision on safety videos between the effective 
date of the new rule and 180 days after that date.

382.71 What other aircraft accessibility requirements apply to 
carriers?

    This provision, like its counterpart in the existing rule, requires 
maintenance of accessibility features in proper working order and tells 
carriers to ensure that any replacement or refurbishing of cabin 
features does not reduce existing accessibility.

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

[[Page 27654]]

second flight of the two) will provide this assistance, but the carrier 
operating the arriving flight remains responsible under this section 
for ensuring that the assistance is provided.
    The requirements concerning movement through the terminal are 
clarified to say that the carrier's assistance responsibility starts at 
the terminal entrance and goes through the airport to the gate for a 
passenger arriving to take a flight, and vice-versa for a passenger 
leaving the airport after a flight.
    One addition concerns enroute stops at the entrance to a rest room. 
If the passenger is being assisted along the basic route from entrance 
to gate or vice-versa, or to make a connection, and the route goes by a 
rest room, the person assisting the passenger must stop and allow the 
passenger to use the amenity, if doing so will not result in 
unreasonable delay. To receive this assistance, the passenger must 
self-identify. It could also be very helpful to a passenger to be able 
to stop at a takeout food or beverage vendor that was enroute, 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 gate-checked luggage to or from the 
gate. This obligation would arise only if the passenger could make 
credible verbal assurances of his or her inability to carry the item 
due to his or her disability. If the passenger's verbal assurances to 
the carrier are not credible, the carrier may require the passenger to 
produce documentation as a condition of providing the service. All the 
services mentioned in this paragraph would be provided only on request 
of a passenger with a disability.
    At foreign airports, as mentioned in connection with the terminal 
accessibility section, airport operators may be the basic providers of 
terminal services. The carrier may rely on these services, but would 
have to supplement them if they did not fully comply with the 
provisions of this Part.

382.93 Must carriers offer preboarding to passengers with a disability?

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

382.95 What are carriers' general obligations with respect to boarding 
and deplaning assistance?

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

382.97 To which aircraft does the requirement to provide boarding and 
deplaning assistance through the use of lifts apply?

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

382.99 What agreements must carriers have with the airports they serve?

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

382.101 What other boarding and deplaning assistance must carriers 
provide?

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

382.103 May a carrier leave a passenger unattended in a wheelchair or 
other device?

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

382.105 What is the responsibility of carriers at foreign airports at 
which airport operators have responsibility for enplaning, deplaning, 
or connecting assistance?

    This section reemphasizes that at a foreign airport where airport 
operators have this responsibility, both U.S and foreign carriers can 
rely on the airport operator's services. If these services do not fully 
meet the requirements of this

[[Page 27655]]

Part, then the carrier must supplement the airport operator's services 
to ensure that the requirements are met. If a carrier believes that it 
is legally precluded from supplementing the airport operator's 
services, it can apply for a conflict of laws waiver.

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

382.113 What services are carriers not required to provide to 
passengers with a disability on board the aircraft?

    These sections are parallel to their counterparts in the existing 
rule. Personal care services like assistance in actual eating and 
drinking are not required, but more limited assistance such as 
assisting with the opening of packages is required.

382.115 What requirements apply to on-board safety briefings?

    This provision also parallels its counterpart in the existing rule.

382.117 Must carriers permit passengers with a disability to travel 
with service animals?

    This section has been made more detailed than the current rule's 
service animal provision, in response to the comments discussed earlier 
in the preamble. 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 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 
safety-related reasons for excluding animals that may be specific to 
foreign carriers.
    Near the end of this preamble, the Department has included a 
revised guidance document containing further discussion of service 
animal matters. With the exception of changes discussed earlier in the 
preamble, this guidance document incorporates the guidance the 
Department issued on service animal matters in May 2003. As guidance, 
it does not have independent mandatory effect, but rather describes how 
the Department understands the requirements of section 382.117. It also 
makes suggestions and recommendations concerning how carriers can best 
accommodate service animals and their users.
    The guidance document notes that carriers can properly apply the 
same policies to ``psychiatric service animals'' as they do for 
emotional support animals. This is because carriers and the Department 
have encountered instances of attempted abuse of service animal 
transportation policies by persons traveling with animals in both 
categories. Should the Department encounter a pattern of abuse 
concerning service animals in other categories, we can consider 
additional safeguards with respect to those categories as well.
    We would call also readers'' attention to recent DOT guidance 
concerning the transportation of service animals into the United 
Kingdom. ``Guidance Concerning the Carriage of Services Animals in Air 
Transportation Into the United Kingdom'' (February 26, 2007) discusses 
the transportation of service dogs and cats into the U.K. via U.S. and 
foreign carriers. To transport service animals into the U.K., carriers 
must participate in the U.K. Pet Travel Scheme. A supplementary DOT 
guidance document, ``Carriage of Service Animals in Air Transportation 
Into the United Kingdom and Foreign Health Documentation Requirements 
for Service Animals in Air Transportation'' (July 17, 2007), provides 
further information for carriers and the public concerning carriage of, 
and documentation needed for, carriage of service animals into 
countries other than the U.K.
    These documents may be found on the Department's Aviation Consumer 
Protection Division website.

