[Federal Register: May 13, 2008 (Volume 73, Number 93)]
[Rules and Regulations]
[Page 27613-27687]
[DOCID:fr13my08-8]

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Part II

Department of Transportation

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14 CFR Part 382

 Nondiscrimination on the Basis of Disability in Air Travel; Final Rule

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DEPARTMENT OF TRANSPORTATION

14 CFR Part 382

[Dockets OST-2004-19482; OST-2005-22298; OST-2006-23999]
[RINs 2105-AC97; 2105-AC29; 2105-AD41]

Nondiscrimination on the Basis of Disability in Air Travel

AGENCY: Department of Transportation, Office of the Secretary.

ACTION: Final Rule.

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SUMMARY: The Department of Transportation is amending its Air Carrier
Access Act (ACAA) rules to apply to foreign carriers. The final rule
also adds new provisions concerning passengers who use medical oxygen
and passengers who are deaf or hard-of-hearing. The rule also
reorganizes and updates the entire ACAA rule. The Department will
respond to some matters raised in this rulemaking by issuing a
subsequent supplemental notice of proposed rulemaking.

DATES: Effective Date: This rule is effective May 13, 2009.

FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 1200 New Jersey Ave., SE., Room W94-302, Washington, DC
20590<PHONE_NUMBER> (voice);<PHONE_NUMBER> (TTY<EMAIL_ADDRESS>
You may also contact Blane Workie, Aviation Civil Rights Compliance
Branch, Office of the Assistant General Counsel for Aviation
Enforcement and Proceedings, Department of Transportation, 1200 New
Jersey Ave., SE., Room W98-310, Washington, DC 20590<PHONE_NUMBER>),
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    Congress enacted the Air Carrier Access Act (ACAA) in 1986. The
statute prohibits discrimination in airline service on the basis of
disability. Following a lengthy rulemaking process that included a
regulatory negotiation involving representatives of the airline
industry and disability community, the Department issued a final ACAA
rule in March 1990. Since that time, the Department has amended the
rule ten times.\1\ These amendments have concerned such subjects as
boarding assistance via lift devices for small aircraft, and
subsequently for other aircraft, where level entry boarding is
unavailable; seating accommodations for passengers with disabilities;
reimbursement for loss of or damage to wheelchairs; modifications to
policies or practices necessary to ensure nondiscrimination; terminal
accessibility standards; and technical changes to terminology and
compliance dates.
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    \1\ The dates and citations for these amendments are the
following: April 3, 1990, 55 FR 12341; June 11, 1990, 55 FR 23544;
November 1, 1996, 61 FR 56422; January 2, 1997, 62 FR 17; March 4,
1998, 63 FR 10535; March 11, 1998, 63 FR 11954; August 2, 1999, 64
FR 41703; January 5, 2000, 65 FR 352; May 3, 2001, 66 FR 22115; July
3, 2003, 68 FR 4088.
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    The Department has also frequently issued guidance that interprets
or explains further the text of the rule. These interpretations have
been disseminated in a variety of ways: Preambles to regulatory
amendments, industry letters, correspondence with individual carriers
or complainants, enforcement actions, web site postings, informal
conversations between DOT staff and interested members of the public,
etc. This guidance, on a wide variety of subjects, has never been
collected in one place. Some of this guidance would be more accessible
to the public and more readily understandable if it were incorporated
into regulatory text.
    There have also been changes in the ways airlines operate since the
original publication of Part 382. For example, airlines now make
extensive use of Web sites for information and booking purposes.
Preboarding announcements are not as universal as they once were. Many
carriers now use regional jets for flights that formerly would have
been served by larger aircraft. Security screening has become a
responsibility of the Transportation Security Administration (TSA),
rather than that of the airlines. In this rulemaking, the Department is
updating Part 382 to take these and other changes in airline operations
into account.
    The over 17-year history of amendments and interpretations of Part
382 have made the rule something of a patchwork, which does not flow as
clearly and understandably as it might. Restructuring the rule for
greater clarity, including using ``plain language'' to the extent
feasible, is an important objective. To this end, Part 382 has been
restructured in this rule, to organize it by subject matter area.
Compared to the present rule, the text is divided into more subparts
and sections, with fewer paragraphs and less text in each on average,
to make it easier to find regulatory provisions. The rule uses a
question-answer format, with language specifically directing particular
parties to take particular actions (e.g., ``As a carrier, you must * *
*''). We have also tried to express the (admittedly sometimes
technical) requirements of the rule in plain language.
    The Department recognizes that some users, who have become familiar
and comfortable with the existing organization and numbering scheme of
Part 382, might have to make some adjustments as they work with the
restructured rule. However, the structure of this revision is
consistent with a Federal government-wide effort to improve the clarity
of regulations, which the Department has employed with great success
and public acceptance in the case of other significant rules in recent
years, such as revisions of our disadvantaged business enterprise and
drug and alcohol testing procedures rules.\2\ Many of the provisions of
the current Part 382 are retained in this rule with little or no
substantive change. To assist users familiar with the current rule in
finding material in the new version of the rule, we have included a
cross-reference table in Appendix B to the final rule.
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    \2\ See 64 FR 5096, February 2, 1999 (for 49 CFR Part 26,
disadvantaged business enterprise) and 65 FR 79462, December 19,
2000 (for 49 CFR Part 40, drug and alcohol testing procedures).
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    In addition to this general revision and update, the Department in
this rule is making important substantive changes to the rule in three
areas: coverage of foreign carriers, accommodations for passengers who
use oxygen and other respiratory assistive devices, and accommodation
for deaf or hard-of-hearing passengers.
    The original 1986 ACAA covered only U.S. air carriers. However, on
April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century (AIR-21) amended the ACAA specifically to include
foreign carriers. The ACAA now reads in relevant part:

