persuaded that responsibility for electromagnetic interference testing
of the four types of electronic respiratory assistive devices covered
in the Oxygen NPRM should be borne by the manufacturers of such devices
rather than the carriers. However, this regulation does not mandate
manufacturer testing. The FAA is considering whether to issue an NPRM
in which the agency would propose to require manufacturers that want to
market their ventilators, respirators, CPAP machines, and FAA-approved
POCs for passenger use on aircraft to test those devices against FAA-
prescribed performance standards and affix a label to each device
stating that it meets the applicable standards prescribed in the
federal aviation regulations. If the FAA decides to issue such an NPRM,
the NPRM would clarify that those manufacturers that do not intend to
market their devices for use on aircraft would be under no obligation
to conduct any testing and would not be permitted to affix a label
indicating FAA approval. The manufacturers that want to market such
devices for use on aircraft but whose devices fail to meet the
performance standards would also not be permitted to affix a label
indicating FAA approval. Moreover, the FAA will consider whether to
include other proposals in that NPRM, including specifying how a
carrier would ``verify'' whether the aforementioned electronic
respiratory assistive devices meet FAA performance standards.
    In this rulemaking, we are strongly encouraging manufacturers that
market their electronic respiratory assistive devices for use by
passengers on aircraft to test their devices to determine whether they
meet FAA electromagnetic and radio frequency interference emission
standards set forth in FAA Advisory Circular No. 91.21-1B, and if they
do so, to label the devices as FAA-compliant. The label should indicate
that the device is approved for air travel (i.e., the device can be
used safely during all phases of travel). The FAA generally prohibits
the operation of portable electronic devices aboard U.S. registered
civil aircraft while operating under instrument flight rules. See 14
CFR 91.21. However, the FAA through its Advisory Circular No. 91.21-1B
allows U.S. carriers to permit passengers to use onboard the aircraft
specified portable electronic devices (including the four types of
respiratory devices addressed in this rulemaking) that have been tested
by the manufacturer and found to not exceed the maximum level of
radiated radio frequency interference as described in section 21,
Category M of RTCA Document (DO)-160 while in all modes of operation,
without any further testing by the carrier to establish compliance with
this performance standard. It is worth noting that the FAA does not
have a prohibition on the operation of portable electronic devices
aboard civil aircraft registered in a country other than the United
States.
    This rule requires U.S. carriers to permit individuals to use
electronic respiratory assistive devices in the passenger cabin so long
as the devices have been tested and labeled by their manufacturer(s) as
meeting the

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

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

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

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

B. Carrier-Supplied Oxygen

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

Service Animal Issues

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

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

During the one and a half years preceding the issuance of the Foreign
Carriers NPRM during which the guidance had been available, and during
the over three years since the Foreign Carriers NPRM has been issued,
there have been few if any instances brought to the attention of the
Department in which service animals have been denied transportation,
separated from their owners, or charged for an extra seat. Despite this
apparent lack of problems in the real world of air travel, hundreds of
comments expressed the fear that Department was proposing new
regulations that would unfairly limit the travel opportunities of
service animal users. Many of these comments suggested that there were
no circumstances under which a service animal should be denied
transportation in the cabin. If there were space limitations concerning
accommodating larger animals, some commenters said, airlines should
reconfigure their cabins to provide some larger spaces.
    The Department believes that the fears of these commenters are
largely unfounded. Nevertheless, in order to avoid future
misunderstanding, the Department is republishing its service animal
guidance later in the preamble to this final rule and has revised the
language in this guidance document concerning carriage of larger, but
otherwise acceptable, service animals to read as follows:

    The only situation in which the rule contemplates that a service
animal would not be permitted to accompany its user at his or her
seat is where the animal blocks a space that, per FAA or applicable
foreign government safety regulations, must remain unobstructed
(e.g., an aisle, access to an emergency exit) AND the passenger and
animal cannot be moved to another location where such a blockage
does not occur. In such a situation, the carrier should first talk
with other passengers to find a seat location where the service
animal and its user can be agreeably accommodated (e.g., by finding
a passenger who is willing to share foot space with the animal). The
fact that a service animal may need to use a reasonable portion of
an adjacent seat's foot space--that does not deny another passenger
effective use of the space for his or her feet--is not, however, an
adequate reason for the carrier to refuse to permit the animal to
accompany its user at his or her seat. Only if no other alternative
is available should the carrier discuss less

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

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

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

Information for Passengers

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

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

    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

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

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-

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

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

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

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

Complaints

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

the proposed rule will be included in the final rule without change.

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

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

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