382.119 What information must carriers give individuals with vision or 
hearing impairment on aircraft?

    This section requires that carriers ensure that passengers with a 
disability who identify themselves as needing visual or hearing 
assistance have prompt access to the same information provided to other 
passengers on the aircraft. In providing this information, carriers are 
not required to take steps that would interfere with crewmembers' 
safety duties as set forth in FAA and applicable foreign regulations.
    The covered information includes, but is not limited to, 
information concerning flight safety, procedures for takeoff and 
landing, flight delays, schedule or aircraft changes that affect the 
travel of persons with disabilities, diversion to a different airport, 
scheduled departure and arrival time, boarding information, weather 
conditions at the flight's destination, beverage and menu information, 
connecting gate assignments, baggage claim (e.g., at which carousel an 
arriving flight's bags may be retrieved), individuals being paged by 
airlines, and emergencies (e.g., fire or bomb threat). The requirement 
of this section applies whether the information is provided to 
passengers by the carrier in the aircraft or in the terminal (e.g., the 
gate area).
    We intend to require carriers to provide information that a 
reasonable consumer would deem important, even if it falls outside the 
list in Sec.  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

[[Page 27656]]

aircraft is flying over the Grand Canyon to be covered by this rule.

382.121 What mobility aids and other assistive devices may passengers 
with a disability bring into the aircraft cabin?

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

382.123 What are the requirements concerning priority cabin stowage for 
wheelchairs and other assistive devices?

    This section is related to the requirements for priority stowage 
spaces in section 382.67 and an opportunity to preboard in section 
382.93. A passenger who takes advantage of the offer to preboard can 
stow his or her wheelchair in the aircraft's priority stowage area, 
with priority over other passengers' items brought onto the aircraft at 
the same airport, consistent with applicable safety and security 
regulatory requirements. The passenger's wheelchair also takes priority 
over items that may be stowed in the space by the carrier and its 
personnel, such as on-board wheelchairs or crew luggage, even if these 
items came on board at an earlier stop of the plane's itinerary. If 
such items are in the space when a wheelchair user comes on board, they 
must be moved to accommodate the passenger's wheelchair. Carriers must 
also offer this opportunity for other assistive devices, though 
wheelchairs retain priority. Passengers with wheelchairs or other 
assistive devices who do not preboard must still be allowed to use the 
priority stowage areas for their devices, but their use of the space is 
on a first-come-first-served basis with respect to other passengers' 
items.
    Some U.S. carriers have used the so-called ``seat-strapping'' 
method of securing passengers' wheelchairs in the cabin, usually in 
situations in which, contrary to the existing rule in some cases, 
aircraft did not have closets or other spaces capable of accommodating 
the wheelchairs. The Department does not believe that this is a good 
long-term approach to carrying passenger wheelchairs in the cabin, 
especially in these times of frequently full flights. The Department 
emphasizes that providing priority stowage spaces as required by 
section 382.67 is essential. To limit the ability of carriers to use 
the seat-strapping method as a way of getting around the designated 
priority stowage requirement, carriers may not use the seat-strapping 
method in any aircraft ordered after the effective date of this Part or 
delivered more than two years after the rule's effective date.

382.125 What procedures do carriers follow when wheelchairs, other 
mobility aids, and other assistive devices must be stowed in the cargo 
compartment?

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

382.127 What procedures apply to the stowage of battery-powered 
mobility aids?

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

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

382.131 Do baggage liability limits apply to mobility aids and other 
assistive devices?

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

382.133 What are the requirements concerning the evaluation and use of 
passenger-owned electronic devices that assist passengers with 
respiration in the cabin during flight and do not contain hazardous 
materials?