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

    Section 40105(b) provides as follows:

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

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

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

Comments and Responses

General Regulatory Approach

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

Coverage and Definition of ``Flight''

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

Conflict of Law Waivers and Equivalent Alternative Determinations

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

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

Other International Law Issues

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

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

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

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

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

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

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

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

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

Accessibility of Airport Terminals and Facilities

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

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

Enplaning, Deplaning, and Connecting Assistance

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

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

Number Limits

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

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

Safety Assistants/Attendants

    The Foreign Carriers NPRM proposed retaining, with minor
modifications, the existing Part 382 limitations on the ability of
carriers to require passengers with disabilities to travel with
attendants. One terminological change we proposed was to refer to
attendants that airlines could require in certain specified situations
for safety purposes as ``safety assistants.'' The use of this term is
intended to emphasize that the only reason a carrier may require
another person to travel with a passenger with a disability is safety.
It would never be permitted for a carrier to require someone to travel
with a passenger with a disability as a personal care attendant; that
is, as someone who is present to assist the passenger with personal
needs such as eating, drinking, and elimination.
    A number of foreign carriers asserted that they should retain the
discretion to require attendants for passengers with disabilities. They
gave several reasons for this desire. Some commenters did not want to
have to rely on passengers' self-assessments of their ability to travel
independently. Some cited provisions of carrier manuals or government
guidance that were contrary to the proposed regulation. Some feared
that crew members might be pressed into performing personal care
functions. Others argued that, on lengthy overseas flights, it was
reasonable to require attendants for personal care purposes, since
otherwise passengers with disabilities would be unable to perform
personal functions for long periods, with harm possibly resulting to
themselves or others. Some comments said that the requirement to allow
a safety assistant to fly free if the carrier disagreed with the
passenger's self-assessment could lead to abuse by clever passengers
trying to get free flights for someone. Some of these comments
suggested providing discounted, rather than free, transportation for
the attendant in these situations.
    Disability community commenters generally supported the Foreign
Carriers NPRM proposals, and a number of comments were particularly
supportive of the change to the ``safety assistant'' term, believing
that it helped to clarify the meaning of the provision. Some comments
from people with disabilities, however, objected to the provision to
the extent that it would ever permit carriers to insist on an attendant
over the passenger's objections. These commenters did not trust the
carriers' judgments about passengers' capabilities and were concerned
that carriers would impose attendant requirements arbitrarily,
increasing the costs and difficulty of flying for passengers with
disabilities.
    The limits on carrier requirements for attendants were a
significant issue in the original ACAA rulemaking, and the Department's
discussion of that issue in the preamble to the 1990 ACAA rule remains
relevant (see 55 FR 8029-8032; March 6, 1990). Passengers with
disabilities, for the most part, are the best judges of their
capabilities, and providing broad discretion to carriers to override
that judgment does carry with it a significant risk of arbitrary
burdens being placed on passengers. On the other hand, carriers have
ultimate responsibility for the safety of passengers, and we believe
that the balance struck in the original ACAA rule is a sensible one.
Passengers have the primary responsibility for making the determination
if they can travel independently, but carriers can overrule that
determination, in a carefully limited set of circumstances, and require
a safety assistant. If it is really an overriding safety reason that
compels a carrier to overrule a passenger's decision and insist that he
or she travel with a safety assistant, then it is appropriate for the
carrier to bear the cost of the safety judgment that it makes. In the
17 years that the Department has implemented this provision under the
existing ACAA rule, this requirement has not resulted, to the best of
our knowledge, either in safety problems or frequent or significant
abuse by passengers.
    Even on long flights, passengers with disabilities, under a
nondiscrimination statute, have the right to determine whether they
will incur the discomfort involved with not having someone available to
assist them with personal functions. A passenger may choose to forego
the airline's food and beverage service. A passenger may dehydrate
himself and avoid the need to urinate. The Foreign Carriers NPRM, like
the present rule, emphasizes that flight attendants and other carrier
personnel are never required to perform personal care functions for a
passenger. To ensure that passengers who make the choice to fly
unaccompanied have the opportunity to be fully informed of the
implications of their decision, the information to which passengers are
entitled (see sec. 382.41(f)) includes a description of services that
are or are not available on a flight.
    For these reasons, the Department is adopting the proposed
provision and thereby retaining the substance of the existing provision
of Part 382. The Department has made a few modifications in the rule
text, however. In a situation where the carrier insists on a passenger
traveling with a safety assistant, contrary to the passenger's self-
assessment, we are deleting the proposed language that would require
the carrier to make a good-faith effort to find someone to perform the
safety assistant function. This language was not part of the original
1990 rule, and we do not think it is essential to add it. As stated in
the preamble to the 1990 rule (see 55 FR 8031), the carrier can play an
important role in selecting a safety assistant (e.g., a deadheading
crew member, a passenger volunteer), which can be useful from the
carrier's point of view if the carrier is worried about a passenger
with a disability trying to abuse the system. If the carrier does not
designate an employee or volunteer to be the safety assistant, the
carrier cannot refuse to accept someone designated by the passenger
(i.e., with the result that no one would be available to act as the
safety assistant), as long as that person is capable of assisting the
passenger in an evacuation.
    With respect to passengers who have mobility impairments, we have
clarified the criterion relating to safety assistants to say that the
passenger with a disability must be capable of ``physically'' assisting
in his or her own evacuation. This clarification is made to avoid the
possibility that someone could claim he is assisting in his own
evacuation merely by calling for help. Finally, given that the rule
will now apply to foreign carriers, we have added to the provisions
concerning persons with mental disabilities and deaf-blind individuals
a notation referring to