    The basic point of this section is that, with minor exceptions, 
carriers must permit passengers with a disability to use a portable 
oxygen concentrator (POC) and other respiratory assistive devices in 
the cabin. Such devices must meet FAA or foreign government 
requirements, as applicable, and display a manufacturer's label that 
indicates that the device meets the FAA or foreign government 
requirements.
    When a passenger asks a carrier about bringing his or her 
electronic respiratory assistive device, the carrier must tell the 
passenger about the requirements for carrying such a device on board, 
touching on such matters as meeting FAA requirements, having the 
manufacturer's label, bringing an adequate number of fully charged 
batteries, any check-in or advance notice requirements, medical 
certificate requirements, and the expected duration of the flight. 
Carriers may insist on passengers bringing on board fully charged 
batteries adequate to last for 150 percent of the expected maximum 
flight duration. If a passenger does not comply with the conditions 
outlined in the rule, the carrier can deny him or her transportation on 
the flight.

382.141 What training are carriers required to provide for their 
personnel?

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

382.143 When must carriers complete training for their personnel?

    Employees of U.S. carriers that have already received initial 
training must be trained on changes to Part 382 at their next recurrent 
training after the rule goes into effect or within one year after the 
effective date of the rule, whichever comes first. New crewmembers have 
to be trained before they assume their duties. Other employees new to a 
position must be trained within 60 days after starting their jobs. 
Current employees of foreign carriers that serve flights covered by the 
rule must be trained within a year after the effective

[[Page 27657]]

date of the rule. After that date, new crewmembers must be trained 
before assuming their duties, and other new employees within 60 days 
after when they assume their duties. For employees who fall in between 
these categories--those who start work during the first year after the 
effective date of the rule--training must occur before the second 
anniversary of the effective date of the rule or 60 days from their 
start date, whichever is later.
    While the rule provides a reasonable amount of time for employees 
to be trained, carriers are nevertheless responsible for violations 
that occur between the effective date of the rule and the training 
deadlines. We strongly encourage carriers to expedite their training 
schedules so that as many employees as possible are trained by the 
final rule's effective date.
    To ensure that foreign carriers have resource persons to deal with 
disability issues as soon as possible, foreign carriers will have to 
complete training for CROs, and U.S. carriers will have to complete 
training for CROs about changes in Part 382, by the effective date of 
the rule. Given the critical role played by CROs in carriers' 
implementation of the rule, it is essential for CROs to be trained 
before the rule becomes effective. U.S. carriers have been subject to 
requirements to train CROs under the existing rule, and additional 
training for these CROs should be limited in scope, since it would need 
only to cover changes between the existing rule and this final rule. 
Since foreign carriers will have a year between the publication of the 
rule and its effective date, they too should have adequate time to 
train CROs by the effective date of the rule.

382.145 What records concerning training must carriers retain?

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

382.151 What are the requirements for providing Complaints Resolution 
Officials?

    The CRO requirement is essentially the same as under the current 
rule. U.S. carriers must make a CRO available--either in person or via 
telephone--at each airport the carrier serves, at all times the carrier 
is operating at the airport. Foreign carriers must make a CRO available 
at each airport serving flights the carrier operates that begin or end 
at a U.S. airport. The Department realizes that, in some cases, 
carriers operate covered flights infrequently. For example, a foreign 
carrier may fly from Dulles to a foreign airport only at 5 p.m. on 
Mondays and Thursdays. On other days, and on Monday and Thursday 
mornings for that matter, the foreign airline would not have to make a 
CRO available to persons at Dulles. CRO services would have to be made 
available in languages in which the carrier provides services to the 
general public.
    This rule clarifies that carriers are responsible for making 
passengers aware of the availability of a CRO in some circumstances 
even if the passenger does not say ``I want to talk to a CRO.'' If a 
passenger raises a disability-related concern, and the carrier's 
personnel do not immediately resolve the issue to the customer's 
satisfaction, the carrier must say, in effect, ``We have a CRO 
available that you can talk to about this problem if you want to. The 
CRO is our resource person who can help solve disability-related 
issues. Here is where you can find, or call, our CRO.''
    CROs must have authority to definitively resolve complaints. This 
means they must have the power to overrule decisions of other carrier 
personnel, except that they are not required to have authority to 
countermand a safety decision of a pilot-in-command of an aircraft. Of 
course, even decisions of pilots, if they later are shown to be in 
noncompliance with this rule, can subject the carrier to DOT 
enforcement action.

382.153 What actions do CROs take on complaints?

382.155 How must carriers respond to written complaints?

    CROs are to promptly take action to resolve complaints made to 
them. In some cases, CROs can take quick action to prevent a potential 
violation (e.g., a threatened denial of service) from becoming a real 
violation. If a CRO determines that a violation has already occurred, 
the CRO must write the complainant and describe the carrier's 
corrective action. Of course, not all complaints have merit, and if the 
CRO decides that a violation did not occur, the CRO must also write the 
complainant and explain this determination. CRO responses are due 30 
days from the date of the complaint.
    Often, complaints to carriers may be made in writing (letters, e-
mails etc.). These complaints may or may not have been processed 
through the carrier's CRO, though they need to state whether a CRO was 
involved. Except for complaints DOT refers to a carrier, the carrier is 
not required to respond to a complaint transmitted more than 45 days 
after the incident in question. The carrier must respond within 30 
days.

382.157 What are carriers obligations for recordkeeping and reporting 
on disability-related complaints?

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

382.159 How are complaints filed with DOT?

    Changes from the corresponding provision of the existing regulation 
include a time frame for filing informal complaints, a change of postal 
address for sending an informal complaint by mail, and the Web address 
for filing an informal complaint on the Air Consumer 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

[[Page 27658]]

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:
---------------------------------------------------------------------------

    \3\ 61 FR 56409, 56420 (Nov. 1, 1996).
---------------------------------------------------------------------------

    (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 Sec.  382.117 of this Part by 
carriers.

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.
---------------------------------------------------------------------------

    \4\ See Glossary for definition of this and other terms.
---------------------------------------------------------------------------

    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.
    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 
Sec.  382.117(a).
    [rtarr9] 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.
    [rtarr9] 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 aircraft, where the animal can be 
accommodated, as an alternative to requiring that the animal travel in 
the cargo hold (see Sec.  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 Sec.  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 Sec.  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:
    [rtarr9] ``What tasks or functions does your animal perform for 
you?'' or
    [rtarr9] ``What has it been trained to do for you?'' or
    [rtarr9] ``Would you describe how the animal performs this task (or 
function) for you?''

[[Page 27659]]

     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 disability-related 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 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 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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[[Page 27660]]

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\
---------------------------------------------------------------------------

    \6\ See Glossary.
---------------------------------------------------------------------------

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?
     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.

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 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

[[Page 27661]]

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-in-command 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., accept the animal for carriage in the cargo compartment 
at no cost to the passenger).
What about unusual service animals?
     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.
Are there any situations in which an animal would not be permitted to 
accompany its user on the flight?
    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.
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).

[[Page 27662]]

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
    [rtarr8] 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 with a service 
animal that may not be able to be seated in his or her original seat 
location.)
    [rtarr8] Denying transportation to any individual on a flight in 
order to provide an accommodation to a passenger with a service animal;
    [rtarr8] Furnishing more than one seat per ticket; and
    [rtarr8] 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 non-disabled 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 
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

[[Page 27663]]

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 well-being 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-
of-hearing 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$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Cabin
                                                           stowage
                                 Boarding                area for on-                                        Total        Net        Total        Net
                                 equipment                  board                  Personnel                carrier     carrier     carrier     carrier
                                  (lifts/     On-board    wheelchair  Accessible   training      Total     benefits    benefits    benefits    benefits
                                  ramps,    wheelchairs      and      lavatories     costs    costs ($M)    high MC     high MC     low MC      low MC
                                  chairs)                passenger's                                       case ($M)   case ($M)   case ($M)   case ($M)
                                                           folding
                                                          wheelchair
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Low Impact Case:
     Present Value over 20           1.161        2.507        0.260     138.373      22.959       165.3       112.0       -53.3       179.2        13.9
     years....................
     Year 20 undiscounted.....       0.010        0.061        0.044      32.132       2.769        35.0        35.8         0.8        57.2        22.2
High Impact Case:
     Present Value over 20           2.245        3.051        0.260     276.747      45.917       328.2       224.0      -104.2       358.4        30.2
     years....................
     Year 20 undiscounted.....       0.013        0.075        0.044      64.264       5.539        69.9        71.5         1.6       114.5        44.5
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 27664]]