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

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

Medical Certificates/Communicable Diseases

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

Aircraft Accessibility Features

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

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

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

strapping'' method of carrying wheelchairs in cabins. This involves
strapping down a wheelchair across a row of seats in an aircraft that
does not have the required space for stowing a folding wheelchair in
the cabin. While nowhere mentioned or authorized in the current Part
382, this practice has been permitted by DOT enforcement policy in some
cases. Some comments supported allowing this approach as an alternative
to providing a stowage space in the cabin. The Department does not
believe that this is an appropriate alternative to endorse in the rule,
because it is a more awkward way of carrying a wheelchair and because
it can, on a given flight, reduce seating capacity for other
passengers. This is a more important consideration than ever, given
frequently high load factors on many flights. However, because DOT
practice has allowed this measure in the past, we do not believe it is
fair to ban the practice altogether. Consequently, seat-strapping will
not be permitted as an alternative to designated stowage spaces on new
aircraft ordered by or delivered to carriers after two years from the
rule's effective date. The Department's policy will not change with
respect to existing aircraft.
4. On-Board Wheelchairs
    The existing rule requires that, on aircraft with more than 60
seats, the carrier must provide an on-board wheelchair in any case if
the aircraft has an accessible lavatory, and on a passenger's advance
request even if the aircraft does not have an accessible lavatory. The
rationale for the latter requirement is that some passengers with
limited mobility may be able to use an inaccessible lavatory on their
own but may need to be assisted down the aisle to the lavatory in an
on-board wheelchair. The Foreign Carriers NPRM proposed that this
requirement apply on aircraft with 50 or more seats, as distinct from
the criterion of more than 60 seats in the existing regulation. The
reason for this proposal was that 50-seat regional jets are becoming an
increasingly important component of the fleets of many carriers, and
the accommodation provided by this section should be made available to
passengers who use those aircraft.
    Carriers and their associations objected to the application of the
provision to 50-seat aircraft. Carriers cited cost as one reason for
their position. In addition, they said, 50-seat aircraft typically have
only one flight attendant on board. If that attendant is assisting a
passenger using an on-board wheelchair, he or she will be unable to
carry out other duties. This could create difficulties if an emergency
occurred while the flight attendant was assisting a user of an on-board
wheelchair, which might also obstruct the aisle in an emergency
situation. In addition, carriers questioned whether the interior of a
50-seat regional jet could be configured to provide storage space for
the on-board wheelchair when it was not in use.
    While the cost estimates of commenters for on-board wheelchairs
appear to be overstated, we believe that the operational concerns of
carriers with respect to the use of on-board wheelchairs on 50-seat
aircraft with one flight attendant have merit. In addition, the
typically very confined spaces in lavatory units on these aircraft make
their use by persons with limited mobility problematic. Consequently,
the final rule will retain the existing rule's provision applying on-
board wheelchair requirements to aircraft with more than 60 seats.