                                                            Table B.--Summary of Deaf and Hard-of-Hearing Cost and Benefit Estimates
                                                                                        [Millions 2005$]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        Total       Net       Total       Net
                                                                    Assistants'                          Captioning    Public                Total     carrier    carrier    carrier    carrier
                                                                       fares     Reservation   Copy of   in waiting  announce-  Awareness    costs     benefits   benefits   benefits   benefits
                                                                      forgone        TTY       part 382     areas      ments     training     ($M)     high MC    high MC     low MC     low MC
                                                                                                                                                      case ($M)  case ($M)  case ($M)  case ($M)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Low Impact Case:
    Present value over 20 years...................................       3.500        2.420       0.108       0.250      1.400     80.000       87.7      110.1       22.4      176.2       88.5
     Year 20 undiscounted.........................................       0.500        0.080       0.000       0.017      0.000      6.400        7.0       16.4        9.4       26.2       19.2
High Impact Case:
     Present Value over 20 years..................................       7.000        4.840       0.216       0.500      2.800    160.000      175.4      220.2       44.9      352.4      177.0
     Year 20 undiscounted.........................................       1.000        0.160       0.000       0.034      0.000     12.800       14.0       32.7       18.7       52.3       38.3
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                         Table C.--Summary of Medical Oxygen Cost and Benefit Estimates
                                                [Millions 2005$]
----------------------------------------------------------------------------------------------------------------
                                                                 Total                     Total
                                                                carrier    Net carrier    carrier    Net carrier
                                                 Total costs    benefits     benefits     benefits     benefits
                                                     ($M)       high MC      high MC    low MC case  low MC case
                                                               case ($M)    case ($M)       ($M)         ($M)
----------------------------------------------------------------------------------------------------------------
Low Impact Case:
    Present Value over 20 years................         97.2        449.8        352.6        719.7        622.5
    Year 20 undiscounted.......................         15.9         76.3         60.4        122.2        106.3
High Impact Case:
    Present Value over 20 years................        194.4        899.6        705.2      1,439.4      1,245.0
    Year 20 undiscounted.......................         31.8        152.7        120.9        244.3        212.5
----------------------------------------------------------------------------------------------------------------


                                 Table D.--Aggregate Cost and Benefit Estimates
                                                [Millions 2005$]
----------------------------------------------------------------------------------------------------------------
                                                                 Total                     Total
                                                                carrier    Net carrier    carrier    Net carrier
                                                 Total costs    benefits     benefits     benefits     benefits
                                                     ($M)       high MC      high MC    low MC case  low MC case
                                                               case ($M)    case ($M)       ($M)         ($M)
----------------------------------------------------------------------------------------------------------------
Low Impact Case:
    Present Value over 20 years................        350.1        671.9        321.8      1,075.1        724.9
    Year 20 undiscounted.......................         57.9        128.5         70.6        205.6        147.6
High Impact Case:
    Present Value over 20 years................        698.0      1,343.9        645.9      2,150.2      1,452.2
    Year 20 undiscounted.......................        115.7        256.9        141.2        411.1        295.4
----------------------------------------------------------------------------------------------------------------

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 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.
    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

[[Page 27665]]

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.
    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 disability-related 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 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.

0
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?

[[Page 27666]]

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-of-hearing?
382.71 What other aircraft accessibility requirements apply to 
carriers?
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?
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?
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 on-board 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?
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?
382.145 What records concerning training must carriers retain?
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


Sec.  382.1  What is the purpose of this Part?

    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.


Sec.  382.3  What do the terms in this rule mean?

    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 
mobility-related 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

[[Page 27667]]

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 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--
    (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.


Sec.  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.


Sec.  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.

[[Page 27668]]

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 Frankfurt-
originating 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.

    (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 code-sharing 
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 Frankfurt-Prague 
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 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, Sec. Sec.  382.17 through 
382.157 of this Part do not apply, except insofar as Sec.  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.


Sec.  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 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.

[[Page 27669]]

Sec.  382.10  How does a U.S. or foreign carrier obtain a determination 
that it is providing an equivalent alternative to passengers with 
disabilities?

    (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


Sec.  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 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 Sec. Sec.  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.


Sec.  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.


Sec.  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 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 Sec. Sec.  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.


Sec.  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 Sec.  382.27(b)(6) of this 
Part.)


Sec.  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

[[Page 27670]]

poses a direct threat (see definition in Sec.  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.


Sec.  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.
    (b) In assessing whether the passenger's condition poses a direct 
threat, you must apply the provisions of Sec.  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 HIV-positive 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 Sec.  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.


Sec.  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.
    (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.,

[[Page 27671]]

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 Sec.  382.23(a) of this Part.


Sec.  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.


Sec.  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 
Sec. Sec.  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 in-flight 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
    (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 Sec.  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.


Sec.  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 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

[[Page 27672]]

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.


Sec.  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.


Sec.  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 Sec.  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.


Sec.  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 pre-existing damage to an assistive device 
to the same extent that carriers do this with respect to other checked 
baggage.

Subpart C--Information for Passengers


Sec.  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 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, service-related 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 
Sec. Sec.  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.


Sec.  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).

[[Page 27673]]

    (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.


Sec.  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 Toll-Free 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 (http://airconsumer.ost.dot.gov).

Subpart D--Accessibility of Airport Facilities


Sec.  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 level-entry loading bridges or accessible passenger lounges to and 
from an 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 audio-visual 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 high-contrast 
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 high-contrast 
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 Sec.  
382.7 of this part.
    (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 level-entry 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.


Sec.  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

[[Page 27674]]

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.


Sec.  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 necessitating a physical 
search of the person, you are not required to provide a private 
screening.


Sec.  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


Sec.  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.
    (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.


Sec.  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 on-board wheelchair.
    (2) The accessible lavatory must afford privacy to persons using 
the on-board 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

[[Page 27675]]

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.


Sec.  382.65  What are the requirements concerning on-board 
wheelchairs?

    (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 Sec.  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 on-board wheelchair.
    (2) You may require the passenger to provide the advance notice 
specified in Sec.  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.


Sec.  382.67  What is the requirement for priority space in the cabin 
to store passengers' wheelchairs?

    (a) As a carrier, you must ensure that there is a priority space in 
the cabin of 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.


Sec.  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 audio-visual 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 high-contrast 
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.


Sec.  382.71  What other aircraft accessibility requirements apply to 
carriers?

    (a) As a carrier, you must maintain all aircraft accessibility 
features in proper working order.
    (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


Sec.  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 Sec.  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

[[Page 27676]]

side of an aisle that better accommodates the individual's disability.


Sec.  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 Sec.  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 Sec.  382.81.
    (i) You must not assign these seats to passengers who do not meet 
the criteria of Sec.  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 Sec.  382.81 who requests it, at the time the passenger 
initially makes the request.
    (iii) If a passenger with a disability specified in Sec.  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 Sec.  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 Sec.  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 Sec.  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 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 Sec.  382.81 does 
not check in at least an hour before the standard check-in 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 Sec.  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 Sec.  382.159 of this Part.


Sec.  382.85  What seating accommodations must carriers make to 
passengers in circumstances not covered by Sec.  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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 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 Sec.  
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 Sec.  
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 
Sec.  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).


Sec.  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 Sec.  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

[[Page 27677]]

circumstance described in Sec.  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


Sec.  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 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 
Sec.  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.


Sec.  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.


Sec.  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 deplaning by level-entry 
loading bridges or accessible passenger lounges is not available.


Sec.  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.


Sec.  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 Sec.  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

[[Page 27678]]

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.


Sec.  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 Sec.  382.97 (a)-
(c) of this subpart;
    (d) The deadlines established in Sec.  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.


Sec.  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 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.


Sec.  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 
Sec.  382.9 of this Part.

Subpart H--Services on Aircraft


Sec.  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 delays, 
connecting gates at the next airport).


Sec.  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.


Sec.  382.115  What requirements apply to on-board 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.


Sec.  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

[[Page 27679]]

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 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).


Sec.  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).

Subpart I--Stowage of Wheelchairs, Other Mobility Aids, and Other 
Assistive Devices


Sec.  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 non-spillable 
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.


Sec.  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 Sec.  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

[[Page 27680]]

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 Sec.  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 seat-strapping 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.


Sec.  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, 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.


Sec.  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 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.


Sec.  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.


Sec.  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

[[Page 27681]]

destroyed wheelchair or other assistive device shall be the original 
purchase price of the device.