Stowage of Wheelchairs and Mobility Aids

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

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

Seating Accommodations

    The Foreign Carriers NPRM proposed carrying forward and applying to
foreign carriers the seating accommodations requirements of the current
ACAA rule. These provisions would require carriers to make available
certain seat locations to individuals with certain types of disability
calling for a particular seating accommodation.
    Some disability community commenters suggested that, if adequate
seating accommodations for a person with a disability were not present,
the individual should be seated in business or first class without
additional charge. Carriers generally opposed this idea. Under the
current rule, carriers are not required to provide accommodations in a
seating/service class for which a passenger has not bought a ticket
(see section 382.38(i)). The final rule continues this approach.
Carriers are responsible for making seating accommodations in the
seating/service class for which someone has bought a ticket, but are
not required to provide a higher level of seat or service because doing
so would be more comfortable or convenient for a passenger with a
disability. Likewise, the Department is continuing its existing
approach that a person who requires two seats for any reason (e.g.,
because of obesity or a disability) can be required to pay for two
seats.
    Some carriers asked for an advance notice requirement for
passengers

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

Accommodations for Passengers Who Use Oxygen Devices

A. Passenger-Owned Respiratory Devices

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

devices excepted from coverage under applicable FAA regulations, e.g.,
14 CFR 121.306, 135.144, 121.574, 135.91 and Special Federal Aviation
Regulation No. 106--ventilators, respirators, continuous positive
airway pressure (CPAP) machines and portable oxygen concentrators. We
sought information from foreign governments, foreign carriers and other
interested parties regarding any foreign safety restrictions affecting
the carriage and use of these electronic respiratory assistive devices.
While commenters did not conclusively identify any particular device as
being specifically prohibited by foreign safety rules, there was a
suggestion that certain governments may view all POCs as containing
hazardous materials and may not permit their carriage or use onboard
aircraft. Commenters also identified a number of foreign carriers that
prohibit the use of electronic devices (including the aforementioned
electronic assistive devices) during take-off and landing. The
commenters noted that most of these foreign carriers are required to
submit their aircraft passenger policies to a government agency for
approval and expressed concern that the Department may not consider a
foreign carrier's prohibition on use of electronic devices during
ascent and descent which has been approved by its government to be a
foreign government safety requirement.
    The Department recognizes that foreign carriers operate under a
variety of laws and regulations. We have revised section 382.133 to
clarify that foreign carriers need to permit the carriage and use of a
ventilator, respirator, CPAP machine and POC only if among other
things, the device can be stowed and used in the passenger cabin
consistent with applicable TSA, FAA, and PHMSA regulations and the
safety or security regulations of its government (emphasis added). In
addition, section 382.9 allows a foreign carrier to petition the
Department for a waiver of compliance with any provision in Part 382,
including section 382.133, if an applicable foreign law or regulation
precludes a foreign carrier from complying with that provision. As
noted earlier in this document, the Department employs a narrow
definition of the phrases ``the safety or security regulations of its
government'' and ``foreign law or regulation.'' A carrier's policy,
even if approved by its government, would not be considered a foreign
nation's law and would not exempt the carrier from compliance with Part
382.
3. Testing and Labeling of Electronic Respiratory Assistive Devices
    In the Oxygen NPRM, we proposed that a U.S. carrier that conducts
passenger-carrying service other than an on-demand air taxi operator
perform the necessary evaluation and testing of a ventilator,
respirator, CPAP machine or FAA-approved POC to determine if the device
causes interference with the navigation or communication systems of
each model of aircraft the U.S. carrier operates. We also proposed
requiring a foreign carrier that conducts passenger-carrying service
other than an on-demand air taxi operator to perform the necessary
evaluation and testing of these devices to ascertain whether such
device can be used safely by passengers during a flight on each
aircraft that the foreign carrier operates on flights to and from the
U.S.
    Industry commenters as well as some consumers said that the burden
of testing should be shifted away from the carriers. The Air Transport
Association and other industry commenters proposed that carriers only
be required to permit the use of an electronic respiratory assistive
device that has been tested and marked as approved by RTCA, Inc.
(formerly the Radio Technical Commission for Aeronautics). These
commenters argued that if carriers have the option of refusing to carry
any device that is not tested and marked as approved by the RTCA then
the device manufacturers would have an incentive to test their devices
and produce safety testing results for the carriers to review. Other
commenters suggested that the device manufacturers and the aircraft
manufacturers should be required to conduct the testing and then label
the device as approved for use aboard aircraft, as manufacturers have
the greatest incentive to test devices. Industry commenters also
requested that the FAA create a generic safety standard for testing
respiratory devices as well as a uniform labeling system for all
approved devices to cut down on confusion by carriers and passengers.
    Having considered all of these comments, the Department is