Sec.  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 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:
    (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

[[Page 27682]]

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


Sec.  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 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 Sec.  
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.


Sec.  382.143  When must carriers complete training for their 
personnel?

    (a) As a U.S. carrier, you must meet the training requirements of 
Sec.  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 Sec.  382.151 (see Sec.  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 Sec.  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,

[[Page 27683]]

2009, but before May 13, 2010, by May 13, 2010 or a date 60 days after 
the date of their employment, whichever is later.


Sec.  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


Sec.  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 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.


Sec.  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.
    (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.


Sec.  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.


Sec.  382.157  What are carriers' obligations for recordkeeping and 
reporting on disability-related complaints?

    (a) For the purposes of this section, a disability-related 
complaint means a specific written expression of dissatisfaction 
received from, or

[[Page 27684]]

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 disability-related 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: http://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 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 code-sharing 
partner.
    (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 disability-related 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.


Sec.  382.159  How are complaints filed with DOT?

    (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 http://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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Appendix B to Part 382--Cross-Reference Table

    The Department is providing the following table to assist users 
familiar with the current Part 382 in finding material in the new, 
renumbered Part 382.

                   Section Numbers: Old and New Rules
------------------------------------------------------------------------
                                   New section
      Old section (382.x)            (382.x)              Subject
------------------------------------------------------------------------
General provisions:
    1.........................  1................  Purpose.
    3.........................  7................  Applicability.
    5.........................  3................  Definitions.
    7.........................  11, 13...........  Non-discrimination
                                                    generally.
    9.........................  15...............  Contractors.
Aircraft accessibility:
    21(a)(1)..................  61...............  Movable armrests.
    21(a)(2)..................  67...............  Stowage space in
                                                    cabin for passenger
                                                    wheelchair.
    21(a)(3)..................  63...............  Accessible
                                                    lavatories.
    21(a)(4)..................  65...............  Carrier-supplied on-
                                                    board wheelchair.
    21(e) and (f).............  71...............  Aircraft
                                                    accessibility:
                                                    miscellaneous.
Airport accessibility:
    23........................  51...............  General.
    (New).....................  53...............  Vision/hearing
                                                    impairments.
Services and information:
    31........................  19...............  Refusal of
                                                    transportation.
    31(c).....................  17...............  Number limits.
    33........................  25, 27...........  Advance notice
                                                    requirements.
    35........................  29...............  Safety assistants
                                                    (formerly
                                                    ``attendants'').
    37........................  87(a)............  Seat assignments.
    38........................  81 through 87....  Seating
                                                    accommodations.
    39(a).....................  91 through 105...  Enplaning, deplaning
                                                    and connecting
                                                    assistance.
    39(b).....................  111 through 119..  Assistance in cabin.
    40 and 40a................  99...............  Mechanical lifts.
    41........................  121 through 133..  Stowage of assistive
                                                    devices.
    43(a).....................  129(b)...........  Timely return of
                                                    assistive devices.
    43(b).....................  131..............  Liability limits.
    43(c).....................  35...............  Liability waivers.
    45(a).....................  41...............  Access to information
                                                    (general).
    45(b).....................  115..............  Individual safety
                                                    briefings.
    45(c).....................  119..............  Access to information
                                                    in airport and
                                                    aircraft.
    45(d).....................  45...............  Availability of copy
                                                    of rule.
    47(a).....................  43...............  TTY's and
                                                    reservations
                                                    systems.
    47(b).....................  69...............  Accessibility of
                                                    videos on aircraft.
    49........................  55...............  Security screening.
    51........................  21...............  Communicable
                                                    diseases.
    53........................  23...............  Medical certificates.
    55(a).....................  117..............  Service animals.
    55(b).....................  33...............  Sitting on blankets.
    55(c).....................  33...............  Restricting movement.
    55........................  31...............  Charges for
                                                    accommodations.
Administrative provisions:
    61........................  141, 143.........  Training.
    63(c) and (d).............  145..............  Manuals; directed
                                                    changes.
    65(a).....................  151, 153.........  Complaints Resolution
                                                    Officials.
    65(b).....................  155, 157.........  Written complaints to
                                                    carriers.
    65(c) and (d).............  159..............  Complaints to DOT.
------------------------------------------------------------------------

[FR Doc. 08-1228 Filed 5-7-08; 9:02 am]
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